Citation Nr: 0007331 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 94-44 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease and pulmonary emphysema as secondary to mustard gas exposure. 2. Entitlement to service connection for a prostate gland disorder, claimed as "prostate surgery", as secondary to mustard gas exposure. 3. Entitlement to service connection for migraine headaches as secondary to mustard gas exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD S. L. Smith, Counsel INTRODUCTION The veteran had active service from July 1943 to January 1946. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. It is noted that this case was previously remanded by the Board in August 1996 for further development. The requested development was accomplished and the veteran appeared at a personal hearing before the undersigned Member of the Board in November 1999. The Board notes that the veteran at his November 1999 hearing, indicated that he only wished to pursue his appeal as to the issues of entitlement to service connection for emphysema and chronic obstructive pulmonary disease, a prostate gland disorder(claimed as prostate surgery), and migraine headaches as secondary to mustard gas exposure. In light of 38 C.F.R. § 20.204 (1999) and the holding of the United States Court of Appeals for Veterans Claims (formerly known as the United States Court of Veterans Claims) (Court) in Tomlin v. Brown, 5 Vet. App. 355 (1993), the Board finds the transcript of the hearing to constitute written notice of the withdrawal of appeal of the issues of entitlement to service connection for bone marrow disease, a back disorder, a psychiatric disorder, defective vision, diabetes mellitus, and hemorrhoids, all claimed as secondary to Mustard gas exposure. FINDINGS OF FACT 1. The record does not contain competent evidence that the veteran experienced full-body exposure to nitrogen or sulfur mustard or Lewisite during his active military service. 2. The record does not contain competent medical evidence of current diagnosis of any prostate gland disorder that can be linked to the veteran's prior service. 3. The record does not contain competent medical evidence of a current diagnosis of migraine headaches that can be linked to the veteran's prior service. 4. The record does not contain competent medical evidence of a current diagnosis of pulmonary emphysema that can be linked to the veteran's prior service. 5. The record does not contain competent evidence of a nexus between the veteran's currently diagnosed COPD and any inservice injury or disease. CONCLUSIONS OF LAW 1. The inservice incurrence of COPD and pulmonary emphysema, a prostate gland disorder, and migraine headaches, as secondary to mustard gas exposure, may not be presumed. 38 U.S.C.A. §§ 5107, 7104 (West 1991); 38 C.F.R. §§ 3.303, 3.316 (1999). 2. The veteran's claims for service connection for COPD and pulmonary emphysema, a prostate gland disorder, and migraine headaches, are not well grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 1991); 38 C.F.R. § 3.303, 3.307, 3.309, 3.316 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that, while performing training in defense against gas attack during his basic training at Camp Sibert, Alabama, he was exposed to a substance that he believes was mustard gas. Subsequently, he experienced blisters on his face and lips, his tonsils "rotted out", and he had difficulty breathing. Months after this incident he developed migraine headaches. Years after his discharge from active service, he underwent prostate surgery and was diagnosed to have COPD or pulmonary emphysema. Accordingly, he contends that service connection is warranted for these conditions. For the Board to consider the veteran's claim, the veteran must submit evidence that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim also requires more than just mere allegations that the veteran's service, or an incident which occurred therein, resulted in illness, injury, or death. The veteran must submit supporting evidence that would justify the belief that the claim is plausible. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Grivois v. Brown, 6 Vet. App. 136 (1994). evidentiary assertions by the claimant must be accepted as true for the purpose of determining if a claim is well-grounded, except where such assertions are inherently incredible or beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19 (1993). Service connection may be established for disability resulting from personal injury or disease incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 1991). In the absence of chronicity at onset, a grant of service connection requires evidence of continuity of symptomatology demonstrating that a current disability was incurred in service. 38 C.F.R. § 3.303(b) (1999). Regulations also provide that service connection may be established where all the evidence of record, including that pertinent to service, demonstrates that the veteran's currently disability was incurred in service. 38 C.F.R. § 3.303(d) (1999). The three elements of a "well grounded" claim for service connection 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 (1994). The regulations provides a presumption of service connection for certain chronic diseases that derive from exposure to specified vesicant agents, such as mustard gas and Lewisite under 38 C.F.R. § 3.316 (1999). This regulation states that, except in cases where the veteran's claimed condition is due to his or her own misconduct or where affirmative evidence establishes that the veteran's claimed condition is caused by a nonservice-related supervening condition or event, exposure to specified vesicant agents during active military service, together with the subsequent development of any of the indicated conditions, is sufficient to establish service connection for that condition. 38 C.F.R. § 3.16 (a),(b) (1999). Exposure must fall into one of the following proscribed circumstances: (1) full-body exposure to nitrogen or sulfur mustard during active military service 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 with the subsequent development of a chronic form of laryngitis, bronchitis, emphysema, asthma, or COPD; (3) full-body exposure to nitrogen mustard during active military service with the subsequent development of acute non-lymphocytic leukemia. 38 C.F.R. § 3.316 (a)(1),(2),(3) (1999). As noted above, the veteran avers that he suffers from migraine headaches, a prostate gland disorder, pulmonary emphysema and COPD, as secondary to exposure to mustard gas in service. COPD is listed in the above regulation as a disorder for which service connection may be established if there was full-body exposure to mustard gas during service. The veteran has averred in statements and testimony given in April 1994 before a hearing officer at the RO and in November 1999 at a personal hearing before the undersigned member of the Board that he believes he was exposed to mustard gas while undergoing training for defense in gas attack at Camp Sibert during basic training. He described several incidents of running, with other soldiers, through clouds of "smoke" sometimes with gas masks and sometimes without. He also described the specific incident when he believes he was exposed to Mustard gas, and its aftermath as follows: He, with 10-12 other soldiers, entered the gas chamber. They were given 20 seconds to don their gas mask before the gas was released. The gas was then released and he became sick and had to be physically removed from the chamber. A Lieutenant Green inspected his gas mask, declared it defective, and had it burned. Approximately one week after that test, he reported to sick call with blisters all over his face and a severe infection of the throat and mouth. He was hospitalized for 29 days, during which time he underwent a tonsillectomy. He further testified that several months following the test, he reported to sick call with migraine headaches and was treated with aspirin. The veteran also testified that he began experiencing difficulty breathing with shortness of breath and wheezing in the 1960's. He was first diagnosed to have COPD or pulmonary emphysema in 1973 when he was hospitalized at a VA Medical Center for treatment and evaluation of chronic breathing difficulties. A review of the evidentiary record reveals that the veteran was hospitalized at a VA Medical Center (VAMC) in April 1946 for treatment of acute epididymitis with no other physical complaint noted. In April 1973, the veteran was admitted to a VAMC for shortness of breath and other respiratory symptoms with a one-year history of treatment for chronic obstructive lung disease. Physical examination also revealed an enlarged but nontender prostate with no nodules. Final diagnosis was chronic obstructive lung disease. A VA medical evaluation report dated in August 1973, noted a smoking history of 2 to 3 packs of cigarettes a day since age nine; the diagnostic impression was chronic airway obstruction due to chronic bronchitis, with no definite evidence of emphysema present. With regard to the claims for service connection for pulmonary emphysema, a prostate disorder, and migraine headaches, the Board finds that there is no competent medical evidence of current diagnosis for each of these alleged disabilities. As the veteran has failed to present any medical evidence of current disability, the Board concludes that these claims are not wellgrounded. Thus, they must be denied. See Caluza v. Brown, 7 Vet. App. 498, 506 (1994). Furthermore, the record fails to establish that the veteran had full-body exposure to any of the specified vesicant agents listed in 38 C.F.R. § 3.316, including mustard gas. The record reveals that the National Personnel Records Center (NPRC) indicated in October 1993 and again in June 1994, that it had no additional service personnel and service medical records. In August 1994, the NPRC indicated, in response to an inquiry from the RO, that it was unable to identify the 10th Chemical Unit for any additional unit service records. The record reveals that the RO, in May 1993, submitted a request to the U. S. Army Medical Research and Development Command (MRDC). In a response dated July 1993, it was noted that the MRDC maintained reports of U.S. Army personnel who participated as medical volunteers in chemical weapon studies for the period from 1955 to 1975. Although the veteran's reported participation was in 1943-44, a search was conducted; however no information on the veteran was found. The RO's request was forwarded to the U.S. Army Chemical and Biological Defense Agency (Agency) at Aberdeen Proving Grounds, Maryland. In November 1993, the Agency responded that it needed further information about the incident in which the veteran averred he was exposed to mustard gas. The RO requested the information from the veteran; the veteran replied; and the RO submitted another request to the agency. In October 1994, the Agency again responded that it had no records which named the veteran as having been a member of the Chemical Warfare Service. However, it was noted that the records from the World War II units were not complete. The agency also provided the following specific information with regard to Camp Sibert: a. The gas chamber(s) at Camp Sibert used tear gas and chlorine for training exercises. b. Camp Sibert had a gas obstacle course, however, the documentation in the Historical Division does not state whether actual or simulated mustard agent was used. It is possible that actual mustard agent was used on this course as a War Department Circular date June 1942 authorized the used of toxic chemical in training at Camp Sibert. c. The Historical Division is also in possession of a "history" of training at Camp Sibert from which the following is quoted: As a final test, the men, with no other protective equipment than gas mask and impregnated shoes made a reconnaissance of an area contaminated with exploded live-mustard land mines. The Agency also requested that the RO again contact the Agency if it had additional information which stated the veteran's job such as a WD AGO Form 100. Following the Board's remand of this case for further development in August 1996, the RO requested the VA Compensation and Pension Service search for the veteran's name in its lists of Navy and Army participants in chemical weapons testing and training. A Report of Contact, VA Form 119 dated August 1996, indicated that the veteran's name was not listed. The RO also submitted another request to the Agency, dated August 1995, and appended thereto copies of the veteran's WD AGO 53-55 and WD AGO 100. The Agency replied by letter dated October 1996, that it needed a more descriptive statement from the veteran relating to the incident(s) he believed exposed him to mustard agent. Further documentation of record indicates that the RO was informed by telephone, in July 1997, that the Agency had no record of a "Lt. Green" at Camp Sibert during 1943. In July 1997, the RO again requested additional information from the veteran; the veteran replied, submitting a statement with the necessary detail; and the RO submitted another request in October 1998, to the Agency, appending the veteran's statement. In October 1998, the Agency responded that it was unable to supply any information relative to the veteran. Although the Historical Division had two separate Chemical Warfare Service units with the numerical designator "10th", neither of these units were at Camp Sibert. It was possible that the veteran transferred to one of these units after basic training at Camp Sibert; however, the Agency had no identifying files on the veteran. Despite the RO's persistent attempts to obtain additional information, the evidence of record does not establish that the veteran was exposed to any of the vesicant agents listed under 38 C.F.R. § 3.316 (1999), including mustard gas, during his period of active service; therefore, the Board is unable to extend the presumption of service connection for the veteran's claimed COPD, as secondary to exposure to mustard gas. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does 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, where the issue involves medical causation, competent medical evidence which indicates that the claim is plausible or possible is required to set forth a well- grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Thus, service connection may still be established for COPD by the more onerous route of showing actual causation, where all the evidence establishes that the current disability was incurred in service. See 38 C.F.R. § 3.303(d) (1998). As noted above, the veteran has presented competent medical evidence that he has been diagnosed with COPD. In addition, for the purpose of well-grounding the veteran's claim, the Board accepts his version of events in service as he has testified, in November 1999, before the undersigned member of the Board and, in April 1994, before a hearing officer sitting at the local RO; and as he has averred in numerous statements. However, the veteran has not submitted competent medical evidence of a nexus between either his currently diagnosed COPD and any inservice injury or disease. Although the service medical records are missing, and presumed destroyed, a VA hospital summary report dated in April 1946 noted normal chest and lungs. The veteran currently avers that his lung condition began in service; however, he testified in 1994, that he began experiencing breathing difficulty in the 1960's. In addition, the medical record does not concur. Rather, the earliest medical evidence of record shows that the veteran was first diagnosed with or treated for a lung condition in 1972, which is more than 25 years following his discharge from active service. The evidentiary record is devoid of any medical opinion, statement, or evidence linking the veteran's COPD to his active service. The veteran has presented his own testimony regarding the cause of his currently diagnosed COPD, as well as his belief that he currently suffers from migraine headaches, pulmonary emphysema and a prostate gland disorder due to his prior service. However, the record does not show that he is a medical professional, with the training and expertise to provide clinical findings regarding the nature and extent of his COPD, or its etiologic relationship to service. Consequently, his statements are credible with regard to his subjective complaints and his history; but they do not constitute competent medical evidence for the purposes of showing a nexus between current complaints and service. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Grottveit v. Brown, 5 Vet. App. 91 (1993). As the veteran has presented no evidence, other than his own allegations, to establish a nexus between either his current COPD and any inservice injury or disease, this claim is not well- grounded. 38 U.S.C.A. § 5107(a); Caluza, 7 Vet. App. at 506. Where a claim is not well-grounded, VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim. Nevertheless, VA may be obligated under 38 U.S.C.A. § 5013(a) to advise the claimant of evidence needed to complete his application. This obligation depends on the particular facts of the case and the extent to which VA has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69, 77-80 (1995). The veteran has been informed of the evidence necessary to make these claims well grounded. Moreover, unlike Robinette, the veteran in this case has not put VA on notice of the existence of specific evidence which, if submitted, might make his claim well- grounded. Thus, the Board finds that VA has fulfilled its obligation under 38 U.S.C.A. § 5013(a). Although the RO did not specifically state that it denied the veteran's claims on the basis that they were not well grounded, the Board concludes that this error was not prejudicial to the veteran. See Edenfield v. Brown, 8 Vet. App. 384 (1995) (en banc) (when the Board decision disallowed a claim on the merits where the Court finds the claim to be not well grounded, the appropriate remedy is to affirm, rather than vacate, the Board's decision, on the basis of nonprejudicial error). ORDER Service connection for COPD, pulmonary emphysema, migraine headaches, and a prostate disorder, is denied. C. P. RUSSELL Member, Board of Veterans' Appeals