Citation Nr: 0000313 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 96-03 877 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for carcinoma of the larynx, status post laryngectomy. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his friend ATTORNEY FOR THE BOARD Maureen A. Young, Associate Counsel INTRODUCTION The veteran had active military service from March 1951 to December 1952, July 1954 to June 1956 and July 1956 to September 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas wherein the RO denied service connection for carcinoma of the larynx, status post laryngectomy and COPD because the evidence failed to show that such conditions were caused or aggravated during military service. FINDING OF FACT The claims for entitlement to service connection for carcinoma of the larynx, status post laryngectomy and COPD are not supported by cognizable evidence showing that the claims are plausible or capable of substantiation. CONCLUSION OF LAW The claims for entitlement to service connection for carcinoma of the larynx, status post laryngectomy and COPD are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background Service medical records at separation in December 1952, June 1956 and September 1957 show no defects or abnormalities. The veteran's lungs, chest, mouth, throat and sinuses were reported as normal. Post-service medical records reveal that the veteran developed cancer of the larynx for which he underwent a laryngectomy in November 1990. He presently has a tracheostomy. The veteran contends that the cancer he developed and his COPD are related to cigarette smoking. See Hearing Transcript (Tr.) pp. 5, 7. At his personal hearing in October 1999 he testified that he began smoking in the service. He stated that he did not smoke prior to entering the military. He said that while in service he was given cigarettes in his food ration. Tr., p. 3. He stated he smoked for approximately 30 years before quitting in 1990. He smoked up to two pack per day. Tr., p. 4. Medical records from September 1990 to December 1998 reveal treatment intermittently at VA Medical Center (MC) for symptoms associated with COPD, bronchitis and status post laryngectomy, inter alia. In a May 1995 statement to support his claim, the veteran contended that in 1956 he was close to the atomic bomb that exploded in Fort Jackson, South Carolina. In his December 1995 appeal to the Board he contended that he is entitled to service connection for carcinoma of the larynx secondary to radiation exposure because he was exposed to radiation from a test conducted at Fort Jackson, South Carolina. He further contended that he was in a hospital in Germany for ten days with pneumonia in 1956 and he has had COPD since that time. In February 1996 the veteran underwent VA compensation examination. The veteran's history of cancer of the larynx was noted. The veteran reported that he thinks the [cancerous] tumor has been arrested. He also reported that he developed pneumonia while in the service in Germany in 1956. He stated that after service, he developed severe bronchial problems with wheezing and coughing and was diagnosed with bronchitis and COPD. He further stated that he was exposed to ionizing radiation in July 1954, while in the service, and he thinks his laryngeal cancer was due to the radiation exposure. The examiner noted that "in our experience it is due to smoking and not due to radiation exposure." Examination revealed that the veteran's chest had a lot of wheezes, rales and rhonchi. There were no lymph nodes in his neck. There were scars from radical neck dissections. The diagnosis was cancer of the larynx status post laryngectomy and a tracheostomy due to smoking, and chronic bronchial disease with asthmatic bronchitis and COPD also secondary to smoking. In a June 1997 letter, the RO notified the veteran of the necessity to submit additional evidence to support his claim for his alleged disability as a result of radiation exposure. In a letter dated on the same day, the RO requested that the veteran complete a tobacco product use history questionnaire. In October 1999 the veteran completed a tobacco product use history questionnaire wherein he indicated that he used no tobacco products prior to service. During service he smoked approximately two to three packs per day; after service he smoked two packs per day. He noted that he quit smoking once for a short period prior to quitting in November 1990. The veteran testified at his personal hearing that he was first diagnosed with COPD in 1955. He also testified that while stationed in Germany, he was diagnosed with pneumonia and was hospitalized for seven days. He stated that he had no further problems with pneumonia during service after being hospitalized. Tr., p. 6. Criteria Well-Grounded Claims Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The United States Court of Appeals for Veterans Claims (Court) has held that a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Although a claim need not be conclusive, it must be accompanied by evidence. The VA benefits system requires more than just an allegation; the claimant must submit supporting evidence and the evidence must justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992). Where the issue presented in an application for service- connection disability is factual in nature, that is, whether an incident or injury occurred in service, competent lay testimony, including a veteran's solitary testimony, may constitute sufficient evidence to establish a well-grounded claim under 38 U.S.C.A. § 5107(a). See Cartright v. Derwinski, 2 Vet. App. 24 (1991). However, the Court has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing Murphy, at 81). In determining whether a claim is well grounded, the claimant's evidentiary assertions are presumed true unless inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown 5 Vet. App. 19, 21 (1993). The Court has held that a well grounded claim requires competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). See Epps v. Brown, 9 Vet. App. 341, 343-44 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed.Cir. 1996). Service Connection Exposure to Ionizing Radiation In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in the active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131(West 1991); 38 C.F.R. § 3.303 (1999). Service connection for certain chronic conditions may be established where the condition was not diagnosed during service, but became manifest to a compensable degree within one year of the veteran's discharge from service. 38 C.F.R. §§ 3.307, 3.309 (1999). Notwithstanding the foregoing, service connection may be granted for disease which is diagnosed after discharge from military service, when all the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d) (1999); Cosman v. Principi, 3 Vet. App. 303,305 (1992). Service connection may also be granted for disability which is proximately due to a service-connected disease or granted for disability which is proximately due to a service- connected disease or injury. 38 C.F.R. § 3.310 (1999); Harder v. Brown 5 Vet. App. 183, 187 (1993). Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). There are certain types of cancer that are presumptively service connected specific to radiation- exposed veterans. 38 U.S.C.A. § 1112(c) (West 1991 & Supp. 1999); 38 C.F.R. § 3.309(d) (1999). Second, "radiogenic diseases" may be service connected pursuant to 38 C.F.R. § 3.311 (1999). Third, service connection may be granted under 38 C.F.R. § 3.303(d) (1999) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). With respect to the first method, the Board notes section 3.309(d)(1) provides that the diseases listed in paragraph (d)(2) of this section shall be service-connected if they become manifest in a radiation-exposed veteran. The provisions of section 3.309(d) limit the diseases subject to presumptive service connection to those specified in section 3.309(d)(2). As to the second method, the provisions of 38 C.F.R. § 3.311 provide for development of claims based on a contention of radiation exposure during active service and post-service development of a radiogenic disease. The provisions do not give rise to a presumption of service connection, but rather establish a procedure for handling claims brought by radiation exposed veterans or their survivors. See Ramey v. Gober, 120 F.3d 1239, 1244 (Fed. Cir. 1997). Section 3.311 essentially states that, in all claims in which it is established that a radiogenic disease first became manifest after service, and it is contended that the disease resulted from radiation exposure, a dose assessment will be made. The regulation provides a list of recognized radiogenic diseases in subsection 3.311(b)(2), and the regulatory time period when the diseases must become manifest. 38 C.F.R. § 3.311(b)(5). In addition, subsection 3.311(b)(4) provides that, even if the claimed disease is not one that is already recognized as radiogenic under subsection 3.311(b)(2), the claim will still be considered, or developed, pursuant to 38 C.F.R. § 3.311 if the veteran cites or submits competent scientific or medical evidence that the claimed disease is radiogenic. Tobacco Claims For claims filed prior to June 9, 1998, service connection of a tobacco-related death or disability can be established in two basic ways: direct service connection or secondary service connection. See VAOPGCPREC 19-97. Direct service connection may be established for disability or death if the evidence establishes that the injury or disease resulted from tobacco use in the line of duty during active military service. See VAOPGCPREC 2-93. The threshold issue in such cases is whether the claim is well grounded. On July 24, 1997, the Acting Under Secretary of VA for Benefits issued USB Letter 20-97-14 which discussed, in reference to an earlier all- station letter dated in January 1997, the criteria required for a claim to meet the well-groundedness threshold. It specifically stated, in pertinent part, that for claims alleging a direct link between tobacco use in service and a current disability, the veteran 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. See Letter from the Acting VA Undersecretary for Benefits (USB Letter 20-97-14). Secondary service connection may be established pursuant to 38 C.F.R. § 3.310(a) (1999) by (1) providing competent evidence of nicotine dependence during service; and (2) establishing that such nicotine dependence was the proximate cause of disability or death resulting from the use of tobacco products by the veteran. The question of whether a veteran is dependent on nicotine dependence is a medical issue. See VAOPGCPREC 19-97. The Board is bound by the precedent opinions of the VA General Counsel. 38 U.S.C.A. § 7104(c) (West 1991 & Supp. 1999). It should be noted that for claims filed after June 9, 1998, pursuant to 38 U.S.C.A. § 1103 (West 1991 & Supp. 1999), service connection may be granted only if a tobacco-related disability was manifest during service or within any applicable presumption period. When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis Carcinoma of the Larynx, Status Post Laryngectomy Secondary to Exposure to Ionizing radiation The veteran has contended that his claimed carcinoma of the larynx, status post laryngectomy resulted from exposure to ionizing radiation. An evaluation of all the evidence of record reveals that the veteran has not submitted a well- grounded claim for service connection for carcinoma of the larynx, status post laryngectomy secondary to exposure to ionizing radiation. With respect to the first method of establishing service connection for presumptive diseases manifested in radiation-exposed veterans, the Board notes that 38 C.F.R. § 3.309(d) limits service connection to the diseases listed in paragraph (d)(2). Carcinoma of the larynx is not a disease listed in paragraph (d)(2) subject to service connection on a presumptive basis. With respect to the second method which provides for the development of claims based upon a contention of exposure to ionizing radiation, the Board notes that carcinoma of the larynx is not a radiogenic disease listed in section 3.311(b)(2). Thus, a request for dose information is not warranted by regulation in absence of the development of a radiogenic disease. The Board also notes that VA was not under a duty to refer the claim for carcinoma of the larynx to the Under Secretary for Benefits prior to establishing the initial threshold requirement of developing the radiogenic disease. Wandel v. West, 11 Vet. App. 200, 205 (1999). As noted above, the regulation provides for development of claims based upon disease other than those listed in the regulation provided that the claimant has cited or submitted competent scientific or medical evidence that the claimed disorder is a radiogenic disease. 38 C.F.R. § 3.311(b)(4). The veteran has submitted no scientific or medical evidence that his carcinoma of the larynx is a radiogenic disease. In fact, at the VA examination of his respiratory system, the examiner noted that his cancer of the larynx status post laryngectomy and a tracheostomy is due to smoking. The Board concludes that scientific or medical evidence establishing that carcinoma of the larynx is a radiogenic disease has not been submitted. 38 C.F.R. § 3.311(b)(4). The Board also finds that there is no competent medical or scientific evidence linking the veteran's carcinoma of the larynx to the alleged in-service radiation exposure. Combee, supra; 38 C.F.R. § 3.303(d). No medical opinions have been presented linking the veteran's carcinoma of the larynx with alleged in-service radiation exposure. The probative evidence of record does not show that carcinoma of the larynx is linked to the veteran's claimed exposure to radiation during service. The veteran's mouth and throat were both found to be normal at his separation examinations. The Board notes that the veteran's claim essentially rests on his assertion that his carcinoma of the larynx is directly related to in-service radiation exposure. While a lay person is competent to provide evidence on the occurrence of observable symptoms during and following service, such a lay person is not competent to make a medical diagnosis or render a medical opinion, which relates a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet. App. 492, 494- 495 (1992). Therefore, if the determinant issue is one of medical etiology or a medical diagnosis, competent medical evidence must be submitted to make the claim well grounded. Grottveit, supra at 92-93. As was stated above, the veteran has presented no competent evidence, such as a medical opinion, linking his carcinoma of the larynx with in-service exposure to radiation. For these reasons, the Board finds that the veteran has not presented or identified probative medical evidence of a link between his carcinoma of the larynx and an in-service exposure to radiation. Consequently, the Board concludes that the veteran's claim of entitlement to service connection for carcinoma of the larynx as a result of exposure to ionizing radiation is not well grounded. 38 U.S.C.A. § 5107(a). Carcinoma of the Larynx, Status Post Laryngectomy and COPD Secondary to Nicotine Dependence The veteran has also contended that his claimed carcinoma of the larynx, status post laryngectomy and COPD resulted from tobacco use in-service. The Board finds that the veteran has not submitted well-grounded claims for service connection for carcinoma of the larynx, status post laryngectomy as secondary to the use of tobacco during service. With respect to establishing direct service connection the veteran has not submitted competent medical evidence that in-service smoking caused his claimed disabilities. See VAOPGCPREC 2-93; see also Letter from the Acting VA undersecretary for Benefits (USB Letter 20-97-14). With respect to establishing secondary service connection, USB Letter 20-97-14 reiterating significant portions of the General Counsel Opinion (VAOPGCPREC 19-97) provides that for purposes of well groundedness, medical evidence that nicotine dependence arose in service may consist of a current diagnosis of nicotine dependence along with a physician's opinion with respect to that dependence having originated in service. In its opinion, the VA General Counsel has cited the 4th Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), in noting the criteria for diagnosing substance dependence as specifically applicable to nicotine dependence. Under those criteria, nicotine dependence might be described as a maladaptive pattern of nicotine use leading to clinically significant impairment or distress, as manifested by three or more of a listing of seven specific criteria occurring at any time in the same 12-month period. Without going into specific details, those seven criteria were listed as tolerance, withdrawal, use of tobacco in larger amounts or over a longer period than was intended, persistent desire or unsuccessful efforts to cut down or control nicotine use, devotion of a great deal of time in activities necessary to obtain or use nicotine, relinquishment or reduction of important social, occupational, or recreational activities because of nicotine use, and continued use of nicotine despite knowledge of having a persistent or a current physical or psychological problem that is likely to have been caused or exacerbated by nicotine. In the instant case, the record does not contain medical evidence of a diagnosis of nicotine dependence or a physician's opinion that nicotine dependence originated in service. The Board finds that there is no competent medical evidence linking the veteran's claimed conditions to the alleged use of tobacco during service. No medical opinions have been presented linking the veteran's carcinoma of the larynx and COPD with alleged in-service tobacco use. The probative evidence of record does not show that carcinoma of the larynx, status post laryngectomy and COPD are linked to the veteran's claimed use of tobacco during service. The veteran's lungs, chest, mouth, throat and sinuses were reported as normal at his separation examinations. Even though the VA examiner attributed the veteran's conditions to smoking, the examiner did not give a diagnosis or an opinion of nicotine dependence or that it originated in service; nor did he opine that the veteran's claimed conditions are linked to his alleged use of tobacco during service. The Board notes that the veteran's claims essentially rests on his assertions that carcinoma of the larynx, status post laryngectomy and COPD are linked to the use of tobacco during service. As noted above, the veteran is not competent to render a medical diagnosis or opinion that relates a medical disorder to a specific cause. See Espiritu, supra. If the determinant issue is one of medical etiology or a medical diagnosis, competent medical evidence must be submitted to make the claim well grounded. Grottveit, supra. As noted earlier, the veteran has presented no competent evidence, such as a medical opinion, linking carcinoma of the larynx and COPD to in-service use of tobacco. For these reasons, the Board finds that the veteran has not presented or identified probative medical evidence of a link between his carcinoma of the larynx, status post laryngectomy and COPD to in-service use of tobacco. Consequently, the Board concludes that the veteran's claims of entitlement to service connection for carcinoma of the larynx, status post laryngectomy and COPD secondary to nicotine dependence is not well grounded. 38 U.S.C.A. § 5107(a). Prior to his assertion that his COPD is secondary to in- service use of tobacco, the veteran contended that his COPD disability was secondary to pneumonia, which he allegedly contracted in service in 1955/56. However, service medical records show no evidence of treatment for or a diagnosis of pneumonia. The earliest post-service medical record that diagnosed COPD is in June 1991, more than thirty years since the veteran's discharge from service. There is no objective medical evidence linking COPD to the alleged in-service diagnosis of pneumonia. The veteran has not submitted sufficient evidence to establish a well grounded claim for service connection for COPD secondary to pneumonia. Consequently, the Board concludes that the veteran's claim for entitlement to service connection for COPD is not well grounded. The Board finds that the RO has advised the veteran of the evidence necessary to establish a well grounded claims, and the veteran has not indicated the existence of any evidence not already obtained that would well ground his claims. In fact, in a February 1999 statement, the veteran stated that he has no additional medical information. See McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Brown, 9 Vet. App. 341, 344 (1996), aff'd sub nom. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). The Court has held that if the veteran fails to submit a well-grounded claim, VA is under no duty to assist in any further development of the claim. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); 38 C.F.R. § 3.159(a) (1999). As the appellant's claims for service connection for carcinoma of the larynx, status post laryngectomy and COPD are not well grounded, the doctrine of reasonable doubt has no application to his case. Although the Board considered and denied the veteran's claims on a ground different from that of the RO, which denied the claims on the merits, he has not been prejudiced by the decision. This is because in assuming that the claims were well grounded, the RO accorded him greater consideration than his claims in fact warranted under the circumstances. Meyer v. Brown 9 Vet. App. 425, 432 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Entitlement to service connection for carcinoma of the larynx, status post laryngectomy and chronic obstructive pulmonary disease is denied. M. SABULSKY Member, Board of Veterans' Appeals