Citation Nr: 1736167 Decision Date: 08/30/17 Archive Date: 09/06/17 DOCKET NO. 15-40 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for a respiratory disability, to include as due to exposure to mustard gas and Lewisite during military service. WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1943 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. A Board hearing was held in July 2016, by means of video conferencing equipment before the undersigned Veterans Law Judge. A transcript of the hearing testimony is in the claims file. In December 2016, the Board remanded this matter to the Agency of Original Jurisdiction for additional development. It has since been returned to the Board for appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the Veteran's asthma arose during and is related to his chemical exposure during military service. CONCLUSION OF LAW The criteria for service-connection for asthma have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.316 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for a respiratory disability, claimed as due to in-service exposure to mustard gas and Lewisite. The Veteran's VA treatment records during the relevant appeal period include a diagnosis of asthma, with active medications including inhalational therapy both daily and as needed. The Veteran thus has a current disability for VA service connection purposes. The Veteran asserts that during his basic training at Sheppard Air Force Base in Wichita Falls, Texas in 1943, his squad was marched onto a field and told that they would have gasses including Lewisite and mustard gas detonated in their midst, and that they were to put on gas masks when they first smelled the gas. The Veteran testified at the July 2016 Board hearing that his gas mask was defective and was later replaced, but that after the gas exposure, he experienced blistering of the hands and face for 3-4 weeks as well as burning of the eyes. He also described developing severe breathing problems within the month following this exposure and continued to have severe difficulty breathing throughout the rest of his Army career and into civilian life. He reported that he treated it on his own by boiling Vick's in water and breathing steam, taking over the counter drugs, and sucking on menthol lozenges, prior to eventually seeking treatment from a pulmonologist. Also at the Board hearing, the Veteran's spouse testified that they married shortly before the Veteran's active duty, and that she witnessed his respiratory discomfort during and after service. She remarked that she had thought the Veteran's difficulties breathing had resulted in lessened physical endurance which may have contributed to an incident later in service where he severely injured his knee during physical training. In developing this case, VA has made a number of attempts to verify the Veteran's claimed exposure to mustard gas. The Veteran's name was not found in the U.S. DoD and VA Chemical Biological Warfare Exposure System. Inquiries made to the Compensation Service mustard gas manager additionally did not produce information concerning whether mustard gas and Lewisite were used/tested at Sheppard Air Force Base during the time the Veteran was reportedly stationed there for basic training. While the Board could again remand this case in an attempt to verify the Veteran's claimed in-service exposure to mustard gas, given the Veteran's advanced age and the fact that the vast majority of his service medical records are unavailable, and the fact that the remand would require the same inquiry to the same entity that failed to directly answer the question presented in the last remand, such action is found inadvisable at this time. It is found that when resolving all reasonable doubt in the Veteran's favor, service connection may be granted on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). It is noted that the Veteran's service treatment records were largely destroyed in a fire at the National Personnel Records Center in St. Louis, Missouri in 1973. The Veteran has consistently reported that he never suffered any breathing difficulties prior to military service. The Veteran is competent to report on the respiratory symptoms he experienced during and since service, as is his spouse regarding her observations of the Veteran's condition. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). While it remains unclear whether the Veteran was specifically exposed to mustard gas and Lewisite during basic training, the Veteran is competent to report that his training involved the emergency donning of gas masks and exposure to gases. The Veteran has consistently described this training exercise, as well as his respiratory problems since that time. The Board finds that the evidence has at least reached the point of equipoise so as to allow for resolution of doubt in favor of the Veteran in finding that a grant of service connection for asthma is warranted. It is acknowledged that the Veteran has disagreed with the characterization of his respiratory disorder as asthma, and instead has stated variously that he suffers from emphysema and that doctors have told him that his respiratory condition was as bad as or worse than emphysema. Review of the available medical records, however, includes no current or prior medical history of emphysema, and rather lists "asthma" among the past and active problem lists. Other than the Veteran's lay statements, the only mention of emphysema is a notation in the medical records that the Veteran had a family history of emphysema. The Board therefore finds that the evidence of record weighs against a finding that the Veteran has a current disability of emphysema during the relevant appeal period. ORDER Service connection for asthma is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs