Citation Nr: 0002733 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 98-15 186 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Sabrina M. Tilley, Counsel INTRODUCTION The veteran served on active duty from July 1940 to August 1943 and from October 1958 to October 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision. FINDINGS OF FACT 1. The veteran died in June 1997 of a lower respiratory infection due to end stage chronic obstructive pulmonary disease (COPD). 2. At the time of the veteran's death, service connection was in effect for post operative residuals of a herniated nucleus pulposus, L5, S1, with radiculopathy, L4 and L5 and osteoarthritis of the lumbosacral spine, rated as 40 percent disabling; bilateral varicose veins, rated as 30 percent disabling; osteoarthritis of the left shoulder acromioclavicular joint, rated as 10 percent disabling; and arthritis of the right shoulder acromioclavicular joint, rated as 0 percent disabling. 3. The appellant has not presented competent evidence to show that the disabilities causing the veteran's death were the result of tobacco use during his active service. CONCLUSION OF LAW The appellant's claim for service connection for the cause of the veteran's death is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 1310, 1312, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.312 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The law requires that a claimant shall have the burden of submitting a claim that is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The VA benefits system requires more than just an allegation of entitlement. A claimant must submit supporting evidence sufficient to justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Although the claim need not be conclusive, the statute requires the claim to be accompanied by some evidence. Id. The three elements of a "well grounded" claim for service connection are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the in-service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996); see also Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). Without evidence showing that a disease or disability is present, no plausible claim for service connection can be presented, and the claim is not well grounded. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but, rather, a causal connection must be shown. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The appellant claims that the veteran, her husband, died of disability incurred in his active service due to tobacco use. For claims filed prior to June 9, 1998, service connection may be granted for a disease that results from tobacco use in the line of duty during active military service. See VAOPGCPREC 2-97 (O.G.C. Prec. 2-97). In this case, the appellant's claim for service connection for the cause of the veteran's death, based on his tobacco use during his military service, falls under that opinion as the claim was filed in July 1997. Where the determinative issues involve questions of medical causation or medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Laypersons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Consequently, lay assertions of medical causation or medical diagnosis cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a). Lathan v. Brown, 7 Vet. App. 359, 365 (1995); Grottveit v. Brown, 5 Vet. App. 91, 95 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Hence, I find that the appellant's unsubstantiated allegations alone are an insufficient basis on which to establish a well-grounded claim for service connection for the cause of the veteran's death based on tobacco use. The veteran died of a lower respiratory infection due to end stage chronic obstructive pulmonary disease (COPD) in June 1997. The veteran's death and the disability listed as its cause satisfy the first element of a well-grounded claim, as listed above. The United States Court of Veterans Appeals (now the United States Court of Appeals for Veterans Claims, hereinafter the Court) has specified that where the claim at issue is service connection for the cause of death, the first element--competent medical evidence of a current disability-- will always be met, as the current disability is by definition the condition that caused the veteran's death. Ramey v. Brown, 9 Vet. App. 40, 46 (1996). The appellant contends that the veteran was a cigarette smoker throughout his active service. Although she acknowledges in her October 1997 statement that the veteran smoked prior to his active service, it is her contention that the veteran became nicotine dependent during his active service. To bolster her argument, the appellant states that prior to his active service, the veteran would have been able to stop smoking if he wanted to, but that during his service there was a significant increase in his tobacco use. Information provided in the veteran's claims folder shows that the appellant and the veteran were married in 1944, after the veteran's initial period of active service from July 1940 to August 1943. She has not indicated in her statements concerning the veteran's tobacco use in service whether she is referring to such use during his first period of service or during his later period of service from October 1958 to October 1969. The appellant's statements concerning the veteran's tobacco use are competent only to the extent that she can articulate information concerning what she experienced or observed. She is not competent to make statements concerning matters involving a determination of medical causation or diagnosis. See Falzone v. Brown, 8 Vet. App. 398 (1995). The veteran's service medical records do refer to his smoking during the time of his active service. For example, a May 1942 record shows that the veteran smoked about 10 cigarettes a day. He was noted to smoke moderately in a July 1943 report of hospitalization. In June 1960, the veteran was noted to smoke about 1 package of cigarettes a day. An August 1966 hospital report shows that the veteran smoked a half package of cigarettes a day. The veteran's death certificate shows that he died in June 1997 at a military medical facility of lower respiratory infection due to end stage COPD due to tobacco abuse. Marshall A. Silverman, M.D., in a memorandum dated in September 1997, noted that the cause of the veteran's hospital admission and eventual demise was COPD and exacerbation thereof. He added that by clinical history, physical examination and pulmonary function testing, the veteran suffered from COPD for much of his adult life. Dr. Silverman specifically stated This medical disorder is almost certainly a sequelae of long-term tobacco abuse. The veteran was known to have a greater than sixty pack year history of cigarette smoking. Although he had discontinued tobacco in the latter stages of his life, the damage done to his lungs by the cigarette addiction was irreversible and eventually fatal. Thus, Dr. Silverman relates the cause of the veteran's death - end stage COPD - to his long history of tobacco use. His opinion, however, does not specifically link the veteran's in-service smoking alone - rather than his entire smoking history -- to the fatal disease process. There is no medical evidence of record that provides this specific link to in- service smoking alone and the veteran's fatal COPD. In other words, the information lacking in the September 1997 statement is a connection between in-service tobacco use and disability causing death. In the absence of such evidence, the appellant's claim for service connection for the cause of the veteran's death, claimed to be secondary to tobacco use, is not well grounded. I note, in addition, that the appellant has argued that the veteran developed nicotine dependence during his active service. However, she is advised that nicotine addition is a neuropsychiatric disability requiring a medical diagnosis. Both the death certificate and Dr. Silverman's statement seem to raise the possibility of such a diagnosis. The death certificate refers to tobacco abuse of 40 years' duration, and Dr. Silverman refers to tobacco abuse and "cigarette addiction". The record does not, however, contain competent medical evidence that the veteran was ever given a diagnosis of nicotine addiction, during service or thereafter. Moreover, neither the death certificate nor Dr. Silverman indicate that the "tobacco abuse" or "cigarette addiction" was incurred or aggravated during the veteran's active military service. The death certificate dates the tobacco abuse to circa 1957, which is between the veteran's two periods of service. In the absence of evidence that nicotine dependence was incurred or aggravated during active military service, the claim for service connection for the cause of the veteran's death due to nicotine dependence is not well grounded. Therefore, there is no duty to assist the appellant under 38 U.S.C.A. § 5107. Nonetheless, under 38 U.S.C.A. § 5103(a), VA should inform the claimant of the evidence necessary to complete his application. See Robinette v. Brown, 8 Vet. App. 69 (1995). This obligation was successfully completed by the RO in its statement of the case. Specifically, by a letter dated in September 1998, the RO specifically notified the appellant that the record lacked medical evidence of a relationship between the disability causing death and tobacco use during active service; medical evidence that nicotine dependence arose during service; and medical evidence of a relationship between the disability causing death and nicotine dependence. Likewise, the Board's discussion above informs the appellant of the requirements for the completion of this application for the claim for service connection. Unlike the situation in Robinette, she has not put VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could make this claim well grounded. Finally, the appellant's representative has argued, in essence, that VA has expanded its duty to assist the claimant by provisions in its manual M21-1, and that the Board should determine whether the RO has followed the guidelines therein and remand the appeal for further development if the RO has not followed such guidelines. In Morton v. West, 12 Vet. App. 477 (1999), the Court rejected the argument that 38 C.F.R. §§ 3.103(a), 3.159(a); VA Adjudication Procedure Manual M21-1, Part III, para. 1.03(a) and Part IV, para. 2.10(f); and policies set forth in other VA documents require VA to assist the claimant in developing facts pertinent to the claim even though a well-grounded claim had not yet been submitted. The Court concluded that any perceived or actual failure by the Secretary to render assistance in the absence of a well-grounded claim cannot be legal error. Consequently, there is no basis upon which to comply with the representative's request in this regard. ORDER The appellant's claim for service connection for the cause of the veteran's death is not well grounded. MARY GALLAGHER Member, Board of Veterans' Appeals