Citation Nr: 0006149 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 97-06 531A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for a claimed respiratory disorder, to include chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Julie L. Salas, Associate Counsel INTRODUCTION The veteran served on active duty from June 1944 to March 1946. This matter initially came to the Board of Veterans' Appeals (Board) on appeal of a December 1996 rating decision of the RO. In an August 1990 rating action, the RO determined that the veteran was incompetent. As such, the veteran's wife is the payee for the veteran's VA benefits and is acting on his behalf. In March 1999, the Board remanded this matter for additional development of the record. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran had combat with the enemy during his active service in World War II. 3. No competent evidence has been submitted to show that the veteran has current respiratory disability, to include chronic obstructive pulmonary disease, due to disease or injury which was incurred in or aggravated by service. CONCLUSION OF LAW The veteran has not submitted evidence of a well-grounded claim of service connection for a respiratory disorder, to include chronic obstructive pulmonary disease. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, one who submits a claim for benefits under a law administered by VA has 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). Only when that initial burden has been met does the duty of the Secretary to assist such a claimant in developing the facts pertinent to the claim attach. Id. The United States Court of Appeals for Veterans Claims (Court) has further defined a well-grounded claim as a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). It has also held that where a determinative issue involves a medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, in order for a claim to be considered plausible, and therefore well grounded, there must be evidence of both a current disability and of a relationship between that disability and an injury or disease incurred in service or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. The regulations also provide that 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). Based on a review of available records, the veteran would be considered a "combat" veteran, and the Board concedes the veteran's combat status. Consequently, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are to be applied. In pertinent part, 38 C.F.R. § 3.304(d) provides: Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. The United States Court of Appeals for the Federal Circuit (Appeals Court) has provided a three-step analysis in cases where a combat veteran seeks benefits pursuant to 38 C.F.R. § 3.304. First, the Appeals Court noted, [I]t must be determined whether the veteran has proffered "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease." . . . As the second step, it must be determined whether the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service." . . . [I]f these two inquiries are met, the Secretary [of the VA] "shall accept" the veteran's evidence as "sufficient proof of service connection," even if no official record of such incurrence exists. Collette v. Brown, 82 F.3d 389, 392-3 (Fed. Cir. 1996) (citations omitted). This section considerably lightens the burden of a combat veteran who seeks benefits for disease or injury which he alleges was incurred in combat in service. Id. at 392. The third step requires the Board to consider whether there is clear and convincing proof which would rebut the presumption of service connection. Id. at 393. In this case, the Board finds that the veteran has proffered satisfactory lay evidence of respiratory difficulties during service. The veteran has attributed his respiratory problems to poor ventilation while onboard a ship in service. However, even if the Board determined that the veteran suffered from respiratory difficulties in service, that would not end its analysis. There also must be competent evidence of a nexus relating current disability to the period of service. See Libertine v. Brown, 9 Vet. App. 521, 524 (1996). Although the veteran has presented sufficient medical evidence which documents that he currently suffers from severe chronic obstructive pulmonary disease and asthma, no competent evidence has been submitted which serves to link this currently demonstrated disability to a disease or injury which was incurred in or aggravated by service. The Board is cognizant of the veteran's opinion that he suffers from a respiratory disability attributable to service; however, the veteran, as a lay person, is not competent to offer an opinion as to the questions of medical diagnosis or causation presented in this case. See Espiritu v. Brown, 2 Vet. App. 492 (1992). In the absence of medical evidence to support his assertions that he has current respiratory disability due to disease or injury which was incurred in or aggravated by service, the Board must conclude that the veteran has failed to meet his initial burden of producing evidence of a well-grounded claim. Hence, service connection must be denied. In claims that are not well grounded, VA does not have a statutory duty to assist the veteran in developing facts pertinent to his claim. However, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a veteran of evidence needed to complete his application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the Department of Veterans Affairs has advised the veteran of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). The Board finds that another remand is not required in this case as compliance with the mandates of 38 U.S.C.A. § 5103(a) has been previously achieved. ORDER Service connection for a respiratory disorder, to include chronic obstructive pulmonary disease, is denied, as a well- grounded claim has not been presented. STEPHEN L. WILKINS Member, Board of Veterans' Appeals