Citation Nr: 0001048 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 98-19 676A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for nicotine dependence. 2. Entitlement to service connection for asthma, secondary to tobacco use in service and/or nicotine dependence acquired in service. 3. Entitlement to service connection for asthma, secondary to second hand smoke exposure in service. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. A. McDonald, Counsel INTRODUCTION The appellant served on active duty for training from March 1957 to September 1957. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from the Department of Veterans Affairs (hereinafter VA) regional office in New Orleans, Louisiana (hereinafter RO). The Board notes that a new revision to the law regarding claims related to tobacco, enacted by Congress and signed by the President as Public Law No. 105-206 on July 22, 1998, [which 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 (to be codified under 38 U.S.C.A. § 1103)], relates only to claims filed after June 9, 1998. It does not affect those claims which were filed on or prior to that time, such as this case. FINDINGS OF FACT 1. There is no medical evidence showing a nexus between the appellant's current asthma secondary to tobacco use or nicotine dependence in service. 2. There is no medical evidence of record that the appellant currently has nicotine dependence. 3. Medical evidence of a nexus between second hand smoke in service and the appellant's current asthma has been presented. CONCLUSIONS OF LAW 1. The claims of entitlement to service connection for nicotine dependence and asthma, secondary to tobacco use in service and/or nicotine dependence acquired in service are not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The claim of entitlement to service connection for asthma, secondary to second hand smoke exposure in service, is well grounded. 38 U.S.C.A. § 5107 (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1131 (West 1991). Additionally, service connection may be granted for disability resulting from "an event or exposure" in service. Id.; 38 C.F.R. § 3.303 (1999). 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. Id. Accordingly, if a disease or injury only becomes manifest after service, if it was due to tobacco use in the active military service, service connection may be established. The law provides that "a person who submits a claim for benefits under a law administered by the [VA] shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a). Establishing a well-grounded claim for service connection for a particular disability requires more than an allegation that the disability had its onset in service or is service-connected; it requires evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible and capable of substantiation. See Franko v. Brown, 4 Vet. App. 502, 505 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The three elements of a "well grounded" claim are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the in-service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Generally, competent medical evidence is required to meet each of the three elements. However, for the second element the kind of evidence needed to make a claim well grounded depends upon the types of issues presented by a claim. Grottveit v. Derwinski, 5 Vet. App. 91, 92-93 (1993). For some factual issues, such as the occurrence of an injury, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Id. at 93. As an initial matter, the appellant's service medical records are not available and are presumed destroyed in a fire at the National Personnel Records Center (hereinafter NPRC) in 1973. I. Nicotine Dependence and Asthma Due to Nicotine Dependence In the instant case, the appellant contends that he developed nicotine dependence in service. He asserts that he began smoking while in basic training as cigarettes were provided in rations and sold at the commissary. He further contends that he became addicted to smoking, which caused asthma. For the purposes of well-groundedness, medical evidence that nicotine dependence arose in service may consist of a current diagnosis of nicotine dependence along with the physician's opinion with respect to that dependence having originated in service. VAOPGCPREC 19-97 (May 13, 1997). For claims alleging secondary service connection for a current disease on the basis of nicotine dependence acquired in service, the claimant must provide medical evidence of a current disability, medical evidence that nicotine dependence arose in service, and medical evidence of a relationship between the current disability and the nicotine dependence. Id. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110, 1131 (West 1991); see Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Caluza, 7 Vet. App. at 505; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v Derwinski, 2 Vet. App. 141, 143 (1992). A VA hospital report dated in October 1981, noted that the appellant had been asthmatic since childhood. A VA hospital report dated in 1984 indicates that the appellant is a nonsmoker. A 1985 private medical report, also noted that the appellant was a nonsmoker; however, a chest x-ray found substantial scars which the examiner attributed to past smoking. In the case at hand, although the appellant alleges that he developed nicotine dependence during service, there is no medical opinion of record which supports his lay assessment. The lay statements by the appellant that he developed nicotine dependence in service, and that such dependence caused his asthma, do not constitute medical evidence. See Moray v. Brown, 5 Vet. App. 211, 214 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Further, the fact that cigarettes may have been plentiful and even free during the appellant's period of service, as the appellant has indicated, is not, in and of itself, a basis upon which it may be concluded that the appellant developed nicotine dependence during service. There is no medical diagnosis of record showing that the appellant had, during service or at any time, a dependence on nicotine. Accordingly, the Board concludes that the claim for service connection for nicotine dependence is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); see Chelte v. Brown, 10 Vet. App. 268 (1997). In order to establish a well-grounded claim for service connection for asthma on the basis of the incurrence of nicotine dependence during service, the veteran must first establish that he is entitled to service connection for nicotine dependence. As indicated above, the VA Office of General Counsel has held that in order to establish a claim of entitlement to service connection for nicotine dependence, a claimant must show medical evidence of the incurrence of nicotine dependence during service. Because the appellant has not presented such necessary medical evidence, a well- grounded claim for service connection for nicotine dependence has not been established. Caluza, 7 Vet. App. at 506. Consequently, inasmuch as entitlement to service connection for nicotine dependence has not been established, as it was determined that the claim was not well grounded, it necessarily follows that the claim of entitlement to service connection for asthma based upon nicotine dependence would similarly be not well grounded and must be denied upon that basis. II. Asthma Due to Tobacco Use In Service Even if there is no evidence of a diagnosis of nicotine dependence, the question remains as to whether the appellant's cigarette smoking during service caused his asthma. Applicable laws and regulations provide that if a disease or injury becomes manifest after service, if such was due to tobacco use in the active military service, service connection may be established. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. On July 24, 1997, the Acting Under Secretary of VA for Benefits issued USB Letter 20-97-14 which stated, in pertinent part, for claims alleging a direct link between tobacco use in service and a current disability, the claimant must provide medical evidence of a current disability, medical or lay evidence of tobacco use in service, and medical evidence of a relationship between the current disability and tobacco use during active service in order to establish a well-grounded claim. VA outpatient treatment records report current findings of bronchial asthma. The appellant contends that while in service he smoked two packs of cigarettes a day. Accordingly, the medical evidence of record indicates that the appellant currently has asthma and the appellant has provided lay evidence of tobacco use in service. However, the fact remains that there is no medical evidence of record of a relationship between asthma and tobacco use during active service, despite the appellant's assertions that such a causal relationship exists. See Moray, 5 Vet. App. at 214; Espiritu, 2 Vet. App. at 494-95. Indeed, the medical evidence of record reveals that the appellant reported in 1981, that he had been asthmatic since childhood. As there is no competent evidence that provides the required nexus between tobacco use in military service and asthma, service connection for a asthma due to tobacco use in service is not warranted. III. Asthma Due to Exposure to Second Hand Smoke In Service As noted above, the appellant must satisfy three elements for a claim for service connection to be well grounded. There must be competent evidence of a current disability (a medical diagnosis); there must be evidence of incurrence or aggravation of a disease or injury in service, as shown through lay or medical evidence; and there must be evidence of a nexus or relationship between the inservice injury or disease and the current disorder, as shown through medical evidence. See Lathan v. Brown, 7 Vet. App. 359, 365 (1995); Grottveit, 5 Vet. App. at 93; Caluza, 7 Vet. App. at 506. The appellant has presented medical evidence of a current disability, asthma, as discussed above, and provided lay evidence that he was exposed to second hand smoke while in service. Additionally, a statement from a private physician, B. Craig, M.D., dated in April 1996, states that the appellant "developed asthma from breathing second hand- smoke" while in service. In determining whether a claim is well grounded, the Board is required to presume the truthfulness of the evidence. Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). Accordingly, the Board finds the appellant's claim of entitlement to service connection for asthma due to exposure to second hand smoke while in service well grounded. 38 U.S.C.A. § 5107; Caluza, 7 Vet. App. at 506. ORDER The claims of entitlement to service connection for nicotine dependence and asthma due to tobacco use in service and/or nicotine dependence acquired in service are denied. The issue of entitlement to service connection for asthma as due to exposure to second hand smoke in service is well grounded; to this extent only, the appeal as to this issue is granted. REMAND Although the Board has found that the medical evidence of record is sufficient to render plausible the appellant's claim of entitlement to service connection and therefore find it well grounded, the evidence of record is not conclusive enough to substantiate the claim. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990) (A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation). Specifically, the Board notes that the 1996 private physician did not provide a basis upon which he based his opinion that the appellant developed asthma due to second hand smoke exposure while in service. As the VA has found this issue to be well grounded, it has a duty to assist the appellant in the development of facts pertinent to this claim. Accordingly, this issue is remanded to the RO for the following actions: 1. The RO should request that Dr. Craig provide the medical bases for his opinion that the appellant "developed asthma from breathing second hand-smoke" while in service. Dr. Craig should provide an opinion as to why he has found the exposure to second hand smoke in service, and not that before and after service, if any, caused the appellant's asthma. A complete rationale for all conclusions reached should be recorded, as well as supporting documentation for any opinion reached. Additionally, all pertinent examination and treatment records regarding the appellant should be obtained and associated with the claims file. 2. Thereafter, the appellant should be afforded a VA examination to determine the etiology of his asthma. A complete history from the appellant should be reported, to include any exposure to second hand smoke before, during, and after service discharge. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should provide an opinion as to the etiology of the appellant's asthma, to include whether it is due to exposure to second hand smoke. If the examiner finds that the appellant's asthma is due to exposure to second hand smoke, the examiner should provide an opinion as to whether the appellant's asthma is due to exposure to second hand smoke in service, as distinguished from any such exposure before or after active military service. The claims file must be made available to and reviewed by the examiner prior to the requested study and the examination report should reflect that such a review was made. 3. The RO should review the claims file and ensure that all of the foregoing development action has been conducted and completed in full. Thereafter, if this issue remains denied, the RO should provide the appellant and his representative a supplemental statement of the case and provide an adequate opportunity to respond. The case should then be returned to the Board for appellate consideration. The RO is advised that the Board is obligated by law to ensure that the RO complies with its directives. The Court has stated that compliance by the RO is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). 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 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. 1998) (Historical and Statutory Notes). In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the regional offices 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. No action is required by the appellant until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). C. P. RUSSELL Member, Board of Veterans' Appeals