Citation Nr: 1513298 Decision Date: 03/27/15 Archive Date: 04/03/15 DOCKET NO. 13-13 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for prostate cancer, to include as a result of exposure to herbicides. 2. Entitlement to service connection for lung cancer (status-post bronchoalveolar adenocarcinoma of the lung with right upper lobectomy), to include as a result of exposure to asbestos. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to October 1969. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before the undersigned Veterans Law Judge (VLJ) via Video Conference in December 2014. A copy of the transcript has been placed in the Virtual VA paperless claims processing system. The record was left open for 60 days, during which time the Veteran submitted (electronically) additional evidence without a waiver of initial RO/AOJ consideration. 38 C.F.R. §§ 20.800, 20.1304(c) (2014). The Board has reviewed the "Virtual VA" system (to include VBMS) to ensure a complete assessment of the evidence. In this regard, pertinent VA treatment records, discussed further in the remand portion below, were recently associated with the Veteran's electronic claims file without RO/AOJ review or a waiver. Given that the Board is remanding the claims on appeal, the RO/AOJ will have an opportunity to consider this additional evidence when the claims are adjudicated during the remand process. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that additional development is necessary to adjudicate the claims on appeal. Additional Evidence Submitted Without Waiver of AOJ Review Since the March 2013 Statement of the Case (SOC), VA has received evidence from the Veteran in support of his appeal. This evidence includes medical opinions/evaluations from VA and private physicians (contained in VBMS). See December 2014 Statements from Dr. P.R., and Dr. D.W., respectively. Although the undersigned left the record open for 60 days following the December 2014 Board hearing, the aforementioned records were submitted without waiver of RO consideration. See 38 C.F.R. § 20.1304(c) (2014). Thus, the Board cannot adjudicate this service connection claims at present and the Agency of Original Jurisdiction (AOJ) must review these materials in the first instance. See 38 C.F.R. § 20.1304(c)(2014). Further, as noted in the Introduction, Virtual VA/VBMS shows that additional VA medical evidence was added to the Veteran's claims file in January 2015; this evidence includes a December 2008 VA Agent Orange Registry Examination report and VA treatment records dated from 2008 through January 2015. Neither the Veteran nor his representative indicated that they wished to waive AOJ consideration of this newly submitted evidence. Without such waiver of AOJ consideration, the Board may not proceed to adjudicate the Veteran's claim. Accordingly, the Veteran's claim must be remanded for the issuance of a SSOC. See 38 C.F.R. § 20.1304 (2014). Incomplete Medical Examination Regarding Lung Cancer Claim With respect to the claim for service connection for lung cancer, the Veteran primarily claims that such condition is the result of in-service asbestos exposure. The Board notes there are no laws or regulations specifically dealing with asbestos and service connection. See McGinty v. Brown, 4 Vet. App. 428, 432 (1993) (noting that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases; nor has the Secretary promulgated any regulations). However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and VA General Counsel provide guidance in adjudicating these claims. In 1988, VA issued the Department of Veterans Benefits (DVB) Circular 21-88-8, which provided guidelines for considering asbestos compensation claims. See DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in the VA Adjudication Procedure Manual with updates in 2005 and 2006. See VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1MR), Part IV, Subpart ii, Ch.2 Section C, Topic 9 (Dec. 13, 2005) and Section H, Topic 29 (Sep. 29, 2006). In this regard, 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. 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. The applicable sections of the M21-1MR note that the latency period for asbestos-related diseases varies from 10 to 45 or more years between the first exposure and development of a disease and that the exposure may have been direct or indirect. The guidelines point out that asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. They further specify that asbestos fibers may produce asbestosis, pleural effusions and fibrosis, pleural plaques, mesothelioma of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. See M21-1MR, Part IV.ii.2.C.9. In this case, the evidence shows that the Veteran was diagnosed with adenocarcinoma of the right upper lung lobe in approximately May 2010. The record also reflects that the RO has conceded the Veteran's in-service asbestos exposure in the March 2013 SOC and September 2011 rating decision. In October 2010, Dr. J.C.L., a VA physician, submitted a letter in which he opined that the Veteran's risk factors for lung cancer included smoking and asbestos exposure while on active duty in the Navy. Dr. J.C.L. further stated, "Although smoking by itself is a risk factor for lung carcinoma, asbestos exposure increases the risk three to four times compared to a person smoking alone." The Veteran underwent a VA examination in February 2011, at which time the examiner opined that the lung cancer was not due to asbestos exposure. In so finding, the examiner reasoned that "it would need to be clearly stated by the pulmonary doctors that they feel that the cancer was directly due to asbestoses." The examiner further noted that, "if [the] Veteran can offer a letter from his pulmonologist that states an opinion that his cancer is due to asbestoses then I will amend my report." If VA undertakes to provide a medical examination, the Board must ensure that such examination is adequate. See Barr v. Nicholson, 21 Vet. 303, 311. In this case, although the VA examiner noted the Veteran's history of tobacco abuse/use as an associative cause, his negative etiology opinion is almost completely reliant on the fact that the Veteran's pulmonologists have not provided an opinion relating the lung cancer to asbestos exposure. For this reason, the Board does not find the February 2011 VA examiner's opinion to be complete/adequate. Also, in providing his opinion, the Board still finds that additional questions remain with regard to what types of cancers affecting the lungs are predominantly caused by asbestos exposure, as opposed to other factors, such as cigarette smoke. In light of the fact that the evidence remains unclear as to whether and to what effect the Veteran's asbestos exposure had on his lung cancer, a remand is necessary for another opinion. 38 C.F.R. § 3.159(c)(4)(i). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify the provider(s) of any evaluation or treatment he has received for his claimed disability (records of which are not already associated with the claims file), and to provide all releases necessary for VA to secure any private records of such treatment or evaluation. Obtain complete records of all such treatment and evaluation from all sources identified. If any records requested are unavailable, the reason(s) therefor must be explained in the record. In addition, secure for the record complete copies of the clinical records of all VA treatment the Veteran has received for his claimed disabilities since January 2015. If any records requested are unavailable, the reason must be explained for the record. 2. Forward the claims file to a physician with expertise in oncology, particularly lung cancers. The claims file, a copy of this remand, and all records on Virtual VA, must be provided to and reviewed by the medical reviewer prior to his/her providing an opinion. After this review, the reviewer should opine as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that the Veteran's lung cancer (adenocarcinoma of the right upper lobe lung nodule) is causally or etiologically related to his military service, specifically to include his in-service asbestos exposure. The reviewer should also discuss 1) what type of cancers of the lung are caused/attributed to asbestos exposure; and 2) whether adenocarcinoma of the lung, in general, can be attributed to a history of asbestos exposure even in cases where there has been a significant smoking history. A complete rationale for any opinion provided, to include citation to pertinent evidence of record and/or medical authority, as appropriate, should be set forth. If the reviewer determines that he/she cannot provide an opinion on any of the issue at hand without resorting to speculation, the reviewer should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the reviewer be undertaken so that a definitive opinion can be obtained.) 3. After considering all the newly submitted evidence the Veteran has provided since the March 2013 Statement of the Case, and undertaking any necessary development (including obtaining any current medical records or scheduling any necessary examinations), readjudicate the Veteran's claims on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a SSOC, and an appropriate period of time should be allowed for response. 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 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 2014). _________________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).