BVA9501504 DOCKET NO. 88-13 128 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant, Philip Elliott, Donald E. Neil and Thomas P. Dickey ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from June 1938 to July 1945 and from May 1949 until his retirement in May 1967. He died in March 1980. The appellant is his widow. By rating decision dated in February 1981, the Regional Office (RO) of the Department of Veterans Affairs (VA) denied the appellant's claim of entitlement to service connection for the cause of the veteran's death. She was provided with notice of this determination and of her right to appeal by a letter dated later that month. A timely appeal was not received. This appeal arises from a determination by the RO in August 1987 that the evidence submitted by the appellant was not new and material, and her claim of entitlement to service connection for the cause of the veteran's death was not reopened. The notice of disagreement was received in September 1987. In March 1989, the Board of Veteran's Appeals (the Board) remanded the case for further factual development. Subsequently, this case has been subject to development via an opinion from the Office of the General Counsel of VA, an independent medical expert opinion and two opinions from the Under Secretary for Health for VA. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that the evidence submitted since the RO's decision of February 1981 is new and material, and warrants service connection for the cause of the veteran's death. She argues that his exposure in service to carcinogenic agents was the precipitating factor in the fatal lung cancer. She maintains that he was exposed to various toxic chemicals during service and that such exposure resulted in cancer. She reports that when the cancer was discovered in 1977, the physician told her that it had been present for at least 10 years. In addition, it is argued on behalf of the appellant that the majority of the veteran's cigarette smoking occurred during service, and that the medical opinions of record establish that this was the causative factor in the development of adenocarcinoma of the lung. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has been submitted to reopen a claim of entitlement to service connection for the cause of the veteran's death, and that the evidence as a whole supports the claim for service connection for the cause of the veteran's death. FINDINGS OF FACT 1. All relevant and available evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. By rating decisions dated in June 1980 and February 1981, the RO denied the appellant's claims of entitlement to service connection for the cause of the veteran's death on the merits. She was notified of the latter decision by a letter dated in February 1981. A timely appeal was not perfected. 3. The evidence submitted since the RO's most recent determination on the merits includes evidence which has not previously been considered and which is relevant, probative and capable of changing the outcome of this case. 4. The veteran's death was due to a malignant tumor and its complications; no other condition caused or contributed to cause death. 5. The malignant tumor of the lung that caused death was not present in service or within one year after separation from a period of service. 6. All the evidence of record, both old and new, shows that it is at least as likely as not that the veteran's cigarette smoking during his periods of active service caused the lung cancer which resulted in his death. 7. Cigarette smoking in this case constitutes an event or exposure in service that proximately resulted in disability and death due to a malignancy post service. CONCLUSIONS OF LAW 1. The evidence received since the RO denied entitlement to service connection for the cause of the veteran's death in February 1981 is new and material and the claim is reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.156, 20.302(a) (1994). 2. Cigarette smoking is an event or exposure which was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); O.G.C. Prec. Op. 2-93 (January 13, 1993). 3. Carcinoma of the lung which caused the veteran's death was proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 101(16), 1110, 1131, 1310, 5107 (West 1991); 38 C.F.R. §§ 3.303(d), 3.312 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The record discloses that the veteran was 58 years old when he died in March 1980 of adenocarcinoma of the lung with probable brain metastasis due to probable increased intracranial pressure secondary to the metastasis. No other conditions were listed as contributing to his death. An autopsy was not performed. At the time of his death, service connection was not in effect for any disability. The RO denied the appellant's initial claim for service connection for the cause of the veteran's death in a rating decision dated in June 1980. This decision was predicated on a finding that there was no evidence of carcinoma of the lung during service or for many years thereafter. Her claim was again denied in a rating action of February 1981. In June 1987, she submitted additional evidence seeking to reopen her claim of entitlement to service connection for the cause of the veteran's death. The RO, in a determination dated in August 1987, found that the evidence submitted by the appellant was not new and material to her claim. The veteran's widow appealed this determination to the Board. Certain basic facts in this case are well established and not in dispute. The service medical records disclose no recognizable complaints or findings concerning any chronic lung disability, including cancer. When the veteran was seen in April 1960 for complaints of intermittent cramps in the stomach, it was noted that "coffee + cigarettes" hurt him. No findings concerning the lungs were recorded at that time. The impression was gastroenteritis. The lungs and chest were evaluated as normal on the separation examination in December 1966. A chest x-ray at that time was interpreted as normal, as had been several prior chest x-rays in service. The veteran was hospitalized in a service department facility from April to May 1977. He reported that, in November 1976, he began to experience symptoms of intermittent swelling and pain in both ankles with pain in both knees and hips. The swelling and pain were worsened by climbing stairs or walking. He also noted a persistent slight dry cough without sputum production. Evaluations were repeatedly negative until a chest x-ray revealed a 6 centimeter right paratracheal mass. He denied weight loss, malaise or hemoptysis. He admitted to a "heavy" smoking history of one and one-half packages of cigarettes per day for the "past 40 years." A right lung tomography revealed a homogenous right upper lobe mass, consistent with carcinoma. He underwent a right upper lobectomy. Pathology reports showed a poorly differentiated adenocarcinoma with no nodules involved. The discharge diagnosis was status post thoracotomy. The veteran was admitted to a VA hospital in December 1978. The diagnosis was adenocarcinoma of the lung, recurrent in the right hilum and supraclavicular nodes. The terminal hospital report shows that the veteran was admitted to a VA facility in March 1980 and died later that day. The diagnoses were adenocarcinoma of the lung with probable brain metastasis and probable increased intracranial pressure secondary to the metastasis. The Board finds highly credible the statement noted during hospitalization in April 1977 as to the veteran's history of "heavy" cigarette smoking at a uniform rate of one and one-half packs per day for 40 years. The statement was given for clinical purposes in the context of medical treatment, while the veteran consumed cigarettes and prior to any claim for benefits. The Board concludes that this statement accurately reflects the veteran's cigarette smoking history. This appeal has presented a series of complex legal and factual questions which will be addressed in the sub-headings below. 1. Whether the Appellant is a Claimant As the United States Court of Veterans Appeals (the Court) recently stated: [this] Court has held that Congress established and allocated "chronological obligations" to be fulfilled in the process of adjudicating claims for benefits by veterans. In addition, we have held that the statutes require the Secretary to make discrete consequential decisions at certain stages in the adjudication process and to support those decisions by statement of reasons or bases. Such statutorily required decisions include: Did the individual establish his or her eligibility as a proper claimant? Was a well-grounded claim submitted? Was new and material evidence submitted since the last final denial of the claim? The answers to these questions will determine the nature and extent of any further statutory 'chronological obligations.' Sarmiento v. Brown, 7 Vet.App. 80, 84 (1994). The appellant has submitted copies of records reflecting her marriage to the veteran in May 1955. The Certificate of Death shows the veteran was married at the time of his death to the appellant. The appellant qualifies as the surviving spouse of the deceased veteran for VA compensation purposes, and thus qualifies as a claimant. 38 U.S.C.A. § 1102 (West 1991); Aguilar v. Derwinski, 2 Vet.App. 21 (1991); Selley v. Brown, 6 Vet.App. 196 (1994). 2. Whether the Appellant's Claim is Well Grounded The Veterans Judicial Review Act of 1988, Pub. L. No. 100-687, § 402 (1988), created a statutory requirement that all persons pursuing claims for benefits from VA have the burden of submitting evidence sufficient to justify a belief in a fair and impartial individual that the claim is "well grounded." 38 U.S.C.A. § 5107(a). This requirement is not qualified in any fashion on the face of the statute. It is of great significance because where the person seeking benefits has submitted a well-grounded claim, VA then has a "duty to assist" that person in developing the facts pertinent to that claim. Id. Whether the concepts of "new and material evidence" and "well grounded" are applicable to the circumstances present in this case and, if so, which takes precedence, is not clear from the law or governing regulations. The Court has stated that " '[n]ew and material evidence' is, by its nature, well grounded, i.e., evidence that, if believed, would provide a 'reasonable possibility' that the outcome would be changed." Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992). On the other hand, the Court has not explicitly held that the reciprocal of this equation must be true, i.e. evidence sufficient to establish a well- grounded claim is necessarily "new and material evidence." The Court has held that the threshold of whether a claim is well grounded is "rather low," (White v. Derwinski, 1 Vet.App. 519, 521 (1991)), and a panel of the Court has stated: Despite the finding that appellant did not submit new and material evidence to reopen his claims, this Court's decisions in White v. Derwinski, 1 Vet.App. 519 (1991), and Ivey v. Derwinski, 2 Vet.App. 320 (1992), stand for the proposition that, even absent the submission of new and material evidence, the duty to assist may still be triggered under appropriate circumstances. Counts v. Brown, 6 Vet.App. 473, 476 (1994) (Farley, J., Mankin, J. concurring). As one of the concurring opinions in Counts notes, this is undoubtedly an accurate characterization of the state of the case law, although the opinion observes there is no visible statutory support for the concept that there could be a "duty to assist" in the absence of a pending claim. The concurring opinion also notes that the Court has "definitely" held that the submission of a well-grounded claim is "a prerequisite to the triggering of the duty to assist obligation under section 5107(a)." (Citation omitted.) Id. at 481. The passage from Sarmiento quoted above, which post-dated Counts, presents both "well grounded" and "new and material" as part of a set of "discrete consequential decisions," which the Court has found the statutory scheme requires, and has listed them in that order. In McGinnis v. Brown, 4 Vet.App. 239 (1993), the Court found that where the Board improperly reopened a claim which was previously and finally denied, the proper remedy was to vacate the Board's decision to reestablish the finality of the prior determination. But see Thompson (Charles) v. Derwinski, 1 Vet.App. 251, 252 (1991) (affirming Board decision in the same circumstances on the basis that it was harmless error). In Grottveit v. Brown, 5 Vet.App. 91, 93 (1993), the Court found that where the Board adjudicated a claim on the merits that was not well grounded as a matter of law, the proper remedy was to vacate the Board's decision to "allow the appellant to begin, if he can, on a clean slate." In that case, the Court spoke of the "inertia created by a final denial in the calculus for readjudication" as a significant detriment to the appellant. But see Tirpak v. Derwinski, 2 Vet.App. 609 (1992) (affirming Board decision in the same circumstances). In Edenfield v. Brown, 6 Vet.App. 432, 433 (1994) (per curiam order), the en banc Court, noting these apparently conflicting authorities, directed that the parties were invited to submit supplemental memoranda on a series of questions, one of which appears to address the applicability and precedence of the concepts of "well grounded" and "new and material evidence." In light of the above status of the case law, the Board finds that both the concepts of "well grounded" and "new and material" must be addressed, in that order, in this appeal. In Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990), the Court defined a well-grounded claim as "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible . . . ." The Court has underscored the fact that the statute requires that a claim must be accompanied by evidence. Tirpak, 2 Vet.App. at 611. The Court has further held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Grottveit, 5 Vet.App. at 93. In this regard, the Court has determined that a lay person can provide evidence as to visible symptoms, but where evidence is required as to medical diagnosis or causation, only those with medical expertise acquired through knowledge, skill, experience, training or education can provide competent evidence. Espiritu, 2 Vet.App. at 494; Grottveit, 5 Vet.App. at 92-93. The Court has further held that a lay party's assertion of medical causation is not sufficient to establish a plausible, well-grounded claim (or, for that matter, to provide a predicate to reopen a previously and finally denied claim). Moray v. Brown, 5 Vet.App. 211, 214 (1993). In support of her application to reopen her claim, the appellant submitted statements from a private physician, Leonard R. Levy, M.D., in which he opined that the veteran's reported exposure to toxic substances during the course of his duties as an aircraft mechanic in service was the etiology of the fatal carcinoma. Subsequently, the Board submitted the record to an independent medical expert and secured memoranda dated in August 1993 and December 1994 from VA's Under Secretary for Health. The content of these opinions will be discussed below. In substance, they constitute competent evidence on the determinative issue of medical causation, and this evidence makes plausible the claim of a causal link between service and the subsequent development of the disability which produced the veteran's death. Accordingly, the Board finds that the appellant's claim is well grounded. Murphy, 1 Vet.App. at 81. As noted above, the important practical significance of the appellant's "chronological obligation[]" of presenting a well- grounded claim is that it triggers VA's "duty to assist" the appellant in the development of the facts pertinent to her claim. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). In this regard, the appellant's assertion that a physician told her in 1977 that the veteran's cancer had been present for "ten years" was noted by the Board at the time of the remand in March 1989. The Board requested that the originating agency take action to secure all tissue slides and other pathologic materials developed during the veteran's treatment and evaluation for lung cancer at the Philadelphia Naval Regional Medical Center in April and May 1977. The Board indicated that once such material was gathered, it would be submitted to the Armed Forces Institute of Pathology (AFIP) pursuant to 38 C.F.R. § 20.901(b). Appropriate requests for this material were made by the RO, however, this effort yielded no pathologic materials, and thus a referral to the AFIP is not feasible. At the hearing before the Board in November 1990, the appellant identified Dr. Levy as the physician who reportedly informed her that her husband's tumor had been present for ten years. She submitted a statement from Dr. Levy, dated in February 1990. This statement primarily reiterates Dr. Levy's opinion that the veteran's carcinoma of the lung was causally related to various exposures to toxic chemicals in service. With respect to the duration the tumor had been present prior to diagnosis in 1977, Dr. Levy stated: It would certainly take someone a prolonged period of time of repeated exposures to eventually develop a carcinoma. I believe this is the case with your late husband. It is likely that the development of a carcinoma would take a considerable time to become clinically evident, and this is consistent with your husband's development of bronchogenic carcinoma after a long interval of having initially been exposed. It is my opinion that your husband's bronchogenic carcinoma was indeed related to his exposure to chemical agents and asbestos during his work in the Air Force. It is also of my opinion that the clinical appearance of his carcinoma is consistent with the delay of several years after having been exposed to several agents. The Board further notes that the complete contemporaneous clinical records of the veteran's hospitalization and surgery in 1977 are of record. These contain no statements or opinions indicating the tumor had been present for any period remotely approaching the span of nearly nine years since the expiration of the first year after the veteran's final separation from service. (As discussed below, service connection may be granted not only for a malignant tumor that is present in service, but also on a presumptive basis if a malignant tumor is present to a compensable degree within one year after final separation from service.) While the appellant's statements as to what a physician told her are not competent evidence to establish a medical diagnosis, or other matters requiring medical expertise, the Court has noted that such a statement may provide a basis to trigger the duty to assist. Warren v. Brown, 6 Vet.App. 4, 6 (1993). The Board must point out that an appropriate attempt was made to secure evidence in the form of the specific pathologic material that would have permitted a request for an expert opinion from AFIP on the question of the degree of medical probability that the tumor had been present in service or within the presumptive period. This effort proved unavailing. The various statements actually provided by Dr. Levy lack any language that fairly can be construed to mean that it is at least as likely as not that the fatal tumor was present in service or within the first year thereafter. At the very most, his statements on this point fall no closer than the type of "may or may not" or "could have been" opinions, which the Court has held would not make a claim well grounded on the determinative question of medical diagnosis or causation. Tirpak, 2 Vet.App. at 611; Warren, 6 Vet.App. at 6. In view of these circumstances, the Board is therefore satisfied that the relevant facts have been properly developed to the extent practicable. No further development is required in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). 3. Whether New and Material Evidence has been Submitted to Reopen a Claim of Entitlement to Service Connection for the Cause of the Veteran's Death The RO most recently denied the appellant's claim of entitlement to service connection for the cause of the veteran's death on the merits by rating decision dated in February 1981. This decision was based on a determination that there was no causal link between the carcinoma which caused his death and any chemical agents to which he might have been exposed in service. Since the appellant did not file a timely appeal from the 1981 rating action, that determination became final and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104(a), 20.302. In order to reopen her claim, the appellant must present evidence which is new and material with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. All the evidence submitted since the last denial of the claim on the merits must be considered in order to determine whether new and material evidence has been submitted. Glynn v. Brown, 6 Vet.App. 523, 528-29 (1994). The Court has set forth a two-step analysis to be applied when a claimant seeks to reopen a claim. The Board must first determine whether the evidence is new and material and, if so, the claim is reopened, and the claim must then be evaluated in light of the entire evidence of record, both new and old. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). The applicable regulation provides: New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in conjunction with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. The Court has held that "new" evidence is not merely cumulative of other evidence of record. "Material" evidence is relevant to and probative of the issues at hand and which must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence when viewed in the context of all the evidence, both new and old, would change the outcome. Cox v. Brown, 5 Vet.App. 95 (1993). The additional evidence submitted in this case includes testimony at several personal hearings, statements from Dr. Levy in 1987 and 1990, VA and service department medical records and, most significantly, opinions from an independent medical expert and memoranda from VA's Under Secretary for Health. In his opinion dated in August 1991, the independent medical expert concluded that the most significant exposure the veteran had regarding his pulmonary carcinoma was "heavy" cigarette smoking. The record shows the veteran had a long and substantial history of cigarette consumption, the great majority of which occurred in service. The memorandum from VA's Under Secretary for Health dated in August 1993 contains the unequivocal opinion that the underlying cause of the fatal pulmonary carcinoma was cigarette smoking. This evidence was not of record at the time of the 1981 rating determination, clearly bears directly and substantially upon the specific matter before the Board, and is of sufficient weight or significance that it must be considered in order to fairly decide the merits of the claim. The Board concludes, accordingly, that the appellant's claim for service connection for the cause of the veteran's death is reopened. Since new and material evidence warranting reopening of her claim is now of record, the Board must next consider whether the due process requirements of Bernard v. Brown, 4 Vet.App. 384 (1993), have been satisfied prior to addressing the merits of the issue of entitlement to service connection for the cause of the veteran's death. In Bernard, the Court held that when the Board: addresses in its decision a question that had not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby. Id. at 394. As noted above, the RO previously found that the veteran's cancer had its onset many years after service, that it was not related to any toxic chemicals that he was exposed to in service, and that new and material evidence had not been submitted to reopen the previously denied claim. By today's decision, the Board finds a basis upon which to grant benefits which varies from the theory of the case advanced by and on behalf of the appellant and from the ultimate basis of the prior adjudication by the RO. The Board finds, however, that the due process requirements of Bernard have been met, and that the appellant will not be prejudiced by the Board's decision on the merits of the claim. The appellant has argued extensively and presented evidence on the merits of the claim, she has been apprised of the law and regulations governing basic entitlement and she has exercised her right to a hearing. Finally, as this decision grants the benefit sought, it clearly does not prejudice the appellant. Curry v. Brown, 7 Vet. App. 59 (1994). The Board will, therefore, review the entire evidence of record without regard to the finality of the 1981 rating determination. 4. Was the Malignant Tumor of the Lung that Produced Death Present in Service or Manifest to a Compensable Degree within One Year after Separation from a Period of Active Service, or Was There a Contributory Cause of Death Under the basic governing law, service connection may be granted for "disability resulting from personal injury incurred or disease contracted in line of duty, or for aggravation of a pre- existing injury suffered or disease contracted in line of duty." 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for certain "chronic diseases," including malignant tumors (which would include carcinoma), on a presumptive incurrence basis if they are manifest to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1112, 1113, 1137. VA's Schedule for Rating Disabilities provides that malignant new growths of the lungs and pleura will be rated as 100 percent disabling. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.97, Diagnostic Code 6820. Service connection will be granted for the cause of the veteran's death if a service-connected disability caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service- connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c). It is undisputed in this case that the underlying cause of the veteran's death was carcinoma of the lung and its complications. There is no competent evidence of record showing that any other condition contributed substantially or materially to cause death. The fundamental factual question before the Board is whether the fatal carcinoma is causally related to service. Under the law, the Board need make no inquiry into the etiology of the lung malignancy if it was present in service or manifest to a compensable degree within one year thereafter. Under the provisions of VA's Schedule for Rating Disabilities, the existence of the malignancy in the lungs and pleura alone would meet the requirements of a compensable degree of disability, regardless of the presence or absence of actual visible symptoms. The record contains no competent evidence of the presence of the lung malignancy in service or within one year of separation from any period of service. The clinical entries in the service medical records contain no complaints, statements of medical history or findings that have been linked to the lung malignancy. The chest x-ray at separation from the final period of service was interpreted as negative. The treatment records in 1977, at the time the fatal malignancy was diagnosed, traced symptomatic manifestations only back to late 1976. As discussed above, the appellant's recollections of what a treating physician told her about age of the malignancy are not supported by the contemporaneous clinical records in 1977, or by the statements of the treating physician to whom she attributes the opinion. The Board's efforts to procure an opinion from the AFIP which would provide highly probative evidence on this matter were frustrated by the lack of appropriate pathologic materials. Accordingly, the Board finds that the fatal malignancy was not present in service or manifest to a compensable degree within one year after separation from any period of service. There is no competent evidence indicating that there was any contributory cause or causes of death. 5. Was the Veteran's Carcinoma of the Lung Causally Related to Alleged Exposure to Toxic Substances in Service or to Cigarette Smoking The appellant's principle theory of the case is that the veteran was exposed to a multitude of toxic and chemical agents in the course of his duties in service as an airplane and engine mechanic which led to the fatal lung malignancy. She has submitted her own opinion, and several lay statements which are to the combined effect that these parties believe that such a relationship exists in the case of the veteran, or that the lay parties had personal knowledge of other individuals, similarly exposed as was the veteran, who developed carcinoma. Such lay evidence, however, is not competent on the question of medical causation (See sub-part 2, page 10). The appellant has also submitted several statements from Dr. Levy, which constitute competent evidence to support her theory of the case. The physician wrote in a letter of December 1980 that he had treated the veteran prior to July 1978. He recalled extensive conversations with the veteran concerning the possible etiologies of the carcinoma. Dr. Levy noted that the veteran had been involved in the maintenance of aircraft engines and that he had frequent contact with certain chemical agents and fuels "which had proven to be carcinogenic and may be implied in the etiology of his particular tumor." The physician indicated that "I do not have firm proof but, I am strongly suspicious that [the veteran's] work in the service may have been a predisposing factor to the development of carcinoma of the lungs." In a December 1987 statement, Dr. Levy reiterated essentially the same comments concerning his recollections of his discussions with the veteran about exposure to "various chemical agents and fuels" in service. The physician stated: "These agents have been proven to be carcinogenic and are probably significant in the etiology of [the veteran's] cancer." In his most recent letter, dated in February 1990, Dr. Levy again commented that the veteran's work in service with "various chemical agents" shown in medical literature to be related to the development of bronchogenic carcinoma "most likely placed him in jeopardy with repeated exposure to such agents." In none of these statements did Dr. Levy mention the veteran's cigarette smoking, or any role cigarette smoking may or may not have played in the development of the veteran's carcinoma. In addition, the appellant has submitted information concerning the health hazards of exposure to various chemical agents and a mortality study of workers at Hill Air Force Base conducted by the National Cancer Institute to determine if there were excess risks of dying from cancer. There is no indication in the record that the veteran was ever stationed at the base which is the subject of this study. In view of the appellant's allegations and submissions, and the report of Dr. Levy, in July 1991, the Board referred the veteran's claims file to an independent medical expert. The questions posed to him, and his responses, were as follows: QUESTION: 1. Is there a recognized causal relationship between exposure to any of the chemicals the appellant alleges the veteran was exposed to in service and the development of adenocarcinoma of the lung? ANSWER: Yes. However, the relationship was aggravated significantly by cigarette smoking. Individuals with a genetic predisposition to develop lung cancer seem more susceptible not only to cigarette smoke, but also to environmental carcinogens which may have an additive effect to smoking. The veteran in this case admitted to heavy cigarette smoking which, in my opinion, was the major cause for his lung carcinoma. QUESTION: 2. Assuming the answer to the above question is affirmative, with respect to one or more of the chemicals, what is the relative probability that the exposure is the proximate cause of the fatal adenocarcinoma of the lungs as opposed to any other causative factor including the veteran's history of tobacco abuse? ANSWER: The most significant exposure (over 75%) this veteran had in regards to his pulmonary carcinoma was heavy cigarette smoking for 40 years. A small risk due to exposure to other carcinogens was worsened by adding cigarette smoke to the exposure(s). The Board finds these responses to indicate that the independent medical expert confirmed the potential relationship between the chemical agents the veteran was reportedly exposed to in service and the subsequent development of lung cancer. The independent medical expert concluded, however, that the veteran's cigarette smoking constituted a far more significant exposure with respect to the subsequent development of lung cancer. In view of this opinion, the Board then determined that a further medical opinion was warranted. In June 1993, the claims folder, as well as the claims folder of another veteran whose case presented related problems, were referred to VA's Under Secretary for Health. The questions posed, and her responses, were as follows: QUESTION: (a) What does the scientific and medical literature indicate with regard to the existence of baselines such as pack- year tests or other forms of measurement or quantification that can be used in making determinations of causality in cases of lung cancer? ANSWER: The Surgeon General has determined that cigarette smoking causes lung and laryngeal cancer, oral cancer, esophageal cancer, coronary artery disease, atherosclerotic peripheral vascular disease, chronic bronchitis and chronic obstructive pulmonary disease (COPD). I know of no way to quantify the effects of smoking during specific time frames or to distinguish the effects of smoking before or after service from the effects of smoking during service. At this time, the effects of smoking should be viewed as cumulative although there is a well demonstrated dose-response relationship, i.e., the lung cancer mortality ratio increases with the cigarettes smoked per day, the degree of inhalation, and the age smoking began. QUESTION: (b) What does the scientific and medical literature indicate with regard to determinations of causality in cases of lung cancer involving combinations of risk factors such as a history of tobacco use, exposure to carcinogenic substances or ionizing radiation, and a family history of cancer? ANSWER: What most studies show is the role that smoking or other substances play in increasing the risk of a given disease. Where the studies are so many and so compelling, as in the case of smoking and lung cancer, it can be stated that smoking causes lung cancer. We know that lung cancer was not even listed as a cause of disease in the International Classification of Disease system (ICD) until 1930 because it was a rare disorder until 25 to 30 years after smoking became a widespread habit in American society. Widespread smoking among men began with the invention of the machine to manufacture cigarettes, doing away with the need to "roll your own," and accelerated during World War I. A rise in mortality rate from lung cancer for men began in the 1930s. Likewise, cigarette consumption for women increased during World War II with a concomitant dramatic rise in lung cancer mortality in the 1960s. Conversely, the mortality ratio from lung cancer decreases with the number of years following smoking cessation, e.g., the mortality ratio for those who stopped only 1 to 4 years previously is 18.8 (18 times more than that for non-smokers) while the mortality ratio for those who stopped 10 to 14 years is only 4.7 and over 20 years is 2.1. However, since not all smokers develop lung cancer, there are other factors that determine susceptibility to tobacco smoke. Both environmental and host factors have been studied. While familial "clusters" of lung cancer have been described even after adjusting for smoking, no biologic mechanism, such as variations in enzymes, has yet been described to explain familial aggregations. Other host factors are suggested by studies that indicate a higher risk of lung cancer for smokers with COPD than those without. Occupational exposures have also been shown to cause lung cancer. However, the Surgeon General in his 1985 report concluded that "For the majority of American workers who smoke, cigarette smoking represents a greater cause of death and disability than their workplace environment." The strongest case for synergistic interaction, i.e., an increased effect of the two together than for either substance individually exists for smoking and asbestos and smoking and radon decay products. However, it is impossible in any individual to distinguish the effects of smoking from the effects of other agents. Other factors which may influence risk of cancer involve ambient air pollution, indoor air pollution and diet. Other factors are also involved in the risk of other diseases associated with smoking such as heart disease where hypertension, hypercholesterolemia, and obesity play a role. In summary, however, it is impossible to determine, in either a general way or in a particular case, if smoking alone, disregarding the confounding effects of other substances, caused any particular disease. However, the preponderance of current medical evidence that smoking accounts for the vast majority of lung cancer. QUESTION: (c) What is the degree of probability of an etiological relationship, if any, between each veteran's exposure to ionizing radiation or carcinogenic substances during service, as applicable to ionizing radiation or carcinogenic substances during service, as applicable, and use of tobacco during and after service with regard to a determination of the cause of his lung cancer? In other words, based on evidence of record in each case, what is the degree of probability of an etiological relationship, if any, between lung cancer and: (i) exposure to ionizing radiation or carcinogenic substances in service, (ii) exposure to ionizing radiation or carcinogenic substances in conjunction with a history of cigarette smoking during service, (iii) cigarette smoking during service alone, (iv) cigarette smoking during and after service, or (v) cigarette smoking after service alone? ANSWER: (i) Ionizing radiation does not appear to be an issue in [the veteran's] case. However, his widow and co-workers have alleged that he was exposed to solvents and other carcinogenic chemicals while in the military. This is undoubtedly true given his occupation as an airplane and engine mechanic. The report from Hill AFB demonstrates increased risk for those employed there for lymphatic cancers, multiple myeloma, non-Hodgkin's lymphoma, and cancer of the biliary tract. The over- all cancer mortality rates were not increased and exposure to solvents has not been linked to lung cancer. However, it was noted that zinc chromates were used as paints and primers in this facility. Chromates have been associated with lung cancer, but there is no evidence that [the veteran] was specifically exposed to chromates. The Hill AFB (sic) states that some parts required painting after assembly and that the job titles for those doing the painting were distinctive from the aircraft painters and house painters "in that they were generally identified as parts spray painters." There is no evidence in the record that [the veteran] ever worked as a parts spray painter in the military. (ii) I am not aware of the demonstration of any synergistic relationship between the carcinogenic substances to which [the veteran] may have been exposed and cigarette smoking in the risk of lung cancer. Asbestos and cigarette smoking are thought to have a synergistic effect but there is no evidence that [the veteran] had asbestosis or was exposed to asbestos. (iii-v) I know of no way to determine the degree to which the 26 years of smoking which [the veteran] did while in the military contributed to his overall risk of developing lung cancer compared to the 14 years of smoking which occurred while he was a civilian. However, it is my opinion that the etiology of [the veteran's] adenocarcinoma of the lung was his 60 pack years of smoking. In weighing the probative value of these opinions, the Board finds that the opinion from the independent medical expert and the opinion from VA's Under Secretary for Health of August 1993 are entitled to great weight as they were based upon a comprehensive review of the record in the veteran's claim folder, rather than recollections of conversations with the veteran a number of years earlier, and as they account for all toxic exposures the veteran experienced and assess the relative probability of their causal link to the development of the fatal carcinoma. Further, in contrast to the study of cancer rates from Hill Air Force Base, the opinions from the independent medical expert and the August 1993 opinion from the Under Secretary for Health are quite specific concerning the origin of the veteran's cancer. In Herlehy v. Brown, 4 Vet.App. 122 (1993), a single judge decision cited for guidance only, the Court noted that statements about risk factors, in general, simply do not rebut a specific opinion provided about a specific patient under a specific set of facts where that opinion does not appear to be inconsistent with the general proposition. Having assessed the credibility and probative value of the competent evidence on the question of causation of the fatal malignancy, the Board must next determine what this evidence ultimately establishes in this appeal as to the etiology of fatal malignancy. As the Court has noted: A unique standard of proof applies in decisions on claims for veterans benefits. Unlike other claimants and litigants, pursuant to 38 U.S.C. § 3007(b) [now 38 U.S.C.A. § 5107(b)], a veteran is entitled to the "benefit of the doubt" when there is an approximate balance of positive and negative evidence. Gilbert, 1 Vet.App. at 53. Citing to the Supreme Court of the United States, the Court in Gilbert noted that the standard of proof is to instruct the fact- finder in the " 'degree of confidence our society thinks he should have in the correctness of the factual conclusion for a particular type of adjudication.' " This burden "'reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.'" Id. (Citing Santosky v. Kramer, 455 U.S. 754-55, 102 S.Ct. 1388, 1395, 71 L.Ed.2d 599 (1982.)) As currently codified, the law defines the "benefit of the doubt" doctrine as: When, after consideration of all evidence and material of record in a case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination in the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). The Court noted that under this standard, when the evidence supports the claim or is in relative equipoise, the appellant prevails. Where the "fair preponderance of the evidence" is against the claim, the appellant loses and the benefit of the doubt rule has no application. Gilbert, 1 Vet.App. at 56. "A properly supported and reasoned conclusion that a fair preponderance of the evidence is against the claim necessarily precludes the possibility of the evidence also being in 'an approximate balance.' " Id. at 58. The Court has further held that where there is "significant evidence in support of the appellant's claim," the Board must provide a "satisfactory explanation" as to why the evidence is not in equipoise. Williams v. Brown, 4 Vet.App. 270, 273 (1993). The prior codification employed by VA is contained in 38 C.F.R. § 3.102 (1994), which provides in pertinent part: 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. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence; the claimant is required to submit evidence sufficient to justify a belief in a fair and impartial mind that the claim is well grounded. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships. The Court held that the legislative history showed that both the Senate and House Committees on Veterans' Affairs intended to codify the "reasonable doubt" standard, but there were "some" differences in the motivations, and that "[i]n any event, what controls now is not the language of prior regulations but the statutory standard." Gilbert, 1 Vet.App. at 55. The "positive" (and competent) evidence in support of the appellant's primary theory of the case concerning a nexus between the veteran's death and his periods of service consist of the opinions of Dr. Levy, some language in the independent medical expert's opinion concerning "risk" and apparently inferences that the appellant believes should be drawn from the study of toxic exposures at Hill Air Force Base and general material concerning such toxic substances. The probative value of Dr. Levy's reports are severely compromised for several reasons. First, the medical history on which they are founded is clearly incomplete as to all toxic exposures. Second, the foundation for the opinions is also shaky due to the fact that the accounts of the exposures are based on the physician's memory of what the veteran told him some years before about the veteran's memory of toxic exposures in service. Third, and obviously related to the first point, the opinions fail to address or assess the role of a cigarette smoking history described as "heavy" in the treatment records and by the independent medical expert. By contrast, the above cited opinions of the independent medical expert and the Under Secretary for Health are founded on a far more comprehensive history as reflected in the complete record, as opposed to recollections of the veteran's memory, and they acknowledge, address and assess all toxic exposures. Further, in contrast to the study of the exposures at one Air Force base and the general material on toxic substances, the opinions of the independent medical expert and the Under Secretary for Health are specific to the facts of the veteran's case. The Under Secretary for Health pointed out that, as a general proposition, the Surgeon General has concluded that "[f]or the majority of American workers who smoke, cigarette smoking represents a greater cause of death and disability than their work place environment." Further, with regard to the specific circumstances of this case, she noted that the results of the study at Hill appeared to show increased risk for lymphatic cancers, multiple myeloma, non-Hodgkin's Lymphoma, and cancer of the biliary tract, but no increase in the overall cancer mortality and exposure to solvent was not linked to lung cancer. While lung cancer was also associated with exposure to chromates, the Under Secretary for Health noted there was no indication that the veteran had such exposure. Likewise, the Under Secretary for Health observed that the veteran did not have asbestosis, and she did not find evidence of his exposure to asbestos. While the independent medical expert acknowledged that the "small risk" of an association between exposures in service to the subsequent development of lung cancer was made worse by cigarette smoke, this positive statement appears in the context of an overall response to questions that clearly indicates to the Board that, whatever enhancement of the "small risk" occurred, it remained a "small risk" as compared to that posed by cigarette smoking. In this regard, a recent medical text notes that "Tobacco smoking . . . accounts for approximately 90% of all lung cancers, is closely associated with all histological types; squamous carcinoma, adenocarcinoma, and small cell carcinoma appear to be directly related to smoking." J. F. Holland, M.D. et. al. ed. Cancer Medicine (3d ed., 1993) 1285-86 [hereinafter Cancer Medicine]. The same text also lists "Documented Occupational Lung Carcinogens." Substance Occupational Exposure Arsenic Smelters, pesticide manufacturers Asbestos Miners, millers, insulators, railroad and shipyard workers Beryllium Workers in electronic industri and for aerospace and nuclear reac parts manufacturers Chloromethyl ethers Ion-exchange resin manufacturers Chromium Chromate and pigment manufacturers Hydrocarbons Coal gas workers, roofers Mustard Gas Poison Gas manufacturers Nickel Refiners Radiation Miners of uranium and other or This text is clearly consistent with the comments of the Under Secretary for Health as to relevant occupational exposures, however, the Under Secretary found no basis to support the veteran's exposure to chromates or asbestos. Finally, the August 1993 opinion from the Under Secretary for Health contains an unequivocal opinion on the facts of this case that the veteran's lung cancer was caused by his cigarette smoking. Accordingly, the Board finds that the clear preponderance of the competent evidence compels the conclusion that cigarette smoking was the proximate cause of the veteran's fatal malignancy. The "substantial" and "positive" evidence in favor of the appellant's original theory of the case is well short of reaching an "approximate balance" with the "negative evidence" in this case, thus the "benefit of the doubt" doctrine is not for application. 6. Was the Veteran's Carcinoma of the Lung Causally Related to Cigarette Smoking in Service as Opposed to Cigarette Smoking During a Period When the Veteran Was Not in Service The next question is whether the cigarette smoking in service, as opposed to cigarette smoking during periods when the veteran was not in service, is the proximate cause of the fatal malignancy. The most probative, and indeed the only comprehensive evidence on this point of record is the August 1993 opinion of the Under Secretary for Health. The Board finds significant first the point made by the Under Secretary for Health that, while many studies may show "increasing risk" between smoking or other substances and cancer, "[w]here the studies are so many and so compelling, as in the case of cigarette smoking and lung cancer, it can be stated that smoking causes lung cancer," and her point that the preponderance of current medical evidence "[is] that smoking accounts for the vast majority of lung cancer." The fact that the relationship between cigarette smoking and lung cancer is not simply some degree of correlation or association (or "risk"), but is recognized in the medical field as a clear cut case of proximate causation in the "vast majority" of cases, is the first and fundamental step in examining this question. Relationships which are less than that of a medically recognized proximate causation and which are less than the recognized cause of an overwhelming number of a particular type of malignancy would appear to the Board to insert significant uncertainty at the very threshold of the examination of this question. The Under Secretary for Health also points out that while a causal relationship, or some degree of correlation or association, between other occupational exposures and lung cancer is recognized, the Surgeon General has held as a general proposition that for "the majority of American workers" who consume tobacco, "cigarette smoking represents a greater cause of death and disability than their work place environment." She further acknowledges "it is impossible to determine" whether smoking alone, "disregarding the confounding effects of other substances, caused any particular disease . . . ." She adds that: I know of no way to determine the degree to which the 26 years of smoking which [the veteran] did while in the military contributed to his overall risk of developing lung cancer compared to the 14 years of smoking which occurred while he was a civilian. However, it is my opinion that the etiology of [the veteran's] adenocarcinoma of the lung was his 60 pack years of smoking. Moreover, she points out that lung cancer was not even recognized as a cause of disease until 25 to 30 years after smoking became widespread, which indicates to the Board some latency period between initial cigarette smoking and the onset of lung cancer, and that the effects of smoking are cumulative, with a "well demonstrated dose response relationship." Finally, she notes that the cessation of cigarette smoking causes a gradual decline in the level of increased risk for lung cancer among former smokers as opposed to those who have not smoked. The Board finds that the principles and conclusions presented in this opinion are not controverted by competent evidence on the record. The Board finds that the facts of this case raise two important elements of "negative evidence" weighing against the conclusion the cigarette smoking in service, as opposed to cigarette smoking at any other time, was the proximate cause of the malignancy. The first of these is the lack of definitive proof that the cigarette smoking in service, as opposed to cigarette smoking at any other time, caused the fatal malignancy. The second important item of "negative evidence" arises from the combined implications of the comments of the Under Secretary for Health that there is a strong "dose response" relationship between cigarette smoking and the development of lung cancer, and her observation that smoking cessation materially reduces the risk of the development of lung cancer as time passes. Thus, on the one hand, it might be surmised from the current record that the effects of cigarette smoking after final separation from service are disproportionately more significant as a potential causal factor based upon the "dose response" relationship, than the smoking in service. On the other hand, it might be surmised that had the veteran ceased smoking upon separation from service, or if for purposes of determining the probability that his smoking in service caused the fatal malignancy he was deemed to have stopped smoking after service, the probability that he would have developed lung cancer would have significantly declined, thus reducing the relative probability of a proximal link between cigarette smoking in service and the development of the malignancy. After a review of the complete record, however, the Board concludes that this "negative evidence" is at least balanced by "positive" evidence that the veteran's cigarette smoking in service is the proximate cause of the veteran's lung cancer. In reaching this conclusion, the Board notes that the "positive evidence" consists of much more than a simple comparison of the number of years the appellant smoked during service as opposed to the number of years he smoked during periods when he was not in service. There are the general propositions established that cigarette smoking is the proximate cause of the "vast majority" of lung cancers, and that cigarette smoking is far more likely to be the etiology of lung cancer than occupational exposures. While definitive proof that the cigarette smoking in service caused the malignancy is not of record, and apparently is not obtainable based upon the current state of medical knowledge, the burden on the appellant is not one of "clear and convincing" evidence or some other high standard of proof. Rather she needs to only come forward with submissions that place the evidence in approximate balance. Gilbert, 1 Vet.App. at 53-54. In this case there are specific and well supported competent medical opinions, based on an accurate and complete history, that this veteran's lung cancer was caused by his cigarette smoking. There is the uncontroverted fact that at least 26 of the veteran's 40 year history of smoking prior to diagnosis of the malignant tumor was during a period of active service. This represents at least 65 percent of the veteran's total smoking exposure, and there is a recognized "dose response" relationship between smoking and the development of lung cancer. The "dose response" relationship is illustrated in one of the medical texts reviewed by the Board as follows: in comparing smokers who consume cigarettes for 15 years with those who consume cigarettes for 45 years, the duration of consumption is tripled, but the probability of developing lung cancer increases by a factor of 50. Cancer Medicine, supra page 30, at 1286. In this case, there are also several specific features of the veteran's smoking history that, on balance, tend to support the appellant. The veteran's smoking history was uniform in rate of consumption, thus simplifying the effects of the "dose response" relationship. Some of the veteran's smoking during periods he was not in service actually occurred early on in his life, thus it pushes the great bulk of the period of smoking in service further out along the upward curve of the "dose response" relationship. Conversely, while the exact date when the malignancy began is unknown, the evidence demonstrates that it existed and produced symptoms for a period of about six months (November 1976 to April 1977) prior to its diagnosis. This fact both further increases the relative amount of exposure during service as opposed to exposure during non service periods prior to the development of the malignancy, and it decreases the quantity of smoking during non service periods at the upward end of the "dose response" curve. All of these factors considered and duly weighed in combination on the record in this case are sufficient to place the evidence in equipoise on the question as to whether cigarette smoking in service, as opposed to cigarette smoking when the veteran was not in service, was the proximate cause of the fatal malignancy. In such circumstances, the benefit of the doubt doctrine requires that the appellant prevails on this point. In reaching this conclusion, the Board would again emphasize that a different result might well be indicated in this case if the period of smoking after separation from service increased materially, even if it did not equal or exceed the amount of smoking in service. 7. Is Cigarette Smoking a "Personal Injury Suffered," "Disease Contracted," or "Event or Exposure" in Service Resulting in Disability or Death for Purposes of VA Compensation Benefits The Board has found that the preponderance of the evidence establishes that the fatal malignancy was not present in service or within the presumptive period, and that the fatal malignancy was caused by cigarette smoking. The Board has further held that, by application of the doctrine of reasonable doubt, cigarette smoking in service, as opposed to cigarette smoking when the veteran was not in service, is the proximate cause of the fatal malignancy. These determinations, however, do not complete the analysis in this case. Under the basic governing statutory criteria, compensation benefits may only be awarded for disability or death "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre- existing injury suffered or disease contracted in line of duty. . . . " 38 U.S.C.A. §§ 101(16), 1110, 1131, 1310. Thus, although there is no doubt that the disability in this case that produced death was a malignant tumor, and it has been determined that cigarette smoking in service was the proximate cause of the fatal malignancy, the Board next has to determine whether cigarette smoking, or its effects, fit the classification of "personal injury suffered" or "disease contracted," or some other recognized classification, in order to meet the governing statutory requirements for the benefit sought on this appeal. In July 1992, the Board sought an opinion from the Office of General Counsel (GC) of VA regarding whether service connection may be granted for residuals of tobacco use under the controlling law and regulations. A response to this request was provided in January 1993. O.G.C. Prec. Op. 2-93 (January 13, 1993). In summary, the GC opinion concluded that there was no legal bar to a grant of service connection for residuals of tobacco use, and that it is a question of fact whether nicotine dependence, per se, is considered a disease for disability compensation purposes. The GC did point out that nicotine dependence was classified as a psychoactive substance use disorder under the 1987 revision of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Third Edition (DSM-IIIR), and that a psychoactive substance use disorder was defined as "the maladaptive behavior associated with more or less regular use" of a psychoactive substance which affects the central nervous system." DSM-IIIR at 165. The GC held that such a disorder would "clearly" fall outside the scope of the term "injury" under the cited authorities. This opinion is binding on the Board. 38 U.S.C.A. § 7104(c) (West 1991). In light of this opinion, and the factual conclusions reached above, the Board then submitted an additional set of questions to the Under Secretary for Health. Those questions were as follows: (A) Is cigarette smoking recognized as an organic disease entity and, if so, based on the record as it now stands, did the veteran warrant this diagnosis during his lifetime? Further, if the Board finds that cigarette smoking began in 1937, did the organic disease entity clearly pre-exist service, and if it pre-existed service, does the record show that the disorder increased in severity beyond natural progress during service? (B) Based upon the record as it now stands, did the veteran warrant the diagnosis of Nicotine Dependence 305.10 or Nicotine Withdrawal 292.00 under DSM-IIIR or Tobacco Withdrawal 292.00 and Tobacco Dependence 305.1x under DSM-III during his lifetime? Further, if the Board finds that cigarette smoking began in 1937, did any of these disorders clearly pre-exist service, and if one or more of them pre-existed service, does the record show that any disorder or disorders increased in severity beyond natural progress during service? (C) If the veteran's cigarette smoking on the facts of this case does not fit the category of organic or psychiatric disease, does it fit the classification of an injury, i.e. "harm resulting from some type of external trauma?" By memorandum dated in December 1994, the following response was received: 1. I have reviewed the material forwarded on this case. From a clinical perspective, tobacco and nicotine use and abuse should be viewed in a fashion similar to any other substance abuse disorder. 2. Thus, cigarette smoking is not viewed as a [sic] organic mental disorder in DSM- IIIR, except in those instances where specific withdrawal symptoms are experienced. Nothing in this patient's record supports a history of withdrawal symptoms. 3. Similarly, while we may impute the existence of nicotine dependence from this patient's history, nothing in the record supports his unsuccessfully having attempted to give up his tobacco use. The latter would be necessary to establish a diagnosis of nicotine dependence as described in DSM-III-R. No information is available to determine the course of his tobacco use and what variations existed at different points in his life. 4. Whether cigarette smoking fits the classification of "injury" is basically a legal question. From a purely medical perspective, any stimulus which induces tissue damage may be viewed as traumatic. Based upon the opinion from the GC and the additional memorandum from the Under Secretary for Health, the Board must first address whether cigarette smoking constitutes a "personal injury suffered" for purposes of VA compensation benefits. A definition of the term "injury" is not provided in the governing laws or regulations. In O.G.C. Prec. 82-90, the Board notes that the GC found that the term "injury" has been variously defined as "physical pain, illness or any impairment of physical condition," and "a hurt or damage done to a man's person" (emphasis in original). (Citing Black's Law Dictionary 786 (6th ed. 1990.)) In O.G.C. Prec. 86-90 (July 18, 1990), the GC applied a distinction based on "common usage," which denotes injury as "harm resulting from some type of external trauma" as opposed to disease as "harm resulting from some type of internal infection or degenerative process." O.G.C. Prec. 86-90 also referred to injury as resulting from external trauma, i.e., application of external force, and disease as a response to environmental factors, infective agents, inherent defects, or a combination of these factors. In O.G.C. Prec. 2-93, the GC pointed out that direct 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). The GC noted that consistent with the applicable principles in the law and regulations, VA had promulgated regulations governing adjudication of claims based on exposure to dioxin or ionizing radiation, "agents which may result in conditions which become manifest years after exposure." 38 C.F.R. §§ 3.311a and 3.311b. The GC continued: In authorizing service connection for disability or death resulting from such conditions, VA recognized the need for evidence of exposure to the agents in question coincident in time with a veteran's military service and some link between that exposure and the subsequent disability or death. (Citation omitted.) Thus, a disease which is diagnosed after service discharge may be considered to be service connected if an event or exposure during service subsequently results in disability or death. With regard to the claim at issue, we note that epidemiologic research has identified substantial increase in the relative risk of mortality from a variety of cancers in smokers. See David Carbone, M.D., Ph.D., Smoking and Cancer, 93 (Supp. 1A) Am. J. Med. 1A-13S (1992) The Board notes that the December 1994 memorandum from VA's Under Secretary for Health indicated that "[f]rom a purely medical perspective, any stimulus which induces tissue damage may be viewed as traumatic." The Board finds that this opinion would support a finding that cigarette smoking causes "harm." Under the criteria provided by the GC, however, it does not appear to the Board that cigarette smoking constitutes "harm resulting from some type of external trauma." Thus, under this "common usage" interpretation of the term "injury," for purposes of entitlement to compensation benefits under the laws administered by VA, cigarette smoking is not an "injury." Notwithstanding the conclusion reached above that the facts in this case do not show the malignant tumor resulted from "personal injury suffered" in service, the GC's opinion holds that the governing law (citing 38 U.S.C.A. §§ 101(16), 1110, 1131 and 1310), and a regulation (citing 38 C.F.R. § 3.303(d)) provide authority for the grant of service connection for disability resulting from "an event or exposure in service." The GC then held, in effect, that if a disease or injury only becomes manifest after service, if it was due to tobacco use in line of duty in the active military service, service connection may be established. Accordingly, the Board must find under this rubric that cigarette smoking in service in this case constitutes an "event or exposure" that resulted some years after service in disease that produced disability and death. On this basis, service connection may be established. Accordingly, the Board need not address the question of whether cigarette smoking is a "disease" for purposes of VA compensation benefits. 8. Was the Injury Sustained in Service As a Result of Cigarette Smoking in this Case Due to Willful Misconduct or Abuse of a Drug Under the basic current statutory mandate: An injury or disease incurred during active military, naval, or air service will be deemed to have been incurred in line of duty when the person on whose account benefits are claimed was, at the time the injury was suffered or disease contracted, in active military, naval, or air service, whether on active duty or on authorized leave, unless such injury or disease was a result of the person's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. § 105(a) (West 1991). Similar qualifying language concerning willful misconduct or the abuse of alcohol or drugs is contained in 38 U.S.C.A. §§ 1110, 1131. The Board requested an opinion in this case from the GC as to whether tobacco use, per se, or based upon the level of consumption, constitutes willful misconduct or the abuse of a drug. O.G.C. Prec. Op. 2-93 noted that prior to the Omnibus Budget Reconciliation Act of 1990 (OBRA), Pub. L. No. 101-508, 104 Stat. 1388, 38 U.S.C.A. § 105(a) stated that a veteran's disease or injury incurred during active military service would be deemed to have been incurred in line of duty unless such injury or disease was the result of the veteran's own willful misconduct. Section 8052 of OBRA amended 38 U.S.C.A. § 105(a) by adding the phrase "or abuse of alcohol or drugs" after the term "willful misconduct." The GC next reviewed the legislative history of the term "willful misconduct," and the prior relevant precedent opinions of the chief law officer of VA and its predecessors, and the Attorney General of the United States. Based on this discussion, and in light of the provisions of 38 C.F.R. § 3.1(n) (1994), the GC held that: in order for tobacco smoking to constitute willful misconduct in a particular case, the evidence must establish that the smoking involved deliberate or intentional wrongdoing and that either the veteran knew or intended the health consequences of smoking or that the veteran smoked with a wanton and reckless disregard of the probable consequences. The veteran's awareness of the potential health consequences at the time the veteran engaged in cigarette smoking in service is relevant to this inquiry. The GC further pointed out that the armed services have taken actions, such as including cigarettes in rations and the sale of cigarettes at substantially reduced prices on military facilities, which "could be viewed as encouraging the use of tobacco." "These actions," commented the GC, "strongly suggest that mere use of tobacco by an affected service member should not be considered to involve deliberate wrongdoing." The record in this case contains no first hand evidence as to the veteran's state of knowledge as to the effects of cigarette smoking prior to or during his periods of active service or, for that matter, prior to the diagnosis of the fatal malignancy. In Cipollone v. Liggett Group, Inc., 505 U.S. ___, 112 S. Ct. 2608, 2615-17 (1992) the Supreme Court set out the series of executive branch and legislative branch actions that provided what the Board would deem to be authoritative public notice as to the health implications of cigarette consumption. For purpose of this decision, it is sufficient to note that the first of these warnings came in 1964, at which time the Surgeon General issued a report which concluded: "Cigarette smoking is a health hazard of sufficient importance in the United States to warrant appropriate remedial action." In 1965, Congress required that a warning label be placed on cigarette packages "Caution: Cigarette Smoking May be Hazardous to Your Health." In 1969, the label was modified to read: "Warning: The Surgeon General Has Determined That Cigarette Smoking Is Dangerous to Your Health." By 1984, the warning was modified to identify certain specific disorders which were caused by cigarette smoking and these included lung cancer. In this case, the veteran began to smoke in the 1930's, and there is no direct or imputed evidence that he grasped the hazards involved at that time or thereafter during a period of active service. He was separated from service in 1967, before the warnings placed on cigarette packages shifted from advising of potential hazard to warning of certain danger. Authoritative specific warning of the actual danger of lung cancer did not come until four years after his death. Judged against this background, the Board finds no basis in the record to support the conclusion that the veteran's conduct in this case "specifically involved deliberate or intentional wrongdoing and that either the veteran knew or intended the health consequences of smoking or that the veteran smoked with a wanton and reckless disregard of the probable consequences." A different result might be warranted in a case in which a veteran began or continued to smoke after the warnings placed on packages of cigarettes became quite explicit regarding the consequences of smoking. As to the question of whether the use of cigarettes constitutes drug abuse for the purposes of line of duty determinations, the GC held the provision of the law that would support such a finding was only applicable to claims filed after October 31, 1990. This appeal stems from a claim filed in 1987, and thus the GC noted that these provisions would not be applicable in this case. In any event, based upon a review of legislative history deemed relevant, the GC opined that tobacco use did not constitute drug use within the meaning of the section 8052(a) of OBRA. Accordingly, willful misconduct is not a bar to benefits in this case, nor is a bar relating to drug abuse for consideration. ORDER New and material evidence has been submitted to reopen a claim of entitlement to service connection for the cause of the veteran's death, and service connection for it is granted based on a review of the complete evidence of record. RICHARD B. FRANK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.