Citation Nr: 0705525 Decision Date: 02/26/07 Archive Date: 03/05/07 DOCKET NO. 04-33 492 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death, to include exposure to mustard gas. 2. Entitlement to Dependents' Educational Assistance pursuant to 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant and her daughters ATTORNEY FOR THE BOARD J. Parker, Counsel INTRODUCTION The veteran had active service from July 1943 to December 1945. The appellant is the surviving spouse of the veteran, who died in March 2002. The case comes before the Board of Veterans' Appeals (Board) from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This claim has been advanced on the Board's docket. The Board notes that on June 9, 2005 the appellant and her daughters presented testimony during a personal hearing before the undersigned Veterans Law Judge (VLJ), sitting at Montgomery, Alabama. A copy of the hearing transcript issued following the hearing is of record. This claim was previously remanded by the Board in August 2005 to comply with due process notice requirements and for the development of additional evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. REMAND A previous Board remand dated in August 2005 requested the RO to further develop this claim, including development pursuant to VA Manual (then M21-1) procedures. The Board notes that the RO undertook to request additional information from the appellant that included requesting the appellant to submit a NA Form 13055 (Request for Information Needed to Reconstruct Medical Data), and that the appellant did not complete this form or supply the information requested. Notwithstanding the fact that the appellant did not provide the information requested by returning NA Form 13055, based on the information about the veteran's service that is already of record, a search of the Department of Defense (DOD) mustard gas database(s) should be made. Because the appellant's contention is that the onset of the veteran's fatal lung disease (chronic obstructive pulmonary disease) was caused by exposure to mustard gas during his honorable service in World War II, records documenting the claimed exposure are crucial to the claim. VA has further enumerated responsibilities in the development of mustard gas claims, which includes verification of the veteran's participation in mustard gas experiments during service. VA has procedures in place to develop claims of exposure to mustard gas. The development procedures were revised, and are now outlined at M21-1MR, Part IV, Subpart ii, Chapter 1, Section F (revised December 13, 2005). Historically, these procedures were outlined in M21-1, Part 3, Chapter 5, Subchapter II, Section 5.18. Service medical records are ordinarily stored at the National Personnel Records Center (NPRC) in St. Louis. In this case, the RO was informed that the veteran's service medical records were possibly destroyed in a 1973 fire at the NPRC, the 201 service personnel file was not available, and physical examinations could not be reconstructed. During his lifetime in 1993, the veteran completed a NA Form 13055 that indicated that he had received no medical treatment during service for claimed mustard gas exposure. While there are no medical records to corroborate exposure to mustard gas, the M21-1MR Manual (M21-1MR, Part IV, Subpart ii, Chapter 1, Section F (revised December 13, 2005)) indicates that VA has access to lists of service department personnel who were subjected to chemical weapons testing, and provides a contact point at the VA Compensation and Pension (C&P) Service to request C&P Service to review the Department of Defense (DOD) chemical exposure database to confirm or deny exposure to mustard gas. a. The Board assumes that, despite the change in names and request procedures, the C&P Service's review of DOD chemical exposure database now includes search of the database previously referred to (historical M21-1, Part III, Chapter 5) as the Defense Manpower Data Center (DMDC) database that included information on Army personnel who may have been exposed during World War II to mustard gas testing programs; if it does not, the RO should make a separate request for these records. b. Historical M21-1, Part 3, Chapter 5, Subchapter II, Section 5.18 f (4) also indicated that claims involving Army chemical weapons testing prior to 1955 could be developed by a check for records at the Army Chemical and Biological Defense Agency at Aberdeen Proving Grounds, Maryland. If the C&P Service's review of DOD chemical exposure database does not include a check for records at the Army Chemical and Biological Defense Command at Aberdeen Proving Grounds, Maryland, the RO should make a separate request for these records. Accordingly, the case is REMANDED for the following action: 1. The RO should undertake development as set forth above and as outlined in the M21-1MR, Part IV, Subpart ii, Chapter 1, Section F (revised December 13, 2005) to attempt to verify the veteran's participation in mustard gas experiments, including a request to the VA C&P Service to review the DOD chemical exposure database to confirm or deny the veteran's exposure to mustard gas. 2. The RO should insure that VA's review of mustard gas exposure databases includes all previously referenced databases. a) If the C&P Service's review of DOD chemical exposure database does not include a review of (what was previously referred to as) the DMDC database, the RO should make a separate request for these records. b) Likewise, if the C&P Service's review of DOD chemical exposure database does not include a check for records at the Army Chemical and Biological Defense Command at Aberdeen Proving Grounds, Maryland, the RO should make a separate request for these records. 3. If evidence that the veteran was exposed to mustard gas during his active service is found, the RO should refer the claims folder for review by a VA physician with the appropriate specialty. The specialist should review the relevant documents in the veteran's medical records and render an opinion as to whether it is at least as likely as not that the veteran's cause of death, including but not limited to chronic obstructive pulmonary disease, is etiologically related to his military service and any exposure to mustard gas that may have occurred during service. All pertinent clinical findings and the complete rationale for all opinions expressed should be set forth in a written report. 4. After completion of the above, the RO should readjudicate the appellant's claims for service connection for the cause of the veteran's death, to include as due to exposure to mustard gas, and for eligibility for Dependents' Educational Assistance pursuant to 38 U.S.C. Chapter 35. If the determinations remain unfavorable to the appellant, the RO should provide the appellant and representative with a supplemental statement of the case, and should afford an opportunity to respond before the case is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with the duty to assist a claimant. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2006). _________________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2006).