Citation Nr: 21015233 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-21 817 DATE: March 17, 2021 ORDER Since there is new and material evidence, the petition to reopen the claim of entitlement to service connection for multiple sclerosis (MS) is granted; to that extent only is this appeal granted. REMANDED Entitlement to service connection for MS is remanded. Entitlement to service connection for pulmonary fibrosis also is remanded. FINDING OF FACT The Veteran’s claim for service connection for MS was previously considered and denied in a July 2013 rating decision that since has become final and binding. But additional evidence since submitted or otherwise obtained, when considered with the record as a whole, is neither cumulative nor redundant of the evidence of record at the time of that last prior final and binding denial and raises a reasonable possibility of substantiating this claim.   CONCLUSION OF LAW Evidence received since the last final and binding denial in July 2013 of the claim of entitlement to service connection for MS is new and material; thus, this claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.200, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONLCUSION The Veteran had active military service from July 1960 to June 1963. He died in March 2015. The appellant is his surviving spouse, so widow, and she has been substituted for him in this appeal to process these claims to completion. In support of these claims, the appellant (V.C.) and two sons (E.C. and K.C.) recently testified at a hearing in February 2021 before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. New and Material Evidence Whether new and material evidence has been received to reopen the claim of entitlement to service connection for MS This claim for service connection for MS was originally denied by a local Department of Veterans Affairs (VA) Regional Office (RO) in an unappealed (and therefore final and binding) July 2013 rating decision. However, a claim that has been previously considered and denied will be reopened if new and material evidence is presented. 38 U.S.C. § 5108.   New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that 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); see also Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). At the time of the prior July 2013 denial of this claim, the evidence of record included the Veteran's service treatment records (STRs) and post-service clinical records but did not include a supporting medical nexus opinion linking his MS to his service. But added to the claims file since then are numerous articles on the possible correlation between exposure to trichloroethylene (TCE) and later or eventual development of autoimmune diseases. Although the articles are not specific to this Veteran, they do at least raise a reasonable possibility of supporting this claim for MS insofar as least suggesting the required correlation between this disease and hi military service. Thus, this evidence is new and material to this claim and consequent reason to reopen it. But, rather than immediately readjudicating this claim on its underlying merits, the Board instead is first further developing this claim – including to try and obtain more definitive medical comment on the origins of the Veteran’s MS, especially in terms of whether related or attributable to any of the activity during his service that the widow-appellant and their children cite as the source or cause of this disease.   REASONS FOR REMAND Entitlement to service connection for MS AND Entitlement to service connection for pulmonary fibrosis Before deciding these claims for MS and pulmonary fibrosis, they must be further developed. The Appellant, and the Veteran prior to his death, contend that, while assigned to a Nike Hercules missile silo in service, he spent a lot of time in the silo cleaning the equipment and the “entire outside skins of four missiles daily with TCE.” They contend the TCE was used as a degreaser solvent to keep the missiles clean, and that the Veteran was not given any special equipment, gloves, or respirators, nor educated in proper hygiene after TCE use. See July 2012 statement from the Veteran. His DD Form 214 shows that his military occupational specialty (MOS) was missile crewman, and in adjudicating these claims the Board must consider the circumstances, conditions and hardships of the Veteran’s service. See 38 U.S.C. § 1154(a). That said, as it stands, there is insufficient evidence in the file concerning just how often and for what length of time and to what extent the Veteran was exposed to TCE during his service. He contended that he had “almost daily use” (April 2013), that he had “daily” use (December 2014), and his wife and children testified that it was “at least two times a day” (February 2021). The Board consequently finds that the official military documents or a military training manual for the Veteran’s work as a crewman for the Nike Hercules may provide more definitive indication of the required cleanings and, in turn, extent of exposure to TCE.   The Veteran separated from service in June 1963. His March 1963 Report of Medical History in anticipation of his separation from service shows that he denied any then current pertinent symptoms. By most accounts the onset of his MS and associated symptoms was in March 1975 or thereabouts with an eventual diagnosis in April 1976. See The Jimmie Heuga Center records. His widow and children testified during the recent hearing before this Board that he had relevant symptoms in the late 1960s, or beginning around 1966, although the records closer in time to his initial diagnosis are more probative than statements or recollections made more than four decades later, long after the fact. Articles submitted in support of the claims indicate TCE is a common ingredient in cleaning agents, paints, adhesives, varnishes, and inks. An Agency for Toxic Substances & Disease Registry (ATSDR) article notes that “[c]hronic exposure has been reported to be associated with damage to the cranial nerves and neurological effect such as memory loss and impaired cognitive function. However, these studies did not have accurate exposure data and indications were often exposed to mixtures of chemical.” It was additionally noted that, after a serious exposure or many exposures, damage to the nerves can occur. A study cited by the Appellant involves TCE inducing pulmonary fibrosis in mice. VA medical opinions resultantly are needed to assist in deciding these claims by indicating the likelihood the Veteran’s MS and/or pulmonary fibrosis was attributable to his military service – and, again, to especially include the type of activity in and around the missile silo that the Appellant-widow and her children believe was the source or cause of these diseases. With regards to MS, one of the articles cited notes that smoking has been linked to an increased risk of MS. With regards to pulmonary fibrosis, an article cited notes that smoking also increases the risk for interstitial pulmonary fibrosis. An October 1992 private clinical record (Dr. Sprague) shows the Veteran had MS and “tobaccoism”. Thus, his tobacco use must be considered as well by the reviewing clinician since least two of the articles cited indicate this, too, is a risk factor for the MS and pulmonary fibrosis being claimed.   Accordingly, these claims are REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran’s official military personnel records. 2. Contact the appropriate Federal agency to try and verify the assertion that, in the normal course of operations, crewmembers (such as the Veteran) cleaned Nike Hercules missiles with TCE between 1960 and 1963. This includes attempting to ascertain the extent of any such exposure to TCE (e.g., frequency of use in terms of whether daily, weekly, and amount of use, etc.). To this end, training manuals and/or technical manuals for the Nike Hercules may provide critical information as to how often the missiles were cleaned. 3. Then obtain medical opinions – preferably from a toxicologist or other clinician with sufficient expertise (if reasonably available) concerning whether it is as likely as not (50 percent or greater probability) the Veteran’s MS and/or pulmonary fibrosis were the result of his claimed exposure to TCE during his service. In making this determination, the designated clinician must consider the pertinent evidence of record, to especially include: a) the duration and frequency of exposure to TCE; b) the Reports of Medical History and Medical Examination during the Veteran’s evaluation in 1963 in anticipation of separating from service, which are unremarkable for any relevant complaints or history; c) the earliest clinical indication of MS symptoms in 1975 with an eventual diagnosis approximately a year later, in April 1976; d) a 1992 impression of tobaccoism; e) a December 2010 diagnosis of chronic obstructive pulmonary disease (COPD); f) the death certificate’s notation of pulmonary fibrosis; and g) medical studies, including especially those the Appellant and her children have cited, regarding the toxic effects of exposure to TCE and causes of MS and pulmonary fibrosis. Rationale for the opinion is essential, regardless of whether favorable or unfavorable to the claims, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.