Citation Nr: 0810724 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 99-08 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for a respiratory disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a veteran who served on active duty from October 1963 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1998 rating decision by the Providence, Rhode Island, Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2001, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The case was remanded for additional development in June 2003 and November 2005. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. § 5100 et seq.) became law. Regulations implementing the VCAA have been published. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA and the implementing regulations apply in the instant case. A review of the record shows the veteran was notified of the evidence not of record that was necessary to substantiate his claim and of which parties were expected to provide such evidence by correspondence dated in June 2001 and June 2003. During the pendency of this appeal, the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in May 2006. The revised VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. A medical examination or medical opinion is deemed to be necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability and indicates the claimed disability or symptoms may be associated with an event, injury, or disease during active service. See 38 C.F.R. § 3.159. In this case, the record shows that in response to the Board's November 2005 remand instructions the veteran was provided an examination by a board certified VA psychiatrist in December 2005. The examiner, however, qualified the opinion provided as to the likelihood of nicotine dependence beginning during service with statements including "[a]ccording to the veteran" and "[i]t seems" which implies that the conclusion was based upon a credibility determination rather an informed medical opinion. It is also significant to note that the examiner provided no discussion of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association, 4th Edition (DSM-IV) criteria for a diagnosis of nicotine dependence nor any indication as to how it was determined that the veteran met these criteria during active service. In a May 2006 supplemental statement of the case the AMC erroneously found the December 2005 examiner's opinion was not competent and declined further development as requested by the November 2005 remand. The United States Court of Appeals for Veterans Claims has held that a remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, additional development is required prior to appellate review. The Board notes that based upon the evidence of record the veteran should be considered competent to discuss his smoking habits before, during, and after service, but that a determination as to nicotine dependence is a medical determination. The veteran's claim that he began smoking cigarettes during service is supported by statements from members of his family. While the AMC may choose to address the probative weight of these lay statements and provide such information to the examiner, a medical opinion should not be considered incompetent merely because it is based upon disputed facts. The reliance upon disputed facts does not render an otherwise competent medical opinion incompetent. At a minimum, however, an adequate medical opinion as to a diagnosis of an acquired nicotine dependence during active service must identify the criteria required for a diagnosis and identify the specific evidence considered as meeting those criteria. If available, the December 2005 VA examiner should be requested to clarify the provided opinion or to conduct any additional examination necessary for an adequate medical opinion. As noted in the prior remand, a January 1996 private medical report questioned whether the veteran's respiratory disability might be attributable to his exposure to numerous inhalants and possible toxins in his work as a call fireman and that an October 1999 VA medical report recommended additional testing to check the veteran's Alpha 1 Antiprotease level. No further opinions as to these matters have been provided. If warranted, based upon an opinion as to nicotine dependence, additional medical evaluations as to these matters must be completed prior to appellate review. VA law provides that for service connection claims filed on or before June 9, 1998, direct service connection may be granted for disease or injury incurred or aggravated as a result of tobacco use during service. Where the evidence shows a likelihood that the illness had its origin in tobacco use after service and the veteran developed a nicotine dependence during service which led to continued tobacco after service, service connection may be established on a secondary basis under 38 C.F.R. § 3.310. VAOPGCPREC 2-93 (Jan. 19, 1993); 58 Fed. Reg. 42756 (1993). VA's General Counsel has held that the determination of whether a veteran is dependent on nicotine is a medical issue. The DSM-IV provides that the criteria for diagnosing substance dependence are generally to be applied in diagnosing nicotine dependence. In a case where, as a result of nicotine dependence acquired in service, a veteran continued to use tobacco products following service, the decision would have to be made whether the post-service use of tobacco products was the proximate cause of the disability or death upon which the claim is predicated. VAOPGCPREC 19- 97 (May 13, 1997); 62 Fed. Reg. 37954 (1997). A supervening cause of the disability or death, such as exposure to environmental toxins, etc., might constitute a supervening cause of the disability or death so as to preclude service connection. Situations such as when a nicotine-dependent individual might have full remission and then resume use of tobacco products should also be considered. Therefore, the questions which must be answered in resolving a claim for benefits for tobacco-related disability or death secondary to nicotine dependence are: (1) whether the veteran acquired a dependence on nicotine during service; and (2) whether nicotine dependence which arose during service may be considered the proximate cause of disability or death occurring after service. Accordingly, this claim is REMANDED for the following actions: 1. The veteran's claims file should be returned to the December 2005 VA psychiatrist for clarification of the provided opinion. Such clarification must include identification of the DSM-IV criteria required for a diagnosis and identification of the specific evidence considered as meeting those criteria. Any additional examinations or testing necessary for any adequate opinion should be performed. If the December 2005 examiner is unavailable, the veteran should be scheduled for a VA mental disorders examination, by a psychiatrist, for an opinion as to whether there is at least a 50 percent probability or greater that a nicotine dependence disorder was acquired during and continued after service. The report must identify the DSM-IV criteria required for a diagnosis and identify the specific evidence considered as meeting those criteria. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available for review of the case. A notation to the effect that this record review took place should be included in the report. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 2. If, and only if, a medical opinion is provided demonstrating at least a 50 percent probability or greater that a nicotine dependence disorder was acquired during and continued after service, the veteran should be scheduled for an additional respiratory disorders examination for an opinion as to whether any present respiratory disorder was incurred as a result of a supervening cause of disability, such as exposure to environmental toxins, etc. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available for review. A notation to the effect that this record review took place should be included in the report. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. After completion of the above and any additional development deemed necessary, the RO should review the issue on appeal. If any benefit sought remains denied, the veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ N. R. ROBIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).