On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri
THE ISSUES
1. Entitlement to service connection for a lung disorder, to include as due to or as a consequence of participation in Project 112, while on active duty.
2. Entitlement to service connection for a thyroid disorder, to include as due to or as a consequence of participation in Project 112, while on active duty.
3. Entitlement to service connection for a larynx disorder, to include as due to or as a consequence of participation in Project 112, while on active duty.
4. Entitlement to service connection for hypertension, to include as due to or as a consequence of participation in Project 112, while on active duty.
REPRESENTATION
Appellant represented by: Robert P. Walsh, Attorney at Law
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
A. Cryan, Counsel
INTRODUCTION
The Veteran served on active duty from February 1963 to February 1966.
This appeal to the Board of Veterans' Appeals (Board) is from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for a lung condition (claimed as chronic obstructive pulmonary disease, asthma, emphysema, and chronic bronchitis), a thyroid condition, hypertension, and a chronic larynx condition.
The Veteran testified at a hearing at the RO in September 2007, before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is associated with the claims file.
In February 2008, the Board denied the Veteran's service connection claims for a lung disorder, a thyroid disorder, a larynx disorder, and hypertension. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In August 2009, the Court vacated the Board's decision and remanded these issues to the Board pursuant to an August 2009 Joint Motion for Partial Remand. Accordingly, in October 2009, December 2011, and April 2013, the Board remanded the claims to the Appeals Management Center (AMC) for further evidentiary development and consideration. These issues are once again before the Board.
The appeal is REMANDED to the RO via the Agency of Original Jurisdiction (AOJ) will notify the Veteran if further action on his part is required.
The Board notes that the Veteran submitted a statement in August 2013 indicated that the AOJ erred in denying a compensable rating for service-connected tinnitus which was granted in an April 2008 rating decision. It does not appear that this claim has been adjudicated by the AOJ. Therefore, the claim for a compensable rating for tinnitus is referred to the AOJ for appropriate action.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. §
20.900(c). 38 U.S.C.A. § 7107(a) (2) (West 2002).
REMAND
After a thorough review of the Veteran's claims file, the Board has determined that once again a remand is necessary prior to adjudication of the claims on appeal. The Board is cognizant of the fact that these claims have been in adjudicative status since 2004, and that they have been remanded in the past. Consequently, the Board wishes to assure the Veteran that it would not be remanding his case again unless it was essential for a full and fair adjudication.
As background, the Veteran contends his lung, larynx and thyroid disabilities, and hypertension were the result of his exposure to chemical, biological, and radioactive substances while participating in Operation ELK HUNT while on active duty. ELK HUNT was part of Project 112.
Concerning this, the Veteran's service personnel records and a January 2004 letter from VA confirm that he was a participant in Project 112 testing and specifically part of the ELK HUNT tests. The Veteran participated in Project ELK HUNT from June 1964 to September 1964, as a decontamination specialist.
In 2002, the Department of Defense (DoD) released information on Project 112 and Shipboard Hazard and Defense (SHAD) That information noted that DoD conducted various tests on animals to determine the effectiveness of shipboard detection and protective measures against chemical and biological threas; the protective measures taken against chemical and biological warfare agents, and to determine the potential risk to American forces posed by these agents. The materials used for testing included biological warfare agent stimulants, chemical warfare agents, chemical warfare agent stimulants, and various chemical decontaminants.
DoD further admitted that it had released several toxins, such as VX and sarin, and that it had conducted studies on the exposed individuals. Much of the information surrounding Project 112 remains classified, but various directives have been issued which delineate the many substances used as part of the testing program to include but not limited to coxiella burnetii, pasteurella (now renamed francisella) tularensis; biological and chemical warfare agent simulants including bacillus globigii, E. coli and serratia marcscens; chemical warfare agents such as sarin, and VX; chemical warfare agent simulants such as methylactoacetate and sulfue dioxide; and tracer materials such as zinc cadmium sulfide; and various chemical decontaminants including beta-propiolactone, ethyl alcohol, llysol, peracetic acid, potassium hydroxide, sodium hydroxide and sodium hypochlorite. Information specific to the ELK HUNT tests indicates that ELK HUNT, Phase I, involved standard and modified VX nerve agent and ELK HUNT, Phase II involved the use of standard VX nerve agent.
Following the last Board remand in April 2013, the AMC contacted several sources for additional information. Specifically, the AMC contacted the Army Medical Research and Material Command in Fort Detrick, Maryland (via letters dated in June 2013 and August 2013), Edgewood Chemical and Biological Center Tech Library (via an undated letter), an Army historian (via an email dated in October 2013), and the U.S. Army Test and Evaluation Command (ATEC) (via an email in October 2013).
In June 2013, the Army Medical and Research Command submitted a letter indicating that there were no records found. The AMC failed to advise the Veteran of this fact.
Associated with the claims file is an October 2013 memorandum from ATEC which includes reference to five enclosures (listed in the memorandum). It appears that these enclosures were associated with the claims file in August 2013.
It does not appear that the AMC received responses from Edgewood Chemical and Biological Center Tech Library or the Army historian. The AMC failed to follow up on the requests and did not inform the Veteran that there was no information obtained from these sources.
Associated with the claims file are several VA examinations obtained in order to determine the etiology of the Veteran's claimed disabilities. In August 2010, a VA examination was performed by an advanced nurse practitioner (ANP) who provided negative nexus opinions. The examination was co-signed by a medical doctor; however, it appears that the ANP conducted the examination and proffered the opinion. The medical doctor who signed off on the examination proffered an addendum opinion with a negative nexus with regard to only hypothyroidism in April 2011. While the medical doctor considered the Veteran's reported exposure to V/X nerve agent, he based the opinion on the inaccurate premise that the Veteran wore protective clothing and gas masks while working as a decontamination specialist during his participation in Project ELK HUNT. In fact, the Veteran has testified that he wore no such protective gear and he submitted pictures showing him handling contaminated uniforms wearing no shirt.
In June 2012, an addendum opinion was obtained from a VA physician's assistant (PA) who concluded that it was less likely than not that any of the Veteran's claimed disorders were related to the Veteran's "exposures." He provided no rationale to support this contention. The same PA performed a physical examination of the Veteran in October 2012 and provided a negative nexus with regard to chronic obstructive pulmonary disease (COPD), hypothyroidism, chronic laryngitis, and essential hypertension. He found it more likely that the Veteran's history of smoking and exposures working in a saw mill and in construction were the cause of the Veteran's hypertension, COPD, and chronic laryngitis. He indicated that the Veteran's hyperthyroidism was idiopathic.
The Veteran submitted a December 2012 independent medical opinion from C. Bash, M.D. Dr. Bash concluded that the Veteran has end-stage lung disease and pulmonary hypertension as a result of his exposure to V/X nerve agent. To support his contention, he cites to a medical treatise on exposure to mustard gas. He also noted that the Veteran's hypertension is pulmonary which means that the Veteran's lung capacity pressure is higher than normal and was due to his pulmonary fibrosis as the small blood is occluded due to the fibrosis. He noted that the Veteran has been treated for ongoing COPD/asthma and as a consequence suffers pulmonary hypertension. He stated that the Veteran has "chemical lung" but did not include a definition for such diagnosis or any objective testing to support this blanket assertion. He noted that while the Veteran's past use of cigarettes would be expected to cause an obstructive type lung disease process, the Veteran has current restrictive disease. Although Dr. Bash indicated that he based his conclusions, in part, on medical imaging, there are no clinical findings or pulmonary function testing to verify the accuracy of the diagnosis of pulmonary hypertension or the claim that the Veteran's lung disorders are restrictive in nature. A review of the record reveals that pulmonary hypertension has not been diagnosed prior to Dr. Bash's opinion and it is unclear whether the Veteran's lung disorders are restrictive in nature particularly in light of the fact that he has been diagnosed with chronic obstructive pulmonary disease.
Accordingly, the Board finds that another medical opinion should be obtained from a medical doctor. On remand, the examiner is requested to specify whether the Veteran has restrictive or obstructive lung disorders and whether a diagnosis of pulmonary hypertension is appropriate. Thereafter, the examiner should render etiology opinions with regard to the Veteran's claimed lung disorder, thyroid disorder, larynx disorder, and hypertension, considering the Veteran's verified exposure to V/X nerve agent and modified V/X nerve agent and any other toxins to which he was exposed during his service.
(Please note, this appeal has been advanced on the Board's docket pursuant to 38
C.F.R. § 20.900(c). Expedited handling is requested.)
Accordingly, the case is REMANDED for the following action:
1. The AOJ should follow-up the prior requests for information from Edgewood Chemical and Biological Center Tech Library and the Army historian with regard to any other relevant information from phase I of Operation Elk Hunt, Project 112, which was conducted in the vicinity of Fort Greely, Alaska, from July 3, 1964 to August 15, 1964. Specifically, the AOJ should attempt to obtain information regarding what chemical agents participants were potentially exposed to (e.g. nerve agents, mustard gas, Agent Orange, etc.) and any medical records relating to the Veteran.
If, after making reasonable efforts, to include any follow-up efforts suggested, the AOJ cannot obtain these records it must specifically document what attempts were made to obtain the records, and indicate in writing that further attempts to locate or obtain any such government records would be futile. The AOJ must then: a) notify the Veteran of the records that it is unable to obtain, (b) explain the efforts VA has made to obtain that evidence, and (c) describe any further action it will take with respect to the claim(s). The Veteran must then be given an opportunity to respond.
2. After any additional information is either added to the claims file or determined not to exist, schedule the Veteran for VA examination(s) by an a medical doctor with appropriate expertise to determine the appropriate diagnoses, nature, extent, and etiology of any lung disorders, thyroid disorder, larynx disorder and hypertension. The examiner should indicate what the appropriate diagnoses with regard to the lungs are and state whether any or all of the disorders are restrictive or obstructive in nature based on objective testing. The examiner should also conduct any necessary tests to determine whether the Veteran has pulmonary hypertension. If the examiner determines that further examination is necessary with regard to the claims for thyroid and larynx disorders, examination(s) for those disorders should also be obtained. The examination(s) are to be conducted in accordance with VHA Directive 2004-016 entitled "Provision of Health Care Services to Veterans Involved in Project 112/Shipboard Hazard and Defense (SHAD) Testing." The AOJ is hereby notified that when scheduling the examinations, that the AOJ must specifically note that the examinations should be performed in accordance with the above directive. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The claims folder must be available to the examiner{s), and review of the pertinent evidence therein should be noted. If an examiner indicates that he or she did not review the claims file, then the examination(s) will be determined to be inadequate.
The examiner(s) should comment on Dr. Bash's report and any other clinical evidence of record, to the extent that such evidence does not agree with the current examiner's findings.
The examiner(s) must express opinions as to whether it is at least as likely as not (a 50 percent or greater probability) that that the Veteran currently has a lung disorder(s), a thyroid disorder, a larynx disorder, and hypertension as a result of active service, including as a result of exposure to biochemical materials during Project 112 testing, or whether such a relationship to service and hazardous material exposure is unlikely (i.e., less than a 50 percent probability). The examiner(s) must provide opinions both as to whether any currently diagnosed disorder was incurred on a direct basis during active duty and whether any currently diagnosed disorder was secondary to the exposure to bioch,:mical materials. If any examiner(s) is unable to provide the requested opinions, the AOJ should refer the case to another qualified expert in order to obtain the requested opinions. A complete rationale for all opinions should be included.
3. Then, readjudicate the claims. If action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.ll00(b) (2013)
