Citation Nr: 0002718	
Decision Date: 02/03/00    Archive Date: 02/10/00

DOCKET NO.  98-07 126	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for a back disability.

2.  Entitlement to service connection for emphysema, 
including chronic obstructive pulmonary disease.

3.  Entitlement to service connection for unstable angina, 
including coronary artery disease. 



REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Mary C. Suffoletta, Associate Counsel


INTRODUCTION

The veteran had active service from April 1956 to November 
1962.

This matter comes to the Board of Veterans' Appeals (Board) 
from a March 1998 RO rating decision that (1) denied service 
connection for a back condition, and (2) denied service 
connection for emphysema and unstable angina.  The veteran 
submitted a notice of disagreement in March 1998, and the RO 
issued a statement of the case in April 1998.  The veteran 
submitted a substantive appeal in May 1998.  In April 1999, 
the veteran withdrew his request for a hearing.


FINDINGS OF FACT

1.  The veteran has submitted competent evidence tending to 
show an in-service occurrence of a back injury, and the 
continuity of symptomatology of back pain.

2.  There is no competent (medical) evidence linking the 
veteran's unstable angina, coronary artery disease, or 
emphysema-first found many years after service-to an 
incident of service, including tobacco use.

3.  The veteran has not submitted competent (medical) 
evidence linking emphysema to an incident of service, 
including exposure to asbestos, or to a service-connected 
disability.


CONCLUSIONS OF LAW

1.  The claim for service connection for a back disability is 
well grounded.  38 U.S.C.A. § 5107(a) (West 1991).

2.  The claim for service connection for unstable angina is 
not well grounded.  38 U.S.C.A. § 5107(a) (West 1991).

3.  The claim for service connection for emphysema is not 
well grounded.  38 U.S.C.A. § 5107(a) (West 1991).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Back Disability

In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. 
denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the 
United States Court of Appeals for the Federal Circuit 
(Federal Circuit) held that, under 38 U.S.C. § 5107(a), the 
Department of Veterans Affairs (VA) has a duty to assist only 
those claimants who have established well grounded (i.e., 
plausible) claims.  More recently, the United States Court of 
Appeals for Veterans Claims (Court or CAVC) issued a decision 
holding that VA cannot assist a claimant in developing a 
claim which is not well grounded.  Morton v. West, 12 Vet. 
App. 477 (July 14, 1999), req. for en banc consideration by a 
judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per 
curiam).  

Once a claimant has submitted evidence sufficient to justify 
a belief by a fair and impartial individual that a claim is 
well-grounded, the claimant's initial burden has been met, 
and VA is obligated under 38 U.S.C. § 5107(a) to assist the 
claimant in developing the facts pertinent to the claim.  
Accordingly, the threshold question that must be resolved in 
this appeal is whether the veteran has presented evidence 
that the claim is well grounded; that is, that the claim is 
plausible.  

In order for a claim to be well grounded, there must be (1) a 
medical diagnosis of a current disability; (2) medical, or in 
certain circumstances, lay evidence of in-service occurrence 
or aggravation of a disease or injury; and (3) medical 
evidence of a nexus between an in-service injury or disease 
and the current disability.  Epps, 126 F.3d at 1468; Caluza 
v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 
(Fed. Cir. 1996) (per curiam) (table).  Where the 
determinative issue involves medical causation or etiology, 
or a medical diagnosis, competent medical evidence to the 
effect that the claim is "plausible" or "possible" is 
required.  Epps, 126 F.3d at 1468.  Further, in determining 
whether a claim is well-grounded, the supporting evidence is 
presumed to be true and is not subject to weighing.  King v. 
Brown, 5 Vet.App. 19, 21 (1993).  

In regard to establishing a well-grounded claim, the second 
and third Epps and Caluza elements (incurrence and nexus 
evidence) can also be satisfied under 38 C.F.R. § 3.303(b) 
(1999) by (1) evidence that a condition was "noted" during 
service or during an applicable presumption period; (2) 
evidence showing postservice continuity of symptomatology; 
and (3) medical or, in certain circumstances, lay evidence of 
a nexus between the present disability and the postservice 
symptomatology.  Savage v. Gober, 10 Vet. App. 488, 495-97 
(1997).  

Symptoms, not treatment, are the essence of any evidence of 
continuity of symptomatology.  Savage, 10 Vet. App. at 496.  
Moreover, a condition "noted during service" does not 
require any type of special or written documentation, such as 
being recorded in an examination report, either 
contemporaneous to service or otherwise, for purposes of 
showing that the condition was observed during service or 
during the presumption period.  Id. at 496-97.  However, 
medical evidence of noting is required to demonstrate a 
relationship between the present disability and the 
demonstrated continuity of symptomatology unless such a 
relationship is one as to which a lay person's observation is 
competent.  Id. at 497.  

In the case of a disease only, service connection also may be 
established under section 3.303(b) by (1) evidence of the 
existence of a chronic disease in service or of a disease, 
eligible for presumptive service connection pursuant to 
statute or regulation, during the applicable presumption 
period; and (2) present disability from it.  Savage, 10 Vet. 
App. at 495.  Either evidence contemporaneous with service or 
the presumption period or evidence that is post service or 
post presumption period may suffice.  Id.  

Statements of the veteran in the claims folder are to the 
effect that he hurt his back in service aboard the U.S.S. 
Leyte while helping to lift a large hot water heater from 
below decks to the pipe shop for repairs, and that he 
continues to experience back pain.  A lay statement by a 
friend of the veteran who had been stationed aboard the 
U.S.S. Leyte notes that the veteran slept on a board under 
his back for some time, and that he was still using the board 
for sleeping in 1959 when their assignment aboard the U.S.S. 
Leyte ended.  Service medical records show that the veteran 
sought treatment for a backache in October 1957, March 1958, 
and July 1959.  These records also note that the veteran 
worked in the pipe shop and lifted heavy weights, and used a 
bed board for sleeping.  For purposes of well-groundedness, 
the evidence of record is presumed true and supports a 
finding that a back injury was noted in service.

Private medical records show that the veteran was treated for 
back pain in August 1963, within one year of his discharge 
from service.  X-rays at that time noted some questionable 
narrowing of the L-5 S-1 interspace posteriorly.  Post-
service medical records show that the veteran was again 
treated for back pain in 1973 and 1974, and then in 1997.  A 
statement from the veteran lists several other doctors, now 
deceased, who had treated the veteran for back pain during 
the past 35 years and notes that their records are 
unavailable.  For purposes of well groundedness, the 
veteran's statements as to the continuity of symptomatology 
of a back condition post-service is presumed credible.  
Savage, 10 Vet. App. at 496.  The United States Court of 
Appeals for Veterans Claims has found that symptoms, not 
treatment, are the essence of any evidence of continuity of 
symptomatology.  See Wilson v. Derwinski, 2 Vet. App. 16, 19 
(1991).

In light of this evidence, the Board finds that the veteran 
has presented a plausible claim for service connection for a 
back disability.  As such, the claim is well grounded.

II.  Emphysema, including chronic obstructive pulmonary 
disease,
and unstable angina, including coronary artery disease
 
The threshold question to be answered in this case is whether 
the veteran has presented evidence of well-grounded claims; 
that is, evidence which shows that his claims are plausible, 
meritorious on their own, or capable of substantiation.  
38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 
Vet. App. 78 (1990).  If he has not presented such claims, 
his appeal must, as a matter of law, be denied, and there is 
no duty on the VA to assist him further in the development of 
the claims.  Murphy at 81.  The United States Court of 
Veterans Appeals (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).  In a 
claim of service connection, this generally means that 
evidence must be presented which in some fashion links a 
current disability to a period of military service, or as 
secondary to a disability which has already been service-
connected.  38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. 
§§ 3.303, 3.310 (1999); Rabideau v. Derwinski, 2 Vet. App. 
141, 143 (1992).  "In order for a claim to be well-grounded, 
there must be competent evidence of current disability (a 
medical diagnosis) ...; of incurrence or aggravation of a 
disease or injury in service (lay or medical testimony), ...; 
and of a nexus between the inservice injury or disease and 
the current disability (medical evidence)."  Caluza v. 
Brown, 7 Vet. App. 498 (1995).

The chronicity provisions of 38 C.F.R. § 3.303(b) are 
applicable where evidence, regardless of its date, shows that 
a veteran had a chronic condition in service, or during an 
applicable presumptive period, and still has such condition.  
Such evidence must be medical unless it relates to a 
condition as to which under case law of the Court, lay 
observation is competent.  If chronicity is not applicable, a 
claim may still be well grounded on the basis of continuity 
of symptomatology, if the condition is noted during service 
or during an applicable presumptive period, and if competent 
evidence, either medical or lay, depending on the 
circumstances, relates the present condition to that 
symptomatology.  Savage v. Gober, 10 Vet. App. 488 (1997).

