Citation Nr: 1334819 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-28 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for lung cancer to include secondary to Agent Orange and asbestos exposure, for the purpose of accrued benefits. 2. Entitlement to service connection for liver cancer to include secondary to Agent Orange and asbestos exposure, as well as secondary to lung cancer, for the purpose of accrued benefits. 3. Entitlement to service connection for the cause of the Veteran's death. 4. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1151. 5. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318. REPRESENTATION Appellant represented by: Sarah Sultenfuss, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The Veteran served on active duty from October 1964 to March 1986. The Veteran died on May [redacted], 2008. The Appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied her claims for service connection for the cause of his death and for dependency and indemnity compensation (DIC) under 38 U.S.C.A. §§ 1318 and 1151. The RO also denied claims for accrued benefits to include service connection for lung cancer and liver cancer secondary to Agent Orange and asbestos exposure as well as service connection for liver cancer secondary to lung cancer, for the purpose of accrued benefits. After the Veteran's death in May 2008, his widow submitted a June 2008 application for dependency and indemnity compensation (DIC), death pension, and accrued benefits. In April 2013 the Appellant testified during a hearing at the RO before the undersigned Veterans Law Judge; a transcript of the hearing is of record. The issues of entitlement to service connection for the cause of the Veteran's death, and entitlement to DIC under 38 U.S.C. § 1151 and 1318 are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. There is no confirmation of the Veteran's actual presence on the landmass of Vietnam or inland waterways, so no resultant presumption of exposure to herbicides. 2. Neither lung or liver cancer were present in service, they did not become manifest to a compensable degree within one year of the Veteran's discharge from service, and are not shown by competent and credible evidence to otherwise be causally or etiologically related to his service - including to his alleged, but not confirmed or presumed, exposure to herbicides or asbestos. CONCLUSIONS OF LAW 1. For accrued benefit purposes, lung cancer was not incurred in or aggravated by the Veteran's military service and may not be presumed to have been incurred in service, including from exposure to herbicides or asbestos. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. For accrued benefit purposes, liver cancer was not incurred in or aggravated by the Veteran's military service may not be presumed to have been incurred in service, including from exposure to herbicides or asbestos and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In September 2008, the Appellant received notification concerning her claims for accrued benefits. In addition to its duties to provide the aforementioned notices to the claimant, VA also must make reasonable efforts to assist the claimant with obtaining the evidence that is necessary in order to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Although the RO was unable to schedule a VA examination before his death, VA has, of record, evidence including the Veteran's statements and VA treatment records. As detailed above the Board has already determined that the Appellant received adequate notification which apprised her of the elements necessary to substantiate her claims for accrued benefits. As for evidence that was not constructively of record at the time of the Veteran's death, the Board finds the second prong of Bryant (which will be discussed in more detail, below) to be moot as adjudication of a claim for accrued benefits is limited to the evidence of record at the time of the Veteran's death. In this regard, the Appellant's claims for accrued benefits are derivative of the Veteran's claim at the time of his death and, therefore, she could not offer any further evidence in support of the claims. See Zevalkink v. Brown, 102 F.3d 1236, 1241-42 (Fed. Cir. 1996); Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). In other words, further notice would not benefit the Appellant in any way, as the resolution of her claim for purposes of accrued benefits is entirely dependent upon the application of statutes and regulations to the evidence (or facts) of record at the time of the Veteran's death. See Kane v. Principi, 17 Vet. App. 97, 103 (2003); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). As noted above, in April 2013, the Appellant testified at a Board hearing before the undersigned. The Court held in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010) that there are two duties imposed by 38 C.F.R. 3.103(c)(2), (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked-are not impacted by the appellant's receipt of a VCAA-compliant notice letter. These duties were fulfilled and the Appellant has not alleged otherwise. All relevant facts with respect to the claims addressed in the decision below have been properly developed. Under the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). VA has complied with the notice and assistance requirements and the Appellant is not prejudiced by a decision on the claim at this time. Service Connection for Lung and Liver Cancer Secondary to Agent Orange and Asbestos Exposure for Accrued Benefits Purposes In written statements and testimony before the Board, the Appellant asserts that the Veteran was exposed to asbestos and Agent Orange while in service and that such exposure caused or contributed to his death. The Appellant also contends that his military duties required him to go ashore where he was exposed to Agent Orange. In fact, he was wounded in the knee while serving in Vietnam. He was also exposed to asbestos-related material while serving aboard the USS Storm. She feels that exposure to these toxins such as paint caused or contributed to his diagnosed lung and liver cancer. The law provides that, upon the death of a veteran, a surviving spouse may be paid periodic monetary benefits to which the veteran was entitled at the time of the veteran's death, and which were due and unpaid for a period not to exceed two years, based on existing rating decisions or other evidence that was on file when he died. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. The application for accrued benefits must be filed within one year after the date of the veteran's death. 38 C.F.R. § 3.1000(c). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that, for a surviving spouse to be entitled to accrued benefits, "the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." Therefore, in order for a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the veteran had a claim pending at the time of death, (iii) the veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the veteran's death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000; Jones, 136 F.3d 1299. Claims for accrued benefits are derivative in nature, such that a "claimant's entitlement is based on [a] veteran's entitlement" to service connection. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed Cir. 1996). The claim is based on evidence in the file at date of death, which means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death, in support of a claim for VA benefits pending on the date of death. 38 C.F.R. § 3.1000(d)(4). A review of the record reveals that in March 2008, prior to his death, the Veteran, in pertinent part, filed claims for service connection for liver and lung cancer. Therefore, these claims were pending at the time of his death in May 2008. The Appellant, the Veteran's widow, filed a claim for DIC and accrued benefits in June 2008, within one year of the Veteran's death. 38 C.F.R. § 3.1000(c). In this regard, service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to direct service connection for the claimed disability, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability - or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for certain chronic diseases (such as malignant tumors) when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same condition; or (2) a listed chronic disease (under 38 C.F.R. § 3.309(a) manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology analysis is applicable in cases involving conditions explicitly recognized as chronic diseases under 38 C.F.R. § 3.309(a)). Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In this matter, the Appellant does not allege, and his service records do not show, that lung or liver cancer manifested during active service or within the first year of his service discharge. She instead contends that lung and liver cancer, first diagnosed many years subsequent to discharge from service, were the result of exposure to herbicides and/or asbestos during active military service in the U.S. Navy. With regard to herbicide exposure, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 U.S.C.A. § 1116(a)(4); 38 C.F.R. § 3.307(a)(6)(i); Combee, supra. The regulations clearly define to whom the presumption of exposure applies, and as the record does not show that he physically entered or set foot in Vietnam or traveled on the inland waterways while stationed aboard the a naval vessel, he is not entitled to a presumption of exposure to herbicides. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). In this regard, the Veteran's military records, including his personnel records, do not establish that he served in Vietnam so as to, in turn, require presuming he was exposed to herbicides. His service personnel file indicates through his Form DD-214s (Report of Separation from Service) that his occupational specialties included radio operator, antisubmarine, air controller, radar man, and career information coordinator. The Board points out further that the decorations which the Veteran received though clearly commendable and indicative of his own contributions through military service, are not recognized per se as evidence of service within the territorial borders of Vietnam. For instance, the VSM was awarded to all members of the Armed Forces of the United States serving in Vietnam and contiguous waters or airspace above, as well as to those who served in Thailand, Laos, or Cambodia in direct support of operations in Vietnam. See Manual of Military Decorations and Awards, 6-1 (Department of Defense Manual 1348.33-M, Sept. 1996). Furthermore, under 38 C.F.R. § 3.309(e), presumptive service connection based on Agent Orange exposure is only available for certain enumerated diseases. Liver cancer is not among the enumerated diseases listed under 38 C.F.R. § 3.309(e). Therefore, even if it could be proven that the Veteran served in Vietnam, service connection could not be established based on presumptive herbicide exposure. As noted above, even if a Veteran is found not entitled to a regulatory presumption of service connection, the claim still must be reviewed to determine whether service connection may be established on a direct-incurrence basis. Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994). See also McCartt v. West, 12 Vet. App. 164, 167 (1999). As to disease or injury caused by the alleged asbestos exposure, the Board notes that there is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases, but only special guidelines for developing these claims. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29; Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9. Nonetheless, the M21-1MR provides a non-exclusive list of asbestos related disease which list includes cancer of the urogenital system. See M21-1MR, Part IV.ii.2.C.9.cc. The Veteran's personnel records show that he served aboard the USS Kawishiwi, (November 1974), USS Grasp (April 1975), USS Nashville (January and March 1977) and at various naval facilities. In addition, while the M21-1MR does not list persons involved in radar, radio operator, antisubmarine air controller, or career information coordinator on the non-exclusive list of occupations that have higher incidents of asbestos exposure, it does list work in shipyards. See M21-1MR, Part IV.ii.2.C.9.f. Furthermore, the M21-1MR provides that the latent period for asbestos related disease varies from 10 to 45 years or more. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29.a; M21-1MR, Part IV, ii.2.C.9.dd. Initially, the Board finds that the Veteran was both competent and credible to report on what he could see and feel while on active duty. Likewise, the Board finds that the Veteran's wife is both competent and credible to report on what her husband related to her regarding his in-service duties, since she met and married him during service. However, as to their competency and credibility in regard to whether any material he came into contact with (or saw) while on active duty was, in fact asbestos, the Board finds that as laypersons neither the Veteran nor his wife is capable of opining on matters requiring special knowledge. Id. Unfortunately neither the Veteran nor his wife provided any detailed accounts of his exposure. Therefore, the Board does not find credible their claims that he came into contact with any material containing asbestos. Similarly, the Board finds that diagnosing a chronic disability due to asbestos exposure including lung cancer requires special medical training and equipment that the Veteran and his wife do not have and therefore it is a determination "medical in nature" and not capable of lay observation. Id. Therefore, since layperson are not capable of opining on matters requiring medical knowledge, the Board finds that their lay claims regarding the Veteran having a chronic disability due to asbestos exposure including lung cancer while on active duty and since that time is not competent evidence. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998); See also Bostain v. West, 11 Vet. App. 124, 127 (1998). Likewise, the Board finds that despite the latency period for asbestos related disease that the length of time between the Veteran's separation from active duty in 1986 and the first complaints and/or treatment for lung cancer in 2008 to be compelling evidence against finding continuity. Put another way, without addressing the question of whether his disorder was caused by the Veteran's alleged in-service asbestos exposure, the Board finds that over a two decade gap between the Veteran's discharge from active duty and the first evidence of the claimed disorder weighs heavily against her claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). The Board also finds the medical record more compelling, which is negative for complaints and/or treatment for or a diagnosis of a chronic disease due to asbestos exposure while on active duty, and for two decades thereafter than any lay claims found in the record. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). In considering direct service-incurrence, the Veteran's service treatment records are unremarkable for any treatment or diagnosis of lung or liver cancer. Also, there is no indication that a malignant tumor of the lung or liver initially manifested to a compensable level within one year following service, precluding presumptive service connection for chronic diseases, under 38 C.F.R. § 3.309(a). Still further, at the time of his death, the record did not contain a medical link, or nexus, between any asbestos exposure and the Veteran's lung and liver cancer. While the Appellant has since provided a conclusory medical opinion in 2010, in an accrued benefits claim, VA must base the decision on the evidence of record at the time of the Veteran's death. 38 C.F.R. § 3.1000(d)(4); Hayes v. Brown, 4 Vet. App. 353 (1993). Accordingly, the Board finds that entitlement to service connection for lung and liver cancer caused by asbestos exposure and Agent Orange would have been denied based on either a direct or presumptive basis. Furthermore since the Board is denying the claim for service connection for lung cancer, the claim for service connection for liver cancer on a secondary basis is moot. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for lung cancer for accrued benefit purposes is denied. Service connection for liver cancer for accrued benefit purposes is denied. REMAND As noted above, the Appellant argues that the Veteran had lung and liver cancer as a result of military service, specifically as a result of Agent Orange exposure or in the alternative due to asbestos exposure. As referred to above, the adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). The guidelines provide, in part, that VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether there was pre-service and/or post service occupational and other asbestos exposure, and that a determination must be made as to whether there is a relationship between asbestos exposure in service and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997). In the present case, the record reflects that in May 2008, prior to his death, the RO requested that the Veteran provide information regarding his asbestos exposure. However, the Veteran died before he could respond. And, there does not appear to be any further development, in regard to the asbestos aspect of the claim. The RO did not make any formal finding regarding his claimed asbestos exposure. The Veteran's death certificate shows that the immediate cause of his death was sepsis, spontaneous bacterial pneumonitis, and metastatic small cell carcinoma. In this regard, VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C, Topic 9b notes that inhalation of asbestos fibers can result in cancer of the lung, bronchus, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate). The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years between the first exposure and the development of the disease. M21-1MR, Part IV, subpart ii, Chapter 2, Section C, Topic 9d. The Board is unable to review the claim until a determination is made in regards to his claimed asbestos exposure. After taking the necessary steps, a formal finding to this effect should be generated which details the steps that were taken to make this determination. The Appellant should be given time to respond and supply any information regarding these allegations concerning his asbestos exposure. To support her claim, she submitted a March 2010 statement from a private doctor of osteopathic medicine. This clinician concluded that the Veteran's interstitial fibrosis was caused by bilateral pulmonary asbestosis. He went on to conclude further that the pulmonary asbestosis resulted from his prior places of work including the U.S. Navy. However, he fails to support his conclusions with rationale. As such, a VA medical opinion should be obtained to determine whether the Veteran suffered from a lung disability which could be considered service-connected due asbestos exposure. See 38 U.S.C.A. § 5103A; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, although it appears that the Appellant has actual knowledge that the Veteran was service-connected for multiple disabilities, correspondence issued to her in May 2008 did not specifically meet the requirements set forth in Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Because the case must be remanded for other reasons and to ensure complete due process compliance, corrective action in this regard should be taken on remand by issuing another letter which complies with the dictates of Hupp. 38 U.S.C.A. § 5103(a). The same is true for her claim for entitlement to DIC under 38 U.S.C.A. § 1151, the December 2008 correspondence issued in response to her claim does not meet the requirements set forth in the VCAA. Therefore additional notice is required. In further regard to the Appellant's claim for compensation under the provisions of 38 U.S.C.A. § 1151, she asserts that the Veteran underwent an unauthorized paracentesis and during this procedure the clinicians nicked his bowel, which caused additional disability that led to his death. In April 2009, a medical opinion was obtained regarding claimed VA negligence related to the Veteran's VA treatment. Following a review of the claims file, the examiner determined that there was no evidence of improper care. However, the examiner did not specifically address the Appellant's contentions, and therefore rendered an incomplete opinion. Furthermore, no rationale was offered in support of the conclusion. The examiner did not provide any detail to demonstrate that actions by the VA met medical standards, nor was it clear as to why the Veteran's disorder resulted in paracentesis. As for the appellant's claim for DIC pursuant to 38 U.S.C.A. § 1318 , the Board observes that only if an appellant's claim for service connection for the cause of the Veteran's death is denied under 38 U.S.C.A. § 1310, does VA have to consider also an appellant's DIC claim under the provisions of 38 U.S.C. § 1318. Timberlake v. Gober, 14 Vet. App. 122 (2000). That is, § 1318 provides an alternate basis for an award of DIC and does not provide any additional benefit for the appellant. Section 1318 is only applicable if the Veteran's death is found to be nonservice-connected. 38 C.F.R. § 3.22(a). If following the Board's Remand, service connection for the cause of the Veteran's death is granted, then the appellant's claim for DIC pursuant to 38 U.S.C.A. § 1318 will be rendered moot. As such, the Board finds that it is an inextricably intertwined issue and must also be remanded. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Accordingly, the case is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should provide the Appellant with appropriate notices as to the claim of service connection for the cause of the Veteran's death and entitlement to DIC under 38 U.S.C. § 1151 as outlined in Hupp and the VCAA. 2. The RO should take appropriate action to obtain any consent form(s) signed by the Veteran pertaining to the lung cancer treatment, including performing paracentesis. If any such record is unavailable, the certifying official must so indicate. 3. The RO should arrange for all VA manual-mandated development necessary to properly adjudicate claims based on asbestos exposure, to include a determination regarding the extent of any exposure to asbestos both in service and subsequent to service, and whether or not he had an asbestos-related disease that contributed to cause his death. The RO should take appropriate action to develop evidence as to whether the Veteran was exposed to asbestos during service. Information should be obtained from official government entities including the appropriate service department and/or other appropriate depository. Following such, a formal finding should be issued as to whether the Veteran at least as likely as not was exposed to asbestos in service. Such finding should be added to the record and should include a rationale in support of the conclusion reached. 4. Thereafter, the Veteran's claim file should be reviewed by an appropriate VA medical specialist for an opinion as to whether there is at least a 50 percent probability or greater (at least as likely as not) that his lung cancer was related to military service including asbestos exposure. The opinion should be provided based upon a review of the medical evidence of record, including the medical opinion submitted in support of the claim, and sound medical principles. 5. The RO should also send the claims folder back to the physician who reviewed the record in April 2009 in order to add further comment as whether that Veteran had additional disability as a consequence of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA treatment providers; or an event not reasonably foreseeable. 38 U.S.C.A. § 1151. 6. After completion of additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Appellant and her attorney should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate 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). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs