Citation Nr: 1619462 Decision Date: 05/13/16 Archive Date: 05/19/16 DOCKET NO. 13-05 785 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from December 1941 to April 1945. He died in October 1982 and the appellant in this matter is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The VA RO in Denver, Colorado, now has jurisdiction of the claims file. The appellant was scheduled for a hearing in March 2016 before a Veterans Law Judge (VLJ) but indicated in a February 2016 statement that she would not be able to attend the hearing and did not express a desire therein, or elsewhere, to be scheduled for another hearing before a VLJ. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The undersigned finds that additional development is required with respect to the claims for service connection for the cause of the Veteran's death. The Veteran's death certificate lists bronchopneumonia and mesothelioma of the lungs as the cause of death and an "industrial accident (exposure of asbestosis)" as the causative event of this condition. The Veteran was not service connected for a lung disability or any other disability at the time of his death. Service treatment reports are not available as they were presumably destroyed in the July 1973 fire at the National Personnel Records Center in St. Louis, Missouri. The appellant asserts that the lung disability which caused the Veteran's death is a result of exposure to asbestos aboard vessels during his documented service as an able seaman in the Merchant Marines. In support of her claim, she submitted a publication in April 2012 entitled "Naval Battleships and Asbestos Exposure" that listed one of the ships the Veteran is documented to have served on from February 1943 to August 1943 (see continuation of the Veteran's DD Form 214), the New York, as being one of the vessels that involved exposure to asbestos. Submitted in conjunction with this publication was a document listing the duties of an able seaman. There are no specific statutory or regulatory guidance with regard to adjudicating claims for service connection for asbestos-related diseases; however, VA issued a circular on asbestos-related diseases in 1998 which provided guidelines for considering asbestos compensation claims and which are now included in the VA Adjudication Procedure Manual. See M21-1, IV.ii.1.I.3. The manual specifically provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the Veteran. In this regard, the M21-1 indicates that common materials that may contain asbestos include steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Such further indicates that inhalation of asbestos fibers can produce fibrosis, tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system except the prostate. In June 2011, the RO conducted some efforts to document asbestos exposure by contacting an official miliary record repository, to no avail. See February 17, 2012, RO Memorandum. It is unclear if such efforts included an attempt to obtain the service personnel records (SPRs), and while it is possible that the SPRs were destroyed at the 1973 fire, the record does reflect specific documentation of the nature of the Veteran's service-which would potentially provide sufficient information to render development to document any in-service exposure to asbestos meaningful-on the continuation of the Veteran's DD Form 214 as referenced above. In this regard, this document reflects the Veteran's service as an able seaman in the Merchant Marines as follows: February 1943-August 1943 aboard the New York August 1943-December 1943 aboard the Mayari May 1944-June 1944 aboard the Cloverbrook August 1944-October 1944 aboard the Gallant Fox October 1944-November 1944 aboard the SS Santiago December 1944-January 1945 aboard the SS Robert E. Clarkson February 1945-April 1945 aboard the SS George Ade In light of the above, it is not clear if the development that has been undertaken is sufficient to withstand judicial review; as such, and to ensure that the duty to assist the appellant has been fulfilled, the Board finds that a remand is necessary to adequately develop the record with respect to whether the Veteran had pre-service and/or post-service evidence of occupational or other asbestos exposure. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The appellant should also be given the opportunity to provide more information as to the Veteran's claimed in-service asbestos exposure. After obtaining any additional information regarding the Veteran's pre-, in-, and post-service asbestos exposure and in light of the M21-1's guidance, the AOJ should attempt to verify the Veteran's in-service asbestos exposure by contacting any appropriate source so as to determine whether the alleged exposure is consistent with his service in the United States Merchant Marines from December 1941 to April 1945. In light of the evidence of record and the assertions of the appellant, the AOJ will also be requested to obtain a medical opinion as to the etiologic relationship between the Veteran's death and a disease which may be attributed to service that addresses the specific contentions of the appellant. DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). Accordingly, the case is REMANDED for the following action: 1. Send the appellant and her representative a letter requesting a complete history of the Veteran's pre-service and post-service occupational or other asbestos exposure. Request also that she provide any additional details as to the Veteran's claimed asbestos exposure during service that may be beneficial in the adjudication of her claim. 2. Conduct the appropriate development, if not already done so, to obtain the Veteran's SPRs. All reasonable attempts should be made to obtain these records, and if such cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The appellant and her representative must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After receiving any available SPRs and additional information from the appellant as to the claimed asbestos exposure during service, or a sufficient time period has passed without a response, attempt to verify the Veteran's in-service asbestos exposure by contacting any appropriate source so as to determine whether the alleged exposure is consistent with his service in the United States Merchant Marines from December 1941 to April 1945 aboard the vessels identified above. All efforts to obtain the requested information should be documented in the claims file. 4. Refer the file to a VA medical professional for an opinion-consistent with the results of the development requested above with respect to whether exposure to asbestos in service is verified-a to whether it is at least as likely as not that the Veteran's death was related to a disease which may be attributed to service. In offering the opinion, the examiner should consider the appellant's specific assertions linking the Veteran's death to exposure to asbestos during service. (See,e.g., February 17, 2006, statement by the appellant). A complete rationale for all opinions expressed should be provided. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the appellant's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the appellant and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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) (2015).