**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

No. 00-1889

[David Parker , Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Anthony J. Principi,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Decided January 28, 2002 )

*Daniel G. Krasnegor*, of Washington, D.C., was on the pleadings for the
appellant.

*John H. Thompson*, Acting General Counsel; *Ron Garvin*, Assistant
General Counsel; *Darryl A. Joe*, Acting Assistant General Counsel; and
*Barbara J. Finsness*, all of Washington, D.C., were on the pleading for
the appellee.

Before FARLEY, IVERS, and GREENE, *Judges*.

IVERS, *Judge*: The veteran appeals from the September 7, 2000, decision
of the Board of Veterans\' Appeals (BVA or Board) that: (1) Denied
entitlement to a rating in excess of 30% for service-connected
interstitial lung disease; (2) denied service connection for nicotine
dependence; and (3) determined that there was no clear and unmistakable
error (CUE) in the March 8, 1979, VA regional office (RO) decision that
denied service connection for the residuals of smoke inhalation. The
Court\'s jurisdiction to review this matter is established by 38 U.S.C.
§ 7252.

The Court notes that it is procedurally significant that the Secretary
filed a motion for a remand of all matters on appeal addressed herein.
The veteran responded, and agreed with the Secretary without argument as
to the increased rating and CUE matters. The veteran argued that the
Board should be reversed concerning his claim for service connection for
nicotine dependence. For the reasons contained herein, the Court will
deny the Secretary\'s motion for remand, and will vacate in part and
affirm in part the Board\'s September 2000 decision.

**I. FACTS**

Veteran Parker served in the Navy from August 1962 to December 1968, and
in the Air Force from November 1971 to November 1978. Record (R.) at
300, 547. His claim for service connection for residuals of smoke
inhalation, R. at 320, was denied by the RO in March 1979. R. at 342. He
did not appeal the decision and it became final. *See* R. at 531. In May
1987, the veteran submitted medical records and a written statement in
support of a claim for service connection for lung disease. R. at
391-448. In August 1990, the RO received a letter written by a private
physician who was treating the veteran for chronic obstructive pulmonary
disease (COPD). R. at 452-53. The physician stated that the COPD \"was
likely caused by cigarette smoking.\" *Id*.

In September 1996, the veteran filed a request for reevaluation of his
lung condition based on his understanding that his doctor had
identified, in August 1996, asbestos-related trauma to his lungs. R. at
456. The report from an October 1996 VA medical examination of the
veteran\'s respiratory system confirmed asbestos exposure, and noted
that the veteran had smoked two packs of cigarettes per day for 26
years, but the report drew no conclusions concerning nicotine
dependence. R. at 461-62. In December 1997, the RO granted service
connection for interstitial lung disease secondary to asbestos exposure
and assigned an initial disability rating of 30%, effective September
1996. R. at 665-67. The decision noted that the veteran had been
diagnosed with COPD secondary to smoking, with a mild element of
emphysema. *Id*.

In response to the December 1997 RO decision, the veteran amended his
claim to include service connection for COPD and for emphysema secondary
to in-service nicotine dependence, and alleged CUE in the March 1979 RO
decision. R. at 669. In January 1998, he submitted a statement that,
among other things, revealed that he had smoked briefly prior to
service. R. at 681. In February 1998, a private physician who had
examined the veteran opined that the veteran\'s \"obstructive airways
disease \[was\] related to smoking.\" R. at 691. The physician stated
further that the veteran \"was as likely as not to have been nicotine
dependent while in the military.\" *Id*.

In a June 1998 decision, the RO denied the veteran\'s claim for service
connection for nicotine dependance acquired in service, continued the
30% rating for interstitial lung disease, and found no CUE in the March
1979 rating decision. R. at 700. The veteran filed a Notice of
Disagreement (NOD) that same month, specifying that he disagreed with
each of the above determinations. R. at 707. With regard to nicotine
dependence, he testified at a personal hearing that he had smoked
minimally prior to service, and that he first \"got hooked\" on
cigarettes in service. R. at 727, 729-80. In October 1998, a VA lung
pulmonary examination resulted in diagnoses of COPD and asbestos
exposure with pleural plaques. R. at 745-46. In the examination report
and its addendum, the examining physician did not render an opinion
regarding the etiology of the COPD. R. at 746, 770.

In the decision on appeal, the Board concluded that: (1) The criteria
for an initial evaluation in excess of 30% for interstitial lung disease
had not been met; (2) the veteran did not incur nicotine dependence in
service; and (3) the March 1979 RO decision did not contain CUE. R. at
3. With respect to nicotine dependence, the Board noted that \"the
determination of whether a veteran is dependent on nicotine is a medical
issue.\" R. at 12. The Board provided its analysis concerning nicotine
dependence with respect to the veteran, observing that *no medical
evidence or opinion* in the record established he had become nicotine
dependent while in the service. R. at 11-12. The Board concluded that a
preponderance of the evidence, presumably the absence of medical
evidence in combination with the Board\'s own analysis, was against a
finding that the veteran became nicotine dependent while in the service.
*Id*.

**II. ANALYSIS**

A. Increased Rating for Interstitial Lung Disease

The Court reviews a Board determination concerning an initial disability
evaluation (or rating) under the \"clearly erroneous\" standard of
review. *Fenderson v. West*, 12 Vet.App. 119, 125-26 (1999). Factual
findings by the Board will not be overturned by this Court unless they
are \"clearly erroneous.\" 38 U.S.C. § 7261(a)(4); *Gilbert v.
Derwinski*, 1 Vet.App. 49, 53 (1990). Under the "clearly erroneous"
standard, \"if there is a \'plausible\' basis in the record for the
factual determinations of the BVA, even if this Court might not have
reached the same factual determinations, \[the Court\] cannot overturn
them.\" *Id.* at 53.

The Board's factual findings must be based on \"all evidence and
material of record.\" 38 U.S.C. § 7104(a). The Board must provide a
\"written statement of \[its\] findings and conclusions, and the reasons
or bases for those findings and conclusions, on all material issues of
fact and law presented on the record.\" 38 U.S.C. §7104(d)(1); *see
Gilbert*, 1 Vet.App. at 56-57. The Board's decision "must contain clear
analysis and succinct but complete explanations," that is, more than a
"bare conclusory statement." *Id*. at 57.

With respect to the veteran\'s interstitial lung disease, the Court
cannot determine whether the Board correctly determined that the 30%
rating was proper. This is so primarily because, as is explained in the
following section, the Board has failed to adequately consider the
veteran\'s claims related to nicotine dependence. The Board\'s
discussions of interstitial lung disease and of nicotine dependence each
refer to respiratory symptomatology, such as shortness of breath,
pulmonary disorders, and bronchial spasms. R. at 5, 10. Without more
clarification of the delineation between the veteran\'s asbestos-related
lung or respiratory ailments and his possible
nicotine-dependence-related lung or respiratory ailments, the Board\'s
decision lacks adequate reasons or bases for the Court to review its
conclusions. *Gilbert*, *supra*.

Furthermore, the **enactment of the Veterans Claims Assistance Act of
2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), an act
of Congress that** modified parts of subchapter I of chapter 51 **of
title 38, United States Code**, concerning VA claim processing, may
affect the development of evidence with respect to determination of the
appropriate rating for the veteran\'s interstitial lung disease. *See*
38 U.S.C. §§ 5103 and 5103A (West Supp. 2001) (addressing duties to
notify and assist those claiming veterans\' benefits). **It is not the
function of this Court to determine in the first instance which version
of a law is most favorable to a claimant. *Baker v. West*, 11 Vet.App.
163 (1998);** ***see generally Karnas v. Derwinski*, 1 Vet.App. 308,
312-13 (1991) (when law or regulation changes after claim has been
submitted, but before administrative or judicial appeal process has been
concluded, law that is most favorable to claimant must be applied).**
Accordingly, for inadequate reasons or bases and in light of the
provisions of the VCAA, a remand of this matter is required.

B. Nicotine Dependence

As noted in the previous section of this decision, the Court cannot
proceed with a review of an appeal from a Board decision if the Board\'s
analysis is incomplete or unclear. See *Gilbert*, 1 Vet.App. at 56-57;
38 U.S.C. §7104(d)(1). We cannot proceed to review the decision on
appeal because the Board failed to address medical evidence that the
veteran\'s COPD was likely a result of cigarette smoking, R. at 452-53,
and a VA medical examination that acknowledged cigarette smoking for 26
years without opining on the relationship of the smoking, if any, to the
veteran\'s lung disease, R. at 461-62.

**Moreover, t**he Court notes that the Board, in addressing the onset of
the veteran\'s nicotine dependence, should have analyzed the medical
evidence in the record regarding onset. Rather, the Board provided its
own medical analysis. *See* R. at 11; *see also* *ZN v. Brown*, 6
Vet.App. 183, 194-95 (1994). **Citing a precedential opinion of the VA
General Counsel, the Board stated that although the determination of
nicotine dependence is a medical issue, the determinination of when
nicotine dependence arose is a matter of fact. R. at 11. The Board then
concluded that the veteran did not develop nicotine dependence in
service. *Id*.**

**In the precedential opinion cited by the Board, the General Counsel
opined that determining whether nicotine dependence is the *proximate
cause* of a disability or death for which service connection is sought
is \"basically \[a determination\] of fact.\" VA Gen. Coun. Prec. 19-97
(May 13, 1997) (emphasis added). As to whether nicotine dependence first
occurred during service, a reasonable interpretation of paragraph 5 of
the precedential opinion is that onset is a medical issue. Paragraph 5
provides criteria from a medical diagnostic manual that are generally
used for diagnosing nicotine dependence, but it neither implies nor
instructs that an RO adjudicator should determine the onset of nicotine
dependence without supporting medical evidence. On remand, the Board
should consider whether additional medical evidence is required to
support a conclusion concerning the onset of the veteran\'s nicotine
dependence.**

**The veteran has argued that the Court should reverse the Board\'s
denial of service connection for the veteran\'s disabilities secondary
to nicotine dependence. The Court finds, however, that the evidence of
record does not establish that reversal is the appropriate remedy.**
This is not a case of uncontroverted evidence in favor of the veteran,
the sort of evidence that could result in a reversal. *See Hicks v.
Brown*, 8 Vet.App. 417, 422 (1995). Neither the Board nor the veteran
has pointed to conclusive evidence concerning the onset of the
veteran\'s nicotine dependence. The veteran has acknowledged that he
smoked for some period while he was in high school, before going into
the service. R. at 681, 729-30. A medical examiner concluded that it was
as likely as not that the veteran was nicotine dependent while in the
service. R. at 691. This evidence leaves open the question of the onset
of his nicotine dependence.

The veteran has also asserted that the Secretary has not rebutted the
presumption of soundness, which would afford him the presumption that he
was not nicotine dependent upon his entry into the service. This a novel
issue, and one that was not raised to the Board. The Court will not
address this argument since it should first be considered by the Board
on remand. *See* *Maggitt v. West*, 202 F.3d 1370, 1377-79 (Fed. Cir.
2000).

C. Clear and Unmistakable Error

When reviewing a decision by the Board as to whether an RO decision was
a result of CUE, this Court must determine whether the Board's decision
was "arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law," 38 U.S.C. § 7261(a)(3)(A), and whether the Board
stated adequate reasons or bases for its conclusions, 38 U.S.C. §
7104(d)(1). *See Livesay v. Principi*, 15 Vet.App. 165, 174 (2001) (en
banc); *Russell v. Principi*, 3 Vet.App. 310, 315 (1992) (en banc). CUE
is the kind of error, of fact or law, that, when called to the attention
of later reviewers, compels the conclusion, on which reasonable minds
could not differ, that the result would have been manifestly different
but for the error. *Livesay*, *supra*; *Fugo v. Brown*, 6 Vet.App. 40,
43 (1993) (valid CUE claim requires some degree of specificity as to
what the alleged error is). A determination concerning CUE is made based
on the facts and the law that existed at the time that the challenged
decision was made. *Livesay*, *supra*.

The Board reviewed the evidence that was before the RO at the time of
the March 1979 decision, including relevant service medical records and
a January 1979 VA medical examination report concerning the veteran\'s
respiratory system. R. at 14-15; *see* R. at 325 (no indication of
respiratory system abnormality), 333, 335-36 (normal lung volumes,
diffusion capacity, and arterial blood gasses). The Board also noted the
relevant law in effect in March 1979. R. at 13. The Board observed that
the veteran had set forth several arguments for a finding of CUE in the
RO decision, but had not explained what evidence was not before the RO,
or what law was not correctly applied to result in CUE. R. at 15.

The Board found that the veteran merely disagreed with how the facts
were weighed in 1979, and that he had not identified any error in the
RO\'s application of the law. Noting that it was not clear that the
veteran had even established a valid claim of CUE, *see Fugo*, *supra*,
the Board concluded that its review of the record and the law extant at
the time of the March 1979 RO decision showed no CUE in that decision.
R. at 16.

The Court holds that the Board\'s determination that the March 1979 RO
decision did not contain CUE was not "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,\" and that the
Board provided an adequate statement of reasons or bases for its
determination. *See Livesay* and *Russell*, both *supra*. Although the
Secretary filed a motion, with which the veteran agreed, seeking a
remand for readjudication of the CUE question in light of the enactment
of the VCAA, the basis for the motion has no merit following this
Court\'s decision in *Livesay*, *supra*. In *Livesay*, the Court found
that the VCAA is not applicable to CUE matters. *Livesay*, 15 Vet.App.
at 178-79.

**III. CONCLUSION**

Accordingly, upon consideration of the record and the pleadings filed
for this appeal, and for the reasons stated herein, the Secretary\'s
motion for remand is denied, and the part of the September 7, 2000, BVA
decision that determined that there was no CUE in the March 8, 1979, RO
decision is AFFIRMED. The parts of the September 2000 BVA decision that
denied entitlement to a rating in excess of 30% for service-connected
interstitial lung disease, and denied service connection for nicotine
dependence are VACATED, and those matters are REMANDED for
readjudication.