Citation Nr: 0421253 Decision Date: 08/03/04 Archive Date: 08/09/04 DOCKET NO. 95-27 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for a chronic acquired respiratory disorder, to include as a result of mustard gas exposure. ATTORNEY FOR THE BOARD A. Pitts, Counsel INTRODUCTION The veteran served on active duty from September 1940 to July 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) at Boston, Massachusetts. The RO, in pertinent part, denied entitlement to service connection for a chronic acquired respiratory disorder. To include as secondary to mustard gas exposure. In November 1998 the Board remanded the case to the RO for further development and adjudicative action. In April 2004 the RO most recently affirmed the determination previously entered. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND This matter must be afforded expeditious treatment by the Veterans Benefits Administration (VBA) AMC. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (CAVC) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (codified at 38 U.S.C. §§ 5109B, 7112). The claim is subject to the Veterans Claims Assistance Act of 2000. See 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002) (the VCAA); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). The VCAA applies to all claims for VA benefits filed on or after the November 9, 2000 date of enactment of the VCAA or filed before the date of enactment and not yet final as of that date. 38 U.S.C.A. § 5107 note (Effective and Applicability Provisions). When a claim that is subject to the VCAA comes before it on appeal, the Board considers whether any action required by that statute remains to be taken on the claim and must remand the claim for completion of any such needed action. See Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). It appears to the Board that before the veteran's claim of entitlement to service connection for a respiratory condition may be further considered, additional action required by the VCAA must be undertaken. Furthermore, additional action is called for under special VA procedures that apply when a veteran's service records are unavailable and presumed destroyed. The veteran contends that he is entitled to service connection for a respiratory disorder because he developed such as a result of being exposed during service to mustard gas during testing in which he was required to participate. Pursuant to section 3.316 of Title 38, Code of Federal Regulations, exposure to certain specified vesicant agents during active military service, together with the subsequent development of certain diseases, is sufficient to establish service connection in the following circumstances: (1) full- body exposure to nitrogen or sulfur mustard during active military service, together with the subsequent development of chronic conjunctivitis, keratitis, corneal opacities, scar formation, nasopharyngeal cancer, laryngeal cancer, lung cancer (excluding mesothelioma), or squamous cell carcinoma of the skin; (2) full-body exposure to nitrogen or sulfur mustard or Lewisite during active military service together with the subsequent development of a chronic form of laryngitis, bronchitis, emphysema, asthma, or chronic obstructive pulmonary disease (COPD); or (3) full-body exposure to nitrogen mustard during active military service together with the subsequent development of acute nonlymphocytic leukemia. 38 C.F.R. § 3.316(a) (2003). Service connection will not be established under this section, however, if the claimed condition is due to the veteran's own willful misconduct or if there is affirmative evidence that establishes a nonservice-related supervening condition or event as the cause of the claimed condition. 38 C.F.R. § 3.316(b). The availability of a presumption of service connection under 38 C.F.R. § 3.316, however, does not preclude proof of the claim under other legal provisions. See Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000). Thus, if the criteria of section 3.316 for presumptive service connection are not met in this case, the veteran still may be entitled to service connection for a respiratory condition if there is sufficient proof that it was caused by his exposure to mustard gas, by another injury that he sustained during service (e.g., exposure to other chemicals), or by a disease that he contracted during service. See 38 C.F.R. § 3.303(a), (b), (d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In all cases, regardless of the theory of service connection that is applied, there must be sufficient proof that the veteran has the disorder claimed. See Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Notice and Development of Evidence other than VA Examination Special notice must be issued to the veteran under the circumstances of this case and then, the RO must assist the veteran with developing any evidence that he identifies in response. It appears that service personnel records that are relevant to the claim are unavailable and are presumed to have been destroyed by the fire that occurred at the National Personnel Records Center (NPRC) in 1973. In January 2002, the RO requested the NPRC to produce the veteran's service personnel records. The RO sought to review those records in order to see whether they indicated that the veteran had participated in any mustard gas testing, as he claims. The NPRC's reply to this request indicated that the records were unavailable and were presumed to have been destroyed by the 1973 fire. In August 2002, in response to an inquiry that the RO made in accordance with the Board's instructions in the November 1998 Remand, the Department of Defense, Human Resources Activity Defense Manpower Data Center (DMDC), reported by letter that the veteran's name was not listed in the database identifying those who may have been exposed during World War II to mustard gas and lewisite during testing programs, production, storage, or transportation of those materials. The agency advised in that letter that many veterans "believe that they participated in mustard gas testing when they participated in routine chemical warfare defense training." Thus, a review of the veteran's service personnel records might have confirmed that he was involved in activities that could have resulted in exposure to mustard gas, lewisite, or other chemicals. In January 2002, approximately at the same time it received the reply of the NPRC, the RO sent the veteran a letter asking him to submit a copy of his military personnel file if he had one or any other service documents in his possession concerning the alleged exposure to mustard gas. He did not respond by submitting any documents. The RO did not give the veteran notice that his service personnel records were unavailable and presumed destroyed. The RO did not follow well-established procedures for fire- related cases. After hearing from the NPRC in January 2002, the RO should have advised - - and VA had a duty to advise - - the veteran that even though his service personnel records could not be found, alternate forms of evidence could be submitted. See Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). After receiving the NPRC's reply, the RO should have assisted - - and VA had a duty to assist - - the veteran in obtaining such alternate evidence. See id. The Department of Veterans Affairs Adjudication Procedure Manual provides that alternate sources of evidence should be resorted to in fire-related cases. See VA Adjudication Procedure Manual, M21-1, Part III, Paragraphs 4.23, 4.25, 4.29 (Change 88, February 27, 2002). A "partial list" of "alternate documents" that might substitute for service records is set forth in M21-1: VA military files; statements from service medical personnel; "buddy" certificates of affidavits; state or local accident and police reports; employment physical examinations; medical evidence from hospitals, clinics, and private physicians by which or by whom a veteran may have been treated, especially soon after separation; letters written during service; photographs taken during service; pharmacy prescription records; and insurance examinations. VA Adjudication Procedure Manual, M21-1, Part III, Paragraph 4.25. However, the record does not indicate that the RO advised the veteran of these or other alternate forms of evidence and request that he identify any. It is clear, though, that the claim could be proved through sufficiently probative alternate kinds of evidence. For example, since mustard gas testing and chemical warfare defense training were activities in which groups of service members participated, it is possible that the veteran could support his claim with statements from persons with first-hand knowledge of his own participation. Other alternate forms of evidence also might be probative of the claim. Concerning cases in which service records are unavailable, it is stated in M21-1: "Only when the service department indicates that all efforts to locate the [service] records have been exhausted and the request to the claimant does not result in receipt of other evidence can the case be routed to the rating activity for final rating action." VA Adjudication Procedure Manual, M21-1, Part III, Paragraph 4.29. By this standard, the RO's denial of the claim has been premature. In addition to the VA adjudication procedures that must be adhered to in fire-related cases, the Veterans Claims Assistance Act of 2000 also requires that VA issue special notice and attempt to develop any evidence that the veteran identifies in response. Under the VCAA, VA has a duty to give claimants certain notice concerning the evidence that is needed to substantiate their claims. The notice furnished by VA must inform the claimant, and the claimant's representative, if any, of any information and of any medical and lay evidence that VA determines is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The notice must be furnished upon receipt of a complete or substantially complete application. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice must explain which evidence the claimant is finally responsible for obtaining and which evidence VA will attempt to obtain on the claimant's behalf. Quartuccio, 16 Vet. App. at 186. The notice must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). The statute provides that the claimant has one year from the date the notice is sent in which to submit information or evidence that VA has identified. 38 U.S.C.A. § 5103(b). The implementing regulation states that if a claimant has not responded to a notice requesting information or evidence within 30 days of the date of the notice, VA may decide the claim prior to the expiration of the one-year period on the basis of the evidence of record but must readjudicate the claim if the claimant later provides the information or evidence within the one-year period. 38 C.F.R. § 3.159(b)(1). A recent amendment of section 5103 provides that VA may make a decision on the claim before the one-year period has expired without vitiating the notice. 38 U.S.C.A. § 5103(b), as amended by Veterans Benefits Act of 2003, P.L. 108-183, Section 701(b), 117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at 38 U.S.C. § 5103). This amendment is by its terms retroactive to the November 9, 2000 date of enactment of the VCAA. 38 U.S.C.A. § 5103(b), as amended by Veterans Benefits Act of 2003, P.L. 108-183, Section 701(c), 117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at 38 U.S.C. § 5103). In May 2003, the RO provided the veteran with a notice that generally conformed to the requirements of 38 U.S.C. § 5103 and 38 C.F.R. § 3.159(b). However, the notice did not discuss the alternate forms of evidence needed to support the claim in the absence of the veteran's service personnel records. The supplemental notice that the RO gives to the veteran on remand concerning this topic must satisfy the requirements of section 5103 and the implementing regulation. Under the VCAA, VA has a duty to make reasonable efforts to obtain records pertinent to the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(1)-(3). When records needed to decide a claim for VA benefits are in the custody of a federal department or agency, VA must continue to try to obtain them until it has been successful unless it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(2). The VCAA provides that the duty to obtain records applies when the claimant, after being requested to do so by VA, "adequately identifies [such records] to the Secretary and authorizes the Secretary to obtain" them. 38 U.S.C.A. § 5103A(b). Under the VCAA, VA must give appropriate notice to the claimant if it is unable to obtain the records. 38 C.F.R. § 3.159(e). VA Medical Examination The VCAA requires VA to secure a medical examination or opinion if such is necessary to decide a claim for VA benefits. 38 U.S.C.A. § 5103(A)(d)(1); 38 C.F.R. § 3.159(c)(4). For a VA examination to be considered necessary under the VCAA to the decision of a claim, it must appear that there is competent evidence on file that a veteran has a current disability or persistent and recurring symptoms of disability that in turn may be associated with his active service but at the same time, the medical evidence on file is insufficient to resolve the claim. 38 U.S.C.A. § 5103A(d)(2); see also 38 C.F.R. § 3.159(c)(4)(i). His current medical records show that a computed tomography (CT) scan of his chest performed at a VA medical facility in May 1998 revealed "[s]cattered areas of pleural thickening." The report concerning the CT scan noted that one of those areas appeared to correspond to a previously noted "area of abnormality" identified by a chest x-ray taken in April 1998. Positing that "these likely represent stages of benign pleural thickening," the report concerning the CT scan stated that nevertheless, "short interval follow up (three- six months) with chest x-ray is suggested to document stability over a period of two years." The claims file does not show that chest-x-rays, or CT scans, focusing on the condition of the veteran's lungs and the significance of the pleural thickening were taken after the CT scan was taken in May 1998. Although evidence is lacking in the present record that the veteran was exposed to mustard gas or other toxic chemicals during service or otherwise sustained during service an injury that could have affected his respiratory system, his service medical records do show that he suffered episodes of illness involving the respiratory system. The service medical records show that he was hospitalized in January 1941 for what was diagnosed as acute, moderately severe nasopharyngitis and that he had sinusitis in 1944. Thus, even apart from any evidence that could be developed on remand showing that the veteran was exposed to mustard gas or other toxic chemicals during service or otherwise sustained an injury during service that could have affected his respiratory system, there is sufficient evidence to warrant a VA examination in conjunction with the claim. The medical evidence now on file indicates that the veteran has exhibited currently an abnormality of his lungs that may be related to respiratory-related illnesses that he had during service. However, the claims file contains no statement of a medical opinion about whether the veteran now has a disorder of the lungs or other respiratory problem and if so, whether the current disorder is causally related to his service. The VA examination to be obtained on remand should be performed only after the RO has made all appropriate efforts to associate with the file any outstanding VA and private medical records that are pertinent to the claim. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(1)-(3). The Board observes that additional due process requirements may be applicable as a result of the enactment of the VCAA and its implementing regulations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002) and 66 Fed. Reg. 45,620 (Aug. 29, 2001) (38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). Accordingly, this case is REMANDED for the following actions: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the VBA AMC. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The VBA AMC must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), Veterans Benefits Act of 2003, Pub. L. 108-183 ,§ 701, 117 Stat. 2651, ___ (Dec. 16, 2003) (codified at 38 U.S.C.A. § 5103), and any other applicable legal precedent. The VBA AMC should provide the appellant with notice concerning the kind of evidence or other information that is required to substantiate his claim of entitlement to service connection for a respiratory disorder, to include as due to mustard gas exposure. The notice must contain all information and advice required in fire-related cases by M21-1, Part III, and by applicable judicial precedent. Thus, the notice must serve to inform the appellant that because his service personnel records are unavailable and presumed destroyed, proof of his exposure to mustard gas or other toxic chemicals during service may be accomplished by statements from fellow service members, his own writings (e.g., letters) during service, and other forms of alternate evidence. The notice must contain a list of the alternate forms of evidence described in M21-1 as evidence that should be resorted to in fire- related cases. The notice must be accompanied by NA Form 13075, Questionnaire About Military Service, and must contain a request that the appellant complete and return this form. The notice must indicate which evidence the appellant is finally responsible for obtaining and which evidence VA will attempt to obtain on his behalf and must meet the other requirements for such notices set forth in 38 U.S.C.A. § 5103 (West 2002) and 38 C.F.R. § 3.159(b) (2002). Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must ask the appellant to submit all evidence in his possession that is pertinent to the claim. 3. The VBA AMC should write to the appellant and ask him to identify as best he can any medical treatment or examination that he has had for a lung or other respiratory condition since April 2004. 4. After securing any needed releases from the appellant, the VBA AMC should make efforts to secure all records to which he refers in response to the notice requested in Paragraph 2 or to the inquiry requested in Paragraph 3. The VBA AMC should document in the claims file the actions that were taken to secure these records and should provide appropriate notice to the appellant regarding records that could not be obtained. 5. Then, the VBA AMC should schedule the appellant for a VA respiratory examination by a specialist in respiratory diseases including on a contract or fee basis if necessary for the purpose of ascertaining the nature, extent of severity, and etiology of any respiratory disorder(s) which may be present and whether they are secondary to possible mustard gas exposure in service. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination(s). The examiner must annotate the examination report(s) that the claims file was in fact made available for review in conjunction with the examination(s). Any further indicated special studies must be conducted. It is requested that the examiner address the following medical issues: Is it at least as likely as not that any chronic acquired respiratory disorder(s) found on examination is/are related to service on any basis, including exposure to mustard gas? Any opinions expressed by the examiner must be accompanied by a complete rationale. 6. Thereafter, the VBA AMC should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the VBA AMC should review the requested examination report(s) and required medical opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the VBA AMC should implement corrective procedures. The Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). 7. After undertaking any development deemed essential in addition to that specified above, the VBA AMC should readjudicate the claim of entitlement to service connection for a chronic acquired respiratory disorder, to include as a result of mustard gas exposure. The VBA AMC must determine whether the evidence shows that the appellant was exposed to mustard gas or other toxic chemicals during service. The VBA AMC must consider the claim under all theories of entitlement reasonably applicable thereto. See Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000). If the benefit requested on appeal is not granted to the appellant's satisfaction, the VBA AMC should issue a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations pertinent to the claim currently on appeal. 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 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 VBA AMC; however, the veteran is hereby notified that failure to report for any scheduled VA examination(s) without good cause shown may adversely affect the outcome of his claim of entitlement to service connection for a chronic acquired respiratory disorder and may result in a denial. 38 C.F.R. § 3.655 (2003). _________________________________________________ RONALD R. BOSCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the CAVC. 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) (2003).