Citation Nr: 0003704 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 95-01 078 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a disability of the lymph nodes, other than lymphadenopathy, including as due to exposure to Agent Orange. 2. Entitlement to service connection for a lung disability and tracheomalacia, including as due to exposure to Agent Orange and as a result of tobacco use. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran had active service from July 1966 to April 1969, and from September 1973 to July 1975. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 1994 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied entitlement to service connection for a lung disability, lymph node removal from neck and groin, and tracheomalacia, due to exposure to Agent Orange. A notice of disagreement was received in April 1994. The statement of the case was sent to the veteran in May 1994. In July 1994, the veteran testified at a personal hearing before a hearing officer at the RO. In August 1994, the hearing officer determined that service connection was not warranted for a lung disability, lymph node removal from neck and groin, and tracheomalacia, due to exposure to Agent Orange. In addition, the hearing officer determined that service connection for those disabilities was not warranted on a direct basis. In an August 1994 rating decision, the hearing officer's determination was implemented. The veteran was issued a supplemental statement of the case. In September 1994, a notice of disagreement was received as to the direct service connection issues. In a November 1994 rating decision, the RO denied service connection for melioidosis as part and parcel of the veteran's alleged lung disability. In November 1994, the veteran was issued another supplemental statement of the case. In January 1995, the veteran's substantive appeal as to the direct service connection issues was received. In April 1995, the veteran testified at a personal hearing before a hearing officer at the RO. In May 1995, the hearing officer confirmed and continued the prior denial for melioidosis as part and parcel of the veteran's alleged lung disability. In May and June 1996, supplemental statements of the case were sent to the veteran. In April 1997, the Board remanded this case for the veteran to be afforded the opportunity to testify at a personal hearing at the RO before a member of the Board. That hearing was conducted in July 1997. In a December 1997 decision, the Board determined that new and material evidence had been submitted and the veteran's claim for service connection for a lung disability, tracheomalacia, and removal of lymph nodes/current lymph node disability was reopened. The Board remanded the case to the RO for further action prior to appellate adjudication. The Board notes that the RO should clarify whether or not the veteran is seeking to have his service-connected lymphadenopathy rated separately from his left ear disability, and, if so, entitlement to an increased rating should be considered. FINDINGS OF FACT 1. Entitlement to service connection for lymphadenopathy was granted in a July 1980 rating decision and this grant of service connection included the initial surgery which removed lymph nodes from the neck and groin. 2. Entitlement to service connection for generalized lymphadenopathy to include lymph node removal from the neck and groin was granted at the time of the July 1980 rating decision. 3. The veteran does not currently have a disability of the lymph nodes, other than lymphadenopathy. CONCLUSION OF LAW The claim for service connection for a disability of the lymph nodes, other than lymphadenopathy, including as due to exposure to Agent Orange is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection for a Disability of the Lymph Nodes, Other Than Lymphadenopathy, Including as Due to Exposure to Agent Orange A review of the service medical records from the veteran's first period of service from July 1966 to April 1969 showed that the veteran was not treated for a disability of the lymph nodes. Post-service, the veteran was hospitalized at a VA facility from September to October 1971. At that time, he underwent a biopsy of posterior cervical and groin lymph nodes and a bone marrow aspiration. The diagnosis was abdominal pain, etiology undetermined, questionable non-specific adenitis. Thereafter, in October 1971, the veteran underwent excision and biopsy of the left posterior cervical and inguinal nodes. The diagnosis was lymphadenopathy. In January 1972, the veteran was treated by VA for chills, fever, lymphadenopathy, and lower quadrant pain. The veteran was hospitalized at a VA facility from January to February 1972. During that period of time, he underwent an exploratory laparotomy and excision of periaortic lymph tissue and mesenteric lymph node. The laparotomy was essentially negative. In addition, a bone marrow aspiration was undertaken which was also essentially negative. In September 1973, the veteran reentered service. The service medical records dated through his discharge in July 1975 showed no treatment for lymphadenopathy or any other disorder involving the lymph nodes. After approximately 5 years, the veteran underwent a VA examination in December 1978. An evaluation of the veteran's neck revealed left adenopathy. The pertinent diagnosis was cervical lymphadenopathy. In January 1979, the veteran underwent an ears, nose, and throat examination. In pertinent part, the examiner noted that the veteran had marked left cervical adenopathy. The diagnosis was cervical lymphadenopathy. The veteran was treated at a VA hospital from March to April 1979. During that period of time, physical examination of his neck revealed, in pertinent part, posterior adenopathy on the left. In January 1980, the veteran was hospitalized for several days at a VA facility for, in pertinent part, generalized lymphadenopathy primarily in the left cervical region, although shotty adenopathy was seen bilaterally in the cervical and inguinal regions with a left axillary node felt probably to be secondary to chronic mastoiditis, possibility of toxoplasmosis and filariasis; low cervical pain, musculoskeletal in nature; chronic left serous otitis media with tympanotomy tubes associated with the first diagnosis; status post-staging laparotomy for generalized adenopathy in 1972, and status post stab wound to the right lower neck. In February 1980, the veteran was treated for cervical adenopathy secondary to left chronic otitis. Thereafter, the veteran was again seen for generalized adenopathy. In May 1980, the veteran was hospitalized for several days. At that time, it was noted that he had generalized adenopathy. A June 1980 VA examination revealed that the veteran's neck was supple without any significant adenopathy or any nodes over 1 centimeter in size. The diagnosis was no lymphadenopathy at this time. In a July 1980 rating decision, service connection for lymphadenopathy was granted. It was noted that the lymphadenopathy was primarily in the cervical region. It was rated as part and parcel of the veteran's serous otitis media and the rating for that disorder was increased from non- compensable to 10 percent disabling, apparently based on the finding of lymphadenopathy. The veteran was notified of that decision in an August 1980 letter and was advised of his procedural and appellate rights. The RO informed the veteran that his "lymph glands" were occasionally irritated in associated with the service-connected left ear disability and that this irritation was rated in conjunction with the rating of the left ear disability. The veteran initiated a claim for service connection for residuals of exposure to Agent Orange in July 1983. October 1983 VA examinations revealed no abnormal lymphadenopathy. In a December 1983 rating decision, in pertinent part, service connection was denied for a lymph node disorder as a residual of exposure to Agent Orange. In February 1984, the veteran was notified of the denial of his claim. He was provided his procedural and appellate rights. In August 1989, the veteran filed a claim for service connection for residuals of exposure to Agent Orange. In April 1990, the veteran was notified that all Agent Orange claims were deferred pending new regulations. In a November 1990 rating decision, the RO noted that the issue of service connection for removal of lymph nodes due to exposure to Agent Orange, was still deferred; however, that rating decision denied service connection for the claimed disability on the basis of direct service incurrence. In November 1990, the veteran was notified of that decision and of his procedural and appellate rights. In June 1992, the veteran was afforded a VA general medical examination which revealed that his lymphatic, hemic, and endocrine systems were normal. In a March 1994 rating decision, entitlement to service connection for lymph node removal from neck and groin was denied on the merits (both as to direct service incurrence and as due to exposure to Agent Orange) under the new VA Agent Orange regulations. It is apparent that the RO must have reopened the veteran's previously denied claim. In July 1994, the veteran testified at a personal hearing at the RO before a hearing officer. At that time, the veteran related that he was treated for enlarged lymph nodes during service. He related that in 1972, he had lymph nodes removed from his neck and groin. In August 1994, it was determined service connection was not warranted for lymph node removal from neck and groin due to exposure to Agent Orange or on a direct basis. VA outpatient records dated in 1995 showed that the veteran had no lymphadenopathy. In April 1997, the Board remanded this case so that the veteran could be afforded a hearing before a member of the Board. In July 1997, the veteran testified before an acting member of the Board at the RO. At that time, the veteran asserted that his current disability was the result of exposure to Agent Orange during service. In a December 1997 decision, the Board also reopened the veteran's claim for service connection for removal of lymph nodes. The Board remanded the case for further development prior to appellate consideration on the merits. In March 1998, the veteran was afforded a VA respiratory examination. At that time, the veteran told the examiner that he had been exposed to Agent Orange during service and had a long-term history of tobacco abuse. Physical examination, in pertinent part, resulted in a diagnosis of status postoperative lymphadenopathy without abnormal CBC. The examiner opined that the veteran's diagnosed disability was not related to Agent Orange exposure. In an addendum, the examiner opined that the etiology of the lymphadenopathy was undetermined. In sum, the records shows that veteran underwent excision and biopsy of the left posterior cervical and inguinal nodes in October 1971 which yielded a diagnosis of lymphadenopathy. No other residuals of that surgery are indicated in the record. Thereafter, the veteran underwent an exploratory laparotomy and excision of periaortic lymph tissue and mesenteric lymph nodes and also underwent a bone marrow aspiration, but those tests were negative. Thereafter, from the mid 1970's through 1980, the veteran was periodically noted to have cervical lymphadenopathy as well as generalized lymphadenopathy primarily in the left cervical region, but also in the inguinal regions. As noted, in a July 1980 rating decision, service connection for lymphadenopathy was granted and was rated with his service-connected left ear disability which resulted in an increased rating for that disorder. However, a review of the rating decision and subsequent notice shows that the RO did not specifically limit the grant of service connection for lymphadenopathy to cervical lymphadenopathy, even if that was intended. The veteran still has lymphadenopathy. The Board notes that since the October 1971 surgery resulted in the diagnosis of lymphadenopathy which was thereafter service-connected, the veteran is in essence already service- connected for his lymph node disorder to include the initial surgery which removed lymph nodes from the neck and groin. This grant of service connection was general in nature and therefore covers generalized lymphadenopathy as well as cervical lymphadenopathy. The grant of service connection resulted in an increased rating of 10 percent for the left ear disability. Thus, the veteran was paid VA compensation benefits for the actual finding of lymphadenopathy. In Baughman v. Derwinski, 1 Vet. App. 563, 565 (1991), 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") stated that 38 U.S.C.A. § 1110 permits payment of compensation benefits only for disabilities which are service-connected. Since the veteran was paid compensation benefits for lymphadenopathy, he was granted service connection for that disorder even though the grant for generalized lymphadenopathy may have been inadvertent. Therefore, the Board finds that entitlement to service connection for lymphadenopathy was granted at the time of the July 1980 rating decision. At this point, the Board is not reviewing the manner in which the veteran's service-connected lymph node removal and diagnosed lymphadenopathy was rated, only whether or not it was service-connected. If the veteran is seeking to have his service-connected lymphadenopathy rated separately from his left ear disability, he may file an increased rating claim in that regard. The Board has referred this matter to the RO in the introductory portion of this decision. Thus, the only matter to be resolved is whether or not service connection is warranted for a disability of the lymph nodes, other than lymphadenopathy, as that disability is already service-connected. Applicable law provides that entitlement to service connection will be granted if the facts, shown by a preponderance of the evidence, establish that a particular disease or injury resulting in disability was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). In addition, certain diseases, when manifest to a degree of 10 percent or more within one year after the veteran's military service ended, may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d). A chronic, tropical, or prisoner-of-war related disease, or a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than one listed in 38 C.F.R. § 3.309(a) will be considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116; 38 C.F.R. § 3.307(a). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed.Reg. 341-346 (1994). See also 61 Fed.Reg. 41,442-41,449, and 61 Fed.Reg. 57,586-57,589 (1996). Notwithstanding the foregoing presumption provisions, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S.Ct. 1171 (1998). See also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). However, where the issue involves a question of medical diagnosis or causation as presented here, medical evidence which indicates that the claim is plausible is required to set forth a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). A well-grounded claim is one which is plausible. If he has not, the claim must fail and there is no further duty to assist in the development of the claim. 38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet. App. 78 (1990). This requirement has been reaffirmed by the United States Court of Appeals for the Federal Circuit, in its decision in Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). That decision upheld the earlier decision of the Court which made clear that it would be error for the Board to proceed to the merits of a claim which is not well grounded. Epps v. Brown, 9 Vet. App. 341 (1996). The United States Supreme Court declined to review that case. Epps v. West, 118 S. Ct. 2348 (1998). The veteran has the 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). The Court, in Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996), outlined a three prong test which established whether a claim is well- grounded. The Court stated that in 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 injury or disease and the current disability (medical evidence). The Court has also stated that a claim must be accompanied by supporting evidence; an allegation is not enough. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). A claim is not well- grounded where a claimant has not submitted any evidence of symptomatology of a chronic disease within the presumptive period, continuity of symptomatology after service, or other evidence supporting direct service connection. Harvey v. Principi, 3 Vet. App. 343 (1992). Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well- grounded, except where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). The Board notes, however, that while the veteran is offering his own medical opinion and diagnoses, the record does not indicate that he has any professional medical expertise. See Bostain v. West, 11 Vet. App. 124, 127 (1998) ("lay testimony . . . is not competent to establish, and therefore not probative of, a medical nexus"); Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (1998). See also Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Moray v. Brown, 5 Vet. App. 211 (1993); Grottveit v. Brown, 5 Vet. App. 91 (1993). Further, although the veteran asserts that his alleged lymph node disability had its onset during service and/or due to exposure to Agent Orange, this assertion does not make the claim well-grounded if there is no competent medical evidence of record of a nexus between service and his alleged current disability. See Savage v. Gober, 10 Vet. App. 489 (1997); Heuer v. Brown, 7 Vet. App. at 387 (1995) (lay evidence of continuity of symptomatology does not satisfy the requirement of competent medical evidence showing a nexus between the current condition and service). As such, the Board will review the record to assess whether all three of the criteria of Caluza are met and the veteran's assertions are supported by the evidence of record. In the absence of proof of a present disability, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992). The record is negative for any diagnosed disability of the lymph nodes other than lymphadenopathy, which, as noted, is already service-connected. As such, all of the prongs of Caluza are not satisfied. Since there is no proof of a present disability of the lymph nodes other than lymphadenopathy, there can be no valid claim for any other disability. Rabideau. Therefore, in light of the foregoing, the veteran's claim for service connection for a disability of the lymph nodes, other than lymphadenopathy, including as due to exposure to Agent Orange must fail. Since the veteran's claim is not well-grounded, he cannot invoke VA's duty to assist in the development of the claim under 38 U.S.C.A. § 5107(a) (West 1991). Grivois v. Brown, 6 Vet. App. 136 (1994). In claims that are not well-grounded, VA does not have a statutory duty to assist a claimant in developing facts pertinent to his claim. However, VA may be obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of evidence needed to complete his application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the Department of Veterans Affairs has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). A review of the correspondence in this case, to include the statement of the case, shows that the RO fulfilled its obligation under 38 U.S.C.A. § 5103(a) (West 1991) as the veteran was fully informed of the reason for the denial of his claim and was advised of what evidence was needed in order to support his claim. ORDER The appeal as to the issue of entitlement to service connection for a disability of the lymph nodes, other than lymphadenopathy, including as due to exposure to Agent Orange is denied as not well-grounded. REMAND Service Connection for a Lung Disability and Tracheomalacia, Including as Due to Exposure to Agent Orange The Board notes that a review of the record to include the service medical records as well as the post-service medical records shows that the veteran's claim for service connection for a lung disability and tracheomalacia should also be considered as being incurred as a result of tobacco use. In that regard, certain directives must be followed to insure due process to the veteran. As such, the Board regrets that this case must again be remanded to the RO for the appropriate action. Briefly, the Board notes that the service medical records from the first period of service show that the veteran was treated for bronchitis and possible pneumonia. It was noted that the veteran smoked and he was encouraged on more than one occasion to stop smoking. In addition, it was noted that his time "in the field" should be reduced. During his second period of service, the veteran was again treated for bronchitis and pneumonia. He was discharged in July 1975. Post-service, the veteran was initially treated for right middle lobe syndrome in 1979. Although pulmonary function testing showed a slight obstructive pulmonary impairment, bronchoscopic examination was unrevealing. Likewise, although chest x-rays revealed bronchopulmonary vascular markings bilaterally, there was no evidence of pulmonary disease. In the 1980's, it was noted that the veteran had recurrent pneumonia and bronchoscopy with biopsy showed right middle lobe pneumonia. Thereafter, x-rays revealed mild chronic obstructive pulmonary disease, mild emphysema, and diffuse fibrotic changes. He was also diagnosed as having tracheomalacia. In August 1986, the veteran was treated for right middle lobe pneumonia and chronic bronchitis which were noted to be secondary to heavy smoking. In the late 1980's, the veteran underwent a bronchoscopy, right middle lobectomy, stapling and excision of multiple blebs; he was diagnosed as having right middle lobe syndrome with moderately severe blebs of right upper and right lower lobes, and tracheomalacia. These diagnoses were confirmed in the 1990's. In March and April 1990, the veteran underwent a video bronchogram, the placement of a Y tracheal stent, a thoracotomy, tracheal reconstruction, and external stenting of the trachea and main stem bronchus using Gore-Tex patch. The pertinent final diagnoses were chronic obstructive pulmonary disease, tracheomalacia, and severe large airway expiratory collapse. Thereafter, the veteran underwent further video bronchoscopy. His diagnosed disabilities were confirmed and treated. He was also diagnosed as having emphysema and hemoptysis. Finally, in March 1998, the veteran was afforded a VA respiratory examination. At that time, the veteran told the examiner that he had been exposed to Agent Orange during service and had a long-term history of tobacco abuse. Physical examination, chest x-rays, and pulmonary function testing resulted in diagnoses of status postoperative middle lobe collapse with pneumonia and tracheomalacia with abnormal chest x-ray. The examiner opined that the veteran's diagnosed disabilities were not related to Agent Orange exposure. In an addendum, the examiner opined that the etiology of the veteran's lung disability was due to a long history of tobacco abuse which was apparently complicated by intermitted infections caused by recurrent episodes of pneumonia. The examiner indicated that the veteran might have been exposed to melioidosis during service, but there was no current evidence of active inflammation. Thus, the examiner concluded that the only connection between the veteran's service in Vietnam and his lung disease was his possible tobacco abuse during that time. As noted, in claims involving allegations of lung disability resulted from tobacco use are considered pursuant to specific directives. However, these claims must be found well- grounded prior to adjudication on the merits. At the outset, the Board notes that at this time, the Board does not make any determination as to whether the veteran's claim for service connection for the alleged disabilities based on tobacco use is well-grounded. The Board further notes that in claims that are not well-grounded, VA does not have a statutory duty to assist a claimant in developing facts pertinent to his claim. However, VA may be obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of evidence needed to complete his application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the Department of Veterans Affairs has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). In this case, based on the requirements for tobacco use cases as outlined below, the Board finds that clarification is needed in order to make the veteran's claim complete. The Board will initially review the applicable directives. An opinion by VA's General Counsel, VAOPGCPREC 19-97, was prepared in response to an inquiry as to under what circumstances service connection may be established for tobacco-related disability or death on the basis that such disability or death is secondary to nicotine dependence which arose from a veteran's tobacco use during service. The opinion, in pertinent part, was to the effect that while 38 C.F.R. § 3.310 provides for "secondary service connection," alternatively, if a claimant could establish that a disease or injury resulting in disability or death was a direct result of tobacco use during service, e.g., damage done to a veteran's lungs by in-service smoking gave rise to lung disability, service connection may be established without reference to section 3.310(a). However, where the evidence indicated a likelihood that a veteran's disabling illness had its origin in tobacco use subsequent to service, and the veteran developed a nicotine dependence during service which led to continued tobacco use after service, the issue then becomes whether the illness may be considered secondary to the service-incurred nicotine dependence pursuant to 38 C.F.R. § 3.310. The 1997 Opinion cited a prior 1993 holding that whether nicotine dependence was a disease for compensation purposes was an adjudicative matter to be resolved by adjudicative personnel based on accepted medical principles. The threshold question was whether nicotine dependence could be considered a disease within the meaning of the veterans' benefit laws; and in that regard, it referred to further VA guidelines which held in the affirmative. The 1997 Opinion further noted that secondary service connection could occur only if a veteran's nicotine dependence, which arose in service, and resulting tobacco use were the proximate cause of the disability or death which is the basis of the claim, and that proximate cause is adjudicatively a factual determination. The 1997 Opinion also noted the potential for an intervening or a supervening cause of injury which might act to sever the proximate and causal connection between the original act and the injury. Thus, based on VA's Under Secretary for Health's conclusion that nicotine dependence may be considered a disease, the two principal questions which must be answered by adjudicators in resolving a claim for benefits for tobacco-related disability or death secondary to nicotine dependence are: (1) whether the veteran acquired a dependence on nicotine during service; and (2) whether nicotine dependence which arose during service may be considered the proximate cause of disability (as in this case) or death occurring after service. With regard to the first question, the Opinion held that the determination of whether a veteran is dependent on nicotine is a medical issue. It quoted the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM- IV) at 243, the criteria for diagnosing substance dependence as specifically applicable to nicotine dependence. Under those criteria, nicotine dependence may be described as a maladaptive pattern of nicotine use leading to clinically significant impairment or distress, as manifested by three or more of the following criteria occurring at any time in the same 12-month period: (1) tolerance, as manifested by the absence of nausea, dizziness, and other characteristic symptoms despite use of substantial amounts of nicotine or a diminished effect observed with continued use of the same amount of nicotine- containing products; (2) withdrawal, marked by appearance of four or more of the following signs within twenty-four hours of abrupt cessation of daily nicotine use or reduction in the amount of nicotine used: (a) dysphoric or depressed mood; (b) insomnia; (c) irritability, frustration, or anger; (d) anxiety; (e) difficulty concentrating; (f) restlessness; (g) decreased heart rate; or (h) increased appetite or weight gain; or by use of nicotine or a closely related substance to relieve or avoid withdrawal symptoms; (3) use of tobacco in larger amounts or over a longer period than was intended; (4) persistent desire or unsuccessful efforts to cut down or control nicotine use; (5) devotion of a great deal of time in activities necessary to obtain nicotine (e.g., driving long distances) or use nicotine (e.g., chain-smoking); (6) relinquishment or reduction of important social, occupational, or recreational activities because of nicotine use (e.g., giving up an activity which occurs in smoking- restricted areas); and (7) continued use of nicotine despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by nicotine. Id. at 181, 243-45. The Opinion further noted that in a case where, as a result of nicotine dependence acquired in service, a veteran continued to use tobacco products following service, the decision would have to be made whether the post-service usage of tobacco products was the proximate cause of the disability or death upon which the claim is predicated. As discussed above, a supervening cause of the disability or death, such as exposure to environmental toxins, etc., might constitute a supervening cause of the disability or death so as to preclude service connection. It also addressed the situation when a nicotine-dependent individual might have full remission and then resume use of tobacco products. In summary, the General Counsel held that whether secondary service connection for disability or death attributable to tobacco use subsequent to military service should be established on the basis that such tobacco use resulted from nicotine dependence arising in service, depended upon all the factors addressed above and the answering of these questions by applying established medical principles to the facts of particular claims. 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. On July 24, 1997, the Acting Under Secretary of VA for Benefits issued USB Letter 20-97-14 with further guidelines for adjudication of claims of entitlement to service connection based on tobacco use or nicotine dependence. The July 1997 letter reiterated significant portions of the General Counsel Opinion holding that secondary service connection related to nicotine dependence arising in service depends upon three elements: (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. The letter further noted that such claims based on use of tobacco products could be on direct, presumptive, or secondary bases. The July 1997 USB letter referred to an earlier all-station letter dated in January 1997, which discussed at length the criteria required for a claim to meet the well-groundedness threshold. Specifically, 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. 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. 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. The letter further noted that if the claim was not well-grounded, the claimant would be advised of what evidence is necessary to make his or her claim well-grounded. On the other hand, once a well-grounded claim has been received, there was a responsibility to execute VA's duty to assist. Citing a May 1997 Under Secretary for Health document, the letter held that nicotine dependence is a disease, and as such, each decision must then specifically address the remaining two elements, i.e., whether the veteran acquired a dependence on nicotine in service, and whether that dependence may be considered the proximate cause of disability or death resulting from the use of tobacco products by the veteran under General Counsel and regulatory definitions. In this case, according to the addendum to the recent VA examination, the veteran had "tobacco abuse" during service. It is unclear if the examiner's use of the term "tobacco abuse" equates with "nicotine dependence." In addition, the veteran has not been provided an opportunity to provide argument and evidence with regard to when his alleged nicotine dependence arose. As such, his claim for such is not at this point complete. Accordingly, the Board finds that the veteran should be afforded another respiratory examination. The examiner should be requested to review the veteran's claims file and respiratory history. The examiner should provide an opinion as to whether nicotine dependence arose in service and directly resulted in the veteran's current extensive lung problems to include tracheomalacia. The veteran should also be provided the opportunity to resent argument and evidence with regard to when his alleged nicotine dependence arose. The evidence may include lay statements. The law requires full compliance with all orders in this remand. Stegall v. West, 11 Vet. App. 268 (1998). Although the instructions in this remand should be carried out in a logical chronological sequence, no instruction in this remand may be given a lower order of priority in terms of the necessity of carrying out the instructions completely. Accordingly, this matter is Remanded for the following actions: 1. The veteran should be provided the opportunity to present argument and evidence with regard to when his alleged nicotine dependence arose and as to whether such dependence caused any of his respiratory disorders. The evidence may include lay statements. 2. The RO should obtain and associate with the claims file copies of all clinical records, which are not already in the claims file, of the veteran's treatment at VA facilities. 3. The veteran should be afforded a VA respiratory examination to determine the current nature, extent, and manifestations of all current respiratory disabilities to include tracheomalacia. All indicated x-rays and pulmonary function tests should be completed. The claims file, to include all evidence added to the record pursuant to this REMAND, must be made available to and be reviewed by the examiner in conjunction with the examination. Based on review of the record, the physical examination, and pertinent testing, the examiner should provide an opinion as to whether nicotine dependence arose in service and, if so, directly resulted in the veteran's current extensive lung problems to include tracheomalacia. The examiner should also specifically opine as to whether any in-service respiratory symptomatology is medically related in any way to the veteran's current lung disabilities to include tracheomalacia. 4. The RO should readjudicate the veteran's claim for entitlement to service connection for a lung disability and tracheomalacia, including as due to exposure to Agent Orange and as a result of tobacco use. The pertinent directives with regard to claims involving allegations of tobacco use should by followed. If any action taken is adverse to the veteran, he and his representative should be furnished a supplemental statement of the case that contains a summary of the relevant evidence and a citation and discussion of the applicable laws and regulations and they should also be afforded the opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The veteran need take no action until otherwise notified, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). By this REMAND, the Board intimates no opinion, either legal or factual, as to any final determination warranted in this case. The purpose of this REMAND is to obtain clarifying information and to provide the veteran with due process. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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. William Harryman Acting Member, Board of Veterans' Appeals