Citation Nr: 0001620 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 96-26 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a respiratory disorder as due to mustard gas exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Lemoine, Counsel INTRODUCTION The veteran had active military service from December 1945 to June 1949 and from January 1951 January 1955. The Board of Veterans' Appeals (Board) received this case on appeal from an October 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the veteran's claim seeking entitlement to service connection for a respiratory disorder due to mustard gas exposure. The veteran submitted a notice of disagreement with that rating decision in October 1995. In March 1996, he was provided with a statement of the case. His substantive appeal was received in April 1996. The case was previously before the Board in February 1998 and was remanded to the RO for due process reasons. Following compliance with the Board's directives on Remand and further development, the RO continued the denial of the veteran's claim and he continued his appeal. The case is now returned to the Board. FINDINGS OF FACT 1. The veteran experienced a qualifying full body exposure to mustard gas during his military service. 2. The veteran has been diagnosed with chronic obstructive pulmonary disease (COPD), a disorder recognized by VA as being etiologically related to qualifying full body mustard gas exposure. 3. The veteran also has an approximate 40 year history of smoking a pack of day of cigarettes, however, by application of reasonable doubt, the record does not establish a nonservice-related supervening condition as the cause of his currently diagnosed COPD. CONCLUSION OF LAW The veteran's COPD is presumed to have been incurred in service due to his qualifying full body exposure to mustard gas. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.102, 3.303, 3.316 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background Review of the veteran's service medical records reveals that during 1946 he was treated for urticaria and dermatitis of the skin, and otitis media of the left ear. Some of these service medical records report by history that the veteran's occupation was as a labor supervisor at a Chemical Depot. In 1947 and subsequently, he was treated on several occasions for sinusitis, tonsillitis, and also for sore throats. He was treated for an episode of bronchitis in November 1952. The remainder of service medical records are negative for any respiratory complaints. The veteran's service personnel records (DA Form 20) also verifies that he served with the 193rd Chemical Depot Company from August 1946 until July 1947. The veteran's principal duty during that time was identified as a stock clerk. There are private medical records from Dr. J. McDowell, received in 1995 which indicate a diagnosis of COPD demonstrated by pulmonary function tests and chest X-ray study. A VA examination from July 1995 verified the diagnosis of COPD. In August 1995, the veteran reported his contentions that while working in a chemical depot in service he had been exposed to numerous gases by performing duties of shipping, handling, and storing gas filled munitions. The veteran also submitted a unit roster from Christmas 1946 for the 193rd Chemical Depot Company, which included his name. The veteran also submitted photocopies of 6 photographs, which showed large amounts of munitions being handled at the Chemical Depot. The veteran stated that many of these shells were filled with poison gas. In September 1995, a letter was received from the U.S. Army Chemical and Biological Defense Command, stating that further detailed information regarding claimed exposure was necessary in order to attempt a meaningful search of records and therefore, verification of the veteran's claimed exposure was not possible at this time. An October 1995 report from the National Personnel Records Center indicated there was no record of the veteran's exposure to gas or chemical agents. In July 1996, the veteran, accompanied by his representative, appeared and presented testimony at a hearing on appeal before a VA hearing officer. The veteran testified, in pertinent part, that at the 193rd Chemical Depot Company, their duties included destroying German munitions which contained gas. He indicated they disposed of captured German munitions and that his duties included moving and transporting these munitions, some of which contained gas. He stated it was common to have whiffs of gas and smell gas while handling these munitions. He noted that particularly on cool damp days the gas would remain lying low to the ground and you would smell it more The veteran indicated they just wore a regular duty uniform when handling all of these munitions for disposal, and were not provided any special equipment or protective clothing. He stated many of the munitions were loaded on to ships and then dumped at sea. The veteran also acknowledged a long history of cigarette smoking but stated that he quit smoking around 1980. A complete transcript of the testimony is of record. Subsequently received in 1996 were additional private medical records including records from Smyth County Community Hospital showing that the veteran had been diagnosed with COPD as early as February 1983. Following the Board's February 1998 remand, additional private medical records from Smyth County Community Hospital were received showing additional treatment of the veteran and a continuation of the diagnosis of COPD. Also received in May 1998, was a letter dated in May 1997 from the U.S. Army Chemical & Biological Defense Command Historical Research and Response Team. This letter stated that there were few records available