Citation NR: 9717799 Decision Date: 05/22/97 Archive Date: 06/03/97 DOCKET NO. 95-17 053 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for bilateral defective hearing. 2. Entitlement to service connection for double pneumonia, a psychiatric disorder described as a mental disturbance, asthma, and emphysema, as secondary to Mustard Gas exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. A. Booher, Counsel INTRODUCTION The veteran had active service from December 1945 to August 1946. This appeal to the Board of Veterans’ Appeals (the Board) is from rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque. The RO denied the veteran’s claim for service connection for a psychiatric disorder in 1967 as not having been incurred in or aggravated by service. His current claim in that regard, however, is predicated on new regulations and his alleged exposure to Mustard Gas. Accordingly, the RO has considered the current claim on a de novo basis as limited to that premise rather than on the basis of whether any prior final decision on other premises has been reopened with new and material evidence. The Board will essentially do likewise. The issues of service connection for asthma and emphysema as secondary to Mustard Gas exposure will be addressed in the remand portion of this decision. CONTENTIONS OF APPELLANT ON APPEAL In substance, the veteran contends that his in-service exposure to noise of weapons, etc., caused him to have hearing loss; and that his exposure to Mustard Gas precipitated his mental problems as well as physical problems to include pneumonia which he actually developed in service shortly after the exposure, thereby warranting entitlement to grants of service connection. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that well grounded claims have not been presented on the issues of service connection for bilateral defective hearing; or for double pneumonia or a psychiatric disorder described as a mental disturbance as secondary to Mustard Gas exposure. FINDING OF FACT The claims for service connection for bilateral defective hearing, and double pneumonia or a psychiatric disorder described as a mental disturbance as secondary to Mustard Gas exposure, are not supported by cognizable evidence showing that the claims are plausible or capable of substantiation. CONCLUSION OF LAW The claims for service connection for bilateral defective hearing, and for double pneumonia and a psychiatric disorder described as a mental disturbance as secondary to Mustard Gas exposure, are not well grounded. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1996). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The veteran’s DD 214 shows that before service, he had been a plasterer’s helper. He has indicated that on those occasions since service that he has worked, he has held similar employment, and it is in that area in which he is trained. On the veteran’s entrance examination dated in December 1945, there were no noted abnormalities. Hearing acuity was measured as 15/15 bilaterally. In February 1946 the veteran was seen for acute, catarrhal, moderately severe, nasopharyngitis. The treatment records show that he had had a cold with persistent cough for the past few days, and a sore throat and headaches, without chills or malaise. He had complaints of chest discomfort but no real pleuritic pain. He said that he had had pneumonia when he was 6-7 years old. On examination, the pharynx was mildly injected. The chest was clear and he was placed on routine upper respiratory infection care. On the sixth day after admission he was released, cured, and without complaints or clinical findings of residuals. On the separation examination dated in August 1946 the veteran was noted to have a “nervous condition”, diagnosed as “mild anxiety reaction, anxiety”, which had existed prior to service. Hearing acuity was 15/15, bilaterally. On private mental health treatment and evaluations in 1965 and 1966, it was noted that the appellant had been nervous all of his life, but this had become worse in 1965 or thereabouts, when he admitted himself voluntarily to a state facility. Diagnoses of bronchial asthma and depression were reportedly made at that time; he had been told at discharge to take Librium and stop smoking. Another document dated in August-September 1965 shows a diagnosis of reactive acute depression. The claimant said he had been working as a plasterer for his brother, who was a general contractor. He gave a history of having had pneumonia in 1937, a straddle injury in 1962, and a hernia operation in about 1964. He said that his brother had a long history of teasing him, and had taken advantage of him, but he had been working for him anyway. Recently he had tried “wildly” bidding on a job himself, but had badly underbid the job and lost a good deal of money which was noted to have upset him considerably. The examiner said there was no good history with regard to asthma. Another report of evaluation in October 1965 shows that the appellant had been admitted to the state facility on a voluntary basis in September. He reported having a 7th grade education and being a plasterer by trade. He complained of nervousness along with other hypochondriacal features particularly related to his teeth. He had become increasingly concerned about some of his wife’s behavior and had recently developed depression along with becoming increasingly obsessive about it. He reported having gone to various doctors over the past 4-5 years with what had been initially diagnosed as prostate problems, and more recently, dental work. There had been no organic basis found for his complaints. He had reportedly made a suicide attempt in 1962 [which is not otherwise documented] and he said he had become increasingly fearful that he might repeat this. He had not been previously hospitalized for mental or emotional difficulties. On examination the veteran had normal findings except for bronchial spasm which was possibly due to smoking or impending asthma. He had no complaint or finding of defective hearing. Mental examination showed evidence of degrees of psychomotor retardation. His mood was one of mild depression. Memory was intact, judgment good and insight good. Diagnosis was depressive reaction. An evaluation in November 1965 showed complaints of stomach problems and a history of prostate trouble. Except for mid- abdominal tenderness, examination was negative. There was no reference to hearing loss. Diagnosis was possible duodenal ulcer [x-rays showed irritation] and depressive reaction, improved. On a VA Form 21-526 for pension, filed in 1966, the veteran reported having married his wife in October 1949; he had children born in August 1950, March 1953, September 1955, September 1957, August 1959, September 1961, October 1962, and November 1964. He said he had finished the 6th grade, and had worked as a plasterer. On examination in March 1966, there were no asthmatic wheezes. The appellant seemed somewhat tense and discouraged. Diagnoses included anxiety depression, at least partly based on his financial problems; and possible asthma, but none “heard” on the examination. The appellant was examined by VA in August 1966. He had no complaints or clinical findings of hearing loss. On examination, he gave a history of bronchial asthma over the past few years, first diagnosed as asthma in 1965. He alleged having a chronic cough, productive sputum and anterior chest pain. He reported that he had had pneumonia at age 8. On examination, right lung breath sounds were slightly diminished. There were no rales and percussion was normal. Diagnosis was asthma. The appellant also underwent a VA psychiatric evaluation in August 1966. He reported that he completed the 6th grade when he dropped out of school to work with his father making cement and plaster. He did this until he enlisted and then again after discharge. He said he had been separated from service because his father had not signed for him on entrance. When he was 19 he started plasterer work by himself, but said that his physical complaints now made this too difficult. He and his family had been on state welfare when he admitted himself to the state mental facility. The family had been dropped from the welfare rolls about a week after his release. He was said to be very unhappy that he had to return to work. He reported having 8 children and his wife was again pregnant. On examination the veteran did not appear anxious or depressed, and his affect was appropriate. While he was estimated to be of low intelligence, there was no evidence of psychosis or insight or judgment impairment. Diagnosis was moderately severe chronic passive dependent personality disorder manifested by a need to be taken care of, the utilization of physical complaints in an effort to have these needs met, and the development of some anxiety and depression when he felt the stresses and demands on him were too great. On his first VA hospitalization in June and July 1967, it was noted that the veteran had been hospitalized on his request, although he did not identify any particular reason other than it was hard to feed 9 kids. He appeared well oriented, relevant and coherent, but provided many somatic complaints that according to him kept him from working. When his wife visited the hospital, she stated that he had become depressed, nervous and unable to find work. He did not like to be around people and had difficulty sleeping at night. With medication and therapy, he improved. Chest X-ray was normal. The only organic disability identified was arthritis at the 12th dorsal and 1st lumbar vertebrae. Discharge diagnosis was passive dependent personality. In ratings in 1967, the RO denied entitlement to service connection for psychiatric problems described as personality disorder and anxiety reaction. The veteran was rehospitalized by VA in December 1970-January 1971 at which time he indicated that he had feelings of being more a woman than a man, that he should be a woman, and that life would be easier for him if he were a woman. He denied homosexual feelings. He reported that his wife would “go out on him” while he stayed home with his 9 children, and then return home and tell him what she had done. On admission, he was somewhat tremulous in appearance and depressed. His affect was flat. Orientations were good and memory was intact. He gave a family history of his sister having been in a state hospital and having attempted suicide; his father and two uncles had been alcoholics. He said that he had worked at odd jobs. He stabilized on medication and therapy, and although he appeared restless, his adjustment was satisfactory. He began to press for release because of obligations at home. There was no reference to hearing problems. Diagnosis was inadequate personality. In a rating in 1971, the RO granted nonservice-connected pension benefits from December 1970 primarily on the basis that his personality was such that it precluded his gainful employment. Subsequent VA outpatient records from the 1980’s show visits for unrelated problems such as complaints of kidney infection and clinical evidence of arthritis. In March 1983 the appellant complained of a roaring noise in his right ear for about a month, paresthesia in the right parietal area and increased cough. He gave a history of smoking 2 packs of cigarettes per day. There was no mention of his mental health. On examination, he had mild pharyngitis and retraction and thickening of the right tympanic membrane with loss of the normal landmarks. Lungs appeared clear. His chest X-rays showed “nothing active”. On that same date in March 1983 the veteran was also seen at another VA clinic with complaints that he had had a transsexual problem since age 15 and that VA had not been willing to pay for a sex change operation. The examiner stated that since this was the basis for his depression, he was referred to the social service to help him find someone to help deal with it. In October 1984 the appellant had complaints of pain in the back and chest and difficulty breathing. Examination of his lungs showed a few scattered wheezes. Chest X-ray was reportedly negative. He was seen in 1985 when prescriptions included antibiotics and Robitussin. In extensive documents dated in 1991 and 1993, which are in the file, the veteran described his lifelong mental health and other circumstantial problems. In March 1993, he filed a VA Form 21-4138 with regard to a claim for disabilities as a residual of exposure to Mustard Gas. He later delineated these as identified on the front page of this decision. The veteran described his experience with Mustard Gas as involving training at Fort Sill, Oklahoma in January 1946 in the gas chamber, at the Field Artillery Replacement Training Center. He reported that he had not been naked, if that was what was required for full body exposure, but that he had a gas mask which leaked badly, and was identified as such by his sergeant who was concerned about it. He described the gas as smelling very bad and causing him to be dizzy and nauseated. In a subsequent statement, he reported that he had been in a locked room and that the exposure was a full- body chamber test. He also stated later that the service had told them not to talk about it. The Department of the Army’s Medical Research and Development Command at Fort Detrick, MD, responded in July 1993 that while their office maintained reports of the U.S. Army personnel who participated as medical volunteers in studies related to the mechanisms of action and medical countermeasures against chemicals of military relevance, during the period 1955-1975, a search had also been made of the 1946 time frame, and it had been verified that there was no information available on the veteran. A VA audiometric evaluation, undated but received in January 1993, is of record, showing raw scores with pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 35 65 60 LEFT 25 30 50 60 65 The veteran had complained of difficulty understanding conversational speech and had had conflicts with his wife due to his poor hearing. The veteran’s history was negative for ear infections. He had had intermittent tinnitus in both ears and dizziness with asthma, and reported a long history of noise exposure as well as exposure to Mustard Gas in World War II. The examiner noted that the veteran was a good candidate for hearing aids in both ears. The examiner advised him to seek a compensation examination for any link between Mustard Gas exposure and ototoxic hearing loss. Copies of the audiogram were given to the veteran for his pursuit of a claim for service connection for hearing loss. Another document was received from The Department of the Army’s Aberdeen Proving Ground Biological Defense Command, in Maryland, dated in December 1993. It stated that the command was unable to assist in researching the possible exposure to Mustard Agent since it did not maintain old personnel records searchable by individual name or service number. The command’s historical division had no information related to the veteran. They further stated that based on the information of record, the following could be stated: The mention of a gas chamber during his (the veteran’s) time at a Field Artillery Training Center is probably referring to the standard gas chamber exercises used in training during the 1940’s. Enclosed is a section if the 1940 training manual on the use of smokes and lacrimations in training. The enclosed section described the gas chamber exercise, the purpose of the exercise and the chemical used during basic training and at other times when the unit went through gas mask proficiency training exercise. This document is for use only as an aid in evaluating this and future claims of this nature. It is not meant to be a definitive answer to the above referenced claim. That document is not of record in the file. A letter is of record to the veteran, dated in January 1994, from JMR, M.D., to the effect that “after carefully reviewing your chart and noting your history of exposure to mustard gas, your emphysema, the possibility of angina vs. mild MI, and especially your severe COPD, I believe you are at high risk for surgery. In view of this, I recommend that you find another surgeon to perform the hernia repair. Perhaps the VA can help you locate another surgeon. In the event of an emergency only during the next ten days, I will attend to you medically; after January 22, 1994, however you will need to contact another surgeon for further medical care. I do wish you well and I hope the VA will help you promptly. A letter was received from JAC, a retied Army Lt. Col., dated in April 1995, written at the request of the veteran. He stated that the veteran reportedly suffered from service connected pulmonary problems, and apparently has been told that no “real” gas was ever used in the service for gas mask training. The affiant stated that he recalled during his Navy boot camp training in 1943, in California, they had been directed into a building that had previously been charged with tear gas and that they had to respond, being exposed to other gases so that they could later identify them. He said that he had later been in the Army and at Ft. Bliss where they trained telephone linemen, part of which was training in a tear gas chamber in tents rather than a building. He said that this was a widespread practice in all services, and many men were seriously affected by the tear gas if their masks failed or they inadvertently failed to clear their masks properly. He said that at the time it had been treated as a big joke but no doubt many people had long-lasting effects from exposure to those training gases. In his Substantive Appeal, a VA Form 9, filed in May 1995, the veteran stated that he wished to appear before a Member of the Board at the RO and before a Hearing Officer. He was scheduled for and provided testimony at a hearing before a Hearing Officer at the RO in August 1995, a transcript of which is of record [Tr.]. He stated that he did not wish to provide testimony on the issues relating to double pneumonia and mental disturbance. Tr. at 1-2, 16. He stated that he was exposed to noise in service and first noted hearing loss and a ringing noise while in service and particularly when overseas. Tr. at 3-6. He had not been identified as having hearing problems until about 1993 when told by VA on the occasion of his first hearing test. Tr. at 7, 9. He said he had been exposed to some noise after service while plastering and working construction with his brother’s company at Holloman Air Base. Tr. at 7. He described his gas chamber situation. Tr. at 7-8, 9-10, 13-14. On inquiry he indicated that he had been given information on it, but that he was not claiming his defective hearing as a result of Mustard Gas exposure. Tr. at 8. He said that he thought he had first been diagnosed with emphysema and asthma in 1970. Tr. at 12, 16. He had not been treated elsewhere for either. Tr. at 12. The veteran was scheduled for another hearing before a member of the Board at the RO in August 1996. He notified the RO that he would be unable to attend, but asked that consideration be given to evidence that had been handcarried to the RO by a member of a Congressman’s staff. The documents mentioned above were received in August 1996 and are in the file. They include VA reports dated in July and August 1996 to the effect that the veteran had emphysema and COPD and describing his symptoms, possible causes (but not specific to his circumstances), alternative behavioral changes to assist in treatment, and other related material. No examination findings are associated therewith. General Criteria Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991 & Supp. 1996). For a 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”. Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or whether 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) (1996). In general service connection is not in order for congenital defects such as a personality disorder pursuant to 38 C.F.R. § 3.303(c) (1996). A few, exceptional circumstances upon which service connection may be granted on the basis of aggravation of such are delineated in United States Court of Veterans Appeals (Court) cases and VA General Counsel opinions. The threshold question to be answered in this case is whether the appellant has presented evidence of a well grounded claim; that is, one which is plausible and meritorious on its own or capable of substantiation. If he has not, the appeal must fail. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). A well-grounded claim requires three elements: (1) medical evidence of a current disability, (2) lay or medical evidence of a disease or injury in service, and (3) medical evidence of a link between the current disability and the in-service injury or disease. Caluza v. Brown, 7 Vet.App. 498 (1995). As a lay person, the appellant is not qualified to proffer an opinion as to the date of onset of his illness; such testimony would only be probative if it were proffered by a witness qualified as an expert. See Miller v. Derwinski, 2 Vet.App. 578, 580 (1992) which also quoted Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992)) holding that lay persons were not qualified to provide a probative diagnosis on a medical question. Lay hypothesizing, particularly in the absence of any supporting medical authority, serves no constructive purpose. See Hyder v. Derwinski, 1 Vet.App. 221, 225 (1991). The Board would note that 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) (1996). The Court has clearly indicated that this is not intended to limit a grant of service connection to those disabilities which were present in service or within a year thereafter, but also contemplates a chronic disability for which there is a credible medical opinion that there is a link between current disability and the in-service injury or disease. See, i.e., Caluza v. Brown, 7 Vet.App. 498 (1995). The Court further concluded that “satisfactory” evidence meant “credible” evidence as characterized in Caluza, supra, aff’d, 78 F.3d 604 (Fed.Cir. 1996); see also Collette v. Brown, No. 95-7043 (U.S. Ct. App. Fed. Cir. Apr. 23, 1996). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet.App. 309, 314 (1993). The Court has also held that a determination with regard to entitlement to service connection must be made upon a review of the entire evidentiary record including thorough and comprehensive examinations that are representative of the entire clinical picture. Brown v. Brown, 5 Vet.App. 413 (1993). In this, and in other cases, only independent medical evidence may be considered to support Board findings. If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). Defective Hearing Special Criteria and Analysis If not shown during service, certain regulations provide that service connection may be granted for sensorineural hearing loss if found disabling to a compensable degree during the first post service year. In the case of service connection for defective hearing there are other certain pertinent special criteria. In part as a result of a Court decision, (Ledford v. Derwinski, 3 Vet.App. 87 (1992)), there has been some clarification as to regulatory criteria relating to defective hearing. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 or 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1996). If a veteran currently meets the criteria of 38 C.F.R. § 3.385, he has a hearing loss disability. The veteran does not have to have a hearing loss disability during service in order to warrant a grant of service connection. Rather, the issue is whether, pursuant to 38 C.F.R. § 3.303(d), any current hearing loss disability is a chronic disorder attributable to service. Further, in Hensley v. Brown, 5 Vet.App. 155 (1993) and others, in general, the Court has found that “normal” hearing exists when the thresholds are between 0 and 20 decibels, and “hearing loss” exists when the threshold is from 25 decibels. In this case, the veteran’s hearing at entrance into service and at separation was normal. He had no evidence of defective hearing or ear problems in service medical records or in numerous reports of examinations for years after separation from service. In fact, the first objective evidence of hearing loss was in 1993. There is no evidence or medical opinion, other than provided by the veteran which is precluded by the tenets of Espiritu, that his hearing loss is the result of service. While he is not claiming that it is the result of ototoxicity exposures in service, even if he were, in the context of the actual history of record, and the fact that this was the first audiometric test the veteran ever received, the comments by the examiner in 1993 reflect a repetition of the veteran’s history rather than an assessment of his particular circumstances and identification of a given etiology of his hearing impairment. Mustard Gas Specialized Criteria and Analysis In the case of alleged exposure to Mustard Gas, there are certain guidelines set forth for development to ascertain nature, conditions, amount of exposure. See M21-1, Part III, § 5.18 (April 30, 1996). Pursuant to 38 C.F.R § 3.316 (1996), service connection is authorized for veterans who underwent any full-body exposure to Mustard Gas (or Lewisite) during service and who developed medical conditions listed therein. Veterans included therein, as pertinent to this case, are those who were exposed during field or chamber testing. Those conditions based on exposure to the specified vesicant include, for purposes of this case, a chronic form of laryngitis, bronchitis, emphysema, asthma, or chronic obstructive pulmonary disease (COPD) based on full body exposure. Claims may show evidence in service medical records of the acute effects of mustard gas. In addition, delayed effects may appear even though there were no acute effects noted in service. It is also possible that a veteran may have been exposed to nonservice related causative conditions or events. See VBA Circular 21-95-4 (as amended including on February 23, 1995, and May 19, 1995). Double Pneumonia In this case, while the veteran repeatedly referred to having had pneumonia as a child, there is no clinical evidence of pneumonia in service or since. Absent a disability for which service connection can be granted, or any link between such a disability and service, the requested benefit is not available. Mental Disturbance The evidence of record and the repeated diagnostic evaluations undertaken after service, particularly in the 1960’s, clearly show that the veteran has a lifelong personality disorder which is generally not subject to service connection pursuant to 38 C.F.R. § 3.303(c). There are certain special exceptions to that rule in the way of aggravation. See, i.e., Crowe v. Brown, 7 Vet.App. 238 (1994) and 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a) and (b) (1996); Laposky v. Brown, 4 Vet.App. 331, 334 (1993); Akins v. Derwinski, 1 Vet.App. 228, 232 (1991) and related VA General Counsel Precedent Opinions. However, the anxiety noted in passing without clinical findings at separation from service was not shown then or thereafter to be chronic as opposed to acute in nature. In fact, the veteran was being discharge at that time because by his own admission his father had not signed the form at entrance, and thus he was undoubtedly under some situational stress. His response at that time was entirely consistent with subsequent findings including as a result of one thorough psychiatric evaluation that was to the effect that within the veteran’s personality structure, whenever things became somewhat tense, he would develop some acute anxiousness. In a similar manner, when he has been under severe financial or familial pressures, he has tended to become slightly depressed, all responses well in keeping within his basic personality structure. In neither instance, on the basis of competent medical authority, been determined as reflective of an acquired anxiety neurosis or depressive neurosis superimposed on his personality defect or in any way serving to chronically aggravate that underlying disorder. More importantly in the context of this current appeal, there is no evidence or medical opinion to associate any “mental disturbance” with the veteran’s alleged exposure to Mustard Gas. It should be noted in passing that unlike certain respiratory problems, etc., “mental disturbance” is not one of those recognized disabilities which may be presumed to have a special relationship to Mustard Gas exposure, nor has any evidence or credible opinion to the contrary been provided in this claim in any event, much less has there been any authoritative service medical documentation and substantiation of exposure of the veteran to Mustard Gas in service. Absent a demonstration on the basis of competent medical evidence that the appellant has bilateral defective hearing, a mental disturbance or double pneumonia linked to his period of service, the Board has no alternative but to find these claims for service connection as not well grounded. The Board finds that the appellant’s claims for service connection for bilateral defective and two disabilities claimed as a result of Mustard Gas exposure (i.e., pneumonia, mental disturbance) are not well grounded. Although the Board considered and denied the appellant’s claims on a ground different from that of the RO, which denied the claims on the merits, the appellant has not been prejudged by the decision. This is because in assuming that the claims were well grounded, the RO accorded the appellant greater consideration than his claims in fact warranted under the circumstances. Bernard v. Brown, 4 Vet.App. 384 (1993). In light of the implausibility of the appellant’s claims and the failure to meet the initial burden in the adjudication process, the Board concludes that he has not been prejudiced by the decision to deny the appeal for service connection for bilateral defective hearing, and service connection for mental disturbance and pneumonia disorders as a result of exposure to Mustard Gas. Through the evidence of record and adjudication at the RO as well this decision by the Board, the veteran has been fully informed of the elements required to complete his application for such a claim relative to such disabilities. See Robinette v. Brown, 9 Vet.App. 69 (1995). In reaching this decision, the Board notes that the Court has held that there was some duty to assist the veteran in the completion of the application for benefits under 38 U.S.C.A. § 5103(a) (West 1991 & Supp. 1996), depending on the particular facts found in each case. Beausoleil v. Brown, 8 Vet.App. 459 (1996); Robinette v. Brown, 8 Vet.App. 69 (1995). The facts and circumstances of this case are such that no further action is warranted. ORDER The claims for service connection for bilateral defective hearing, double pneumonia, and a psychiatric disorder described as a mental disturbance claimed as secondary to Mustard Gas exposure, are not well grounded; the appeal in that respect is denied. REMAND The factual evidence with regard asthma and emphysema is so closely interwoven with the facts required for the above disposition, that they have been included above. In summary, the veteran had respiratory symptoms in and since service, diagnosed in service as an upper respiratory infection; and after service, in or about the mid-1960’s as asthma, and more recently, as asthma, emphysema and chronic obstructive pulmonary disease (COPD). Parenthetically, as noted above, any bouts of pneumonia appear to have singularly predated service (by history) and were without noted residuals (by history or evidence) in or since service, and thus are not pertinent for the issues at hand. It is not clear the extent to which the veteran was in fact ever exposed to Mustard Gas. In this regard, there may be a few further pursuits which may be helpful in nailing down that information in a more definitive manner. Also, as described in the Mustard Gas section above, regulations provide for latitude as to when symptoms first and progressively and more chronically appear. In this case, it would clearly be of benefit for further development to take place to include an examination of the veteran by VA for purposes of better analyzing his current respiratory problems claimed as asthma and emphysema, and most recently apparently diagnosed as emphysema and COPD. In any event, these three respiratory problems are among those which may be attributed to Mustard Gas exposure under certain circumstances. In this case, the Board finds that it is not unreasonable for VA to make a further effort to assist the veteran in the obtaining of all available records so that an equitable disposition may be made on all the herein claimed disabilities without further delay. While the veteran has indicated that all private treatment records are probably of record, it appears that the veteran may have undergone relatively recent VA respiratory evaluations. Other than that, it does not appear that the veteran has ever undergone a VA examination to determine his respiratory problems as they may relate to service. Therefore, pursuant to VA’s duty to assist the appellant in the development of facts pertinent to his claims under 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a) (1996), the Board is deferring adjudication of the issues prepared and certified for appellate review pending a remand of the case to the RO for further development as follows: 1. After the veteran clarifies when and under what circumstances he has been evaluated by VA, the RO should obtain all pertinent VA treatment and evaluative records from such care since service, including but not limited to respiratory assessments in the 1990’s, and attach them to the claims folder. 2. The RO should contact the service department directly pursuant to M21-1, Part III, § 5.18, and all other pertinent provisions of guidelines associated with implementation of 38 C.F.R § 3.316 including VBA Circular 21-95-4 (as amended) to obtain all records specifically with regard to the veteran and the gas training to which he and his unit may have been subjected, and other persons who may have been subjected to similar testing procedures. The RO should also obtain a copy of the 1940’s training manual information cited as having been attached to the Department of the Army’s Aberdeen Proving Ground Biological Defense Command, in Maryland, letter dated in December 1993. Further search should also be made in all pertinent locations of archives, etc. for the Department of the Army’s records, evaluations, lists, and assessments with regard such testing in the 1940’s for specific information for the veteran or, if available, for others assigned to the unit he has described or similar units. A delineation of all efforts made on behalf of finding these records should be annotated in the file. All records obtained should be added to the file. The search should be undertaken via (1) NPRC; (2) National Archives and Records Administration; (3) the service department directly; and (4) any and all other sources where such documentations may be available. All avenues of pursuit should be delineated and documented in the record. 3. The veteran should then be given a VA respiratory examination [in keeping with all pertinent VA guidelines for examining veterans with claims with regard exposure to Mustard Gas], to determine the nature, extent of severity, and etiology of any respiratory disorder(s) which may be present. Any necessary laboratory and other testing should be accomplished including but not limited to pulmonary function studies and ventilatory gas studies. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior to conduction and completion of the examination. The examiner is then requested to express an opinion as to what current respiratory disorders or those noted by history or on examination are “more likely,” “less likely,” or “equally likely” related to exposure to Mustard Gas in service if such exposure has been verified by the appropriate service department; opinions should be expressed as to the etiologies, duration and causal factors impacting on any respiratory disorder(s) found to be present, i.e., industrial exposure to plaster and other hazards of construction work, cigarette smoking, etc.. A complete rationale for all opinions expressed by the examiner must be provided. 4. Following completion of the foregoing development and examination, the RO must review the claims folder and ensure that all of the requested development has been conducted and completed in full. In particular, the RO should review the requested examination report and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. 5. After undertaking any development deemed essential in addition to that specified above, the RO should readjudicate the veteran’s claims for service connection for asthma and emphysema (COPD) on all bases pursuant to pertinent regulations and judicial guidelines including claimed as due to Mustard gas exposure. If the benefits requested on appeal are not granted to the veteran’s satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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 Veterans Appeals 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. 1996) (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. RONALD R. BOSCH Member, Board of Veterans' Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) 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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1996), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a 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) (1996). - 2 -