Citation Nr: 0004031 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 98-12 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lung disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Havelka, Associate Counsel INTRODUCTION The veteran's active military service extended from September 1961 to July 1968. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from an April 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. That rating decision, in part, denied service connection for a lung disorder. The case was previously before the Board in August 1999, when it was remanded to retrieve VA medical records. The requested development has been completed. The Board now proceeds with its review of the appeal. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The service medical records reveal that the veteran suffered from bronchitis and pneumonia during service. These two bouts of lung disease were acute and transitory and the veteran's separation examination reveals that his lungs were normal, including a normal chest x-ray examination. 3. There is competent medical evidence of a current lung disorder. VA medical records reveal diagnoses of chronic obstructive pulmonary disease (COPD) and emphysema. 4. The earliest medical reports dealing with any current lung disability are dated decades after service and do not relate the veteran's current lung disorders to his military service. 5. There is no medical opinion, or other competent evidence linking COPD and emphysema to the veteran's active military service. 6. The veteran has not presented competent evidence of a nexus between the symptoms during service and his current COPD and emphysema. CONCLUSION OF LAW The appellant has not presented a well grounded claim for service connection for a lung disorder, and therefore there is no statutory duty to assist the appellant in developing facts pertinent to this claim. 38 U.S.C.A. §§ 101(16), 1110, 1131, 5107(a) (West 1991); 38 C.F.R. § 3.303(b) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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), 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). The law provides that "a person who submits a claim for benefits under a law administered by the Secretary 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) (West 1991)(emphasis added). 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 inservice disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); see also Epps v Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). 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. Brown, 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. Alternatively, the third Caluza element can be satisfied under 38 CFR 3.303(b) (1999) by evidence of continuity of symptomatology and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495 (1997). In this case, the determinative issues presented by the claim are (1) whether the veteran had a lung disorder during service; (2) whether he has any current lung disorder; and, if so, (3) whether this current disability is etiologically related to active service. The Board concludes that medical evidence is needed to lend plausible support for all of the issues presented by this case because they involve questions of medical fact requiring medical knowledge or training for their resolution. Caluza v. Brown, 7 Vet. App. 498, 506 (1995); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The veteran's service medical records appear to be complete. They contain entrance and separation examination reports along with treatment records spanning the veteran's entire period of military service. In February 1962 the veteran had complaints of fever, chills, and cough. The diagnosis was "bronchopneumonia." In October 1963, pleuritis was diagnosed. Chest x-rays conducted in March 1963 and January 1964 revealed no abnormalities. In December 1964 the veteran again had complaints of fever, chills, and cough. This time the diagnosis was acute bronchitis. In April 1965 an extension of enlistment examination of the veteran was conducted. His lungs and chest were normal with no abnormalities noted by the examining physician. A chest x- ray was conducted and revealed a "normal chest." In July 1965 a separation examination of the veteran was conducted. Again his lungs and chest were normal with no abnormalities noted by the examining physician. Another chest x-ray was conducted and revealed findings that were "WNL," within normal limits. At this point the Board notes that the veteran submitted a written statement dated October 1999. The veteran stated that on "my exit of the service you stated that my x-rays were within normal limits; then why did the Marines have me sign a medical release for my lungs and at the same time threaten me by saying that if I did not sign that release they would keep me for the three year inactive obligation." "The appellant's evidentiary assertions must be accepted as true for the purpose of determining whether the claim is well grounded. Exceptions to this rule occur when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion." Samuels v. West, 11 Vet. App. 433, 435 (1998). However, in this case the Board finds absolutely no support to this allegation by the veteran as showing that his lungs were not normal. The veteran's separation examination report clearly reveals that his lungs were normal on both physical examination and x-ray examination. There were identically normal findings on another examination conducted a few months earlier in April 1965. The Board finds that the medical evidence of record reveals that the veteran did suffer form bronchitis and pneumonia during service, but that these periods of illness were acute and transitory in nature. The veteran made a full recovery and his lungs were normal upon separation from military service. The RO obtained the veteran's VA medical records which reveal that he is under treatment for breathing difficulty. The diagnosis is chronic obstructive pulmonary disease and emphysema. The earliest indication of any current lung disorder is a May 1995 VA radiology report. There is no indication in any of these medical records that the veteran's current lung disorders are in any way related to his military service or to his inservice bouts of bronchitis and pneumonia. In fact, the medical evidence of record specifically relates the veteran's current lung disorders to smoking and not to service. The veteran fails to show the required nexus between his current disabilities, emphysema and COPD, and any in-service disease or injury he incurred. See Caluza, 7 Vet. App. at 506. There is no medical evidence establishing a link to the veteran's active military service. See Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Franko v. Brown, 4 Vet. App. 502, 505 (1993). Regulations require a continuity of symptomatology to link the post-service symptoms to injury during service when the fact of chronicity in service is not adequately supported. 38 C.F.R. § 3.303(b) (1999). With no competent medical evidence linking the veteran's current COPD to his military service, he does not meet the third element required for the claim to be well grounded. See Caluza, 7 Vet. App. at 506; Dean v. Brown, 8 Vet. App. 449, 455 (1995); Slater v. Brown, 9 Vet. App. 240 (1996). "A claim for a disability cannot be well grounded unless there is a medical opinion that links the current disability to the appellant's term of service. In the usual case this nexus would consist of a medical diagnosis of a current disability that 'looks backward' to an in-service disease or injury and links the two." Martin v. Gober, 10 Vet. App. 394 (1997); Caluza, 7 Vet. App. at 506; Dean v. Brown, 8 Vet. App. 449, 455 (1995); Slater v. Brown, 9 Vet. App. 240 (1996). The Board has thoroughly reviewed the claims file. However, we find no evidence of a plausible claim. Since the veteran has not met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded, it must be denied. See Boeck v. Brown, 6 Vet. App. 14, 17 (1993) (if a claim is not well- grounded, the Board does not have jurisdiction to adjudicate it). Where a claim is not well grounded, VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, but VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69, 78 (1995). Here, unlike the situation in Robinette, the veteran has not put the VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could make his claims well grounded. See also Epps v. Brown, 9 Vet. App. 341 (1996). Accordingly, the Board concludes that VA did not fail to meet its obligations under 38 U.S.C.A. § 5103(a) (West 1991). ORDER Because it is not well-grounded, the veteran's claim for service connection for a lung disorder is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals