Citation Nr: 18152872 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 15-05 063 DATE: November 27, 2018 REMANDED Entitlement to service connection for shortness of breath is remanded. Entitlement to service connection for congestive heart failure is remanded. Entitlement to service connection for end stage renal disease is remanded. Entitlement to service connection for allergies is remanded. Entitlement to service connection for diabetes mellitus is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1964 to June 1967 in the United States Navy. The Veteran contended that while he served aboard the USS Eastman, he was exposed to chemicals and other toxic agents, as he participated in Project SHAD – a project involving chemical and biological warfare testing. As a result of such exposure, the Veteran sought service connection for five medical conditions: shortness of breath, congestive heart failure, end stage renal disease, allergies, and diabetes mellitus. The Veteran’s claim was denied in a December 2009 rating decision. The Veteran filed a Notice of Disagreement (NOD) in February 2010. Unfortunately, while the matter was pending, the Veteran died in June 2012. The Veteran’s death certificate lists the cause of death as myocardial infarction, end stage renal disease, and diabetes mellitus, type II. The death certificate also lists congestive heart failure as a significant condition contributing to the death, but not related to the underlying cause. The Veteran’s surviving spouse has been substituted as claimant, and following a March 2014 rating decision that again denied service connection for all five issues, the surviving spouse filed an appeal. In her January 2015 substantive appeal, the Appellant requested a hearing, and a hearing was scheduled for October 16, 2018. The Appellant failed to appear for the scheduled hearing, however, and her hearing request is therefore considered withdrawn. 38 C.F.R. § 20.704(d) (2018). 1. Entitlement to service connection for shortness of breath is remanded. 2. Entitlement to service connection for congestive heart failure is remanded. 3. Entitlement to service connection for end stage renal disease is remanded. 4. Entitlement to service connection for allergies is remanded. 5. Entitlement to service connection for diabetes mellitus is remanded. The Board finds that additional development is warranted before a decision may be rendered on the claims for service connection for shortness of breath, congestive heart failure, end stage renal disease, allergies, and diabetes mellitus. The Board notes that evidence in the Veteran’s file confirms the Veteran was a verified Project SHAD participant and that he participated in two tests while serving aboard the USS George Eastman: Fearless Johnny, from August 1965 to September 1965, where the agents tested were VX and Diethylphthlate mixed with 0.1 percent of fluorescent dye DF-504; and, Half Note, from August 1966 to September 1966, where the agents tested were Bacillus globigii, Serratia marcescens, Eschencia coli, calcofluor (fluorescent brightener 28) and zinc cadmium sulfide (FP). Fact sheets describing the tests, the agents used, and the identified potential health risks were also noted in the file, and it was requested that these fact sheets be provided to the VA examiner for review in conjunction with any exam or opinion request. The Veteran submitted to a VA examination in May 2012, approximately one month before he died. The examiner states he was informed the Veteran died prior to completing testing, but the examiner opined that the Veteran’s claimed conditions were less likely than not incurred in or caused by the claimed in-service injury, event or illness. As rationale, the examiner stated he was unable to find specific diseases found to be acknowledged long term complications of participation in Project SHAD. However, he acknowledged there were few good, long-term studies of the health effects of exposure to low levels of the agents used in these tests, and stated the Institute of Medicine is expected to release its findings of any long-term complications of such exposure in 2014. The Board notes the examiner did not specifically discuss or otherwise address the Project SHAD Fact Sheets of record, which identified the potential health risks of exposure to such agents, which appear to include lung and heart disease. The Board also notes that the time period for which the examiner indicated the Institute of Medicine is expected to release its findings (2014) has now passed, and that those findings may have significant bearing on the pending claim. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Robinette v. Brown, 8 Vet. App. 69 (1995). In a claim for service connection, evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits still triggers the duty to assist if it indicates that the Veteran’s condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 38 C.F.R. § 3.159(c)(4) presents a low threshold for the requirement that evidence indicates that the claimed disability may be associated with in-service injuries for the purposes of a VA examination. Given the above, the Board finds that an addendum etiological opinion, supported by a complete review of the claims folder, is needed in order to fully and fairly assess the merits of the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The VA addendum opinion should expressly address the Veteran’s diagnoses prior to death, the medical records, the credible statements of the Veteran and the Appellant, the Project SHAD Fact Sheets, and should provide an opinion as to whether it is at least as likely as not that the claimed conditions (shortness of breath, congestive heart failure, end stage renal disease, allergies, and diabetes mellitus), began in or are etiologically linked to service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The matters are REMANDED for the following action: 1. Contact the examiner that performed the May 2012 VA examination or another appropriate medical professional and obtain an addendum opinion to determine if the conditions the Veteran’s claimed prior to his death are related to his military service. More specifically, the examiner must offer an opinion as to: • whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s shortness of breath had its onset in service or is otherwise related to service, to include as due to exposure to chemical agents as a participant in Project SHAD. • whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s congestive heart failure had its onset in service or is otherwise related to service, to include as due to exposure to chemical agents as a participant in Project SHAD. • whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s end stage renal disease had its onset in service or is otherwise related to service, to include as due to exposure to chemical agents as a participant in Project SHAD. • whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s allergies had their onset in service or are otherwise related to service, to include as due to exposure to chemical agents as a participant in Project SHAD. • whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diabetes mellitus had its onset in service or is otherwise related to service, to include as due to exposure to chemical agents as a participant in Project SHAD. In rendering this conclusion, the examiner must discuss: • any findings made by the Institute of Medicine regarding any long-term complications of exposure to the chemical agents used at Project SHAD (the May 2012 VA examiner suggested the findings would be published in 2014); and, • the Project SHAD Fact Sheets of record, which identified the potential health risks of exposure to the identified agents, which appear to include lung and heart disease. Lindsey M. Connor Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Jiggetts, Associate Counsel