Citation Nr: 18140027 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-40 993 DATE: October 2, 2018 ORDER Service connection for nicotine dependence is denied. REMANDED Service connection for a left hand disability is remanded. Service connection for a left hip disability is remanded. Service connection for right hip osteoarthritis is remanded. Service connection for presbyopia is remanded. Service connection for hearing loss is remanded. Service connection for hyperlipidemia is remanded. Service connection for an abnormal EKG is remanded. Service connection for gastroenteritis is remanded. Service connection for hemorrhoids is remanded. Service connection for renal insufficiency is remanded. Service connection for cellulitis is remanded. Service connection for scars on the back of the head, left hand, and lower chest is remanded. Service connection for a skin disability is remanded. An initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine is remanded. An initial rating in excess of 20 percent for right lower extremity radiculopathy is remanded. FINDING OF FACT VA received the Veteran’s claim for service connection for nicotine dependence on May 19, 2010. CONCLUSION OF LAW The Veteran’s claim for service connection for nicotine dependence lacks legal merit and entitlement under the law. 38 U.S.C. § 1103 (2012); Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air Force from May 1983 to May 2009. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for nicotine dependence VA received the Veteran’s claim for service connection for nicotine dependence on May 19, 2010. The United States Congress has passed legislation directly addressing Veterans’ claims seeking benefits for disability related to the use of tobacco. First, the Veterans Benefits Act of 1998, enacted as Subtitle B of Public Law No. 105-178, § 8202, 112 Stat. 492, amended 38 U.S.C. §§ 1110 and 1131, inserting language to prohibit the payment of compensation for disabilities attributable to a Veteran’s use of tobacco products in service. That legislation was approved on June 9, 1998, and was made effective for all claims filed thereafter. Then, in Public Law No. 105-206, § 9014, 112 Stat. 865, approved on July 22, 1998, the amendments made by section 8202 of the previous statute were rescinded. In lieu of amending 38 U.S.C. §§ 1110 and 1131, section 9014 created a new 38 U.S.C. § 1103, which provides, in pertinent part, as follows: Notwithstanding any other provision of law, a veteran’s disability or death shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service for purposes of this title on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during the veteran’s service. Thus, section 1103 bars an award of service connection for a disability arising after service based upon a finding that such disability was caused by tobacco use during service. By its terms, section 1103 applies only to claims filed after June 9, 1998 and does not affect Veterans and survivors currently receiving benefits or Veterans and survivors who filed claims on or before June 9, 1998. In this case, the Veteran’s claim for service connection for nicotine dependence was received on May 19, 2010. Thus, the claim was received after June 9, 1998. When the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Under the circumstances of this case, the law is dispositive and the Board has no alternative but to deny the claim for lack of entitlement under the law, given that the Veteran’s claim was filed after June 9, 1998. Therefore, the Veteran’s claim for service connection for nicotine dependence must be denied. 38 U.S.C. § 1103. REASONS FOR REMAND 1. Service connection for a left hand disability is remanded. 2. Service connection for a left hip disability is remanded. 3. Service connection for right hip osteoarthritis is remanded. 4. Service connection for presbyopia is remanded. 5. Service connection for hearing loss is remanded. 6. Service connection for hyperlipidemia is remanded. 7. Service connection for an abnormal EKG is remanded. 8. Service connection for gastroenteritis is remanded. 9. Service connection for hemorrhoids is remanded. 10. Service connection for renal insufficiency is remanded. 11. Service connection for cellulitis is remanded. 12. Service connection for scars on the back of the head left hand lower chest is remanded. 13. Service connection for a skin disability is remanded. 14. An initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine is remanded. 15. An initial rating in excess of 20 percent for right lower extremity radiculopathy is remanded. On his June 2011 notice of disagreement (NOD), the Veteran requested a hearing before a Decision Review Officer (DRO). While the August 2015 statement of the case reflects that a DRO reviewed the appeal, there is no indication that a hearing was held. Thus, the Veteran should be afforded the requested DRO hearing. Specific to the Veteran’s claims for service connection, the record reflects that the claims were denied because he failed to report to scheduled VA examinations. On his NOD, he asserted that he did not receive notice of the examinations. Although there is no indication that the notice of examinations was returned as undeliverable, the record does reflect that he moved sometime after filing his claims. To afford the Veteran every opportunity to substantiate his claims, he should be scheduled for new examinations for each of his claimed disabilities. The matters are REMANDED for the following actions: 1. Schedule the Veteran for the requested DRO hearing. 2. Ask the Veteran to submit any private medical records since the issuance of the August 2015 statement of the case, or an authorization form for any such records so that VA may request them on his behalf. Obtain all adequately identified records. 3. Obtain any VA treatment records since July 2014. 4. Schedule the Veteran for the appropriate VA examinations to determine the nature and etiology of each of his claimed disorders. Each examiner should review the claims file and note that review in the report. Each examiner should ensure that all indicated tests and studies are conducted. Each examiner should provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s disorder had its onset during active service or within one year thereafter, or is otherwise causally related to such service. Specific to presbyopia, the examiner should state whether it was subjected to any superimposed disease or injury during service. The examiner should discuss the service treatment records and Veteran’s statements regarding the history and chronicity of symptomatology. The examiner should provide a complete rationale for all conclusions. (Continued on the next page)   5. Then, readjudicate the claims. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. W. Kim, Counsel