Citation Nr: 0005115 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 97-11 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for shortness of breath or a lung disorder and leukoplakia due to tobacco use in service. 2. Entitlement to service connection for nicotine dependence. 3. Entitlement to service connection for shortness of breath and leukoplakia secondary to nicotine dependence in service. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. D. Parker, Counsel INTRODUCTION The veteran served on active duty from June 1969 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 1998 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. At the December 1999 videoconference hearing before the undersigned member of the Board, the veteran withdrew his claim of entitlement to service connection for post-traumatic stress disorder. See 38 C.F.R. § 20.204(b) (1999). FINDINGS OF FACT 1. Shortness of breath is a symptom and not a disability for VA disability compensation purposes, and there is no medical evidence of a nexus between a current lung disorder or leukoplakia and tobacco use during service from June 1969 to May 1973. 2. There is no competent medical evidence linking the veteran's currently diagnosed nicotine addiction to his tobacco use in service. 3. There is no competent medical evidence that the veteran acquired nicotine dependence in service. CONCLUSIONS OF LAW 1. The veteran's claims of entitlement to service connection for shortness of breath or a lung disorder and leukoplakia as a result of tobacco use in service is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); VAOPGCPREC 2-93 (January 1993). 2. The veteran's claim of entitlement to service connection for nicotine dependence which began in service is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); VAOPGCPREC 2-93 (January 1993). 3. The veteran's claim of entitlement to service connection for shortness of breath and leukoplakia secondary to nicotine dependence in service lacks entitlement under the law. 38 U.S.C.A. §§ 1110, 7104(a) (West 1991); 38 C.F.R. § 3.310 (1999); VAOPGCPREC 19-97; Cacalda v. Brown, 9 Vet. App. 261, 265 (1996); Luallen v. Brown, 8 Vet. App. 92 (1995); Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS An award of service connection is warranted where the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was contracted in line of duty coincident with active military service. 38 U.S.C.A. § 1110. Additionally, service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. To be well grounded, a claim must be supported by evidence, not just allegations. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Specifically, for a service connection 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 disease or injury and the current disability. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. Id. The veteran contends that he now has shortness of breath, and leukoplakia, as a result of tobacco use in service, or nicotine dependence, which he contends developed in service. Direct service connection of a disability may be established if the evidence establishes that injury or disease resulted from tobacco use in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 7104(c) (West 1991); VAOPGCPREC 2-93 (January 1993). A determination as to whether nicotine dependence, per se, may be considered a disease or injury for disability compensation purposes is an adjudicative matter to be resolved by adjudicative personnel, based on accepted medical principles relating to the condition; and direct service connection of disability may be established if the evidence establishes that injury or disease resulted from tobacco use during active service. VAOPGCPREC 2-93, 58 Fed. Reg. 42,756 (1993). In a clarification to VAOPGCPREC 2-93, the VA General Counsel opinion which governs Board determinations of claims related to tobacco use, VA's General Counsel stated that, where a disability allegedly related to tobacco use is not diagnosed until after service, 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. VAOPGCPREC 2-93 (January 1993) (explanation appended to VAOPGCPREC 2-93). A determination as to whether 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, and therefore is secondarily service connected pursuant to 38 C.F.R. § 3.310(a), 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. If each of these three questions is answered in the affirmative, service connection should be established on a secondary basis. The question of whether the veteran acquired a dependence on nicotine in service is a medical issue. Id. at 5. In this veteran's case, service medical records show that during service the veteran smoked and, at the service separation in 1973, he complained of shortness of breath due to smoking. The clinical findings at the separation examination specifically included that the veteran's lungs and chest were normal, and that the shortness of breath complained of resulted in no complications or sequelae. As the result of a biopsy in February 1992, the veteran was diagnosed with leukoplakia. Treatment entries in September 1989 and January 1997 noted that the veteran's lungs or chest were clear. Pulmonary function testing in May 1998 reflected pulmonary function testing at below normal levels, with lung problems noted to be dyspnea and scarred lungs. In a March 1998 statement, Jack Butterfield, M.D., wrote that the veteran currently had, and was being treated for, nicotine addiction. A March 1999 psychological report reflected that the veteran reported that he used to smoke marijuana when in Asia. The veteran has submitted various lay statements to the effect that he did not smoke prior to service, but began during service, and has continued smoking since service. At a personal hearing in June 1998, the veteran testified, among other things, to the following: he believed he provided medical evidence linking his current conditions to service, though there was no physician he knew of who could link a smoking disability all the way back to military service; he started smoking in service, and continued to smoke after service. At the December 1999 videoconference hearing before the undersigned member of the Board, the veteran testified to the following: he did not smoke prior to service; he began smoking at age 18 during basic training in