Citation Nr: 0535072 Decision Date: 12/29/05 Archive Date: 01/10/06 DOCKET NO. 97-25 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a lung disorder, including as secondary to asbestos exposure. 2. Entitlement to service connection for the residuals of pneumonia. 3. Entitlement to service connection for a spot on the lung, including as secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Associate Counsel INTRODUCTION The veteran had active military service from August 1967 to April 1969. This case comes to the Board of Veterans' Appeals (Board) from March 1997, July 2000 and December 2001 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. These rating decisions denied the veteran's claims for entitlement to service connection for lung cancer, to include as secondary to Agent Orange exposure; for a lung disorder, to include as secondary to asbestos exposure; and for the residuals of pneumonia. In February 2002, the veteran provided testimony at a hearing before RO personnel. A transcript of this proceeding is associated with claims file. Subsequently, in a June 2002 supplemental statement of the case (SSOC), the RO recharacterized the claim for service connection for a lung condition, as separate claims for service connection for a lung disorder secondary to asbestosis exposure; and for a spot on the lung as the result of Agent Orange exposure or pneumonia. In March 2003, the veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) of the Board, and a transcript of this proceeding is of record. In February 2004, the Board denied the claim for service connection for lung cancer, to include as secondary to Agent Orange exposure. The Board then remanded the remaining claims to the RO (via the Appeals Management Center (AMC) in Washington, DC) to issue a letter informing the veteran of the Veterans Claims Assistance Act (VCAA) and its attendant duty to notify and assist provisions. The AMC sent the requested letter in December 2004 and, in April 2005, issued a supplemental statement of the case (SSOC) continuing the denial of the claims. The AMC then returned the case to the Board for further appellate review. FINDINGS OF FACT 1. The RO has fulfilled its duty to assist the veteran with obtaining evidence relevant to the claims on appeal, and has also notified him of the evidence needed to substantiate these claims, including apprising him of whose responsibility - his or VA's, it was for obtaining the supporting evidence. 2. The preponderance of the competent and persuasive evidence weighs against the claim for service connection for a lung disorder, to include on the basis of claimed asbestos exposure. 3. The veteran's one episode of pneumonia in service resolved within one to two weeks, with no further manifestations during service, and both June 2000 and December 2004 VA examiners have also concluded that the veteran does not currently experience any residuals of this occurrence of pneumonia in service. 4. There is no competent evidence indicating that the veteran has any condition involving a spot on the lung. CONCLUSIONS OF LAW 1. The veteran does not have any current lung disorder that was incurred or aggravated during service, including on the basis of asbestos exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.159, 3.303 (2005). 2. The residuals of pneumonia were not incurred or aggravated during service. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.159, 3.303 (2005). 3. The veteran does not have a spot on the lung that was incurred or aggravated during service or that may be presumed to have been so incurred, including on the basis of Agent Orange exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.159, 3.303, 3.307, 3.309 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126 (West 2002), became effective on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2005). The VCAA and implementing regulations eliminated the requirement of submitting a well-grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VCAA and implementing regulations also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. § 5103(a) (West 2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186- 87 (2002). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). This new "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). In this case, the veteran has received correspondence dated in February 2001, April 2004 and December 2004, which informed him of the VCAA and its relevance to the evidentiary development of the claims on appeal. The February 2001 letter concerned the claim for service connection for a lung disorder on the basis of asbestos exposure, and two the most recent letters addressed all three of the matters presently on appeal. These letters collectively informed the veteran with regard to the information and evidence not of record that was needed to substantiate his claims. The February 2001 letter specifically explained what type of evidence would be required in order to establish service connection on the basis of asbestos exposure; the December 2004 provided similar guidelines in reference to claims based upon Agent Orange exposure. The above letters also notified the claimant as to the information and evidence that VA would seek to provide, and that which he was expected to provide himself. See Quartuccio, 16 Vet. App. at 186-87. And the December 2004 letter included language requesting that the veteran provide the RO with any additional evidence in his possession that pertained to his claims -- the fourth and final "element" of VCAA notice. Moreover, the January 2002 statement of the case (SOC) and numerous SSOCs issued by the RO (dated from September 2000 up until April 2005) explained what evidence would be necessary to substantiate each of the veteran's claims. These documents included citation to the applicable rating criteria for evaluating each of the claims on appeal, in addition to 38 C.F.R. § 3.159, the regulation that sets forth the procedures by which VA will assist a veteran in the development of a claim for compensation benefits. Accordingly, based upon the information set forth in the above letters, the veteran has been provided satisfactory VCAA notice in accordance with 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b)(1) and Pelegrini II. In Pelegrini II, the Court held, among other things, that VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. Pelegrini II, 18 Vet. App. at 119-20. The first VCAA notice letter issued to the veteran preceded the December 2001 initial adjudication of his claim for service connection for a lung disorder, to include as secondary to asbestos exposure. So this letter was sent in a timely manner. The subsequent letters dated in April and December 2004 letters were not sent until after the adjudication of each of the claims on appeal. This clearly did not meet the standard for timely VCAA notice outlined in Pelegrini II. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Bear in mind, however, that the AMC provided the veteran with the April and December 2004 notice letters following the Board's February 2004 remand request for a more comprehensive notice letter, and that he had ample opportunity to respond to the letter prior to the AMC's issuance of the April 2005 SSOC continuing the denial of his claims. Also, the February 2004 remand itself identified the essential role of the VCAA duty to notify and assist with respect to development of the claims on appeal, including the opportunity for the veteran to submit any further relevant evidence he wanted considered. For these reasons, the Board finds that regardless of the timing of the subsequent VCAA notice letter, the veteran has been afforded "a meaningful opportunity to participate effectively in the processing of his claim by VA." See Mayfield, 19 Vet. App. at 128 (holding that section 5103(a) notice provided after initial RO decision can "essentially cure the error in the timing of notice" so as to "afford a claimant a meaningful opportunity to participate effectively in the processing of ... claim by VA ") (citing Pelegrini II, 18 Vet. App. at 122-24). Moreover, the record reflects that the RO has taken appropriate action to comply with the duty to assist the veteran with the development of his claims. In this respect, the RO has obtained the veteran's service medical records (SMRs), service personnel records, and VA treatment records from the Houston VA Medical Center (VAMC) and the Beaumont Outpatient Clinic in Beaumont, Texas. The RO has also arranged for him to undergo VA examination in connection with the claims on appeal. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). He has submitted various private medical records and personal statements. He has also provided testimony at a hearing before the undersigned VLJ, and a hearing before RO personnel in support of his claims. 38 C.F.R. § 20.700(a). In sum, the record reflects that the facts pertinent to the claims have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will address the merits of the claims. Factual Background The veteran's Form DD-214 reflects that he had active duty service from August 1967 to April 1969, to include a one-year period of service in the Republic of Vietnam. This form also lists the veteran's military occupational specialty (MOS) as a light weapons infantryman, and his receipt of the Combat Infantryman Badge, Bronze Star Medal, Air Medal, and Vietnam Service Medal. The veteran's service personnel records also show that his MOS was as a light weapons infantryman. There is no information that indicates that his in-service occupational duties involved exposure to asbestos. SMRs include the report of an August 1967 service entrance examination which does not reflect a history of pneumonia, or a respiratory condition. An April 1969 treatment report notes that the veteran was hospitalized for a period of 6 days, following symptoms of a frontal headache, back pain, aching in the arms, anorexia, chills, fever, weakness, and dizziness. Examination of the chest revealed harsh rhonchi in the right lower lung posteriorly, and an otherwise normal chest. The veteran's course of treatment involved antibiotics for possible pneumonia, and during the hospitalization he showed a gradual improvement of symptoms. The final diagnosis was right lower lobe pneumonia. The disposition was discharge to duty, to return for sick call three days later, and continued treatment through antibiotics. The veteran's separation examination in April 1969 does not include any notation as to pneumonia or any other lung disorder. The report of a September 1970 VA examination reflects that the veteran had no significant abnormalities of the respiratory system, or of the nose, sinuses, mouth, or throat. In the report of a November 1985 medical toxicology consultation, Dr. J. Pizzino indicated that the veteran was exposed to asbestos starting in 1972 when he became an electrician at an oil refinery. He continued to have exposure to materials containing asbestos through September 1985. The veteran complained of an occasional dry cough, and did not report having dyspnea or chest pain. Recent chest x- rays showed very minimal bilateral pleural thickening and minimal increase in the interstitial densities. These findings were not conclusive for asbestos-related disease. The physician's conclusion was that the veteran had secondary exposure to asbestos while working on insulators, and it was not expected that he would have significant asbestos-related pathology at that time since it had been only 13 years since the first exposure. It was recommended that the veteran return for evaluation within 5 years. In her December 1985 letter, Dr. J. Pizzino indicated that following an evaluation of the veteran, her diagnosis was occupational exposure to asbestos without any evidence of asbestos-related disease at that time. Treatment records from the Beaumont Community Based Outpatient Clinic dated in July 1989, reflect that the veteran presented with a productive cough, headaches, and a fever. A chest x-ray showed evidence of an infiltrate in the right upper lung field. The left lung was clear. The conclusion of the x-ray evaluation was segmental bronchopneumonia in the right lung. The veteran was placed on antibiotics and other prescription medications. Another chest x-ray conducted later that month revealed a complete clearing of bronchopneumonia in the right lung. The report of a February 1997 VA examination, for purposes of evaluating any condition related to claimed exposure to Agent Orange while in service, notes that the veteran reported a history of pneumonia in Vietnam, and that he had never had any lung disease. He indicated that he had never been suspected of having, or treated for, carcinoma of the lung. He stated that he had been found to have on a chest x-ray scars on the lung and liver, when he returned from Vietnam. The examiner noted in this regard that he had reviewed the veteran's medical records carefully, and that there was no information concerning the possibility of cancer of any kind in his records. The veteran also attributed conditions involving a burning sensation around the ears and on his arms to claimed Agent Orange exposure. A physical examination revealed that respirations were 12 to 14 per minute, with mild exertional dyspnea noted that was relieved with rest. The examiner stated that this respiratory difficulty was in his opinion related to obesity. Also noted was that the veteran's blood pressure was 170 (systolic) over 90 (diastolic). The lungs were clear without wheezes, rhonchi, or rales. The skin did not show any signs of acne, chloracne, or scars possibly related to healed acne. There were a few pin-head sized hyperpigmented benign appearing lesions on the right forearm. A gross neurological examination was nonfocal. The diagnosis was hypertension on medication; obesity; no history of carcinoma of the lung (with a chest x-ray pending); and skin changes as previously described that were not listed as residuals of exposure to Agent Orange. The report of a June 2000 medical opinion from a VA physician, notes that he had reviewed the veteran's claims file and report of a September 1999 VA general medical examination, in order to determine whether the veteran had any residual lung disability resulting from pneumonia in the service. The physician noted that the service records showed a one-week episode of pneumonia in service. A CT scan of the thorax in January 1998 showed no lung hila, mesiastinum or upper abdominal neoplasm, top normal heart size, and minimal pulmonary vascular prominence. During the September 1999 general medical examination, the veteran had stated that he had smoked for 37 years, and quit smoking in 1997. He also reported that he had been diagnosed with asbestosis in 1998. He indicated that following separation from service, he had worked as an electrician and a longshoreman, and had also been employed at a petrochemical plant from 1971 to 1984. The veteran denied that he had wheezing, however, he was prescribed a bronchodilator inhaler. He stated that he often became short of breath. It was noted that a chest x-ray in September 1999 had shown "prominent right hilum and increased right perihilar markings, rule out fibrosis -- no definite evidence of infiltrate." Also noted was that he was hospitalized in late-1999 for symptomatic bradycardia status post pacemaker placement, and on discharge he denied any complaints of chest pain or further dizziness or shortness of breath after pacemaker placement. Additionally, pulmonary function tests conducted in October 1999 showed forced vital capacity of 57 percent of predicted value, and forced expiratory volume at one second of 56 percent expected. The interpretation of these results had been that spirometry revealed no obstructive ventilatory effect, and that reduction in forced vital capacity was suggestive of mild-to-moderate restrictive defect. The VA physician then indicated that the veteran's current health conditions included diabetes mellitus, coronary disease, sick sinus syndrome, atrial fibrillation status post pacemaker insertion, and chronic bronchitis secondary to cigarette smoking. He then stated that in his medical opinion, the veteran had no residuals from pneumonia in service. He also expressed the viewpoint that it was at least as likely as not that the veteran had a history of asbestos exposure, and further, that it was also at least as likely as not that the veteran had a history of long-standing cigarette smoking. On examination in December 2001 primarily for diabetes mellitus and related conditions, it was noted during a review of the veteran's medical history, that he had been treated for pneumonia in service. The diagnosis was, in pertinent part, status post pneumonia in 1968 while on active duty, hospitalized. In a statement received in April 2002, the veteran related that while hospitalized in service for an episode of pneumonia, his treating physicians had discovered a spot on his lung. He further stated that while in Vietnam he had spent a considerable amount of time in areas where foliage had been sprayed with Agent Orange, and that he believed that exposure to herbicides may have caused the spot on his lung. At the May 2002 hearing before RO personnel, the veteran testified that in 1970, following his separation from military service, he had received a letter from the government informing him that he had a spot on his lung. He also alleged that he had exposure to asbestos during service, prior to any post-service occupational exposure, and that this had contributed to one or more present lung conditions. During the March 2003 Board hearing, the veteran again testified with regard to having received a letter from the government that referred to a spot on his lung. He reiterated that it was his belief that in-service asbestos and/or herbicide exposure was the cause of a present lung disorder. VA outpatient records from the Houston VAMC and Beaumont CBOC dated from April 2000 to November 2004, include an August 2000 physician's report that notes an assessment of possible chronic obstructive pulmonary disease (COPD), and a history of pneumonia in Vietnam. Subsequent records continue to note an assessment of possible COPD. Beginning in July 2001, the veteran's treatment records show on an intermittent basis an impression of allergic rhinitis. In the report of a December 2004 respiratory examination, the examiner initially observed that he had reviewed the veteran's entire claims folder. Regarding the veteran's employment history, it was noted that he was employed as a mechanic with the postal service. He had previously worked at a furniture company as a truck driver immediately following service; then from 1972 to 1984 as an electrician with an oil refinery, where he had been in close proximity to asbestos materials; and from 1984 to 1985 at a shipyard where he was again in proximity to asbestos. Subsequent employment did not involve asbestos exposure. The veteran reported with respect to his medical history, that he had been hospitalized in service in 1969 for community acquired pneumonia. He further stated that more recently, he had not received any specific treatment for lung or respiratory problems other than over-the-counter medications for the sinuses. He gave a negative history of tumors or malignancies. He stated that he would become short of breath after walking one-half mile, but could walk up three flights of stairs. He did not have a purulent productive cough, but occasionally had a cough that resulted in some mucous production. When he did become short of breath, he used an inhaler. He did not need to use oxygen, or a breathing machine. The examiner noted objectively that a recent chest x-ray showed that the heart size was in the upper limits of normal, a pacemaker was in place, and the lungs were clear. The impression of the radiologist had been that there were no significant changes and no active chest disease seen when this chest x-ray was compared with a prior chest x-ray from two years ago. The examiner also noted the results of various other chest x-rays over the period of the last decade. On physical examination, the veteran in no acute distress. Respirations were 18 and unlabored. The chest was symmetrical and the lungs were clear to auscultation bilaterally, there were no rales and no inspiratory or expiratory wheezing, and there was no egophony. The examiner noted as his assessment that this was a normal examination from a respiratory standpoint, and there was no pathology found, although a pulmonary function study was scheduled and had not been completed at the time of the examination. He next indicated that the veteran had asbestos exposure from 1972 to 1985, and this was substantiated by a medical toxicology consultant whose diagnosis in 1985 showed that there was occupational exposure to asbestos, without evidence of asbestos-related disease. Furthermore, the examiner observed that the veteran had right lower lobe community acquired pneumonia in April 1969, that was treated and resolved without residuals, and this was substantiated by military records showing that after a one-week episode of pneumonia he was discharged to duty, and the veteran's statement that he had recovered at that time. Also noted was that the veteran had another episode of community acquired pneumonia in July 1989, and it resolved without sequelae as evidenced by a chest x-ray later that month. He then indicated that there were other diagnoses pertaining to the veteran, but they were not related to the respiratory system, such as PTSD; diabetes mellitus type II, dermatophytosis of the nails, essential hypertension, and osteoarthritis. The examiner observed that the veteran's primary care physician had not put any type of respiratory problems such as COPD or asbestosis, or even asbestos exposure or asthma, on the veteran's problem list, although he had prescribed an inhaler and in one instance stated that there was questionable COPD. Governing Law and Regulations Service connection is granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Direct service connection may not be granted without medical evidence of a current disability, medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See, e.g., Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) ("A veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability . . ."). See also Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). A veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent (i.e., Agent Orange). 38 C.F.R. § 3.307(a)(6)(iii). Furthermore, the diseases listed at 38 C.F.R. § 3.309(e) shall, in turn, be presumptively service connected if this requirement is met, even though there is no record of such disease during service. These conditions are: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Additionally, as a result of amendments to 38 C.F.R. § 3.309(e), Type-II Diabetes Mellitus and chronic lymphocytic leukemia (CLL) have been added to the list of diseases for which presumptive service connection can be established. See 66 Fed. Reg. 23166 (May 8, 2001); 68 Fed. Reg. 59540 (October 16, 2003). The Secretary of VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994). See also, 61 Fed. Reg. 41442-41449 and 57586-57589 (1996). Notwithstanding the foregoing, the U.S. Court of Appeals for the Federal Circuit has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As such, the veteran may attempt to establish that exposure to Agent Orange in service was the direct cause of one or more currently claimed lung disorders, including the claimed spot on the right lung. As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, VA's Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases providing guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1, part VI, paragraph 7.21 (October 3, 1997). VA must adjudicate the veteran's claim for service connection for a lung disorder, as a residual of exposure to asbestos, under these guidelines. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). As to the M21-1, it provides that, when considering these types of claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service (see M21-1, Part III, par. 5.13(b) (October 3, 1997); M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)); determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure (Id.); and thereafter determine if there was a relationship between asbestos exposure and the currently claimed disease, keeping in mind the latency and exposure information found at M21-1, Part III, par. 5.13(a) (see M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)). The M21-1 provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1, Part VI, par. 7.21(a)(1) & (2). The M21-1 also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1, Part VI, par. 7.21(b)(1). In addition, the M21-1 notes that, during World War II, several million people employed in U.S. shipyards and U.S. Navy personnel were exposed to asbestos. See M21-1, Part VI, par. 7.21(b)(2). The M21-1 also provides the following medical guidance: in order for an appellant to have a clinical diagnosis of asbestosis the record must show a history of exposure and radiographic evidence of parenchymal lung disease (see M21- 1, Part VI, par. 7.21(c)); the latent period for asbestosis varies from 10 to 45 or more years between first exposure and development of disease (see M21-1, Part VI, par. 7.21(b)(2)); and exposure to asbestos may cause disease later on even when the exposure was brief (as little as a month or two) or indirect (bystander disease) (Id.). The Court has held that the M21-1 did not create a presumption of in-service exposure to asbestos for claimants that worked in one of the occupations that the M21-1 listed as having higher incidents of asbestos exposure. See Dyment v. West, 13 Vet. App. 141, 145 (1999); Also see Ennis v. Brown, 4 Vet. App. 438, vacated at 4 Vet. App. 523, new decision issued at 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993); Ashford v. Brown, 10 Vet. App. 120 (1997). Therefore, in claims for service connection for disability due to asbestos exposure, the appellant must first establish that the disease that caused or contributed to his disability was caused by events in service or an injury or disease incurred therein. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). In VAOPGCPREC 04-2000 (April 13, 2000), VA's General Counsel held, in relevant part, that: M21-1, Part VI, par. 7.21(a), (b), & (c) are not substantive in nature, but nonetheless need to be discussed by the Board in all decisions; the first three sentences of M21-1, Part VI, par. 7.21(d)(1) are substantive in nature and the development criteria it lays out must be followed by the agency of original jurisdiction; and M21-1, Part VI, par. 7.21 does not create a presumption of medical nexus between a current asbestos related disease and military service. In determining whether service connection is warranted, VA is responsible for considering both the positive and negative evidence. If the evidence, as a whole, is supportive or is in relative equipoise (i.e., about evenly balanced), then the veteran prevails. Conversely, if the preponderance of the evidence is negative, then service connection must be denied. See 38 C.F.R. § 3.102 (2005); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet App. 518, 519 (1996). See also Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001) ("[T]he VCAA simply restated what existed in section 5107 regarding the benefit-of-the-doubt doctrine" and does not mandate a discussion of all lay evidence of record.) Legal Analysis A. Lung Disorder The veteran has alleged that the claimed lung disability is related to his active military service, and has alleged at various stages during the appeal that this condition is related to exposure to asbestos in service. However, the Board has considered his medical history both during and since service, along with the opinions of various physicians addressing the nature and etiology of any present lung disorders, and finds that the medical evidence weighs against the claim for service connection. SMRs in this case include an April 1969 report of an approximate one-week hospitalization for right lower lobe pneumonia. At the time of discharge from inpatient treatment the veteran's condition had improved, and there is no further record of pneumonia or other respiratory ailments in service, including any notation on his separation examination report. For this reason, the veteran's pneumonia appears to represent a temporary and acute illness in service which resolved therein, and with no residual effects for the remainder of his active duty service. Significantly, there is nothing in the veteran's SMRs or personnel records suggesting that his occupational duties in service involved working in proximity to asbestos, or that he was exposed to asbestos during service. In November 1985, he underwent an evaluation by a private physician who determined that he had received occupational exposure to asbestos from 1972 to September 1985, as the direct result of working in proximity to hazardous materials. The physician did not identify a history of asbestos exposure prior to 1972, including when the veteran was on active duty in the military, and noted the absence of asbestos related disease at that time. The information provided by the veteran, himself, regarding contact with asbestos concerns only post- service occupational exposure, and does not refer to any specific identifiable instances of exposure while in service. Thus, the only history of asbestos exposure that has been established took place after military service. See generally 38 C.F.R. § 3.303(b) (chronicity and continuity of symptomatology of a disorder since service, is not established when clearly attributable to intercurrent causes). The next relevant event concerning respiratory history occurred in July 1989, when the veteran had another episode of right lung pneumonia. This episode appeared to have completely resolved within one month. There is no further indication of treatment for pneumonia. Thus, up to this point, the veteran's medical history is negative for both continuity of symptomatology of a lung disorder since military service, as well as for any objective record indicating exposure to asbestos during the time period in which he served. Turning to the more recent medical evidence, it is noted that the December 2004 respiratory examiner determined the veteran had an essentially normal respiratory system. The Board has still considered that various other treatment providers noted impressions of one or more current disabilities affecting the lungs, including a sinus condition, chronic bronchitis, and possible COPD. (The veteran previously claimed service connection for lung cancer, but as noted above, the Board denied this claim because there was no evidence of a current disability.) This notwithstanding, the competent and persuasive evidence tends to rule out a medical nexus between a recent lung disorder and any aspect of the veteran's military service. On the subject of the veteran's documented in-service episode of pneumonia, which is the only illness noted to have affected the lungs during service, a VA physician who conducted a comprehensive claims file review in June 2000 determined the veteran had no residuals from pneumonia in service. While the veteran was then noted to have chronic bronchitis, this was deemed to be secondary to cigarette smoking. And he has not alleged, nor does the competent evidence suggest, that his underlying history of smoking in itself is causally related to service. VA's Office of General Counsel has determined in VAOPGCPREC 19-97 (May 13, 1997), that in order to establish that a tobacco- related disability is secondary to nicotine dependence that arose from military service, it must be shown that that the veteran has nicotine dependence that may be considered a disease under VA law; that the veteran acquired a dependence on nicotine in service; and that dependence may be considered the proximate cause of disability resulting from the use of tobacco products by the veteran. Here, the veteran has not been shown to have nicotine dependence, and further, his history of smoking from all accounts clearly preceded service by a number of years -- so there is no indication that this case would fall into the limited category of instances where a disability may be established as service-connected as secondary to smoking. It equally deserves mentioning that current VA statutes and regulations expressly preclude granting disability benefits on the basis of smoking (i.e., use of tobacco-based products), for claims filed on and after June 9, 1998. See 38 U.S.C.A. §§ 1103, 1112, 1116 (West 2002). See also 38 C.F.R. § 3.300 (2003). Consequently, there clearly is no basis of entitlement even on this alternative theory. Note also that, in a more recent opinion, following a thorough physical examination, the December 2004 respiratory examiner also expressed the conclusion that the veteran's April 1969 episode of pneumonia had resolved within one to two weeks, and did not persist during service. He further noted that a subsequent instance of pneumonia in mid-1989 also resolved quickly, within a month, and there were no sequelae (residuals). Notably, the examiner's finding that there was no respiratory pathology found on examination (and that the veteran's own treating physicians had noted few if any respiratory ailments) in suggesting the absence of a current disability, by implication negates the presence of any ongoing lung disorder since the conclusion of military service. Moreover, each of the above opinions in addressing the veteran's prior history of occupational asbestos exposure, specifically identify only the post-service time period from 1972 to 1985 as the dates of the hazardous exposure in question, and do not otherwise indicate or suggest that the veteran ever came into contact with asbestos in service. In this regard, the former examiner stated that it was "at least as likely as not that the veteran had a history of asbestos exposure," but the only actual contact with asbestos identified in his discussion of the pertinent medical history, following a review of the veteran's claims file, was that beginning in 1972. For these reasons, the evidence is against the claimed relationship between a lung disorder and military service on any basis, including as the result of claimed asbestos exposure. B. Residuals of Pneumonia The claim for service connection for the residuals of pneumonia presents a substantially similar matter before the Board for consideration as the prior claim for a lung disorder, with the exceptions being that only pneumonia and not asbestos exposure is the alleged cause of the current disability, and that any identifiable residuals of pneumonia (and not solely a lung ailment) may be deemed service- connected. The determinative evidence on this claim likewise is based upon evidence and information addressed in the previous section. In this instance, the veteran appears to have some current conditions that could plausibly be related to prior pneumonia -- again, a sinus condition, chronic bronchitis, and possible COPD -- but the competent and probative evidence effectively negates any finding that the pneumonia noted in service caused any of the above conditions. As previously mentioned, the veteran's April 1969 episode of right lower lobe pneumonia appeared to resolve within a week, and did not continue to affect him during service. There was no recurrence of pneumonia or manifestation of any other pulmonary symptoms until nearly 20 years after service, when the veteran in July 1989 had a subsequent episode of right lower lobe pneumonia. However, once again, the veteran's pneumonia resolved relatively quickly, within one month. Perhaps most significantly, both the June 2000 and December 2004 VA physicians who have each reviewed the medical evidence associated with the veteran's claims file, determined that he does not currently suffer from the residuals of pneumonia. Bear in mind also that the December 2004 examiner observed that the veteran's post-service bout of community acquired pneumonia in July 1989 had quickly resolved, with no sequelae, thereby ruling out the possibility that this episode represented any dormant lung condition that may have reactivated and continued to affect the veteran. Accordingly, the medical evidence establishes that the veteran does not at present suffer from the residuals of his in-service bout of pneumonia. C. Spot on the Right Lung In the absence of any competent evidence of a current disability claimed as a spot on the right lung, the veteran's claim for service connection for the foregoing condition must be denied. The record reflects that on examination in September 1970, less than one-year after discharge from service, the veteran did not have any significant abnormalities of the respiratory system, or of the nose, sinuses, mouth, or throat. Although he has alleged that shortly after discharge from service he received a letter from the government informing him that a spot on his lungs had been detected, there is no objective record of such a letter. In any event, the more recent medical evidence since then does not show the claimed spot on the right lung. The veteran in July 1989 underwent an x-ray evaluation that showed evidence of an infiltrate in the right upper lung field, associated with bronchopneumonia; however, even if this is evidence of the condition claimed, another x-ray later that month showed that the problem had completely cleared. In this regard, the December 2004 examiner has also stated that the veteran's episode of pneumonia in 1989 soon resolved, without sequelae, thus confirming that the veteran has no present lung abnormalities in connection with this brief occurrence of pneumonia. Under VA case law, service connection may be granted only where a veteran has a current disability. See Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110 (formerly § 310). In the absence of proof of present disability there can be no valid claim."). See, too, Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). See, as well, Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). In such an instance where there is no evidence whatsoever of the claimed disability, there can be no valid claim for service connection. 38 U.S.C.A. § 1110; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Since the medical evidence does not establish a present disability involving a spot on the right lung, there is no need for further inquiry into the evidence since service, including any information related to the question of medical nexus. The veteran served in the Republic of Vietnam during the Vietnam era, and thus is presumed to have been exposed to Agent Orange (see 38 C.F.R. § 3.307(a)(6)(iii)) -- however, this fact does not support entitlement to service connection due to Agent Orange exposure, the primary basis on which the veteran has claimed service connection. There is no competent evidence of the condition claimed, regardless of the veteran's presumed herbicide exposure, and thus herbicide exposure during service need not be considered as the cause of any current disability. Notably, even if a diagnosis of a spot on the lung were established, this condition is not amongst those which may be presumed as due to herbicide exposure under 38 C.F.R. § 3.309(e). D. Conclusion The Board has taken into consideration the veteran's assertions in support of each of the claims on appeal. In this case, since the veteran's DD-214 and other service personnel records reflect participation in combat, his own statement will generally be accepted as credible as to a disease or injury allegedly incurred in or aggravated by service, if consistent with the circumstances or conditions of military service. See 38 C.F.R. § 1154(b) (West 2002). See also Arms v. West, 12 Vet. App. 188 (1999); Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). However, on the matter of claimed asbestos exposure (relevant to the claim for service connection for a lung disorder), the veteran has not set forth any allegation of exposure therein, and in any event, there is no indication that such exposure would have been consistent with the circumstances of experiences related to participation in combat. Additionally, regarding the medical issues that are determinative in the matters presently on appeal, given that the veteran is a layman, he is not competent to offer a diagnosis of a current disability, or a probative opinion etiologically linking a current claimed disability to any aspect of his military service (including either asbestos exposure, or his presumed exposure to Agent Orange). See Grottveit v. Brown, 5 Vet. App. 91,93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Accordingly, the veteran's claims for service connection for a lung disorder, to include as secondary to asbestos exposure, for the residuals of pneumonia, and for a spot on the lung, to include as secondary to Agent Orange exposure or pneumonia, must each be denied. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. But as the preponderance of the evidence is against the veteran's claims for service connection for a lung disorder and the residuals of pneumonia, and furthermore, the competent evidence is against the claim for service connection for a spot on the lung, this doctrine is not applicable in the instant appeal. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER The claim for service connection for a lung disorder, to include as secondary to asbestos exposure, is denied. The claim for service connection for residuals of pneumonia is denied. The claim for service connection for a spot on the lung, to include as secondary to Agent Orange exposure or pneumonia, is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs