Citation Nr: 0000399 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-10 089A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for the cause of death, including entitlement to service connection for the cause of death due to tobacco use and nicotine dependence in service. 3. Entitlement to educational assistance under the provisions of 38 U.S.C.A. Chapter 35. ATTORNEY FOR THE BOARD T. Robinson, Associate Counsel INTRODUCTION The veteran had active service from November 1942 to March 1946. The appellant is the veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) from a November 1997 rating determination of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Catholic War Veterans of the U.S.A. have submitted a brief on appeal on the appellant's behalf, she has not appointed that or any other organization as her representative. 38 C.F.R. § 20.603 (1999) cf 38 C.F.R. 20.611 (repealed). The RO informed the appellant of her right to representation in a letter dated in May 1998. Nonetheless, the Board has considered the arguments of the Catholic War Veterans of the U.S.A. in this decision. In a statement dated in March 1998, the appellant's physician reported that she was legally blind, and entitled to all benefits payable to "a legally blind citizen of the U.S." This statement could be construed as a claim for special monthly pension on the basis of the need for regular aid and attendance. This issue has not been adjudicated by the RO and is referred to that office for appropriate action. FINDINGS OF FACT 1. The veteran died on February [redacted], 1997; the cause of death was cancer of the lung due to cigarette smoking. Atherosclerotic heart disease was a contributing cause of death 2. At the time of the veteran's death, service connection was in effect for traumatic arthritis of the left wrist with limitation of motion, evaluated as 30 percent disabling. 3. There is no competent medical evidence which shows that a service-connected disability caused or contributed substantially or materially to cause the veteran's death. CONCLUSIONS OF LAW 1. The appellant's claim for service connection for the cause of the veteran's death is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The required criteria for eligibility for dependents' educational assistance under 38 U.S.C.A. Chapter 35 have not been met. 38 C.F.R. § 3.807 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A review of the certificate of the veteran's death discloses that he died in February 1997 at the age of 72. The immediate cause of death was listed as lung cancer due to cigarette smoking. An other significant condition contributing to the cause of death but not related to death was atherosclerotic heart disease. An autopsy was not performed. At the time of the veteran's death service connection was in effect for traumatic arthritis of the left wrist with limited motion, evaluated as 30 percent disabling. The service medical records are negative for evidence of a respiratory disease, including lung cancer. Additionally, there is no evidence of atherosclerotic heart disease or any other cardiovascular disease. The veteran's separation examination showed a normal cardiovascular system as well as normal respiratory system, and a negative chest X-ray. There were no reported findings referable to cigarette smoking or nicotine dependence noted during service. Private medical records dated in June 1946 show that the veteran was seen for conditions not currently at issue. There were no findings referable to a respiratory disability, heart disease, or nicotine use. VA examination reports dated in July 1946, August 1948, and July 1953 are negative for findings referable to a respiratory disability or nicotine use. Chest X-rays taken in 1953 show normal heart and lungs. Medical records from Southwest Oncology Center (SOC) dated in May 1992 show that the veteran was seen for pathologic diagnosis of moderately well differentiated invasive squamous cell carcinoma involving the upper lobe of the right lung. A recent history of chronic obstructive pulmonary disease was noted. The veteran's social history included that he was a former cigarette smoker consuming two packs per day for 30 years but had been a nonsmoker since 1987. Medical records dated from June 1992 to February 1993 show radiation therapy sessions and routine follow-up treatment. Medical records from SOC show that the veteran was seen in 1992 and 1996 for lung cancer, which was a direct result of his tobacco history. In January 1996 the veteran was seen with a history of squamous cell carcinoma of the left lung and a history of squamous cell carcinoma of the right lung in 1992. The veteran's social history included the fact that he discontinued smoking in 1986, after consuming two packs per day for 30 years. Medical records dated in January and February 1996 show radiation therapy for tumor site in the left lung. Medical records dated in December 1996 show a routine follow-up visit post radiation therapy. Medical records dated in February 1997 from Yuma Regional Medical Center show that the veteran was admitted to the emergency room with shortness of breath. The veteran was wearing oxygen. He did not seem to be in acute distress. His social history included cessation of smoking 1986 with a smoking history of three packs per day for 30 years. The impressions were cancer of the right upper lobe, status post radiation treatment, cancer of the left lung, status post radiation treatment, pneumonia, arteriosclerotic heart disease, and hypoxemia. In an August 1997 statement, a former army buddy reported that he and the veteran were shipmates. He reported that the veteran was a heavy smoker while they were shipmates. In an August 1997 statement, the appellant reported that she and the veteran were childhood friends. She reported that he did not smoke prior to service. She reported that when the veteran returned on his first leave from service he was already a chain smoker. She reported that he continued to smoke up to three packs of cigarettes per day until 1986 with one brief cessation in 1957. In a statement received in April 1999, the appellant's sister reported that the veteran did not smoke prior to his entrance into service in 1942. She reported that the veteran was smoking heavily upon his return from service. She also reported that the veteran quit smoking in 1986 per doctor's orders. In a statement dated in July 1999, H.T., M.D., reported that he was that veteran's family physician from 1984 until his death. He reported that the veteran was a heavy smoker, up to three packs of cigarettes per day, from the time he entered the United States Army in 1942 until June 1986. He reported that in the mid 1980's the veteran developed symptoms of peripheral vascular disease of the lower extremities. Over a period of time the symptoms worsened and by pass surgery on his leg was performed. Following the veteran's by-pass surgery he developed chronic lung disease. He reported that the veteran was diagnosed with lung cancer in 1988. He was treated with irradiation. Dr. T. reported that the veteran had multiple medical problems. Heavy smoking might not have been solely responsible for all of his problems, but no doubt contributed to the seriousness of the illnesses. Pertinent Law and Regulations The threshold question that must be resolved is whether the appellant has presented evidence that the claim is well grounded. 38 U.S.C.A. § 5107(a); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). If the appellant fails to submit evidence of a well-grounded claim, VA has no duty to assist her with the development of her claim. Epps v. Gober, at 1469. A well-grounded claim is a plausible claim, meaning a claim that appears to be meritorious on its own or capable of substantiation. Epps, 126 F.3d at 1468. An allegation that the cause of death is service-connected is not sufficient; the appellant must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." 38 U.S.C.A. § 5107(a); see also Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for the claim for service connection for the cause of the veteran's death to be well grounded, in addition to medical evidence of a current disability (the current disability being the condition that caused the veteran to die), there must be medical or lay evidence of the incurrence of a disease or injury in service and medical evidence of a nexus between the in-service disease or injury and the current disability. Carbino v. Gober, 10 Vet. App. 507 (1997); see Caluza v. Brown, 7 Vet. App. 498 (1995). A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. Therefore, if the claim for service connection is based on the relationship of one disorder to another, competent medical evidence showing that such a relationship exists must be submitted in order to make the claim well grounded. See Libertine v. Brown, 9 Vet. App. 521, 522 (1996). A lay person is, however, competent to provide evidence on the occurrence of observable symptoms during and following service. If the claimed disability is manifested by observable symptoms, lay evidence of symptomatology may be adequate to show the nexus between the current disability and the in-service disease or injury. Nevertheless, medical evidence is required to show a relationship between the reported symptomatology and the current disability, unless the relationship is one to which a lay person's observations are competent. See Savage v. Gober, 10 Vet. App. 488 (1997). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 1991). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b) (1999). In February 1993, VA's General Counsel issued an opinion that clarified when benefits may be awarded based upon in-service tobacco use. The opinion held that direct service connection may be granted if the evidence shows injury or disability resulting from tobacco use in service. VAOPGCPREC 2-93 (O.G.C. Prec. 2-93), 58 Fed. Reg. 42756 (1993). In May 1997, the General Counsel issued an opinion further clarifying when service connection may be granted for disability or death due to nicotine dependence caused by in- service tobacco use. The General Counsel indicated that secondary service connection may be granted under 38 C.F.R. § 3.310 (1998), if the following three questions can be answered affirmatively: (1) may nicotine dependence may be considered a disability for purposes of the laws governing veterans' benefits; (2) did the veteran acquired a dependence on nicotine in service; and (3) may that dependence 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. 37954 (1997). In that opinion the General Counsel referred to a conclusion of VA's Under Secretary for Health's that nicotine dependence may be considered a disease for compensation purposes. The Opinion went on to hold that the determination of whether a veteran is dependent on nicotine is a medical issue. The 1997 Opinion also held that with regard to proximate causation, if it is determined that, as a result of nicotine dependence acquired in service, a veteran continued to use tobacco products following service, adjudicative personnel must consider whether there is a supervening cause of the claimed disability or death which severs the causal connection to the service-acquired nicotine dependence. Recently enacted legislation prohibits service connection of a disability on the basis that it resulted from disease attributable to the use of tobacco products by a veteran during his or her service. 38 U.S.C.A. § 1103 (West Supp. 1999). This statute, however, applies only to claims filed after June 9, 1998. Where the law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran applies. Dudnick v. Brown, 10 Vet. App. 79 (1997); Karnas v. Derwinski, 1 Vet. App. 308 (1991). The appellant's claim was submitted prior to June 9, 1998. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has recently held that in order for a claim for service connection based on smoking to be well grounded on a direct basis, there must be medical evidence that the claimed condition resulted from in-service smoking. The Court went on to hold that in order for a claim of secondary service connection from smoking to be well grounded, there must be a competent diagnosis of nicotine addiction in service. Davis v. West, No. 97-1057, slip op. at 7-8 (U.S. Vet. App. Nov. 19, 1999). Analysis The Board initially notes that the appellant has not contended, nor is there any competent evidence, that the veteran's service-connected traumatic arthritis of the left wrist with limitation of motion was in any way implicated in his death. Instead it is contended that tobacco use in service lead to the conditions which ultimately caused his death. It is undisputed in this case that the cause of the veteran's death was lung cancer, which was first diagnosed in 1992, over 35 years after the veteran left service, and that atherosclerosis first reported in the 1980s, was a contributory cause of death. While it does not appear that the appellant contends that the veteran incurred lung cancer during service, for the sake of completeness the Board will discuss the question of direct service connection for the cause of the veteran's death. The service medical records include no other evidence of a pulmonary disorder and no evidence whatsoever of lung cancer. The veteran's separation examination show that the veteran's respiratory system was normal and that chest X-ray was negative. The post-service medical evidence shows that the veteran was treated for chronic obstructive pulmonary disease, and pneumonia. The initial medical evidence of lung cancer of record is dated in 1992, more than 35 years after service. There is no competent medical evidence, which relates the veteran's lung cancer, or heart disease to service. Because there is no competent evidence of lung cancer or atherosclerosis in service or within a year of discharge from service, and no competent medical evidence which relates the veteran's post-service lung cancer or atherosclerosis to service, the claim for direct service connection for the cause of the veteran's death is not well grounded. See Caluza, 7 Vet. App. at 506; Espiritu. The appellant has asserted that the veteran began smoking and became nicotine dependent during service. She further asserts that his nicotine dependence caused the fatal lung cancer. The undisputed evidence in this case is that the veteran was a heavy smoker for approximately 30 years with cessation in approximately 1986. While Dr. T. reported that the veteran was a heavy smoker from 1942 to 1986, he did not report a diagnosis of nicotine dependent during service, nor did he report that the fatal lung cancer or atherosclerosis was incurred as the result of in-service smoking. There is no other competent evidence to this effect. Lay persons have noted that the veteran smoked during service. They would not, however, be competent to report a diagnosis of nicotine dependence during service, or to say that the conditions that caused the veteran's death resulted from inservice smoking. Davis v. West, No. 97-1057 (U.S. Vet. App. Nov. 19, 1999); See Espiritu and Colvin, supra. "Proof of direct service connection thus entails proof that exposure during service caused the malady that appears many years later." Combee v. Brown, 34 F. 3d 1039, 1942 (Fed. Cir. 1994) As stated by the United States Court of Appeals for Veterans Claims (Court), "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that a claim is plausible or possible is required." Grottveit, 5 Vet. App. at 93. The record does not reveal that the appellant possess any medical expertise and indeed she has not claimed such expertise. Thus, the appellant's lay medical assertions to the effect that the veteran's use of tobacco in service caused or substantially or materially contributed to the cause of his death have no probative value. See Espiritu, 2 Vet. App. 492; Grottveit, 5 Vet. App 93. Thus, in the case at hand, the appellant has failed to submit any competent evidence that cigarette smoking in service, as opposed to cigarette smoking during periods when the veteran was not in service, caused or substantially or materially contributed to the cause of the fatal lung cancer. In the absence of such competent medical evidence, the claim is not well-grounded and must be denied. See Davis and Caluza. As noted above, the evidence of record does not contain any medical evidence relating the veteran's death to service. In the absence of competent evidence of a nexus between the cause of death and service, the claim is not well grounded and must be denied. Educational Assistance Under 38 U.S.C.A. Chapter 35 For the purposes of dependents' educational assistance under 38 U.S.C.A. Chapter 35, a child or surviving spouse of the veteran will have basic eligibility for benefits where the veteran was discharged under other than dishonorable conditions, and had a permanent total service connected disability in existence at the date of the veteran's death; or where the veteran died as a result of a service connected disability. 38 C.F.R. § 3.807(a). In this case, the veteran was not service-connected for a permanent total service- connected disability at the time of his death, and, as decided above, the appellant has not shown that the cause of the veteran's death was service-related. Accordingly, the Board finds that the appellant has not met the conditions for eligibility for dependents' educational assistance under 38 U.S.C.A. Chapter 35; 38 C.F.R. § 3.807. To avoid confusion, in a case such as this one, where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Cf. Fed. R. Civ. P. 12(b)(6) ("failure to state a claim upon which relief can be granted"). Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); see also Giancaterino v. Brown, 7 Vet. App. 555, 561 (1995) (construing Sabonis). Accordingly, the appellant's claim for Chapter 35 benefits must be denied on the basis of lack of entitlement under the law. ORDER Entitlement to service connection for the cause of death, including entitlement to service connection for the cause of death due to tobacco use and nicotine dependence in service is denied. Entitlement to educational assistance under the provisions of 38 U.S.C.A. Chapter 35 is denied. Mark D. Hindin Member, Board of Veterans' Appeals