Citation Nr: 0310771 Decision Date: 06/02/03 Archive Date: 06/10/03 DOCKET NO. 00-16 786 ) DATE ) MERGED APPEAL ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for poliomyelitis. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to service- connected nicotine dependence. REPRESENTATION Appellant represented by: John Stevens Berry, Attorney ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Associate Counsel INTRODUCTION The veteran had active service from July 1950 to June 1954. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska (RO) which denied the benefits sought on appeal. The Board notes that the veteran's claim for service connection for poliomyelitis was previously before the Board in June 2002. In that decision, the Board determined that the veteran had submitted new and material evidence to reopen his claim of service connection for poliomyelitis, and deferred a decision as to service connection for poliomyelitis, pending additional development. The requested development was accomplished to the extent possible and the case has now been returned to the Board for adjudication. FINDINGS OF FACT 1. The veteran was notified of the evidence needed to substantiate his claims, and all relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. There is no medical evidence of poliomyelitis during the veteran's active service or within 35 days thereafter. 3. The medical evidence does not establish that the veteran's poliomyelitis is causally or etiologically related to the veteran's active service 4. The medical evidence demonstrates that the veteran's COPD is due to the use of tobacco. CONCLUSIONS OF LAW 1. Poliomyelitis was not incurred or aggravated during service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1132, 1137, 1153, 5103A, 5107(b), 5108 (West 2002); 66 Fed. Reg. 45,630-32 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.159); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.310, 3.379 (2002). 2. Chronic obstructive pulmonary disease was neither incurred nor aggravated by the veteran's active military service. 38 U.S.C.A. §§ 1103, 1110, 1131, 1153, 5103A, 5107(b), 5108 (West 2002); 66 Fed. Reg. 45,630-32 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.159); 38 C.F.R. §§ 3.1, 3.102, 3.300, 3.303, 3.304, 3.306 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran claims entitlement to service connection for poliomyelitis and for chronic obstructive pulmonary disease (COPD), to include as secondary to service-connected nicotine dependence. As a preliminary matter, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) became law. The VCAA applies to all claims for VA benefits and provides, among other things, that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim for benefits under laws administered by VA. The VCAA also requires VA to assist a claimant in obtaining that evidence. See 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2002); 66 Fed. Reg. 45,630 (Aug. 29, 2001) (codified at 38 C.F.R. § 3.159). First, VA has a duty under the VCAA to notify the veteran and his representative of any information and evidence needed to substantiate and complete his claims. The rating decisions, the statements of the case, and supplemental statements of the case issued in connection with the veteran's appeal, as well as additional correspondence to the veteran, have notified him of the evidence considered, the pertinent laws and regulations, and the reason that his claims were denied. The RO indicated that it would review the information of record and determine what additional information is needed to process the veteran's claims. The RO also informed the veteran of what the evidence must show in order to grant service connection, as well as provided a detailed explanation of why the requested benefits were not granted. In addition, the rating decisions, statements of the case, and supplemental statements of the case included the criteria for granting service connection, as well as other regulations pertaining to his claim. Similarly, April 2001 and November 2001 letters to the veteran, from the RO, and the February 2002 statement of the case notified the veteran of the provisions of the VCAA, the kind of information needed from him, and what he could do to help his claim, as well as the VA's responsibilities in obtaining evidence. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (requiring VA to notify the veteran of what evidence he was required to provide and what evidence VA would attempt to obtain). Accordingly, the Board finds that the notification requirements of the VCAA have been satisfied. Second, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate his claim. In this regard, the veteran's service medical records, VA medical records, and private medical records have been obtained. In addition, a VA medical opinion was obtained. The veteran and his representative have not made the Board aware of any additional evidence that should be obtained prior to appellate review, and the Board is satisfied that the requirements under the VCAA have been met. As such, the Board finds that the duty to assist has been satisfied and the case is ready for appellate review. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). See also VAOPGCPREC 16-92. A veteran is entitled to service connection for a disability resulting from a disease or injury incurred in or aggravated in the line of duty while in the active military, naval, or air service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2002). The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. If there is no evidence of a chronic condition during service, or an applicable presumption period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303 (b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober 10 Vet. App. 488, 495-498 (1997). If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Id. In addition, a veteran is entitled to a presumption of service connection for anterior poliomyelitis where manifestations of the poliomyelitis become present within 35 days of the veteran's discharge from service. See 38 C.F.R. § 3.379. In order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury, resulting in a current disability, was incurred or aggravated in active military service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. When service connection is established for a secondary condition, the secondary condition is considered as part of the original condition. 38 C.F.R. § 3.310(a). To establish entitlement to service connection on a secondary basis, there must be competent medical evidence of record establishing that a current disability is proximately due to or the result of a service-connected disability. See Lanthan v. Brown, 7 Vet. App. 359, 365 (1995). In addition, service connection is permitted for aggravation of a non-service- connected disability caused by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (". . . when aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service- connected condition, such veteran shall be compensated for the degree of disability . . . over and above the degree of disability existing prior to the aggravation."). The Board recognizes that recently passed legislation prohibits service connection of a disability or death on the basis that it resulted from an injury or disease attributable to the use of tobacco products by a veteran during his or her service. See 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300. However, this new section applies only to claims filed after June 9, 1998. As the veteran in the present case filed his claim on July 8, 1998, this provision affects the disposition of this appeal. The pertinent medical evidence of record consists of the veteran's service medical records, private medical records, VA medical records, and a VA medical opinion report, with addendum. A June 23, 1954 Report of Physical Examination for purposes of separation from service showed a normal clinical evaluation of the veteran's spine, upper and lower extremities, and musculoskeletal system. In addition, his neurological examination was normal, as was clinical evaluation of his lungs and chest. Likewise, his chest x-ray was normal. The veteran's DD 214 indicates that the veteran was discharged on June 26, 1954 from Limestone Air Force Base in Maine. A September 1954 VA medical record shows that the veteran was treated for poliomyelitis, including paralysis of the left lower extremity. The veteran reported that he developed sharp lumbar pain on September 10th, and sought treatment at a chiropractor, but did not receive relief. On September 12th, he developed a fever, and was taken to the local hospital, which diagnosed him with poliomyelitis via a spinal puncture. A VA medical record dated January 1955 confirms that the veteran first became ill on September 10, 1954 and was diagnosed with acute poliomyelitis on September 12, 1954. Paralysis of the left leg was noted as occurring on or around September 14th, 1954. Upon examination, the veteran had flaccid paralysis subtotal of the left lower extremity with weak muscles. A February 1957 VA record states that the veteran's paralysis of the left leg first occurred on September 13th, 1954. A November 1962 letter from Mrs. H. W. Tangemann indicates that the veteran's name was in "Dr. Tangemann's" appointment book on July 6th and September 11th, 1954. Private medical records from 1962 indicate that the veteran was diagnosed with poliomyelitis in September 1954. An affidavit from the veteran states that he began having pain in his lower extremities within 10 days of his discharge; that he began having sleepiness, mild headaches, and backaches in July 1954, followed by lethargy in August 1954; and that his symptoms worsened such that he sought treatment and was diagnosed with poliomyelitis in September 1954. A September 1963 letter from the Maine Department of Health and Welfare indicates that there were no cases of poliomyelitis in adults on Limestone Air Base between May 1953 and June 1954. A child dependent was diagnosed in October 1953. A July 1978 VA x-ray of the lumbosacral spine was negative for evidence of a bone injury or other bone pathology. His sacroiliac joints were normal and the veteran had normal alignment of his intervertebral disc spaces. A December 1979 VA chest x-ray showed mild fibrotic changes in the bases of both lungs. A February 1982 VA treatment record noted a history of polio. A February 1984 VA chest x- ray was normal. February and March 1984 VA treatment notes show treatment for chest pain. An EKG was negative for a myocardial infarction. Angina and hiatal hernia were listed as possible diagnoses. A December 1984 VA treatment note indicates that the veteran was status-post poliomyelitis of the left lower extremity. An August 1986 VA radiology report indicates that an x-ray of the lumbosacral spine showed mild to moderate degenerative arthritis of the lumbar spine, with a normal lumbosacral spine, sacroiliac joints, and hips. An August 1986 VA consultation report indicates that the veteran had polio in 1954, with truncal muscle involvement, total left leg involvement, and pelvic girdle involvement. The veteran complained of worsening symptoms, with numbing of his legs, without a history of injury, except for a 1982 fall on the ice. Examination was negative for nerve root impingement signs and neurological examination was "capricious." The assessment was that the veteran's muscles were getting stressed and stretched due to aging of the ligaments. A December 1986 VA re-evaluation report indicates that the veteran had a permanent disability as a result of his poliomyelitis, which severely affected his left leg, bilateral shoulders, and part of the truncal muscles, as well as mildly affected his right leg and arms. The examining provider noted that post-polio cases worsen with age, that the veteran's joint ligaments were overstressed, and that the veteran had back pain due to the imbalance of his truncal muscle. A November 1988 VA medical record shows diagnoses of status- post poliomyelitis, vascular headaches, and back pain. A November 1992 private record from R. H. Rasmussen, M.D. indicates that the veteran complained of left-sided chest pain, worse with deep breathing. A history of polio and weakness of the left leg was noted. A history of cigarette smoking for 40 years was also noted. Examination of the heart showed a regular rate and rhythm, without evidence of murmurs. The veteran's lungs were clear to auscultation and percussion. A chest x-ray and an EKG were normal. January 1993 VA radiology reports show that the veteran had chest x-rays, which showed chronic obstructive pulmonary disease and normal cardiovascular structures. Both lungs were overinflated, without evidence of pulmonary nodular or infiltrative processes. The pleural spaces were clear. A history of smoking for many years was noted. The veteran also reported that he stopped smoking in May 1992 and that he had a productive cough. A January 1993 consultation report, of an unknown origin, states that the veteran was status-post poliomyelitis, and complained of shoulder and back problems, which were considered under control, and increased weakness and fatigue. EMG testing was negative for post-polio syndrome, as there was no chronic denervation diagnostic of continuing deterioration of the veteran's muscles. Physical examination showed that deep tendon reflexes were equal and active in the upper extremities, without muscle wasting or decreased muscle strength. There was marked atrophy of the left lower extremity, with minimal functional muscle. He had 50 percent of the normal strength of his left hip. There was no definite ligamentous instability of the left knee, but there was no eversion or inversion of the left ankle and effusion of the left knee. The impression was doubtful post-polio syndrome and possible radial nerve irritation of the left thumb. A March 1994 letter from B. A. Owen, M.D. indicates that he treated the veteran for poliomyelitis in 1954. An undated consultation report, received by the RO in February 1995, states that the veteran complained of a long history of polio with left-sided hemiparesis. The veteran reported that he developed polio less than 3 months after his 1954 military discharge, while he was in college. He also complained of low back pain, hip and knee pain, weakness of the left leg, and a fractured left ankle as a result of his polio. The veteran related that he had periodic headaches due to muscle spasms of the neck, and that he had become progressively weaker and more easily fatigued. He also related that he had paresthesias of the right hand, muscle weakness on the left side, and arthritis. In addition, the veteran reported a history of tobacco addiction, but stated that he had not smoked in 5 years. He complained of morning cough and dyspnea on exertion. Physical examination showed that the veteran had atrophy of the left lower extremity, inhibiting his ability to walk well. There were no other significant deformities. The veteran's chest was fairly clear to auscultation, but there was increased angina pectoris diameter and increased latency consistent with COPD. Heart sounds were distant, but otherwise normal, with a regular rate and rhythm, and without any murmurs. There was some muscle wasting of the left upper extremity, with diminished grip strength and normal fine motor coordination. His right upper extremity had good range of motion and functional status and his right lower extremity was intact, except for some deformity at the knee. Neurological examination showed a loss of muscle and nervous function on the left. There were no focal or lateralizing signs in the cranial nerves, but the veteran had markedly diminished sensory function on the left. Diagnoses included polio with left-sided hemiparesis, post-polio syndrome with progressive weakness, and probable mild to moderate COPD. Treatment records from Dr. Rasmussen, dated at various intervals during 1995, indicate that the veteran complained of shortness of breath and a marked cough. Examination of the chest and heart was regular, as were an EKG and chest x- ray. There was no evidence of emphysema. In February 1995, he was diagnosed with viral bronchitis. A March 1996 treatment note from Dr. Rasmussen indicates that the veteran was found to have significant reflux esophagitis and some reactive airway disease due to inhalation of acid contents at night. An April 1997 treatment note from Dr. Rasmussen states that the veteran complained of left ankle pain, which was found to be related due to hemiparesis from post-polio syndrome. An August 1997 medical opinion report from R. H. Bodenbender, M.D. and C. N. Bash, M.D., of Paralyzed Veterans of America, is also of record. The report states that the veteran's September 1954 diagnosis of poliomyelitis involving the left leg was within 75 days after his June 23, 1954 discharge physical examination. The report also states that the "Mandells Principles and Practices of Infectious Diseases textbook" found that the incubation period for poliomyelitis was 5 to 35 days, measured from contact until system reaction (i.e., sore throat) which is followed by the prodrome period of 8 to 36 days, until the onset of paralysis. Drs. Bodenbender and Bash concluded that the time period from presumed contact until the onset of paralysis was 16 to 71 days, and that it was "very likely that the veteran contacted [sic] polio during his time in service." April and May 1998 treatment notes from Dr. Rasmussen state that the veteran complained of increased shortness of breath and increased sputum related to his COPD. His lungs had good breath sounds, without rales or rhonchi. Dr. Rasmussen opined that the veteran had increase in his bronchitis. A May 1998 letter from R. H. Rasmussen, M.D. states that, "[b]ased upon the history of smoking as related . . . by the veteran, it is as likely as not that the veteran became addicted to nicotine while in the service . . . . [and that] it is as likely as not that the continued smoking caused the veteran's chronic obstructive pulmonary disease." A September 1998 medical record from D. Y. Rawson, M.D. states that the veteran had complaints of shortness of breath, sputum, and a significant cough. The veteran related a history of smoking a half pack of cigarettes per day from age 20 to 1990, a 40 pack-year of smoking. A past history of polio and migraine headaches was noted. Physical examination was negative for dullness to percussion, but there were reduced breath sounds bilaterally and a prolonged expiratory phase. There was moderate wheezing. A chest x-ray showed evidence of COPD, without acute infiltrates. His heart size was normal. Spirometry testing showed a severe obstruction to the veteran's airflow. The impressions were COPD with severe obstruction to airflow, hypoxemia, and emphysema with some bullae in the upper lobes and status-post polio affecting the left leg. Follow-up records from Dr. Rawson, dated in October 1998 through October 2001 indicate that the veteran had a moderate to severe obstruction of airflow, improved hypoxemia due to medication, and emphysema with bullae in the upper lobes, as well as status-post polio affecting his left leg. The diagnosis was moderate to severe COPD. Dr. Rawson noted that the veteran's COPD improved with medication. A November 1998 treatment record from Dr. Rasmussen states that a chest x-ray showed significant flattening of the veteran's diaphragms and hyperaeration of his lungs. There was no evidence of pulmonary edema or effusion and his heart was not enlarged. The assessment was COPD. A May 2000 letter from Dr. Rasmussen indicates that the veteran reported that he did not feel "completely well" prior to his discharge from service, and that his wife reported that the veteran would fall asleep easily during July and August 1954. The veteran also reported that he had a sore throat, severe headaches, and fatigue between his June 26, 1954 discharge from service and his entry into college in the fall, and that he had muscle spasms, with low back and leg pain in July 1954. The veteran's wife also reported that he saw a chiropractor on September 9th or 10th due to back and leg pain, followed by a visit to a family doctor on the 12th, and a visit to the hospital on the 13th of September, which resulted in the diagnosis of polio. Dr. Rasmussen acknowledged that 46 years after the veteran's diagnosis, it was "impossible to say with certainty when the first prodromal symptoms of the [veteran's] polio occurred," but that he felt that the veteran's sore throat, headaches, weakness, lethargy, and back and leg pain prior to his diagnosis were "as likely as not to have been symptoms of poliomyelitis prior to a diagnosis." He concluded that the veteran "likely as not contracted poliomyelitis within the 71 day time period immediately after his discharge or sooner." A May 2000 letter from a VA physician indicates that the veteran provided his own medical history regarding the period from his discharge from service to his diagnosis of polio. The VA physician reiterated the opinion of Dr. Rasmussen in its entirety, acknowledging that 46 years after the veteran's diagnosis, it was "impossible to say with certainty when the first symptoms of the [veteran's] polio occurred," but that he felt that the veteran's sore throat, headaches, weakness, lethargy, and back and leg pain prior to his diagnosis were "as likely as not to have been symptoms of poliomyelitis prior to a diagnosis." He concluded that the veteran "likely as not contracted poliomyelitis within the 71 day time period immediately after his discharge or sooner." A September 2000 report from S. K. Hata, M.D. of Black Hills Neurology states that the veteran reported that he was discharged from service in June 1954 and diagnosed with polio in September 1954. He also reported that around the time of his discharge, he felt very sleepy and that his wife told him that he had myoclonic jerks of the legs. He also related that he had low back problems and malaise at the time. A history of COPD was noted, as was a history of smoking a pack of cigarettes per day until 1990. In addition, a history of snoring and sleep apnea was noted. Neurological examination showed normal mental status and cranial nerves. There was atrophy of all the muscles of his left leg, with absent or decreased muscle strength. There was normal muscle strength of the right leg. Coordination and muscle tone were normal in the upper extremities. Left leg reflexes were absent, but all other reflexes were brisk. Dr. Hata indicated that the veteran provided his own medical history. He also indicated that the veteran's post-polio syndrome was due to anterior horn cell disease, based on the veteran's diagnosis of polio involving the lumbar cord. The current diagnosis was old polio with atrophy of the left leg, due to polio. In October 2000, a VA medical opinion was obtained. According to the report, the entire claims file was reviewed, including the aforementioned May 2000 letters, and the August 1997 statement from Drs. Bodenbender and Bash. In addition, a specialist in infectious diseases was consulted, as were several medical texts. The examiner stated that Harrison's Principles of Internal Medicine, 14th Edition, 1998, listed the incubation period for poliomyelitis as 3 to 6 days with symptoms of minor illness, followed by a period of aseptic meningitis for several days, and then one or two days later, a fever and paralysis, with a maximum of 14 days from incubation period to paralysis. The examiner also stated that Infectious Disease in Emergency Medicine, 2nd Edition, 1997, listed an incubation period of 4 to 10 days, followed by a prodromal period of 2 to 5 days, followed by muscle weakness and tenderness in those patients who develop paralysis, with a maximum period of 15 days from incubation to the onset of severe symptoms. Likewise, Principles of Neurology, 6th Edition, 1997, listed the incubation period of one to three weeks, followed by 3 to 4 days of prodromal illness, and then the development of back pain and stiffness, with a rapid development of weakness and maximum severity would occur within 48 hours. The maximum period from incubation to onset of muscle weakness would be 30 days. The examiner further noted that the veteran was discharged from the military on June 26, 1954 and was diagnosed with acute poliomyelitis on September 13, 1954, following visits to a chiropractor on September 11th and his family doctor on September 12th for back pain secondary to football practice. The VA medical record from September 1954 reported that the veteran first became ill on the 10th of September, first developed a fever on the 12th of September, and first developed paralysis