Citation Nr: 9912666 Decision Date: 05/10/99 Archive Date: 05/21/99 DOCKET NO. 96-16 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a skin disorder, to include squamous cell carcinoma, claimed as due to mustard gas exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Lemoine, Counsel INTRODUCTION The veteran had active military service from October 1943 to December 1945. The Board of Veterans' Appeals (Board) received this case on appeal from a February 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the veteran's claim seeking service connection for a skin disorder, to include squamous cell carcinoma, claimed as due to mustard gas exposure. The veteran submitted a notice of disagreement with that rating decision in August 1995. In March 1996, he was provided with a statement of the case. His substantive appeal was also received in March 1996. The Board notes that, in his substantive appeal, the veteran requested a hearing on appeal before a traveling Member of the Board. Subsequently, a hearing before a VA hearing officer was scheduled for August 21, 1996. Notification of the scheduled hearing was sent to the veteran in a letter dated April 17, 1996. The record indicates that the veteran canceled the scheduled hearing. The record further indicates that the veteran subsequently submitted a written withdrawal of his request for a hearing before a Member of the Board. The veteran's withdrawal was received in February 1999. REMAND Regarding the veteran's claim pertaining to mustard gas exposure, the Board notes that he has submitted numerous private medical records indicating treatment for various cysts and growths on the skin and, on several occasions, the veteran has been diagnosed with squamous cell carcinoma. The Board need not discuss the medical evidence of record further at this point. The Board next notes that claims based upon chronic residual effects of exposure to mustard gas and Lewisite are governed by 38 C.F.R. § 3.316, which provides as follows: (a) Except as provided in paragraph (b) of this section, exposure to the specified vesicant agents during active military service under the circumstances described below together with the subsequent development of any of the indicated conditions is sufficient to establish service connection for that condition: (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, or the following cancers: Nasopharyngeal; laryngeal; lung (except 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. (3) Full-body exposure to nitrogen mustard during active military service together with the subsequent development of acute nonlymphocytic leukemia. (b) Service connection will not be established under this section if the claimed condition is due to the veteran's own willful misconduct or there is affirmative evidence that establishes a non-service-related supervening condition or event as the cause of the claimed condition. 38 C.F.R. § 3.316 (1998) (cross references omitted). The Board notes that, in the recent case of Pearlman v. West, 11 Vet.App. 443 (1998), the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) addressed the application of 38 C.F.R. § 3.316 in determining the well- groundedness of claims. The Court indicated that, under 38 C.F.R. § 3.316, the initial burden for a well-grounded claim was relaxed for veterans who subsequently developed conditions specified by the regulation, to the extent that the regulation did not require evidence of a medical nexus for those conditions, but rather a nexus was presumed if the other conditions required by the regulation were met. Pearlman, at 446. The Court specified that "the veteran is relieved of his burden of providing medical evidence of a nexus between the current disability and the in-service exposure. Rather, service connection is granted if the appellant has experienced: (1) full body exposure, (2) to the specified vesicant agent, (3) during active military service, and (4) has subsequently developed the specified conditions;" subject to the regulatory exceptions in paragraph (b). Id. The Board further notes that, in the Pearlman case, the late veteran had averred that he had participated in secret testing involving mustard gas exposure, and that he had subsequently developed respiratory disorders which were among the conditions specified within 38 C.F.R. § 3.316. Although all efforts by VA to substantiate his claimed exposure had been unsuccessful, the Court held "that for the purpose of submitting a well-grounded claim relating to exposure to toxic gases under this regulation, the Board must assume that the lay testimony of exposure is true." However, the Court further noted that "whether or not the veteran meets the requirements of this regulation, including whether or not the veteran was actually exposed to the specified vesicant agents, is a question of fact for the Board to determine after full development of the facts." Pearlman, supra, at 447. Applying the Court's holding in Pearlman to the case at hand, the Board notes that the veteran has been diagnosed with squamous cell carcinoma, which is among the disorders identified within 38 C.F.R. § 3.316. The Board further notes that the veteran has provided contentions reporting that he was exposed to mustard gas in service. Although there is not yet any evidence in the record to corroborate the veteran's history of mustard gas exposure, for purposes of determining the well-groundedness of his claim, the veteran's evidentiary assertions must be presumed to be credible. See King v. Brown, 5 Vet.App. 19, 21 (1993); Pearlman, supra. Accordingly, the Board finds that the veteran's claim regarding mustard gas exposure is well grounded, and that the duty to assist applies. VA has a duty to assist a veteran in developing facts pertinent to a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103, 3.159 (1998). Of course, finding that the veteran's claim is well grounded is not to imply that it must ultimately be granted. In regard to the veteran's contentions of mustard gas exposure, the Board notes that service medical records obtained from the National Personnel Records Center do not reflect any such exposure, nor was the RO able to verify the veteran's exposure by contacting the VA Central Office, as it was reported in October 1995 that the veteran's name did not appear on any lists, maintained by the VA Central Office, of veterans who had participated in mustard gas experiments. The Board further notes that the National Academy of Sciences has issued an extensive report that discusses the history of mustard gas testing and the locations of known gas testing facilities, as well as the scientific evidence reviewed in determining the presumptive disorders to be included within 38 C.F.R. § 3.316. See Veterans at Risk, The Health Effects of Mustard Gas and Lewisite (National Academy Press 1993); see also 59 Fed. Reg. 42,497 (Aug. 18, 1994), which extensively cites to Veterans at Risk. The Board notes that Veterans at Risk identifies all known gas testing facilities, and that no locations in Hawaii are amongst those identified. See Table 3-2, p. 32, Veterans at Risk, for a list of such facilities. However, in regard to the veteran's current claim, the Board notes that the veteran has reported on several occasions that his claimed mustard gas exposure occurred on the island of Oahu, Hawaii, while assigned to the 99th Naval Construction Battalion. It thus appears that the veteran's history of claimed exposure while in Hawaii is not supported by the study in Veterans at Risk. The Board also notes that the RO did further attempt to verify the veteran's claimed exposure, by contacting the U.S. Army Chemical and Biological Defense Agency. However, that Agency indicated it could provide no information related to the claim, as the veteran had served in the Navy, not the Army. The RO was advised to contact the Navy for further information, but the RO did not subsequently contact the Navy. In that regard, the Board notes that the development of claims pertaining to mustard gas exposure is discussed in the VA Adjudication Procedure Manual, M21-1, Part III, par. 5.18 (hereinafter M21-1). Manual M21-1 indicates that the testing of Navy volunteers was coordinated by the Naval Research Laboratory (NRL) at the Naval Training Station in Bainbridge, Maryland. The M21-1 further indicates that the NRL maintains records pertaining only to the veterans who participated in testing at that location. It is stated that the NRL does not have records related to veterans who participated in tests conducted at any other locations, and that requests for such veterans should be sent to the National Personnel Records Center, not the NRL. Under these circumstances, the Board notes that the RO was not required to attempt to verify the veteran's claims with the NRL, as he has not made any contentions of exposure at the NRL, but has instead claimed exposure while stationed at Hawaii. The Board notes, however, that, in reviewing the veteran's service medical records, it is evident that he was assigned for some unspecified period of time to the Naval Training Station in Bainbridge, Maryland. Furthermore, it is unclear how long the veteran was assigned at Bainbridge, as his complete service personnel records are not within the claims file. Under these circumstances, even though the veteran has not specifically contended he was exposed to mustard gas at Bainbridge, the Board still believes it is appropriate to further attempt to verify his claimed exposure by obtaining his complete service personnel records and by contacting the Naval Research Laboratory, as discussed in Manual M21-1. Accordingly, although the Board acknowledges that the RO did attempt to verify the veteran's claimed mustard gas exposure by contacting the National Personnel Records Center, the VA Central Office, and the U.S. Army Chemical and Biological Defense Agency, we find that the RO should further attempt to verify the veteran's claimed exposure by contacting the NRL as outlined in the M21-1. Accordingly, the case is REMANDED to the RO for the following action: 1. In order to attempt to verify the veteran's claimed mustard gas exposure, the RO should contact the veteran and request that he provide a statement that specifies, in as detailed a fashion as possible, the circumstances surrounding the claimed mustard gas exposure. He should specify, to the extent possible, the location and date of his exposure, in addition to any other information which may be relevant, such as a detailed description of the nature of the exposure, and the identity of any other individuals who may have been present and who may be able to provide "buddy statements". 2. In order to further attempt to verify the veteran's claimed mustard gas exposure, the RO should request the veteran's complete service personnel records from the National Personnel Records Center (NPRC), and again request any information pertaining to participation in mustard gas experiments. 3. The RO should fully develop the contention as to mustard gas exposure in accordance with the provisions of M21-1, Part III, para. 5.18, to include providing all available specifics regarding claimed testing, and all specifics regarding the veteran's assignment at the Bainbridge Naval Training Station to the: Naval Research Laboratory, Code 4810 Attn: Head, Information Services Branch Washington, DC 20375-5000 4. Upon completion of all the development requested hereinabove, as well as any further indicated development, the RO should review the veteran's claim of disability due to mustard gas exposure. If it is determined that the veteran was a participant in chemical gas testing or that he might have been such a participant, or that he was otherwise exposed to mustard gas, the RO should conduct additional development of the medical record, if appropriate. 5. The RO should then review all the evidence and enter its determination with respect to the veteran's claim of mustard gas exposure pursuant to 38 C.F.R. § 3.316. If the benefit sought on appeal remains denied, the veteran and his representative should be furnished with a supplemental statement of the case, in accordance with 38 U.S.C.A. § 7105. Thereafter, the veteran and his representative should be given the opportunity to respond. The case should be returned to the Board for further appellate consideration, if otherwise in order, following appropriate appellate procedure. By this REMAND the Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case. The purpose of this REMAND is to further develop the record and ensure due process of law. No action is required by the veteran until he receives further notice. 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 Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) 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. 1998) (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. ANDREW J. MULLEN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999). This 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) (1998).