Citation Nr: 1340669 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 06-34 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for obesity, to include as secondary to exposure to asbestos, chemical waste, and other chemical fumes. 2. Whether new and material evidence has been received to reopen a claim of service connection for asbestos exposure. 3. Whether new and material evidence has been received to reopen a claim of service connection for a damaged nervous system, to include as secondary to exposure to asbestos, chemical waste, and other chemical fumes. 4. Whether new and material evidence has been received to reopen a claim of service connection for chronic fatigue, to include as secondary to exposure to asbestos, chemical waste, and other chemical fumes, as well as obesity. 5. Whether new and material evidence has been received to reopen a claim of service connection for a neck tumor (Castleman's disease), to include as secondary to exposure to asbestos, chemical waste, and other chemical fumes. 6. Whether new and material evidence has been received to reopen a claim of service connection for a thyroid gland disorder, to include as secondary to exposure to asbestos, chemical waste, and other chemical fumes, as well as obesity. 7. Whether new and material evidence has been received to reopen a claim for service connection for diabetes mellitus, to include as secondary to exposure to asbestos, chemical waste, and other chemical fumes, as well as obesity. 8. Whether new and material evidence has been received to reopen a claim for service connection for a psychiatric disorder, to include as secondary to exposure to asbestos, chemical waste, and other chemical fumes, as well as obesity. ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran had active service from August 1974 to June 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2004 and November 2009 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in San Diego, California. This matter (with the exception of the claim of service connection for a psychiatric disorder) was previously before the Board in August 2009 at which time it was remanded for the scheduling of a Board hearing. It is now returned to the Board. With regard to the issue of service connection for a psychiatric disorder, the Board notes that in August 2002, the RO, in pertinent part, denied service connection for a nervous condition. The Veteran did not appeal that decision. In October 2009, he filed a new claim for service connection. It was denied (on a de novo basis) in November 2009. A notice of disagreement was received in November 2009; a Statement of the Case was issued in July 2010; and a substantive appeal was received in July 2010. In order for VA to review the merits of the claim, the Veteran must submit new and material evidence. The Board is required to address this issue despite any findings of the RO. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). As such, the issue is as captioned above. The RO also issued a December 2010 rating decision in which it denied service connection for a stroke. The Veteran filed a timely notice of disagreement; but he failed to file a substantive appeal in response to an October 2011 Statement of the Case. Consequently, the issue is not before the Board. The issue of entitlement to an increased disability rating for the service-connected status post excision of osteochondral, status post left talus fracture, has been raised by the record. Specifically, the Veteran submitted February 2011 correspondence requesting re-evaluation of his service connected ankle disability. The issue has not been not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for obesity, a damaged nervous system, chronic fatigue, a neck tumor (Castleman's disease), a thyroid gland condition, diabetes mellitus, and a psychiatric disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In August 2002, the RO denied the Veteran's claim of service connection for asbestos exposure. The Veteran failed to file a timely notice of disagreement; and no new and material evidence was received within a year of the rating decision's issuance. 2. Evidence received since the August 2002 decision is cumulative and redundant of the evidence of record at the time of the August 2002 denial, and does not raise a reasonable possibility of substantiating the claim. 3. In August 2002, the RO denied the Veteran's claim for service connection for a damaged nervous system. The Veteran failed to file a timely notice of disagreement; and no new and material evidence was received within a year of the rating decision's issuance. 4. Evidence received since the August 2002 decision is neither cumulative nor redundant of the evidence of record at the time of the August 2002 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of service connection. 5. In August 2002, the RO denied the Veteran's claim for service connection for chronic fatigue. The Veteran failed to file a timely notice of disagreement; and no new and material evidence was received within a year of the rating decision's issuance. 6. Evidence received since the August 2002 decision is neither cumulative nor redundant of the evidence of record at the time of the August 2002 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of service connection. 7. In August 2002, the RO denied the Veteran's claim for service connection for a neck tumor (Castleman's disease). The Veteran failed to file a timely notice of disagreement; and no new and material evidence was received within a year of the rating decision's issuance. 8. Evidence received since the August 2002 decision is neither cumulative nor redundant of the evidence of record at the time of the August 2002 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of service connection. 9. In August 2002, the RO denied the Veteran's claim for service connection for a thyroid gland condition. The Veteran failed to file a timely notice of disagreement; and no new and material evidence was received within a year of the rating decision's issuance. 10. Evidence received since the August 2002 decision is neither cumulative nor redundant of the evidence of record at the time of the August 2002 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of service connection. 11. In August 2002, the RO denied the Veteran's claim for service connection for diabetes mellitus. The Veteran failed to file a timely notice of disagreement; and no new and material evidence was received within a year of the rating decision's issuance. 12. Evidence received since the August 2002 decision is neither cumulative nor redundant of the evidence of record at the time of the August 2002 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of service connection. 13. In August 2002, the RO denied the Veteran's claim for service connection for a nervous condition (psychiatric disorder). The Veteran failed to file a timely notice of disagreement; and no new and material evidence was received within a year of the rating decision's issuance. 14. Evidence received since the August 2002 decision is neither cumulative nor redundant of the evidence of record at the time of the August 2002 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of service connection. CONCLUSION OF LAW 1. The unappealed August 2002 RO rating decision, which denied the Veteran's service connection claim for asbestos exposure is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013). 2. Evidence received since the August 2002 RO rating decision is not new and material; accordingly, the claim of service connection for asbestos exposure is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2013). 3. The unappealed August 2002 RO rating decision, which denied the Veteran's service connection claim for a damaged nervous system is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013). 4. Evidence received since the August 2002 RO rating decision is new and material; accordingly, the claim of service connection for a damaged nervous system is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2013). 5. The unappealed August 2002 RO rating decision, which denied the Veteran's service connection claim for chronic fatigue is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013). 6. Evidence received since the August 2002 RO rating decision is new and material; accordingly, the claim of service connection for chronic fatigue is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2013). 7. The unappealed August 2002 RO rating decision, which denied the Veteran's service connection claim for a neck tumor (Castleman's disease) is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013). 8. Evidence received since the August 2002 RO rating decision is new and material; accordingly, the claim of service connection for a neck tumor (Castleman's disease) is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2013). 9. The unappealed August 2002 RO rating decision, which denied the Veteran's service connection claim for a thyroid gland condition is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013). 10. Evidence received since the August 2002 RO rating decision is new and material; accordingly, the claim of service connection for a thyroid gland condition is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2013). 11. The unappealed August 2002 RO rating decision, which denied the Veteran's service connection claim for diabetes mellitus is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013). 12. Evidence received since the August 2002 RO rating decision is new and material; accordingly, the claim of service connection for diabetes mellitus is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2013). 13. The unappealed August 2002 RO rating decision, which denied the Veteran's service connection claim for a nervous condition (psychiatric disability) is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013). 14. Evidence received since the August 2002 RO rating decision is new and material; accordingly, the claim of service connection for a nervous condition (psychiatric disability) is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. In this decision, the Board reopens the Veteran's claims of service connection for a damaged nervous system, chronic fatigue, a neck tumor (Castleman's disease), a thyroid gland condition, diabetes mellitus, and a psychiatric disability, and remands them for further development. Because the claims have been reopened, further notice or assistance is unnecessary to assist the Veteran in substantiating the claims. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Given the results favorable to the Veteran, further development under the VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry. With regard to the issue of service connection for asbestos exposure, as will be discussed below, the RO adjudicated the issue separately as the Veteran simply noted that he was exposed to asbestos in discussing the issues of a damaged nervous system, chronic fatigue, a neck tumor (Castleman's disease), a thyroid gland condition, and diabetes mellitus sure. As this issue does not entail a current disability, but simply alleges exposure, and as there can be no valid claim for service connection, the Board finds that further discussion of the VCAA regarding this issue is not required. New and Material Evidence Following notification of an initial review and adverse determination by the RO, a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. Following receipt of a notice of a timely disagreement, the RO is to issue a Statement of the Case. 38 C.F.R. § 19.26. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). Otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. When a claim to reopen is presented, a two-step analysis is performed. The first step of which is a determination of whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156 (which define "new and material evidence") provides as follows: New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2013) Second, if VA determines that the evidence is new and material, the VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000); Elkins, supra. The second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). In Evans v. Brown, 9 Vet. App. 273 (1996), the United States Court of Appeals for Veterans Claims (Court) held that to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally denied on any basis. Additionally, evidence considered to be new and material sufficient to reopen a claim should be evidence that tends to prove the merits of the claim that was the specified basis for the last final disallowance of the claim. In Justus v. Principi, 3 Vet. App. 510 (1992), the Court held that for new and material evidence purposes only, new evidence is presumed to be credible. The only exception would be where evidence presented is either (1) beyond the competence of the individual making the assertion or (2) inherently incredible. If new and material evidence has been received with respect to a claim that has become final, then the claim is reopened and decided on a de novo basis. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. The Veteran's claims for service connection for a damaged nervous system, chronic fatigue, a neck tumor (Castleman's disease), a thyroid gland condition, diabetes mellitus, a nervous condition (psychiatric disability) were denied by way of a August 2002 RO decision. The Veteran failed to file a timely notice of disagreement, and no evidence was received within the appeal period after the decision. As such, the decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.156(b) (2011) (new and material evidence received within the appeal period after a decision is considered as having been received in conjunction with the prior claim); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). The evidence on record at the time of the August 2002 denials included the service treatment records, service personnel records, and post service VA treatment records. They failed to reflect any findings attributed to the claimed disabilities during service or within one year of service. There were also no records reflecting exposure to asbestos during service. The basis for the denials was the fact that there were no findings during service or within one year of service, and there was no record of exposure to asbestos. The Board first notes that in its August 2002 rating decision, the RO failed to comply with the information and instructions in Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). Consequently, the RO failed to adequately determine whether the Veteran was exposed to asbestos. With regards to new and material evidence, the Board notes that evidence received since the August 2002 rating decision includes testimony provided at a February 2008 RO hearing. At the hearing, the Veteran testified that he experienced burning in his neck during service, as well as anxiety during service. The Veteran is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service). Consequently, the Board finds that this testimony relates to an unestablished fact necessary to substantiate the claims for service connection for a neck tumor, a nervous system disability, and a nervous condition (psychiatric disability), and it raises a reasonable possibility of substantiating the claims. The Veteran also testified that he believes that his disabilities (including chronic fatigue, a thyroid gland disability, and diabetes mellitus) began during service, but were not diagnosed. He believes that the obesity he experienced during service was an early symptom. Consequently, the Veteran has testified that his chronic fatigue, a thyroid gland disability, and diabetes mellitus had their origins in service, though they were not diagnosed for several years after service. The Board notes that separate theories in support of a claim for a particular benefit are not equivalent to separate claims and a final denial on one theory is a final denial on all theories. As such, new and material evidence is necessary to reopen a claim for the same benefit asserted under a different theory. Velez v. Shinseki, 23 Vet. App. 199, 206 (2009). However, in this case the Veteran's weight gain in service is clearly documented, but has never been adequately explained. The Board notes that the Court has interpreted the language of 38 C.F.R. § 3. 156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as enabling rather than precluding the reopening of a claim. The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence as to each previously unproven element of a claim. It was indicated that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would force the Veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). In determining whether the submitted evidence is new and material, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade, 24 Vet. App. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Analysis of Service Connection for Asbestos Exposure As indicated above, although the RO adjudicated the issue of entitlement to service connection for asbestos exposure, the Veteran simply noted that he was exposed to asbestos, and he related a damaged nervous system, chronic fatigue, a neck tumor (Castleman's disease), a thyroid gland condition, and diabetes mellitus to such exposure. The issue by its very nature is a theory of causation for various disabilities, and is not an independent claim. The issue of entitlement to service connection for a damaged nervous system, chronic fatigue, a neck tumor (Castleman's disease), a thyroid gland condition, diabetes mellitus, and a psychiatric disability are addressed below, and the matter of whether additional development is necessary to determine asbestos exposure is addressed in the context of the duty to assist, also below. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110. Hence, where the issue does not entail a current disability, but simply alleges exposure, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As established by the Court, the definition comports with the everyday understanding of disability, which is defined as an "inability to pursue an occupation because of physical or mental impairment." Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). Where the law is dispositive, the claim must be denied due to a lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002). Consequently, the Board finds that the new evidence submitted by the Veteran does not raise a reasonable possibility of substantiating the claim; and therefore the evidence is not new and material. The Veteran's application to reopen the claim is denied. ORDER New and material evidence having been received, the claims of service connection for a damaged nervous system, chronic fatigue, a neck tumor (Castleman's disease), a thyroid gland condition, diabetes mellitus, and a psychiatric disorder are reopened. To this extent, the appeal is granted. New and material evidence having not been received, the application to reopen a claim of service connection for asbestos exposure is denied. REMAND The Veteran maintains that his disabilities may be secondary to exposure to asbestos and other chemicals while stationed aboard the U.S.S. Blue Ridge LCC 19. In a March 2001 correspondence, he stated that the ship was in dry dock in Long Beach California in the early 1970s. He further stated that he lived and slept on the ship while it was being renovated. It was during this time that he alleges that he was exposed to asbestos fibres and various other chemical fumes. He believes that this exposure to asbestos and other chemicals may have caused his chronic fatigue, damaged nervous system, thyroid gland condition, and tumor on his neck. There is no statute specifically dealing with service connection for asbestos-related diseases, nor has the Secretary of VA promulgated any specific regulations. In 1988, however, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000 (April 13, 2000). VA must analyze the Veteran's claim for service connection for asbestos-related disease under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). With asbestos-related claims, the Board must determine whether the claim development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997) (while holding that the Veteran's claim had been properly developed and adjudicated, the Court indicated the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the Circular's claim-development procedures). To this end, the RO must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disabilities, keeping in mind exposure information and that the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), (d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. See M21-1, Part VI, 7.21. In light of the medical evidence and the Veteran's contentions, the Board finds that further development is necessary in an attempt to corroborate the claimed exposure to asbestos and other chemicals in service. Additionally, the Board finds that a VA compensation examination is warranted to determine the current nature and etiology of any current disability. Psychiatric Disorder The RO denial of the claim rested, in part, on a January 2012 VA examination in which the examiner found that the Veteran's anxiety disorder, not otherwise specified, is not caused by or the result of an eating disorder. The Board finds the opinion to be inadequate. Most notably, the Board notes that the Veteran's contention is that his psychiatric disorder is the result of harassment over his obesity, not simply because he has an eating disorder. To the contrary, the Veteran has stated that he does not believe he has an eating disorder. Additionally, the Board notes that the examiner failed to consider potentially significant evidence. Specifically, the examiner failed to note a Performance Evaluation Report from June 1984 in which the evaluator stated that the Veteran is "ALWAYS NERVOUS." Consequently, the Board finds that a new VA examination is warranted to determine the etiology of any psychiatric disability. Obesity The Veteran's weight at the time of his August 1974 entrance examination was 198 pounds. An April 1984 Narrative Summary reflects that the Veteran began having problems with obesity in August 1978. The Narrative Summary concluded with a diagnosis of an atypical eating disorder. A December 1983 treatment report reflects a weight of 282 pounds. The RO has denied the claim by stating that obesity is not a disability subject to service connection. However, his weight gain has not been satisfactorily explained. Consequently, the Board believes the issue is whether the Veteran is entitled to service connection for a disability, manifested by weight gain and obesity. The Board finds that a VA examination is warranted to determine the etiology of the Veteran's weight gain and obesity, and to determine if these symptoms are manifestations of a disability that began during service. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall send the Veteran a VCAA notice letter addressing disabilities claimed as secondary to asbestos exposure. 2. The RO/AMC shall contact the service department and/or any other available source to determine if the Veteran worked in areas and performed duties where he would have been exposed to asbestos or any other chemicals aboard the U.S.S. Blue Ridge LCC 19 while it was in dry dock in Long Beach California in the early 1970s. 3. Thereafter, the RO/AMC shall schedule the Veteran for appropriate VA examinations to determine the nature and etiology of the Veteran's obesity, damaged nervous system, chronic fatigue, neck tumor (Castleman's disease), thyroid gland condition, diabetes mellitus, and psychiatric disorder. All necessary diagnostic testing and evaluation needed to make these determinations should be performed. Prior to the examination, the claims file must be made available for review of the case. A notation to the effect that this record review took place should be included in the report. The examiner is asked: (a) to provide an opinion as to whether it is more likely than not that each of these disabilities is attributable to exposure to asbestos or other chemicals during the Veteran's active service, or any other incident or event during service. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. Any opinion should be reconciled with the Veteran's report of asbestos exposure in service. The examiner should provide a complete rationale for any opinion or conclusion; any opinion should be supported by reference to specific medical records on file. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with a supporting rationale; (b) to provide an opinion as to whether the Veteran suffers from a disability manifested by weight gain and/or obesity. If so, the examiner is asked to opine whether it is at least as likely as not that the disability began during or is causally related to service. (c) to opine whether it is at least as likely as not that the Veteran's in-service obesity represents an early symptom of chronic fatigue, a thyroid gland condition, and/or diabetes mellitus, each of which would not be diagnosed until after service. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for the respective disabilities in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The examiner should provide a complete rationale for any opinion or conclusion; any opinion should be supported by reference to specific medical records on file. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with a supporting rationale. 4. The RO/AMC shall afford the Veteran a VA psychiatric examination for the purpose of determining the nature and etiology any psychiatric disability with which the Veteran may be afflicted, to include anxiety, depression, and an aggression disorder. The claims file must be made available to the examiner for review in connection with the examination. Following a review of the relevant medical evidence in the claims file, to include the service treatment records and post-service treatment records; the medical history obtained from the Veteran; the clinical evaluation; and any tests that are deemed necessary, the examiner is requested to opine as to whether it is at least as likely as not that any such psychiatric disorder began during or is causally related to service, to include alleged harassment during service. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The examiner must also consider the in-service evidence that the Veteran was "ALWAYS NERVOUS." (See June 1984 Performance Evaluation Report). The absence of evidence of treatment for a psychiatric disorder in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The examiner should provide a complete rationale for any opinion or conclusion; any opinion should be supported by reference to specific medical records on file. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with a supporting rationale. 5. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 6. The RO/AMC will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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. 2013). ______________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs