Citation Nr: 0002094 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 98-19 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for the cause of death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Robinson, Associate Counsel INTRODUCTION The veteran had honorable active duty from June 1943 to October 1947. The appellant is the veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) from an August 1998 rating determination of a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. At the time of the veteran's death, service connection was not in effect for any disability. 2. The death of the veteran was due to brain metastasis, due to small cell carcinoma of the lung, due to smoking. 3. There is no competent medical evidence of a nexus between the cause of the veteran's death and service. CONCLUSION OF LAW The claim of service connection for the cause of death is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION A review of the certificate of the veteran's death discloses that he died in October 1997 at the age of 69. The immediate cause of death was listed as brain metastasis, due to small cell carcinoma of the lung, due to smoking. The approximate interval between the fatal condition and death was shown to be months. The approximate interval between lung cancer and death was 1 year, and years between the onset of smoking and death. Other significant conditions contributing to the cause of death but not related to death was arteriosclerotic heart disease- stable. The veteran was not service connected for any disability at the time of his death in October 1997. The service medical records are negative for evidence of nicotine dependence, lung cancer, brain metastasis, or arteriosclerotic heart disease. In a statement dated in July 1957, P.D., M.D., reported physical and clinical findings referable to the veteran's unstable back. It was noted that the veteran had undergone a laminectomy and spinal fusion. In a report dated in July 1958, N.H., M.D., reported that the veteran was seen for recurrent incapacitating low back symptoms, and symptoms of cervical spine instability. There were no complaints or findings noted regarding the cardiovascular or respiratory system. An initial VA examination in February 1959 showed the cardiovascular system to be normal. There were no psychiatric or respiratory abnormalities noted. In a report dated in February 1959 from Eugene Hospital and Clinic, F.W., M.D., provided an overview of treatment for the veteran's low back disability. In a statement dated in April 1959, P.D., M.D., reported clinical findings derived from an examination of the veteran's lumbosacral spine. The following medical evidence pertains to treatment provided at Kootenai Medical Center from September 1992 to September 1997. Medical records dated in September 1992 show that the veteran presented with complaints of chest pain. It was noted that the veteran had an extensive cardiac history including myocardial infarction in 1986 with a cardiac catheterization and additional infarction in 1987 and another catheterization in 1988. On examination, lungs were clear and breath sounds were equal, bilaterally. It was noted that his personal habits included four cigars a day. It was also noted that he had been a two pack a day smoker for several years until his initial coronary. The diagnoses were angina pectoris with coronary artery disease, hypercholesterolemia, exogenous obesity, and treatment of Peyronie's disease. Medical records dated in November 1992 show that the veteran was seen with complaints of double vision while watching television with no associated vertigo or nausea. Medical records dated in March 1993 show that the veteran presented with acute shortness of breath, coughing, dyspnea, and chest discomfort. On examination, vital signs were stable, temperature was mildly elevated, lungs showed rhonchi, especially in the right lower lobe. A chest X-ray showed no definite infiltrates, although follow-up chest X- ray showed a small middle lobe infiltrate, consistent with pneumonia. It was noted that the veteran had been smoking cigars two days prior to his admission. It was also noted that he had been a heavy cigarette smoker in the past. The diagnoses were acute chest pain, improved, rule out myocardial infarction, hypoxia, probable acute bronchitis, history of previous coronary artery disease with previous myocardial infarctions, chronic obstructive pulmonary disease versus cardiac asthma, improved, and cigarette abuse. Medical records dated in May 1993 from the Heart Institute of Spokane show diagnoses for congestive heart failure with associated bronchitis and underlying chronic obstructive pulmonary disease, coronary artery disease, chronic obstructive lung disease, likely secondary to cigarette smoking, medication allergies, positive coronary risk factors, and degenerative disc disease. Pulmonary function test performed in June 1993 revealed the following: expiratory times were somewhat short; spirometry did not indicate obvious airways obstruction, but post bronchodilator spirometry was significantly improved; total lung capacity was within normal limits, slow vital capacity was greater than forced vital capacity, a feature that suggests either a more complete exhalation or possible airways obstruction; moderate reduction in diffusing capacity. Medical records dated in August 1993 show that the veteran was seen with complaints of shortness of breath. On examination, vital signs were stable, lungs revealed bilateral coarse rales at the bases, and cardiovascular was without murmur, gallop or rub. The diagnoses were acute dyspnea, congestive heart failure, and chronic obstructive pulmonary disease, "question early." Medical records dated in October 1994 show that the veteran was seen with complaints of severe low back pain. The diagnosis was lumbar strain and contusion. The veteran was seen again in October 1994 for an acute exacerbation of low back pain with right sciatica. In June 1995, the veteran was diagnosed with chronic hyperkeratotic psoriasiform dermatitis with pseudoepitheliomatous hyperplasia, right forearm. Medical records dated in October 1996 show diagnoses for development of solitary pulmonary nodule, left lung, chronic obstructive pulmonary disease, multiple back injuries, hypercholesterolemia, and arteriosclerotic heart disease without angina. An October 1996 computed tomography (CT) scan of the veteran's chest revealed a 1.5 centimeter lesion, left lower lobe, bordering the major fissure, most likely representing a malignancy. There was no evidence of tumor elsewhere in the chest. Medical records dated in January 1997 from North Idaho Cancer Center note that the veteran was a long term smoker, having smoked one pack of cigarettes per day for about 45 years from age 12 through 1985, and continued to smoke four cigars per day. The diagnosis was limited stage small cell cancer of the lung resected in October 1996. CT scan of the chest in January 1997 revealed status post left lower lobectomy for a tumor, there was volume loss on the left with shift of the heart and mediastinal sutures to the left, and pleural thickening in the remaining left lung base which extended up superiorly along the aorta to a suture line. CT scan of the abdomen revealed carcinoma by history with resection of the left lower lobe with left basilar pleural thickening and no evidence of metastasis to the abdomen per se. A magnetic resonance imaging (MRI) of the brain dated in January 1997 revealed moderate atrophic changes consistent with age, there was some mucoperiosteal thickening of the posterior left sphenoid sinus versus a small mucous retention cyst, and no evidence of metastasis to the brain. Whole body bone scan revealed no definite evidence of metastatic disease. Electrocardiogram (EKG) performed in February 1997 showed mild left ventricular hypertrophy with overall normal size and function, no significant valvular disease, mild left atrial enlargement. Chest X-ray revealed left lower lobectomy with some postoperative changes in the left costophrenic angle. Medical records dated in February 1997 show complaints of chest pain. The principal diagnosis was unstable angina with secondary diagnoses of hyperlipidemia, history of small cell lung cancer, status post lobectomy and chemotherapy, status post multiple back surgeries, status post transurethral resection of prostate with carcinoma found in 1996, and forty-five year smoking history. It was noted that the veteran quit smoking 10 years prior, but continued to smoke cigars until 1996. Chest X-rays dated in February 1997 from North Idaho Imaging Center revealed left pleural effusion not quite as prominent as on previous examination, otherwise negative chest. Medical records dated in March 1997 show that the veteran was seen with complaints of chest pain and right shoulder pain. It was noted that the veteran had no tobacco use for approximately six months with a significant tobacco usage for approximately sixty years. Chest X-rays dated in March 1997 show probable previous left partial pulmonary resection, otherwise normal chest. Chest X-rays dated in April 1997 show no acute cardiopulmonary disease or significant interval change and persistent pleuro-parenchymal scarring and possible pleural effusion in the left costophrenic angle. Medical records dated in April 1997 show that the veteran was seen with the chief complaint of coughing up blood. On examination, he was afebrile with normal vital signs, lung fields were somewhat decreased on the left, and cardiovascular was regular without murmur. The diagnoses were lung cancer with left pleural effusion, status post recent placement of cardiac stent, and bronchitis, which was primary complaint. Chest X-rays taken in May 1997 show findings consistent with prior surgery to the left chest with subsequent volume loss and negative study for new pulmonary infiltrates or parenchymal abnormalities. Chest X-rays taken in June 1997 show status post a partial pneumonectomy on the left with elevation of the left hemidiaphragm and scarring of the costophrenic angles, findings of chronic obstructive pulmonary disease, cardiomegaly with pulmonary vascular congestion, and healed rib fractures on the left. Medical records dated in July 1997 show that the veteran was seen with complaints of abdominal and pelvic pain as well as constipation. The diagnosis was mild adynamic ileus. An unenhanced and enhanced CT scan of the brain dated in August 1997 showed multiple diffusely scattered brain metastases. Medical records dated September 1997 show that the veteran was weak and seemed mildly confused, but was in no acute discomfort. He had rattling upper airway sounds, with decreased air entry at the left base which was dull to percussion, and which showed pleural effusion on chest X-ray, lung fields were otherwise clear. The impression was small cell lung cancer, metastatic to brain. In a March 1998 statement, the veteran's cousin reported that at the time the veteran entered service he was a nonsmoker. He reported that the next time he saw the veteran was during service on the island of Enewetok, when the veteran had a cigarette in his mouth. He reported that they were both "hooked." In a March 1998 statement, the veteran's mother reported that the veteran was a nonsmoker prior to his enlistment into service. In a March 1998 statement, the appellant reported that when she met the veteran in 1971 he was smoking two packs of cigarettes per day. She reported that he tried to quit smoking at the request of his physician but was unsuccessful. She reported a cessation of smoking for six months duration. Pertinent Law and Regulations The threshold question that must be resolved is whether the appellant has presented evidence that the claim is well grounded. 38 U.S.C.A. § 5107(a); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). If the appellant fails to submit evidence of a well-grounded claim, VA has no duty to assist her with the development of her claim. Epps v. Gober, at 1469. A well-grounded claim is a plausible claim, meaning a claim that appears to be meritorious on its own or capable of substantiation. Epps, 126 F.3d at 1468. An allegation that the cause of death is service-connected is not sufficient; the appellant must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." 38 U.S.C.A. § 5107(a); see also Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for the claim for service connection for the cause of the veteran's death to be well grounded, in addition to medical evidence of a current disability (the current disability being the condition that caused the veteran to die), there must be medical or lay evidence of the incurrence of a disease or injury in service and medical evidence of a nexus between the in-service disease or injury and the current disability. Carbino v. Gober, 10 Vet. App. 507 (1997); see Caluza v. Brown, 7 Vet. App. 498 (1995). A lay person is, however, competent to provide evidence on the occurrence of observable symptoms during and following service. If the claimed disability is manifested by observable symptoms, lay evidence of symptomatology may be adequate to show the nexus between the current disability and the in-service disease or injury. Nevertheless, medical evidence is required to show a relationship between the reported symptomatology and the current disability, unless the relationship is one to which a lay person's observations are competent. See Savage v. Gober, 10 Vet. App. 488 (1997). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. U.S.C.A. § 1110 (West 1991). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b) (1999). In February 1993, VA's General Counsel issued an opinion that clarified when benefits may be awarded based upon in-service tobacco use. The opinion held that direct service connection may be granted if the evidence shows injury or disability resulting from tobacco use in service. VAOPGCPREC 2-93 (O.G.C. Prec. 2-93), 58 Fed. Reg. 42756 (1993). In May 1997, the General Counsel issued an opinion further clarifying when service connection may be granted for disability or death due to nicotine dependence caused by in- service tobacco use. The General Counsel indicated that secondary service connection may be granted under 38 C.F.R. § 3.310 (1998), if the following three questions can be answered affirmatively: (1) may nicotine dependence may be considered a disability for purposes of the laws governing veterans' benefits; (2) did the veteran acquired a dependence on nicotine in service; and (3) may that dependence be considered the proximate cause of disability or death resulting from the use of tobacco products by the veteran. VAOPGCPREC 19-97, 62 Fed. Reg. 37954 (1997). In that opinion the General Counsel referred to a conclusion of VA's Under Secretary for Health's that nicotine dependence may be considered a disease for compensation purposes. The Opinion went on to hold that the determination of whether a veteran is dependent on nicotine is a medical issue. The 1997 Opinion also held that with regard to proximate causation, if it is determined that, as a result of nicotine dependence acquired in service, a veteran continued to use tobacco products following service, adjudicative personnel must consider whether there is a supervening cause of the claimed disability or death which severs the causal connection to the service-acquired nicotine dependence. Recently enacted legislation prohibits service connection of a disability on the basis that it resulted from disease attributable to the use of tobacco products by a veteran during his or her service. 38 U.S.C.A. § 1103 (West Supp. 1999). This statute, however, applies only to claims filed after June 9, 1998. Where the law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran applies. Dudnick v. Brown, 10 Vet. App. 79 (1997); Karnas v. Derwinski, 1 Vet. App. 308 (1991). The appellant's claim was submitted prior to June 9, 1998. Analysis The appellant has asserted that the veteran's death was the result of a smoking habit that began during his military service. Reading the record in a liberal manner there is competent evidence that the veteran's death was linked to nicotine dependence. The death certificate shows that smoking contributed to lung cancer which led to the fatal brain metastasis. The Board also notes that the veteran was diagnosed with tobacco abuse. There is no competent evidence, however, that the veteran developed nicotine dependence in service, or that the smoking that contributed to the veteran's death was in any way related to service. These are questions of causation and diagnosis. As such, a lay person, including the appellant, the veteran's mother, and the veteran's cousin, would not be competent to diagnose nicotine dependence in service, to say that nicotine dependence after service was etiologically related to service. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In the absence of competent evidence linking nicotine dependence to service, the Board must conclude that the claim for service connection for the cause of death on the basis of nicotine dependence is not well grounded. While the Board has no reason to doubt the appellant's assertions that the veteran smoked during service, she has failed to present any competent medical evidence that such in-service smoking was related to his fatal brain metastasis secondary to lung cancer. Cf. Combee v. Brown, 34 F. 3d 1039, 1942 (Fed. Cir. 1994): "Proof of direct service connection thus entails proof that exposure during service caused the malady many years later." As noted above, the evidence of record does not contain any medical evidence relating the veteran's death to cigarette smoking during service. The appellant has not alleged that the veteran's heart disease, lung cancer, or brain metastasis began during service, and the service medical records do not reflect any such disabilities during service. Medical evidence showing a causal relationship between his fatal brain metastasis due to lung cancer due to smoking and service is required for a well-grounded claim pursuant to Caluza. As there is no such medical evidence of record, a claim for service connection for the cause of death in service must be denied. In light of the foregoing, the Board finds that the appellant has not submitted a well-grounded claim of entitlement to service connection for the cause of the veteran's death. 38 U.S.C.A. § 5107. ORDER Service connection for the cause of death is denied. Mark D. Hindin Member, Board of Veterans' Appeals