Citation Nr: 1330596 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 10-37 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for lung cancer, to include as secondary to exposure to herbicides and/or asbestos exposure, for substitution purposes. REPRESENTATION Appellant represented by: Tommy J. Klepper, Attorney At Law WITNESS AT HEARING ON APPEAL Appellant, P.S., S.W. ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to March 1972. The Veteran died in January 2011 and the surviving spouse has been substituted as the appellant. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The appellant testified before the undersigned at an October 2011 Video Conference hearing. The hearing transcript is of record. 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 The appellant contends that the Veteran developed lung cancer as a result of exposure to herbicides and/or asbestos during his active military service in the Navy during the Vietnam War. Specifically, she claims that the Veteran served aboard a Naval ship called the USS Arlington, originally named the USS Saipan, which was a small aircraft carrier, and that there was asbestos on the ship. With regard to his claim for herbicide exposure, the Veteran did not claim that he actually served inland in Vietnam. Instead, he reported that at times, his ship was docked only a mile off shore of Vietnam. Personnel records show that the Veteran served aboard the USS Arlington, the USS Camden and the USS Point Defiance during his military service from September 1969 to March 1972. He had a military occupational specialty (MOS) of Culinary Specialist (CS) or Cook. However, there is no indication that the Veteran was exposed to asbestos or any caustic chemicals in service. Service treatment records are negative for any complaints, treatment or diagnosis of lung cancer. The Veteran's entrance examination shows that he reported shortness of breath after smoking, and there was a note of a cyst in the pulmonic area. No other complications were noted, and a chest X-ray conducted in February 1969, was negative. Outpatient treatment records from the VA Medical Center in Oklahoma City show that the Veteran was diagnosed with squamous cell carcinoma of the tonsil in October 2007 and of the lung in July 2009. There is no statute specifically dealing with service connection for asbestos-related diseases, nor has the Secretary of VA promulgated any specific regulations. In 1988, however, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000 (April 13, 2000). VA must analyze the Veteran's claim for service connection for asbestos-related disease under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). With asbestos-related claims, the Board must determine whether the claim development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997) (while holding that the Veteran's claim had been properly developed and adjudicated, the Court indicated the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the Circular's claim-development procedures). To this end, the RO must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind exposure information and that the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), (d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. The most common disease resulting from exposure to asbestos is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. See M21-1, Part VI, 7.21(a)(1). Persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, 7.21(a)(3). Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. See M21-1, Part VI, 7.21. The VA has recognized that during World War II, several million people employed in U.S. shipyards and U.S. Navy Veterans were exposed to asbestos since it was used extensively in military ship construction. See Department of Veterans Benefits (DVB) Circular 21-88-8, Asbestos-Related Diseases (May 11, 1998). The Board observes that the Veteran was diagnosed with lung cancer during his lifetime. Lung cancer has been found by VA to be one of the diseases associated with asbestos exposure. See DVB Circular, supra. Under the VCAA, VA is obliged to provide an examination in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. In light of the medical evidence and the Veteran's contentions, the Board finds that further development is necessary in an attempt to corroborate the claimed asbestos exposure in service. In asbestos related claims, medical examination and any associated opinions should include review of the claims file by a physician who is a certified "B reader." As a matter of background information, B reader approval is granted to physicians with a valid U.S. state medical license who demonstrate proficiency (via examination) in the classification of chest radiographs for pneumoconioses using the International Labor Office Classification System. It is also used to classify chest radiographs of asbestos-exposed-exposed workers governed by the U.S. Department of Labor regulations, and for medical screening, surveillance, research, or compensation programs. See National Institute for Occupational Safety and Health (NIOSH) Website on Safety and Health Topic: Chest Radiography. Additionally, the Board finds that a VA examination is warranted to determine the current nature and etiology of any current pulmonary disorder. 38 U.S.C.A. § 5103A(d) (West 2002). Indeed, as noted above, the private physician who diagnosed the Veteran with COPD, opined in November 2008 that the Veteran's asbestos exposure in the Navy could have contributed to his lung disease. The appellant is advised that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. A VCAA letter addressing claimed asbestos exposure should be sent to the appellant. 2. Contact the service department and/or any other available source to determine if the Veteran worked in areas and performed duties where he would have been exposed to asbestos aboard the USS Arlington, USS Camden, or USS Point Defiance, during his service with the U.S. Navy in from 1969-1972. Consider the Veteran's contention of exposure in connection with his MOS duties as a cook, or any other duties he may have performed. 3. Based on the evidence received from the service department, the RO should make a determination as to whether there is evidence that the Veteran was exposed to asbestos during service. If it is determined that the Veteran was exposed to asbestos during service, the RO should forward the claims file to an appropriate VA doctor to review the record and render an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's lung cancer was related to exposure to asbestos during his military service as a cook in the Navy. If it is determined that the Veteran was not exposed to asbestos during service, the examiner should comment as to whether his lung cancer was otherwise at least as likely as not (a 50 percent probability or greater), related to some aspect of the Veteran's period of active service. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. A complete rationale should be given for all opinions and conclusions expressed. In rendering this opinion, the examiner should review the Veteran's medical history, as demonstrated in the claims file, including any chest x-rays or diagnostic testing. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence, ensuring that the guidelines in VA Adjudication Procedure Manual M21-1, Part VI, 7.21 have been followed.. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The case should be returned to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ F. JUDGE FLOWERS 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).