BVA9502583 DOCKET NO. 93-10 954 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUES 1. Entitlement to service connection for a hearing loss involving the left ear. 2. Entitlement to service connection for pulmonary emphysema. 3. Entitlement to service connection for coronary artery disease. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bernard P. Gallagher, Counsel INTRODUCTION The appellant had active service from November 1942 until December 1945. This appeal arises from rating decision by the Department of Veterans Affairs (VA), San Francisco, California, Regional Office (RO) in October 1991, which denied service connection for all the benefits currently on appeal. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that he developed a hearing loss in the left ear as a result of his exposure to loud sounds during battle. He also contends that he developed pulmonary emphysema and coronary artery disease as a result of exposure to severe cold and because of smoking which habit he developed in service. He refers to copies of letters written in early 1945 in support of his contentions. 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 the preponderance of the evidence is against the veteran's claims for service connection for a hearing loss involving the left ear, for pulmonary emphysema, and for coronary artery disease. FINDINGS OF FACT 1. The veteran's hearing loss involving the left ear did not have its onset during service nor was it manifested during the one-year presumptive period following discharge from service. There is no competent medical evidence or opinion relating his hearing loss to service. 2. The veteran's pulmonary emphysema did not have its onset during service nor does the evidence demonstrate that it arose as a result of smoking during service but rather as the result of extensive smoking in the years after service. 3. Coronary artery disease did not have its onset during service nor was it manifested during the one-year presumptive period following discharge from service, nor does the evidence demonstrate that it arose as a result of smoking during service but rather as the result of extensive smoking in the years after service. CONCLUSION OF LAW Hearing loss in the left ear, pulmonary emphysema, and coronary artery disease were not incurred in or aggravated by service nor may the incurrence in service of a hearing loss in the left ear or coronary artery disease be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5107; 38 C.F.R. §§ 3.1(n), 3.301, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Entitlement to Service Connection for Hearing Loss of the Left Ear Initially, we note that this claim is well grounded and that all pertinent evidence is of record. The service medical records disclose no complaints or manifestations of a hearing loss and on the separation examinations in December 1945, many months after the veteran's involvement in combat, his hearing per whispered voice was 15/15 in the left ear. The appellant did not claim any hearing loss when he listed all significant diseases, wounds and injuries. During several periods of hospitalization during 1984 while undergoing treatment primarily for his respiratory disorder and cardiovascular disorders, physical examinations disclose no complaints or manifestations of any hearing loss involving the left ear. The veteran was seen by an ear, nose and throat consultant in September 1990. He complained of 20 years of decreased hearing. He denied tinnitus. He was positive for noise exposure. The clinical assessment was probable left mixed or conductive loss In January 1991 the veteran underwent audiometric evaluation. He reported a hearing loss in the left ear since the Army in World War II. He denied a history of left ear trauma or infection. He indicated his sister had a hearing loss at the age of 45. He denied tinnitus or vertigo. He underwent left stapedectomy for left otosclerosis later that month. In September 1992, the veteran submitted copies of letters. A copy of a letter dated February 2, 1945, referred to his exposure to artillery firing and shelling and that he was knocked out of a truck by a shell. In a copy of a letter dated March 7, 1945, he reported being in a house when the roof and upper floor was shot off. At a hearing at the RO in September 1992 the veteran testified that he was under constant heavy shellfire while in battle from France to Germany. After service he first went to a physician for a hearing loss in the left ear when he went to Kaiser Medical Center during the 1950's. The Board has reviewed the evidence in association with the veteran's contentions and the testimony in the hearing on appeal. We are aware that he was involved in combat and that provisions of 38 U.S.C.A. § 1154 apply. 38 U.S.C.A. § 1154(b) provides that, when the veteran was engaged in combat, the Secretary shall accept as sufficient proof of service connection any disease or injury alleged to be incurred in or aggravated by such service satisfactory lay or other lay evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service and to that end shall resolve every reasonable doubt in the veteran's favor. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service connection in each case shall be recorded in full. In evaluating the evidence the Board stresses that, on the separation examination several months after the veteran was involved in combat, he had no complaints of a hearing loss involving the left ear and his hearing on that examination was normal. Although he testified he was treated during the 1950's at Kaiser for a hearing loss of the left ear, the Board notes that, during periods of hospitalization in 1984 for other disabilities, there were no complaints or manifestations of any hearing loss. Also, as will be explained below, the VA was unable to obtain any records from the Kaiser Medical Center. Furthermore, when the veteran was initially seen for treatment of a hearing loss in the left ear in September 1990, he complained of a sudden hearing loss and told the consultant he had only 20 years of decreased hearing. He did not attribute the hearing loss to service until seen in 1991. There is no medical evidence or opinion relating his current hearing loss to service. Therefore, the Board finds that the preponderance of the evidence is against the veteran's claim for a hearing loss involving the left ear. II. Entitlement to Service Connection for Pulmonary Emphysema and Coronary Artery Disease Initially, the Board finds these claims to be well grounded and that no further development of the evidence is required under 38 U.S.C.A. § 5107. The service medical records disclose no complaints or manifestations of a respiratory disorder or a cardiovascular disorder. On the separation examination in December 1945, the veteran's cardiovascular system and lungs were reported as normal and a chest X-ray showed no significant abnormalities. His blood pressure was 144/80. The veteran had a period of private hospitalization in January 1984. He had presented to the physician's office with a chief complaint of shortness of breath and pain in the chest and pain in his shoulder radiating to the right arm and left arm. He was a known diabetic, adult onset. It was also reported he had chronic obstructive pulmonary disease and hypertension and that he underwent a right carotid endarterectomy in 1981 for carotid artery disease. It was reported that he smoked two packs of cigarettes per day and drank 2 to 3 cocktails of whiskey per day. Final discharge diagnoses included coronary artery disease with acute inferior wall myocardial infarction and chronic obstructive pulmonary disease with pulmonary emphysema and chronic bronchitis. During a hospitalization at Loyola University of Chicago in July 1984 the veteran reported that his social history was significant for smoking 3 1/2 to 4 packs per day times greater than 30 years, and that he quit in 1981. Clinical records from a hospitalization at Loyola University in July 1984 indicated that he had had hypertension since 1954. At the hearing at the RO in September 1992 the veteran testified that he started smoking at the time of the Battle of the Bulge. He reported that cigarettes were issued in the rations. Initially, he collected the cigarettes because they were good for bargaining for candy bars, but once he started smoking, within three months he was probably addicted to smoking. He stressed that neither the VA nor the Army objected to smoking. He maintained as a result of cigarette smoking he developed pulmonary emphysema and coronary artery disease. He also testified that he developed these disorders as a result of stress and the exposure to the weather. He also indicated treatment at Kaiser, Oakland, in 1952 for high blood pressure. Subsequent to the hearing, the RO requested records from Kaiser- Permanente Medical Center in Walnut Creek, California. The request was returned by letter dated September 28, 1992, requesting the veteran's Kaiser number. The RO then in a letter in October 1992 requested the number from the veteran by letter which was never supplied. In a letter in April 1993, when informed that his records were going to be placed on the docket of the Board, the veteran stated that the RO could forward the appeal to the Board at its convenience as any other material that he would have would be repetitive. Therefore, the Board finds that the VA has complied with its duty to assist under 38 U.S.C.A.§ 5107 in the attempt to obtain records from Kaiser- Permanente Medical Center. In a copy of a letter dated February 18, 1945, received in September 1992, the veteran reported that he was smoking heavily, even up to one pack a day on quiet days and more on days when his nerves took a beating. In a letter dated March 7, 1945, received in September 1992, the veteran reported that the cigarettes continued to pile up, eight packs a week. He indicated the Government was very appreciative of the fact that stimulants were needed here. 38 U.S.C.A. § 1110 provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service but no compensation may be paid if the disability is the result of the person's willful misconduct or abuse of alcohol or drugs. Also, 38 U.S.C.A. §§ 1101 and 1112 provide that where a veteran served 90 days or more during a period of war, and develops cardiovascular disease including hypertension, to a degree of 10 per cent or more within one year of separation from such service, this disease shall be presumed to have been incurred in service. As indicated, the service medical records disclosed no evidence of a respiratory disorder or a cardiovascular disorder including hypertension. In addition, statements from the veteran indicate that hypertension was not noted until the early 1950's. He testified that it was first noted at the Kaiser Hospital in 1952 which was well after the termination of the one year presumptive period under 38 U.S.C.A. § 1112. The veteran's principal contention concerning the pulmonary emphysema and coronary artery disease is that he developed these diseases as a result of his addiction to cigarettes which began in service. The United States Court of Veterans Appeals (the Court) in ZQ v. Brown, (memorandum , single judge decision) No. 92-1129 (U.S. Vet. App. November 9, 1993) found that in a claim concerning diseases stemming from tobacco use the VA must consider 38 C.F.R. §§ 3.1(n) and 3.301 and make a determination as to any possible relationship between smoking and the claimed disabilities. Also, the Court found the Board must review a claim for service connection for smoking under a controlling precedent, Office of General Counsel Precedent Opinion 2-93 (January 13, 1993). 38 C.F.R.§ 3.1(n) provides that willful misconduct means an act involving conscious wrongdoing or known prohibited action (malum in se or malum prohibitum). 38 C.F.R. § 3.301 (line of duty) provides that direct service connection may be granted only when a disability was incurred in or aggravated in the line of duty, and not the result of the veteran's willful misconduct. Initially, in the above cited General Counsel opinion, under 38 C.F.R. § 3.1(a), in order for tobacco smoking to constitute willful misconduct in a particular case, the evidence must establish that 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 he engaged in cigarette smoking is relevant to this inquiry. Also the General Counsel found that tobacco use did not constitute drug abuse within the meaning of Section 8052(a) of the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101- 508, 104 Stat. 1388. After examining the evidence, the Board has determined that the veteran's smoking did not constitute willful misconduct in this case. The majority of his years of smoking and the onset of his smoking occurred prior to notice to the general public of the hazards of cigarette smoking. Next, the Board must make a determination of a possible relationship between smoking and the claimed disabilities. The General Counsel opinion, paragraph 15, referred to the "SURGEON GENERAL'S WARNING: Smoking Causes Lung Cancer, Heart Disease, Emphysema, and May Complicate Pregnant." Therefore, in evaluating this claim, the Board concedes that extensive cigarette smoking is a risk factor in the development of pulmonary emphysema and coronary artery disease. In the cited opinion the General Counsel, in paragraph 5, referred to a concurring opinion of the Court in Sawyer v. Derwinski, 1 Vet.App. 130, 138 (1991). In that decision the concurring judge appeared to suggest that a veteran could establish service connection for lung cancer based upon a 14-year history of smoking in service and that "under such an approach, the only evidence against service connection would be the 10 years of smoking after discharge until the lung-cancer diagnosis was made." Also, in paragraph 8 it was stressed that in considering whether a disability is due to smoking, the possible effect of smoking before or after service must be taken into account Furthermore, in paragraph 7, the General Counsel concluded that an allowance was warranted if the evidence established the veteran incurred a disease or injury from tobacco use in the line of duty in the active military, naval or air service even if the disease did not become manifest until after service. The Board finds that the veteran has submitted evidence to establish that he began tobacco use while on active duty. However, the evidence discloses that, after service, which terminated in December 1945, the veteran had extensive cigarette use. For example, during one hospitalization in July 1984, he reported smoking 3 1/2 to 4 packs per day for more than 30 years until he quit in 1981. By that time he had developed severe coronary artery disease and pulmonary emphysema. Based on the concurring opinion in Sawyer v. Derwinski, referred to in the General Counsel opinion, and the General Counsel's opinion that the possible effect of smoking before or after service must be taken into account, the extensive post service use of tobacco for 30 years undercuts the veteran's claim for service connection for pulmonary emphysema and coronary artery disease secondary to cigarette smoking in service. The contemporaneous record does not establish that he developed these claimed disabilities during active service nor was hypertension or heart disease manifested within one year of service. Comparing the history of smoking for some 35 years after service to the brief period of less than three years of smoking in service, the Board concludes that the postservice smoking was, to the extent that his smoking caused his cardiac and pulmonary diseases, the primary factor in the cause of the diseases and that the brief period of smoking in service played no material part in causing the diseases. Therefore, the Board has determined that the veteran's coronary artery disease, including hypertension, and pulmonary emphysema did not have their onset in service and are not attributable to his tobacco use during service. In addition, the Board has considered the veteran's contentions in testimony to the effect that stress and his exposure to severe weather caused him to develop pulmonary emphysema and coronary artery disease. In this regard, the only support for his claim in service connection for these disorders on this basis is his own unsubstantiated opinion. This is insufficient to support a claim for service connection. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Therefore, the Board finds that the preponderance of the evidence is against the claim for service connection for pulmonary emphysema and coronary artery disease. ORDER Service connection for hearing loss involving the left ear, coronary artery disease, and pulmonary emphysema is denied. HOLLY E. MOEHLMANN 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.