Citation Nr: 0411380	
Decision Date: 04/30/04    Archive Date: 05/06/04

DOCKET NO.  02-17 728A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Montgomery, Alabama


THE ISSUE

Entitlement to accrued benefits based on claims for service 
connection for a lung disorder (including chronic obstructive 
pulmonary disease (COPD), emphysema, and bronchitis), chronic 
laryngitis, and skin cancer, claimed as due to mustard gas 
exposure.   


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

K. Hudson, Counsel


INTRODUCTION

The veteran had active service from October 1942 to November 1945.  
He died in May 1996, and the appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on 
appeal from an RO rating decision of November 1996 which denied 
the appellant's request for accrued benefits, based on the 
veteran's lifetime claims for service connection for a chronic 
lung disorder (including COPD, emphysema, and bronchitis), 
laryngitis, and skin cancer, claimed as due to mustard gas 
exposure. 


FINDINGS OF FACT

1.  At the time of the veteran's death, he had an appeal pending 
for service connection for a lung disorder (including COPD, 
emphysema, and bronchitis), chronic laryngitis, and skin cancer, 
claimed as due to mustard gas exposure. 

2.  Evidence on file at the time of the veteran's death showed 
that during World War II service he had full-body exposure to 
mustard gas.

3.  Evidence on file at the time of the veteran's death included 
medical evidence showing a chronic lung disorder (including COPD, 
emphysema, and bronchitis) subsequent to service, and this was due 
to the mustard gas exposure in service.  

4.  Evidence on file at the time of the veteran's death did not 
show a medical diagnosis of chronic laryngitis during or after 
service.  

5.  Evidence on file at the time of the veteran's death included 
medical evidence showing squamous cell carcinoma of the skin (a 
type of skin cancer) subsequent to service, and this was due to 
the mustard gas exposure in service.  


CONCLUSIONS OF LAW

1.  A chronic lung disorder (including COPD, emphysema, and 
bronchitis) was incurred in active service, for accrued benefits 
purposes.  38 U.S.C.A. §§ 1110, 5121 (West 2002); 38 C.F.R. §§ 
3.303, 3.316, 3.1000 (2003).

2.  Claimed chronic laryngitis was not incurred in or aggravated 
by active service, for accrued benefits purposes.  38 U.S.C.A. §§ 
1110, 5121 (West 2002); 38 C.F.R. §§ 3.303, 3.316, 3.1000 (2003).

3.  Squamous cell carcinoma of the skin was incurred in active 
service, for accrued benefits purposes.  38 U.S.C.A. §§ 1110, 5121 
(West 2002); 38 C.F.R. §§ 3.303, 3.316, 3.1000 (2003).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The file shows that by RO correspondence, the rating decision, and 
the statement of the case, the appellant has been informed of the 
evidence necessary to substantiate her claims, and of her and VA's 
respective obligations to obtain different types of evidence 
permissible for accrued benefits claims, i.e., evidence actually 
or constructively of record at the time of death.  The Board finds 
that the notice and duty to assist provisions of the law have been 
met.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  

In February 1993, the veteran filed claims for service connection 
for a chronic lung disorder (COPD, etc.), laryngitis, and skin 
cancer, which he asserted were due to mustard gas exposure during 
service in World War II.  He served in the Army from 1942 to 1945, 
and he maintained he was at Bari, Italy in 1943 when he was 
exposed to mustard gas.  In February 1995, his claims were denied 
by the RO.  Although he perfected an appeal from that decision, he 
died in May 1996 prior to a Board decision.  The appellant filed a 
claim for accrued benefits in October 1996, based on the veteran's 
claims for service connection which were pending at the time of 
his death.   

Periodic monetary benefits to which a veteran was entitled at the 
time of death, under existing ratings or decisions, or based on 
evidence in the file at the date of death (i.e., accrued 
benefits), and due and unpaid for a period not to exceed 2 years 
prior to the last date of entitlement, shall upon the death of the 
veteran be paid to certain survivors including his surviving 
spouse.  Evidence in the file at date of death means evidence in 
VA's possession on or before the date of the beneficiary's death, 
even if such evidence was not physically located in the VA claims 
folder on or before the date of death.  38 U.S.C.A. § 5121; 38 
C.F.R. § 3.1000.  (Note, pursuant to the Veterans Benefits Act of 
2003, the law has been changed to eliminate the 2 year limit on 
payment of accrued benefits, but such only applies to deaths on or 
after December 16, 2003.)

Service connection may be granted for disability resulting from 
disease or injury incurred in or aggravated by active service.  38 
U.S.C.A. §1110; 38 C.F.R. § 3.303.  

Service connection may be granted for any disease diagnosed after 
discharge, when all the evidence, including that pertinent to 
service, establishes that the disease was incurred in service.  38 
C.F.R. § 3.303(d).  

Full-body exposure to nitrogen or sulfur mustard during active 
military service together with the subsequent development of 
specified diseases, including squamous cell carcinoma of the skin, 
chronic form of laryngitis, bronchitis, emphysema, asthma, or 
chronic obstructive pulmonary disease, is sufficient to establish 
service connection for that condition, unless there is affirmative 
evidence that establishes a non-service-related supervening 
condition or event as the cause of the claimed condition.  38 
C.F.R. § 3.316.

VA guidelines found in Manual M21-1, Part III,  5.18 define full-
body mustard gas exposure as including certain situations 
including veterans who were present at the German air raid on the 
harbor of Bari, Italy, in World War II.

Evidence of records at the time of the veteran's death included 
service medical records from his 1942-1945 active duty, and these 
did not show a chronic lung disorder (including COPD, emphysema, 
and bronchitis), laryngitis, and skin cancer. 

The medical evidence on file at the time of the veteran's death 
included private medical records dated from 1979 to 1988 which 
showed that he had squamous cell carcinoma of the left ear in 
1983, the left elbow in 1987, and the dorsum of the left hand in 
1988.  The skin cancers were removed.  These records also show the 
veteran had actinic keratosis, solar keratosis, and basal cell 
carcinoma during this period.  A February 1993 statement from a 
private doctor was of record, noting a diagnosis of pulmonary 
emphysema.  The medical evidence on file when the veteran died 
showed a variously diagnosed chronic lung disorder subsequent to 
service, but did not show a diagnosis of chronic laryngitis.  A VA 
examination was conducted in December 1993, at which time the 
veteran reported a history of exposure to mustard gas in Italy in 
1943.  He said that in the incident he suffered burns of this 
wrists, hands, and forearms, and was treated by medics.  He said 
that since service he said he had progressive shortness of breath, 
a recurrent cough, and excision of multiple basal cell carcinomas.  
The diagnoses were history of exposure to mustard gas in World War 
II, status post excision of multiple basal cell carcinomas by 
history, and COPD.  

Also of record at the time of the veteran's death were his 
statements dated from 1993 and later, describing his claimed 
service exposure to mustard gas.  He said that he was exposed to 
mustard gas in Bari, Italy, in December 1943.  He said he had been 
sent on a detail to Bari, and was unloading ships with supplies 
when he experienced burns from mustard gas on his wrists, hands, 
and forearms.  He said he had been treated by medics and returned 
to his unit.  A lay statement dated in January 1995, from D. N., 
was also of record when the veteran died.  This person noted that 
he had been in the same battalion with the veteran, and the 
veteran had to go to various supply points to pick up equipment.  
Reportly on one occasion he had to go to southern Italy in early 
December 1943 to pick up some special equipment, during this time 
there was a German air raid in the area of Bari, and as a result 
of this raid there was gas leakage, and the veteran was exposed to 
the gas.  At the time of the veteran's death, the file contained 
statements dated in October 1994 and August 1995 from the U.S. 
Army Chemical and Biological Defense Command (CBDCOM), which 
reported that it was unable to provide any information related to 
the veteran or the possibility that he was at Bari, Italy.

In a decision dated in June 2001, the Board granted service 
connection for the cause of the veteran's death, based on findings 
that the veteran had full-body exposure to mustard gas when 
serving at Bari, Italy in service, and that such led to his 
variously diagnosed lung disorder which was a contributory cause 
of death.  The Board notes that the June 2001 Board decision was 
essentially based on evidence on file at the time of the veteran's 
death, with respect to findings that the veteran had full-body 
exposure to mustard gas in service and later developed chronic 
lung disease.  Considering the evidence on file at the time of the 
veteran's death, the Board now adopts such findings with regard to 
the instant appeal for accrued benefits based on service 
connection claims which were pending on appeal when the veteran 
died.

Considering the evidence on file when the veteran died, the Board 
finds that he had full-body mustard gas exposure in service, and 
he later developed a chronic lung disorder (including COPD, 
emphysema, and bronchitis).  Such chronic lung disorder began in 
service, in accordance with the mustard gas regulation.  The lung 
disorder was incurred in service, warranting service connection 
for accrued benefits purposes.

Evidence on file at the time of the veteran's death showed no 
medical diagnosis of chronic laryngitis during or after service.  
Without a medical diagnosis of a claimed condition, there may be 
no service connection.  Degmetich v. Brown, 104 F.3d 1328 (1997).  
The veteran may have had episodes of sore throat associated with 
coughing from his post-service lung condition, but there was no 
independent diagnosis of chronic laryngitis which might be 
service-connected.  The claimed condition was not incurred in or 
aggravated by service.  As the preponderance of the evidence is 
against this accrued benefits claim, the benefit of the doubt rule 
does not apply, and the claim must be denied.  38 U.S.C.A. § 
5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990).

As to skin problems, post-service medical records on file when the 
veteran died showed he had some skin problems which were not 
medically related to mustard gas exposure in service.  However, 
one of his skin problems after service, squamous cell carcinoma (a 
particular type of skin cancer) is recognized as being related to 
his mustard gas exposure.  The Board finds that the veteran's 
squamous cell carcinoma of the skin was incurred in service, 
warranting service connection for accrued benefits purposes.









ORDER

Service connection for a chronic lung disorder (including COPD, 
emphysema, and bronchitis), for accrued benefits purposes, is 
granted.

Service connection for chronic laryngitis, for accrued benefits 
purposes, is denied.

Service connection for squamous cell carcinoma of the skin, for 
accrued benefits purposes, is granted.


	                        
____________________________________________
L. W. TOBIN
	Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (BVA or 
Board) is the final decision for all issues addressed in the 
"Order" section of the decision.  The Board may also choose to 
remand an issue or issues to the local VA office for additional 
development.   If the Board did this in your case, then a "Remand" 
section follows the "Order."  However, you cannot appeal an issue 
remanded to the local VA office because a remand is not a final 
decision. The advice below on how to appeal a claim applies only 
to issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not 
need to do anything.  We will return your file to your local VA 
office to implement the BVA's decision.  However, if you are not 
satisfied with the Board's decision on any or all of the issues 
allowed, denied, or dismissed, you have the following options, 
which are listed in no particular order of importance: 
* Appeal to the United States Court of Appeals for Veterans Claims 
(Court)
* File with the Board a motion for reconsideration of this 
decision
* File with the Board a motion to vacate this decision 
* File with the Board a motion for revision of this decision based 
on clear and unmistakable error. 
Although it would not affect this BVA decision, you may choose to 
also: 
* Reopen your claim at the local VA office by submitting new and 
material evidence. 
There is no time limit for filing a motion for reconsideration, a 
motion to vacate, or a motion for revision based on clear and 
unmistakable error with the Board, or a claim to reopen at the 
local VA office.  None of these things is mutually exclusive - you 
can do all five things at the same time if you wish.  However, if 
you file a Notice of Appeal with the Court and a motion with the 
Board at the same time, this may delay your case because of 
jurisdictional conflicts. If you file a Notice of Appeal with the 
Court before you file a motion with the BVA, the BVA will not be 
able to consider your motion without the Court's permission. 

How long do I have to start my appeal to the Court?  You have 120 
days from the date this decision was mailed to you (as shown on 
the first page of this decision) to file a Notice of Appeal with 
the United States Court of Appeals for Veterans Claims.  If you 
also want to file a motion for reconsideration or a motion to 
vacate, you will still have time to appeal to the Court.  As long 
as you file your motion(s) with the Board within 120 days of the 
date this decision was mailed to you, you will then have another 
120 days from the date the BVA decides the motion for 
reconsideration or the motion to vacate to appeal to the Court.  
You should know that even if you have a representative, as 
discussed below, it is your responsibility to make sure that your 
appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for Veterans 
Claims?  Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure 
for filing a Notice of Appeal, the filing fee (or a motion to 
waive the filing fee if payment would cause financial hardship), 
and other matters covered by the Court's rules directly from the 
Court. You can also get this information from the Court's web site 
on the Internet at www.vetapp.uscourts.gov, and you can download 
forms directly from that website.  The Court's facsimile number is 
(202) 501-5848. 

To ensure full protection of your right of appeal to the Court, 
you must file your Notice of Appeal with the Court, not with the 
Board, or any other VA office. 

How do I file a motion for reconsideration? You can file a motion 
asking the BVA to reconsider any part of this decision by writing 
a letter to the BVA stating why you believe that the BVA committed 
an obvious error of fact or law in this decision, or stating that 
new and material military service records have been discovered 
that apply to your appeal. If the BVA has decided more than one 
issue, be sure to tell us which issue(s) you want reconsidered. 
Send your letter to: 
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

VA FORM
JUN 2003 (RS) 
 4597
Page 1
CONTINUED


Remember, the Board places no time limit on filing a motion for 
reconsideration, and you can do this at any time. However, if you 
also plan to appeal this decision to the Court, you must file your 
motion within 120 days from the date of this decision. 

How do I file a motion to vacate? You can file a motion asking the 
BVA to vacate any part of this decision by writing a letter to the 
BVA stating why you believe you were denied due process of law 
during your appeal. For example, you were denied your right to 
representation through action or inaction by VA personnel, you 
were not provided a Statement of the Case or Supplemental 
Statement of the Case, or you did not get a personal hearing that 
you requested. You can also file a motion to vacate any part of 
this decision on the basis that the Board allowed benefits based 
on false or fraudulent evidence.  Send this motion to the address 
above for the Director, Management and Administration, at the 
Board.  Remember, the Board places no time limit on filing a 
motion to vacate, and you can do this at any time. However, if you 
also plan to appeal this decision to the Court, you must file your 
motion within 120 days from the date of this decision. 

How do I file a motion to revise the Board's decision on the basis 
of clear and unmistakable error? You can file a motion asking that 
the Board revise this decision if you believe that the decision is 
based on "clear and unmistakable error" (CUE).  Send this motion 
to the address above for the Director, Management and 
Administration, at the Board. You should be careful when preparing 
such a motion because it must meet specific requirements, and the 
Board will not review a final decision on this basis more than 
once. You should carefully review the Board's Rules of Practice on 
CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified 
representative before filing such a motion. See discussion on 
representation below. Remember, the Board places no time limit on 
filing a CUE review motion, and you can do this at any time. 

How do I reopen my claim? You can ask your local VA office to 
reopen your claim by simply sending them a statement indicating 
that you want to reopen your claim.  However, to be successful in 
reopening your claim, you must submit new and material evidence to 
that office. See 38 C.F.R. 3.156(a). 

Can someone represent me in my appeal?  Yes. You can always 
represent yourself in any claim before VA, including the BVA, but 
you can also appoint someone to represent you.  An accredited 
representative of a recognized service organization may represent 
you free of charge.  VA approves these organizations to help 
veterans, service members, and dependents prepare their claims and 
present them to VA. An accredited representative works for the 
service organization and knows how to prepare and present claims. 
You can find a listing of these organizations on the Internet at: 
www.va.gov/vso.  You can also choose to be represented by a 
private attorney or by an "agent." (An agent is a person who is 
not a lawyer, but is specially accredited by VA.) 

If you want someone to represent you before the Court, rather than 
before VA, then you can get information on how to do so by writing 
directly to the Court.  Upon request, the Court will provide you 
with a state-by-state listing of persons admitted to practice 
before the Court who have indicated their availability to 
represent appellants.  This information is also provided on the 
Court's website at www.vetapp.uscourts.gov. 

Do I have to pay an attorney or agent to represent me?  Except for 
a claim involving a home or small business VA loan under Chapter 
37 of title 38, United States Code, attorneys or agents cannot 
charge you a fee or accept payment for services they provide 
before the date BVA makes a final decision on your appeal. If you 
hire an attorney or accredited agent within 1 year of a final BVA 
decision, then the attorney or agent is allowed to charge you a 
fee for representing you before VA in most situations.  An 
attorney can also charge you for representing you before the 
Court.  VA cannot pay fees of attorneys or agents. 

Fee for VA home and small business loan cases:  An attorney or 
agent may charge you a reasonable fee for services involving a VA 
home loan or small business loan.  For more information, read 
section 5904, title 38, United States Code. 

In all cases, a copy of any fee agreement between you and an 
attorney or accredited agent must be sent to: 

Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

The Board may decide, on its own, to review a fee agreement for 
reasonableness, or you or your attorney or agent can file a motion 
asking the Board to do so. Send such a motion to the address above 
for the Office of the Senior Deputy Vice Chairman at the Board. 


VA FORM
JUN 2003 (RS) 
 4597
Page 2