on September 14th. She also noted that the veteran and his family members reported, in statements dated in 1962, that he was fatigued after his military service, and that the veteran's son was born on July [redacted], 1954. She opined that "one could surmise that the reported fatigue could [have been] due to having a newborn in the household." In addition, the examiner noted that there was no medical evidence of prodromal symptoms prior to September 10th and that Drs. Bodenbender and Bash found that the time period from exposure to paralysis could be from 16 to 71 days. The examiner again noted that the earliest possible date for the onset of paralysis was September 13th (as the records from September 12th were negative for findings of paralysis), which was 78 days after the veteran's discharge from service. She opined that "71 days would be considered a very long interval for the onset of paralysis to develop after exposure," particularly since the sources she found cited much shorter periods. She further opined that, even if the 71-day period was utilized, the medical records indicated that the veteran's paralysis occurred after that 71 day time period. The examiner then concluded, in consultation with the infectious diseases specialist, that "there is no evidence in the medical record to indicate that the [veteran] contracted polio within 71 days of discharge from the service. Additionally, the 71 day time interval is longer than is commonly felt to be the interval until [the] onset of paralysis in acute [infectious] poliomyelitis." She noted that the May 2000 statements did not include any medical evidence supporting their contentions, and that it was her "conclusion that this [veteran] did not contract polio while on active duty or within 71 days following discharge." In a November 2000 addendum, the VA examining physician reported on another source regarding the incubation period for poliomyelitis, the Principles and Practice of Infectious Diseases, by Douglas Mandell. This text indicated that the period of onset of major illness of poliomyelitis peaked 11 days after exposure, and that no new cases are seen after 18 days following the exposure. The examining physician stated that this text confirmed that polio had a short incubation period, and that the text also supported her opinion that 71 days was the incorrect interval to use when considering the incubation period of polio. She further noted that the Mandell text cited by Drs. Bodenbender and Bash was the same Mandell text she cited to, and that she was unable to find any reference to a 16 to 71 day time period between presumed contact and the onset of paralysis. She concluded that "[t]here [was] no evidence to indicate that [the veteran's] polio was contracted while on active duty or [was] related to his military service." A copy of the relevant text, by Douglas Mandell, was attached. In March 2001, the RO received a copy of a General Information Data Form from an unnamed provider. The veteran again reported that he saw a chiropractor in July 1954 and September 1954 due to pain and stiffness in the back, legs, and neck; that he had fatigue, headaches, sore throats, and muscle spasms; and a diagnosis of polio on September 13th, 1954. In May 2001, the veteran's wife submitted a copy of their son's baby book, which showed that the veteran was "sick from football practice and [could] hardly walk . . . ." on September 4th; that the veteran saw a chiropractor on September 10th; that the veteran saw a doctor at a clinic on September 11th; that a physician paid a house call to the veteran on September 12th; and that the veteran was diagnosed with polio on September 13th. Contemporaneously, the veteran's wife submitted a statement indicating that the veteran had pain and stiffness of his back, neck, and legs 4 days after his discharge from service, and first saw a chiropractor on July 6th, 1954. She also reported that the veteran had severe headaches, sore throats, and muscle spasms, and would fall asleep while in the midst of a conversation. She stated that the veteran had problems walking on September 4th, saw a chiropractor on September 10th, saw a clinic physician on September 11th, and was diagnosed with poliomyelitis on September 13th. In June 2001, the veteran's representative submitted an article with information about polio, from the internet, which stated that the poliovirus was found in the throat of patients during the first few days of the disease, and in the intestines for up to 17 weeks. The article also stated that the incubation period for polio is usually one to two weeks, but could go up to three weeks. The early symptoms of polio included fever, headaches, vomiting, sore throat, drowsiness, and pain and stiffness of the back and neck. In paralytic polio, weakness or paralysis usually began 1 to 7 days after the early symptoms of polio appear. In January 2002, the veteran's representative submitted an article with information about COPD, from the internet, which stated that COPD included emphysema and bronchitis. The article also stated that over 10 million Americans had COPD, and that many of the people with COPD were smokers or former smokers. Symptoms of and treatment methods for COPD were discussed. Causes of COPD were noted as including cigarette smoking and air pollution. Risk factors were noted as including gender, family history, and age. In November 2002, a VA neurological opinion was requested. The veteran's medical records were reviewed. The VA examiner noted that the "diagnosis issues over acute poliomyelitis" were "clear." The VA examiner further stated that, with regard to the discussion in the veteran's claims file as to different incubation periods and the relationship to the veteran's diagnosis of poliomyelitis, "there [did] not seem to be much of an issue with [regard to] the diagnosis [or] . . . to the time that [the veteran] was in active military service." I. Service connection for poliomyelitis The Board finds that the evidence of record does not establish service connection for poliomyelitis. The veteran's service medical records are negative for complaints, diagnosis, or treatment of poliomyelitis. The veteran's service medical records also showed normal neurological and musculoskeletal examinations. Additionally, there is also no evidence of poliomyelitis being manifest within 35 days after the veteran's separation from service. While the Board concedes that the veteran was likely treated by a physician in July 1954, the medical evidence is clearly negative for objective evidence of manifestations of poliomyelitis prior to September 1954, well beyond 35 days from the veteran's separation from service. See 38 C.F.R. § 3.379. In this regard, the Board notes that the medical evidence is devoid of treatment records from July 1954, and that there is no indication that the veteran had manifestations of his polio at that time. It is noteworthy that the first confirmed manifestations of polio occurred on September 10th, 1954 and that he was diagnosed with acute poliomyelitis on September 12th, 1954. In addition, VA physician's October 2000 opinion and November 2000 addendum clearly state that the veteran's poliomyelitis was not contracted while the veteran was on active duty and that the veteran's polio was unrelated to the veteran's military service. While the Board acknowledges the opinion of Drs. Bodenbender and Bash, which stated that the veteran contracted polio during service because the time period between exposure and the onset of paralysis was 16 to 71 days, the Board notes that none of the sources cited by the October 2000 VA examiner confirmed a maximum period in excess of 30 days, including the text cited by Drs. Bodenbender and Bash. In fact, the VA examiner found that the Mandell text did not refer to a 16 to 71 day time period, and that the veteran's paralysis had its onset no earlier than 78 days after his discharge. Likewise, the Board points out that the May 2000 opinions of Dr. Rasmussen and the VA physician were based on a history as provided by the veteran and his wife, and not on the veteran's actual treatment records. See Reonal v. Brown, 5 Vet. App. 458, 494-95 (1993) (the presumption of credibility is not found to "arise" or apply to a statement of a physician based upon an inaccurate factual premise or history as related by the veteran). The Board observes that there is no evidence that these providers reviewed the veteran's medical records from 1954 or any relevant medical texts regarding poliomyelitis. The fact that the veteran's own account of the etiology of his poliomyelitis was recorded in his medical records (i.e., that his poliomyelitis was contracted during his service) is not sufficient to support the claim. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of lay history, unenhanced by any additional medical comment, does not constitute competent medical evidence). See also Wood v. Derwinski, 1 Vet. App. 190, 192 (1991) (the Board is not required to accept unsubstantiated or ambiguous medical opinions as to the origin of the veteran's disorder). On the contrary, the VA examiner provided a clear rationale for her opinion as to why the veteran's poliomyelitis could not have been related to his service, and her opinion is far more persuasive and well reasoned than the conclusory statements of Drs. Rasmussen, Bodenbender, and Bash. Moreover, the November 2002 VA examiner concluded that the issues of exposure and diagnosis were resolved. Accordingly, the Board finds that the October 2000 VA examiner's opinion has significant probative value, as she based her opinion on review of the entire evidentiary record, consideration of the veteran's assertions and history, and a detailed review of relevant medical texts. The Board acknowledges the appellant's statements that his poliomyelitis was related to his service, but observes that his statements are insufficient to establish a causal link between his poliomyelitis and his service. As the appellant is a layperson, without medical training or expertise, his contentions, without more, do not constitute competent medical evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (holding that lay persons are not competent to offer medical opinions or evidence of causation, as it requires medical knowledge). Furthermore, while the veteran is competent to testify as to how he felt prior to the onset of his poliomyelitis, the medical evidence of record, as well as the medical texts provided by the VA examiner in October 2000, clearly indicate that the veteran's poliomyelitis could not have been symptomatic for the 71 to 78 day time period suggested by the veteran, and more significantly, fails to show that the veteran was treated in July 1954 for symptoms of poliomyelitis. See 38 C.F.R. § 3.303(b) (in order for a chronic disease to be service- connected, there must be manifestations sufficient to identify the disease entity and sufficient observation of the manifestations to establish chronicity, as isolated findings are insufficient to establish chronicity). See also Savage, supra (requiring medical evidence of chronicity and continuity of symptomatology). As such, there is simply no probative medical evidence of record to support the appellant's contentions. Therefore, the Board finds that the preponderance of the evidence weighs against the appellant's claims of service connection for poliomyelitis. As there is not an approximate balance of positive and negative evidence regarding the merits of the appellant's claims that would give rise to a reasonable doubt in favor of the appellant, the provisions of 38 U.S.C.A. § 5107(b), as amended, are not applicable, and the appeal is denied. II. Service connection for chronic obstructive pulmonary disease The Board finds that the preponderance of the evidence of record is against the veteran's claim of entitlement to service connection for COPD. As stated earlier, an award of service connection requires that the veteran have a disability as a result of a disease or injury incurred during active service. See 38 U.S.C.A. §§ 1110, 1131. The veteran's service medical records are negative for complaints, diagnosis, or treatment for COPD. Likewise, the veteran's separation examination showed a normal clinical examination of his lungs and chest, as well as a normal chest x-ray. The Board acknowledges the veteran's contention regarding his smoking in service and thereafter, and that his nicotine dependence caused his COPD. However, Congress has prohibited the grant of service connection for a disability on the basis that such disability resulted from a disease attributable to the use of tobacco products during the veteran's active service for claims filed after June 9, 1998. See 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300. Therefore, as a matter of law, any claims received by VA after June 9, 1998, are subject to this restriction. In the veteran's claim, received July 8, 1998, he asserted that he was entitled to service connection for nicotine dependence and for COPD as secondary to his nicotine dependence. While the Board acknowledges that the veteran was granted service connection for his nicotine dependence by the RO, and concedes that the veteran's COPD is likely due to the veteran's use of tobacco, the Board finds that the provisions of 38 U.S.C.A. § 1103 are dispositive of the theory of entitlement in this case and require that the claim be denied. In a case where the law, and not the evidence, is dispositive, the claim should be denied or the appeal to the Board should be terminated because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As the veteran's claim was received on July 8, 1998, after the effective date of 38 U.S.C.A. § 1103, the veteran's claim for service connection of his COPD, as secondary to his service- connected nicotine dependence is prohibited as a matter of law. See 38 C.F.R. § 3.300. Lastly, the Board also acknowledges the veteran's contention that his claim was submitted to his representative on June 3, 1998, and that this is sufficient to constitute a claim for service connection for his COPD. However, the veteran's representative did not submit the veteran's claim to the VA until July 1998. Under these facts and circumstances, the Board finds that the veteran's claim for service connection for COPD, as secondary to his service-connected nicotine dependence is barred under 38 U.S.C.A. § 1103, as it was received after June 9, 1998. See McColley v. West, 13 Vet. App. 553, 556-557 (2000) ("An award . . . is not contingent on the 'mailing' of the required evidence, but rather its 'receipt' by VA."). ORDER Service connection for poliomyelitis is denied. Service connection for chronic obstructive pulmonary disease is denied. ____________________________________________ WARREN W. RICE, JR. 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.