BVA9505598 DOCKET NO. 93-01 343 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran served on active duty from May 1935 to September 1939 and from October 1942 to November 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1992 Department of Veterans Affairs (VA) rating decision by the Regional Office (RO) in Montgomery, Alabama. In June 1988, the RO denied the appellant's claim for service connection for the cause of the veteran's death, and so informed the appellant in July 1988. She did not appeal that decision. The appellant now seeks to reopen her claim, and this appeal ensued after the RO found that no new and material evidence had been received. REMAND The appellant contends that service connection is warranted for the cause of her husband's death. The record shows that the veteran died in April 1988 at the age of 74, and that the Certificate of Death lists the cause as cardiorespiratory arrest, due to or as a consequence of metastatic carcinoma of the lung. Evidence considered by the RO in June 1988 included the veteran's service medical records and an August 1961 affidavit by a private physician, including a diagnosis of chronic bronchitis. The record shows that the veteran was diagnosed in service as having acute bronchitis, catarrhal, moderate, in January 1937. During his lifetime he was service connected only for enucleation of the left eye, rated 40 percent disabling. In 1992, the appellant sought to reopen her claim and medical records from several physicians and from private medical facilities were received. In October 1980, the veteran underwent a right thoracotomy, and lung cancer was found in 1987. He underwent chemotherapy and radiation therapy. Treatment continued until his demise in 1988. In January 1990, the Board referred the appellant's claim to an independent medical expert for an opinion concerning the claim, and requested that the examiner comment on the following questions: 1. When did lung cancer have its onset? 2. Was the lung cancer which caused the death etiologically related to any pulmonary condition for which the veteran received treatment in service? 3. Did a lung condition of service origin play any part in the veteran's death? In a February 1995 response, the independent medical expert noted that the lung cancer was discovered around April 1987, so that it "may have originated some time before that." It was further stated that the expert could not determine from the chart any treatment that the veteran had had that may have resulted in lung cancer. The expert also reported that the 1988 report of a Computerized Tomography (CT) scan showed the presence of pleural calcification over the right diaphragm and a 'large pleural based soft tissue mass,' and that there was evidence of fibrotic changes in bother lower lung zones. It was noted that the pleural based lesion was subsequently biopsied, which showed infiltrating carcinoma of questionable epidermoid pattern. It was stated that this evidence might raise questions about exposure to asbestos while in service. It was pointed out that the veteran was a mechanic while in service. It was also stated that the question of asbestosis and mesothelioma could be invoked, and it was pointed out that prior asbestos exposure and superimposed smoking could increase the chance of primary lung carcinoma. The expert noted that establishing clearly the nature of the malignancy would be one step towards making a proper determination. The Board notes that in her substantive appeal, the appellant argued that the veteran's lung cancer was related to chemicals to which he was exposed during service. At her personal hearing, she testified that he worked in service as a tank mechanic and in the motor pool. The veteran's discharge certificate reports his military occupational speciality to be automotive equipment mechanic. The Board also notes that the record shows that the veteran had a long history of smoking since he was 18 years of age. VA has a duty to assist a claimant in the development of facts pertinent to her claim. 38 U.S.C.A. § 5107(a) (West 1991). In view of the foregoing, the Board finds that additional development is necessary. The case is hereby REMANDED to the RO for the following development: 1. The RO should contact the appellant and request that she provide the names, addresses, and approximate dates of treatment for all health care providers who treated the veteran for any pulmonary disability subsequent to service. With any necessary authorization from the appellant, the RO should attempt to obtain copies of those treatment records identified by the appellant which have not been secured previously. She should also be asked to give a detailed history of the veteran's cigarette smoking, and a detailed history of his employment since service. 2. The RO should obtain all available information from the service department which may be helpful in assessing any asbestos exposure that the veteran might have received during service. This would include obtaining all personnel records for the veteran. 3. The RO should contact the Flowers Hospital and the Southeast Alabama Medical Center, both in Dothan, Alabama, to obtain copies of all laboratory reports associated with all biopsies performed on the veteran. The RO should also request any existing slides and tissue blocks. The RO should secure the actual X-ray films involved. These records and materials should remain associated with the claims folder pending completion of the appellate process. 4. Then, the RO should arrange for a board certified VA pulmonary disease specialist to review the veteran's claims file and provide an opinion, with complete rationale, as to whether it is at least as likely as not that cigarette smoking in service, exposure to asbestos in service, or a combination thereof caused or contributed to any disability that played a material causal role in the veteran's death. 5. Thereafter, in light of the evidence obtained pursuant to the requested development, the RO should readjudicate the claim on appeal. If new and material evidence is found to have been received, the claim should be reviewed on a de novo basis. With respect to whether new and material evidence has been offered, the RO should specifically consider any clinical evidence obtained pursuant to this remand, as well as the February 1995 expert opinion. If the benefit sought on appeal is not granted to the satisfaction of the appellant, a Supplemental Statement of the Case should be issued and the appellant and her representative should be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. By this remand, the Board intimates no opinion as to the final outcome warranted. No action is required of the appellant until she is notified by the RO. J. J. SCHULE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).