BVA9500529 DOCKET NO. 93-06 661 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for lung cancer due to exposure to asbestos. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Brynn K. Bloomgren, Associate Counsel INTRODUCTION The appellant had active service in the United States Navy from January 1945 to April 1953, and from August 1961 to August 1972. This matter comes before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a December 1991 rating decision of the San Diego, California, Regional Office (hereinafter RO) of the Department of Veterans Affairs (hereinafter VA), which denied entitlement to service connection for lung cancer due to exposure to asbestos. The veteran has raised the issues of entitlement to service connection for residuals of exposure to Trichloroethylene and to pension benefits. These issues are not in appellate status, and we refer them back to the RO for appropriate action. REMAND The veteran underwent right lower lobe resection due to cancer in September 1989, and received treatment for metastatic non-small cell disease of the skull, ribs, pelvis, and spine. He contends that service connection is warranted for lung cancer due to exposure to asbestos. He claims that, although he had a long history of smoking, he had quit smoking nearly eight years before the onset of lung cancer. He claims that x-rays taken at the Marshfield Clinic in Marshfield, Wisconsin, as late as January 1987 were negative for cancer. He urges the VA to obtain these x-rays and biopsy studies to support his claim. He asserts that small nodules detected on his left lung are due to asbestos exposure. Service medical records are negative for asbestosis or lung cancer. The veteran had a pneumothorax in March 1966 and complaints diagnosed as bronchitis in the late 1960's. Service records confirm that the veteran served aboard ship, and a lay statement attested to the veteran's exposure to asbestos during service aboard the USS. SALISBURY SOUND. Exposure to asbestos may be presumed in this case. Radiographic changes indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions, and pleural plaques; granulomatous disease, atelectasis, or calcific changes are not included in this list of representative changes. VA Adjudication Procedure Manual, M21-1, Part VI, § 7.68 (September 21, 1992). It is common medical knowledge that there may be a long latency period before the onset of an asbestos-related disease resulting from even a month or two of exposure. Id. p. 7-xv-7. The veteran submitted private treatment reports from St.Joseph's Hospital, Marshfield, Wisconsin, dated in 1989, including a report of right lung biopsy, which note adenocarcinoma with dysplastic changes and fibrotic thickening. X-ray reports and a computerized tomography report describe a small nodule in the left lobe, patchy interstitial pattern, pleural thickening, fibrosis, and scarring. Reports from the U.S Naval Hospital in San Diego are of record showing treatment from 1990 to 1992. These reports indicate that a specimen from a lung biopsy performed in 1989 at St. Joseph's Hospital were reviewed in June 1992. While an October 1991 VA examination report found that lung cancer was not related to asbestos exposure, service records, private treatment reports, and biopsy slides were not available for review at that time. The examiner noted that "concerning any changes regarding asbestos exposure, no definite signs are seen except that there is very minimal biapical pleural thickening." Comparison with old films was recommended, and an addendum to the report states, "status-post right lung resection for cancer 1989. Rx Palliative radiation. Question asbestosis." The veteran has presented evidence of exposure to asbestos in service, as well as recent clinical evidence of fibrosis, pleural effusion, and scarring, consistent with asbestos exposure. Although a medical opinion has not been submitted relating lung cancer to asbestos exposure, the M21-1 provides an independent medical basis for a possible relationship between lung cancer and asbestos exposure with these findings. Thus, we find that the claim is well-grounded, that is, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). 38 U.S.C.A. § 5107 (West 1991). Based on the foregoing, this case is REMANDED for the following development: 1. The RO should obtain and associate with the claims file all available pathology reports, tissue slides and tissue blocks related to treatment of the veteran's lung cancer, including the 1987 chest x-ray and the 1989 biopsy slides from the Marshfield Clinic in Marshfield, Wisconsin, as well as any additional biopsy studies performed by the Naval Hospital in San Diego, California, or other facilities. It should request tissue slide and tissue block accession numbers if the Department of Defense Armed Forces Institute of Pathology has accessioned the pathological materials. 2. Once the additional evidence has been associated with the claims file, and if the veteran's health permits, the RO should afford the veteran a pulmonary examination. The examination should be performed in accordance with the VA Physician's Guide to Disability Evaluation Examinations (March 1, 1985). The examiner, after having reviewed the claims file, as well as any additional evidence obtained in connection with the above request for tissue slides, should express an opinion regarding the presence of any asbestos-related disease. The claims file, studies and slides, and a copy of this REMAND shall be made available to the examiner prior to the examination. After the requested development has been completed to the extent possible, the RO should return the claims file and the additionally obtained evidence, particularly the tissue slides, to the Board. The Board will then forward the tissue slides to the Armed Forces Institute of Pathology for further review. The purpose of this remand is to obtain additional development and the Board does not intimate any opinion as to the merits of the case. No further action is required of the veteran until he is notified. BETTINA S. CALLAWAY 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) (1993).