Citation Nr: 1303229 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 09-23 342A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for diabetes mellitus. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a lung disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from October 1961 to October 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of August 2008. In September 2012, the veteran appeared at a hearing held at the RO before the undersigned (i.e., Travel Board hearing). The Veteran appears to have raised the issue of whether new and material evidence has been received to reopen a claim for service connection for a right ankle condition, status post amputation. This matter has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the claim, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Evidence received since the May 2003 RO decision denying service connection for diabetes mellitus does not relate to an unestablished fact necessary to substantiate the claim. 2. Evidence received since the September 2005 RO decision denying service connection for a lung disorder does not relate to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim for service connection for diabetes mellitus. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 2. New and material evidence has not been received to reopen the claim for service connection for a lung disorder. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Assist and Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In a letter dated in June 2008, prior to the adjudication of the claims, the RO notified the Veteran of the information necessary to substantiate his application to reopen the previously denied claims, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). He was told that the evidence must show a relationship between his current disability and an injury, disease or event in military service. He was advised of various types of lay, medical, and employment evidence that could substantiate his service connection claims. In addition, this letter explained the bases for the previous denial of the claim, and that new and material evidence had to relate to those factors. See Kent v. Nicholson, 20 Vet.App. 1, 10 (2006). In addition, the letter provided information regarding assigned ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). When conducting a hearing, a Veterans Law Judge must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2011). The Veterans Law Judge also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record. Here, during the hearing, the Judge discussed the elements required to reopen the claims, focusing on the missing elements. The Veteran's contentions discussed in detail. Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103. With respect to the duty to assist, service treatment and personnel records have been obtained. VA records have been obtained, as have identified private records. The Veteran submitted additional evidence after his hearing, which was accompanied by a waiver of initial RO consideration. In November 2012, additional potentially relevant evidence discussed at the hearing, consisting of records of his treatment at Group Health Cooperative when he lived in Washington State, was received at the Board, accompanied by a waiver of initial RO consideration. A VA medical examination is not warranted because, in connection with a claim to reopen, the VCAA explicitly states that, regardless of any assistance provided to the claimant, VA does not have a duty to obtain a medical opinion if the claim is not reopened. 38 U.S.C.A. § 5103A(f) (West 2002); 38 C.F.R. § 3.159(c)(4)(C)(iii) (2011). Thus, the Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. New and Material Evidence The issues on appeal in this case have both been the subject of prior final RO denials. See 38 U.S.C.A. § 7105; DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (when a claimant fails to timely appeal an RO decision denying a claim for benefits, that decision becomes final and can no longer be challenged). If, however, new and material evidence is received with respect to a claim which has been disallowed, the claim will be reopened, and if so reopened, the claim will be reviewed on a de novo basis. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 27 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). If new and material evidence is received with respect to a claim which has been disallowed, the claim will be reopened, and if so reopened, the claim will be reviewed on a de novo basis. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 27 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In considering whether there is "new and material evidence," all evidence submitted since the last prior final decision, on any basis, must be considered. Evans. For this reason, the Board will discuss the evidence before and after the last final decisions as to each issue, without regard to the finality of earlier decisions. See Williams v. Peake, 521 F.3d 1348 (Fed. Cir. 2008) (pending status of a claim is terminated with a later final adjudication of an identical claim). Diabetes mellitus Evidence of record at the time of the last final decision included service treatment records, which did not show diabetes mellitus during service. On the separation examination in September 1964, urinalysis was negative for sugar. Service personnel records showed that the Veteran's occupational specialties during service were chemical warfare helper and smoke generator specialist. He was assigned to Dugway Proving Ground in Utah from January 1962 to July 1963, and then transferred for Fort Lewis, Washington, for the remainder of his active service. Neither service treatment records nor service personnel records showed that the Veteran had any service in Vietnam. On a VA examination in March 2002, the Veteran reported that he had been diagnosed as having diabetes mellitus in 1996. Currently, he had diabetes mellitus with nephropathy and neuropathy. VA treatment records dated from December 2001 to February 2003 were also of record, including a December 2002 Project SHAD medical evaluation. The Veteran stated that he had received a letter from the Department of Defense notifying him of possible exposures. He said he had worked at the Deseret and Dugway testing grounds for chemical and biological weapons during most of his time in the service from 1962 to 1964. He said that he was involved in testing various agents, particularly chemical agents, and stated that he was not informed of the nature of them at the time. The assessment was potential chemical/biological weapons exposure during Project SHAD testing while working in Deseret and Dugway testing grounds in service, with multiple health concerns including diabetes mellitus and some exertional shortness of breath. Based on this evidence, the claim was denied in May 2003, on the grounds that diabetes mellitus was not shown in service, and that he had no service in Vietnam to support a grant based on presumptive exposure to Agent Orange. Moreover, no additional relevant evidence or information was received concerning the issue during the succeeding year. Therefore, the September 2005 rating decision is final. 38 C.F.R. §§ 3.156(b), 20.200, 20.202, 20.1103 (2011); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242 (2010). Evidence received since that decision includes the Veteran's assertions that he was exposed to Agent Orange during service, both at Dugway and during alleged covert operations to Vietnam. Specifically, in a November 2004 written statement, the Veteran said that while at Dugway, he was used in tests to check dispersal rates on chemicals spread from aircraft, including defoliants Agent Orange and others. In April 2005, when seen at a VA facility, the Veteran reported that he had been involved in chemical testing at Dugway, including in chemical dispersion tests using Agent Orange. VA treatment records show that in June 2008, the Veteran said he had been subjected to a variety of tests in the field with different chemicals, which he believed included Agent Orange. In March 2011, C. H. wrote that he had been stationed with the Veteran at Dugway in 1962 and 1963. He said that they were in many chemical tests together, including tests of herbicides and Agent Orange dispersal. In a statement dated in August 2012, the Veteran wrote that while at Dugway, he underwent training for chemical biological warfare, and was also subjected to testing. He said he made smoke with various chemicals including defoliants Agent Orange, Blue and Purple. He also participated in dispersal tests for Agent Orange from aircraft on grids without protective clothing. He also said that while at Dugway, he was sent to Vietnam to teach the 22nd SAS how to use chemicals to protect perimeters and booby trap trails and tunnels. This was done as a "black ops." He had to do the same thing again in 1964 with the 13th RRU. At his hearing before the undersigned, the Veteran testified that he was exposed to Agent Orange at DPG in 1962 and 1963. He described placing large sheets of paper that were used to collect dispersals of Agent Orange from airplanes and helicopters under various conditions, so that the dispersion rate could be analyzed. He states he was dressed in tee shirts and shorts with no protection. He also testified that he was sent to Vietnam on two covert operations to train special forces units in the use of chemical weapons. He states that the first unit was the 22nd SAS, which he said was a unit from Great Britain. He said that he attempted to contact them but that they denied ever having been in Vietnam. On his second trip, he said that he had done the same thing with a Marine unit. He stated that these operations were in 1963 and 1964. He said that there was no written record of the covert operations, that no one had been told of the operations, and that he did not know anyone still living who had participated in the missions. He was advised by the undersigned VLJ to attempt to obtain some evidence supporting his claim that he went to Vietnam, such as evidence of immunizations for tropical diseases before going to Vietnam. The Veteran also testified that when he had initially been diagnosed as having diabetes mellitus in 1996, his doctor asked him if he had ever been exposed to Agent Orange, because there was no diabetes in his family. He said yes, and the doctor told him that more than likely, Agent Orange had caused his diabetes mellitus. This treatment was provided by a private source, and the Veteran was advised to obtain the records or a statement from the doctor. In response, the Veteran submitted copies of his in-service immunization records, but these records are duplicative of the immunization records already associated with the service treatment records, and, thus, are not new. The Veteran also attempted to obtain the 1996 diabetes records, but this attempt was apparently unsuccessful. In this regard, he submitted records of his treatment at Group Health Cooperative in Washington State, but these records were dated from August 1979 to November 1981, and showed treatment primarily for skin conditions. In particular, there was no record of diabetes mellitus, or any history of in-service circumstances. In evaluating whether evidence is "new and