Citation Nr: 1335274 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 11-30 787 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a respiratory disorder to include asbestos related disease, claimed as breathing issues, constant colds, runny nose, and watery eyes. 2. Entitlement to service connection for a stomach disability, to include as related to exposure to asbestos. 3. Entitlement to a rating in excess of 10 percent for tinea versicolor. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from June 1955 to April 1974. This case was previously before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The claims currently on appeal were remanded by the Board in September 2012. The Veteran testified before the undersigned Acting Veterans Law Judge in May 2012. At the hearing he submitted additional evidence with a waiver of initial RO jurisdiction. The Board has accepted this additional evidence for inclusion into the record on appeal, as well as additional evidence also accompanied by a waiver received in September 2013. See 38 C.F.R. § 20.800 (2013). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for a stomach disability and a respiratory disorder to include asbestos related disease are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT No active lesions or other evidence of tinea versicolor was demonstrated at the most recent VA examination and at no time during the appeal period have residuals of tinea versicolor been shown to involve 20 to 40 percent of total or exposed body surfaces or to require the use of systemic therapy such as corticosteroids or other immunosuppressive drugs. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for tinea versicolor are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Code (DCs) 7800-7806, 7813 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (here, the RO) Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A June 2009 letter provided prior to the initial rating determination that gave rise to this appeal provided pertinent notice to the Veteran in connection with the claim for an increased rating for his tinea versicolor. This letter indicated what information and evidence was needed to substantiate the claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. This letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, the duty to notify has been fulfilled with respect to the claim for an increased rating for tinea versicolor. As for the duty to assist, the RO obtained the Veteran's service treatment records (STRs) and VA treatment records. Reports from private examiners have also been obtained, and the Veteran has been provided examinations to assess the severity of his service connected tinea versicolor, most recently in August 2013. The Board finds that the VA examinations are adequate because they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and provide detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303(2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). The August 2013 VA examination also demonstrated findings in substantial compliance with the September 2012 remand directives with respect to the claim for an increased rating for tinea versicolor. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). As will be explained below, while the August 2013 VA examination was not conducted, as directed in the remand, during one of the asserted "flare-up" periods of tinea versicolor, the Board does not find that a remand to further delay the adjudication of the claim for an increased rating for tinea versicolor for another VA examination during such a flare-up is warranted. In sum, the Board finds that no additional RO action to further develop the record in connection with the claim for an increased rating for tinea versicolor prior to appellate consideration is required. Specifically as regards the Board hearing, it is pointed out that in Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the September 2012 hearing, the undersigned enumerated the issues then on appeal, to include the claim for an increased rating for tinea versicolor. The Veteran provided testimony regarding the nature and severity of this condition, and the undersigned informed the Veteran of the relevance any clinical records from regularly scheduled treatment during periods of flareups of his tinea versicolor would have upon the adjudication of his increased rating claim, even if he could not be examined during a flare-up. See May 30, 2012, hearing transcript, pages 7-9. Neither the Veteran nor his representative asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the September 2012 hearing. As such, the Board finds that, consistent with Bryant, there has been compliance with the duties set forth in 38 C.F.R. 3.103(c)(2), and the hearing is legally sufficient. In summary, the duties imposed by the VCAA have been considered and satisfied with respect to the claim for an increased rating for tinea versicolor. The Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered, in connection with the claim adjudicated herein. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the adjudication of the increased rating claim on appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter adjudicated herein. See Mayfield, supra, (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. See also 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board's analysis is to include an evaluation of the medical evidence since the Veteran filed his claim to determine the appropriateness of "staged ratings" (assignment of different ratings for distinct periods of time, based on the facts found). Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The analysis herein is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. At the outset, the Board notes that it has reviewed all of the evidence of record, to include in the Virtual VA file (Virtual VA claims processing system) with an emphasis on the evidence relevant to this appeal. (The Virtual File reveals an October 2013 brief submitted by the Veteran's representative, a paper copy of which has been associated with the claims file, as well as additional VA clinical records dated through April 2013 not physically of record but documented to have been reviewed in the September 2013 Supplemental Statement of the Case). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, with respect to the claim for an increased rating for tinea versicolor. The Veteran's service connected tinea versicolor has been rating under 38 C.F.R. § 4.118, DC 7813, which provides ratings for dermatophytosis (or ringworm) in various locations on the body, including the body (tinea corporis), the head (tinea capitis), the feet (tinea pedis), the beard (tinea barbae), the nails (tinea unguium), and the inguinal area, also known as jock itch (tinea cruris). DC 7813 provides that dermatophytosis is to be rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. 38 C.F.R. § 4.118. DC 7806 provides that a 10 percent rating is warranted for dermatitis or eczema that involves at least 5 percent but less than 20 percent of the entire body, or at least 5 percent but less than 20 percent of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted for dermatitis or eczema that involves 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted for dermatitis or eczema that involves more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806. Considering the pertinent evidence of record in light of the above, the Board finds that the criteria for a rating in excess of 10 percent for tinea versicolor are not met at any time pertinent to the Veteran's May 2009 claim for increase. Summarizing the relevant facts with the pertinent legal criteria in mind, the STRs reflect treatment for tinea versicolor, and service connection for such disability was granted by a November 1989 rating decision. A noncompensable rating was assigned by analogy to DC 7806. This rating was continued until a January 1991 rating decision increased the rating to 10 percent effective from July 1990 after an August 1990 VA examination described the condition as involving what were described as "large" patches on the back, chest, and arms. The 10 percent rating has been confirmed until the present time. The more recent pertinent clinical evidence includes reports from a June 2009 VA examination, at which time the Veteran stated that his service connected skin condition had improved over the years. He reported that he still suffered from mild irritation in the neck, stomach, and under arm area in the summer months (the Veteran also testified to the undersigned that the condition flares-up in the summer months). The Veteran was asymptomatic at the time of the June 2009 VA examination, and the examiner noted that the condition did not involve any exposed areas. The condition was said to involve greater than 5 percent but less than 20 percent of the total body area. The examiner observed discoloration/hyperpigmentation along the midline of the abdomen about 5 inches above the belt line that was approximately 3 X 3 inches in size. There were no open lesions or scars and no discoloration or lesions noted in the under arm or neck area. There were no papules, plaques, or scars throughout the body. At the most recent VA examination of the skin in August 2013, there was no evidence of any residuals of the tinea versicolor and the examiner noted that there was no evidence that the condition has existed in recent years. The examiner also noted that the examination was conducted in a summer month, when the Veteran's condition was said to be at its worst, but that there was no skin abnormality present. As such, and given the fact that the record does not otherwise reflect a clinical evaluation of the skin during a purported flare-up, despite the Veteran being advised by the undersigned of the benefit of such evidence, there is no indication that another VA skin examination during such a flare-up is indicated or otherwise feasible in this case. In short, the criteria for a 30 percent evaluation, the next highest available under DC 7806, is not warranted because the record does not show that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas were affected. See 38 C.F.R. § 4.118. There is also nothing in the record to suggest that the Veteran's tinea versicolor has necessitated the use of systemic therapy such as corticosteroids or other immunosuppressive drugs, the other basis for an increased rating under DC 7806, or that there are any of the findings required for a rating in excess of 10 percent under DCs 7800-7805. In assessing the severity of the skin disability under consideration, the Board has considered the Veteran's assertions regarding his symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings are the required clinical findings that are within the province of trained medical health professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions of the Veteran are not considered more persuasive than the objective clinical findings which, as indicated above, do not support assignment of a higher rating for tinea versicolor pursuant to any applicable criteria at any point pertinent to this appeal. Additionally, the Board finds that at no pertinent point has the skin disability under consideration been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (cited in the November 2011 statement of the case and September 2013 supplemental statement of the case). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disabilities at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the applicable schedular criteria are adequate to rate the disability under consideration at all points pertinent to this appeal. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. Significantly, there is no clinical indication or argument that the applicable criteria are otherwise inadequate to rate the service connected tinea versicolor. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the Board acknowledges the fact that if the claimant or the record reasonably raises a question of whether the Veteran is unemployable due to the disability for which a higher rating is sought, then part and parcel to that claim for a higher rating is the matter of whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). There is no specific evidence or allegation that the connected disability at issue herein renders the Veteran unable to secure or follow a substantially gainful occupation. As there is no suggestion of actual or effective unemployment due solely to the service connected tinea versicolor, consideration of a TDIU in connection with the increased rating claim on appeal is not warranted. For all the foregoing reasons, the Board concludes that there is no basis for a staged rating of the tinea versicolor pursuant to Hart, and that the claim for a higher rating for such disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the assignment of any higher rating for the Veteran's tinea versicolor, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. ORDER A rating in excess of 10 percent for tinea versicolor is denied. REMAND While the Board regrets the further delay in the adjudication of the claims for service connection for a respiratory disability to include asbestos related disease and a stomach disability, another remand is necessary with respect to these claims to ensure that due process is followed and that there is a complete record upon which to decide these claims so that the Veteran is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The post remand record reflects extensive development to determine, as requested in the September 2012 is remand, whether the Veteran was exposed to asbestos during service aboard the USS Howard W. Gilmore from September 1955 until 1958 with negative results. The Veteran was essentially notified of this fact in a May 2013 letter, although this letter incorrectly informed the Veteran that there had been "no" reply from the National Archives and Records Administration (NARA) when in fact a negative reply from NARA had been received. This letter requested that he submit any alternative evidence that might support his claim. Following this letter, the Veteran submitted a statement received in September 2013 in which he clearly asserted that his claim that he was exposed to asbestos during service was not limited to his duty aboard the USS Howard W. Gilmore from September 1955 until 1958 but included the entirety of his service. Prior statements from the Veteran also clearly did not limit the asserted exposure to asbestos to his duty aboard the USS Howard W. Gilmore from September 1955 until 1958. See eg., VA Form 21-4138 signed June 15, 2010; affidavits submitted in connection with unrelated litigation received in May 2011 (in which the Veteran also asserted post-service exposure to asbestos); and May 30, 2012, hearing transcript, page 14. In light of the above, and notwithstanding any prior focus on the Veteran's service as a Firemen Apprentice (FA) or Seaman (SN) being more likely to have included exposure to asbestosis than his service as a Ship Serviceman (SH), to ensure that the duty to assist is met (and to withstand judicial review), given the contentions of the Veteran as set forth above, the Board finds that the RO must arrange for an appropriate search to determine whether the Veteran was exposed to asbestos to service that includes the entirety of his service. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993) The Board also finds that another VA examination is necessary with respect to the claim for service connection for a respiratory disorder to include asbestos related disease because the August 2013 VA examination resulted in a nexus opinion based in part on an inaccurate factual premise; namely, that the record showed "no findings of any asbestos-related condition." In fact, the record is replete with evidence demonstrating such conditions, to include an impression following December 1987 VA pulmonary function testing of findings consistent with asbestos related disease; an interpretation from a March 1999 private x-ray of findings consistent with pulmonary asbestosis; and an April 2011 VA CT scan that resulted in findings interpreted to be suggestive of asbestosis. Thus, as medical opinions based on an inaccurate factual premise have no probative value, upon remand the RO/AMC will be requested to afford the Veteran another VA examination that documents consideration of the fact that the record has documented asbestos related disease. Reonal v. Brown, 5 Vet. App. 458 (1993). With respect to a stomach disability, as the record includes a history reported to a VA examiner in July 2007 by the Veteran relating the onset of stomach pain to exposure to asbestos (albeit post-service exposure), the adjudication of the claim for service connection for a stomach disability must be deferred pending the requested development with respect to determining whether the Veteran was exposed to asbestos during service. More importantly, with respect to the negative opinion following the August 2013 VA examination with regard there not being any "active or chronic stomach condition," it is unclear if this was opinion was limited to "active" stomach disability observed only at this examination, or any such disability demonstrated since the Veteran filed his claim in May 2009. See McClain v. Nicholson, 21 Vet. App. 319, 321 2007) )(the requirement that a current disability be present for service connection is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim.) The fact remains that at least until May 2013 (as shown by VA treatment records contained in the Virtual VA file), the Veteran was taking medication for his stomach complaints. As such, and based on review of additional clinical evidence documenting stomach complaints since the Veteran file his claim in May 2009, an opinion as to whether, at any time since the claim was filed, the Veteran has a stomach disability that is related to service is necessary to fulfill the duty to assist. Finally, in light of the necessary development as set forth above, the Veteran will also be given another opportunity to submit any relevant records pertaining to the claims being remanded, and the RO/AMC will be requested to ensure that any additional relevant VA treatment records are received. 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. Contact the Veteran and request that he provide sufficient information, and if necessary authorization, to enable the RO/AMC to obtain any additional pertinent private treatment records not currently of record following the current procedures set forth in 38 C.F.R. § 3.159. Associate all records/responses received with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe the further action to be taken. 2. Conduct the appropriate development to associate with the record any additional relevant VA clinical records pertaining to the claims that are being remanded that have not been obtained. 3. Take appropriate action to develop evidence of whether the Veteran was exposed to asbestos at any time during service. As the Veteran reported that his exposure occurred while he was assigned to ships undergoing repair in Naval Shipyards, confirmation of the presence of the ships in a shipyard during the Veteran's tours of duty is necessary. Following the completion of this development, the RO/AMC should, to the extent exposure to asbestos during service is not demonstrated, complete a formal memorandum documenting such a fact. 4. After all records and/or response(s) from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examinations addressing the claims that have been remanded by appropriate physicians, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to each physician designated to examine the Veteran, and each examination report should reflect consideration of the Veteran's documented medical history and assertions. Following a physical examination of the Veteran, and review of the claims file, the appropriate physician should provide opinions as follows: Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that a respiratory or stomach disability shown at any point since the Veteran filed his claims in May 2009 had its onset during service or is/was otherwise medically related to service, to include asbestos exposure therein. With respect to a respiratory disorder, the examiner should specifically consider the post-service clinical evidence showing asbestos related disease, to include the December 1987 VA pulmonary function testing results; March 1999 private x-ray; and April 2011 VA CT scan. The examiner should also comment as to whether any such current disability is the result of post-service exposure to asbestos, to include as asserted by the Veteran in the affidavits received in May 2011 and on a January 15, 1988, report from treatment at Howard University Hospital (in which the Veteran refers to post-service exposure to asbestos beginning in 1978, rather than in-service exposure.) With respect to a stomach disability, the examiner should consider whether any such disability shown since the Veteran filed his claim is related to the "upset stomach" shown on an August 1961 STR or gastritis referenced at the March 1974 separation examination. If the Veteran fails to report to any scheduled VA examination(s), obtain and associate with the claims file a copy of any notice of the date and time of any such examination sent to him by the pertinent VA medical facility. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, supra. 6. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims for service connection for a respiratory disorder to include asbestos related disease and a stomach disability in light of all pertinent medical evidence (to include any added to the record since the last adjudication of the claims) and legal authority, to include those pertaining to the adjudication of claims for service connection based on exposure to asbestos codified at M21-1. 7. To the extent any benefit sought in connection with the claims that have been remanded remains denied, provide the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims that have been remanded 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). ______________________________________________ J.W. FRANCIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs