Citation Nr: 1324000 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 10-33 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for colon cancer, to include as due to asbestos exposure. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from November 1964 to July 1969. Commendations and awards include a Vietnam Service Medal with one Bronze Star and one Silver Star; a Vietnam Campaign Medal; and two Navy Unit Commendation Ribbons. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. Jurisdiction is now with the Indianapolis RO. In May 2011 the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in Indianapolis, Indiana. A transcript of that hearing is in the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for colon cancer, which he says may be related to his exposure to asbestos onboard the USS ORISKANY; particularly during a fire on the ORISKANY in October 1966 (during which 44 sailors and Officers lost their lives); and during the removal of asbestos from around the ships pipes after the fire. He reports that in 1968 he and his cleaning crew removed asbestos from the floors of the ORISKANY with brooms and dustpans, five days a week, for four months, while the ship was docked in the San Francisco Naval Yards for major repairs and refurbishing. He adds that he wore no protective gear. In support of his claim for service connection he has submitted internet articles pertaining to asbestos on the USS ORISKANY, and internet articles regarding a relationship between asbestos exposure and colorectal cancer. Service personnel records, including the Veteran's DD-214, confirm that he served on the USS ORISKANY (CVA 34) from May 1965 to June 1969; and that he was awarded two Navy Unit Commendation Medals, a Vietnam Service Medal with 1 Bronze Stars and 1 Silver Star, and a Vietnam Campaign Medal. While there are no special statutory or regulatory provisions for claims involving service connection for asbestos-related disease, under the VETERAN'S BENEFITS ADMINISTRATION MANUAL, M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Subsection 29, in reviewing claims for service connection, it must be determined whether or not military records demonstrate asbestos exposure in service; whether or not there was asbestos exposure pre-service and post-service; and whether or not there is a relationship between asbestos exposure and the claimed disease. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). As the Veteran has submitted prima facie evidence of asbestos onboard the USS ORISKANY (CVA 34); of his exposure to said asbestos; and of a link between asbestos exposure, generally, and colon cancer; the matter must be remanded for further development, including an official statement from the Navy department or other appropriate agency regarding the likelihood of the Veteran's exposure to asbestos during his service on the USS ORISKANY from 1965 to 1969. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any pertinent VA or non-VA facilities where he receives treatment for colon cancer. Attempt to obtain any identified treatment reports, following the receipt of any necessary authorizations from the Veteran, and associate the reports with the claims file. The Veteran and his representative must be notified of any unsuccessful attempt to obtain identified records and provided with an opportunity to submit such reports. 2. Contact the appropriate service department/agency and request a determination as to the presence of asbestos on the USS ORISKANY from 1964 to 1969; and, if confirmed, the likelihood of the Veteran's exposure to asbestos while aboard ship, particularly a) during the shipboard fire in October, 1966, which resulted in the deaths of 44 servicemen, and b) during the repair/refurbishment of the ship at the San Francisco Naval Yards in or around 1968. The Veteran reports that he and his cleaning crew removed asbestos from the floors of the ORISKANY with brooms and dustpans, five days a week, for four months, while the ship was docked in the San Francisco Naval Yards for major repairs and refurbishing in 1968; and that he wore no protective gear. Also, take appropriate action to develop evidence of any pre- and post- service asbestos exposure. See Veteran's Benefits Administration Manual, M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Subsection 29. 3. After completion of step 1, if asbestos on the USS ORISKANY during the timeframe November 1964 to July 1969 is confirmed and the Veteran's exposure to this asbestos is in any way conceded, schedule the Veteran for a VA examination. Following review of all of the evidence of record, the examiner is requested to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's colon cancer is due, at least in part, to his exposure to asbestos during service. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the causal relationship; less likely weighs against the claim. A rationale for all opinions must be provided. If the examiner is unable to provide the requested opinion without resorting to speculation, he/she must provide the reason that an opinion would require speculation. 4. After completion of all of the above, readjudicate the claim. If the benefit sought remains denied, send the Veteran and his representative a supplemental statement of the case and return the case to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).