Citation Nr: 1329437 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 13-05 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for lung cancer. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active duty service from July 1942 to April 1943, and from September 1943 to March 1946. The Appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the Veteran's claims for service connection for lung cancer, bladder cancer, and herniated discs. In January 2010, the Veteran submitted his disagreement to these issues. He passed away in March 2010, while these claims were still pending. The law was recently amended in 2008 to allow for the substitution of a claimant when the original claimant dies during the pendency of a claim or appeal, provided that the death occurred on or after October 10, 2008, and that the proposed substitute claimant would be eligible to receive accrued benefits under 38 U.S.C.A. § 5121. See 38 U.S.C.A. § 5121A (West Supp. 2012). Because the Veteran had claims pending at the time of his death in March 2010, and the Appellant would be eligible for accrued benefits, the RO substituted the Appellant for the Veteran in his pending claims. In November 2012, the RO sent the Appellant a statement of the case on the claims for service connection for lung cancer, bladder cancer, and herniated discs. In January 2013, she filed a statement wherein she set forth her theory that the Veteran died from lung cancer due to asbestos exposure. This statement was accepted by the RO as a substantive appeal in lieu of VA Form 9 pursuant to 38 C.F.R. § 20.202. Because she only addressed the claim for lung cancer, that is the only issue that has been certified to the Board, as reflected above. Review of the Virtual VA paperless claims processing system does not reveal additional documents that are pertinent to this claim. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Appellant's claim so that she is afforded every possible consideration. The Veteran passed away in March 2010. The claims files do not contain any records that are contemporaneous to the time of death, and do not contain complete records of treatment for cancer. The record shows that the Veteran received both VA and private treatment. A complete set of his treatment records, especially those regarding bladder or lung cancer, must be associated with the claims files. 38 U.S.C.A. § 5103A(b). Both the Veteran, prior to passing away, and the Appellant have asserted that the Veteran was exposed to asbestos during World War II, while stationed on the USS Hermitage and the USS Venango. Further, in an October 2003 statement, the Veteran reported that he was an engineering officer, and his duty stations were located in the engine rooms of those ships. His wife supplemented that statement in January 2013 by asserting that he was exposed to asbestos in the engine rooms. As the evidence indicates that the Veteran was possibly exposed to asbestos in service, and that he later was diagnosed with metastic bladder cancer and lung cancer, a medical opinion as to whether his later diagnoses are related to in-service exposure should therefore be obtained. 38 U.S.C.A. § 5103A(a). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Make arrangements to obtain the Veteran's complete treatment records from the Boston VAMC, dated from February 2009 through March 2010. 2. Make arrangements to obtain the Veteran's complete treatment records from the West Palm Beach VAMC. 3. Make arrangements to obtain the Veteran's complete treatment records from the Lahey Clinic, to include all records dated prior to July 2008 and after January 2009. 4. Upon completion of the above directive, forward the claims file to an appropriate physician for a medical opinion. The entire claims file and a copy of this remand should be reviewed by the examining physician prior to rendering any opinion. Although required to review all of the evidence, the examiner's attention is directed to the following: a. The Veteran served on active duty from July 1942 to April 1943, and from September 1943 to March 1946. b. Prior to his death, the Veteran alleged he was exposed to asbestos while stationed on the USS Hermitage and the USS Venango. In 2003, he indicated his duty stations on both ships were in the engine room. In 2013, his wife asserted he was exposed to asbestos in the engine room. The examiner is asked to formulate an opinion based on the premise that the Veteran was exposed to asbestos between 1942 and 1946. c. The Veteran's cause of death is listed as metastatic bladder cancer, which was excised in or around 2005. His private physician noted in March 2009 that he thought that lung malignancies metastasized from elsewhere. The examiner is asked to answer the following questions: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran's bladder cancer was caused by exposure to asbestos during service? If so, is it at least as likely as not that his bladder cancer metastasized to the lung? b. Is it at least as likely as not that the Veteran's lung cancer was caused by exposure to asbestos during service? The examiner is asked to provide a complete explanatory rationale for each opinion rendered. 5. Following completion of the above directive, review the claims file to ensure compliance with this remand. If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. 6. Finally, after completing all of the above, and any additional development deemed warranted, readjudicate the claim on appeal. If the benefit on appeal remains denied, furnish the Appellant and her representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. The Appellant 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). _________________________________________________ P.M. DILORENZO 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).