Citation Nr: 1635770 Decision Date: 09/13/16 Archive Date: 09/20/16 DOCKET NO. 06-38 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a gastric disability. 2. Entitlement to service connection for an acquired psychiatric disability. 3. Entitlement to service connection for fatigue, claimed as chronic fatigue. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD C. Orie, Associate Counsel INTRODUCTION The Veteran served in the United States Marine Corps from February 1972 to February 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In that decision, the RO denied the Veteran's service connection claim for a gastric disability, and acquired psychiatric disability, and chronic fatigue syndrome. The Veteran disagreed with that decision and perfected this appeal. The Veteran and his wife provided testimony before a Veterans Law Judge at a hearing in March 2008. A transcript of the hearing is in the claims folder. The Veteran died in December 2011. The Appellant, the Veteran's surviving spouse, has been accepted as the Veteran's substitute for purposes of processing the above identified claim that was pending at the time of the Veterans death. See VA Memorandum dated June 12, 2012. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran is a confirmed participant of Project SHAD/112 testing that took place at Dugway Proving Ground during September and October 1973. 2. Resolving reasonable doubt in favor of the Veteran, the Veteran's gastroesophageal reflux disease (GERD) was as likely as not related to his period of military service, to include his exposure to hazardous environmental agents employed in Project Shad. 3. Resolving reasonable doubt in favor of the Veteran, the Veteran's adjustment disorder with anxiety and depressed mood was as likely as not related to his period of military service, to include his exposure to hazardous environmental agents employed in Project Shad. 4. Resolving reasonable doubt in favor of the Veteran, the Veteran's fatigue syndrome was as likely as not related to his adjustment disorder with anxiety and depressed mood. CONCLUSIONS OF LAW 1. The criteria for establishment of service connection for GERD, to include as due to exposure to harmful environmental agents employed during Project SHAD, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 2. The criteria for establishment of service connection for adjustment disorder with anxiety and depressed mood, to include as due to exposure to harmful environmental agents employed during Project SHAD, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 3. The criteria for establishment of service connection for fatigue syndrome, to include as due to exposure to harmful environmental agents employed during Project SHAD, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. §3.159 (2015). To the extent that there may be any deficiency of notice or assistance with respect to the Appellant's claims, there is no prejudice to the Appellant in proceeding with adjudication given the favorable nature of the Board's decision. Service Connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; in-service occurrence or aggravation of a disease or injury; and a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Project SHAD was part of a larger effort called Project 112 which was a comprehensive program initiated in 1962, by the Department of Defense (DoD) to protect and defend against potential chemical and biological warfare threats. Project 112 tests involved tests conducted on land rather than aboard ships. See Veterans Benefits Administration (VBA) Adjudication Manual M21-1, IV.ii.1.I.7.a. Project SHAD involved service members from the Navy and Army and may have involved a small number of personnel from the Marine Corps and Air Force. Service members were not test subjects, but rather were involved in conducting the tests. DoD continues to release declassified reports about sea-and land-based tests of chemical and biological materials known collectively as "Project 112." There is no specific statute or regulation pertaining to the development of claims alleging participation in Project SHAD. The Veterans Health Care, Capital Asset, and Business Improvement Act of 2003, Public Law 108-170, provides participating Veterans with a thorough clinical evaluation and enhanced access to enrollment in the VA Health Care System, to include VA health care at no cost for any illness possibly related to their participation in that project. Veterans Health Administration (VHA) Directive 2004-016 (April 15, 2004) states that DoD has provided VA with declassified information concerning the test name, date, location, ship involved, names and service numbers of participating veterans, and identification of the exposure types. Information concerning the ships involved is published at http://www.va.gov/shad/. DoD estimates 6,000 veterans were involved, and has provided VA with the names of approximately 5,000 veterans who participated in the tests. VBA has contacted those individuals. Additionally, VBA has developed procedures to provide the claimant appropriate examination(s) for opinion regarding any relationship between the claimant's current disability and exposure to agents, simulants, tracers, and decontaminants used in the test(s) the claimant was involved in, to include a copy of all applicable DoD Fact Sheets for the test(s) the claimant participated in. M21-1, IV.ii.1.I.7.g. In rendering a decision on appeal, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. As a preliminary matter, the Board notes that in a previous decision, the Veteran was found to have participated in testing in Salt Lake City, Utah during September and October 1973. See Board Decision dated May 12, 2008. Thus, the outcome of this case turns on whether there is a competent and credible link between the Veteran's diagnoses and his period of service, to include his participation in testing in 1973. Gastric Disability The Veteran's service treatment records document his February 1973 treatment for symptoms of nausea after eating meals. He was prescribed Gelusil. Early post-service treatment records document the Veteran's complaints of nausea, stomach discomfort, abdominal pain, diarrhea, and vomiting. Treating physicians diagnosed GERD and gastroenteritis. See Private Treatment Records dated May 13, 1977, May 27, 1977, April 28, 1983, May 11, 1983, November 27, 1987, and September 30, 1991. An evaluation in May 1977 included an opinion that the Veteran had a very severe psychophysiological gastrointestinal disorder, and offered a diagnosis of probable functional gastrointestinal disorder. Notably, in September 1994, the Veteran reported to his treating physician that he had been injected with Atropine during service when exposed to biological warfare testing. Also notable, the Veteran was also treated for a headache disorder which has been service-connected. A June 2005 VA neurology examination offered an opinion that the Veteran's headaches were likely related to the stress of thinking exposure to chemical agents in service might be causing problems with himself and his family. Early in the appeal period, the Veteran was afforded a VA examination in relation to this claim. At that time, the Veteran was diagnosed with GERD, but no nexus was provided. See VA Examination dated June 16, 2005. Most recently, the Veteran was afforded a VA examination in relation to his GERD disability. The examiner noted that, during service, the Veteran did have one episode of GERD, but it resolved with no residuals. The examiner opined that the Veteran's post-service GERD disability was less likely than not related to any in-service testing. The examiner reasoned that the tests the Veteran claimed to have participated in were cancelled. See VA Examination dated December 15, 2012. Also of record are the Veteran's lay statements. The record demonstrates that, since the 1970s, shortly after this discharge from service, the Veteran has consistently claimed that his GERD symptoms began shortly after he finished his SHAD testing. In this case, the Board finds that the probative value of the 2012 VA examiner's opinion has little probative value as it is based on an inaccurate factual basis. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The 2012 examiner indicates that the Veteran's symptoms could not be attributed to any testing during service because such testing was cancelled. However, as noted before, the Board has already found that the Veteran did participate in testing during September and October 1973. On the other hand, the Veteran's lay statements of symptoms since shortly after testing are highly probative. Layno v. Brown, 6 Vet. App. 456, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran is certainly competent to attest to his symptoms he experienced. Moreover, the Board finds that the statements to be highly credible. The Veteran has reported the same statements since the 1970s. He has never wavered in his claim of continued symptoms since shortly after SHAD testing in 1973. In a prior Board decision, the Veteran was awarded service connection for headaches as due to the stresses caused by his exposure concerns. At about the same time treatment for headaches began, the Veteran's private treatment records reflect treatment for GERD which, according to one examiner, was assessed as a severe psychophysiological gastrointestinal disorder. As addressed below, the Board finds that the Veteran manifested an acquired psychiatric disorder due to the stresses caused by his exposure concerns. In totality, the record contains credible evidence suggesting the onset of GERD symptoms in service, confirmed exposure to chemical testing in service, headaches attributable to the stresses caused by his exposure concerns and GERD symptoms which are functional in nature - i.e., having a relationship to psychiatric issues. As there is no probative evidence against a finding that the Veteran's GERD disability is attributed to his 1973 participation in SHAD testing, the Board finds the evidence of record for and against the claim to be at the very least in relative equipoise. When the evidence for and against the claim is in equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015). Acquired Psychiatric Disability A medical opinion was sought in January 2013 to determine the nature and etiology the Veteran's psychiatric disability, if any, prior to his death. The examiner diagnosed adjustment disorder with anxiety and depressed mood and opined that the disability was causally related to the Veteran's confirmed participation in SHAD testing in September and October 1973. See VA Compensation and Pension Examination Report dated January 14, 2013. The Board finds that service connection for adjustment disorder with anxiety and depressed mood is warranted based on the 2013 VA Report. The benefit-of-the-doubt rule is applicable in this case and the benefit sought on appeal is allowed. Fatigue Syndrome The Veteran's treatment records demonstrate diagnoses of chronic fatigue syndrome. See Private Treatment Records dated November 21, 1988. The Veteran was afforded a VA examination in 2005. The examiner diagnosed fatigue syndrome and opined that the disability was secondary to the Veteran's psychiatric disabilities. See VA Examination dated June 16, 2005. Given the favorable nexus opinion of the 2005 VA examiner, the Board finds that service connection for the Veteran's fatigue syndrome is warranted on a secondary basis. The above favorable decision establishes service connection for the Veteran's adjustment disorder with anxiety and depressed mood. Thus, any disability stemming from the service-connected psychiatric disability is also service connected. 38 C.F.R. § 3.310(a). ORDER Entitlement to service connection for GERD is granted. Entitlement to service connection for adjustment disorder with anxiety and depressed mood is granted. Entitlement to service connection for fatigue syndrome is granted. ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs