Citation Nr: 0003678 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 93-26 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as being proximately due to or the result of smoking cigarettes during active military service. 2. Entitlement to service connection for arteriosclerotic peripheral vascular disease, claimed as being proximately due to or the result of smoking cigarettes during active military service. 3. Entitlement to service connection for asbestosis. 4. Entitlement to a rating in excess of 50 percent for post- traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Daniel R. McGarry INTRODUCTION The veteran had active service from February 1943 to October 1945 and from April 1948 to August 1960. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision in which the regional office (RO) granted entitlement to service connection for PTSD and assigned a rating of 10 percent. In subsequent rating decisions, the RO assigned a rating of 30 percent and, then, 50 percent for PTSD, each effective from the date of service connection in July 1992. However, the issue of entitlement to a rating in excess of 50 percent for PTSD remains before the Board. Cf. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The issue of entitlement to a rating in excess of 50 percent for PTSD is the subject of the REMAND part of this decision. The veteran has also appealed a rating decision in which the RO denied entitlement to service connection for asbestosis, and COPD and arteriosclerotic peripheral vascular disease, claimed by the veteran as being the result of smoking cigarettes. FINDINGS OF FACT 1. The record does not contain competent evidence of a nexus between a current COPD disability and injury or disease during the veteran's active service, including smoking cigarettes during his active military service. 2. The record does not contain competent evidence of a nexus between current arteriosclerotic peripheral vascular disease and injury or disease during the veteran's active service, including smoking cigarettes during his military service. 3. The record contains no competent medical evidence that the veteran has a diagnosis of nicotine dependence. 4. The record does not contain competent evidence of a nexus between a current asbestosis disability and injury or disease during the veteran's active service, including exposure to asbestos during his active military service. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for COPD, claimed as due to in-service smoking of tobacco, is not well grounded. 38 U.S.C.A. §§ 101(16), 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 2. The claim of entitlement to service connection for arteriosclerotic peripheral vascular disease, claimed as due to in-service smoking of tobacco, is not well grounded. 38 U.S.C.A. §§ 101(16), 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 3. The claim of entitlement to service connection for asbestosis is not well grounded. 38 U.S.C.A. §§ 101(16), 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110 (West 1991); 38 C.F.R. § 3.303 (1999). The law provides that "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." 38 U.S.C.A. § 5107(a) (West 1991). A well- grounded claim is a plausible claim which is meritorious on its own or is capable of substantiation. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The three elements of a well-grounded claim are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus between the in-service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Generally, competent medical evidence is required to meet each of the three elements. However, for the second element, the kind of evidence to make a claim well grounded depends upon the types of issues presented by the claim. Grottveit v. Derwinski, 5 Vet. App. 91, 92-93 (1993). For some factual issues, such as the occurrence of an injury, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnosis, competent medical evidence is required. Id. at 93. For the reasons discussed below, the Board finds that the veteran's claims for service connection for COPD and arteriosclerotic peripheral vascular disease, claimed as the result of in-service smoking of tobacco, and for asbestosis are not well grounded. Although the RO did not specifically state that it denied these claims on the basis that they were not well grounded, the Board concludes that this error was not prejudicial to the claimant. See Edenfield v. Brown, 8 Vet. App. 384 (1995) (deciding that the remedy for the Board's deciding on the merits a claim that is not well grounded should be affirmance, on the basis of nonprejudicial error). While the RO denied service connection on the merits, the Board concludes that denying the claims because they are not well grounded is not prejudicial to the appellant, as the appellant's arguments concerning the merits of the claims included, at least by inference, the argument that sufficient evidence to establish well-grounded claims is of record. Therefore, the Board finds that it is not necessary to remand the matter for the issuance of a supplemental statement of the case concerning whether or not the claim is well grounded. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); VAOPGCPREC 16-92 (O.G.C. Prec. 16-92) at 7-10. Where a claim is not well grounded it is incomplete, and the Department of Veterans Affairs (VA) is obliged under 38 U.S.C.A. § 5103(a) to advise the claimant of the evidence needed to complete his application. Robinette v. Brown, 8 Vet. App. 69, 77-80 (1995). In this case, the RO informed the appellant of the necessary evidence in the claims form he completed, in its notice of rating decision, and in the statement of the case (SOC) and supplemental statement of the case (SSOC). The discussion below informs the veteran of the types of evidence lacking, and which he should submit for a well-grounded claim. Unlike the situation in Robinette, the veteran has not advised VA of the existence of any particular evidence which, if obtained, would render his claim well- grounded. I. COPD and Peripheral Vascular Disease due to In-service Tobacco Use For claims filed prior to June 9, 1998, service connection may be granted for a disease that results from tobacco use in the line of duty during active military service. See VAOPGCPREC 2-97 (O.G.C. Prec. 2-97). In this case, the veteran filed his claim for service connection for COPD and peripheral vascular disease, claimed as due to tobacco use in service, in May 1994. Cf. 38 U.S.C.A. § 1103 (West Supp. 1999), which applies to claims received by VA after June 9, 1998, and which provides that, notwithstanding any other provision of law, a veteran's disability or death shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service for purposes of title 38 United States Code on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during the veteran's service. Concerning the first element -- evidence of current disability as provided by a medical diagnosis - The Board notes that the veteran has current disability from COPD and peripheral vascular disease. Diagnoses of both COPD and arteriosclerotic peripheral vascular disease are contained in reports of VA examinations conducted in July 1995. Concerning the second element -- evidence of incurrence or aggravation of a disease or injury in service - it is neither contended nor shown that either COPD or peripheral vascular disease was present during the veteran's active service. Rather, it is contended that these disabilities are due to the veteran's use of tobacco - in particular, to smoking - during his active military service. The veteran is competent to provide evidence that he smoked tobacco products during service; his statements to this effect are sufficient evidence for this element of a well-grounded claim. The Board also notes that the RO, in October 1998, invited the veteran to submit a medical opinion to the effect that nicotine dependence arose in service, and medical evidence of a relationship between nicotine dependence and the claimed disabilities. The record does not, however, contain competent evidence of a diagnosis of nicotine dependence, either in service or currently. Both of these claims must fail because the third element of a well-grounded claim is lacking. The record does not contain evidence of a nexus between current disability and injury or disease - whether tobacco use or nicotine dependence --during service. In an October 1994 asbestos evaluation report, a private pulmonologist noted the veteran's history of smoking one pack of cigarettes daily for 35 years, reported a diagnosis of asbestosis, and recommended that the veteran stop smoking immediately. The physician did not comment on the relationship, if any, between the veteran's smoking of tobacco in service and his current lung disease. The veteran has also submitted a statement, dated in October 1998, from H. Bernie Orr, M.D., another private physician. Dr. Orr related the smoking history given to him by the veteran. He noted that the veteran was aware that his COPD and his peripheral vascular disease were related to his smoking, that it is known that it takes many years most of the time for these diseases to develop from smoking, and that it is well known that there is a correlation between these diseases and smoking. He did not, however, provide an opinion that these diseases were due to the veteran's smoking during his military service, as opposed to his entire smoking history, both during and after military service. The Board has considered the entire record, including the veteran's testimony during a hearing in September 1998. The veteran testified that he began to smoke tobacco in 1943, soon after his entry into service. He reported that he had smoked continuously since that time. He attributed his current disability from COPD to smoking. He testified that he had been told by his physician that his COPD and his peripheral vascular disease had been caused by his smoking tobacco. In the absence of evidence that the veteran has the expertise to render opinions about the relationship, if any, between his smoking of tobacco in service and his development of the claimed disabilities, his assertions that there is a causal relationship are afforded no probative weight. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The veteran's assertions about what he had been told by his physician concerning the relationship between his smoking tobacco and his development of COPD and peripheral disease are too attenuated and inherently unreliable to constitute the medical evidence which is required to support a well-grounded claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). As currently constituted, the record contains no competent medical evidence that the veteran's current disability from COPD or peripheral vascular disease is related to his smoking of tobacco during his active military service. Therefore, the Board concludes that the claim for service connection for COPD as a result of in-service smoking of tobacco is not well grounded. II. Asbestosis The medical evidence contained in the claims folder tends to show that the veteran has some disability from asbestosis. An asbestos evaluation summary prepared by a private pulmonologist in October 1994 shows that the veteran gave a history of asbestos exposure during his post-service employment as a welder from 1968 to 1973 and as a pipefitter from 1973 to 1980. X-ray were interpreted to show some asbestos-related pneumoconiosis. Pulmonary function tests demonstrated a mild restrictive defect. The physician reported that the findings were consistent with a clinical diagnosis of asbestosis in a subject with a history of intense industrial exposure to asbestos-containing materials. The veteran has submitted his synopsis of a training manual which addresses safety concerns associated with asbestos abatement. He indicated that the use of asbestos increased dramatically during World War II as it was used extensively in fireproofing and insulation for war ships. He also asserted that the time between exposure to asbestos and the onset of asbestos related diseases may be from 15 to 30 years and that one exposure to asbestos may suffice to result in disease. The veteran testified in September 1998 that he was aboard Navy ships on several occasions during his military career. He estimated that the total time he was aboard such ships was approximately two years. He asserted that he was extensively exposed to asbestos while aboard such ships. The veteran contends that he developed asbestosis as a result of exposure to asbestos during his active military service. He has submitted some service personnel records which indicate that he spent some time aboard U.S. Navy ships during his service. The veteran does not contend, nor does the record otherwise show, that during his active military service his responsibilities included the application or removal of asbestos from ships. Rather, he contends that his presence aboard ships resulted in sufficient exposure to asbestos to cause his asbestosis. In the absence of evidence that the veteran has the expertise to render opinions about the causal relationship between possible shipboard exposure to asbestos and his current disability from asbestosis, his assertions are afforded no probative weight. See Espiritu, supra. To support a well-grounded claim, the veteran must submit competent medical evidence that his current disability from asbestosis is related to exposure to asbestos during his active military service. The record, as currently constituted, contains no such evidence. The veteran assertions that he has asbestosis and that he was aboard Navy ships during his active military service is insufficient to satisfy the third element of the Caluza analysis, that is, competent medical evidence of a nexus between current disability and an in-service disease or injury. As the evaluation report of the pulmonologist does not discuss in- service exposure to asbestos, it is insufficient to satisfy the nexus requirements of Caluza. The veteran's synopses of medical treatises and other sources of information about asbestos exposure do not address his particular case. Such evidence is not sufficient to support a well grounded claim. Therefore, the Board concludes that the claim of entitlement to service connection for asbestosis is not well grounded. ORDER Service connection for COPD and arteriosclerotic peripheral vascular disease, claimed as due to in-service smoking of tobacco, and for asbestosis, is denied. REMAND Effective November 7, 1996, regulations concerning the evaluation of mental disorders were revised. It is apparent from the October 1993 statement of the case (SOC) and the July 1994 supplemental statement of the case (SSOC), the RO evaluated the veteran's disability from his neuropsychiatric disorder using the former rating criteria. Furthermore, the Board is of the opinion that a VA psychiatric examination is necessary to properly evaluated the veteran's symptoms in the context of the revised regulations. Pursuant to this remand, the RO will be scheduling a VA examination. The veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (1999). The Board also notes that this issue involves a situation similar to that in Fenderson v. West, 12 Vet. App. 119 (1999), in which the Court held that the RO had never issued a SOC or SSOC concerning an appeal from an initial rating assigned at the grant of service connection, when the SSOC "mistakenly treated the ... claim as one for an '[i]ncreased evaluation ...' ... rather than as a disagreement with the original rating award, which is what it was." 12 Vet. App. at 132 (1999). To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following actions: 1. The RO should obtain the names and addresses of all medical care providers who have recently treated the veteran for PTSD. The RO should obtain and associate with the claims folder any pertinent records that are not currently part of the claims folder. 2. The RO should afford the veteran a psychiatric examination to determine the nature and degree of disability due to service-connected PTSD. The claims folder should be reviewed by the examiner. The examiner should comment specifically about which, if any, of the symptoms listed in the revised general rating formula for mental disorders are present. 3. The RO should consider whether the rating criteria in effect before or after November 7, 1996, are more favorable to the veteran, and should reevaluate the veteran's PTSD using the rating criteria that are more favorable to him. 4. If the benefit sought on appeal remains denied, the RO should furnish to the appellant and his representative a SSOC, which should include the revised rating criteria and which should phrase the issue consistent with Fenderson, and give them the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. MARY GALLAGHER Member, Board of Veterans' Appeals