Citation Nr: 0005141 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 98-01 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease and atherosclerotic vascular disease due to smoking. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran served on active duty from January 1943 to December 1943. The issue currently before the Board of Veterans' Appeals (Board) arises from an October 1997 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) located in Winston-Salem, North Carolina. FINDING OF FACT No competent medical evidence links either the veteran's chronic obstructive pulmonary disease (COPD) or atherosclerotic vascular disease to the use of tobacco in service or to nicotine dependency developed in service. CONCLUSION OF LAW The claim of entitlement to service connection for chronic obstructive pulmonary disease and atherosclerotic vascular disease due to smoking is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran believes, in essence, that he currently has chronic obstructive pulmonary disease (COPD) and atherosclerotic vascular disease as a result of his smoking in service and, in addition, as a consequence of his subsequent nicotine dependence/addiction which resulted therefrom. The threshold question for the Board, however, is whether the veteran has presented a well-grounded claim for service connection. A well-grounded claim is one that is plausible, capable of substantiation or meritorious on its own. See 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski 1 Vet App. 78, 81 (1990). Service connection may be granted for disability incurred in or aggravated during active duty. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). In the absence of evidence of a well-grounded claim, there is no duty to assist the appellant in developing the facts pertinent to his claim, and the claim must be denied. See Epps v. Gober, 126 F.3d 1464, 1467-68 (1997). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The evidence does not reflect that the veteran currently possesses a recognized degree of medical knowledge that would render his opinions on medical diagnoses or causation competent. Lay assertions of medical causation will not suffice initially to establish a plausible, well-grounded claim, under 38 U.S.C.A. § 5107(a) (West 1991). Grottveit, supra. If no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Id. Review of the service medical records makes no mention of either COPD or atherosclerotic vascular disease. One treatment record, which is undated, shows that the veteran complained of nausea and nervousness. It was also noted that he claimed to use tobacco, smoking 1/2 pack of cigarettes daily. As shown on a VA Form 21-4138, Statement in Support of Claim, received by VA in August 1993, the veteran sought service connection based on the use of tobacco while in service. He noted that he never smoked prior to service but that he was both given cigarettes and encouraged to smoke them during his service period. He added that, as a result, he had become dependent upon nicotine. The veteran, as shown as part of a VA Form 21-4138, dated in September 1997, indicated that prior to his service entrance he "puffed on...cigarettes now and then." Review of postservice private medical records includes admission and discharge summaries dated in April 1988 from Wilkes General Hospital, located in North Wilkesboro, North Carolina. The admission summary noted a history of severe chronic obstructive pulmonary disease with reactive airway changes documented in 1978. The summary also noted that the veteran gave a history of smoking abuse with two packs smoked per day between 1950 and 1980. Both summaries included diagnoses of COPD and atherosclerotic vascular disease. It is also noted that the veteran was treated at that time by Dr. Andrews. A letter, dated in August 1993, is shown to have been submitted to VA from Dr. Andrews in September 1993. He indicated that the veteran had been regularly followed as a patient at Mountain View Medical Center for the past several years. The physician noted that the veteran had a number of defined vascular and pulmonary health problems that had a strong correlation with tobacco dependence disorder with cigarette abuse and nicotine intake. The physician noted that the veteran had related that his cigarette abuse was apparently initiated while in the service, as he was given free cigarettes and encouraged to smoke. The physician additionally reported that the veteran was troubled by severe COPD with reactive airway changes and extensive diffuse vascular atherosclerotic disease, both of which had significant correlations with smoking use and, in addition, had caused the veteran a fair amount of functional limitation, expensive medication needs, and certainly presented him with significant health hazards. Treatment records from Mountain View Medical Center dated in 1995 and 1996 show that the veteran was treated for both respiratory and cardiovascular-related disorders. Several records are noted to include COPD as a diagnosis. Additional private medical records, dated in 1997 and showing treatment afforded the veteran at another private medical facility, indicate that the veteran was seen for arm and chest pain, and, in addition, that he was diagnosed with COPD. Review of the record also shows that various lay statements have been submitted in support of the veteran's claim. Two letters, dated in August 1993 and submitted from long standing acquaintances of the veteran, state that the veteran did not smoke before entering the service. Two additional statements, both dated in May 1997, are also of record. One, submitted by a past neighbor of the veteran, indicates that the veteran did not smoke before service but began to smoke during his period of service in order to calm his nerves. The second letter, submitted by a granddaughter of the veteran, states that the veteran's pulmonary-related problems come directly from smoking. She noted that she was a registered technologist with 13 years of hospital experience. She added that attempts by the veteran to stop smoking caused him to experience emotional disturbances that compromised his ability to have a normal social lifestyle. She also noted that it had been confided to her that the veteran had his first cigarette and began his addiction to nicotine while serving in World War II. A precedential opinion by the VA General Counsel clarified when entitlement to benefits may be awarded based upon in- service tobacco use. This opinion determined that direct service connection may be established if the evidence shows injury or disease resulting from tobacco use in service. VAOPGCPREC 2-93, 58 Fed. Reg. 42,756 (1993). The General Counsel issued a clarification of this opinion in June 1993 and stated that the opinion does not hold that service connection will be established for a disease related to tobacco use if the affected veteran smoked in service. Rather, the opinion holds that any disability allegedly related to tobacco use which is not diagnosed until after service would not preclude establishment of 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. With regard to the issue of secondary service connection, a precedential opinion by the VA General Counsel was issued to clarify when service connection may be granted if the disability is secondary to nicotine dependence which arose from a veteran's tobacco use during service. The VA General Counsel found that a determination as to whether secondary service connection should be established depends upon affirmative answers to the following three questions: (1) whether nicotine dependence may be considered a disease for purposes of the laws governing veterans' benefits, (2) whether the veteran acquired a dependence on nicotine in service, and (3) whether that dependence may be considered the proximate cause of disability or death resulting from the use of tobacco products by the veteran. VAOPGCPREC 19-97, 62 Fed. Reg. 37,954 (1997). In a May 1997 memorandum, the Under Secretary for Health stated that nicotine dependence may be considered a disease for VA compensation purposes. Moreover, the determination as to whether a veteran is dependent on nicotine is a medical question. With regard to the collateral allegation that the armed forces provided the veteran with cigarettes and in essence encouraged him to smoke, the veteran's assertions may or may not be correct, but such assertions, even if true, cannot serve to make the claim well grounded. What is required is medical evidence of a connection between smoking in service (the source of the smoking materials and/or alleged encouragement from military authorities being irrelevant) and the currently claimed disorders. In conclusion, the veteran has failed to provide any competent medical evidence relating either his COPD or atherosclerotic vascular disease to the use of tobacco during service. Accordingly, service connection on a direct basis is not warranted. As for secondary service connection, there is no medical evidence of a nexus between the claimed in- service nicotine dependence and his claimed disorders. The above-discussed private medical opinion from Dr. Andrews dated in August 1993 does not establish that the veteran's COPD or vascular arteriosclerotic disease was related to the use of tobacco during service, nor is the opinion noted to have included consideration of the possible effect of smoking both before and after service. To this, it is noted that the veteran has indicated that he smoked 2 packs of cigarettes per day from 1950, seven years after his service separation, to 1980. Furthermore, the veteran was never diagnosed with nicotine dependency in the decades following service when he continued to smoke. The Board cannot rely solely on the veteran's own testimony because evidence of a medical nexus cannot be established by lay testimony. Brewer v. West, 11 Vet. App. 228 (1998); Espiritu, supra. This is true as well for the reliance on the additional above-discussed lay testimony, to include the statement submitted from the veteran's granddaughter, a "registered technologist." She is not qualified to offer a medical diagnosis. Therefore, as the veteran has not submitted competent medical evidence of a nexus between his claimed disorders as noted on the title page of this decision and his period of active service, and, specifically, to smoking during service, his claim must be denied as not well grounded. Epps, 126 F.3d at 1467-68. As detailed above, the relevant caselaw requires that the "link" must be satisfied by competent medical evidence. In this case, unfortunately, there is none. The veteran has failed to meet his initial burden of submitting evidence of a well-grounded claim for service connection; therefore, the VA is under no duty to assist him in developing the facts pertinent to that claim. See Epps, 126 F.2d at 1468. As the Board is not aware of the existence of additional evidence that might well ground the veteran's claim, a duty to notify does not arise pursuant to 38 U.S.C.A. § 5103(a) (West 1991). See McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997). That notwithstanding, the Board views this discussion as sufficient to inform the veteran of the elements necessary to well ground his claim, and an explanation as to why his current attempt fails. ORDER As a well-grounded claim has not been submitted, service connection for chronic obstructive pulmonary disease and atherosclerotic vascular disease due to smoking is denied. M. S. SIEGEL Acting Member, Board of Veterans' Appeals