Citation Nr: 1648256 Decision Date: 12/28/16 Archive Date: 01/06/17 DOCKET NO. 16-10 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran had active military duty from January 1942 to October 1945. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The appellant contends that the Veteran was exposed to asbestos during service which led to his terminal diagnosis of lung cancer ultimately resulting in his death. The National Personnel Records Center (NPRC) in St. Louis Missouri in response to VA requests reported in April 2015 that the Veteran's service records may have been destroyed in a fire at the Records Center in 1973. The NPRC could not confirm the existence of such records but only the fact that if they had been stored at the Records Center, they would have been stored in an area damaged by the fire. In light of the foregoing, the Appellant was asked to complete and return an enclosed NA Form 13055, Request for Information Needed to Reconstruct Medical Data. The RO received the NA Form 13055 in May 2015 along with the Appellant's report that the Veteran had no known treatment for illness or injury in service. The RO, however, found that the form was otherwise incomplete, and therefore, further attempts to obtain the missing records could not be undertaken without the completed form. The RO also recognized that a copy of a military abstract showing the Veteran served in the 584th Bombardment Squadron as a member of the Army Air Corps had been associated with the record but found that the abstract did not show that the Veteran was exposed to asbestos during his military service. The Board recognizes that there is a heightened obligation to assist the appellant in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been, or in actuality were, destroyed was in the possession of the government. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005) ("[W]hen VA is unable to locate a claimant's records, it should advise him to submit alternative forms of evidence to support his claim and should assist him in obtaining sufficient evidence from alternative sources"); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). The Veteran's DD Form 214 shows that his military occupational specialty was Radio Operator Mechanic Gunner AAF 757. The Live Manual contains a table that describes the probability of asbestos exposure by military occupational specialty (MOS). It, however, recognizes that the list is not exclusive. The Board finds that efforts should be undertaken to determine whether the Veteran's MOS likely exposed him to asbestos. Also, the Board will afford the Appellant a VA opinion to assist her in substantiating her claim. 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). Expedited handling is requested.) 1. Request that the Appellant provide the names, addresses, and approximate dates of treatment of all the Veteran's medical care providers, VA and non-VA, who provided any treatment pertinent to the issue on appeal. After the Appellant has signed the appropriate releases, any indicated records should be obtained and associated with the claims folder. 2. Undertake appropriate efforts to determine the probability (minimal, probable, highly probable) the Veteran's MOS (Radio Operator Mechanic Gunner AAF 757) in the 584th Bombardment Squadron as a member of the Army Air Corps exposed him to asbestos. 3. Arrange for an appropriate VA physician (M.D.) to review the Veteran's entire claims folder in order to provide a medical nexus opinion. The physician is requested to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's lung cancer was caused by asbestos exposure given his medical history, family history, other risk factors, etc. The physician must provide a complete rationale for the opinion expressed. If the physician is unable to provide the requested opinion without resorting to speculation, then he or she should provide a rationale for why an answer could not be provided. 4. After completing the action necessary to comply with the requests of this remand, readjudicate the claim. If the benefit sought remains denied, issue a Supplemental SOC (SSOC) and provide the Appellant and her representative with the requisite period of time to respond before the record is returned to the Board for further review. 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 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). _________________________________________________ TANYA SMITH 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).