Citation Nr: 1725470 Decision Date: 07/06/17 Archive Date: 07/18/17 DOCKET NO. 09-35 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for testicular cancer claimed as due to exposure to chemicals, mustard gas, drugs, and radiation. 2. Entitlement to service connection for thyroid disability claimed as due to exposure to chemicals, mustard gas, drugs, and radiation. 3. Entitlement to service connection for skin disability claimed as due to exposure to chemicals, mustard gas, drugs, and radiation. 4. Entitlement to service connection for stomach disability claimed as due to exposure to chemicals, mustard gas, drugs, and radiation. 5. Entitlement to service connection for hepatic neuralgia claimed as due to exposure to chemicals, mustard gas, drugs, and radiation. 6. Entitlement to service connection for acquired psychiatric disability claimed as due to chemicals, mustard gas, drugs, and radiation. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD J. Seay, Counsel INTRODUCTION The Veteran served on active duty from September 1961 to September 1964. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2016). 38 U.S.C.A. § 7107 (a)(2). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Review of the claims file indicates that the Veteran has received disability benefits from the Social Security Administration since 1995. On remand, all SSA records must be requested. 38 U.S.C.A. § 5103A (b); 38 C.F.R. § 3.159 (c); see also Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); Loving v. Nicholson, 19 Vet. App. 96, 102 (2005). The Veteran contends that his disabilities are related to participation in a medical research study at the Edgewater Arsenal facility. Service personnel records confirm that the Veteran participated in a Medical Research Volunteer program at the United States Army Chemical Research and Development Laboratories, Army Chemical Center, Maryland, for the period of February 1, 1962 to March 2, 1962. It appears that the laboratories were located at Edgewood Arsenal. First, the Veteran has explained that he is unsure of what chemicals/gases/substances he was exposed to during his participation in the medical study at Edgewood Arsenal. The Adjudication Procedures Manual (M21-1 - Live Manual) notes that Edgewood Arsenal is a known location where Amy personnel were exposed to mustard gas or lewisite. See VBA Manual M21-1, IV.ii.1.F.1.b. Claims based on mustard agent or lewisite exposure received on or after January 19, 2005, must be sent to Muskogee AOJ for centralized processing. Id., IV.ii.1.F.2.a, b. The Veteran's claims for service connection were received after January 19, 2005. The Muskogee AOJ did not process the case. The electronic claims file must be transferred to the Muskogee AOJ for processing. Furthermore, development unique to mustard gas claims is described in the M21-1 Manual and must be completed by the Muskogee AOJ, to include sending a mustard gas development letter to the Veteran and, if required, requesting access to the U.S. Department of Defense (DoD) and VA Chemical Biological Warfare Exposure System (Chem-Bio) consolidated database for mustard gas or sending a request to Compensation Service. VBA Manual M21-1, Part IV, Subpart ii, 1.F.3. In addition, concerning exposure to other testing at Edgewood Arsenal, the M21-1 Manual notes that Chemical Biological Radiological Nuclear and Explosives (CBRNE) claims are claims in which a Veteran claims that a disease or injury resulted from participation in any test, chemical or biological, other than those involving mustard gas. VBA Manual M21-1, IV.ii.1.I.9.a. The manual notes that such tests were conducted at Edgewood Arsenal between 1955 and 1975, which includes the time period during which the Veteran served. Id. To verify participation in CBRNE tests, the AOJ is directed to consult DoD's online Chem-Bio Database or follow the procedure in M21-1, Part IV, Subpart ii, 1.I.9.g to submit the inquiry to Compensation Service. If verification is possible, the manual directs that an examination must be scheduled. The AOJ completed a request form, "Special Operations Forces Incident", regarding the Veteran's participation in a medical study at the Edgewood Arsenal from February 1, 1962 to March 2, 1962. The request asked about specific information to include whether the Veteran was given LSD, whether he was exposed to radiation, and to list all agents to which the Veteran was exposed. The claims file includes a December 2015 letter from the DoD Deputy Chief, Records and Declassification Center, which noted that the United States Army Edgewood Chemical Biological Center (ECBC) and U.S. Army Center of Military History (ACMH) may have files pertaining to the Veteran. The letter noted that ECBC and ACMH would be tasked with confirming any such records. March 2016 email correspondence from the VA DoD Liaison noted that there was a response from OSD. OSD contacted ECBC and ACMH requesting a search of electronic / paper archives for any confirmation of records pertaining to the Veteran. No evidence was located. However, the Board finds that it is appropriate to again request records of the chemicals, gases, and drugs used during the February 1962 to March 1962 period when the Veteran was involved in the study at the Edgewood Arsenal facility and not limited to Veteran-specific records. In addition, the Veteran asserted that he may have been exposed to radiation at Edgewood Arsenal. In this respect, the Veteran must be provided a VA notice letter concerning his claimed exposure to radiation and to submit any competent medical and/or scientific evidence indicating whether any claimed disability is a radiogenic disease. 38 C.F.R. § 3.311. In accordance with his response, additional development must be completed, including a request for service records pertinent to radiation exposure, to include DD Form 1141 (Record of Occupational Exposure to Ionizing Radiation) and request a dose estimate. Following the aforementioned development, the Board finds that VA medical examinations must be completed for the issues on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). Expedited handling is requested.) 1. The claims file must be sent to the Muskogee AOJ for centralized processing because the issues on appeal are claimed, in part, due to exposure to mustard gas agent and/or lewisite. See M21-1, Live Manual, Part IV, Subpart ii, Chapter 1, Section F, Topic 2, Blocks a and b (change date August 7, 2015). The Muskogee AOJ should perform any specific development unique to mustard gas claims as described in the VBA Manual: *Send a mustard gas development letter to the Veteran. *If deemed necessary by the facts of the case, the AOJ should perform the following additional development: Request access to the U.S. Department of Defense (DoD) and VA Chemical Biological Warfare Exposure System (Chem-Bio) consolidated database for mustard gas; forward requests for verification of full-body exposure to Compensation Service's mustard gas mailbox; and complete any other development needed if the Veteran is not listed in the Chem-Bio database. See VBA Manual, M21-1, Part IV.ii.1.F., b-e. 2. Send the Veteran a VA notice letter concerning radiation, the nature and circumstance(s) of his alleged exposure to radiation, and to submit any competent medical and/or scientific evidence concerning whether any of the claimed disabilities is a radiogenic disease and the letter should also advise the Veteran if he is claiming exposure to herbicides, to provide approximate dates, location(s) and nature of any exposure to herbicides. 3. Contact the SSA and request all records related to the Veteran's claims for disability benefits. Any negative response must be included in the claims file and the Veteran notified accordingly. 4. Consult DoD's online Chem-Bio Database and/or email the CBRNE mailbox if database is not available to verify the Veteran's participation in CBRNE testing. Document all efforts to verify participation. 5. Contact the DoD again and any other appropriate source to obtain any and all records/information from Edgewood Arsenal identifying what chemicals, drugs, gases or other substances were used during the period of February 1962 to March 1962. 6. Concerning any exposure to radiation for the claim of service connection for testicular cancer (and any other claimed disability that has been shown to be a radiogenic disease by competent medical and/or scientific evidence), develop the claim concerning exposure to radiation, to include a request for any available records concerning the Veteran's exposure to radiation, including the Veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the Veteran's radiation dose in service. All such records should then be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible. 7. Thereafter and consistent with the development completed above, schedule the Veteran for VA medical examinations concerning the claimed testicular cancer, thyroid disability, skin disability, stomach disability, hepatic neuralgia, and acquired psychiatric disability. Include any records pertaining to the testing completed at Edgewood Arsenal with the claims file. The claims file must be made available for review. Any medically indicated tests and studies must be completed. After review of the claims file, respond to the following: *Is it at least as likely as not (50 percent probability or more) that any testicular cancer was caused by or related to active service including the Edgewood Arsenal medical research testing? * Is it at least as likely as not (50 percent probability or more) that any thyroid disability was caused by or related to active service including the Edgewood Arsenal medical research testing? * Is it at least as likely as not (50 percent probability or more) that any skin disability was caused by or related to active service including the Edgewood Arsenal medical research testing? * Is it at least as likely as not (50 percent probability or more) that any stomach disability was caused by or related to active service including the Edgewood Arsenal medical research testing? * Is it at least as likely as not (50 percent probability or more) that any hepatic neuralgia was caused by or related to active service including the Edgewood Arsenal medical research testing? * Is it at least as likely as not (50 percent probability or more) that any acquired psychiatric disability was caused by or related to active service, including the Edgewood Arsenal medical research testing? Complete rationale must be provided for any opinion reached. In providing the above opinions, the examining physician(s) are advised that there have been a number of studies of the long-term effects of the chemical agents used in the Edgewood Arsenal medical research. At the request of the Army, the Institute of Medicine published a three-volume series of study between 1982 and 1985 on the long-term health effects of exposure to the chemicals tested. 8. Thereafter, following completion of any other development deemed necessary, readjudicate the issues on appeal. If any benefit sought remains denied, issue a Supplemental Statement of the Case to the Veteran. After allowing an appropriate amount of time for response, return the case to the Board for review. 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 2014). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).