material," the credibility of that evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Nevertheless, the Court has also clarified that "Justus does not require the Secretary to consider the patently incredible to be credible." Duran v. Brown, 7 Vet. App. 216 (1994). With respect to the Veteran's contention that he was exposed to Agent Orange at Dugway, the VA Public Health web page lists herbicide tests and storage in the U.S., based on information provided by the DoD. According to this information, the only use of herbicides in Utah consisted of small plot experiments of LN phenoxy agents in 1945. In Washington state, the Veteran was stationed at Fort Lewis; defoliation tests were conducted in Prosser, Washington, in 1950-51, separated from Fort Lewis by not only 200 miles, but a mountain range. Moreover, in earlier statements, the Veteran stated he was unaware of the specific chemicals to which he was exposed at Dugway. Neither the Veteran nor his fellow serviceman, C.H., has provided any factual basis for the allegations that they were exposed to Agent Orange at Dugway. Thus, the Board finds the Veteran's assertion to be patently incredible. Concerning his purported covert trips to Vietnam, there is nothing in the service personnel records to lend any support to this assertion. There is no indication that he had, as he claims, a high security clearance. Owing to reductions in rank, he did not advance beyond Private 1st Class, E-3, and his duties were noted to be smoke generator operator and smoke generator operator helper; there is no indication that he advanced to the point where he was involved in training other servicemen. There is no indication that he had any foreign service, including to any other locations which could provide a cover to explain any absences from his unit. He states that both of these missions were from Dugway, but he also states they took place in 1963 and 1964, and he was transferred to Fort Lewis in July 1963. Here, we are faced with his service records that establish that he had no foreign or sea service. His attempt to revisit a previously established fact is not new and material. The Veteran himself admitted that there is no evidence of his trips to Vietnam, and there is in fact no evidence which would tend to corroborate or support his allegation. Thus, the Board finds the Veteran's allegations to be patently incredible. The Veteran also stated that when he was initially diagnosed as having diabetes mellitus in 1996, his doctor told him that it was likely due to Agent Orange, because he had no family history of diabetes, and he told the doctor he had been exposed to Agent Orange. The Veteran was advised to submit evidence from the doctor and did not. Since it is established that he did not service in Vietnam, his recollection of events, based upon facts which did not happen, does not constitute new and material evidence. New and material evidence relevant to this claim, that he was exposed to Agent Orange in service, has not been received. In this regard, at the time of the prior decision, the record included his claim, a post-service diagnosis of diabetes mellitus and service department records which showed no foreign service. The agency of original jurisdiction specifically considered the possibility of Agent Orange exposure and Vietnam service. The Board finds that new and material evidence has not been presented, and the prior claim is not reopened. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Lung Disorder Evidence of record at the time of the last final decision included service treatment records, which showed that the Veteran was seen in September 1962 with an upper respiratory infection (URI) and shoulder pain. He was to be admitted for a rest cure over the weekend. The cover sheet pertaining to the hospitalization shows that he was hospitalized for six days, with a final diagnosis of upper respiratory infection. On the separation examination in September 1964, the Veteran reported occasional chest pain and shortness of breath. He had decreased breath sounds on the right, not disqualifying. Chest X-ray was negative. Service personnel records showed that the Veteran's occupational specialties during service were chemical warfare helper and smoke generator specialist. He was assigned to Dugway Proving Ground in Utah from January 1962 to July 1963, and then transferred for Fort Lewis, Washington, for the remainder of his active service. After service, on a VA examination in March 1973, he said that he had been hospitalized for approximately a week for some type of pulmonary congestion, but that no definite diagnosis was made. VA treatment records dated from December 2001 to February 2006 were also of record, which showed that in December 2002, the Veteran underwent a Project SHAD medical evaluation. He stated that he had received a letter from the Department of Defense notifying him of possible exposures. He said he had worked at the Deseret and Dugway testing grounds for chemical and biological weapons during most of his time in the service from 1962 to 1964. He said that he was involved in testing various agents, particularly chemical agents, and stated that he was not informed of the nature of them at the time. He believed that he was involved putting materials together for Operations Eager Belle I and II, Autumn Gold, and possibly Flower Drum. He stated that he had problems including increased frequency of nosebleeds, as well as one episode of a pulmonary or respiratory illness with high fever, myalgias, and arthralgias, for which he was on bed rest for at least a week. He reported some mild progressive shortness of breath since service. The assessment was potential chemical/biological weapons exposure during Project SHAD testing while working in Deseret and Dugway testing grounds in service, with multiple health concerns including diabetes mellitus and some exertional shortness of breath. Further testing, including a chest X-ray and pulmonary function tests, was to be obtained. On a February 2003 follow-up note, the physician reported that restrictive airways disease had been diagnosed on pulmonary function tests in January 2003. Chest X-rays in February 2003 showed low lung volumes; the impression was unremarkable chest radiograph. J. R., M.D., who was the Veteran's primary care doctor at Group Health, wrote, in March 2004, that the Veteran clearly had a chronic and progressive dyspnea on exertion. He was in perfect health when he entered the military, but on his exit examination, in September 1964, he had decreased breath sounds on the right. His shortness of breath and progressive dyspnea started while he was in service. Currently, a work-up was in progress to further define the physiology of it. Records from Group Health Cooperative dated from February to July, 2004, showing the Veteran's work-up for his respiratory complaints, by J. R., M.D., and P. C., M.D., were of record, and showed that in February 2004, the Veteran was seen by Dr. R. He reported increasing shortness of breath on exertion. He said that he had had shortness of breath since his discharge from service. He said he worked on Project SHAD, and was exposed to gases frequently without protection. Dr. R. looked at pulmonary function tests in January 2003, which showed severe restrictive defect, and the assessment was that he had severe restrictive pulmonary disease. He was referred to the chest clinic for further evaluation. He was evaluated by P. C., M.D., in March 2004. The Veteran reported an extensive history of occupational and military exposure to a variety of aerosolized chemicals and substances. While in the military, he was in the chemical corps and worked in a Death Chamber, administering a variety of chemical gasses without wearing a mask for several years. The gasses included tear gas, riot control gas, soda ash, and a variety of bleach. He was unable to recall many of the specific compounds involved, but he distinctly remembered several lives were lost on the same day due to phosphodiester inhibitor type of poisoning. He described the military use of chickens and sheep as sentinels during clean up of gas chambers. After service he worked in ship yards and in boiler rooms with asbestos exposure for five years. Also, he had worked as a machinist and in a "chop shop," and had been exposed to metals, cutting fluids, aluminum, platinum, and asbestos-containing brakes. He never wore masks with these occupational exposures. It was noted that he had underlying symptoms of chronic and progressive dyspnea on exertion. He had multiple occupational exposures to various gases and industrial pollutants, including asbestos. Pulmonary function tests disclosed moderate restrictive air flow limitation, consistent with a component of obesity related changes. Chest X-ray showed small lung volumes, but otherwise unremarkable interstitial markings. There was a suggestion of pleural thickening. The impression was dyspnea on exertion, multifactorial, chronic by history, and significant asbestos exposure history with suggestion of pleural thickening; history of multiple chemical exposures during the military and during his past occupational exposure as a machinist and in a "chop shop"; restrictive air flow limitation, partly due to obesity, with a likely additional components and contribution due to past occupational exposure. Later in March 2004, Dr. R. saw the Veteran again, and reported an assessment of persistent shortness of breath and progressive dyspnea since being in the military working with chemicals. In July 2004, a follow-up evaluation was provided by Dr. C. Due to inconsistent results on the January 2003 and March 2004 pulmonary function tests, new pulmonary function tests were obtained in July 2004. His underlying primary diagnoses were dyspnea on exertion, chronic, stable, and multifactorial, with significant overweight and possibly pleural thickening with history of asbestos exposure and chemical exposure while in the military. The interpretation of the pulmonary function tests was predominantly mild to moderate restrictive airflow limitation. Part of the restriction may well derive from his obesity. The parameters could also be consistent with history of pleural thickening due to asbestos exposure. Also of record was a November 2004 statement from the Veteran, detailing his allegations of his in-service chemical exposure. He said that while at Dugway, his duties included being a test subject in many types of chemical tests, including riot control agents CS and ANDM. He was also used in tests to check dispersal rates on these and other chemicals spread from aircraft that included defoliants Agent Orange and others. He also took part in mosquito tests listing time, area, and rate of bites. All tests were run without gas masks or protective clothing. Chemicals used were in the form of ampules, grenades, canisters, and aerial sprays. He worked on Project SHAD at Dugway and at Tooele Army Depot. At Dugway, spray patterns were tested At Tooele, chemicals were transferred from bunker to truck for shipment. Bunkers were unguarded and work was done without protective clothing or masks. Testing included nerve agents. On one test, he got gassed and wound up in the infirmary, which was on his record as a upper respiratory infection. He said that he was in total isolation and darkness for 7 days. He was told that he would have trouble with one lung but that the other would make up for it. He stated that he had been short of breath ever since. He said that his duties also included mixing napalm and mixing different chemicals with fog oil, and to make smoke using riot control agents for training troops, and with DDT to control mosquitoes. Making smoke with riot control agents was done at Dugway, Fort Lewis, and Yakima between 1962 and 1964. The Department of Defense was provided with the Veteran's dates and circumstances of service, including his allegations of chemical exposure, and that he had been involved in putting together materials for Operations Eager Belle I and II, Autumn Gold, and possibly Flower Drum. In July 2005, the DoD reported that the Veteran was assigned to DPG (Dugway Proving Ground) with the 45th Smoke Generator Company during 1962 and 1963. No Project 112 tests occurred at DPG during this time. There was no other information in the documentation provided indicating that the Veteran participated in Project 112/SHAD testing; thus, he was not a SHAD Veteran. In April 2005, the Veteran was seen at a VA facility. He reported that he had learned about Project 112 testing at Dugway, and had been involved in testing of riot control agents, anti-personnel chemicals, and chemical dispersion tests using Agent Orange. He said he spent 7 days in hospital in 1962. He said he was exposed to nerve agents after decontaminating dead animals; four individuals died. Based on this evidence, the Veteran's claim was denied in September 2005. The RO noted that the Veteran's lung disorder was not a presumptive disease for radiation exposure or herbicide exposure. The RO also noted the medical statements in the Veteran's favor, but also reported the DoD evidence that no Shad/112 tests were conducted at Dugway during the time the Veteran was there, and that he was not listed by DoD as having participated in such tests. After that, in November 2005, the Veteran was seen in a VA Deployment and Environmental Health Clinic. He wanted the doctor to know that the VA stated he was not in a location where he was exposed to any chemical/ biological agents including Agent Orange. He did not think he was exposed to radiation. The Veteran submitted a notice of disagreement in January 2006. A statement of the case was furnished in March 2006. The RO found that the positive nexus opinion was based on a reported exposure history which had not been verified, and, therefore, was not probative evidence of a nexus. The Veteran did not perfect the appeal with a timely substantive appeal. Moreover, no additional evidence or information was received concerning the claim during the succeeding year. Therefore, the September 2005 rating decision is final. 38 C.F.R. §§ 3.156(b), 20.200, 20.202, 20.1103 (2011); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242 (2010). Evidence received since that decision includes a copy of a paper entitled A List of chemical, Biological, and Smoke Compounds Released in the Open Atmosphere at Dugway (1942-1995), prepared in April 1995. This multi-page list does not, however, contain any dates that the "test materials" were released into the atmosphere, nor is the source of the information identified. The Veteran also submitted a newspaper article about the testing at Dugway, but this article did not refer to the time period in which the Veteran was stationed at Dugway. Similarly, an article from Wikipedia concerning the Dugway Proving Ground did not refer to the relevant time period. This evidence of emissions at Dugway Proving Ground does not refer to the time period that the Veteran was stationed at the facility, let alone corroborate any of the specific incidents in which the Veteran states he was exposed to hazardous compounds; therefore, it is not material. In July 2008, the Veteran's ex-wife wrote describing the Veteran's activities in service concerning chemical tests. She stated, however, that she met the Veteran after he got out of service, and, therefore, she does not have any actual knowledge of the events. Because she is simply reporting what she was told by the Veteran, her statement is no more credible or probative than the Veteran's statements. In other words, her statement has no independent probative value. Also received was a statement from a VA physician, dated in December 2008, who wrote that the Veteran was suffering from restrictive lung disease, not explainable by neuromuscular disease. He had been exposed to toxic chemicals at Dugway, and was hospitalized for a pulmonary condition. It was more likely than not that his current pulmonary condition was related to this lung injury. VA treatment records show that this same physician saw the Veteran in June 2008, for a routine primary care visit. At that time, that the Veteran had decreased lung capacity since military project 112, was gassed in the field, had lung effusion and was hospitalized in 1962 with fluid on the lung, and was subjected to a variety of tests in the field with different chemicals, and felt he had been subjected to Agent Orange. He was referred for a pulmonary consult in July 2008. He had a history of hospitalization in the 1960's for left-sided pleural effusion, and now presented to the clinic with left pleural thickening. A chest X-ray had been performed in June, which was concerned with a new left pleural effusion and mid-left lung atelectasis. Now had computerized tomography (CT) scan had been performed which was negative for pulmonary embolism, but showed chronic left pleural thickening with mild amount of fluid. He reported a daily cough, and frequent choking sensation which made it difficult to breathe and had been there sinc the 1960s when he said he was exposed to multiple hazardous chemicals when in the military. He said that he wore protective gear but that it was defective. He recalled a hospitalization around that time with a respiratory infection complicated by a left effusion which required drainage, but did not remember being diagnosed with an empyema. He was unaware of any prior asbestos exposure. He reported dyspnea on exertion which had been stable for many years. The impression was left sided pleural thickening with small amount of fluid on chest CT. These findings may be secondary to previous infection and resulting scarring, or may represent prior exposure to asbestos and related pleural disease. There was no obvious explanation seen on current CT to explain the pulmonary function tests in 2003 which showed moderate restrictive lung disease. Pulmonary function tests showed restrictive disease. A neurology consult was obtained in November 2008, for evaluation of restrictive lung disease, rule out neuromuscular cause. The Veteran reported having progressively increasing dyspnea since a series of chemical exposures at Dugway Military Depot in 1962. A CT scan in October 2008 showed a small left pleural effusion and pleural thickening with associated atelectasis and changes consistent with pulmonary arterial hypertension. The pulmonary physicians felt some of the pleural thickening and fluid may be due to pervious infection resulting in scarring or may represent prior exposure to asbestos and related pleural disease. The moderate restrictive lung disease appeared out of proportion to his CT findings and may reflect an element of obesity hypoventilation. In December 2008 it was noted that testing had not found any evidence of myopathy. The primary care provider in December 2008 noted decreased breath sounds throughout the chest. The assessment was restrictive lung disease not due to muscular disease. In March 2011, C. H. wrote that he had been stationed with the Veteran at Dugway in 1962 and 1963. He said that they were in many chemical tests together using smoke, DDT, riot control agents, herbicides, Agent Orange dispersal, decontamination of nerve agents, and mosquito tests. Some tests were part of Project 112. He said the Veteran also spent time in the hospital for lung problems from chemical exposure. In a statement dated in August 2012, the Veteran wrote that while at Dugway, he underwent training for chemical biological warfare, and was also subjected for testing. He described being forced to wear chemically impregnated underwear; mosquito tests in which he had to count the bites of mosquitoes contaminated with fever, tear gas tests without masks. He made smoke with various chemicals including tear gas, insect killer and defoliants Agent Orange Blue and Purple. He got gassed on a "decon mission," and spent a week in total isolation except for blood draws, which was reported in his record as a respiratory infection. When released, he was told his lungs would harden on the outside due to the chemical exposure. He now had restrictive lung disease. He was also sent to Vietnam to teach the 22nd SAS how to use chemicals to protect perimeters and booby trap trails and tunnels. This was done as a "black ops." He had to do the same thing again in 1964 with the 13th RRu. This contention is addressed above in the discussion of the diabetes mellitus issue. At his hearing before the undersigned, the Veteran said he first started having breathing problems in service, and continued thereafter. The Veteran's allegations of continuity of symptomatology since service were considered and rejected at the time of the prior final decision. His statements of the circumstances of his claimed chemical exposure were considered at the time of the prior decision as well. His current allegations are cumulative, and, hence, not new. A VA physician wrote, in December 2008, that he had been exposed to toxic chemicals at Dugway, and was hospitalized for a pulmonary condition, and it was more likely than not that his current pulmonary condition was related to this lung injury. The pattern of this opinion follows that of the opinion provided in March 2004, specifically, the primary care physician who wrote with a positive nexus opinion, which was not corroborated by the in-depth evaluations by pulmonary specialists. Thus, this evidence is cumulative. In this regard, the December 2008 opinion was based on the same evidence which was previously of record. New arguments based on the same evidence of record at the time of the previous final denial do not constitute new and material evidence. Untalan v. Nicholson, 20 Vet. App. 467 (2006). The evidence previously of record showed that the military has concluded that the Veteran did not participate in Project SHAD. Moreover, according to the VA Public Health web page, to date, there is no clear evidence of specific, long-term health problems associated with participation in Project SHAD. In short, the additional evidence received since the last prior decision concerning service connection for a lung disorder is cumulative of evidence previously of record. Hence, the Board finds that new and material evidence has not been presented, and the prior decision remains final. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). (CONTINUED ON NEXT PAGE) ORDER The application to reopen a claim for service connection for diabetes mellitus is denied. The application to reopen a claim for service connection for a lung disorder is denied. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs