Citation Nr: 0001607 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 98-21 192 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased rating for degenerative arthritis and disc disease of the lumbar spine, currently evaluated as 40 percent disabling. 2. Entitlement to an increased rating for residuals of an old fracture of the left femur with limitation of motion and slight knee disability, currently evaluated as 20 percent disabling. 3. Entitlement to service connection for a right leg and a right knee disorder claimed as secondary to the service- connected left leg disability. 4. Entitlement to service connection for nicotine dependence. 5. Entitlement to service connection for disabilities claimed as caused by cigarette smoking, including emphysema, chronic obstructive pulmonary disease (COPD), shortness of breath, and chest pain. ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The appellant served on active duty from August 1954 to January 1958. The instant appeal arose from a September 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in New Orleans, Louisiana. The claims for entitlement to an increased rating for degenerative arthritis and disc disease of the lumbar spine and for entitlement to an increased rating for residuals of an old fracture of the left femur with limitation of motion and slight knee disability are discussed in the REMAND section below which follows the ORDER in this case. FINDINGS OF FACT 1. The veteran has presented no competent medical evidence linking his right leg or right knee problems with his service-connected left leg disability. 2. The veteran has not been diagnosed as having incurred nicotine addiction in service. 3. The veteran is currently diagnosed with mild emphysema. 4. No competent medical evidence links a current disability, including emphysema, to in-service cigarette smoking or to nicotine dependency reportedly developed in service. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for a right leg and a right knee disability as secondary to his service-connected left leg disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim of entitlement to service connection for nicotine dependence is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 3. The claim of entitlement to service connection for disabilities claimed as caused by cigarette smoking, including emphysema, COPD, shortness of breath, and chest pain, is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before service connection may be decided, the initial question for resolution is whether the veteran has submitted a well-grounded claim in accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet. App. 78 (1990). "[I]n order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service disease or injury and the current disability (medical evidence)." Caluza v. Brown, 7 Vet. App. 498, 506 (1995)(citations omitted). Service connection for right knee and leg disorder Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (1999). When service connection is established for a secondary condition, the secondary condition is considered as part of the original condition. Id. A claim for secondary service connection, like all claims, must be well grounded. Jones v. West, 12 Vet. App. 383, 385 (1999); Reiber v. Brown, 7 Vet. App. 513, 516 (1995). The veteran has the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is one that is plausible, capable of substantiation, or meritorious on its own. Id.; Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In a case such as this, where the determinative issue involves a question of medical causation, i.e., whether the claimed condition is etiologically linked to a service-connected disability, competent medical evidence in support of the claim is required for the VA to find the claim well grounded. See Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). The veteran claims that his service-connected left leg disorder caused him to develop a right knee and leg disorder. Rating decisions of record confirm that the veteran has been service connected since 1965 for residuals of an old fracture of the left femur with limitation of motion. A 1988 VA X-ray of the right knee revealed degenerative changes in the right knee joint; however, a January 1998 VA X-ray report of the right knee gave an impression of a normal right knee. Treatment records from a VA Medical Center (MC) in Alexandria, Louisiana, show that the veteran underwent a right knee arthroscopy in 1991. The record does not, however, demonstrate a relationship between the veteran's service-connected left leg disability and his right leg problems. In February 1994 a VA examination report noted that the veteran reported that he began having problems in the right knee approximately 10 years previously, around 1984, and the veteran denied any precipitating trauma. The 1991 arthroscopy records indicate that the veteran had reinjured his right knee two months previously. A January 1998 VA examiner mentioned the veteran's history of a right knee injury several years after his separation from service, in 1959 or 1960, and identified that injury as the beginning of his right knee problems. The examiner did not identify the service-connected left leg disability as the cause of the veteran's right knee and leg problems. The veteran has not reported that there are outstanding records that demonstrate a connection between his right knee and leg problems and his service-connected left leg disability. The Board notes that the veteran's contentions are the only evidence linking the right knee and leg problems with the service-connected left leg disability. The veteran, however, is a layperson with no demonstrated medical training or expertise, and his contentions by themselves do not constitute competent medical evidence of a nexus between the right knee and leg problems and his service-connected left leg disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). In the absence of competent medical evidence establishing the necessary link, the claim of entitlement to service connection for a right knee and leg disorder as secondary to the service-connected left leg disability is not well grounded. Because the veteran has failed to meet his initial burden of submitting evidence of a well-grounded claim for service connection, VA is under no duty to assist him in developing the facts pertinent to his claim. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997). Furthermore, the Board is not aware of the existence of additional relevant evidence that could serve to make the veteran's claim well grounded. As such, there is no additional duty on the part of VA under 38 U.S.C.A. § 5103(a) (West 1991) to notify him of the evidence required to complete his application for service connection for the claimed disability. See McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997). That notwithstanding, the Board views its discussion as sufficient to inform the veteran of the elements necessary to well ground his claim and to explain why his current attempt fails. Service connection for nicotine dependence and for disability, including emphysema, claimed as caused by cigarette smoking The veteran believes that he has been damaged as a result of cigarette smoking in service. He asserts that he was provided with free cigarettes by veterans' service organizations both while working in and while a patient in a military hospital during his period of active duty in the 1950s. He also reported in his December 1998 appeal statement that he discovered that it was to his advantage to be a smoker in service because during breaks from exercises he could smoke, while non-smokers were assigned tasks to perform during those periods. The veteran reported that he became addicted to nicotine and that he still equates smoking with relaxation and coping with stress. He stated that he has smoked 1 to 2 packs of cigarettes per day since service. The veteran reported in his October 1998 notice of disagreement that he had been told for many years that he had obstructive lung changes on X-ray. A June 1997 private medical record and a June 1998 private chest X-ray report noted emphysema. The veteran has reported shortness of breath and chest pain on exertion. He also indicated that he was treated for pneumonia in service. The threshold question for the Board is whether the appellant has presented a well-grounded claim for service connection. A well-grounded claim is one that is plausible, capable of substantiation or meritorious on its own. See 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet App. 78, 81 (1990). Service connection may be granted for disability incurred in or aggravated during active duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). In the absence of evidence of a well-grounded claim, there is no duty to assist the appellant in developing the facts pertinent to his claim, and the claim must be denied. See Epps v. Gober, 126 F.3d 1464, 1467-68 (1997). Service medical records do not reflect whether the veteran smoked cigarettes, nor do they show indications for or treatment of nicotine dependency. November 1954 records do show that the veteran was hospitalized for pneumonia, but it fully resolved. A precedential opinion by the VA General Counsel clarified when entitlement to benefits may be awarded based upon in- service tobacco use. This opinion determined that direct service connection may be established if the evidence shows injury or disease resulting from tobacco use in service. VAOPGCPREC 2-93, 58 Fed. Reg. 42,756 (1993). The General Counsel issued a clarification of this opinion in June 1993 and stated that the opinion does not hold that service connection will be established for a disease related to tobacco use if the affected veteran smoked in service. Rather, the opinion holds that any disability allegedly related to tobacco use which is not diagnosed until after service would not preclude establishment of service connection. However, it must be demonstrated that the disability resulted from use of tobacco during service, and the possible effect of smoking before or after service must be taken into consideration. With regard to the issue of secondary service connection, a precedential opinion by the VA General Counsel was issued to clarify when service connection may be granted if the disability is secondary to nicotine dependence which arose from a veteran's tobacco use during service. The VA General Counsel found that a determination as to whether secondary service connection should be established depends upon affirmative answers to the following three questions: (1) whether nicotine dependence may be considered a disease for purposes of the laws governing veterans' benefits; (2) whether the veteran acquired a dependence on nicotine in service, and (3) whether that dependence may be considered the proximate cause of disability or death resulting from the use of tobacco products by the veteran. VAOPGCPREC 19-97, 62 Fed. Reg. 37,954 (1997). In a May 1997 memorandum, the Under Secretary for Health stated that nicotine dependence may be considered a disease for VA compensation purposes. Moreover, the determination as to whether a veteran is dependent on nicotine is a medical question. The Board recognizes that on July 22, 1998, the President signed the "Internal Revenue Service Restructuring and Reform Act of 1998" into law as Public Law No. 105-206. This law prohibits service connection of a death or disability on the basis that it resulted from an injury or disease attributable to the use of tobacco products by a veteran during the veteran's service. 112 Stat. 685, 865-66 (1998) (codified at 38 U.S.C.A. § 1103 (West Supp. 1999)). However, this new section applies only to claims filed after June 9, 1998. As the veteran in the present case filed his claim in November 1997, the statutory change will not affect the disposition of this appeal. The only medical evidence of any current disability reported by the veteran as related to his smoking and nicotine dependence claims is the private medical evidence which diagnosed emphysema. However, he has failed to provide any competent medical evidence relating his emphysema, first noted in the evidence of record in 1997, to the use of tobacco during his period of service, which ended in 1958. Accordingly, service connection on a direct basis is not warranted. See Davis v. West, 13 Vet. App. 178 (1999). As for secondary service connection, there is no medical evidence of in-service nicotine dependence, nor is there medical evidence of a nexus between claimed in-service nicotine dependence and emphysema. Id. Furthermore, the veteran was never diagnosed with nicotine dependency in the decades following service when he reported that he continued to smoke 1 or 2 packs of cigarettes per day. The Board cannot rely solely on the appellant's own testimony because evidence of a medical nexus cannot be established by lay testimony; he has not demonstrated that he has medical training or expertise. Brewer v. West, 11 Vet. App. 228 (1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Accordingly, the appellant's claims for service connection for nicotine dependence and for service connection for disabilities claimed as caused by cigarette smoking must be denied as not well grounded. The appellant has failed to meet his initial burden of submitting evidence of a well-grounded claim for service connection for nicotine dependence and for service connection for disabilities claimed as caused by cigarette smoking; therefore, the VA is under no duty to assist him in developing the facts pertinent to those claims. See Epps, 126 F.2d at 1468. As the Board is not aware of the existence of additional evidence that might well ground the appellant's claims, a duty to notify does not arise pursuant to 38 U.S.C.A. § 5103(a) (West 1991). See McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997). That notwithstanding, the Board views this discussion as sufficient to inform the appellant of the elements necessary to well ground his claims, and an explanation as to why his current attempt fails. ORDER A claim for entitlement to service connection for a right leg and a right knee disorder claimed as secondary to the service-connected left leg disability is denied. A claim for entitlement to service connection for nicotine dependence is denied. A claim for entitlement to service connection for disabilities, including emphysema, claimed as caused by cigarette smoking, is also denied. REMAND The appellant contends, in substance, that his service- connected left leg and low back disorders are more severe than the current disability evaluations suggest; therefore, he believes increased ratings are warranted. The Board notes that the September 1998 rating decision on appeal granted increased ratings for these disorders. The disability evaluation for the veteran's low back disorder was increased to 40 percent, and the disability evaluation for his left leg disorder was increased to 20 percent. Since these claims have not been withdrawn, increased ratings above 40 percent for the low back and 20 percent for the left leg remain at issue on appeal. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim remains in controversy where less than the maximum available benefits are awarded). As regards the lumbar spine claim, the Board notes that the veteran is currently rated under Diagnostic Code 5293 for intervertebral disc syndrome. Diagnostic Code 5293 is based predominantly on neurological criteria. A review of the January 1998 VA spine examination, performed in connection with the veteran's claim for an increased rating, reveals that the examination was essentially orthopedic. The Board finds that it cannot assess entitlement to a higher rating in the absence of a neurological examination. Accordingly, the Board finds that a neurological examination to assess the low back symptomatology is warranted. As regards the left leg claim, the Board notes that the disability is currently rated under Diagnostic Code 5260- 5255. The September 1998 rating decision findings reveal that the current disability evaluation is predominantly based on left hip symptomatology. However, the January 1998 VA joints examination noted that the veteran complained of increased weakness and decreased range of motion in the left lower extremity. For these reasons, the Board finds that another examination to assess the left knee symptomatology is warranted. The RO should also consider whether separate ratings are warranted for the left knee and left hip under Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Separate ratings are permitted so long as the same manifestation is not evaluated under different diagnoses, as prohibited by 38 C.F.R. § 4.14 (1999). The appellant is hereby notified that it is his responsibility to report for the examinations to be scheduled in connection with this REMAND and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim(s). 38 C.F.R. § 3.655 (1999). For these reasons, this case is REMANDED to the RO for the following action: 1. The RO should request the veteran to provide information regarding any evidence of current or past treatment for his service-connected low back and left leg disorders that has not already been made part of the record, and should assist him in obtaining such evidence following the procedures set forth in 38 C.F.R. § 3.159 (1999). Any such records should then be associated with the VA claims folder. 2. The RO should arrange for an appropriate VA examination for the purpose of ascertaining the nature and extent of severity of any neurological symptomatology associated with the service-connected low back disorder. The claims file and a copy of this REMAND must be made available to the examiner for review in conjunction with the examination, and all indicated special studies and tests should be accomplished. The examination report should set forth in a clear, comprehensive, and legible manner all pertinent findings and should include complete rationale for the opinions expressed. 3. The RO should arrange for an appropriate VA examination for the purpose of ascertaining the nature and extent of severity of the veteran's service-connected left knee disorder. The claims folder and a copy of this REMAND must be made available and reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted, including diagnostic radiography such as X-rays, MRI, and CT scans that the examiner may deem necessary. The examiner should review the results of any testing prior to completion of the report. With respect to the functioning of the veteran's left knee, attention should be given to the presence or absence of pain, any limitation of motion, swelling, ankylosis (favorable or unfavorable), subluxation, lateral instability, dislocation, locking of the joint, loose motion, crepitus, deformity or impairment. The examiner should provide complete and detailed discussion with respect to any weakness; fatigability; incoordination; restricted movement; or pain on motion. The examiner should provide a description of the affect, if any, of the veteran's pain on the function and movement of his left knee. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (1999) (functional loss may be due to pain, supported by adequate pathology). In particular, it should be ascertained whether there is additional motion lost due to pain on use or during exacerbation of the disability. The examiner is requested to comment on the degree of limitation on normal functioning caused by pain and the affect of his left knee disability on his employability. Range of motion testing should be conducted with an explanation as to what is the normal range of motion. The report of examination should be comprehensive and include a detailed account of all manifestations of left knee pathology found to be present. The examiner should provide complete rationales for all conclusions reached. 4. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, particularly if the requested examinations do not include all tests, reports, special studies or opinions requested, appropriate corrective action is to be implemented, including the return of the examination report to the examiner. 5. The RO should then readjudicate the veteran's low back and left leg claims with consideration of Esteban v. Brown, 6 Vet. App. 259, 261 (1994), as regards the left knee. In the event that the either decision remains adverse to the veteran, the RO should provide him and his representative, if applicable, with a comprehensive Supplemental Statement of the Case on that issue(s). He should be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate consideration, as appropriate. No action is required of the appellant until he receives further notice. This REMAND is to develop evidence. The Board intimates no opinion as to the final outcome warranted as to the issues addressed in this REMAND. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. M. S. SIEGEL Acting Member, Board of Veterans' Appeals