Citation Nr: 0007128 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 98-06 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for cardiovascular disease, including hypertension, as a result of cigarette smoking during active military service and/or nicotine dependence acquired during active military service. 2. Entitlement to service connection for cancer of the mouth, as a result of cigarette smoking during active military service and/or nicotine dependence acquired during active military service. 3. Entitlement to service connection for pulmonary disease, as a result of cigarette smoking during active military service and/or nicotine dependence acquired during active military service. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. L. Kane, Associate Counsel INTRODUCTION The appellant had active military service from January 1966 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January and February 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied the above claims. FINDINGS OF FACT 1. The appellant does not currently have any diagnosed pulmonary disorders, and there is no medical evidence showing that she is nicotine dependent. 2. The appellant currently has various cardiovascular diseases (hypertension, coronary artery disease, status post acute myocardial infarction, atherosclerosis) and residuals from prior cancer of the mouth. 3. There is no evidence showing the development of hypertension or cancer of the mouth during active service or within the year after the appellant's separation from active service. 4. The medical evidence does not establish that any of the appellant's claimed disorders are the result of an inservice disease or injury, including cigarette smoking and/or exposure to secondhand smoke during service. CONCLUSION OF LAW The claims for service connection for cardiovascular disease, including hypertension, cancer of the mouth, and pulmonary disease, all claimed as a result of cigarette smoking during active military service and/or nicotine dependence acquired during active military service, are not well grounded, and there is no statutory duty to assist the appellant in developing facts pertinent to these claims. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110 and 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). It is the responsibility of a person seeking entitlement to service connection to present a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991). Establishing a well-grounded claim for service connection for a particular disability requires more than an allegation that the disability 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 Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). 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, 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. In general, the appellant's evidentiary assertions are accepted as true for the purpose of determining whether a well-grounded claim has been submitted. King v. Brown, 5 Vet. App. 19, 21 (1993). A claim for service connection requires three elements to be well grounded. It requires competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and competent (medical) evidence of a nexus between the in- service injury or disease and the current disability. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied, sub nom. Epps v. West, 118 S.Ct. 2348 (1998); see also Caluza v. Brown, 7 Vet. App. 498, 504 (1995); aff'd 78 F.3d 604 (Fed.Cir. 1996) (table). Generally, the Board should consider only the evidence that is or may be favorable to the claim in deciding whether it is well grounded. See Arms v. West, 12 Vet. App. 188, 195 (1999) (noting that generally "only the evidence in support of the claim is to be considered and generally a presumption of credibility attaches to that evidence in order to decide whether or not any VA claimant has sustained the claimant's burden of submitting a well-grounded claim under section 5107(a)") (emphasis in original). Service connection may also be established for a current disability on the basis of a "presumption" under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1110, 1112, 1131 and 1137 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a) (1999). Service connection for hypertension and malignant tumors (i.e., cancer) may be established based on a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307 and 3.309 (1999). The Board has reviewed all the evidence of record, which consists of the appellant's service medical records; her contentions; private treatment records from Spartanburg Regional Medical Center, Richard Weir, M.D., John Phillips, M.D., and Allen Bennett Memorial Hospital; VA outpatient records for treatment in 1996 and 1997; and various medical treatise evidence submitted by the appellant. The appellant is claiming service connection for these conditions based either on cigarette smoking during service or exposure to secondhand smoke during service. She maintains that she began smoking cigarettes during service in 1966. She started smoking half a pack per day and increased that to 2-3 packs per day. She quit smoking in January 1997. The appellant argues that the military condoned and encouraged cigarette smoking and that she became nicotine dependent during service. She stated that she developed hypertension in the early 1970s, cancer of the mouth in 1991, and various heart disorders thereafter. She has submitted medical treatise evidence, newspaper articles, and computer print-outs that she argues establish: (a) that tobacco use is addictive; (b) that cigarette smoking, as well as exposure to secondhand smoke, caused her current disorders; and (c) that every cigarette she has smoked has reduced her life expectancy. Recent legislation was enacted prohibiting service connection for a death or disability on the basis that it resulted from an injury or disease attributable to the use of tobacco products by a claimant during the claimant's military service. 38 U.S.C.A. § 1103 (West Supp. 1999); see also Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. No. 105-206, 112 Stat. 685, 865-66 (1998). However, new section 1103 applies only to claims filed after June 9, 1998, and does not affect claimants who filed claims on or before June 9, 1998, such as the claim filed in 1997 by the appellant in this case. Under certain circumstances, death or disability resulting from the identifiable residuals of disease due to tobacco use during service is compensable under the law governing VA benefits. VAOPGCPREC 2-93 (O.G.C. Prec. 2-93). This does not mean that service connection will be established for a disease related to tobacco use if the claimant smoked during service. Id. Rather, any disability related to tobacco use that is not diagnosed until after service would not be precluded from 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. A more recent opinion by the VA General Counsel was issued to clarify when service connection may be granted for tobacco- related disability on the basis that such disability is secondary to nicotine dependence that arose from a claimant's tobacco use during service. VAOPGCPREC 19-97. VA's Under Secretary for Health has concluded that nicotine dependence may be considered a disease for VA compensation purposes. See VAOPGCPREC 19-97. Therefore, 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 two questions: (1) whether the claimant acquired a dependence on nicotine in service; and (2) whether that dependence may be considered the proximate cause of disability or death resulting from the use of tobacco products by the claimant. If each of these two questions is answered in the affirmative, service connection should be established on a secondary basis. VAOPGCPREC 19-97. With regard to the first question, the determination of whether the appellant is dependent on nicotine is a medical issue. VAOPGCPREC 19-97. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM- IV), nicotine dependence is recognized as a substance abuse disorder. Under the diagnostic criteria, nicotine dependence may be described as a maladaptive pattern of nicotine use leading to clinically significant impairment or distress, as manifested by three or more of the following criteria occurring at any time in the same twelve-month period: (1) tolerance, as manifested by the absence of nausea, dizziness, and other characteristic symptoms despite use of substantial amounts of nicotine or a diminished effect observed with continued use of the same amount of nicotine- containing products; (2) withdrawal, marked by appearance of four or more of the following signs within twenty-four hours of abrupt cessation of daily nicotine use or reduction in the amount of nicotine used: (a) dysphoric or depressed mood; (b) insomnia; (c) irritability, frustration, or anger; (d) anxiety; (e) difficulty concentrating; (f) restlessness; (g) decreased heart rate; or (h) increased appetite or weight gain; or by use of nicotine or a closely related substance to relieve or avoid withdrawal symptoms; (3) use of tobacco in larger amounts or over a longer period than was intended; (4) persistent desire or unsuccessful efforts to cut down or control nicotine use; (5) devotion of a great deal of time in activities necessary to obtain nicotine (e.g., driving long distances) or use nicotine (e.g., chain-smoking); (6) relinquishment or reduction of important social, occupational, or recreational activities because of nicotine use (e.g., giving up an activity which occurs in smoking-restricted areas); and (7) continued use of nicotine despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by nicotine. VAOPGCPREC 19-97; see also DSM IV at 108-09, 133-34. In a case where, as a result of nicotine dependence acquired in service, a claimant continued to use tobacco products following service, the decision would have to be made whether the post-service usage of tobacco products was the proximate cause of the disability upon which the claim was predicated. VAOPGCPREC 19-97. With regard to proximate causation, if it is determined that, as a result of nicotine dependence acquired in service, a claimant continued to use tobacco products following service, it must be considered whether there was a supervening cause of the claimed disability that severs the causal connection to the service-acquired nicotine dependence. Id. Tobacco-related claims are subject to the usual requirements for a well-grounded claim. Specifically, for claims alleging a direct link between tobacco use in service and a current disability, the claimant must provide medical evidence of a current disability, medical or lay evidence of tobacco use in service, and medical evidence of a relationship between the current disability and tobacco use during active service in order to establish a well-grounded claim. Veterans Benefits Administration letter 97-09 (January 28, 1997). For claims alleging secondary service connection for a current disease on the basis of nicotine dependence acquired in service, the claimant must provide medical evidence of a current disability, medical evidence that nicotine dependence arose in service, and medical evidence of a relationship between the current disability and the nicotine dependence. Under Secretary of Benefits letter 20-97-14 (July 24, 1997). For the purposes of well-groundedness, medical evidence that nicotine dependence arose in service may consist of a current diagnosis of nicotine dependence along with the physician's opinion with respect to that dependence having originated in service. Id. As noted above, medical evidence is required to show that the appellant incurred nicotine dependence in or due to service. See VAOPGCPREC 19-97; Under Secretary for Benefits letter 20- 97-14. Although the appellant alleges that she incurred nicotine dependence during service, there is no medical opinion of record that supports her lay statement. The appellant does not have the medical knowledge or education to render a probative opinion on a matter that requires medical expertise. See Edenfield v. Brown, 8 Vet. App. 384, 388 (1995); Robinette v. Brown, 8 Vet. App. 69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). There is no medical evidence of record, such as a medical diagnosis of nicotine dependence, showing that the appellant had nicotine dependence during service or at any other time. The Board stresses that nicotine dependence is considered a substance abuse disorder, and a medical diagnosis is required to confirm its existence. It is not sufficient that the appellant merely state that her cigarette smoking began during service and that she continued to smoke thereafter, or that she tried to quit smoking several times without success. The article that the appellant submitted indicating that nicotine is addictive is not sufficient to well ground her claim. In order to establish a well-grounded claim, there must be a medical opinion indicating that she has nicotine dependence that is linked to her military service. There is none in this case. Even if the appellant is not nicotine dependent as a result of cigarette smoking during service, the question still remains as to whether cigarette smoking during service caused any of the claimed disorders. With respect to her claim for service connection for pulmonary disorders, the medical evidence does not show a diagnosis of a pulmonary disorder at any time. Every examination of her lungs has shown them to be clear, and the record indicates that chest x-rays have shown no infiltrates. There have been no objective findings of pathology or abnormalities concerning the appellant's pulmonary system. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110 and 1131 (West 1991); see Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that Secretary's and Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Caluza, 7 Vet. App. at 505; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (absent "proof of a present disability there can be no valid claim"). Despite the fact that the appellant has submitted medical treatise evidence indicating that cigarette smoking causes various pulmonary disorders (i.e., bronchitis, lung cancer, emphysema), no medical professional has ever indicated that she has any pulmonary disorder. Even though she alleges that she has had chronic bronchitis "for years," there is no medical evidence indicating such, and she does not possess the requisite knowledge to diagnose a medical disorder. Therefore, this claim is not well grounded. The medical evidence shows that the appellant currently has various cardiovascular disorders such as coronary artery disease, hypertension, and atherosclerosis. She is also status post acute myocardial infarction. In 1991, she was treated for cancer of the mouth, and she presumably has current residuals of that treatment. The appellant is not entitled to presumptive service connection for hypertension or cancer of the mouth. The medical evidence does not show that either of these conditions was manifested during service or within the first year after her separation from active service. Her service medical records show no elevated blood pressure readings, and a diagnosis of hypertension or cancer of the mouth was not rendered during service. The appellant does not contend that either of these conditions was diagnosed within the first post-service year. She alleges that hypertension was initially diagnosed in the early 1970s. Even though medical evidence concerning the initial diagnosis is not of record, that still would have been more than one year after the appellant's separation from service. The medical evidence of record shows that cancer of the mouth was diagnosed in 1991, which was 23 years after her separation from active service. The appellant has submitted competent lay evidence that she smoked cigarettes during service. It can certainly be argued that many, if not all, of her current cardiovascular disorders and her prior cancer of the mouth are related to cigarette smoking, either directly or indirectly. For example, the appellant's treating physician stated that the appellant's diseases of the arteries are directly related to cigarette smoking, and the appellant has submitted extensive medical treatise evidence discussing the potential relationship between cigarette smoking and cardiovascular diseases and various cancers, including cancer of the mouth. These articles discuss a potential relationship between these conditions and cigarette smoking with enough certainty to establish that such a relationship is, at least, plausible. Cf. Sacks v. West, 11 Vet. App. 314, 317 (1998); see also Wallin v. West, 11 Vet. App. 509, 513-514 (1998). However, the pertinent issue is whether the appellant's cigarette smoking during active military service [as opposed to cigarette smoking at other times and/or causes unrelated to cigarette smoking] caused the claimed disorders. In VAOPGCPREC 2-93 (O.G.C. Prec. 2-93), the General Counsel pointed out that direct service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). The General Counsel noted that consistent with the applicable principles in the law and regulations, VA had promulgated regulations governing adjudication of claims based on exposure to dioxin or ionizing radiation, "agents which may result in conditions which become manifest years after exposure." 38 C.F.R. § 3.311 (1999). The General Counsel continued: (I)n authorizing service connection for disability or death resulting from such conditions, VA recognized the need for evidence of exposure to the agents in question coincident in time with a veteran's military service and some link between that exposure and the subsequent disability or death. [Citations omitted] Thus, a disease which is diagnosed after service discharge may be considered to be service connected if an event or exposure during service subsequently results in disability or death. With regard to the claim at issue, we note that epidemiologic research has identified substantial increase in the relative risk of mortality from a variety of cancers in smokers. [Citations omitted] The General Counsel's opinion holds that the governing law provides authority for the grant of service connection for disability resulting from "an event or exposure" in service. Thus, the General Counsel also held, in effect, that when a disease or injury becomes manifest after service, if such was due to tobacco use in the line of duty in the active military service, service connection may be established. VAOPGCPREC 2-93 (O.G.C. Prec. 2-93). Accordingly, cigarette smoking during service could possibly constitute an "event or exposure" that could cause, some years after service, disease that produces disability. It is clear in this case that the appellant continued to smoke for several years after her separation from service. In fact, she continued to smoke cigarettes for 29 years after her discharge from service. The effect of cigarette smoking at various times on an individual's health is a medical determination that the appellant and the Board may not make. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). While the Board acknowledges that the appellant is competent to report that she smoked cigarettes during service, she has failed to present any competent medical evidence that such in-service smoking is related to any current diagnosed heart and/or cancer disorder. See 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 that appears many years later). There are no medical opinions contained in any of the appellant's post-service medical records relating any of the claimed conditions to any in-service findings or event, including the alleged tobacco use. It must be noted that the appellant's military service lasted for less than three years. The question is whether she has developed heart and/or cancer disorders as a result of smoking cigarettes during her active service, rather than as a result of her entire history of smoking before, during, and after service. The record establishes that she smoked cigarettes for 29 years after service. Therefore, the overwhelming majority of her cigarette smoking occurred when she was not in the military. While several examiners have noted the appellant's history of tobacco use, there is no medical opinion of record relating the post-service diagnosed heart and/or cancer disorders to tobacco use during service as opposed to the extensive post-service use of tobacco. See VAOPGCPREC 2-93 (O.G.C. Prec. 2-93). The appellant also argues that exposure to secondhand cigarette smoke during service caused the claimed disorders. The medical treatise evidence she has submitted discusses the relationship between exposure to secondhand smoke and the subsequent development of respiratory problems, heart disease, etc. Such contentions are also not supported by the medical evidence. First, there is no indication in the evidence that the appellant's current cardiovascular disorders or her prior cancer of the mouth were caused by exposure to secondhand cigarette smoke, as opposed to direct inhalation of cigarette smoke. Second, there is no medical opinion of record linking any current cardiovascular disease or the prior cancer of the mouth to exposure to secondhand cigarette smoke during the appellant's period of military service. Again, the effect of exposure to secondhand cigarette smoke on an individual's health is a medical determination that the appellant and the Board may not make. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The only evidence linking the appellant's current heart conditions and her prior cancer of the mouth to her period of service consists of her current statements. As indicated above, she does not have the medical expertise to render a probative opinion as to medical diagnosis or causation, and her statements are insufficient to well ground these claims. Therefore, the appellant's claims for service connection for cardiovascular disease, including hypertension, and for cancer of the mouth are not well grounded. That is, there is no evidence that these conditions are due to cigarette smoking or exposure to secondhand smoke during service. Since the appellant's claims are not well grounded, VA has no duty to assist her in developing facts pertinent to the claims, including providing her a medical examination at VA expense. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.326(a) (1999) (VA examination will be authorized where there is a well-grounded claim for compensation); see Morton v. West, 12 Vet. App. 477 (1999) (VA cannot assist a claimant in developing a claim that is not well grounded). When a claimant refers to a specific source of evidence that could make a claim plausible, VA has a duty to inform her of the necessity to submit that evidence to complete her application for benefits. See Epps v. Brown, 9 Vet. App. 341, 344-45 (1996), aff'd Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). VA has no outstanding duty in this case to inform the appellant of the necessity to submit certain evidence to complete her application for VA benefits, see 38 U.S.C.A. § 5103(a) (West 1991), because there is no indication of any medical records that might well ground any of these claims. The appellant has not alleged that any medical records exist that might contain (a) diagnosis of any pulmonary disorder or nicotine dependence, or (b) medical opinions associating any current cardiovascular disease, including hypertension, or the prior cancer of the mouth with cigarette smoking and/or exposure to secondhand smoke during service. The presentation of a well-grounded claim is a threshold issue. Therefore, since the appellant has failed to present competent medical evidence that her claims for service connection for cardiovascular disease, including hypertension, cancer of the mouth, and pulmonary disease are plausible, the claims must be denied as not well grounded. Dean v. Brown, 8 Vet. App. 449 (1995); Boeck v. Brown, 6 Vet. App. 14, 17 (1993). There is no duty to assist further in the development of these claims, because such additional development would be futile. See Murphy, 1 Vet. App. 78. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for cardiovascular disease, including hypertension, as a result of cigarette smoking during active military service and/or nicotine dependence acquired during active military service, is denied. Entitlement to service connection for cancer of the mouth, as a result of cigarette smoking during active military service and/or nicotine dependence acquired during active military service, is denied. Entitlement to service connection for pulmonary disease, as a result of cigarette smoking during active military service and/or nicotine dependence acquired during active military service, is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals