Citation Nr: 9907711	
Decision Date: 03/23/99    Archive Date: 03/31/99

DOCKET NO.  96-38 877	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office 
Center in Wichita, Kansas


THE ISSUE

Entitlement to service connection for a respiratory disorder, 
to include residual lung damage due to in-service tobacco use 
or nicotine dependence.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. C. Mackenzie, Associate Counsel

INTRODUCTION

The veteran served on active duty from October 1951 to July 
1953, and his Department of Defense (DD) Form 214, Report of 
Separation from the Armed Forces of the United States, 
denotes prior service totaling one year, three months, and 
eighteen days.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a May 1996 rating decision issued by 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in Wichita, Kansas.


FINDING OF FACT

There is no competent medical evidence of a nexus between a 
current respiratory disorder, to include residual lung damage 
due to in-service tobacco use or nicotine dependence, and the 
veteran's military service.


CONCLUSION OF LAW

The claim of entitlement to service connection for a 
respiratory disorder, to include residual lung damage due to 
in-service tobacco use or nicotine dependence, is not well 
grounded.  38 U.S.C.A. § 5107(a) (West 1991).


REASONS AND BASES FOR FINDING AND CONCLUSION

As a preliminary matter, the Board observes that the RO's 
efforts in retrieving the veteran's service medical records 
were largely unsuccessful.  Only the report of a separation 
medical examination performed in July 1953 was obtained.  The 
RO was unable to locate the veteran's service medical records 
at the National Personnel Records Center (NPRC) in St. Louis, 
Missouri, and the veteran did not respond to a June 1995 
letter from the RO requesting that he provide specific 
information regarding in-service treatment or the RO's August 
1997 request for information as to his tobacco use history.  
Also, a further inquiry to the NPRC resulted in the receipt 
in February 1996 of several morning reports listing the 
veteran, but these records do not indicate the nature of any 
in-service treatment.  Additionally, the NPRC was unable to 
locate any Surgeon General's Office records listing the 
veteran.  In view of this, the Board is satisfied that the RO 
has made sufficient efforts to obtain the veteran's service 
medical records.  See Jolley v. Derwinski, 1 Vet. App. 37, 
39-40 (1990) (the VA has a statutory duty to assist the 
veteran in obtaining military records).  

Service connection may be granted for a disability resulting 
from disease or injury incurred in or aggravated by service.  
38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1998).  
For the showing of chronic disease in service, there is 
required a combination of manifestations sufficient to 
identify the disease entity and sufficient observation to 
establish chronicity at the time.  If chronicity in service 
is not established, a showing of continuity of symptoms after 
discharge is required to support the claim.  38 C.F.R. § 
3.303(b) (1998).  Service connection may also be granted for 
any disease diagnosed after discharge when all of the 
evidence establishes that the disease was incurred in 
service.  38 C.F.R. § 3.303(d) (1998).  Additionally, certain 
chronic diseases of the respiratory system, including 
bronchiectasis and active tuberculosis, may be presumed to 
have been incurred during service if manifested to a 
compensable degree within one year of separation from active 
military service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 
& Supp. 1998).

The initial question which must be answered in this case, 
however, is whether the veteran has presented a well grounded 
claim for service connection.  The veteran has "the burden 
of submitting evidence sufficient to justify a belief by a 
fair and impartial individual" that a claim is well 
grounded.  38 U.S.C.A. § 5107(a) (West 1991); Robinette v. 
Brown, 8 Vet. App. 69, 73 (1995).  A well grounded claim is 
"a plausible claim, one which is meritorious on its own or 
capable of substantiation.  Such a claim need not be 
conclusive but only possible to satisfy the initial burden of 
§ [5107]."  Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990).  
In the absence of evidence of a well grounded claim, there is 
no duty to assist the claimant in developing the facts 
pertinent to the claim, and the claim must fail.  See Grivois 
v. Brown, 6 Vet. App. 136, 140 (1994); Grottveit v. Brown, 5 
Vet. App. 91, 93 (1993).

To establish that a claim for service connection is well 
grounded, a veteran must demonstrate "medical evidence of a 
current disability; medical or, in certain circumstances, lay 
evidence of in-service incurrence or aggravation of a disease 
or injury; and medical evidence of a nexus between the 
claimed in-service disease or injury and the present disease 
or injury."  Savage v. Gober, 10 Vet. App. 488, 493 (1997); 
see Epps v. Gober, 126 F.3d 1464, 1468-69 (Fed. Cir. 1997); 
Caluza v. Brown, 7 Vet. App. 498, 506 (1995); see also 
Grottveit v. Brown, 5 Vet. App. at 93.  

The United States Court of Appeals for Veterans Claims 
(Court) has recently indicated that, alternatively, a claim 
may be well grounded based on application of the rule for 
chronicity and continuity of symptomatology, set forth in 
38 C.F.R. § 3.303(b) (1998).  The Court held that the 
chronicity provision applies where there is evidence, 
regardless of its date, which shows that a veteran had a 
chronic condition either in service or during an applicable 
presumption period and that the veteran still has such a 
condition.  Savage v. Gober, 10 Vet. App. at 495-97.  That 
evidence must be medical, unless it relates to a condition 
that the Court has indicated may be attested to by lay 
observation.  Id.  If the chronicity provision does not 
apply, a claim may still be well grounded or reopened on the 
basis of 38 C.F.R. § 3.303(b) "if the condition is observed 
during service or any applicable presumption period, 
continuity of symptomatology is demonstrated thereafter, and 
competent evidence relates the present condition to that 
symptomatology."  Savage v. Gober, 10 Vet. App. at 498.  

The nexus requirement may be also satisfied by evidence 
showing that a chronic disease subject to presumptive service 
connection was manifested to a compensable degree within the 
prescribed period.  See Traut v. Brown, 6 Vet. App. 495, 497 
(1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993).  

Additionally, in order to have a well grounded claim on the 
basis of in-service tobacco use or nicotine dependence, the 
claimant must present competent medical evidence that tobacco 
use or nicotine dependence of service origin caused or 
contributed to the veteran's disability and that a link 
exists between the in-service tobacco use or nicotine 
addiction and service.  See VAOPGCPREC 19-97 (May 13, 1997).

In view of the fact that the veteran's DD Form 214 indicates 
that he received the Combat Infantryman Badge, the Board 
would point out that 38 U.S.C.A. § 1154(b) (West 1991) 
provides that, uch service, notwithstanding the 
lack of official record of such incurrence or aggravation 
during service.  See Collette v. Brown, 82 F.3d 389, 392-94 
(Fed. Cir. 1996); 38 C.F.R. § 3.304(d) (1998).  In this 
instance, it is not shown, nor is it alleged by or on behalf 
of the veteran, that his claimed respiratory disorder had its 
origins in combat or as a result of a combat-related injury.  
Were that even the case, and notwithstanding the relaxation 
of the evidentiary requirements needed to render the claim 
well grounded, the provisions of 38 U.S.C.A. § 1154(b) do not 
excuse the veteran from meeting the requirements of a well 
grounded claim.  See Libertine v. Brown, 9 Vet. App. 521, 524 
(1996); Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996).

As noted above, the VA's efforts to retrieve the veteran's 
service medical records have been largely unsuccessful, and 
his claims file includes only morning reports indicating 
unspecified in-service sickness of the veteran and, as well, 
the report of a separation medical examination in July 1953.  
The latter document reveals no abnormality of the lungs or 
chest by clinical examination, and it was then noted that a 
chest X-ray  as negative.  It was also then reported that the 
veteran had experienced pneumonia in November 1951 and had 
complained of twinges of chest pain since that time.  The 
only pathology in evidence was heart-related, that of an 
aortic systolic murmur.  

Of the post-service evidence, a chest X-ray of October 1978 
disclosed areas of discoid atelectasis at the lung bases, 
without active infiltration or pleural effusion.  Physical 
examination showed occasional forced bronchus, but he denied 
experiencing shortness of breath or chest pain.  No pertinent 
diagnosis was recorded.  During the course of a 
hospitalization in August 1982, the veteran denied having 
shortness of breath or chest pain.  Physical examination was 
normal.  No relevant diagnosis was offered.

The existence of a chronic respiratory disorder is initially 
shown in December 1993, when there was noted to be tobacco 
addiction and right lung pathology.  An X-ray from the 
Physicians Clinic in Leavenworth, Kansas, in December 1993 
showed a finding of a pleural reaction over the right 
hemithorax, with pulmonary infiltrative changes in the right 
lower lobe field.  Medical records from Chester Strehlow, 
M.D., dated from December 1993 to April 1994, indicate 
assessments of pulmonary fibrosis, chronic obstructive 
pulmonary disease, chronic bronchitis, and nicotine 
addiction.  These records also reflect treatment to help the 
veteran to quit smoking cigarettes.   Pulmonary function 
testing in March 1994 identified a moderate ventilatory 
restriction.  

Lacking in this case is competent medical evidence of a nexus 
between the veteran's current respiratory disorder and his 
military service, and there is no competent medical evidence 
showing that the veteran incurred one of the chronic 
respiratory diseases listed in 38 C.F.R. § 3.309(a) (1998) 
within one year following service.  A chronic respiratory 
disorder is not shown in service or for many years after 
service and there is missing from the record competent 
medical evidence as to the onset of nicotine addiction in 
service or a nexus between the in-service tobacco use noted 
by the veteran and his later diagnosed lung ailments.  Again, 
the Board would point out that, even accepting the veteran's 
contentions regarding an in-service respiratory disease in 
view of the provisions of 38 U.S.C.A. § 1154(b) (West 1991), 
a well grounded claim still requires competent medical 
evidence of a nexus between that disability and service.  
While the medical evidence of record appears to relate one or 
more of the veteran's respiratory disorders to nicotine 
dependence, such evidence is insufficient to render the 
appellant's claim well grounded absent competent medical 
evidence showing a link between such nicotine dependence and 
service.  See VAOPGCPREC 19-97, supra. 

Indeed, the only evidence of record suggesting a nexus 
between the veteran's current respiratory disability and 
service is own his lay opinion.  In his June 1996 notice of 
disagreement, the veteran reported being hospitalized for at 
least five days during service, and, in an August 1997 lay 
statement, the veteran described becoming "strongly 
addicted" to cigarettes during service.  However, the Board 
would point out that the veteran has not been shown to 
possess the medical expertise necessary to establish a nexus 
between a currently diagnosed respiratory disorder and his 
military service, nor is he competent to offer a medical 
opinion as to the existence of an in-service nicotine 
addiction or a nexus between in-service tobacco use and the 
later onset of respiratory pathology.  See Jones v. Brown, 7 
Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 
492, 494-95 (1991).  

A well grounded claim must be supported by evidence, not 
merely allegations.  Tirpak v. Derwinski, 2 Vet. App. 609, 
611 (1992).  Here, the veteran has not met his burden of 
submitting evidence sufficient to justify a belief by a fair 
and impartial individual that his claim for service 
connection for a respiratory disorder, to include residual 
lung damage due to in-service tobacco use or nicotine 
dependence, is well grounded.  In the absence of competent 
medical evidence to support the veteran's claim, this claim 
must be denied as not well grounded.  

While the Board observes that the veteran's representative, 
in his February 1999 Brief on Appeal, argued that the VA did 
not follow the established protocol for nicotine dependence 
cases, the Board would point out that, since this claim is 
not well grounded, VA has no further duty to assist the 
veteran in developing the record to support his claim.  See 
Epps v. Gober, 126 F.3d at 1467-68 ("there is nothing in the 
text of § 5107 to suggest that [VA] has a duty to assist a 
claimant until the claimant meets his or her burden of 
establishing a 'well-grounded' claim").

In the appealed May 1996 rating decision, the RO denied the 
veteran's claim for service connection for a respiratory 
disorder on the merits, but, in an October 1997 Supplemental 
Statement of the Case, the RO continued its denial on the 
basis that the veteran's claim was not well grounded.  
Regardless of the basis of the RO's denial, however, the 
Board observes that the Court has held that when an RO does 
not specifically address the question of whether a claim is 
well grounded but, instead, proceeds to adjudication on the 
merits, "there is no prejudice to the appellant solely from 
the omission of the well-grounded-claim analysis."  Meyer v. 
Brown, 9 Vet. App. 425, 432 (1996). 

Furthermore, the Board is not aware of the existence of 
additional relevant evidence that could serve to render the 
veteran's claim well grounded.  As such, there is no further 
duty on the part of the VA under 38 U.S.C.A. § 5103(a) (West 
1991) to notify the veteran of the evidence required to 
complete his application for service connection for the 
claimed disability.  See McKnight v. Gober, 131 F.3d 1483, 
1484-85 (Fed. Cir. 1997).
  

ORDER

A well grounded claim not having been submitted, service 
connection for a respiratory disorder, to include residual 
lung damage due to in-service tobacco use or nicotine 
dependence, is denied.



		
	BRIAN J. MILMOE
	Acting Member, Board of Veterans' Appeals

 

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