Citation Nr: 0006067 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 98-09 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease due to claimed exposure to aviation fuel fumes and/or mustard gas. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Associate Counsel INTRODUCTION The veteran served on active duty from July 1943 to December 1946 and from September 1950 to April 1953. A claim for service connection for chronic obstructive pulmonary disease (COPD) claimed due to inhaling aviation fuel fumes was first denied by a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia in December 1991. The veteran was notified of the denial of his claim in a December 1991 letter but did not appeal. In May 1994, the RO determined that new and material evidence had not been submitted to reopen a claim for service connection for COPD claimed as a residual of inhaling gas fumes. The claims file was transferred to the Columbia, South Carolina RO and in April 1997, the Columbia RO determined that new and material evidence had not been submitted to reopen a claim for service connection for COPD. This appeal ensued. In the April 1998 NOD, the veteran contended, for the first time, that he was exposed to mustard gas during active service. He claimed that this exposure occurred at Fort Benning and at Jefferson Barracks in St. Louis in 1944 and claimed that his COPD resulted from that exposure. In light of this allegation of exposure to mustard gas, the Board notes that the theory of etiology has changed. A question arises as to whether the veteran is required to submit evidence that is new and material to reopen a previous final claim, or whether the recently submitted mustard gas claim is, in effect, an entirely new service connection claim. In Ashford v. Brown, 10 Vet. App. 120, 123 (1997), the U.S. Court of Veterans Appeals (now called the U.S. Court of Appeal for Veterans Claims) (hereinafter referred to as the Court) addressed whether a new claim had been submitted when, after denial of service connection for a claimed lung disorder, the veteran added asbestos exposure as a possible etiology. The Court stated, "Notwithstanding the nomenclature and varied etiology attributed to his disability, [the veteran's] lung condition, by any name, remains the same; it is inextricably intertwined with his previous claim for entitlement to service connection for a lung disorder." Thus, in that situation, the Court viewed the asbestos claim as merely an attempt to reopen a prior finally adjudicated claim. However, in Ashford, the Court distinguished its holding from the prior holding of Spencer v. Brown, 4 Vet. App. 283, 288-89 (1993), aff'd, 17 F.3d 368 (Fed. Cir. 1994), where it held the following: When a provision of law or regulation creates a new basis of entitlement to benefits, as through liberalization of the requirement for entitlement to a benefit, an applicant's claim of entitlement under such law or regulation is a claim separate and distinct from a claim previously and finally denied prior to the liberalizing law or regulation. The applicant's latter claim, asserting rights which did not exist at the time of the prior claim, is necessarily different. See, e.g., Sawyer v. Derwinski, 1 Vet. App. 130. 133 (1991). In the instant case, the RO's prior final decision was issued in May 1994. Subsequently, 38 C.F.R. § 3.316 was promulgated. See 59 Fed. Reg. 42499, August 18, 1994. This regulation links COPD with full-body exposure to vesicant agents (including mustard gas). The Board notes that in the instant case, the veteran's more recent claim for service connection for COPD due to mustard gas exposure arose after the new basis of entitlement to benefits was enacted. The Board is therefore inclined to view the claim for service connection for COPD due to mustard gas exposure as a new and separate claim in order to insure that the veteran is accorded every consideration available under the new regulation. The Board also finds that the issue of service connection for COPD due to exposure to vesicant agents is inextricably intertwined with earlier claims for service connection for COPD claimed due to other etiology. Therefore, the issue is recharacterized as shown on page one of this REMAND order. FINDINGS OF FACT 1. A diagnosis of COPD has been given. 2. In April 1998, the veteran reported that he had been exposed to mustard gas during active service. CONCLUSION OF LAW The claim of entitlement to service connection for COPD due to claimed exposure to aviation fuel fumes and/or mustard gas is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); Pearlman v. West, 11 Vet. App. 443 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. Denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim that is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing post-service continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). With respect to well groundedness of a mustard gas related claim, in the instant case, the Board finds that in accordance with Pearlman v. West, 11 Vet. App. 443 (1998), the veteran's present claim is well grounded. In Pearlman, the Court specifically held that, for purposes of submitting a well-grounded claim relating to exposure to toxic gases under 38 C.F.R. § 3.316, the Board must assume that lay testimony of a veteran regarding exposure is true. The veteran herein claims that he was exposed to mustard gas during active service at two different locations. The Board notes that a diagnosis of COPD has been given. Accordingly, the Board finds that his claim for service-connected disability as a result of this exposure is well grounded. Thus, VA's duty to assist has been triggered. ORDER The claim for service connection for COPD due to claimed exposure to aviation fuel fumes and/or mustard gas is well grounded. To this extent only, the appeal is granted. REMAND As noted above, the veteran has COPD. The regulatory requirements for service connection for this condition could be met if exposure to mustard gas is verified. Therefore, it is critical that the RO pursue proper verification in accordance with established procedure in this case. See VA's Adjudication Manual, M21-1, Part III, para 5.18. In view of the foregoing, the case is REMANDED to the RO for the following actions: 1. The RO should attempt to verify exposure to mustard gas in accordance with established procedure commensurate with the veteran's claim. 2. Following completion of the foregoing, the RO should review the claims file and ensure that all of the above mentioned development has been completed in full. If any development is incomplete or deficient in any manner, appropriate corrective action is to be implemented. 3. After ensuring that all requested development has been completed to the extent possible, the RO is to reevaluate the veteran's claim on the basis of all relevant evidence of record, and in light of all applicable statutes, regulations, and case law. 4. If the determination remains unfavorable to the veteran, he and his representative should then be provided with a supplemental statement of the case and afforded the appropriate period of time in which to respond. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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 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. 1999) (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. J. E. Day Member, Board of Veterans' Appeals