Citation Nr: 0000228 Decision Date: 01/05/00 Archive Date: 01/11/00 DOCKET NO. 98-21 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran served on active duty from May 1942 to November 1945. The evidence of record also reveals that the veteran's period of service includes a period of captivity as a prisoner-of-war (POW) from May 1944 to May 1945. He died in October 1993. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee (RO). FINDINGS OF FACT 1. The veteran died in October 1993. 2. The immediate cause of the veteran's death was right lung squamous cell carcinoma, with malnourishment secondary to chronic gastrointestinal disorder listed as a significant condition contributing to death but not resulting in the underlying cause of death. 3. At the time of the veteran's death, service connection had been established for anxiety reaction, evaluated as 50 percent disabling, and left hernia surgery, assigned a noncompensable evaluation. 4. No competent medical evidence of record links the veteran's cause of death to the use of tobacco in service or to nicotine dependency developed in service. CONCLUSION OF LAW The claim of entitlement to service connection for the cause of the veteran's death is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the pertinent statutes and regulations, service connection for cause of death may be established if a service-connected or compensable disability caused, hastened, or substantially and materially contributed to the death. 38 U.S.C.A. § 1310(b) (West 1991). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312 (1999). A Board decision dated in September 1996, denied entitlement to service connection for the cause of the veteran's death. At that time, the Board determined that neither right lung squamous cell carcinoma or malnourishment secondary to a chronic gastrointestinal disorder were incurred in or aggravated during the veteran's period of active military service. The Board also found that the veteran's service-connected disabilities, either singularly or collectively, were not related to the cause of the veteran's death, contributed to or accelerated his death, or rendered him materially less capable of resisting death. In the instant case, the appellant contends that the veteran's death was a direct result of nicotine dependence which arose from his use of tobacco during his period of active duty. Since this legal theory had not previously been considered the Board in 1996, the RO, in April 1998, adjudicated the claim on a de novo basis; the RO denied the claim, finding it to be not well grounded. A well-grounded claim is one that is plausible, capable of substantiation or meritorious on its own. See 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet App. 78, 81 (1990). Service connection may be granted for disability incurred in or aggravated during active duty. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Certain diseases are presumed to have been incurred in service if manifested to a degree of ten percent within a year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). In the absence of evidence of a well-grounded claim, there is no duty to assist the appellant in developing the facts pertinent to her claim, and the claim must be denied. See Epps v. Gober, 126 F.3d 1464, 1467-68 (1997). The veteran died in October 1993. The Certificate of Death, issued in November 1993, shows that the immediate cause of the veteran's death was right lung squamous cell carcinoma, and also listed malnourishment secondary to chronic gastrointestinal disorder as a significant condition contributing to death but not resulting in the underlying cause of death. At the time of his death, service connection had been established for anxiety reaction, evaluated as 50 percent disabling, and left hernia surgery, assigned a noncompensable disability rating. Service medical records do not reflect whether the veteran used tobacco, nor do they show indications for or treatment of nicotine dependency or lung cancer. A private medical opinion dated in December 1997, stated that the veteran was diagnosed with poorly differentiated non- small cell carcinoma of the right lung in June 1993. The private physician added that this cancer was most often associated with cigarette smoking and that the veteran, in fact, did have a long and extensive history of smoking. The physician opined that the veteran expired due to this disease process. Two additional lay statements received in January 1998, submitted by the veteran's brother and a friend of the veteran, indicated that the veteran smoked cigarettes prior to, during, and following his period of service. In addition, the appellant, asserted in January 1998, that the veteran smoked cigarettes before, during, and after his period of active service. In January 1999, the appellant's representative, while noting that the appellant was contending that the veteran's period of service contributed to his "chain smoking" that resulted in his eventual demise, contended that the veteran's internment as a POW, as well as his service-connected anxiety disorder, contributed to increase his smoking habit, which, eventually led to the development of cancer. A precedential opinion by the VA General Counsel clarified when entitlement to benefits may be awarded based upon in- service tobacco use. This opinion determined that direct service connection may be established if the evidence shows injury or disease resulting from tobacco use in service. VAOPGCPREC 2-93, 58 Fed. Reg. 42,756 (1993). The General Counsel issued a clarification of this opinion in June 1993 and stated that the opinion does not hold that service connection will be established for a disease related to tobacco use if the affected veteran smoked in service. Rather, the opinion holds that any disability allegedly related to tobacco use which is not diagnosed until after service would not preclude establishment of service connection. However, it must be demonstrated that the disability resulted from use of tobacco during service, and the possible effect of smoking before or after service must be taken into consideration. With regard to the issue of secondary service connection, a precedential opinion by the VA General Counsel was issued to clarify when service connection may be granted if the disability is secondary to nicotine dependence which arose from a veteran's tobacco use during service. The VA General Counsel found that a determination as to whether secondary service connection should be established depends upon affirmative answers to the following three questions: (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. VAOPGCPREC 19-97, 62 Fed. Reg. 37,954 (1997). In a May 1997 memorandum, the Under Secretary for Health stated that nicotine dependence may be considered a disease for VA compensation purposes. Moreover, the determination as to whether a veteran is dependent on nicotine is a medical question. The Board recognizes that on July 22, 1998, the "Internal Revenue Service Restructuring and Reform Act of 1998" was signed into law as Public Law No. 105-206. This law prohibits service connection of a death or disability on the basis that it resulted from an injury or disease attributable to the use of tobacco products by a veteran during the veteran's service. 112 Stat. 685, 865-66 (1998) (to be codified at 38 U.S.C.A. § 1103). However, this new section applies only to claims filed after June 9, 1998. As the appellant in the present case filed her claim in October 1997, the statutory change will not affect the disposition of this appeal. Although the veteran's private physician stated that the cause of death was poorly differentiated non-small cell carcinoma of the right lung, a disease most often associated with cigarette smoking, the physician noted that the veteran had a long and extensive history of smoking. The examiner did not relate the veteran's terminal disease process with the use of tobacco during service. There is no medical evidence of record which relates the cause of the veteran's death to smoking while in service. Additionally, there is no evidence that the veteran acquired a dependence on nicotine in service, nor is there medical evidence of a nexus between claimed in-service nicotine dependence and lung cancer. The appellant and her representative contend that the veteran's period of service contributed to his "chain smoking," or in the alternative, that the veteran's internment as a POW, as well as his service-connected anxiety disorder, contributed to increase his smoking habit, which, eventually led to the development of cancer. However, there is no medical evidence of record which supports these contentions. The record fails to show that a service- connected disability caused, hastened, or substantially and materially contributed to the veteran's death. There being no competent medical evidence linking the veteran's cause of death to his period of active service, the appellant's claim must be denied as not well grounded. See Brewer v. West, 11 Vet. App. 228 (1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). ORDER Entitlement to service connection for the cause of the veteran's death is denied. JOY A. MCDONALD Acting Member, Board of Veterans' Appeals