Citation Nr: 21032573 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 09-12 851 DATE: May 27, 2021 REMANDED Entitlement to service connection for a lung disability, to include pleurisy, pneumonia of the lungs, and residuals of a surgically removed bronchogenic cyst of the left lung adrenal gland, is remanded. Entitlement to service connection for kidney cysts, to include as secondary to kidney stones, is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a gastrointestinal disability, to include diverticulitis and gastroesophageal reflux disease (GERD), is remanded. Entitlement to service connection for headaches is remanded. REASONS FOR REMAND The Veteran had active service from February 1964 to February 1966. The claim was previously before the Board in March 2013 and June 2016, at which time it was remanded for additional development. In a March 2018 decision, the Board denied the above-listed issues. The Veteran subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court). While that case was pending at the Court, the Veteran's attorney and the VA Office of the General Counsel filed a joint motion to vacate the Board's decision as it pertained to these issues. In a May 2019 Order, the Court granted the motion, vacated the Board's March 2018 decision as it pertains to these issues, and remanded this case to the Board for readjudication. The claim was subsequently remanded by the Board in March 2020 and December 2020. While further delay is regrettable, additional development is needed before the claim can be decided on the merits. 1. Entitlement to service connection for a lung disability, to include pleurisy, pneumonia of the lungs, and residuals of a surgically removed bronchogenic cyst of the left lung adrenal gland, is remanded. 2. Entitlement to service connection for kidney cysts, to include as secondary to kidney stones, is remanded. 3. Entitlement to service connection for a low back disability is remanded. 4. Entitlement to service connection for a cervical spine disability is remanded. 5. Entitlement to service connection for a gastrointestinal disability, to include diverticulitis and GERD, is remanded. 6. Entitlement to service connection for headaches is remanded. The May 2019 Joint Motion noted that the Veteran's claim is based on his participation in Project SHAD (Shipboard Hazard and Defense) and that the Board found that he was exposed to bacillus globigii (BG), betapropiolactone (BPL), and zinc cadmium sulfide. The Joint Motion states, "the Secretary did not obtain a medical opinion to determine whether Appellant's BG and BPL exposure caused his current disabilities, and the Board did not address whether such an opinion was necessary." The Board was to either obtain a medical examination or opinion regarding whether Appellant's BG and BPL exposure is related to the disabilities at issue or explain, with adequate reasons or bases, why an opinion is not required. The parties to the Joint Motion also found "that the Board failed to provide an adequate statement of reasons or bases to support its finding that the various medical opinions stating that there was no medical evidence to support a relationship between Appellant's cadmium exposure and his current disabilities were probative." On this point, the Joint Motion explains: The Board acknowledged that Appellant submitted articles regarding 'medical studies that discuss the impact of various substances, including cadmium, on humans,' but discounted those articles because they did not assess 'facts of the Veteran's individual case.' However, the Board did not discuss those articles in relation to the VA examiners' reasoning that there is no relationship between cadmium exposure and Appellant's disabilities because literature does not support such a relationship. In other words, the Board did not reconcile the conclusions contained in the submitted articles with the VA examiners' conclusions regarding such a relationship. In the March 2020 remand, the Board noted that the VA medical opinions of record would be of greater probative value if they better addressed the evidence submitted by the Veteran suggesting that certain exposures, particularly cadmium, may be associated with a wide range of health implications, including as potentially pertinent to each of the Veteran's claims on appeal. The Board noted that the Veteran submitted a copy of published information regarding cadmium in July 2013, for instance. The claim was therefore remanded for additional development. The Veteran had examinations arranged by VA in September 2020. The examiner opined that the disabilities at issue are not at least as likely as not incurred in or caused by toxic exposures associated with participation in Project SHAD, which featured bacillus globigii, betapropiolactone, and zinc cadmium sulfide. It was also noted that toxic exposures are not known to cause these disabilities, except where noted below, and that there is no evidence of such etiological association in the medical records. Regarding headaches, it was noted that the reported onset was 15 to 20 years ago and that the Veteran was first diagnosed with tension headaches 25 years ago. The toxic exposure from Project SHAD was for about a month in 1965, and with such a long latency, it was unlikely that the toxic exposure caused the headaches. Furthermore, the medical records did not support such an etiological association. The examiner wrote that it is not clear what causes kidney cysts, and that risk factors are age and being male. They are not known to be caused by toxic exposure, and there was no evidence of such an etiological association in the medical records. Regarding the left lung cyst, it was noted that bronchogenic cysts are congenital and not caused by toxic exposures. Nexis opinions were not provided regarding pleurisy and pneumonia and must be obtained on remand. Compliance by the Board or the RO with remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268, 271 (1998). The September 2020 medical opinions were insufficient because the examiner did not address the materials submitted by the Veteran indicating potential pertinent health implications of cadmium exposure, including but not limited to the reference sheet submitted in July 2013, as required by the Board's March 2020 remand instructions. Therefore, in December 2020, the Board remanded the claims in order to obtain addenda to the September 2020 opinions. The examiner was also to provide an opinion regarding whether the kidney cysts were caused or aggravated by the service-connected kidney stones. In March 2021, an examiner contracted by VA opined that the cervical and lumbar spine disabilities were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The diagnosed orthopedic neck and back conditions were unrelated to chemical exposure from the SHAD program. Causes of degenerative disc disease include aging, wear and tear, and prior fractures or trauma. There was no disruption to the articular surface of the joint at the time of active duty, and therefore degenerative joint disease was most likely a natural aging process. The examiner also wrote that nothing in the literature shows a nexus to SHAD or the toxins/chemicals, and cited a study entitled, "Long-Term Health Effects of Participation in Project SHAD." The March 2021 examiner opined that GERD was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. NAS literature shows no relationship between GERD, diverticulitis, or colon polyps due to SHAD and its chemicals and toxins. The examiner listed various other possible causes that are not related to the Veteran's service. Regarding kidney cysts, the March 2021 examiner opined that they are less likely than not proximately due to the service-connected kidney stones. The examiner did not feel the kidney cysts were related to Project SHAD or to the kidney stones because the medical literature did not support such as relationship. There is a risk of simple kidney cysts with age, although they can occur at any age and are more common in men. A baseline level of severity could not be determined, and an opinion on aggravation due to kidney stones was therefore not provided. The literature related to Project SHAD does not show a cause of kidney cysts. There is reference in the literature to renal dysfunction caused by inflammation of the renal tubules, but "this is not the condition of a cyst." The "Long-Term Health Effects of Participation in Project SHAD" study was cited. The examiner opined that it was less likely than not that a lung disability was incurred in or caused by the claimed in-service injury, event, or illness. It was noted that the Veteran had an acute episode of pneumonia with pleurisy in 2000 and that there was discovery of a bronchogenic cyst in 2008. The pleurisy was treated and resolved, the cyst resected, and no chronic condition exists. Pneumonia is due to bacteria, fungus, or a virus. Pleurisy is due to infections and autoimmune conditions. Bronchogenic cysts are lesions of congenital origin derived from the primitive foregut and are the most common primary cysts of the mediastinum. Neither pneumonia with pleurisy or a bronchogenic cyst are related to or were caused by SHAD. NAS literature shows no relationship for a congenital cyst due to SHAD and its chemicals. Various underlying causes for pleurisy were listed. The March 2021 examiner opined that headaches were less likely than not incurred in service or caused by the in-service exposure to toxins from Project SHAD. It was noted that the literature for SHAD does not mention headaches in conjunction with any acute illness associated with exposures to irritants that SHAD studied, and untreated thrombotic thrombocytopenic purpura due to exposure to irritants related to SHAD. There is no reference to chronic tension headaches noted in the literature due to SHAD. The treatment records show headaches most likely secondary to cervical degenerative joint disease. The "Long-Term Health Effects of Participation in Project SHAD" study was cited. Unfortunately, the March 2021 examiner did not include discussion of the medical literature that the Veteran submitted in March 2004 and July 2013. Compliance by the Board or the RO with remand instructions is neither optional nor discretionary. Stegall, 11 Vet. App. at 271. The Board asked for discussion by the examiner of this specific medical literature in March 2020 and December 2020 Board because it is not possible to comply with the CAVC Joint Motion without it. The claim must therefore be remanded again. The matters are REMANDED for the following action: Obtain addenda to the March 2021 examiner's opinions. The Veteran's claims folder should be provided to the reviewer prior to completion of the opinion. The examiner should provide an opinion as to: Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine disability is related to service, to include in-service exposure to toxins from Project SHAD, which included bacillus globigii (BG), betapropiolactone (BPL), and zinc cadmium sulfide. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's low back disability is related to service, to include in-service exposure to toxins from Project SHAD, which included bacillus globigii (BG), betapropiolactone (BPL), and zinc cadmium sulfide. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's gastrointestinal disability, to include diverticulitis and GERD, is related to service, to include in-service exposure to toxins from Project SHAD, which included bacillus globigii (BG), betapropiolactone (BPL), and zinc cadmium sulfide. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's headaches are related to service, to include in-service exposure to toxins from Project SHAD, which included bacillus globigii (BG), betapropiolactone (BPL), and zinc cadmium sulfide. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's lung disability, to include pleurisy and pneumonia of both lungs and residuals of a surgically removed bronchogenic cyst of the left lung adrenal gland, is related to service, to include in-service exposure to toxins from Project SHAD, which included bacillus globigii (BG), betapropiolactone (BPL), and zinc cadmium sulfide. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's kidney cysts are related to service, to include in-service exposure to toxins from Project SHAD, which included bacillus globigii (BG), betapropiolactone (BPL), and zinc cadmium sulfide. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's kidney cysts were (1) caused by service-connected kidney stones or (2) aggravated (worsened beyond natural progression of the disease) by the kidney stones. The examiner is advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A complete medical rationale for all opinions expressed must be provided, include discussing the specific facts and evidence of this Veteran's case. This must include specifically addressing the materials submitted by the Veteran indicating that health implications may be associated with cadmium exposure. This includes, but is not limited to, the cadmium reference sheet submitted in July 2013 and information on cadmium and medical literature submitted in March 2004. A complete medical rationale for all opinions expressed must be provided, include discussing the specific facts and evidence of this Veteran's case. If an opinion cannot be provided without resorting to speculation, the examiner should provide complete explanations of why this is so. In so doing, the examiner is requested to explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or the limits of current medical knowledge have been exhausted in providing an answer to that particular question. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott Shoreman, Counsel 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.