for the 193rd Chemical Depot Company. However, it was verified that the unit operated in an area where shells were filled with mustard agent, mustard agent was stored in open drums, and mustard agent was stored in 6 separate buildings. It was further stated that the 193rd Chemical Depot Company had the job of clearing the area of these German wartime chemical agents. Shells were emptied and destroyed by the 193rd Chemical Depot Company in accordance with procedures of the time, which included burning empty shell casings and a considerable amount of mustard agent was transported for deep sea scuttling. In conclusion, it was noted that although there was no record of the veteran having been burned by mustard agent, it can be stated that he worked in close proximity to vast quantities of mustard agent, which alone should provide ample evidence of the possibility/probability of exposure to the agent. The veteran subsequently underwent another VA examination in July 1999, which again made a diagnosis of COPD. The examiner further opined that the veteran acknowledged smoking cigarettes from 1944 until 1983, approximately a pack a day, and that the veteran did not report respiratory exposure to handling mustard gas but rather skin exposure from loading shells onto trains. It was concluded that the veteran's COPD was more than likely related to his 40 year history of cigarette smoking and not related to possible topical mustard gas exposure. II. Analysis Initially, the Board notes that in the case of Pearlman v. West, 11 Vet. App. 443 (1998), 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") addressed the application of 38 C.F.R. § 3.316 in determining the well-groundedness of claims. The Court indicated that under 38 C.F.R. § 3.316, the initial burden for a well-grounded claim was relaxed for veterans who subsequently developed conditions specified by the regulation, to the extent that the regulation did not require evidence of a medical nexus for those conditions, but rather a nexus was presumed if the other conditions required by the regulation were met. Pearlman at 446. The Court specified that "the veteran is relieved of his burden of providing medical evidence of a nexus between the current disability and the in-service exposure. Rather, service connection is granted if the appellant has experienced: (1) full body exposure, (2) to the specified vesicant agent, (3) during active military service, and (4) has subsequently developed the specified conditions;" subject to the regulatory exceptions in paragraph (b). Id. The Board notes that in Pearlman, the veteran had stated he had participated in secret testing involving mustard gas exposure and he had subsequently developed respiratory disorders which were among the conditions specified within 38 C.F.R. § 3.316. Although all efforts by VA to substantiate his claimed exposure were unsuccessful, the Court held "that for the purpose of submitting a well- grounded claim relating to exposure to toxic gases under this regulation, the Board must assume that the lay testimony of exposure is true." However, the Court further noted that "whether or not the veteran meets the requirements of this regulation, including whether or not the veteran was actually exposed to the specified vesicant agents, is a question of fact for the Board to determine after full development of the facts." Pearlman at 447. Accordingly, the Board finds that the appellant'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 not inherently implausible. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). However, the establishment of a plausible claim does not dispose of the issue in this case. The Board must review the claim on its merits and account for the evidence which it finds to be persuasive and unpersuasive and provide reasoned analysis for rejecting evidence submitted by or on behalf of the claimant. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996), citing Gilbert, at 54. In order to establish service connection for a disability, there must be objective evidence that establishes that such disability either began in or was aggravated by service. 38 U.S.C.A. §§ 1110, 1131. If a disability is not shown to be chronic during service, service connection may nevertheless be granted when there is continuity of symptomatology post- service. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). In addition, claims based on chronic effects of exposure to mustard gas and Lewisite are governed by 38 C.F.R. § 3.316 (1999), which provides the following: (a) Except as provided in paragraph (b) of this section, exposure to the 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: (1) 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. (2) 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. (3) Full-body exposure to nitrogen mustard during active military service together with the subsequent development of acute nonlymphocytic leukemia. (b) Service connection will not be established under this section if the claimed condition is due to the veteran's own willful misconduct or there is affirmative evidence that establishes a non-service-related supervening condition or event as the cause of the claimed condition. 38 C.F.R. § 3.316 (1999). Having reviewed all of the evidence of record, the Board will first address the question of whether the veteran experienced a qualifying exposure to mustard gas in service. In this regard, the Board notes that the term "full body exposure" is not defined by regulation. However, the VA's Adjudication Procedure Manual M21-1, Part III, § 5.18(a) (April 30, 1996) (hereinafter, "the M21-1") defines full body exposure as including all those veterans who (1) were exposed to said chemical during field or chamber testing; (2) were exposed under battlefield conditions in World War I; (3) were present at the German air raid on the harbor of Bari, Italy, in World War II; or (4) were engaged in the manufacturing and handling of vesicant (blistering) agents during their military service. By application of this definition of full body exposure, the Board finds that the veteran did experience full body exposure to mustard gas in service as he was engaged in the handling of vesicant (blistering) agents during his military service. More specifically, it is clear from the record that the veteran was assigned to the 193rd Chemical Depot Company from 1946 to 1947. The veteran has provided credible testimony and photographic evidence of the nature of his work at that time. He has testified that he carried and transported numerous shells and munitions for destruction and that it was common to sniff gas when doing so and that on many occasions, gas could be smelled in the camp. Furthermore, the May 1997 letter from the U.S. Army provides historical verification of the mission of the 193rd Chemical Depot Company, indicating that shells were sometimes emptied and burned and that it was common for mustard agent to be scuttled at sea. The letter concluded that the veteran was in close proximity to vast quantities of mustard agent, which alone should provide ample evidence of the possibility/probability of exposure. Accordingly, the Board resolves the question of exposure in the veteran's favor. The Board next notes that there is indisputable medical evidence of a current diagnosis of COPD, and that 38 C.F.R. § 3.316(a) provides a presumption that service connection is warranted under those circumstances. No further medical evidence of a nexus between exposure and the diagnosed disorder is required in order to establish service connection. See Pearlman at 447. However, before service connection may be granted under 38 C.F.R. § 3.316(a), the Board must also consider the application of 38 C.F.R. § 3.316(b) regarding whether there is affirmative evidence that establishes a non-service- related supervening condition or event as the cause of the claimed condition. In this regard, the Board notes that the veteran has acknowledged that he had a prolonged history of smoking a pack a day of cigarettes, for approximately 40 years. The Board has also considered the findings of the most recent July 1999 examination of the veteran, which concluded that his COPD was more likely than not related to his cigarette smoking. The Board notes however, that the July 1999 examination did not fully consider the veteran's complete verified history. The examination reported that the veteran gave a history only of topical exposure from the handling of shells. However, the examination made no reference to the veteran's testimony concerning having smelled gas on many occasions. Nor did the examination discuss the U.S. Army history which indicated that emptied mustard gas shell casings were often destroyed by burning or that "vast quantities" of mustard agent were stored, handled, and destroyed by the 193rd Chemical Depot Company during the veteran's service. The Board notes that it is not competent to ascertain the likelihood of the veteran's COPD being attributed to his cigarette smoking, without a solid foundation in the record grounded in medical evidence. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board does, however, have a duty to assess the credibility and weight to be given to the evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). Accordingly, the Board finds that the conclusion reached by the July 1999 examination was based predominantly on an incomplete history provided by the veteran, and not a complete history which would have demonstrated a greater likelihood of a higher level of exposure than that discussed during the examination. When a medical opinion relies at least partially on the veteran's rendition of his own medical history, the Board is not bound to accept the medical conclusions as they have no greater probative value than the facts alleged by the veteran. Swann v. Brown, 5 Vet. App. 229, 233 (1993). In conclusion, the Board notes that while there is some evidence of record that the veteran's COPD may be due to his cigarette smoking, the Board does not find that this evidence is persuasive. Given the regulatory presumptions, given the significant amounts of mustard gas agents destroyed by the 193rd Chemical Depot Company, and given the likelihood of significant full body exposure experienced by the veteran during his handling of such chemical agents, it is at least as likely as not that his COPD is related to his mustard gas exposure as to his cigarette smoking. The evidence is at least in equipoise on this point. As noted previously, to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996), citing Gilbert, at 54. However, the Board finds that such is not the case in the claim. The Board, based on its review of the relevant evidence in this matter, finds that the evidence is at least in equipoise as to whether the veteran's COPD may be attributed to a non-service-related supervening condition, namely cigarette smoking, as discussed in 38 C.F.R. § 3.316(b). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. Granting the veteran the benefit of doubt, the Board finds that the presumptions granted by 38 C.F.R. § 3.316(a) are for application to the veteran's claim. Accordingly, in light of the foregoing, and granting the veteran the benefit of any doubt, the Board concludes that service connection for this claim is warranted. ORDER Entitlement to service connection for COPD as due to mustard gas exposure is granted. BARBARA B. COPELAND Member, Board of Veterans' Appeals