Citation Nr: 1332978	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  11-26 498	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for lung cancer (claimed as due to asbestos exposure).

2.  Entitlement to service connection for asbestosis.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

M. Yuan, Associate Counsel



INTRODUCTION

The Veteran served on active duty from December 1964 to November 1966.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  A notice of disagreement was filed in September 2010, a statement of the case was issued in July 2011, and a substantive appeal was received in September 2011.

The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.
 
The case is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


REMAND

The Veteran's June 2010 VA examination diagnosing him with lung cancer provided a negative etiological opinion, specifically that lung cancer is not caused by or a result of asbestos exposure, as asbestos exposure causes pleural changes and is clearly associated with mesothelioma, whereas the Veteran has large cell lung cancer, which is classically associated with cigarette smoking.  The examiner points to the Veteran's lifelong smoking habit as the cause of lung cancer.  Private medical opinions from Dr. George Yacoub, M.D. and Dr. Kathryn Lorenz, M.D. oppose the June 2010 VA examiner's opinion, stating that it is likely that asbestos exposure contributed to some degree to the Veteran's lung cancer.    

The Veteran has submitted subsequent documents from the National Cancer Institute discussing a causal relationship between asbestos and lung cancer.  Under the circumstances, the Board believes further medical development is appropriate to fully assist the Veteran.  

Accordingly, the case is REMANDED for the following actions:

1. The Veteran should be scheduled for a VA examination by a medical doctor with experience with lung cancer and asbestosis.  The claims file should be made available to the examiner for review in connection with the examination.  All medically indicated special tests/studies should be conducted. 

     a)  The examiner should clearly report whether a medical diagnosis of asbestosis is warranted.  If so, the examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that the asbestosis is causally related to the Veteran's active duty service in the Navy.  

     b)  With regard to the Veteran's lung cancer, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or higher degree of probability) that the Veteran's lung cancer was caused by or related to the Veteran's active duty service in the Navy.  

The examiner should offer detailed reasons for all opinions.  The examiner should discuss, as appropriate, the reasons for agreeing or disagreeing with the private opinions and medical literature of record.

2. In the event the Veteran fails to report for the examination, the RO should forward the claims file to an appropriate medical doctor for review and response to the questions posed in the preceding paragraph.

3. After completion of the above, the RO should then re-adjudicate the claims.  If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran an opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

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).




______________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs