Citation Nr: 1414808 Decision Date: 04/04/14 Archive Date: 04/11/14 DOCKET NO. 11-09 051 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUE Entitlement to service connection for cancer of the larynx claimed as due to asbestos exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from January 1960 to January 1964. This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 decision by the RO in Jackson, Mississippi that denied service connection for cancer of the larynx, claimed as throat cancer. Jurisdiction of this appeal is currently with the RO in Providence, Rhode Island. A personal hearing was held at the RO in May 2013 before the undersigned Veterans Law Judge (VLJ) of the Board, and a transcript of this hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds that additional development must be accomplished prior to further consideration of the Veteran's appeal. VA medical records reflect that the Veteran has been diagnosed with cancer of the larynx. Thus the resolution of his appeal turns on whether the larynx cancer is attributable to his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993). The Veteran contends that his cancer of the larynx is the result of his exposure to asbestos during his military service aboard the USS Independence CVA-62 and the USS Francis Marion APA 249. He has also contended that the disability may be due to exposure to ionizing radiation, although he seemed to withdraw this contention at his Board hearing. He has also contended that he began smoking cigarettes in service, but had stopped smoking many years ago. In a June 2010 statement, he indicated that he was exposed to asbestos while sleeping under asbestos-covered pipes in the sleeping quarters aboard the ships. He reiterated his assertions in a September 2010 notice of disagreement, adding that he slept very close to asbestos-covered pipes aboard the USS Independence for more than two years, and was also exposed to asbestos in his barracks on Parris Island. The RO has attempted to obtain a copy of the Veteran's separation documents from the National Personnel Records Center (NPRC), but the National Personnel Records Center has indicated that such records are unavailable. The Veteran's service personnel records are not on file, and the Board finds that the RO should attempt to obtain any available service personnel records. In light of the Veteran's credible testimony that he slept in close proximity to asbestos-covered pipes aboard the USS Independence, the Board finds that a VA examination is needed to obtain an opinion as to whether his larynx cancer is related to service, including claimed asbestos exposure. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). In addition, relevant medical records should be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Contact any appropriate service records repository and attempt to obtain any available service personnel records. 2. Obtain copies of all additional records of any relevant VA or private medical treatment for a throat or larynx disorder dated since service that are not already on file. If any identified records cannot be obtained, this fact must be documented in the claims file and the Veteran appropriately notified in accordance with 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for a VA examination to determine the etiology of his larynx cancer. The claims file must be provided to and reviewed by the examiner. The examination is to include a review of the Veteran's history and current complaints and any tests deemed necessary. The examiner is asked to offer an opinion as to whether it is at least as likely as not that the Veteran's larynx cancer was incurred in or is related to active military service, including claimed asbestos exposure. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The examiner should provide a complete rationale for any medical opinion. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. 4. After the requested development has been completed, the AMC/RO should readjudicate the merits of the Veteran's claim based on all the evidence of record, including any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond. 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). _________________________________________________ S. L. Kennedy 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) (2013).