Citation Nr: 0000411 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-19 410 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for lung disease due to exposure to chlorine gas. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD A. P. Simpson, Associate Counsel INTRODUCTION The appellant served on active duty from May 1959 to April 1961. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a January 1998 rating decision of the Jackson, Mississippi, Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO determined that the appellant had not submitted new and material evidence to reopen the claim for service connection for lung disease due to exposure to chlorine gas. FINDINGS OF FACT 1. In an April 1992 rating decision, the RO denied service connection for lung disease due to exposure to chlorine gas. The appellant was notified of the decision and of his appellate rights in a May 1992 letter, and he did not appeal the decision. 2. The evidence submitted since the April 1992 rating decision is new and bears directly and substantially on the question of whether the appellant incurred lung disease as a result of exposure to chlorine gas in service. 3. There is no competent medical evidence of a nexus between a diagnosis of lung disease and exposure to chlorine gas in service. CONCLUSIONS OF LAW 1. Evidence submitted to reopen the claim of entitlement to service connection for lung disease due to exposure to chlorine gas is new and material, and therefore, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156(a) (1999). 2. The claim of entitlement to service connection for a lung disease due to exposure to chlorine gas is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant claims that he has brought forth new and material evidence and that service connection for lung disease due to exposure of chlorine gas is warranted. Generally, a final decision issued by an RO or by the Board may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. §§ 7104, 7105(c) (West 1991 & Supp. 1999); see also 38 C.F.R. §§ 20.302, 20.1103 (1999). The exception to this rule falls under 38 U.S.C.A. § 5108, which states, in part, that "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim." See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). 38 C.F.R. § 3.156(a) states that new and material evidence means evidence which was not previously submitted to agency decisionmakers which bears "directly and substantially" upon the specific matter under consideration. Such evidence must be neither cumulative nor redundant, and, by itself or in connection with evidence previously assembled, such evidence must be "so significant that it must be considered in order to fairly decide the merits of the claim." Id.; see generally Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The RO initially denied service connection for lung disease due to exposure to chlorine gas in an April 1992 rating decision. Of record at that time, were service medical records, VA medical records, and VA examination reports. The medical evidence revealed that the appellant had a current lung disease. In the rating decision, the RO denied service connection for lung disease due to exposure to chlorine gas on the basis that the appellant had not brought forth evidence of a nexus between chlorine gas exposure in service and the current diagnoses of chronic obstructive pulmonary disease and emphysema. The RO stated that the appellant had an episode of chlorine gas exposure in service; however, it noted that following the incident, there were no complaints and that a diagnosis of lung disease was not shown at that time, or at anytime thereafter until 1992. In a May 1992 letter, the appellant was informed of this decision and of his appellate rights, but he did not appeal the decision, and that decision became final. The appellant now seeks to reopen the claim for service connection for lung disease due to exposure to chlorine gas. Therefore, the evidence that must be considered in determining whether new and material evidence has been submitted is that evidence added to the record since the April 1992 rating decision. The appellant has submitted information regarding Mustard Gas development, medical evidence revealing a current diagnoses of chronic obstructive pulmonary disease and emphysema, and statements from fellow servicemen. The statements from the fellow servicemen corroborate the appellant's assertion that following the incident of exposure to chlorine gas he had shortness of breath. The Board finds that these statements are new to the record, and, in view of the less stringent standard for materiality set forth in Hodge, the Board finds that as this new evidence bears directly and substantially on the question of whether the veteran incurred a lung disease due to exposure to chlorine gas, it is material. Accordingly, the appellant's claim for service connection for a lung disease due to exposure to chlorine gas is reopened. Having reopened the appellant's claim for service connection for a lung disease due to exposure to chlorine gas, the Board must consider the claim on a de novo basis. Service connection may be granted 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 (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. Id. Additionally, certain chronic diseases, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). In Elkins v. West, 12 Vet. App. 209 (1999) (en banc), the United States Court of Appeals for Veterans Claims (Court) held that once a claim for service connection has been reopened upon the presentation of new and material evidence, VA must determine whether, based upon all of the evidence of record, whether the claim is well grounded pursuant to 38 U.S.C.A. § 5107(a). Only after a determination that the claim is well grounded may the VA proceed to evaluate the merits of the claim, provided that the VA's duty to assist the veteran with the development of facts pertinent to his claim under 38 U.S.C.A. § 5107(a) has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). The appellant has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual" that a claim is well grounded. 38 U.S.C.A. § 5107(a); Robinette v. Brown, 8 Vet. App. 69, 73 (1995). A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In the absence of evidence of a well- grounded claim, there is no duty to assist the claimant in developing the facts pertinent to his claim, and the claim must fail. See Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). To establish that a claim for service connection is well grounded, a veteran must demonstrate "medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury." Savage v. Gober, 10 Vet. App. 488, 493 (1997); see Epps v. Gober, 126 F.3d 1464, 1468-69 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498 (1995) aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Grottveit, 5 Vet. App. at 93. The nexus requirement may be satisfied by evidence showing that a chronic disease subject to presumptive service connection was manifested to a compensable degree within the prescribed period. See Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). Alternatively, a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). The chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such a condition. Savage v. Gober, 10 Vet. App. at 495-97. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. Id. If the chronicity provision does not apply, a claim may still be well grounded or reopened on the basis of 38 C.F.R. § 3.303(b) "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage v. Gober, 10 Vet. App. at 498. Service medical records reveal that in June 1959, the appellant was exposed to chlorine gas in a gas chamber and that his gas mask was leaking. A clinical record stated that the appellant had mild coughing spasms. However, at service discharge, clinical evaluations of the appellant's lungs and chest were normal. A chest x-ray taken at that time was negative. The appellant denied any lung complaints at that time. At the appellant's April 1999 RO hearing, he testified that following the incident with the leaking gas mask, he experienced trouble breathing and shortness of breath. He stated that he never got over that incident in service. He testified that he did not report lung problems when he got out of service because he just wanted to go home. The veteran reported that he continued to have coughing spells following service. The appellant's wife stated that she and the appellant had been married for five years and that she could see that the appellant's lung disorder was getting worse. The evidence of record reveals that the first diagnosis of a lung disease was in 1992, almost 30 years following service. Diagnoses of chronic obstructive pulmonary disease and emphysema were entered at that time. Subsequent treatment records reveal continuing treatment for lung disease. After having reviewed the evidence of record, the Board finds that the appellant has not submitted a well-grounded claim for service connection for lung disease due to exposure to chlorine gas. The appellant is competent to report that he was exposed to chlorine gas in service, which is substantiated by the service medical records. Additionally, the appellant has brought forth medical evidence of diagnoses of chronic obstructive pulmonary disease and emphysema. However, the appellant has not brought forth a competent medical opinion or other evidence of a nexus between his current lung disease and exposure to chlorine gas in service. Although the appellant and his wife have asserted that the appellant developed lung disease as a result of chlorine gas exposure in service, they have not been shown to possess the medical expertise necessary to establish a nexus between a currently diagnosed chronic obstructive pulmonary disease and emphysema and chlorine gas exposure in service. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1991). The lay evidence of record, alone, does not provide a sufficient basis upon which to find this claim to be well grounded. See Grottveit, 5 Vet. App. at 93. A well-grounded claim must be supported by evidence, not mere allegations. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Here, the appellant has not met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim for service connection for a lung disease due to exposure to chlorine gas is well grounded. In the absence of competent medical evidence to support the appellant's claim, this claim must be denied as not well grounded. Since this claim is not well grounded, the VA has no further duty to assist the veteran in developing the record to support his claim. See Epps, 126 F.3d at 1467-68 ("there is nothing in the text of § 5107 to suggest that [VA] has a duty to assist a claimant until the claimant meets his or her burden of establishing a 'well- grounded' claim"). Furthermore, the Board is not aware of the existence of additional relevant evidence that could serve to make the appellant's claim well grounded. As such, there is no further duty on the part of the VA under 38 U.S.C.A. § 5103(a) to notify the appellant of the evidence required to complete his application for the claimed benefit. See McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997). ORDER New and material evidence having been submitted, the claim for service connection for a lung disease due to exposure to chlorine gas is reopened. A well-grounded claim not having been submitted, service connection for a lung disease due to exposure to chlorine gas is denied. JOY A. MCDONALD Acting Member, Board of Veterans' Appeals