A lay person's opinion cannot alone provide a foundation for 
a well-grounded claim when the opinion requires expert 
knowledge, such as the medical knowledge necessary to 
establish a causal link between a service-connected 
disability and another post-service disability.  In addition, 
a medical statement that is speculative will not support a 
well grounded claim.  Franzen v. Brown, 9 Vet. App. 235 
(1996); Johnson v. Brown, 9 Vet. App. 7 (1996); Gregory v. 
Brown, 8 Vet. App. 563 (1996); Tirpak v. Derwinski, 2 Vet. 
App. 609 (1992).

A.  Emphysema, due to asbestos exposure

The Board notes that there are no special laws or regulations 
with regard to claims for service connection for asbestosis 
and other related asbestos-related diseases. However, the VA 
has issued administrative guidelines for consideration by 
RO's when reviewing such claims. These guidelines are 
currently found in VA ADJUDICATION PROCEDURE MANUAL M21-1, 
Part VI, Chapter 7, Paragraph 7.21 (previously, the 
guidelines were in DVB Circular 21-88-8). The guidelines 
provide, in part, that the clinical diagnosis of asbestosis 
requires a history of exposure and radiographic evidence of 
parenchymal disease; that rating specialists are to develop 
any evidence of asbestos exposure before, during and after 
service; and that a determination must be made as to whether 
there is a relationship between asbestos exposure and the 
claimed disease, keeping in mind the latency period and 
exposure information. Again, these guidelines are not a legal 
presumption for service connection.  See Ashford v. Brown, 10 
Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 
(1993).

The veteran served on active duty from April 1956 to November 
1962.  Service documents show that the veteran served on 
board the U.S.S. Leyte, and that his duties aboard ship were 
as a shipfitter pipefitter.  Statements of the veteran are to 
the effect that he maintained and repaired all shipboard 
piping systems and high pressure steam systems.  The veteran 
states that he did a lot of welding and burning on steel in 
places that did not have good ventilation, and that he did 
breathe much welding smoke.  The veteran also states that it 
was common for ships at the time to have had asbestos 
covering for pipes and fittings. For purposes of well 
groundedness, this evidence is sufficient to show that the 
veteran was exposed to asbestos while in service.

Caluza says that "incurrence" or "aggravation" of a 
disease or injury may be established by lay evidence, such as 
that presented here from the veteran.  However, one of the 
evidentiary problems in this case is that the veteran has not 
submitted medical evidence to substantiate his claim that his 
current emphysema or chronic obstructive pulmonary disease 
are attributable to disease or injury in service.  Grivois v. 
Brown, 6 Vet. App. 136 (1994).  The veteran's statements to 
the effect that his emphysema is due to poor ventilation 
while welding and asbestos exposure in service are not 
considered competent to prove medical causation. Paulson v. 
Brown, 7 Vet. App. 466 (1995); Espiritu v. Derwinski, 2 Vet. 
App. 492 (1992).

The post-service medical records do not indicate the presence 
of chronic obstructive pulmonary disease until the mid-
1990's.  VA medical records show that in 1997 the veteran 
reported slight worsening of shortness of breath symptoms 
over the past year; he was observed using an inhaler at the 
time.  Upon examination of the veteran's lungs, the examiner 
noted scattered rhonchi with pops and squeaks.  The veteran 
was diagnosed with chronic obstructive pulmonary disease.  
There is no medical evidence of record that link the 
veteran's emphysema or chronic obstructive pulmonary disease 
to an incident of service, including exposure to asbestos, or 
to another service-connected disability.  A claim is not well 
grounded where there is no medical evidence showing a nexus 
between a current disability and service.  Caluza, 7 Vet. 
App. 498.

In this case, there is no competent (medical) evidence 
linking the veteran's emphysema, first found long after 
service, to an incident of service or to a service-connected 
disability.  Therefore, his claim for service connection for 
emphysema is not plausible, and it is denied as not well 
grounded.

The veteran is advised that he may reopen the claim for 
service connection for emphysema at any time by notifying the 
RO of such an intention and submitting supporting evidence.  
An example of supporting evidence is a medical report with an 
opinion linking this condition to an incident of service, 
such as exposure to asbestos, or to another service-connected 
disability.  Robinette v. Brown, 8 Vet. App. 69 (1995).

B.  Unstable angina, due to nicotine dependence
	
The General Counsel of VA has held that tobacco use does not 
constitute drug abuse and that secondary service connection 
can be granted for a disability due to nicotine dependence 
arising in service.  VAOPGCPREC 2-93 and VAOPGCPREC 19-97, 
respectively.  Public Law No. 105-178, "Transportation 
Equity Act for the 21st Century" (TEA 21), signed by the 
President on June 9, 1998, amended 38 U.S.C.A. §§ 1110 and 
1131 to preclude payment of VA compensation for disability 
resulting from a tobacco-related disease or injury that 
became manifest during a veteran's military service or to the 
requisite degree of disability during a presumptive period 
specified in 38 U.S.C.A. § 1112 or 1116.  On July 22, 1998, 
the President signed the "Internal Revenue Service 
Restructuring and Reform Act of 1998" (IRS Reform Act), 
Public Law No. 105-206, which struck out provisions of Public 
Law No. 105-178 concerning the amendment to 38 U.S.C.A. §§ 
1110 and 1131 and inserted a new section that 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.  The new section, to be codified at 38 U.S.C.A. § 
1103, does not preclude establishment of service connection 
based upon a finding that a disease or injury became manifest 
or was aggravated during active service or became manifest to 
the requisite degree of disability during any applicable 
presumptive period specified in 38 U.S.C.A. § 1112 or 1116.  
The changes made by Public Law No. 105-206 permit payment of 
compensation for tobacco-related disabilities that are 
manifested or aggravated during service or are manifested to 
a compensable degree during any applicable presumptive period 
following service. The changes made by Public Law No. 105-206 
apply to claims filed after June 9, 1998, and do not affect 
veterans and survivors currently receiving benefits and 
veterans and survivors who filed claims on or before June 9, 
1998.  Here, the veteran filed his claim for payment of 
compensation for tobacco-related disabilities in October 
1997.  Hence, the changes made by Public Law No. 105-206 are 
inapplicable.    

In this case, service medical records are negative of 
manifestations of an unstable angina, coronary artery 
disease, and emphysema.    

VA medical reports of the veteran's treatment in 1997 note 
that he currently smoked approximately one-half pack of 
cigarettes each day. The veteran stated that he did not smoke 
at all before entering the military in 1956 at the age of 17, 
and that over the last 40 years he smoked approximately two 
packs of cigarettes each day.  The veteran also stated that 
he has tried to quit, but that the habit is hard to break.  
While records in the claims folder show that the veteran has 
participated in smoking cessation programs and has tried 
nicotine patches, there is no medical diagnosis of nicotine 
dependence.  The veteran has been diagnosed with coronary 
artery disease and with chronic obstructive pulmonary 
disease.  The medical evidence of record does not link the 
veteran's coronary artery disease (complaints of angina) or 
chronic obstructive pulmonary disease to tobacco use that 
began while in service.

Statements of the veteran in the claims folder are to the 
effect that his coronary artery disease, unstable angina, and 
chronic obstructive pulmonary disease are due to tobacco use 
in service.  This lay evidence is not sufficient to support a 
claim for service connection of a disability based on medical 
causation.  Espiritu v. Derwinski, 2 Vet. App. 492 (1992).

In this case, there is no evidence of coronary artery 
disease, unstable angina, or chronic obstructive pulmonary 
disease until many years after the veteran's separation from 
service, and there is no competent (medical) evidence linking 
the claimed disorders to an incident of service, including 
tobacco use.  Nor is there any competent (medical) evidence 
linking nicotine dependence to tobacco use that began while 
in service.  Hence, the claims for service connection for 
unstable angina and emphysema are not plausible.  Under the 
circumstances, the claims are denied as not well grounded.

The veteran is advised that he may reopen the claims at any 
time by notifying the RO of such an intention and submitting 
supporting evidence. An example of supporting evidence is a 
medical report showing the presence of the claimed disorders 
with an opinion linking them to an incident of service.  
Robinette v. Brown, 8 Vet. App. 69 (1995).

C.  VA's Duty to Assist

The veteran argues that the Board should remand the claims to 
the RO for additional development because various provisions 
in VA ADJUDICATION PROCEDURE MANUAL M21-1 require that a claim be 
"fully developed" before a determination is made as to 
whether it is well grounded.  See Part III,  1.03a, and Part 
VI,  1.01b, 2.10f.  The full development these provisions 
call for seems to be triggered by a "reasonable 
probability" of a well-grounded claim ( 1.01b), or a claim 
which is "potentially plausible on a factual basis" ( 
2.10f).  On the facts presented in each claim-the presence 
of chronic obstructive pulmonary disease and of coronary 
artery disease long after military service, and no diagnosis 
of nicotine dependence-the Board finds no such "potential 
plausibility" or "reasonable probability."  And the Board 
finds that "potentially plausible" cannot be so broad as to 
encompass every claim, because to do so would render the 
statutory scheme of 38 U.S.C.A. § 5107 a nullity.  See Meyer 
v. Brown, 9 Vet. App. 425, 434 (1996).  Finally, the Court 
held that the provisions in M21-1, Part III, 1.03(a) and 
Part VI, 2.10(f) are invalid because they are contrary to 
38 U.S.C.A. § 5107(a).  Morton v. West, No. 96-1517 (U.S. 
Vet. App. Jul. 15, 1999).  These manual provisions have been 
rescinded, effective August 30, 1999.


ORDERS

The claim for service connection for a back disability is 
well grounded; to this extent only, the appeal is granted, 
subject to the further development directed below.

The claim for service connection for unstable angina is 
denied as not well grounded.

The claim for service connection for emphysema is denied as 
not well grounded.



REMAND

The veteran's claim for the back disability is plausible and 
therefore well grounded.  However, having found that his 
claim is plausible does not end the Board's inquiry.  Rather, 
in this case, it places upon VA the duty to assist the 
veteran in the development of his claim. 38 U.S.C.A. 
§ 5107(a) (West 1991); Murphy v. Derwinski, 1Vet. App. 78, 82 
(1990).

The veteran states that he was told recently by VA physicians 
that he has three disintegrating discs in his back with 
arthritic spurs.  This evidence, which is relevant to the 
veteran's claim for service connection for a back disability, 
has not been associated with the claims folder-and it should 
be.  The duty to assist the veteran in the development of 
facts pertinent to his claim for service connection includes 
obtaining all relevant records and providing him with an 
adequate examination.  Murphy v. Derwinski, 1 Vet. App. 78 
(1990); Littke v. Derwinski, 1 Vet. App. 90 (1990).

Likewise, where there is a reasonable possibility that a 
current condition is related to or is the residual of a 
condition experienced in service, VA should seek a medical 
opinion as to whether the veteran's claimed current 
disability is in any way related to the condition experienced 
in service.  Horowitz v. Brown, 5 Vet. App. 217 (1993).

Accordingly, an examination is required to obtain a medical 
opinion as to whether the veteran's current back disability 
is the same disability or is in any way related to the back 
injury noted in service.

In view of the above, the case is REMANDED to the RO for the 
following actions:


1.  The RO should ask the veteran and his 
representative to prepare a detailed list 
of all sources (VA and non-VA) of 
evaluation and treatment for the 
veteran's back disability since 1997.  
Names and addresses of the medical 
providers, and dates of evaluations and 
treatment, should be listed.  After 
obtaining any needed release forms from 
the veteran, the RO should directly 
contact the medical providers and obtain 
copies of the records not already in the 
file.

2.  The RO should schedule the veteran 
for a VA examination to determine the 
current nature, severity, and etiology of 
his back condition.  The examiner should 
also review the service medical records 
and post-service medical records and 
offer an opinion as to whether it is at 
least as likely as not that the veteran's 
back disability, including any 
osteoarthritis changes, is related to the 
injury of the veteran's back as noted in 
service.  The claims folder should be 
made available to the examiner for review 
in conjunction with the examination, and 
the examiner should acknowledge such 
review in the examination report.

3.  The RO should then review the 
veteran's claim for service connection 
for a back disability.  If action remains 
adverse to the veteran, an appropriate 
supplemental statement of the case should 
be sent to him and his representative, 
and they should be afforded an 
opportunity to respond before the case is 
returned to the Board for further 
appellate consideration.


The veteran need take no further action unless notified 
otherwise, but may furnish additional evidence and argument 
while the case is in remand status.  Quarles v. Derwinski, 
3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 
(1995); see also Kutscherousky v. West, 12 Vet. App. 369 
(1999).  The Board intimates no opinion as to the ultimate 
outcome of this case.

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.




		
	KEITH W. ALLEN
	Acting Member, Board of Veterans' Appeals