Citation Nr: 1304734 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 04-22 318 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a baker's cyst, claimed as a knee disability, for accrued benefits purposes. 2. Whether new and material evidence has been received to reopen a claim for service connection for hypertension and heart related problems, for accrued benefits purposes. 3. Whether new and material evidence has been received to reopen a claim for service connection for a lung disability, claimed as due to asbestos exposure, for accrued benefits purposes. 4. Entitlement to service connection for a lung disability, claimed as due to asbestos exposure, for accrued benefits purposes. 5. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Sandra E. Booth, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty from February 1943 to April 1946. He died in January 2003. The appellant is seeking surviving spouse benefits. The matters on appeal before the Board of Veterans' Appeals (Board) arise from a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied service connection for the cause of the Veteran's death. In the January 2003 notice letter attached to the rating decision, the RO administratively denied accrued benefits. In May 2006, the appellant testified during a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. In July 2006, the Board remanded the claim for service connection for the cause of the Veteran's death for additional development. In a March 2007 decision, the Board denied the claim for service connection for the cause of the Veteran's death. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims. In an August 2009 Memorandum Decision, the Court vacated the Board's decision and remanded the claim for service connection for the cause of the Veteran's death and the claims for accrued benefits to the Board for further development and readjudication consistent with the Court's decision. The Court determined that while the RO notified the appellant that her accrued benefits claim was denied in July 2003 and the appellant filed a timely notice of disagreement, the RO did not issue a statement of the case hence a remand for procedural compliance was the proper remedy. In June 2010, the Board remanded these matters for compliance with the Court's instructions. In February 2012, the RO issued a statement of the case as to the accrued benefits issues. In March 2012, the appellant submitted a timely substantive appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for the cause of the Veteran's death is REMANDED to the RO. FINDINGS OF FACT 1. The appellant, through her attorney, has withdrawn her appeal of the issue of entitlement to service connection for a baker's cyst, claimed as a knee disability, for accrued benefits purposes. 2. An April 2001 rating decision denied service connection for bronchitis and declined to reopen a claim for service connection for any cardiovascular disease process on the basis that new and material evidence had not been submitted. The Veteran did not file a notice of disagreement with that decision after receiving notice later that same month. 3. In June 2001, the Veteran sought to reopen the previously denied claims. 4. A March 2002 rating decision declined to reopen the claim for service connection for a lung condition as due to asbestos exposure and the claim for service connection for hypertension and heart related problems. Notice of that decision was provided to the Veteran later that same month. 5. The Veteran died in January 2003. The appellant filed an Application for Dependency and Indemnity Compensation (DIC) and Accrued Benefits by a Surviving Spouse in February 2003, within one year of the Veteran's death. 6. Based on the evidence of record at the time of the Veteran's death, evidence submitted subsequent to the April 2001 rating decision did not bear directly and substantially upon the claim of entitlement to service connection for hypertension and heart related problems, for accrued benefits purposes. The evidence is cumulative or redundant, and in connection with evidence previously assembled, is not so significant that it must be considered in order to fairly decide the merits of the claim. 7. Based on the evidence of record at the time of the Veteran's death, evidence submitted subsequent to the April 2001 rating decision bears directly and substantially upon the claim of entitlement to service connection for a lung disability, claimed as due to asbestos exposure, and is so significant that it must be considered in order to fairly decide the merits of the claim. The claim is reopened. 8. Based on the evidence of record at the time of the Veteran's death, a lung disability was not incurred in or aggravated by service and is not shown to be due to any disease or injury incurred in or aggravated by service or due to inservice asbestos exposure. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal of the issue of entitlement to service connection for a baker's cyst, claimed as a knee disability, for accrued benefits purposes, have been met. 38 U.S.C.A. § 7105(b)(2) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for hypertension and heart related problems, for the purpose of accrued benefits. 38 U.S.C.A. §§ 5108, 5121 (West 2002); 38 C.F.R. § 3.156 (2001); 38 C.F.R. § 3.1000 (2012). 3. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a lung disability, claimed as due to asbestos exposure, for the purpose of accrued benefits. The claim is reopened. 38 U.S.C.A. §§ 5108, 5121 (West 2002); 38 C.F.R. § 3.156 (2001); 38 C.F.R. § 3.1000 (2012). 4. The criteria for entitlement to service connection for a lung disability for accrued benefits are not met. 38 U.S.C.A. §§ 1110, 1153, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to notify and assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the appellant was notified in a September 2010 letter and received notice required for DIC cases. Hupp v. Nicholson, 21 Vet. App. 342 (2007). The appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the appellant and her attorney suggest actual knowledge of the elements necessary to substantiate the claims. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent June 2012 supplemental statements of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. Furthermore, accrued benefits claims are based on the evidence of record at the time of the Veteran's death and evidence acquired after that date cannot be considered unless it was constructively of record at the time of death. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the appellant is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Withdrawal A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2012). Withdrawal may be made by the appellant or by her authorized representative. 38 C.F.R. § 20.204(c) (2012). In March 2012, the appellant submitted her substantive appeal as to the issue of whether new and material evidence has been received to reopen a claim for service connection for a baker's cyst, claimed as a knee disability, for accrued benefits purposes. Thereafter, in a July 2012 written letter, the appellant's attorney stated that the appellant did not wish to pursue that issue. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). As the appellant, through her attorney, has withdrawn her appeal as to the issue of whether new and material evidence has been received to reopen a claim for service connection for a baker's cyst, claimed as a knee disability, for accrued benefits purposes, there remains no allegations of errors of fact or law for appellate consideration concerning this issue. The Board therefore has no jurisdiction to review the issue and the issue of whether new and material evidence has been received to reopen a claim for service connection for a baker's cyst, claimed as a knee disability, for accrued benefits purposes is dismissed. Accrued Benefits Claims A March 2002 rating decision denied service connection for bronchitis as a result of asbestos exposure and declined to reopen a claim for service connection for hypertension and related heart problems. The Veteran died in January 2003. The following month, in February 2003, the appellant submitted a claim for accrued benefits. Where a claim has been denied within one year prior to the death of a Veteran, the claim has not been finally adjudicated until the expiration of that one year from the date of the decision because the one-year period for filing a notice of disagreement had not expired at the time of the Veteran's death. Because a surviving spouse takes a deceased spouse's claim as it stands on the date of death, where an accrued-benefits claim is filed within the period for a notice of disagreement to a denial, then there is a pending claim because the claim was not yet a finally adjudicated claim. Although the Veteran died in January 2003, he had until March 2003 to file a notice of disagreement with the March 2003 rating decision. In this case, the Appellant submitted a VA Form 21-534, Application for Dependency and Indemnity Compensation (DIC), Death Pension, and Accrued Benefits by a Surviving Spouse or Child, in February 2003, within one year of the March 2002 rating decision. While a Veteran's claim for service connection terminates at the time of his death, a qualified survivor may continue, to a limited extent, the deceased Veteran's claim by submitting a timely claim for accrued benefits. 38 U.S.C.A. § 5121 (West 2002); Landicho v. Brown, 7 Vet. App. 42 (1994). Moreover, while an accrued benefits claim is separate from a claim for service connection claim filed prior to the Veteran's death, that accrued benefits claim is nevertheless derivative of the Veteran's initial claim. Thus, an appellant takes the Veteran's claim as it stood on the date of death, but within the limits established by law. Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). Periodic monetary benefits authorized under laws administered by the VA to which a Veteran was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at the date of death, and due to the Veteran but unpaid will, upon the death of the Veteran, be paid to his spouse, children, or dependent parent. 38 U.S.C.A. § 5121(a) (West 2002 & 2012); 38 C.F.R. § 3.1000 (2012). In order for a claimant to be entitled to accrued benefits, the Veteran must have had a claim pending at the time of his death for benefits or else be entitled to benefits under an existing rating or decision. 38 U.S.C.A. §§ 5101(a), 5121(a) (West 2002 & 2011); Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). Here, the Veteran died while he had claims pending of whether new and material evidence has been received to reopen a claim for service connection for hypertension and heart related problems and whether new and material evidence had been received to reopen a claim for service connection for a lung condition as due to asbestos exposure. One month after his death, in February 2003, the appellant submitted claims for those disabilities for accrued benefits purposes. Therefore, her claims were timely filed. Because the appellant's claims are for the purpose of accrued benefits, the Board is barred from considering evidence received after the date of the Veteran's death other than service or VA records that were constructively of record at the time of death. 38 U.S.C.A. § 5121(a) (West 2002 & 2012); 38 C.F.R. § 3.1000(d)(4); Hayes v. Brown, 4 Vet. App. 353 (1993). New and Material Evidence A June 1962 rating decision denied service connection for a heart condition on the basis of negative service treatment records and first shown treatment for heart disability in 1961. The Veteran's separation examination showed that his cardiovascular system and heart were evaluated as normal. The Veteran indicated in his May 1962 claim for benefits that the date of onset of his coronary condition was August 1961. Of record at that time was an April 1962 VA hospital record noting that this was the second admission for the Veteran and that he gave a history of having sharp chest pain for a period of about one year. He had previously been admitted in September 1961. The discharge diagnosis was chest pain questionable secondary to arteriosclerotic heart disease questionably secondary to anxiety. An October 1995 rating decision declined to reopen a claim for service connection for hypertension (previously denied as a heart disorder) noting that current medical records showed that the Veteran had been hospitalized for hypertension with coronary artery disease. However, the continued evidence of the presence of his heart disease would not serve as a basis on which to successfully reopen the issue. In December 2000, the Veteran submitted a request to reopen his claim for service connection for a heart disability and he submitted an original claim for service connection for chronic bronchitis, that the Veteran asserted he had since 1946. An April 2001 rating decision declined to reopen the claim for service connection for any cardiovascular disease process. The RO concluded that while new VA treatment records had been associated with the claims file, they were not material in that they do not establish the existence of a cardiovascular disease process during the Veteran's active duty period of service. Service connection for bronchitis was denied on the basis that condition was neither occurred in nor was caused by service. The RO found that the Veteran's separation examination showed that his respiratory system was normal and a chest x-ray was negative. In June 2001, the Veteran submitted a claim that the RO accepted as a petition to reopen a claim for service connection for chronic bronchitis due to asbestos exposure, claimed as a lung disability, and as a petition to reopen a claim for service connection for hypertension and related heart problems. In his claim, the Veteran stated that in the United States Navy he worked as a machinist mate inside the ships and was exposed to asbestos, chemicals, and paint. He asserted he was treated for respiratory problems in service. For claims to reopen received prior to August 29, 2001, such as in this case, new and material evidence is defined as evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New evidence received after the April 2001 rating decision, but prior to the Veteran's in January 2003 include private medical records showing that he received treatment for variously diagnosed heart disabilities. None of the new evidence addressed whether any of the Veteran's diagnosed heart conditions or hypertension were related to service or showed evidence of continuity of symptomatology since his discharge from service. Accordingly, the Board finds that the evidence received subsequent to the April 2001 rating decision and prior to the Veteran's death is not new and material and does not serve to reopen the claim for service connection for hypertension and related heart problems, for accrued benefits purposes. Therefore, that claim is not reopened and the benefits sought with regard to that appeal remain denied. With regard to the petition to reopen the claim for service connection for a lung condition due to asbestos exposure, for accrued benefit purposes, the Board is of the opinion that additional evidence associated with the claims file is both new and material and sufficient to reopen the claim. In December 2001, the Navy medical liaison office at the NPRC addressed the issue of the Veteran's exposure to asbestos. In a written response, they determined that they had no way to determine the extent that the Veteran was exposed to asbestos during service. They stated that they know that General Specifications for Ships during the Veteran's service period required heated surfaces to be covered with an insulating material and it was highly probable that asbestos products were used to achieve this end. Items that required insulation included piping, flanges, valves, fittings, machinery, boilers, evaporators, and heaters. The Veteran's occupation was as a Machinist's Mate and the probability of exposure to asbestos was probable. However, a positive statement that the Veteran was or was not exposed could not be made. That evidence is not cumulative or redundant. In connection with evidence previously assembled, specifically the Veteran's medical diagnoses of various lung diseases to include interstitial fibrosis, it is so significant that it must be considered in order to fairly decide the merits of the claim for service connection. Accordingly, the claim of entitlement to service connection for a lung disability as due to asbestos exposure, for accrued benefits purposes, is reopened because new and material evidence has been received. To that extent only, the claim is allowed. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2011). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2011). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. See 38 C.F.R. § 3.303(b) (2011). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). The evidence here does not show that the Veteran was treated for any lung disability during service, or that he has claimed that a lung disability manifested during his service. Rather, the appellant claims that the Veteran's lung disability was the result of exposure to asbestos and other exposures during his service. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to asbestos claims. VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) which provides guidelines for considering compensation claims based on exposure to asbestos. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI, which has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C. VAOPGCPREC 4-00 (2000). 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 M21-1 MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (f). The appellant contends that the Veteran was exposed to asbestos in service and that the Veteran's exposure to asbestos in service caused a lung disability. The Board may consider only that evidence of record at the time of the Veteran's death because the basis for the claim is on an accrued benefits basis. Lay persons without medical training, such as the Veteran and appellant, are not competent to opine on matters requiring medical expertise, such as the diagnosis or etiology of lung disabilities. They are competent to provide testimony, but not to provide medical opinions, diagnoses, or opinions regarding etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Medical disorders such as lung disabilities can have many causes and required medical expertise and testing to diagnose. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, whether the symptoms the Veteran reportedly experienced were related to asbestos exposure is a matter that requires medical expertise to determine. Clyburn v. West, 12 Vet. App. 296 (1999). The Court has directed the Board to assume exposure to asbestos during service. At the time of his death, the Veteran had a lung disability. Therefore, the remaining question is whether the evidence of record at the time of the Veteran's death showed that it was at least as likely as not that the Veteran's lung disability was related to service. Therefore, the Board will review the medical evidence of record prior to the Veteran's death to determine whether there is competent evidence showing that it is at least as likely as not that his lung disability was related to exposure to asbestos. The Veteran's service medical records are silent for any lung disabilities. A January 1984 VA examination found on respiratory examination that the chest was essentially negative. An August 1989 private medical report shows spirometry was normal. Chest X-ray found the lungs with a trace of pleural fluid bilaterally. There was slight elevation of left hemidiaphragm and left basilar atelectasis. The lungs elsewhere were free of significant congestion or infiltrate postoperatively. A June 1995 medical report shows that the Veteran had COPD and was status post being a chronic smoker. An August 1995 VA medical report notes a history of emphysema. A May 2001 medical report shows a history of COPD. There was intermittent shortness of breath at rest and with minimum exertion, occasional wheeze, productive cough for one year with brown stringy streaks, orthopnea, and PND. Another May 2001 medical report shows interstitial pulmonary markings suspicious for fibrosis and recommended evaluation for home oxygen. He was issued home oxygen. A July 2001 medical report shows a history of COPD. Chest and lungs were clear to auscultation. Previous shortness of breath at rest with minimum exertion had improved since being placed on oxygen. There was an occasional wheeze. An August 2001 pulmonary function test was interpreted to show moderate obstructive ventilatory impairment. A component of restrictive ventilatory impairment could not be excluded without measurement of lung volumes. A smoking history of 50 pack years was noted. An August 2001 medical report notes severe emphysema with irregular cystic involvement and right base pleural disease. No suspicious mass or effusion was shown. There was diffuse moderate interstitial lung disease. An October 2001 medical report lists a diagnosis of suspected pulmonary fibrosis versus asbestosis. December 2001 private medical reports show a diagnosis of pulmonary fibrosis and COPD and noted that the Veteran was oxygen dependent. The Veteran continued to be followed with diagnoses of COPD and pulmonary fibrosis. A March 2002 VA medical report shows a history of COPD. A September 2002 VA medical report shows that a CT scan showed interstitial fibrosis. The Veteran complained of asbestos exposure and asbestos could cause an interstitial fibrosis type disease. He was referred to pulmonary for an opinion. As of October 31, 2002, he had not seen pulmonary for an opinion. A December 2002 medical report shows diagnoses of COPD and pulmonary fibrosis. The Veteran was oxygen-dependent. The Veteran died on January [redacted], 2003. The causes of death are listed as coronary artery disease, ischemic cardiomyopathy, severe peripheral vascular disease, and chronic renal failure. The Board finds that the evidence of record at the time of the Veteran's death did not show that it is at least as likely as not that the Veteran's lung disability was related to service or to any exposure to asbestos during service, or to any service-connected disability. The evidence does not show any competent medical opinion relating the lung disability to the Veteran's service or to asbestos exposure prior to his death. Any statements made by the Veteran or the Appellant are not competent as diagnosing asbestos related lung disease and providing an etiology require medical training and expertise, and diagnostic testing. Therefore, based on the evidence of record at the time of the Veteran's death, the evidence does not show that it is at least as likely as not that the Veteran had any lung disability that was incurred in or aggravated by service, was proximately due to or the result of any disease or injury incurred in or aggravated by service, or was due to exposure to asbestos during service. Therefore, service connection for a lung disability for accrued benefits purposes is not warranted. The Board finds that the preponderance of the evidence is against the claim for service connection for a lung disability, for accrued benefits purposes, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The appeal concerning the issue of whether new and material evidence has been received to reopen a claim for service connection for a baker's cyst, claimed as a knee disability, for accrued benefits purposes, is dismissed. New and material evidence not having been received, the claim for service connection for hypertension and heart related problems, for accrued benefit purposes, is not reopened. New and material evidence having been received, the claim of entitlement to service connection for a lung disability due to asbestos exposure, for accrued benefit purposes, is reopened. To that extent only, the appeal is granted. Entitlement to service connection for a lung disability, claimed as due to asbestos exposure, for accrued benefits purposes, is denied. REMAND During the Veteran's lifetime he was diagnosed with a variety of lung conditions, to include chronic obstructive pulmonary disorder and interstitial fibrosis, as noted in a February 2002 VA medical record. In addition, the Veteran's occupation as a Machinist's Mate in service permits a concession that he was reasonably exposed to asbestos in service. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to asbestos claims. VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) which provides guidelines for considering compensation claims based on exposure to asbestos. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI, which has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C. VAOPGCPREC 4-00 (2000). 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 M21-1 MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (f). The Veteran died in January 2003 and his cause of death is listed as coronary artery disease due to ischemic cardiomyopathy due to severe peripheral vascular disease due to chronic renal failure. The appellant contends that the Veteran was exposed to asbestos in service and that the Veteran's exposure to asbestos in service caused the conditions that ultimately led to his death. In August 2006, a VA physician opined, in part, that the Veteran's death was caused by atherosclerotic cardiovascular disease with the primary manifestation being coronary artery disease with myocardial infarctions causing severe damage to the heart (ischemic cardiomyopathy). The atherosclerotic cardiovascular disease was not caused by or a result of the Veteran's probable asbestos exposure. The physician further opined that the Veteran had COPD, which was more likely than not a result of his extensive smoking. The interstitial fibrosis pattern noted on his chest x-ray was a non-specific finding, which has various causes. The examiner further opined that the Veteran's probable asbestos exposure cannot be totally excluded from having any role in causing his lung disease without resorting to mere speculation. The examiner also opined that it was less likely than not that the Veteran's probable asbestos exposure caused, materially influenced, or accelerated his demise. A July 2009 Court Memorandum Decision vacated the Board's March 2007 decision and remanded the claim for service connection for the cause of the Veteran's death for the Board to determine if either clarification of an August 2006 VA medical opinion should be undertaken or a new medical opinion should be obtained. Specifically, the Court indicted that any medical opinion must be based on the established fact that the Veteran was exposed to asbestos in service and not on the notion of probable exposure. The Court found the August 2006 VA medical examiner's reliance on statements of the Veteran's probable asbestos exposure instead of the Veteran's conceded asbestos exposure essentially undermined the probative value of the opinions. In light of the above, the Board finds that new VA medical opinions should be obtained by VA physicians, with the appropriate expertise. Accordingly, the case is REMANDED for the following actions: 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. Arrange for the entire claims file to be made available for review by a pulmonologist. The pulmonologist shall determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran had interstitial lung disease or any asbestos-related lung disease. If readings by a radiologist of any chest x-ray films of record is necessary to make the determination, that should be arranged. The examiner must acknowledge and discuss any lay evidence. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The rationale for all opinions should be provided. The pulmonologist is requested to identify all diagnosed lung disabilities prior the Veteran's death in January 2003. The pulmonologist is request to opine whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed lung disability was a result of the Veteran's in-service asbestos exposure (which has been conceded), or is otherwise related to the Veteran's active service. The examiner is requested to include a discussion of the medical evidence of record, to include evidence regarding asbestos exposure and smoking. The examiner should include reference to and discussion of any relevant point medical literature. In addition, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's causes of death (coronary artery disease due to ischemic cardiomyopathy due to severe peripheral vascular disease due to chronic renal failure) were related to his service, to include his exposure to asbestos in service. The examiner should discuss whether exposure to asbestos in service in any way had a material influence in accelerating death. 3. Then, readjudicate the claims. If the decisions remain adverse to the appellant, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs