Citation Nr: 0001806 Decision Date: 01/21/00 Archive Date: 01/28/00 DOCKET NO. 98-06 993A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for nicotine dependence. 2. Entitlement to service connection for arteriosclerotic heart disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mary C. Suffoletta, Associate Counsel INTRODUCTION The veteran had active service from July 1948 to November 1948, from September 1949 to December 1952, and from March 1954 to March 1957. This matter comes to the Board of Veterans' Appeals (Board) from an October 1997 RO rating decision that (1) denied service connection for nicotine dependence, and (2) denied service connection for arteriosclerotic heart disease. The veteran submitted a notice of disagreement in February 1998, and the RO issued a statement of the case in April 1998. The veteran submitted a substantive appeal in May 1998. FINDINGS OF FACT 1. The veteran has not submitted competent (medical) evidence showing nicotine dependence. 2. There is no competent (medical) evidence linking nicotine dependence to an incident of service, including tobacco use. 3. There is no competent (medical) evidence linking the veteran's arteriosclerotic heart disease, first found many years after service, to an incident of service, including tobacco use. CONCLUSIONS OF LAW 1. The claim for service connection for nicotine dependence is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim for service connection for arteriosclerotic heart disease is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The threshold question to be answered in this case is whether the veteran has presented evidence of well-grounded claims; that is, evidence which shows that his claims are plausible, meritorious on their own, or capable of substantiation. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). If he has not presented such claims, his appeal must, as a matter of law, be denied, and there is no duty on the VA to assist him further in the development of the claims. Murphy at 81. The United States Court of Veterans Appeals (Court) has also stated that a claim must be accompanied by supporting evidence; an allegation is not enough. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In a claim of service connection, this generally means that evidence must be presented which in some fashion links a current disability to a period of military service, or as secondary to a disability which has already been service- connected. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.310 (1999); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). "In order for a claim to be well-grounded, there must be competent evidence of current disability (a medical diagnosis) ...; of incurrence or aggravation of a disease or injury in service (lay or medical testimony), ...; and of a nexus between the inservice injury or disease and the current disability (medical evidence)." Caluza v. Brown, 7 Vet. App. 498 (1995). The chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the Court, lay observation is competent. If chronicity is not applicable, a claim may still be well grounded on the basis of continuity of symptomatology, if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). A lay person's opinion cannot alone provide a foundation for a well-grounded claim when the opinion requires expert knowledge, such as the medical knowledge necessary to establish a causal link between a service-connected disability and another post-service disability. In addition, a medical statement that is speculative will not support a well grounded claim. Franzen v. Brown, 9 Vet. App. 235 (1996); Johnson v. Brown, 9 Vet. App. 7 (1996); Gregory v. Brown, 8 Vet. App. 563 (1996); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Where arteriosclerosis becomes manifest to a degree of 10 percent within one year from date of termination of active service, it shall be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). The General Counsel of VA has held that tobacco use does not constitute drug abuse and that secondary service connection can be granted for a disability due to nicotine dependence arising in service. VAOPGCPREC 2-93 and VAOPGCPREC 19-97, respectively. Public Law No. 105-178, "Transportation Equity Act for the 21st Century" (TEA 21), signed by the President on June 9, 1998, amended 38 U.S.C.A. §§ 1110 and 1131 to preclude payment of VA compensation for disability resulting from a tobacco-related disease or injury that became manifest during a veteran's military service or to the requisite degree of disability during a presumptive period specified in 38 U.S.C.A. § 1112 or 1116. On July 22, 1998, the President signed the "Internal Revenue Service Restructuring and Reform Act of 1998" (IRS Reform Act), Public Law No. 105-206, which struck out provisions of Public Law No. 105-178 concerning the amendment to 38 U.S.C.A. §§ 1110 and 1131 and inserted a new section that prohibits service connection of a death or disability on the basis that it resulted from an injury or disease attributable to the use of tobacco products by a veteran during the veteran's service. The new section, to be codified at 38 U.S.C.A. § 1103, does not preclude establishment of service connection based upon a finding that a disease or injury became manifest or was aggravated during active service or became manifest to the requisite degree of disability during any applicable presumptive period specified in 38 U.S.C.A. § 1112 or 1116. The changes made by Public Law No. 105-206 permit payment of compensation for tobacco-related disabilities that are manifested or aggravated during service or are manifested to a compensable degree during any applicable presumptive period following service. The changes made by Public Law No. 105-206 apply to claims filed after June 9, 1998, and do not affect veterans and survivors currently receiving benefits and veterans and survivors who filed claims on or before June 9, 1998. Here, the veteran filed his claim for payment of compensation for tobacco-related disabilities in September 1993. Hence, the changes made by Public Law No. 105-206 are inapplicable. In this case, service medical records are negative of manifestations of either nicotine dependence or of arteriosclerotic heart disease. VA medical reports of the veteran's treatment in 1997 note a history of 49 years of smoking tobacco. The veteran states that he has tried every product that has been on the market to stop smoking in the last 20 years, but each has only lasted about one week to 10 days. Records in the claims folder show that the veteran was born in 1932, and that members of his family (including half-brothers) have or have had heart disease. The veteran has been diagnosed with coronary heart disease, status post 4 myocardial infarctions. The medical evidence, however, does not link nicotine dependence or arteriosclerotic heart disease to tobacco use that began while in service. Moreover, the Board notes that the claims folder contains neither medical evidence of nicotine dependence nor medical records of any treatment for nicotine dependence. Nicotine dependence is a disease, specifically a psychiatric disability. See USB Letter 20-97-14 (Jul. 24, 1997); American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). A service-connection claim must be accompanied by evidence which establishes that the veteran currently has the claimed disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). It is the veteran's burden to submit evidence of a current disability. The absence of such evidence makes the claim not plausible and, therefore, not well-grounded. Statements of the veteran in the claims folder are to the effect that he never smoked before service; that cigarettes were provided to him in his rations; that he smoked the cigarettes in service and has continued smoking ever since; and that his current nicotine dependence and arteriosclerotic heart disease are due to tobacco use in service. This lay evidence is not sufficient to support a claim for service connection of a disability based on medical causation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In this case, there is no evidence of arteriosclerotic heart disease until many years after the veteran's separation from service, and there is no competent (medical) evidence linking the veteran's arteriosclerotic heart disease to an incident of service, including tobacco use. Nor is there any competent (medical) evidence linking nicotine dependence to tobacco use that began while in service. Hence, the claims for service connection for nicotine dependence and for arteriosclerotic heart disease are not plausible. Under the circumstances, the claims are denied as not well grounded. The veteran is advised that he may reopen the claims at any time by notifying the RO of such an intention and submitting supporting evidence. An example of supporting evidence is a medical report showing the presence of the claimed disorders with an opinion linking them to an incident of service. Robinette v. Brown, 8 Vet. App. 69 (1995). ORDERS The claim for service connection for nicotine dependence is denied as not well grounded. The claim for service connection for arteriosclerotic heart disease is denied as not well grounded. J. E. DAY Member, Board of Veterans' Appeals