Citation Nr: 1338544 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-32 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for renal cell carcinoma, claimed as kidney cancer. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from December 1961 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file reveals additional VA treatment records dated through October 2012, which were considered by the agency of original jurisdiction (AOJ) in the February 2013 supplemental statement of the case. In September 2012 the Board reopened the Veteran's claim of entitlement to service connection for renal cell carcinoma and remanded the case for further development. The case now returns for further appellate review; however, for the reasons discussed below, the Board again finds that due process requires that the case be REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Veteran contends that he was exposed to asbestos, cigarette smoke, and other chemicals during service and that as a result of this exposure he developed an asbestos-related cancer; specifically, renal cell carcinoma. The Veteran states, and his personnel records confirm, that he was stationed aboard the aircraft carrier USS Essex for several years. He asserts that he was exposed to asbestos and other chemicals, including lead paint and diesel fumes, as a result of his in-service assignments chipping paint, painting, and general maintenance while the Essex was at Brooklyn Navy Shipyard for overhaul and updating. He further asserts exposure to heavy secondhand smoke onboard the ship and later on land when he worked for two years in a file room with poor ventilation. The Veteran also reports that he was treated during service for stomach and urinary issues, to include spitting up blood. Therefore, he alleges that such in-service exposures and symptoms resulted in his renal cell carcinoma. In September 2012, the Board remanded the issue on appeal for further development, to include obtaining all available information regarding the Veteran's military duties and the likelihood of asbestos exposure, obtaining outstanding treatment records, and affording the Veteran with a VA examination so as to determine the nature and etiology of his renal cell carcinoma. It appears that the AOJ has substantially complied with the first two remand directives such that no further action is necessary in that regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). With respect to the third remand directive, the Board ordered that the Veteran be afforded a VA examination and an opinion as to whether it is at least as likely as not (50 percent probability or greater) that his renal cell carcinoma is related to the Veteran's military service, to include as a result of exposure to asbestos, cigarette smoke, lead paint, and diesel fuel fumes, or his treatment for spitting up blood in June 1965 be rendered. The Board further directed that, in offering his or her opinion, the examiner should discuss the article from the National Cancer Institute the Veteran submitted, and acknowledge and discuss the Veteran's statements as to incurrence, to include his time spent in shipyards, on the USS Essex, and in poorly ventilated rooms with smokers, and continuity of symptomatology. With regard to the Veteran's alleged exposure to asbestos in shipyards, the Board noted that the VA Adjudication Procedure Manual (M21-1MR) states that work in shipyards is one of the major occupations involving exposure to asbestos. See M21-1MR, Part IV, subpart ii, Chapter 2, Section C, Topic 9. The Board noted that the Veteran's lay evidence shows that he performed maintenance on the USS Essex while it was in a shipyard twice; each time for a period of six-months. Thereafter, the Veteran was afforded a VA examination in October 2012. At such time, the VA examiner determined that the Veteran's renal cell carcinoma was less likely than not incurred in or caused by his claimed in-service injury, event, or illness. He stated that the Veteran gave a history of exposure to lead pain, second hand cigarette smoke, diesel fumes, and asbestos while serving on the USS Essex, but his service treatment records do not show any confirmation of exposure or treatment. He also stated that the Veteran developed hematuria 23 years after his military service and that, for almost 15 years following his release from service, he had a potential occupational exposure to asbestos. He concluded that the Veteran's renal cell carcinoma was less likely than not caused or permanently aggravated by his military service. In May 2013 the Veteran's representative asserted that the October 2012 VA examiner's opinion failed to discuss the Veteran's assertion that he was exposed to asbestos in the shipyards, rather than on a ship. Therefore, the Board finds that the Veteran's claims file should be returned to the October 2012 VA examiner for an addendum opinion regarding the etiology of the Veteran's renal cell carcinoma. Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims file should be returned to the October 2012 VA examiner. If the October 2012 VA is unavailable, forward the claims file to an appropriate medical professional to offer the addendum opinion. An examination of the Veteran is not required unless deemed necessary by the medical professional selected to offer the opinion. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner is requested to provide an opinion, based on a review of the claims folder and utilizing sound medical principles, as to whether it is at least as likely as not (50 percent probability or greater) that the renal cell carcinoma is related to the Veteran's military service, to include asbestos exposure based his time spent in shipyards. The rationale for all opinions expressed should be provided. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran 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 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). _________________________________________________ A. JAEGER 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).