Citation Nr: 0005101 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 95-28 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for squamous cell carcinoma of the right lung, claimed as secondary to nicotine dependence. 2. Entitlement to an increased evaluation for service- connected left shoulder bursitis and rotator cuff injury, currently evaluated as 20 percent disabling. REPRESENTATION Veteran represented by: Louis M. DiDonato, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M.S. Lane, Associate Counsel INTRODUCTION The veteran served on active duty from July 1947 to February 1948 and from July 1948 to January 1951. His decorations include the Purple Heart Medal. This matter comes to the Board of Veterans' Appeals (the Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO), which denied the veteran's claim of entitlement to service connection for carcinoma of the right lung. The RO also granted service connection for left shoulder bursitis and rotator cuff injury, and assigned a 20 percent disability rating. The veteran subsequently perfected a timely appeal. In a Substantive Appeal (VA Form 9) submitted in July 1998, the veteran asserted that the RO had committed clear and unmistakable error in its previous rating decisions which had denied his claims of entitlement to service connection for squamous cell carcinoma of the right lung and a left shoulder disability. The veteran also raised a claim of entitlement to service connection for throat cancer, claimed as secondary to nicotine dependence. As these issues have not been previously addressed, these matters are accordingly referred to the RO for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) [the Board is without jurisdiction to consider issues not yet adjudicated by the RO]. In an August 1999 rating decision, the RO granted the veteran entitlement to a total rating based on individual unemployability due to service-connected disabilities and entitlement to Dependent's Educational Assistance under Chapter 35, Title 38, United States Code. As these grants represent full awards of the benefits sought by the veteran, these matters are not presently before the Board on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The record reflects that the veteran presented testimony at personal hearings held at the RO in August 1996 and September 1998. In his July 1998 Substantive Appeal, the veteran also requested a personal hearing before a traveling member of the Board. This request was withdrawn in a signed statement submitted in August 1998. In a statement submitted in January 2000, the veteran's attorney requested that the veteran be provided with another personal hearing at the RO in regard to his claim of entitlement to service connection for squamous cell carcinoma of the right lung. No reason was given for this request, and the attorney failed to mention the two previous hearings, in August 1996 and in September 1998. At the latter hearing, the veteran and the attorney presented evidence and argument on the issues on appeal, specifically with respect to the contentions as to entitlement to service connection for lung cancer of the right lung due to the veteran's cigarette smoking in service. The veteran has already been provided with two hearings and the transcripts from both of these hearings are presently associated with the claims folder. Neither the veteran nor his attorney have provided any reason why these prior hearings were in any way inadequate. Furthermore, there is no indication that the transcripts from these prior hearings are incomplete. The attorney has not given any indication that the veteran has any additional evidence to present which has not already been submitted. See 38 C.F.R. § 20.717 (1999). The Board concludes that to remand the veteran's claim on this issue merely to provide the veteran with another hearing would only cause unreasonable and undue delay in adjudicating the veteran's claim. The Board will accordingly decide this issue. The issue of entitlement to an increased evaluation for service-connected left shoulder bursitis and rotator cuff injury is addressed in the REMAND portion of this decision. In his January 2000 letter, the veteran's attorney did not request a hearing as to that issue. However, while that issue is in remand status he may do so. FINDING OF FACT The competent and probative medical evidence of record demonstrates that the veteran developed a dependence on nicotine in service, and that such dependence was the proximate cause of his squamous cell carcinoma of the right lung. CONCLUSIONS OF LAW 1. Nicotine dependence was incurred during the veteran's military service. 38 U.S.C.A. § 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). 2. Service connection for squamous cell carcinoma of the right lung, claimed as secondary to nicotine dependence, is warranted. 38 C.F.R. § 3.310(a) (1999). REASONS AND BASES FOR FINDING AND CONCLUSIONS The veteran is seeking service connection for cancer of the right lung. He has advanced two separate theories, both based on secondary service connection, see 38 C.F.R. § 3.310. He contends that his lung cancer of the right lung is somehow due to his service-connected right shoulder injury. He contends in the alternative that the lung cancer is related to service because he became addicted to nicotine during service and was unable to stop smoking for many years after service. In essence, he contends that his post-service smoking and resultant lung cancer should be attributed to nicotine dependence which began during service. In the interest of clarity, the Board will review the law, VA regulations and other authority which may be relevant to this claim; briefly describe the factual background of this case; and then proceed to analyze the claim and render a decision. Relevant Law and Regulations Service connection - in general In order to be entitled to service connection for a disease or disability, the evidence must show that such disease or disability was either incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection may be granted for disease which is diagnosed after discharge from military service, when all of the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d) (1999); see also Cosman v. Principi, 3 Vet. App. 303, 305 (1992). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (1999); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Service Connection - Nicotine Dependence and Related Disorders Applicable law generally recognizes two means by which service connection may be established for claimed nicotine- related diseases and disorders. If a claimant can establish by competent medical evidence 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 [vs. pre- or post-service smoking] gave rise to a disease, then service connection may be established on a direct basis under 38 U.S.C.A. §§ 1110 and 1131. Where the competent medical evidence does not support a direct relationship between in-service smoking and the claimed disease, service connection may be granted on a secondary basis of competent medical evidence indicates that the claimed illness had its origin in tobacco use subsequent to service, but the veteran developed a nicotine dependence during service which led to continued tobacco use after service. In essence, the issue then becomes whether the illness may be considered secondary to service-incurred nicotine dependence pursuant to 38 C.F.R. § 3.310. See VA General Counsel Precedential Opinion, (VAOPGCPREC) 19-97; see also 38 U.S.C.A. § 7104(c) (VA is statutorily bound to follow the precedential opinions of the VA Office of General Counsel); Davis v. West, 13 Vet. App. 178, 183 (1999). VAOPGCPREC 19-97 was prepared in response to an inquiry regarding under what circumstance 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 1997 Opinion cited VAOPGCPREC 2-93, which held 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, further VA guidelines which held in the affirmative were referenced. 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 one of fact. 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. The VA's Under Secretary for Health has concluded that nicotine dependence may be considered a disease for VA compensation purposes. See USB Letter 20-97-14 (July 24, 1997). Therefore, 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 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 noted that the Diagnostic and Statistical Manual, 4th Edition, (DSM-IV), 243, provided that the criteria for diagnosing substance dependence are generally to be applied in diagnosing nicotine dependence. With regard to the second question, VAOPGCPREC 19-97 further provided 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 precedential opinions of the VA General Counsel provide that in the determination of 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, inquiry must be had upon (1) whether nicotine dependence may be considered a disease for purposes of VA benefits; (2) whether the veteran acquired nicotine dependence in service; and (3) whether that nicotine dependence may be considered the proximate cause of disability or death resulting from the veteran's use of tobacco products. 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. Service-connection - well-grounded claims The threshold question with regard to a claim for service connection is whether the claim is well grounded pursuant to 38 U.S.C.A. § 5107. In order for a claim to be well grounded, there must be competent evidence of (1) a current disability (a medical diagnosis); (2) incurrence or aggravation of a disease or injury in service (lay or medical evidence); and (3) a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). A secondary service connection claim is well grounded only if there is medical evidence to connect the asserted secondary condition to the service-connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998); see also Locher v. Brown, 9 Vet. App. 535, 538-39 (1996) [citing Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995)]. Factual Background Upon entrance into service, x-rays taken of the veteran's chest were noted to be negative, and his chest and lungs were both found to be normal on examination. Subsequent service medical records are negative for any complaints or treatment related to lung problems or cancer. These records are also negative for any indication that the veteran ever smoked cigarettes or was treated for nicotine dependence. In December 1951, the veteran was found to be unfit for duty due to injuries suffered as a result of a gunshot wound of the right shoulder. He was discharged from service the following month. There are no pertinent medical records covering several decades after service. Hearing testimony of the veteran and his statements and those of others indicate, in essence, that he did not smoke before service; he began smoking during service and continued to smoke heavily for many years after service. Private treatment records from the Stanford University Medical Center reflect that by December 1992, the veteran was found to have a squamous cell carcinoma in his right upper lobe bronchus. The veteran's private physician, Dr. J.M., noted that the veteran, who had a long history of smoking, had presented himself with some right shoulder discomfort several weeks before. Chest x-rays were obtained, which reportedly revealed an area of atelectasis involving the right upper lobe. Shortly thereafter, computerized tomography (CT) studies were also obtained, which demonstrated a right hilar mass and segmental atelectasis of the right upper lobe. A biopsy then revealed squamous cell carcinoma. In several December 1992 clinical notes, Dr. J.M. related the veteran's squamous cell carcinoma to his long history of cigarette smoking. In December 1992, the veteran underwent a fiberoptic bronchoscopy and a right pneumonectomy. This surgery was performed by Dr. J.M., who noted a diagnosis of lung, right, pneumonectomy, and moderately differentiated squamous cell carcinoma. X-rays taken shortly after surgery reportedly revealed "expected post surgical changes" associated with resection of the right lung, including opacification of the right hemithorax and mediastinal shift to the right. In August 1994, the veteran filed a claim of entitlement to service connection for lung cancer, claimed as secondary to his service-connected gunshot wound to the right shoulder. He essentially contended that his cancer was related to muscle and bone damage he suffered as a result of his gunshot wound injury of the right shoulder. In a March 1995 rating decision, the RO denied the veteran's claim of entitlement to service connection for squamous cell carcinoma of the right lung. The RO found that there was no competent medical evidence of record showing that his squamous cell carcinoma was related to his service-connected gunshot wound. The veteran subsequently filed a timely Notice of Disagreement, in which he also contended that his squamous cell carcinoma of the right lung was related to his long history of tobacco use. The veteran further contended that his first recollection of smoking was when he entered the service in July 1948. He indicated that he continued smoking throughout service, as cigarettes were made available to servicemen during the Korean War. Although the veteran acknowledged that he continued to smoke until 1990, he indicated that the origin of his tobacco habit was in service. During his August 1996 personal hearing, the veteran testified that he believed that he developed his smoking addiction in service because cigarettes were made so readily available to serviceman. He further testified that he felt that smoking was even encouraged by the military and that this played a role in his becoming addicted. In March 1998, two VA physical examinations were conducted, by Drs. E.S. and P.K. The veteran reported that he began smoking during service and increased the number of cigarettes he smoked per day throughout service. He indicated that he tried to quit smoking when he left the military but could not. He reported that he developed a cough in the mornings productive of phlegm, but continued to smoke because he was not able to quit. He stated that he was finally able to quit smoking in November 1990. Drs. P.K. and E.S. both diagnosed the veteran with nicotine addiction, which developed during active duty and continued until he quit smoking in 1990. They also diagnosed the veteran with a status post right pneumonectomy for lung cancer and "treated carcinoma of the lung, no evidence of recurrence." In June 1998, the veteran's attorney submitted signed statements from several of the veteran's friends and family members. In these statements, these individuals each asserted that they never knew the veteran to smoke prior to his entry into active duty, and that they each witnessed him smoking for the first time upon his return from service. In December 1998, the veteran was provided with another VA physical examination. The VA examiner noted that the veteran exhibited normal breath sounds on the left but no breath sounds on the right. The veteran reported that he experienced severe shortness of breath even when talking or engaging in activities such as tying his shoelaces. The VA examiner noted that chest x-rays taken in March 1998 revealed a clear left lung and a total absence of the right lung. The VA examiner diagnosed the veteran with a status post pneumonectomy for lung cancer with marginal lung capacity and lung volume, and easy fatigability. Analysis Preliminary matters The Board believes that certain initial decisions will serve to focus its discussion. There is no question that the veteran had carcinoma of the left lung, leading to its surgical removal. There is also no serious question that this lung cancer is related to his longstanding tobacco use. See the December 1992 of Dr. J.M. The veteran has presented no medical evidence in support of his contention that that this disease is related to his service-connected gunshot wound of the right shoulder. Moreover, although the veteran contends that he smoked during service, he does not appear to contend, nor does the medical evidence suggest, that in- service (as opposed to post service) smoking caused his lung cancer. Accordingly, in the absence of competent medical nexus evidence the Board finds these two aspects of his claim not well grounded. See Caluza, supra. The Board will therefore limit its discussion of service connection for right lung cancer secondary to nicotine dependence. Although the issue of service connection for nicotine dependence, as such, was not certified for appellate consideration, it is clear that the issue was raised by the veteran and was adjudicated by the RO. 38 C.F.R. § 19.35 (1999) provides that certification is for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction of an issue. Thus, although the issue of service connection for nicotine dependence was not certified for appeal by the RO, for the reasons stated above the Board finds that it has jurisdiction. See 38 U.S.C.A. §§ 7104, 7105 (West 1991); 38 C.F.R. § 20.200 (1998). Therefore, this issue is properly before the Board for adjudication. The Board further finds that the veteran's claim of entitlement to service-connection for squamous cell carcinoma of the right lung is well grounded within the meaning of 38 U.S.C.A. § 5107(a). As discussed above, in order to establish a well-grounded claim for secondary service connection related to nicotine dependence, a claimant must provide (1) medical evidence of a current disability, (2) medical evidence that nicotine dependence arose in service, and (3) medical evidence of a relationship between the current disability and the nicotine dependence. See USB Letter 20-97-14 (July 24, 1997). In this case, the Board finds that the veteran has submitted such evidence, in the form of the March 1998 VA examination reports in which Drs. P.K. and E.S. diagnosed the veteran with nicotine dependence that arose in service, and the December 1992 clinical notes in which the veteran's squamous cell carcinoma was related to his long history of cigarette smoking. Having found the veteran's claim to be well grounded, VA has a duty to assist the veteran in developing the facts pertinent to his claim. See 38 U.S.C.A. § 5107. In the instant case, there is ample medical and other evidence of record, the veteran has been provided with two personal hearings and several recent VA examinations, and there is no indication that there are additional records that have not been obtained and which would be pertinent to the present claim. Thus, the Board finds that no further development is necessary in order to comply with VA's duty to assist as mandated by 38 U.S.C.A. § 5107(a). Once a well-grounded claim has been established, the Board has the duty to assess the credibility and weight to be given to the evidence. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of evidence regarding the merits of an issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (1999). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Discussion The Board will address whether all the elements of a secondary service connection claim exist, i.e. (1) whether the veteran has diagnosed nicotine dependence; (2) whether the veteran acquired such nicotine dependence in service and (3) whether that nicotine dependence may be considered the proximate cause of the veteran's squamous cell carcinoma of the right lung. See VAOPGCPREC 19-97 and VAOPGCPREC 2-93. With regard to the first two elements, the Board finds the most probative evidence of record to be the opinions of the veteran's March 1998 VA examiners, Drs. P.K. and E.S., who both diagnosed the veteran with nicotine dependence and both specifically concluded that the veteran's nicotine dependence had its onset during service. As there is no competent medical evidence of record that indicates otherwise, the Board believes that this evidence supports finding that the veteran did acquire a nicotine dependence in service. With regard to the third element, the Board believes that the greater weight of competent and probative evidence supports finding that the veteran's nicotine dependence acquired in service can be considered the proximate cause of his squamous cell carcinoma of the right lung resulting from the his use of tobacco products. In particular, the Board notes that Dr. J.M. noted in several clinical reports that the veteran's squamous cell carcinoma of the right lung was related to his 45-year history of tobacco use. Furthermore, there is no evidence of any supervening cause of his squamous cell carcinoma, such as exposure to environmental toxins, and no indication that the veteran's nicotine addiction ever went through a period of full remission following discharge. In fact, Dr. P.K. specifically determined that the veteran's nicotine addiction that developed in service continued until he quit smoking decades later. In short, the Board finds that the competent and probative evidence of record demonstrates that the veteran developed a dependence on nicotine in service, and that such dependence was the proximate cause of his squamous cell carcinoma of the right lung. The Board cannot identify any medical evidence to the contrary. Accordingly, the Board finds that a grant of service connection nicotine dependence and service connection for squamous cell carcinoma, claimed as secondary to nicotine dependence, is warranted. Additional Matter The Board wishes to make it clear that, while it has no reason whatsoever to doubt the veteran's statements to the effect that he started and continued smoking during service because cigarettes were readily available to service members, the source of the cigarettes is irrelevant to the matter at hand. To the extent that the veteran may be raising an argument concerning the culpability of the United States government in connection with furnishing tobacco products to servicemen, such is not contemplated in the law and VA regulations as a factor in the Board's deliberations. ORDER Entitlement to service connection for nicotine dependence is granted. Entitlement to service connection for squamous cell carcinoma of the right lung, claimed as secondary to nicotine dependence, is granted. REMAND The veteran is seeking an increased rating for his service- connected left shoulder bursitis and rotator cuff injury, which is currently evaluated as 20 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5201 (1999) [limitation of motion of the arm]. He essentially contends that his left upper extremity symptoms are of greater severity than is contemplated by his currently assigned 20 percent disability rating. As an initial matter, the Board notes that the veteran's claim of entitlement to an increased evaluation of his left shoulder bursitis and rotator cuff injury is well-grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran is awarded service connection for a disability and appeals the RO's initial rating determination, the claim continues to be well grounded as long as the claim remains open and the rating schedule provides for a higher rating. See Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). Therefore, VA has a duty to assist the veteran with the development of evidence to support his claim. 38 U.S.C.A. § 5107(a). In accordance with this duty, and for the reasons and bases stated below, the Board finds that further evidentiary development is necessary before the veteran's claim can be properly adjudicated. The record reflects that since filing his claim for service connection for a left shoulder disorder, the veteran has been provided with two VA orthopedic examinations. However, the first VA orthopedic examination, which was conducted in March 1998, appears to have been conducted solely in order to determine the etiology of the veteran's left shoulder disorder. There is no discussion as to the severity of his left shoulder disorder, or as to whether he experiences any functional loss due to pain or other symptoms. Likewise, the Board can find no such discussion in the report of his second VA orthopedic examination, which was conducted in December 1998. X-rays were not taken during either exam. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that in evaluating a service-connected disability involving a joint rated on limitation of motion, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 (1999) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (1999). The Court in DeLuca held that Diagnostic Codes pertaining to range of motion do not subsume 38 C.F.R. §§ 4.40 and 4.45, and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 (1999) does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. The Court remanded the case to the Board to obtain a medical evaluation that addressed whether pain significantly limits functional ability during flare-ups or when the joint is used repeatedly over a period of time. The Court also held that the examiner should be asked to determine whether the joint exhibits weakened movement, excess fatigability or incoordination. If feasible, these determinations were to be expressed in terms of additional range of motion loss due to any pain, weakened movement, excess fatigability or incoordination. In this case, the Board believes that inasmuch as the veteran's complaints primarily relate to pain and functional impairment of his left shoulder and because on VA examination, limitation of motion was identified, the considerations of 38 C.F.R. §§ 4.10 and 4.40 must be adequately addressed and were not in the most recent VA examinations and rating action. Therefore, the Board finds that another VA examination of the veteran's service- connected left shoulder disability is in order. Accordingly, this case is REMANDED for the following actions: 1. The RO should request that the veteran identify the names, addresses, and approximate dates of treatment for all health care providers who may have treated the veteran for his left shoulder disability since 1994. After securing any necessary authorization from the veteran, the RO should contact these health care providers in order to attempt to obtain copies of those treatment records which have not been previously secured. Regardless of whether the veteran responds, the RO should attempt to obtain any recent VA treatment records that may be available. 2. When the above development has been completed to the extent possible, the veteran should be afforded another VA orthopedic examination to determine the severity of his left shoulder disorder. The veteran's claims folder and a copy of this remand must be made available to the physician for review in conjunction with the examination. All indicated tests are to be performed and must include range of motion testing, to include description of ranges of motion of the left shoulder and noting the normal range of motion. In particular, whether there is any pain, weakened movement, excess fatigability or incoordination on movement should be noted. Whether there is likely to be additional range of motion loss due to any of the following should also be addressed: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare- ups. The examiner should also specifically address any functional impairment attributable to the veteran's left shoulder disorder. The report of the examination should be associated with the veteran's claims folder. 3. Following completion of the foregoing, the RO should readjudicate the veteran's claim of entitlement to an increased evaluation for his service- connected left shoulder bursitis and rotator cuff injury. If the benefit sought on appeal remains denied, the veteran and his attorney should be furnished with copies of a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The veteran need take no action unless otherwise notified. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board 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. Barry F. Bohan Member, Board of Veterans' Appeals During the course of this appeal, legislation was enacted which effectively prohibits service connection of death or disability on the basis that such resulted from disease or injury attributable to the use of tobacco products during a veteran's period of active service [to be codified as 38 U.S.C. § 1103]. However, this law is effective only as to claims filed after June 9, 1998. Accordingly, the Board will evaluate the appellant's contentions under the more lenient standard articulated above. 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 the three elements of: (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. In any event, each claim was clearly to be subjected to the usual underlying criteria for well-grounded claims. 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 physicians 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. The RO has noted that at times the veteran has alluded to pre-service cigarette smoking. Most of the evidence of record indicates that he started smoking during service, and the Board so finds. However, when the veteran started smoking is essentially irrelevant to the question at issue here, whether nicotine dependence began during service.