Citation Nr: 0313424 Decision Date: 06/20/03 Archive Date: 06/24/03 DOCKET NO. 99-24 462 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as secondary to nicotine dependence. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Cryan, Counsel INTRODUCTION The veteran had active service from July 1959 to October 1963. This case initially came to the Board of Veterans' Appeals (Board) on appeal from a June 1999 rating decision by the RO. The Board remanded the case to the RO in February 2001 for additional development of the record. In a September 2002 Memorandum, the Board determined that additional development of the record was necessary prior to the issuance of a decision on the merits. The additional development was undertaken at the Board pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (January 23, 2002), since codified at 38 C.F.R. § 19.9(a)(2). In light of the favorable action taken hereinbelow, a waiver of initial RO review of the additional evidence added to the record pursuant to the Board's development is not necessary. FINDINGS OF FACT 1. The veteran is shown as likely as not to have developed nicotine dependence due to smoking cigarettes that began while he was in military service. 2. The currently demonstrated COPD is shown to be etiologically related to the veteran's smoking habit that began in service. CONCLUSION OF LAW By extending the benefit of the doubt to the veteran, his COPD is due to nicotine dependence due smoking that was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran asserts that he became dependent on nicotine due to smoking cigarettes that began in service. More specifically, the veteran maintains that he begin smoking when he entered boot camp and became addicted at that time. The veteran has submitted lay statements from his wife and sister who both report that the veteran did not smoke prior to entering the Navy in 1959. The veteran's wife indicated that the veteran was provided free cigarettes in service and encouraged to smoke them. A December 1996 inpatient discharge summary from a private hospital noted that the veteran was treated for COPD and that his social history included smoking approximately 3 packs per day since age 19. Another report from that private hospital noted that the veteran had a tobacco use disorder. In a private medical opinion from May 1998, the veteran's doctor noted that the veteran had emphysema secondary to chronic cigarette smoking. In a February 2001 remand, the Board noted that new laws had been passed that affected the veteran's claim of service connection. More specifically, the Board notified the veteran of the VCAA and its implications with respect to the veteran's claim. In light of the Board's remand, the RO sent a letter to the veteran in March 2001 explaining the implication of the VCAA on his claim of service connection and informed him of what evidence was necessary to substantiate his claim of service connection. In September 2002, the Bord determined that additional development of the record was necessary prior to the issuance of a decision on the merits. Specifically, the Board found that the veteran needed a VA pulmonary examination to determine the nature and likely etiology of his COPD. The Board noted that the examiner should thoroughly review the record and state whether any current respiratory disability was likely due to in-service tobacco use. Also, the examiner was requested to state whether the veteran suffered from nicotine dependence that had its onset in service, and if so, whether any respiratory disorder was due to the nicotine dependence. The examination was completed in January 2003. The examiner noted that the veteran had chronic COPD, diagnosed in the early 1990's. A physical examination of the veteran revealed an overall impression of definitive diagnosis of COPD. The VA examiner noted that the veteran had smoked three packs of Pall Mall cigarettes a day for 30 years, beginning while in the service. The examiner opined that the veteran's COPD was definitely related to smoking that began during service. The examiner also noted that the veteran apparently had no other risk factors, and since he began smoking in service, the examiner stated that technically, the COPD was service connected to a point. II. Legal Analysis At the outset, the Board notes that in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). This liberalizing law is applicable to this appeal. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). To implement the provisions of the law, VA promulgated regulations published at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2002). The Act and implementing regulations essentially eliminate the concept of the well-grounded claim. 38 U.S.C.A. § 5107(a) (West 2002); 38 C.F.R. § 3.102 (2002). They also include an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim. 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b) (2002). In addition, they define the obligation of VA with respect to its duty to assist the claimant in obtaining evidence. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2002). In light of the favorable action taken hereinbelow, further discussion of VCAA is not necessary here. 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, 1131; 38 C.F.R. § 3.303(a) (2002). 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. 38 C.F.R. § 3.303(b) (2002). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. 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) (2002). In February 1993, VA's General Counsel held that direct service connection may be granted if the evidence shows injury or disability resulting from tobacco use during service. VAOPGCPREC 2-93. VAOPGCPREC 2-93 held that whether nicotine dependence was a disease for compensation purposes was an adjudicative matter to be resolved by adjudicative personnel based on accepted medical principles. The VA Under Secretary for Health subsequently concluded that nicotine dependence might be considered a disease for VA compensation purposes. See USB Letter 20-97-14 (July 24, 1997). Subsequently enacted legislation prohibits the granting of service connection for a disability on the basis that it resulted from disease attributable to the use of tobacco products by a veteran during his or her service. 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300 (2002). This statute and its implementing regulation, however, apply only to claims filed after June 9, 1998. The veteran in this case is shown to have filed his claim of service connection in September 1997. Where, as in this case, a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran applies. See Dudnick v. Brown, 10 Vet. App. 79 (1997); Karnas v. Derwinski, 1 Vet. App. 308 (1991) (generally, when a law or regulation changes while a case is pending, the version most favorable to the claimant applies, absent congressional intent to the contrary). As the veteran's claim was filed in September 1997, the Board will apply the law as it existed prior to June 9, 1998. Secondary service connection may be established for disability due to tobacco use if the evidence shows that the veteran incurred nicotine dependence in service. See VAOPGCPREC 19-97. Service connection may be granted on a secondary basis if competent medical evidence indicates that the claimed illness had its origin in tobacco use subsequent to service, but the veteran developed nicotine dependence during service that led to the continued tobacco use after service. Once nicotine dependence in service is established, the issue becomes whether the current illness may be considered secondary to service-incurred nicotine dependence pursuant to 38 C.F.R. § 3.310. See VA VAOPGCPREC 19-97; see also 38 U.S.C.A. § 7104(c) (West 2002) (VA is statutorily bound to follow the precedential opinions of VA General Counsel); Davis v. West, 13 Vet. App. 178, 183 (1999). The two principal questions which must be answered by adjudicators in resolving a claim for benefits for tobacco- related disability secondary to nicotine dependence, therefore, are: (1) whether the veteran acquired a dependence upon nicotine during service; and (2) whether nicotine dependence which arose during service might be considered the proximate cause of claimed disability occurring after service. With regard to the question of whether the veteran acquired a dependence upon nicotine during service, the veteran reports that he first began smoking in service during boot camp in 1959, became addicted to tobacco during service, and continued smoking after service separation due to this nicotine dependence. The veteran, his wife and his sister have reported that he did not smoke prior to service, began smoking during service, and continued smoking after service, due to the nicotine addiction, until he quit in 1996. The inpatient hospital reports note that the veteran began smoking at age 19, and service medical records confirm that the veteran entered service at age 18. As there is no contradictory evidence of record to rebut the veteran's written assertion and the other lay statements, the Board finds the veteran's history in this regard to be credible and probative. The examiner in January 2003 opined that the veteran's current chronic obstructive pulmonary disease was due to smoking and that, since he began smoking during service, his COPD was service connected. Given the current record, the Board finds the weight of the evidence as to the question of whether nicotine dependence was incurred in active service to be in relative equipoise. By extending the benefit of the doubt to the veteran, his nicotine dependence is found to have been incurred in service. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2002). With regard to the second question, the Board finds that the weight of the medical evidence shows that the veteran's currently demonstrated COPD is etiologically related to his smoking habit. In addition to the VA examiner's January 2003 opinion, the veteran's private doctor submitted an opinion in May 1998 indicating that the veteran had emphysema secondary to chronic cigarette smoking. For these reasons, the Board finds that the veteran's COPD is due to nicotine dependence related to cigarette smoking that was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2002). ORDER Service connection for COPD as due to nicotine dependence is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.