Citation Nr: 22014604 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-17 144 DATE: March 14, 2022 ISSUES Entitlement to service connection for asthma, to include as due to exposure to radiation, mustard gas and other toxic agents. Entitlement to service connection for Chronic Obstructive Pulmonary Disease (COPD), to include as due to exposure to radiation, mustard gas and other toxic agents. Entitlement to service connection for squamous cell carcinoma, to include as due to exposure to radiation, mustard gas and other toxic agents. Entitlement to service connection for acquired pneumonia (claimed as lungs scarred and compromised breathing). REMANDED Entitlement to service connection for asthma, to include as due to exposure to radiation, mustard gas and other toxic agents is remanded. Entitlement to service connection for Chronic Obstructive Pulmonary Disease (COPD), to include as due to exposure to radiation, mustard gas and other toxic agents is remanded. Entitlement to service connection for squamous cell carcinoma, to include as due to exposure to radiation, mustard gas and other toxic agents is remanded. Entitlement to service connection for acquired pneumonia (claimed as lungs scarred and compromised breathing), to include as due to exposure to radiation, mustard gas and other toxic agents is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army National Guard from November 1960 to September 1961. The Veteran also served in the U.S. Army Reserves from October 1961 to October 1966. The Veteran was ordered into active duty on November 26, 1960 for 6 months from November 1961 to May 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an April 2019 Travel Board hearing. A transcript of that hearing has been associated with the claims file. These matters were remanded in June 2019 for further development. As will be discussed below, the Board finds that there has not been substantial compliance with its remand directives and the matter must be remanded once again. See Stegall v. West, 11 Vet. App. 269 (1998). Please note that the case has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c). 1. Entitlement to service connection for asthma, to include as due to exposure to radiation, mustard gas and other toxic agents is remanded. 2. Entitlement to service connection for Chronic Obstructive Pulmonary Disease (COPD), to include as due to exposure to radiation, mustard gas and other toxic agents is remanded. 3. Entitlement to service connection for squamous cell carcinoma, to include as due to exposure to radiation, mustard gas and other toxic agents is remanded. The Veteran contends that he is entitled to service connection for asthma, COPD and squamous cell carcinoma as a result of his exposure to toxic agents, while stationed at Fort McClellan, during training he received as part of the 305th Chemical Company ("the Company"). Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38U.S.C. §1110; Davidson v. Shinseki,581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi,381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38C.F.R. §3.303. Service connection for a disorder that is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service connected in radiation-exposed veterans. 38 U.S.C. § 1112; 38 C.F.R. § 3.309(d). Second, service connection can be established under the general principles of service connection with the assistance of special procedural advantages if the condition at issue is a radiogenic disease. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.311. Finally, service connection can still be established under the general principles of service connection by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions or special development procedures. Id.; see Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Additionally, claims based on the chronic effects of exposure to mustard gas are governed by the provisions of 38 C.F.R. § 3.316. Regulations provide that exposure to certain specified vesicant agents, such as mustard gas, during active military service, together with the subsequent development of certain diseases, is sufficient to establish service connection in the following circumstances: (1) full-body exposure to nitrogen or sulfur mustard during active military service, together with the subsequent development of chronic conjunctivitis, keratitis, corneal opacities, scar formation, nasopharyngeal cancer, laryngeal cancer, lung cancer (excluding mesothelioma), or squamous cell carcinoma of the skin; (2) full-body exposure to nitrogen or sulfur mustard or Lewisite during active military service together with the subsequent development of a chronic form of laryngitis, bronchitis, emphysema, asthma, or chronic obstructive pulmonary disease (COPD); or (3) full-body exposure to nitrogen mustard during active military service together with subsequent development of acute non-lymphocytic leukemia. 38 C.F.R. § 3.316. For claims involving exposure to mustard gas, the Veteran must provide evidence of an in-service exposure, and a diagnosis of a current disability, but is relieved of the burden of providing medical evidence of a nexus between the current disability and his in-service exposure. Rather, that nexus is presumed if the other conditions are met, subject to the regulatory exceptions in 38 C.F.R. § 3.316(b). See 38 C.F.R. § 3.316; see also Pearlman v. West, 11 Vet. App. 443, 446 (1998). The Board notes that, notwithstanding the foregoing, a veteran may establish service connection with proof of direct causation, as noted by the requirements set forth above. 38 U.S.C. § 1113(b). During the April 2019 Board hearing the Veteran testified that during his two- week training at Fort McClellan, from July 11, 1964 to July 25, 1964 he was ordered to enter gas chambers and was constantly exposed to mustard gas and other toxic agents. When this matter was last before the Board in June 2019 the Board recognized that it has been documented and acknowledged by the U.S. Department of Veterans Affairs that some members of the U.S. Army Chemical Corp School, Army Combat Development Command Chemical/Biological/Radiological Agency, Army Military Police School and Women's Army Corps, among others, may have been exposed to one or more of several hazardous materials used and stored during their service at Fort McClellan.(See https://www.publichealth.va.gov/exposures/fort-mcclellan/index.asp) Potential exposures could have included, but are not limited to, the following: radioactive compounds (cesium-137 and cobalt-60), chemical warfare agents (mustard gas and nerve agents), and airborne polychlorinated biphenyls (PCBs). As such, the Board found that there was competent evidence that the Veteran's current disabilities may be associated with his military service. Therefore, the matter was remanded in order for a toxicity study to be completed to determine if the Veteran was exposed to toxic agents, not limited to mustard gas, and including radiation while in training at Fort McClellan. The Veteran was afforded the Board-directed VA examinations for his asthma, squamous cell carcinoma and COPD in December 2020. At that time the examiner opined that the Veteran's claimed asthma and squamous cell carcinoma were more likely than not related to his active- duty service. The only rationale provided was that upon reviewing the Veteran's claims file, literature review correlates the Veteran's ongoing asthma and skin condition to exposure to chemicals at Fort McClellan. The examiner provided a negative nexus opinion for COPD on the basis the there were no findings for or diagnosis of treatment for COPD. Following the December 2020 VA examinations, in April 2021 a Radiation Risk Activity Information Sheet was added to the claims file. At that time the Veteran did not provide any information about exposure to ionizing radiation and he reported that he had no known exposure to radiation. In January 2021, a letter was sent to the VA Mustard Gas Manager for confirmation of exposure to a mustard agent and/or lewisite. Subsequently, the Veteran's information was run through the Department of Defense (DOD) database, which encompasses a veteran's service history, to include dates, locations, projects, and any exposures to chemicals, agents and/or mustard/lewisite. In August 2021, the DOD report reflected that the Veteran's name was found in the Individual Longitudinal Exposure Record (ILER) but without any exposure detail or individual employment history. The report determined that the Veteran attended the United States Army Chemical School in the summer of 1964 to complete a 2-week passive- defense Chemical, Biological and Radiological course (CBR). The DOD report did not reveal any direct evidence that the Veteran was exposed to chemical or biological agents. However, until 1976 the armed forces used a patch, or drop, test type of application of live mustard gas agents to trainees' arms during Basic Combat Training (BCT), and that it was possible that the Veteran had live mustard agent applied onto one of his forearms during his BCT or CBR training. Initially, the Board notes that the evidence of record does not confirm full body exposure to nitrogen, sulfur mustard, or Lewisite during active military service Thus, the presumption of service connection for asthma, COPD or squamous cell carcinoma due to potential exposure to nitrogen, sulfur mustard, or Lewisite under 38 C.F.R. § 3.316 is not warranted. However, this does not preclude the Veteran from seeking direct service connection. While the Board recognizes that the December 2020 VA examiner provided positive nexus opinions for the Veteran's claimed asthma and squamous cell carcinoma disabilities, unfortunately, for the following reasons, the Board finds that these opinions are inadequate for adjudication purposes. The Board notes that the rationales provided by the examiner are conclusory and fail to provide sufficient rationale. A general conclusory statement is not adequate for a rationale. The explanation should contain clear conclusions and a supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, as the August 2021 DOD report data base report which indicated that the Veteran did not have full body exposure to mustard gas and/or exposure to chemical, biological, radiological, or other toxic agents during his military service was not added to the claims file until after the December 2020 medical opinions were rendered, it does not appear that the opinions were based on a factually accurate premise. Also, as it relates to the negative nexus opinion for Veteran's claimed COPD, the examiner indicated that review of the Veteran's claims file did not reveal a diagnosis or treatment for COPD. The Board however notes that the examiner failed to consider or discuss the fact that the Veteran's private treatment records contain a June 2014 pulmonary function test in which the impression was obstructive airway disease. Once VA undertakes the effort to provide an examination when developing a claim, the exam must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Inadequate medical examinations include examinations that are not based upon a review of medical records or provide unsupported conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 204 (2008). It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Id. VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154 (a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. Therefore, a remand is necessary so that adequate VA opinions can be obtained to determine whether a nexus exists between the Veteran's in-service active- duty military service and his current asthma, COPD and squamous cell carcinoma. Furthermore, in consideration of the August 2021 DOD report indicating that the Veteran may have possibly been exposed to patch type testing of live mustard gas agents during training, and affording the Veteran the benefit of the doubt, the Board will concede the Veteran's exposure to mustard gas agents through this type of exposure. Therefore, on remand the examiner is asked to render an opinion on whether the Veteran's claimed asthma, COPD and squamous cell carcinoma is related to his conceded patch type testing of live mustard gas agents during active- duty service. 4. Entitlement to service connection for acquired pneumonia (claimed as lungs scarred and compromised breathing) is remanded. The Veteran contends that his acquired pneumonia is related to his active- duty military service, to include exposure to toxic agents while he was training at Fort McClellan. The Veteran also asserts that he developed pneumonia during service which began a series of pneumonia episodes in his life, which caused him to develop scar tissue in his lungs. To this note, the Veteran contends that sometime between1960 and 1961 during live training at Fort Dix, New Jersey, he was hospitalized for pneumonia. In addition to the Veteran's lay assertions that his condition had its onset in service, the Veteran submitted a letter from a fellow service member, S.G., who reported that he was aware that the Veteran was hospitalized for pneumonia sometime between November 26, 1960 and May 25, 1961. The Board notes that while the Veteran's service treatment records are silent for any hospitalization for pneumonia, the records do show treatment for an upper respiratory infection on December 2, 1960, but are void of continued symptoms since that time. When this matter was last before the Board in June 2019 it was remanded, amongst other directives, to afford the Veteran a VA examination to determine the etiology of the residuals of his acquired pneumonia. The Veteran was afforded a VA examination in December 2020 at which time the examiner opined that the Veteran's claimed disability was not related to his active- duty service. In providing a rationale the examiner explained based on the review of the claims file that there was no evidence or findings or treatment for pneumonia or recurrence of the condition. For the following reasons however, the Board finds that this opinion is inadequate for adjudication purposes. First, the Board notes that the examiner relied on the absence of documented treatment during and post-service when opining that the Veteran's acquired pneumonia was not related to service. However, the lack of medical documentation alone cannot be the basis of the opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Importantly, the examiner failed to discuss the Veteran's lay assertions that his condition began in and has continued since service. Next, the Board notes that the examiner, in opining that the Veteran's current acquired pneumonia was not related to his active- duty service, failed to address or discuss the Veteran's December 1960 treatment note indicating that he was treated in service for a respiratory condition. Finally, while the Veteran has asserted that his acquired pneumonia was related to exposure to toxic agents during service, the medical opinion did not consider or discuss this question. The Board must address all theories of entitlement raised by a claimant or reasonably raised by the record. See Robinson v. Peake, 21 F.3d 545, 553 (Fed. Cir. 2008). Therefore, the Board finds that a remand is warranted for a new medical opinion to address the etiology of the Veteran' claimed acquired pneumonia. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated VA medical records of the Veteran not previously obtained. 2. Schedule the Veteran for a new VA examination (or telehealth interview(s), review(s) of the record, etc., if an in-person examination(s) is not feasible) by an appropriate physician to determine the nature and etiology of the Veteran's claimed asthma, COPD, squamous cell carcinoma and acquired pneumonia. The entire claims file, including a copy of this REMAND, must be made available to the examiner for review in connection with the examination and the examination report must reflect that such a review was undertaken. After performing any/all necessary testing, the examiner should provide responses to the following questions: a) Whether it is at least as likely as not that the Veteran's current asthma is related to any in service disease, event, or injury, to include his conceded patch type testing of live mustard gas agents during active-duty service at Fort McClellan. b) Whether it is at least as likely as not that the Veteran's current COPD is related to any in service disease, event, or injury, to include his conceded patch type testing of live mustard gas agents during active-duty service at Fort McClellan. c) Whether it is at least as likely as not that the Veteran's current squamous cell carcinoma is related to any in service disease, event, or injury, to include his conceded patch type testing of live mustard gas agents during active-duty service at Fort McClellan. d) Whether it is at least as likely as not that the Veteran's acquired pneumonia disability and claimed residuals had its clinical onset during active service or is otherwise related to any in service disease, event, or injury, to include his documented December 2, 1960 treatment for an upper respiratory infection or his conceded patch type testing of live mustard gas agents during active-duty service at Fort McClellan. When considering this question, the examiner is to consider all lay statements of record carefully, VA treatment records and examinations and private treatment records and evaluations. The examiner is asked to consider and discuss the lay statement from the Veteran's fellow service member regarding the onset of his claimed disability as well as the December 2, 1960 notation in the Veteran's service treatment records for an upper respiratory infection. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 3. After completing the requested actions, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefit sought remains denied, furnish to the Veteran and his representative with a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, Associate 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.