service; at service separation he complained of shortness of breath; since service separation until the present "nicotine dependence" had been a problem for him; Dr. Butterfield had been his doctor for 10 years; in service he smoked "[p]robably half a pack of cigarettes every couple of days," then one pack per day, and two packs per day in Vietnam, while he currently smoked 2 to 2 and 1/2 packs of cigarettes per day; and leukoplakia had been deleted from the June 1998 hearing transcript. A December 1986 article from the New England Journal of Medicine indicates that the principal etiologic factor in oral leukoplakia is smoking. An article from the Acta Dermato-Venereologica Journal dated in 1982 reflects the effect on oral leukoplakia of reducing or ceasing tobacco smoking. An article from an internet site, dated as received in December 1999, reflects that cigarette smoke can cause leukoplakia. A medical dictionary defines leukoplakia as "a disease marked by the development upon the mucous membrane of the cheeks . . . gums, or tongue . . . of white, thickened patches which cannot be rubbed off and which sometimes show a tendency to fissure. It is common in smokers and sometimes becomes malignant." A 1988 U.S. Surgeon General's Report indicates that: cigarette smoking is the addictive behavior most likely to be established during adolescence, as 90 percent of smokers start before the age of 21, and 70 percent start before the age of 18; those smokers who start at an early age are more likely than those who start late to develop long-term nicotine addiction; and addictive behavior is most likely to be established during that young age group. A 1997 U.S. Surgeon General's Report on Smoking and Health reflects that cigarettes are addictive, due to the drug nicotine in tobacco. I. Service Connection: Shortness of Breath or a Lung disorder and Leukoplakia due to Tobacco Use After a review of the medical evidence associated with the file, the Board finds that a claim of entitlement to service connection for shortness of breath, based on the theory that the shortness of breath arose as a result of tobacco use during service, is not well grounded. Shortness of breath is a clinical symptom and not a "disability" for VA disability compensation purposes. In O.G.C. Prec. 82-90, the VA Office of General Counsel, citing Dorland's Illustrated Medical Dictionary 385 (26th ed. 1974), indicated that the term "disease" had been defined as "any deviation from or interruption of the normal structure or function of any part, organ or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown." Cited in VAOPGCPREC 2-93. The United States Court of Appeals for Veterans Claims (Court) has held that "[i]n order for the veteran to be awarded a rating for service-connected [disability], there must be evidence both of a service-connected disease or injury and a present disability which is attributable to such disease or injury." Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992) (clinical findings of blood pressure readings in service do not equate to a current medical diagnosis sufficient to establish service connection). "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110 (West 1991). In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). With regard to the veteran's personal hearing testimony that within the first year or two after service a private doctor told him he felt the veteran had a little bit of "emphysema," the Court has held that such a veteran's account, "filtered as it [is] through a layman's sensibilities, of what a doctor purportedly said is simply too attenuated and inherently unreliable to constitute 'medical' evidence." Robinette v. Brown, 8 Vet. App. 69, 77 (1995). While there is no medical evidence of a diagnosis of current lung disorder, pulmonary function studies in May 1998 were abnormal with below normal levels, with lung problems noted to be dyspnea and scarred lungs. However, these diagnostic test findings were first reported 25 years after service and there is no medical evidence that links a current lung disorder to any incident of service. In addition, there is no competent medical evidence of record that the veteran's currently diagnosed leukoplakia, first diagnosed in February 1992, notably 19 years after service separation, is related to smoking in service. The medical treatise evidence demonstrates only that leukoplakia is etiologically related to smoking, but does not relate this veteran's leukoplakia to his reported 4 years of smoking in service as distinguished from heavier post-service smoking for 27 years. For these reasons, the Board must find that the veteran's claim of entitlement to service connection for shortness of breath as a result of tobacco use in service is not well grounded. 38 U.S.C.A. § 5107(a). The medical text evidence submitted by the veteran does not contain the specificity to constitute competent evidence of the claimed medical nexus. See Sacks v. West, 11 Vet. App. 314, 317 (1998) (citing Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996)); see Libertine v. Brown, 9 Vet. App. 521, 523 (1996); also see discussion below under II, page 10-11. II. Service Connection: Nicotine Dependence After a review of the medical evidence associated with the file, the Board finds that a claim of entitlement to service connection for nicotine dependence, based on the theory that nicotine dependence developed in service, is not well grounded. There is no in-service diagnosis of nicotine dependence or addiction. Rather, the service medical records show that during service the veteran smoked and, at the service separation in 1973, the veteran complained of shortness of breath due to smoking. However, the notation that the veteran smoked in service does not equate to an in- service diagnosis of nicotine dependence or addiction, and the clinical findings at the separation examination specifically included that the veteran's lungs and chest were normal, and that the shortness of breath complained of resulted in no complications or sequelae. There is no medical evidence or opinion of record which indicates that a currently diagnosed nicotine addiction was present in or was acquired in service. In a March 1998 statement, Jack Butterfield, M.D., indicated only that the veteran currently had, and was being treated for, nicotine addiction. It offered no medical nexus opinion to relate the currently diagnosed nicotine addiction to the veteran's service, including smoking in service or symptomatology of shortness of breath in service. The statement did not even include a history as to when the veteran first complained of, or was first treated for, his current nicotine addiction. With regard to the veteran's personal hearing testimony that, from service separation until the present, "nicotine dependence" had been a problem for him, as a lay person, the veteran is not competent to medically diagnose any symptomatology as "nicotine dependence." It is the province of health care professionals to enter conclusions which require medical opinions, such as a medical diagnosis of disability or an opinion as to the relationship between a current disability and service. As a result, the veteran's lay opinion does not present a sufficient basis upon which to find this claim to be well grounded. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also Stadin v. Brown, 8 Vet. App. 280, 284 (1995) (layperson is generally not capable of opining on matters requiring medical knowledge, such as the condition causing symptoms). There is no indication that the veteran has the medical training, expertise, or diagnostic ability to competently link his currently diagnosed nicotine addiction with service. Heuer v. Brown, 7 Vet. App. 379, 384 (1995). In order to have a well-grounded claim for service connection based on nicotine dependence, the veteran must present competent medical evidence that a link exists between currently diagnosed nicotine dependence and service. In any event, there is no medical evidence which addresses the question of whether the veteran had nicotine dependence, and, if so, whether he developed a "nicotine dependence" during service, or, whether any nicotine dependence begun in service is the proximate cause of the veteran's currently diagnosed nicotine dependence or leukoplakia. VAOPGCPREC 19-97. With regard to medical treatise evidence, the Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998) (medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus), and Mattern v. West, 12 Vet. App. 222, 228 (1999). In this veteran's case, however, the medical definitions and evidence submitted by the veteran is not accompanied by any medical opinion of a medical professional. Additionally, it fails to demonstrate with a degree of certainty the relationship between the veteran's currently diagnosed leukoplakia or nicotine addiction and his military service. The medical articles reflect that the principal etiologic factor in oral leukoplakia is smoking generally and that leukoplakia is common in smokers. However, the veteran reported that he smoked for about 4 years during service, and has smoked in larger quantities for over 27 years after service separation. The articles do not demonstrate with a degree of certainty a relationship or any specificity between the veteran's currently diagnosed leukoplakia or nicotine addiction and smoking in service. None of the articles demonstrate with a degree of certainty or any specificity that one such as the veteran who began smoking in service at age 18, even assuming the credibility of that assertion, would have developed nicotine dependence during his 4 years in service. The 1988 U.S. Surgeon General's Report indicates that smokers who start at an early age are more likely than those who start late to develop long-term nicotine addiction due to cigarette smoking, and that addictive behavior is most likely to be established during that young age group. While such nicotine addiction is shown affect young smokers in general, the medical evidence does not demonstrate that such nicotine addiction occurred in this veteran's case during the 18 to 21 age period. The 1997 U.S. Surgeon General's Report reflects the generally accepted proposition that, due to the drug nicotine in tobacco, cigarettes are addictive. These reports likewise fail to discuss generic relationships with a degree of certainty or any specificity such that, under the facts of this case, there is at least "plausible causality" based upon objective facts that the veteran acquired nicotine dependence or addiction in service. The Board finds that, in this veteran's case, though nicotine dependence is a disease for VA disability compensation purposes, VAOPGCPREC 2-93 (Jan. 13, 1993), as there is no diagnosis of nicotine dependence in service, and no competent medical evidence of a nexus between the veteran's currently diagnosed nicotine addiction and service, his claim for service connection for nicotine dependence must be denied as not well grounded. 38 U.S.C.A. § 5107(a). III. Secondary Service Connection: Shortness of Breath and Leukoplakia In light of the Board's findings herein that the veteran has not presented a well-grounded claim of entitlement to service connection for nicotine dependence, there is no basis for a claim of secondary service connection based on nicotine dependence in service. There is no remaining issue of law or fact for the Board to decide. 38 U.S.C.A. § 7104(a). The Board, therefore, does not reach the question of whether nicotine dependence acquired in service may be considered the proximate cause of disability resulting from the use of tobacco products by the veteran. The Court has held that "where the law and not the evidence is dispositive, the claim should be denied or the appeal to the BVA terminated because of the absence of legal merit or the lack of entitlement under the law." Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, the claim sought under the current legal theory must be denied for lack of legal merit. See Cacalda v. Brown, 9 Vet. App. 261, 265 (1996) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement); accord Luallen v. Brown, 8 Vet. App. 92, 95 (1995). ORDER The veteran's claim for service connection for shortness of breath due to tobacco use in service, being not well grounded, is denied. The veteran's claim for service connection for nicotine dependence, being not well grounded, is denied. The veteran's claim for service connection for shortness of breath and leukoplakia secondary to nicotine dependence in service, being without legal merit, is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals