Citation Nr: 1330795 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 12-11 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active military service from November 1946 to April 1948 and from November 1950 to November 1952. His awards and decorations include the Purple Heart and the Combat Infantryman Badge. He died in October 2007. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a December 2009 rating decision of the New York, New York, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for the cause of the Veteran's death. 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 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 seeks service connection for the cause of the Veteran's death. She alleges that the Veteran died of complications from asbestosis and interstitial lung disease that developed as a result of exposure to asbestos in service. Specifically, she stated that he was exposed to asbestos in service while he was assigned to the "motor pools." His separation documents appear to show that he served in combat operations, including in the infantry. Clear history of exposure to asbestos is not delineated. In cases involving asbestos exposure, the claim must be analyzed under VA administrative protocols. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). Although there is no specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, VA has several guidelines for compensation claims based on asbestos exposure. VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1 MR), Part IV, Subpart ii, Ch. 2, Section C, Topic 9 and Section H, Topic 29 (Dec. 13, 2005). Additionally, the Board must follow development procedures specifically applicable to asbestos-related claims. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997). VA must determine whether military records demonstrate evidence of asbestos exposure during service, whether there was pre-service or post-service occupational or other asbestos exposure, and whether there is a relationship between asbestos exposure and the claimed disease. Prior to his death, the Veteran was diagnosed with interstitial lung disease and asbestosis - diseases that are known to be caused by exposure to asbestos. The appellant has alleged exposure to asbestos in service, and both she and some medical providers who provided supporting opinions remarked that the Veteran did not have any other known exposure to asbestos. However, a formal history of pre-service or post-service occupational or other asbestos exposure was not conducted - and in this regard, the Board observes that a March 1952 consultation in the Veteran's service treatment records noted a history of construction work where he carried steel girders between his two periods of active duty, and his DD Form 214 noted a main civilian occupation of steel handling laborer. Consequently, the Board finds that additional development is necessary. Finally, in her April 2013 VA Form 9, the appellant stated that VA failed to obtain records from the Keller Army Hospital, West Point, New York, that were relevant to her claim. An attempt to obtain these outstanding records must be made. 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. The RO should obtain the names and addresses of all medical care providers who treated the Veteran for interstitial lung disease/asbestosis from 2005 until his death in 2007. After securing the necessary release, the RO should obtain these records, including clinical records from F.K., M.D., and D.L.S., M.D., who provided statements in support of the appellant's claim, as well as records from Keller Army Hospital, West Point, New York. 2. The RO must develop the record pertaining to the question of whether military records demonstrate evidence of asbestos exposure during service, and whether there was pre-service or post-service occupational or other asbestos exposure in accordance with VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1 MR), Part IV, Subpart ii, Ch. 2, Section C, Topic 9 and Section H, Topic 29 (Dec. 13, 2005). See also 38 C.F.R. § 3.159 (2013). 3. After the development requested above has been completed to the extent possible, the RO should again review the record and readjudicate the claim for entitlement to service connection for the cause of the Veteran's death. If the benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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). _________________________________________________ FRANK J. 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).