BVA9507159 DOCKET NO. 91-52 891 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Fargo, North Dakota THE ISSUES Whether new and material evidence has been submitted to reopen a claim for service connection for a pulmonary disorder, including asthma. Entitlement to service connection for a pulmonary disorder, including asthma, on a presumptive basis, due to exposure to mustard gas and Lewisite. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD K. J. Kunz, Associate Counsel INTRODUCTION The veteran served on active duty from June 1942 to June 1943. This appeal arises from a July 1991 rating decision of the Fargo, North Dakota, Regional Office (RO). In that decision, the RO found that the evidence submitted by the veteran to reopen a previously disallowed claim was not new and material. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his chronic asthma was aggravated by service. He also contends that exposure in service to chemicals, including mustard gas, aggravated or caused chronic asthma and pulmonary problems. He reports that in service during World War II he was assigned to a unit that was involved in testing and handling of chemicals. He reports that he worked with mustard gas, Lewisite, and tear gas, and that on several occasions he was hospitalized after he came into contact with fumes from those chemicals. The veteran also contends that the RO committed clear and unmistakable error in its June 1945 rating decision, when it found that his asthma was not aggravated during service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. 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 new and material evidence has been submitted to reopen a claim of entitlement to service connection for a pulmonary disorder, including asthma; that the preponderance of the evidence is against service connection for a pulmonary disorder; including asthma, on a presumptive basis due to exposure to mustard gas and Lewisite; and that the record supports service connection for aggravation during service of a preexisting pulmonary disorder, including asthma. FINDINGS OF FACT 1. In an unappealed June 1945 rating decision, the RO denied entitlement to service connection for a bronchial asthma. 2. Evidence regarding the veteran's exposure in service to chemicals, including mustard gas, Lewisite and tear gas, has been submitted since the June 1945 rating decision. 3. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the originating agency. 4. The veteran had full-body exposure to mustard gas and Lewisite during active military service. 5. The veteran's chronic asthma condition began before entrance into service and before exposure in service to mustard gas and Lewisite. 6. The veteran's preexisting chronic asthma condition increased in severity during service. 7. The evidence of record does not clearly and unmistakably show that the increase in severity of the veteran's chronic asthma was due to the natural progress of the condition. CONCLUSIONS OF LAW 1. The June 1945 rating decision denying service connection for bronchial asthma is final. 38 U.S.C.A. § 7105 (West 1991). 2. Evidence pertaining to exposure in service to chemicals including mustard gas and Lewisite is new and material; the claim for service connection for a pulmonary disorder, including asthma, is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1994). 3. The veteran's pulmonary disorder, including asthma, was not incurred in service. 38 U.S.C.A. §§ 1110, 1111, 5107 (West 1991); 38 C.F.R. § 3.304 (1994). 4. The veteran's chronic asthma did not develop subsequent to full body exposure to mustard gas and Lewisite. 38 C.F.R. § 3.316 (1994). 5. The veteran's pulmonary disorder, including asthma, was aggravated during service. 38 U.S.C.A. §§ 1110, 1153, 5107 (West 1991); 38 C.F.R. § 3.306 (1994). 6. The June 1945 rating decision was not clearly and unmistakably erroneous. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.105(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (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). Following two remands by the Board and additional development of evidence pertinent to the claim, we are satisfied that all relevant facts have been properly developed, so that the statutory obligation of the Department of Veterans Affairs (VA) to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107 (West 1991). The veteran submitted a claim for service connection for asthma in May 1945. The RO denied the claim, and provided the veteran with written notice of the denial and of his rights to appeal, in June 1945. As no notice of disagreement was filed within one year of the June 1945 decision, that decision became final. 38 U.S.C.A. § 7105 (West 1991). A final decision on a disallowed claim shall be reopened if new and material evidence with respect to the claim is presented or secured. 38 U.S.C.A. § 5108 (West 1991). The United States Court of Veterans Appeals (Court) has ruled that, if the Board determines that new and material evidence has been submitted, the case must be reopened and evaluated in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, and which is neither cumulative nor redundant. 38 C.F.R. § 3.156 (1993). In order to be considered new, evidence must not merely summarize or repeat evidence submitted in previous proceedings. See Wilisch v. Derwinski, 2 Vet.App. 191, 193 (1992). New evidence is considered material when it is relevant and probative of the issue at hand. There must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both old and new, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). In February 1952, he requested reopening of his claim for service connection for asthma. In March 1952, the RO confirmed and continued the earlier denial, finding that information submitted by the veteran did not contain new and material evidence relevant to the claim. The veteran again sought service connection for a pulmonary condition, including asthma, in March 1991, and the RO again found that new and material evidence had not been submitted. When determining whether new and material evidence has been submitted to warrant reopening under 38 U.S.C.A. § 5108, consideration must be given to all of the evidence submitted since the last final denial of the case on the merits, rather than only the evidence submitted since the most recent refusal to reopen the claim for lack of new and material evidence. Glynn v. Brown, 6 Vet.App. 523, 528-29 (1994). We will consider whether new and material evidence has been submitted since the June 1945 rating decision, the last final decision on the merits. The evidence of record prior to the June 1945 final decision included the veteran's claim, his service medical records, and the report of a June 1945 VA medical examination of the veteran. The veteran's claim indicated that asthma began in July or August 1942. The report of the veteran's April 1942 examination for induction into service noted a history of bronchosinusitis, not disabling. The examination report did not mention asthma. Service medical records reported hospital treatment in August 1942 and May 1943 for chronic asthma. In the hospital records, it was stated that the veteran had a history of asthma attacks throughout his life, and that an attack in June 1942 was the first attack since he entered service. The June 1945 VA examination report noted continuing bronchial asthma. The June 1945 rating decision stated that bronchial asthma was noted at enlistment, and that the present degree of severity was due to natural progress rather than aggravation during service. Additional arguments and evidence have been submitted during the years since the June 1945 rating decision. In 1952, the veteran asserted that he had contacted a doctor in connection with asthma once or twice before service, but that his asthma had been aggravated in service, and had become worse than it would have been if he had not served. Beginning in 1991, the veteran provided information about his assignment in service to a unit that handled chemicals, and his exposure to chemicals including mustard gas, Lewisite, and tear gas. He contends that his exposure to chemicals contributed to a decline in his health during and after service. Additional evidence was obtained following Board remands in 1992 and 1994. A 1993 search for additional service medical records produced copies of some daily sick reports and company morning reports for the veteran's unit. In 1994, the veteran submitted service records that indicated that he had attended a chemical weapons school in Maryland, and had served with chemical section in his unit in Washington. He also submitted copies of chemical warfare training pamphlets that were issued to him in service. In 1994, the Department of the Army sent information regarding the course of instruction that was provided at the Army Chemical Warfare School during World War II. Much of the evidence added to the claims file since 1945 addressed the issue of chemical exposure, which was not addressed in the 1945 claim or rating decision. This evidence is both new to the claims file, and material to the issue of whether a pulmonary disorder was incurred in or aggravated by the veteran's active service. As new and material evidence has been submitted, the claim for service connection for a pulmonary disorder is reopened, and will be reviewed on the merits. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1994). Regulations concerning mustard gas exposure claims were promulgated by VA in July 1992, and revised in August 1994. Under current regulations, full-body exposure to mustard gas 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, is sufficient to establish service connection for that condition. Claims Based on Chronic Effects of Exposure to Mustard Gas and Lewisite, 59 Fed. Reg. 42,499 (1994) (to be codified at 38 C.F.R. § 3.316) (hereinafter cited as 38 C.F.R. § 3.316 (1994)). In written statements and hearing testimony, the veteran reported that he was exposed to chemicals while serving at McChord Field in Washington. Chemicals were stored at McChord Field, he stated, and he and his unit worked with chemicals including mustard gas, Lewisite and tear gas. He reported participating in loading containers of the chemicals into airplanes, and in monthly greasing of the plugs of barrels containing the chemicals, to prevent corrosion or leakage. He stated that full protective clothing and gas masks were worn during these tasks. He also reported that he ran a tear gas chamber, through which the troops would run, to practice putting on their masks and clearing them. In performing this duty, he stated, he would stand inside the chamber, wearing a gas mask, for several hours a day. He reported that after greasing the plugs of the barrels, and after working inside the tear gas chamber, he often had difficulty breathing and choking attacks. He reported that he was hospitalized several times following these attacks. In 1993, the National Personnel Records Center (NPRC) located some daily sick reports and company morning reports for the unit in which the veteran served. Daily sick reports list the veteran as taken sick on October 21, 1942, December 8, 1942, April 9, 1943, and May 2, 1943. Morning reports list the veteran as having been sent from duty to the hospital as of May 2, 1943; and from the hospital to discharge from service as of June 15, 1943. Service records submitted by the veteran indicated that he had attended the Chemical Warfare School at Edgewood Arsenal, Maryland, from January to February 1943. NPRC reported that, due to a fire at NPRC in 1973, they could not reconstruct records to determine whether mustard gas experiments were conducted at the installations where the veteran served. However, in 1994, the Department of the Army Chemical and Biological Defense Command, Historical Division, provided information about the course of instruction at the Chemical Warfare School. The Historical Division reported that identification of chemical agents was taught in the classroom and by field exercise; and that it was probable that the veteran traversed a gas obstacle course in which students, dressed in full protective clothing and gas masks, were to test and identify contamination by phosgene, Lewisite and mustard gas. Although records showing the duties of the chemical section at McChord Field have not been obtained, we consider the combined evidence of the veteran's statements, service records indicating that the veteran was in a chemical section at McChord, and the Army's information about the Chemical Warfare School to be sufficient to show that the veteran had full-body exposure to mustard gas and Lewisite in service. The veteran's service medical records and medical records since service consistently provide diagnoses of chronic asthma, one of the conditions listed in 38 C.F.R. § 3.316 (1994). Service connection under 38 C.F.R. § 3.316 (1994) requires, however, that the chronic condition develop subsequent to exposure to mustard gas or Lewisite. In this case, it is not clear that the veteran's chronic asthma developed after his exposure to chemicals in service. A veteran will be presumed to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. History of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. § 3.304(b) (1994). The report of the veteran's service entrance examination noted a history of bronchosinusitis, but did not note a bronchosinusitis condition or an asthma condition present at the time of examination. Therefore, the veteran's chronic asthma condition cannot be considered to be noted on examination at entrance into service. There is evidence, however, that the veteran's chronic asthma condition began before his entrance into service. When the veteran was hospitalized for chronic asthma in August 1942, it was reported that he had suffered frequent attacks of asthma all his life, and that an attack beginning three days before admittance to the hospital was his first attack since his induction in June 1942. When he was hospitalized in May 1943, it was reported that he had had asthma all of his life, with attacks particularly in damp weather. It was noted that his longest period of freedom from asthma was eight months spent at Edmonton, Canada. The claims file contains no preservice medical records to confirm or contradict the long term history of asthma noted in service. However, the history of the illness noted in hospital records would be expected to be the history reported by the veteran in the course of treatment. Several years later in 1952, when the veteran requested reopening of his claim, he wrote that before service he had only found it necessary to contact a doctor once or twice in connection with his asthma; but that when he was stationed in service in the state of Washington, where the climate was damp and cold, he was hospitalized several times for treatment of his asthma. March 1991 VA outpatient treatment records stated that the veteran was seen for congestion and coughing that was diagnosed as chronic obstructive pulmonary disease with acute bronchitis. This condition was reported to have been a problem on and off for all of the veteran's life. We find that combined weight of the medical histories reported in and after service, and the veteran's written statement after service in 1952, constitutes clear and unmistakable evidence that the veteran's chronic asthma condition began before service, overcoming the presumption of sound condition at entrance into service. As the veteran's chronic asthma developed before, and not subsequent to, his exposure to mustard gas and Lewisite, service connection of his asthma may not be presumed under 38 C.F.R. § 3.316 (1994). Although the veteran's chronic asthma began prior to his service, service connection may still be established if his asthma condition was aggravated during service. 38 U.S.C.A. § 1110 (West 1991). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306 (1994). Evidence of asthma attacks in service would indicate flare-ups of a chronic condition, but not necessarily worsening of the overall condition. In this case, the veteran reported only one or two doctor's visits for asthma before service. On entrance into service, a history of bronchosinusitis was noted, but examination revealed no active asthma symptoms or respiratory irregularities at that time. The veteran has reported that his asthma condition worsened during service in the damp climate of Washington, and that he had attacks of breathing difficulty after working in the tear gas chamber or greasing the plugs of barrels of mustard gas and Lewisite. Service medical records documented two hospitalizations; and daily sick reports listed three additional dates on which the veteran was taken sick. The service medical records included a form for the report of a discharge examination, dated in June 1943. The areas of the form for physical examination were not filled in, so it is not documented that any separation examination took place. The form noted no disability, but stated, "medical discharge." The veteran's Honorable Discharge document noted his physical condition when discharged as "Poor." The evidence indicates that the veteran's asthma condition did increase in severity during service. The increase in severity of the veteran's asthma condition is presumed to constitute aggravation of that disability during service. The record does not contain any clear and unmistakable evidence that the increase in disability was due to the natural progress of the disease. Service connection for aggravation of chronic asthma is therefore warranted. The veteran has asserted that the RO committed clear and unmistakable error in its June 1945 rating decision, when it found that the veteran's asthma condition was not aggravated in service. Where evidence establishes clear and unmistakable error in a previous determination that is final and binding, that decision will be reversed or amended. 38 C.F.R. § 3.105(a) (1994). The Court has explained that clear and unmistakable error is "[A] very specific and rare kind of 'error.' It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error." Fugo v. Brown, 6 Vet.App. 40, 43 (1993). Where evidence establishes clear and unmistakable error in a previous determination that is final and binding, that decision will be reversed or amended. 38 C.F.R. § 3.105(a) (1994). In this case, the claims file contains no medical records from before the veteran's service. The veteran reported in 1952 that he had very little treatment for asthma before service, compared to his hospitalizations in service. He did not provide this information in 1945. As the degree of worsening of the veteran's asthma in service was not completely clear based on the evidence available in 1945, the RO did not have a clear basis for determining whether any worsening was attributable to the natural progress of the disease. Therefore, we do not find that the finding in the RO's 1945 rating decision that the veteran's preexisting asthma was not aggravated in service was clear and unmistakable error. (CONTINUED ON NEXT PAGE) ORDER New and material evidence has been submitted to reopen a claim of entitlement to service connection for a pulmonary disorder, including asthma. Entitlement to service connection for a pulmonary disorder, including asthma, on a presumptive basis, due to exposure to mustard gas and Lewisite, is denied. Entitlement to service connection for aggravation of a preexisting pulmonary disorder, including asthma, is granted. JACK W. BLASINGAME Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), 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), 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 November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.