Citation Nr: 9918560 Decision Date: 07/07/99 Archive Date: 07/15/99 DOCKET NO. 97-07 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a lung disease, to include pleural plaques, due to asbestos exposure and/or secondary to the service-connected suppurativa hidradenitis folliculitis. 2. Entitlement to service connection for chronic obstructive pulmonary disease with emphysema based upon inservice use of tobacco products and/or secondary to nicotine dependence acquired in service. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and M.W. ATTORNEY FOR THE BOARD C. L. Krasinski, Associate Counsel INTRODUCTION The veteran served on active duty from June 1964 to June 1968. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a September 1996 rating decision of the Department of Veterans Affairs (VA), Atlanta, Georgia, Regional Office (RO). The Board notes that it is deferring the determination of the issue of entitlement to service connection for a lung disorder to include pleural plaques as secondary to the service-connected suppurativa hidradenitis folliculitis until the development, as directed in the remand portion of this decision, is completed. FINDINGS OF FACT 1. The veteran has provided competent evidence that he was exposed to asbestos in service, competent medical evidence demonstrating a current diagnosis of pleural plaques, and competent medical evidence of a nexus between the diagnosis of pleural plaques and exposure to asbestos. 2. The veteran has provided competent evidence that he used tobacco in service and after service, competent medical evidence demonstrating a current diagnosis of chronic obstructive pulmonary disease with emphysema, and competent medical evidence of a nexus between his chronic lung disease with emphysema and tobacco usage. CONCLUSIONS OF LAW 1. The claim for entitlement to service connection for a lung disorder to include pleural plaques due to asbestos exposure is well-grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The claim for entitlement to service connection for chronic obstructive pulmonary disease with emphysema based upon inservice use of tobacco products and/or secondary to nicotine dependence acquired in service is well-grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that in an August 1993 rating decision, the RO denied entitlement to service connection for a lung disorder due to asbestos exposure. The veteran was notified of this determination in September 1993. He filed a timely notice of disagreement, but he did not file a timely substantive appeal. Appellate review is initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished. Absent the filing of a notice of disagreement within one year of the date of mailing of the notification of the initial review and determination of the claim, a rating determination is final and is not subject to revision upon the same factual basis. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. § 20.1103 (1993). In this case, the August 1993 rating decision is final, as there was no timely appeal of the decision. In a March 1996 rating decision, the RO denied the claim for entitlement to service connection for a lung disorder as secondary to asbestos and the service-connected hidradenitis folliculitis. The Board notes that prior to the March 1996 rating decision that is the subject of the current appeal, the RO apparently conceded that new and material evidence had been submitted to reopen the previously denied claim of entitlement to service connection for a lung disorder due to asbestos exposure, and the Board agrees with that determination. Consequently, the Board will consider the issue of entitlement to service connection for a lung disorder due to exposure to asbestos on a de novo basis. Pertinent Law and Regulations In order to establish service connection, the facts, as shown by evidence, must demonstrate that a disease or injury resulting in current disability was incurred during service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 1991). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1998). Service connection may also be granted for a disability initially diagnosed after service when shown to be related to service. 38 C.F.R. § 3.303(d) (1998). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (1998). A veteran claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well- grounded. 38 U.S.C.A. § 5107(a) (West 1991). The Court of Appeals for Veterans Claims (formerly the Court of Veterans Appeals) (Court) has defined "well-grounded claim" as a "plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Such a claim need not be conclusive, but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a). Id. A claim must be more than just an allegation; a claimant must submit supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). If a claim is not well-grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14 (1993). A not well-grounded claim must be denied. Edenfield v. Brown, 8 Vet. App. 384 (1995). If the initial burden of presenting evidence of a well-grounded claim is not met, the VA does not have a duty to assist the appellant further in the development of the claim. 38 U.S.C.A. § 5107(a); Murphy, 1 Vet. App. at 81-82. The Court has emphasized that in order for a claim to be well grounded, there must be competent evidence of current disability in the form of a medical diagnosis, of incurrence or aggravation of a disease or injury in service in the form of lay or medical evidence, and of a nexus between the in- service injury or disease and the current disability in the form of medical evidence. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. §5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Id. The Court has also held that the chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 489 (1997). Analysis Entitlement to Service Connection for a Lung Disorder Secondary to Exposure to Asbestos There is no statute specifically dealing with asbestos and service-connection for asbestos-related diseases, nor has the Secretary promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases which provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, 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 VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (hereinafter M21-1) (most recently revised on October 3, 1997). The VA must analyze the veteran's claim of entitlement to service connection for lung disease, to include pleural plaques, due to asbestos exposure under these guidelines. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). M21-1, Paragraph 7.21 provides that asbestos fibers may produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3. The latency period for asbestos- related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3 (January 31, 1997). An asbestos- related disease can develop from brief exposure to asbestos. Id. Some of the major occupations involving asbestos exposure include work in shipyards. M21-1, Part VI, 7.21(b)(1), p. 7-IV-3 (January 31, 1997). There is a prevalence of asbestos- related disease among shipyard workers since asbestos was used extensively in military ship construction. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3 (January 31, 1997). With asbestos-related claims, the Board must determine whether the claim-development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997) (while holding that the veteran's claim had been properly developed and adjudicated, the Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the DVB Circular's claim-development procedures). With these claims, the RO must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post- service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). In the present case, the Board finds that the claim for entitlement to service connection for a lung disorder to include pleural plaques due to asbestos exposure is well- grounded. 38 U.S.C.A. § 5107 (West 1991). The veteran has presented credible evidence of exposure to asbestos during service. At the hearing before the Board, the veteran stated that in service, he worked on a ship and was exposed to asbestos. Hearing Transcript, hereinafter Tr., 3. He indicated that his military occupational specialty was damage control, 3rd class. Tr. 5. He stated that he was exposed to asbestos from the steam lines and in the boiler room. Tr. 5. The veteran's DD 214 indicates that he was stationed on the USS Ashland. The veteran has presented competent medical evidence showing that he currently has a lung disorder. An August 1996 examination report by Dr. C.S.E. reflects a diagnosis of pleural plaque, benign. It was noted that the veteran had minimal asbestos exposure. The veteran has also submitted competent medical evidence which medically links his current lung disorder to asbestos exposure. A May 1986 medical screening test for asbestos exposure indicates that the veteran had bilateral diaphragmatic and pleural plaques probably due to asbestos exposure. As noted above, the August 1996 examination report by Dr. C.S.E. reflects a diagnosis of pleural plaques and noted that the veteran had minimal asbestos exposure. In summary, the Board finds that the veteran has presented competent evidence establishing that he was exposed to asbestos in service, that he currently has a lung disorder, and a nexus between his current diagnosis of pleural plaques and exposure to asbestos. Therefore, the veteran's claim is plausible and well grounded. 38 U.S.C.A. § 5107(a). Since the veteran met the initial burden of presenting evidence of a well-grounded claim, the VA has a duty to assist the veteran further in the development of the claim. 38 U.S.C.A. § 5107(a); Murphy, 1 Vet. App. at 81-82. The Board finds that additional clinical development is needed and such development is discussed in the Remand portion of this decision. Entitlement to Chronic Obstructive Pulmonary Disease with Emphysema as Secondary to Inservice Use of Tobacco Products and/or Secondary to Nicotine Dependence Acquired in Service A precedential opinion by the VA General Counsel, [which is binding upon the Board pursuant to 38 U.S.C.A. § 7104(c) (West 1991 and Supp. 1999)], was prepared to clarify when entitlement to benefits may be awarded based upon in-service tobacco use. This opinion determined that direct service connection of disability may be established if the evidence establishes that injury or disease resulted from tobacco use in line of duty in the active military, naval, or air service. VAOPGCPREC 2-93 (January 1993). The General Counsel issued a clarification of this opinion in June 1993, and stated that the opinion does not hold that service connection will be established for a disease related to tobacco use if the affected veteran smoked in service, but rather states that any disability allegedly related to tobacco use which is not diagnosed until after service would not preclude establishment of service connection; however, it must be demonstrated that the disability resulted from use of tobacco during service, and the possible effect of smoking before or after service must be taken into consideration. VAOPGCPREC 2-93 (June 1993). (Explanation of VAOPGCPREC 2-93 dated January 1993). The determination of whether tobacco use constitutes willful misconduct for purposes of determining whether disability or death may be considered to have resulted from injury or disease incurred in line of duty depends upon whether the evidence in the particular case establishes that the veteran engaged in deliberate or intentional wrongdoing and either knew or intended the consequences of tobacco use or used tobacco with a wanton and reckless disregard of its probable consequences. Tobacco use does not constitute drug abuse within the meaning of statutes providing that injury or disease will not be considered incurred in line of duty where it results from abuse of drugs. The General Counsel opinion does not hold that a veteran can establish service connection for tobacco-related illness: (a) if the veteran was unaware of the risks of tobacco use while in service; or, (b) based upon the actions of the military services in making tobacco products available to service personnel. Under the opinion, the veteran's awareness of smoking hazards relates only to the issue of willful misconduct. The veteran must nonetheless establish that the injury or disease for which compensation is sought resulted from tobacco use in service. Id. With regard to the issue of secondary service connection, a recent precedential opinion by the VA General Counsel was issued to clarify when service connection may be granted for tobacco-related disability on the basis that such disability is secondary to nicotine dependence which arose from a veteran's tobacco use during service. Specifically, the VA General Counsel found that a determination as to whether service connection for disability or death attributable to tobacco use subsequent to military service should be established on the basis that such tobacco use resulted from nicotine dependence arising in service, and therefore is secondarily service connected pursuant to 38 C.F.R. § 3.310(a), depends upon affirmative answers to the following three questions: (1) whether nicotine dependence may be considered a disease for purposes of the laws governing veterans' benefits, (2) whether the veteran acquired a dependence on nicotine in service, and (3) whether that dependence may be considered the proximate cause of disability or death resulting from the use of tobacco products by the veteran. If each of these three questions is answered in the affirmative, service connection should be established on a secondary basis. These are questions that must be answered by adjudication personnel applying established medical principles to the facts of particular claims. The determination of whether a veteran is dependent on nicotine is a medical issue. Additionally, on the issue of proximate cause, if it is determined that, as a result of nicotine dependence acquired in service, a veteran continued to use tobacco products following service, adjudicative personnel must consider whether there is a supervening cause of the claimed disability or death which severs the causal connection to the service-acquired nicotine dependence. Such supervening causes may include sustained full remission of the service- related nicotine dependence and subsequent resumption of the use of tobacco products, creating a de novo dependence, or exposure to environmental or occupational agents. VAOPGCPREC 19-97 (May 1997). In the May 1997 General Counsel Opinion discussed above, it was noted that in a May 5, 1997, memorandum, the Under Secretary for Health, relying upon the criteria set forth in VAOPGCPREC 67-90 (O.G.C. Prec. 67-90), stated that nicotine dependence may be considered a disease for VA compensation purposes. The General Counsel made the following statement: assuming the conclusion of the Under Secretary for Health that nicotine dependence may be considered a disease for compensation purposes is adopted by adjudicators, secondary service connection may be established, under the terms of 38 C.F.R. § 3.310(a), only if a veteran's nicotine dependence, which arose in service, and resulting tobacco use may be considered the proximate cause of the disability or death which is the basis of the claim. VAOPGCPREC 19-97 (May 1997). In a July 24, 1997 Letter from Acting VA Undersecretary of Benefits (USB Letter 20-97-14), the Acting VA Undersecretary for Benefits stated that nicotine dependence is a disease for VA compensation purposes and provided guidance for adjudicating tobacco cases. The Transportation Equity Act for the 21st Century, dated June 9, 1998, amended 38 U.S.C. §§ 1110 and 1131 to prohibit the payment of VA compensation for a disability resulting from the use of tobacco products. The Internal Revenue Service Restructuring and Reform Act, dated July 22, 1988, struck out the provision in the Transportation Equity Act for the 21st Century which prohibited payment of compensation to veterans for disability which is a result of tobacco products, and added 38 U.S.C. § 1103 (West 1991 and Supp. 1999), which prohibits service connection of death or disability on the basis that it resulted from disease or injury attributable to the use of tobacco products during the veteran's active service. The Internal Revenue Service Restructuring and Reform Act does not preclude service connection for disease or injury which became manifest during service or during an applicable presumptive period and is applicable only to claims filed after June 9, 1988. In the present case, the appellant filed the claim for entitlement to service connection for chronic obstructive pulmonary disease with emphysema based upon inservice use of tobacco products and/or secondary to nicotine dependence acquired in service in November 1996. Consequently, VAOPGCPREC 2-93 (June 1993) and VAOPGCPREC 19-97 (May 1997) apply, and 38 U.S.C.A. § 1103 is not applicable. The Board finds that the appellant has submitted a well- grounded claim for entitlement to service connection for chronic obstructive pulmonary disease with emphysema as secondary to inservice use of tobacco products and/or secondary to nicotine dependence acquired in service. The veteran has submitted competent evidence in the form of lay testimony that he used tobacco products in service. At the hearing before the Board in December 1998, the veteran stated, in essence, that he started to smoke tobacco while in service. Hearing Transcript, hereinafter Tr., 3. The veteran indicated that he smoked until 1994. Tr. 7. A June 1992 VA examination report indicates that the veteran reported that he smoked one pack a day for twenty-five years. A January 1996 treatment record by Dr. C.S.E. reveals that the veteran reported smoking one pack a day for thirty-two years. The Board finds that this is sufficient evidence that the veteran used tobacco in service. The Board also points out that there is evidence of record which suggests that the veteran may have nicotine dependence. An April 1989 treatment record reflects a diagnosis, in pertinent part, of tobacco abuse. It was noted that the veteran was trying to quit smoking and was using Nicorette. The Board finds that the veteran has submitted competent medical evidence that he currently has a lung disorder. In an April 1998 statement, Dr. C.S.E. stated that the veteran had mild chronic obstructive pulmonary disease. The treatment records by Dr. C.S.E. support this statement. A January 1996 chest X-ray report indicates that the veteran had a chronic lung disease with emphysema in the upper lobes and fibrosis in the lower lobes. The Board also finds that the veteran has submitted competent medical evidence of a nexus between his current lung disorder and tobacco use. The January 1996 chest X-ray indicates that the veteran's chronic lung disease with emphysema was consistent with chronic cigarette smoking. In summary, the Board finds that the veteran has presented competent evidence establishing that he used tobacco in service, that he currently has chronic obstructive pulmonary disease with emphysema, and that his current diagnosis of chronic lung disease with emphysema is medically related to tobacco use. Therefore, the veteran's claim is plausible and well grounded. 38 U.S.C.A. § 5107(a). Since the veteran met the initial burden of presenting evidence of a well-grounded claim, the VA has a duty to assist the veteran further in the development of the claim. 38 U.S.C.A. § 5107(a); Murphy, 1 Vet. App. at 81-82. The Board finds that additional clinical development is needed and such development is discussed in the Remand portion of this decision. ORDER The claim for entitlement to service connection for a lung disorder, to include pleural plaques, due to exposure to asbestos is well-grounded. The claim for entitlement to service connection for chronic obstructive pulmonary disease with emphysema based upon inservice use of tobacco products and/or secondary to nicotine dependence acquired in service is well-grounded. REMAND The Board has determined that further development is required before the issues on appeal can be decided on the merits. As discussed above, the veteran met the initial burden of presenting evidence of a well-grounded claim for entitlement to service connection for a lung disorder, to include pleural plaques, due to asbestos. Thus, the VA has a duty to assist the veteran further in the development of this claim. 38 U.S.C.A. § 5107(a). The Board finds that the RO must develop this claim pursuant to the guidelines set forth in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21. Pursuant to these guidelines, the RO must determine whether or not the veteran's military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. As noted above, the veteran reported that he worked on ships in service and was exposed to asbestos. The Board notes that the RO should attempt to obtain copies of the veteran's service personnel records which document his military occupational specialty and duty assignments. The RO also should also request the veteran to provide a history of his pre-service and post-service asbestos exposure. If the RO determines that the veteran was exposed to asbestos in service, the Board finds that a medical opinion as to whether the veteran's current lung disorders are due to or the result of asbestos exposure in service is needed. The VA's duty to assist includes providing a complete and thorough medical examination of the claimed disability that takes into account the records of the veteran's prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The duty to assist also includes providing an examination by a specialist when deemed appropriate. Littke v. Derwinski, 1 Vet. App. 90 (1990). Consequently, further clinical development is needed. As discussed above, the veteran met the initial burden of presenting evidence of a well-grounded claim for entitlement to service connection for chronic obstructive pulmonary disease with emphysema based upon inservice use of tobacco products and/or secondary to nicotine dependence acquired in service. Thus, the VA has a duty to assist the veteran further in the development of this claim. 38 U.S.C.A. § 5107(a). The medical evidence of record indicates that the veteran has mild chronic obstructive pulmonary disease with emphysema which is consistent with chronic cigarette smoking. The veteran stated that he began smoking in service and he became addicted to tobacco in service. The veteran's service medical records are devoid of any reference to use of tobacco products or nicotine dependence. There is no evidence of a diagnosis of nicotine dependence after the veteran left service in 1968. The Board notes, however, that an April 1989 treatment record reflects a diagnosis of "tobacco abuse." The Board is unable to discern from the present record whether the veteran, does in fact, have nicotine dependence. A determination as to whether the veteran is nicotine dependent is a medical determination. Consequently, the Board finds that additional clinical development is needed. The Board also finds that a medical opinion as to whether the veteran's chronic obstructive pulmonary disease is due to the veteran's tobacco use in service, whether the veteran acquired an addiction to nicotine while in military service, and if so, whether there is a proximal causal relationship between the chronic obstructive pulmonary disease with emphysema and his nicotine dependence is needed as well. Accordingly, this case is returned to the RO for the following: 1. The veteran should be permitted to submit any additional evidence in his possession that is pertinent to the issues on appeal. He should be asked to provide the names and addresses of the medical care providers who treated him for nicotine dependence and for lung disorders including pleural plaques, chronic obstructive pulmonary disease, and emphysema since 1968. Any medical care provider(s) so identified should be asked to provide copies of the veteran's treatment records, if such records are not associated with the claims folder. The veteran should be asked to sign any necessary consent forms for the release of the records. 2. The RO should develop the claim for service connection for a lung disorder due to asbestos pursuant to the guidelines set forth in M21-1, part VI, para. 7.21. The RO should obtain copies of the veteran's service personnel records which document his military occupational specialty and duty assignments and determine whether the service records demonstrate evidence of asbestos exposure during service. The RO should request the veteran to provide a documented history of the extent that he was exposed to asbestos prior to entering service, while in service, and after service. The veteran should be requested to identify and/or submit any medical or other credible evidence which shows that he was exposed to asbestos prior to service, while in service and after service, including post-service employment records. After obtaining releases from the veteran, where necessary, any pertinent medical evidence should be obtained. Any available records should be associated with the claims folder. 3. The RO should develop the claim for service connection for chronic obstructive pulmonary disease with emphysema based upon inservice use of tobacco products and/or secondary to nicotine dependence acquired in service pursuant to the guidelines set forth in VAOPGCPREC 2-93, VBA Letter dated January 28, 1997, and VAOPGCPREC 19-97. The RO should request the veteran to provide a documented history of the extent that he may have used tobacco based products prior to entering service, while in service, and after service. The veteran should be requested to identify and/or submit any medical or other evidence which shows that he acquired a dependence to nicotine and tobacco based products while in service, and/or that the dependence was the proximate cause of his current pulmonary disability. After obtaining releases from the veteran, where necessary, any pertinent medical evidence should be obtained. Any available records should be associated with the claims folder. 4. The RO should schedule the veteran for a VA examination by a board-certified pulmonary specialist, if available, to determine the nature and etiology of the pleural plaques, chronic obstructive pulmonary disease, emphysema, and any other lung disability found to be present. The examiner should review the claims folder and provide an opinion as to the following questions: (a). Whether it is at least as likely as not that the veteran's exposure to asbestos in service caused the pleural plaques or other lung disorder; (b). Whether it is at least as likely as not that the veteran's exposure to asbestos after service caused the pleural plaques or other lung disorder; (c). Whether it is at least as likely as not that the veteran's use of tobacco based products while in service resulted in chronic obstructive pulmonary disease with emphysema; (d). Whether the veteran is nicotine dependent and if so, whether he acquired an addiction to nicotine while in service; (e). If the veteran is nicotine dependent, whether it is at least as likely as not that there is a proximal causal relationship between the chronic obstructive pulmonary disease with emphysema and his dependence on nicotine; and (f). Whether it is at least as likely as not that the veteran's lung disorders, including pleural plaques and chronic obstructive pulmonary disease with emphysema, are due to asbestos exposure in service in conjunction with tobacco usage in service or in conjunction with nicotine dependence acquired in service. All indicated tests should be conducted. The rationale for any opinion expressed should be explained The claims file and a copy of this REMAND must be made available to the examiner(s) prior to the requested examination. 5. After the development requested above has been completed to the extent possible, the RO should again review the record and re-adjudicate the issue of entitlement to service connection for chronic obstructive pulmonary disease with emphysema due to tobacco use in service and/or secondary to nicotine dependence acquired in service. The RO should review this claim in light of the applicable guidelines, including VAOPGCPREC 2-93 (January 13, 1993), VBA Letter dated January 28, 1997, and VAOPGCPREC 19-97 (May 13, 1997). The RO should re-adjudicate the issue of entitlement to service connection for a lung disorder to include pleural plaques due to exposure to asbestos in service. The RO should review this claim in light of the applicable guidelines, including VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21. If any benefit sought remains denied, the veteran and his representative should be issued a supplemental statement of the case, which includes the appropriate law and regulations and adequate reasons and bases for the RO's decision. The veteran and his representative, thereafter, should be afforded an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if appropriate. No action is required of the veteran until he is notified by the RO. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals