Citation NR: 9713668 Decision Date: 04/22/97 Archive Date: 05/01/97 DOCKET NO. 96-22 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a skin disorder, claimed as a residual of exposure to mustard gas during service. 2. Entitlement to service connection for a lung disorder, claimed as a residual of exposure to mustard gas during service. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. P. Havelka, Associate Counsel INTRODUCTION The veteran’s active military service extended from January 1954 to December 1955. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. That rating decision denied service connection for skin and lung disorders claimed as a residuals of exposure to mustard gas during service. The issue of entitlement to service connection for a skin disorder, secondary to mustard gas exposure during service, is the subject of a remand which follows the Board’s decision. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO committed error in denying service connection for a lung disorder. He argues that he was exposed to mustard gas during basic training during active service and that he was exposed to mustard gas during his reserve service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), has reviewed and considered all of the evidence and material of record in the veteran’s claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim for service connection for a lung disorder, as a residual of exposure to mustard gas during service is well grounded. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran’s appeal. 2. There is no competent medical evidence of any current lung disorder. CONCLUSION OF LAW The appellant has not presented a well grounded claim for service connection for a lung disorder as residuals of exposure to mustard gas during service, and therefore there is no statutory duty to assist the appellant in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991) (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 1991). Pursuant to 38 C.F.R. § 3.316 (1996), service connection may be established for the development of certain claimed conditions when there was exposure to specified vesicant agents during active military service. When there was full- body exposure to nitrogen or sulfur mustard gas during active service the listed conditions are chronic conjunctivitis, keratitis, corneal opacities, scar formation, nasopharyngeal cancer, laryngeal cancer, lung (except mesothelioma) cancer and squamous cell carcinoma of the skin. When there was full-body exposure to nitrogen or sulfur mustard or Lewisite during active service the listed conditions are chronic laryngitis, chronic bronchitis, chronic emphysema, chronic asthma or chronic obstructive pulmonary disease. When there was full-body exposure to nitrogen mustard during active service the listed condition is acute nonlymphocytic leukemia. Service connection may not be established for any of these conditions if the claimed condition is due to the veteran’s own willful misconduct or if there is affirmative evidence that establishes a nonservice-related condition or event as the cause of the claimed condition. 38 C.F.R. § 3.316 (1996). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that specific VA regulations which provide for presumptive service connection for disabilities resulting from exposure to various toxins such as radiation or Agent Orange do not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). However, the United States Court of Veterans Appeals has held that where the issue involves medical causation, competent medical evidence that shows that the claim is plausible or possible is required to set forth a well-grounded claim. Caluza v. Brown, 7 Vet.App. 498 (1995); Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Regulations also require a continuity of symptomatology to link the post- service symptoms to injury during service when the fact of chronicity in service is not adequately supported. 38 C.F.R. § 3.303(b) (1995). In order to prevail on a direct basis the veteran would have to provide competent medical evidence which relates his current disorders to either his period of active service or to mustard gas exposure during his period of active service. The law provides that “a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.” 38 U.S.C.A. § 5107(a) (West 1991). Establishing a well grounded claim for service connection for a particular disability requires more than an allegation that the disability had its onset in service or is service-connected; it requires evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible and capable of substantiation. See Franko v. Brown, 4 Vet.App. 502, 505 (1993); Tirpak v. Derwinski, 2 Vet.App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The three elements of a “well grounded” claim are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the inservice disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996); see also 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1995). The regulations which establish presumptive service connection for certain medical disorders with respect to mustard gas exposure subsume the requirement of a nexus or link. Therefore, the determinative issues presented by the claim are (1) whether the appellant had full body exposure to mustard gas during service; and (2) whether he has any of the current disorders subject to the presumption. In December 1994 the veteran submitted his claim for service connection for a lung disorder secondary to mustard gas exposure. With his claim, he submitted the appropriate authorization form for the RO to obtain medical records from his private physician. The RO obtained these medical records. The private medical records are for the period of time from approximately 1992 to 1994. Chest x-rays were taken in January 1992 and February 1993 and revealed the veteran’s chest was normal. A February 1992 treatment record reveals a history of tuberculosis. Another February 1992 record reveals a diagnosis of upper respiratory infection, “URI.” A December 1993 record reveals the his lungs were “unremarkable.” An upper respiratory infection was again diagnosed in October 1994. Physical examination reports from April 1993 and April 1994 both reveal normal chests with no noted abnormalities. The RO obtained the medical evidence indicated by the veteran. This evidence reveals absolutely no complaints, or diagnoses, of any lung disorders. With no competent medical evidence of a current lung disorder the veteran does not meet the first element required for the claim to be well grounded. See Caluza, 7 Vet.App. at 506. In this case the Board notes that the RO misinformed the veteran regarding records concerning exposure to mustard gas. The RO stated that a request for information was made to the Naval Research Laboratory, (NRL), in Washington, D.C. when it was not. Moreover, no such request should have ever been contemplated as NRL was the wrong source from which to request mustard gas exposure information in the instant case as the veteran is an Army veteran. M21-1, Part 3, Chapter 5, Subchapter II, Section 5.18 f (4) instructs that development of claims involving Army chemical weapons testing prior to 1955 can also be developed by a check for records at the Army Chemical and Biological Defense Agency at Aberdeen Proving Grounds, Maryland. Development of evidence regarding Army testing subsequent to 1955 is developed by contacting Headquarters, Army Medical Research and Development Command at Fort Detrick in Frederick, Maryland. Moreover, there is no indication that any such evidence developed cannot be sent directly to the RO. In the Board’s experience mustard gas claim evidence developed from service department sources is always forwarded directly to the RO with no need for it to be sent via the veteran. Development of mustard gas exposure information from NRL is only indicated in the case of Navy veterans who allege exposure at NRL. M21-1, Part 3, Chapter 5, Subchapter II, Section 5.18 e. The RO also stated that the information provided was “vital to assure a fair and equitable decision” on the veteran’s claim. With respect to the veteran’s claim for service connection for a lung disorder this is also not true. As we noted above, there is absolutely no medical evidence of any current lung disorder. It simply does not matter if the veteran was exposed to mustard gas, with no competent medical evidence of a current lung disorder the veteran cannot meet the first element required for the claim to be well grounded. See Caluza, 7 Vet.App. at 506. The Board has thoroughly reviewed the claims file. However, we find no evidence of a plausible claim. Since the veteran has not met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim for service connection for a lung disorder, secondary to mustard gas exposure, is well grounded, it must be denied. See Boeck v. Brown, 6 Vet.App. 14, 17 (1993) (if a claim is not well-grounded, the Board does not have jurisdiction to adjudicate it). Where the veteran has not met this burden, the VA has no duty to assist him in developing facts pertinent to his claim, including no duty to provide him with another medical examination. 38 U.S.C.A. § 5107(a) (West 1991); Rabideau, 2 Vet.App. at 144 (where the claim was not well-grounded, VA was under no duty to provide the veteran with an examination). However, where a claim is not well-grounded it is incomplete, and depending on the particular facts of the case, VA may be obliged under 38 U.S.C.A. § 5103(a) to advise the claimant of the evidence needed to complete his application. See Robinette v. Brown, 8 Vet.App. 69, 77 (1995). In this case, the RO substantially complied with this obligation in the February 1996 Statement of the Case (SOC). Epps v. Brown, 9 Vet.App. 341 (1996) ORDER Because it is not well-grounded, the veteran’s claim for service connection for a lung disorder as a residual of mustard gas exposure during active service is denied. REMAND The veteran asserts that he was exposed to mustard gas during both active service and his reserve service, and that this has resulted in a skin disorder, specifically dermatitis. The Board realizes that the nature of chemical warfare testing was secret, so that development of evidence regarding exposure during testing is often difficult. Moreover, it is the government who would have custody of any records related to secret chemical weapons testing. VA’s duty to assist is heightened when records are in the control of a government agency. Gobber v. Derwinski, 2 Vet.App. 470 (1992). M21-1, Part 3, Chapter 5, Subchapter II, § 5.18 provides information about development of claims involving allegations of exposure to mustard gas during active service. It indicates that VA has lists of service department personnel who were subjected to chemical weapons testing; it also provides a contact point the VA Central Office Rating Procedures Staff where the RO can check to see if the veteran’s name is on any of the lists. There is no documentation in the claims file that the RO used this resource to see if the veteran’s name appeared on these lists. This must be done, and any results, positive or negative, must be documented. The Board notes that the RO has obtained the veteran’s service medical records from the National Personnel Records Center. M21-1, Part 3, Chapter 5, Subchapter II, Section 5.18 f (4) also instructs that development of claims involving Army chemical weapons testing prior to 1955 can also be developed by contacting the Army Chemical and Biological Defense Agency at Aberdeen Proving Grounds, Maryland. Development for exposure alleged subsequent to 1955 can also be developed by a check for records at the Army Medical Research and Development Command at Fort Detrick, Maryland. The veteran alleges mustard gas exposure during active service in 1954 to 1955 and during reserve service from 1960 to 1980. Therefore, the RO should contact both of these commands to verify the veteran’s participation, or lack thereof, in chemical weapons testing. The Board also notes that full copies of the veteran’s Army reserve records are not of record. The RO should attempt to obtain full copies from the National Personnel Records Center and/or the Army Reserve Personnel Center. Finally, the Board notes there is an undated medical opinion from a Dr. Frison which states that the veteran’s dermatitis is a result of mustard gas exposure. When this opinion is viewed in light of the medical evidence of record, including Dr. Frison’s June 1995 letter, the probative value of this opinion that dermatitis is a result of mustard gas exposure is placed into question. Accordingly, the Board requires a medical opinion to clarify the record. Therefore, the claims file should be forwarded to a VA dermatologist for a medical opinion. The United States Court of Veterans Appeals (Court) has held that when the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet.App. 171 (1991) and Halstead v. Derwinski, 3 Vet.App. 213 (1992). In light of the foregoing, the Board would be remiss if it were to attempt to decide the issues on appeal without first obtaining all the pertinent evidence that is missing. To ensure that the Department of Veterans Affairs (VA) has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the regional office (RO) for the following development: 1. The RO should make another attempt to secure complete copies of the veteran’s service medical records and service personnel records for his period of Army Reserve Service from 1960 to 1980 from the National Personnel Records Center and the Army Reserve Personnel Center. 2. The RO should make another attempt to secure any additional records that may exist pertaining to this veteran and his claimed exposure to mustard gas from the Department of the Army. Specifically, the RO should contact both: Commander, U.S. Army Chemical and Biological Defense Agency Attn: AMSCB-CIH Aberdeen Proving Grounds, MD 21010-5423 Headquarters, Army Medical Research and Development Command Fort Detrick Attn: SGS Frederick, MD 21702-5012 The RO should specifically request any records pertaining to mustard gas testing conducted at Fort Buchannan, Puerto Rico in 1954 and 1955, and at Fort Drum, New York from 1960 to 1980. 3. The RO should contact the VA Central Office Rating Procedures Staff point of contact as noted in M21-1, Part 3, Chapter 5, Subchapter II, § 5.18 d and request a search of the list of participants in chemical weapons testing and training for the veteran’s name. This request may be made by telephone as noted in § 5.18 d. The RO must ensure that the request and the response are properly documented in the veteran’s claims file. 4. Subsequently, the claims file should be forwarded to a VA dermatologist. The physician should specifically review the private medical evidence of record in volume II of the claims file, including the undated medical opinion of Dr. Frison and his June 1995 letter. After this review the physician is requested to give an opinion as to the accuracy of Dr. Frison’s opinion that the veteran’s dermatitis is a result of mustard gas exposure. The Board also asks: Is it more likely than not that the veteran’s current dermatitis is the result of allergic skin irritation as noted in his treatment records rather than mustard gas exposure? 5. Following completion of the above actions, the RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the physician’s report requested by the Board. If the report does not include adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (1995) (“if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.”). Green v. Derwinski, 1 Vet.App. 121, 124 (1991); Abernathy v. Principi, 3 Vet.App. 461, 464 (1992); and Ardison v. Brown, 6 Vet.App. 405, 407 (1994). 6. Subsequently, the RO should consider the issue on appeal. In this regard, the RO should give full consideration to whether the veteran’s claim for service connection for a skin disorder secondary to mustard gas exposure is well grounded. Once the foregoing has been accomplished and, if the veteran remains dissatisfied with the outcome of the adjudication of the claim, both the veteran and his representative should be furnished a Supplemental Statement of the Case covering all the pertinent evidence, law and regulatory criteria. They should be afforded a reasonable period of time in which to respond. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1996) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. Thereafter, the case should be returned to the Board for further appellate consideration. The veteran needs to take no action until so informed. The Board intimates no opinion as to the ultimate outcome of this case. JAMES W. ENGLE Acting Member, Board of Veterans’ Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1996), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after (CONTINUED ON NEXT PAGE) November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a 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) (1996). - 2 -