Citation Nr: 0002721 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 98-07 570 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for an ankle condition and neck condition. 2. Entitlement to service connection for kidney, lung, hypertension, heart, and stomach conditions. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Associate Counsel INTRODUCTION The veteran had active service from June 1960 to June 1963. An RO rating decision in August 1970 denied the veteran's claim for service connection for a back injury on the basis that a VA examination showed the veteran's entire musculoskeletal system to be within normal limits. The veteran was notified of this decision, and he did not appeal. This matter comes to the Board of Veterans' Appeals (Board) from a December 1997 RO rating decision that (1) determined that new and material evidence was not submitted to reopen a claim for service connection for a right knee condition and low back condition; (2) denied service connection for an ankle condition and a neck condition; and (3) denied service connection for kidney, lung, hypertension-heart, and stomach conditions, all due to tobacco smoking. The veteran submitted a notice of disagreement in April 1998, and the RO issued a statement of the case in April 1998. The veteran submitted a substantive appeal in April 1998, and testified at a hearing in July 1998. The issue of whether new and material evidence was submitted to reopen a claim for service connection for a right knee condition and low back condition is not in appellate status, and will not be addressed by the Board. FINDINGS OF FACT 1. The veteran has not submitted competent (medical) evidence demonstrating the presence of a current ankle disability. 2. The veteran has not submitted competent (medical) evidence linking his current ankle condition and neck condition to an incident of service or to a service-connected disability. 3. The veteran has not submitted competent (medical) evidence showing that he currently has a lung disability. 4. There is no competent (medical) evidence linking the veteran's kidney, lung, hypertension-heart, and stomach conditions-first found many years after service-to an incident of service, including tobacco use, or to a service- connected disability. CONCLUSIONS OF LAW 1. The claim for service connection for an ankle condition and neck condition is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim for service connection for kidney, lung, hypertension, heart, and stomach conditions 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). I. Ankle Condition and Neck Condition Service medical records are negative of manifestations of either an ankle condition or neck condition. Testimony of the veteran is to the effect that he hurt his ankle on a parachute jump in 1961 in service, at the same time as when he hurt his leg, knee, and back. The veteran testified that he was sent to the dispensary by ambulance and was given medications and crutches, and was assigned light duty. The veteran also testified that his ankle now swells and hurts, and that there is bulging vertebrae in his neck. Caluza says that "incurrence" or "aggravation" of a disease or injury may be established by lay evidence, such as that presented here from the veteran. However, one of the evidentiary problems in this case is that the veteran has not submitted medical evidence to substantiate his claim that his current ankle condition and neck condition are attributable to disease or injury in service. Grivois v. Brown, 6 Vet. App. 136 (1994). The veteran's testimony to the effect that the swelling of his ankle and bulging vertebrae in his neck are related to the injury in service is not considered competent to prove medical causation. Paulson v. Brown, 7 Vet. App. 466 (1995); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Post-service medical records dated in 1997 indicate that the veteran fell from a forklift in or about 1995 and injured his back and neck. In this case, there is simply no competent medical evidence in the claims folder that links the veteran's ankle condition and neck condition to a disease or injury in service, or to a service-connected disability. A claim is not well grounded where there is no medical evidence showing a nexus between a current disability and service. Caluza, 7 Vet. App. 498. Moreover, the Board notes that the claims folder contains neither medical evidence of a current ankle disability nor medical records of any treatment for the veteran's ankle in service or later. 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. The veteran is advised that he may reopen the claim for service connection for an ankle condition and neck condition at any time by notifying the RO of such an intention and submitting supporting evidence. An example of supporting evidence is a medical report demonstrating the current presence of the claimed disorders, and a medical opinion that links the veteran's claimed disorders to an incident of service or to a service-connected disability. Robinette v. Brown, 8 Vet. App. 69 (1995). II. Kidney, Lung, Hypertension, Heart, and Stomach Conditions Where cardiovascular disease, including hypertension, 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 October 1997. Hence, the changes made by Public Law No. 105-206 are inapplicable. In this case, service medical records are negative of manifestations of nicotine dependence and of any kidney, lung, hypertension-heart, or stomach conditions. At the time of the veteran's separation examination in May 1963, his blood pressure readings were normal, that is, the systolic blood pressure reading was below 140 and the diastolic blood pressure reading was below 90. VA medical reports of the veteran's treatment in 1998 note a history of 30 years of smoking tobacco. The veteran states that he has tried to quit smoking, but that he has been unsuccessful. Records in the claims folder show that the veteran was born in 1941, and that other members of his family have hypertension. The veteran has been diagnosed with prostatitis, with questionable urosepsis; essential hypertension; and gastroesophageal reflux disease. The medical evidence, however, does not link nicotine dependence or any kidney, lung, hypertension-heart, or stomach conditions 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 a lung condition. 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). 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 kidney, lung, hypertension-heart, and stomach conditions 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 kidney, hypertension- heart, or stomach conditions until many years after the veteran's separation from service, and there is no competent (medical) evidence linking the veteran's claimed disorders to an incident of service, including tobacco use. Hence, the claim for service connection for kidney, lung, hypertension, heart, and stomach conditions is not plausible. Under the circumstances, the claim is denied as not well grounded. The veteran is advised that he may reopen the claim 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 or to a service-connected disability. Robinette v. Brown, 8 Vet. App. 69 (1995). ORDERS The claim for service connection for an ankle condition and neck condition is denied as not well grounded. The claim for service connection for kidney, lung, hypertension, heart, and stomach conditions is denied as not well grounded. J. E. DAY Member, Board of Veterans' Appeals