Citation Nr: 0000725 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 93-01 883 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for chronic laryngitis. 2. Entitlement to service connection for chronic bronchitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. J. Alibrando, Counsel INTRODUCTION The veteran served on active duty from February 1943 to February 1946. This appeal comes before the Board of Veterans' Appeals (Board) from a January 1992 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the case in November 1993 and February 1997. FINDINGS OF FACT 1. The veteran did not manifest symptoms of lung disease in service or for many years thereafter. 2. The veteran is not shown to have chronic form of bronchitis or laryngitis due to claimed mustard gas exposure or other incident in service. 2. The veteran is not shown to have experienced full-body mustard gas exposure during active military service. CONCLUSION OF LAW The veteran does not have chronic bronchitis and laryngitis due to disease or injury which was incurred in or aggravated by service or as the result of specified vesicant agent exposure during service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.316 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. All relevant facts have been properly developed, and no further assistance is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). A careful review of the veteran's service medical records shows that, in August and September 1944, he was treated for burns on the left and right forearms from mustard gas that the examiner noted had happened in Atlanta, Georgia. The service medical records are negative for complaints, findings or diagnoses of bronchitis or laryngitis. The lungs were normal on separation examination in February 1946. In September 1991, the veteran submitted an Application for Compensation or Pension (VA Form 21-526), indicating that, during service, he had trained in chemical warfare and had drops of mustard gas placed on both forearms. He added that the left forearm was left untreated and the area swelled to a diameter of about 1 1/2 inches. He indicated that a scar remained from the test. In October 1991, the National Personnel Records Center indicated that all the veteran's medical records were sent to the RO in August 1970. Private outpatient records dated from August 1987 to October 1997 show treatment for various disabilities and included diagnoses of bronchitis and laryngitis in January 1992. It also was noted that the veteran was a smoker. The medical records did not show evidence relating a chronic form of bronchitis and laryngitis to the exposure to mustard gas in service. On VA examination in November 1995, the veteran reported that, during service, he had mustard gas applied to each arm for a demonstration and also had to run through a chamber filled with a "poison gas" with and without a gas mask. He reported that he did not remember any particular adverse effects from this. He indicated that current symptoms included those of chronic cough with dyspnea on exertion on approximately 1 to 2 flights of stairs. He also reported having an upper respiratory infection several times per year that could last from 1 to 4 weeks. The impression included those of symptoms consistent with a mild bronchitis and history of exposure to mustard gas. The VA examiner indicated that there was a possibility that mustard gas could cause a chronic bronchitis, but since he had no symptoms at the time and there was no mention of this while in service, it would make it less likely. The examiner noted that ordered studies would be reviewed. The record showed that pulmonary function testing was conducted in December 1995 that showed forced expiratory flow rates were normal with the exception of a disproportionate reduction in mid-flow rates (FEF 25-75%). The remainder of the study was normal. The interpretation was that of borderline obstructive ventilatory defect. In December 1996, it was noted that a chest x-ray study done in December 1995 showed questionable nodular density to the right of the midline that could be related to the spine or an intrathoracic lesion. In May 1996, the examiner indicated that the veteran had a trivial reduction in his FEF 25-75, not likely of any clinical significance. He indicated that from a pulmonary standpoint, there is no evidence of long-term deleterious clinical effect from exposure to chemical warfare agents. On VA examination for scars in May 1996, the veteran reported that, during service, he had attended a training session at a chemical warfare base. He reported that he volunteered to participate in a demonstration of the danger of untreated mustard gas contamination of the skin. He indicated that a drop of the substance was placed on the right forearm and immediately wiped off. Another drop was placed on the left forearm and left untreated. He reported a blister developed and, after healing, had resulted in a small scar on his left forearm. The assessment was that of small hypopigmented scar on left forearm from mustard gas demonstration. In a March 1997 statement, the veteran reported that he had trained as a "chemical warfare NCO," but indicated that he could not remember where the training took place or what was involved in this training. In November 1997, the RO contacted the VA Central Office Rating Procedures/Program Management Staff, in accordance with the directions of VA Manual 21-1, Part 3, Chapter 5, Subchapter II, § 5.18d, to ascertain if the veteran's name appeared on one of the lists of Army and Navy volunteers who participated in chemical weapons testing between August 1943 and October 1945. The RO was informed that the veteran's name was not on any of the lists. By letter dated March 1998, the RO requested verification of mustard gas exposure from the U.S. Army Chemical and Biological Defense Command (CBDCOM). In a letter dated April 1998, the CBDCOM Historical Research and Response Team replied that it was unable to verify the veteran's alleged exposure to mustard gas and did not maintain military or personnel records of members of the military. It was also indicated that if any documentation of chemical classes, such as WD AGO Form 100 of a Form 20 where available, the inquiry could be resubmitted. In May 1998, the National Personnel Records Center indicated that no additional records regarding mustard gas testing were found. Under applicable criteria, service connection may be granted for disability resulting from disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. § 1110. (West 1991). With chronic disease shown as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service or in the presumptive period is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. §3.303(b) (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter the "Court") held in Savage v. Gober, 10 Vet. App. 488 (1997), that the chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and still has such a condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is demonstrated during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. Exposure to 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. 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. 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. Full-body exposure to nitrogen mustard during active service together with the subsequent development of acute nonlymphocytic leukemia. Service connection will not be established under this section if there is affirmative evidence that establishes a nonservice-related supervening condition or event as the cause of the claimed condition. 38 C.F.R. § 3.316(a)(1),(2),(3); (b) (1999). After a full review of the record, the Board concludes that the preponderance of the evidence is against the claims for service connection for chronic bronchitis and laryngitis. The service medical records are negative for any diagnosis of bronchitis or laryngitis during service. The first postservice suggestion of either condition was noted many years after service. As such, there is no medical evidence showing continuity of symptomatology of chronic bronchitis or laryngitis from the time of discharge from service to the present. Moreover, there is no medical evidence of any probative value, relating current bronchitis or laryngitis to the veteran's active service. The veteran asserts that the claimed disabilities are caused by exposure to mustard gas in service. The Board has reviewed the evidence of record, and notes that in Pearlman v. West, 11 Vet. App. 443 (1998), the Court articulated a relaxed standard for establishing a well-grounded claim of service connection in a case involving exposure to mustard gas. 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 the lay testimony of exposure is true. In light of Pearlman, the Board has determined that the veteran's claims are well-grounded. However, the Board further notes that it is still then necessary to determine whether the evidence confirms full-body mustard gas exposure or otherwise supports presumptive service connection under 38 C.F.R. § 3.316. Moreover, on review, the Board is obligated to provide findings as to the credibility to be assigned to the evidence of record. The veteran has asserted that he was exposed to mustard gas by way of both a patch test applied to the skin of each forearm and by way of chamber test with and without a gas mask. The medical records do show that the veteran reported that he participated in patch tests of mustard agent on the forearms with residual evidence of burns of the forearm. The veteran has been granted service connection for a scar on the left forearm from this form of mustard agent exposure. The RO has attempted to verify whether the veteran had full body exposure to vesicant agents as set forth in VA Manual 21-1. However, no verification of such exposure has been provided as defined in 38 C.F.R. § 3.316. In the VA Adjudication Manual, M21-1, Part III, Chapter 5, Subchapter II, paragraph 5.18(a) (April 30l, 1996), it is noted that the provisions of 38 C.F.R. § 3.316 authorizes service connection for veterans who underwent any full body exposure to mustard gas or lewisite during military service and include those exposed during field or chamber testing; under battlefield conditions in World War I; those who were present at the German air raid on the harbor of Bari, Italy, in World War II; and those engaged in manufacturing and handling vesicant (blistering) agents during their military service. Absent competent supporting evidence, the Board finds that the veteran's assertions of full body exposure to vesicant agents in service are not credible. It is pertinent to note in this regard that the veteran stated that he was unable to remember specific information referable to his claimed training exposure during service in his recent statement. In view of the Board's finding that the record does not support full body exposure to mustard gas under 38 C.F.R. § 3.316, any presumptions pertaining to mustard gas exposure are not applicable in this case. In addition, the Board notes the November 1995 VA examination report showed that the veteran did not have a chronic form of bronchitis or laryngitis that could be attributed to service. The veteran reported both patch test and chamber test exposure to mustard gas and the medical examiner's overall diagnosis included that of history of exposure to mustard gas with a comment that there is a possibility that mustard gas could cause a chronic bronchitis. The Board notes that, to the extent that this suggests that any bronchitis may be linked to full exposure to mustard gas, the examiner in this case is not capable of linking the veteran's claimed disabilities to service. Since the Board has determined that the veteran did not experience full body exposure to mustard gas during active service, the underlying premise of the examiner's statement is not accurate. It has been held that "[a]n opinion based upon an inaccurate factual premise has no probative value." Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Therefore, the Board concludes that the preponderance of the evidence is against the claims of service connection for chronic bronchitis and chronic laryngitis. In reaching this decision the Board finds that, as the preponderance of the evidence is against the veteran's claims, the doctrine of reasonable doubt is not for application in this case. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for chronic bronchitis and chronic laryngitis is denied. STEPHEN L. WILKINS Member, Board of Veterans' Appeals