Citation Nr: 1020953 Decision Date: 06/07/10 Archive Date: 06/21/10 DOCKET NO. 07-27 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a respiratory disorder, to include as secondary to exposure to asbestos and herbicides in service. REPRESENTATION Appellant represented by: Marine Corps League WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1971 to June 1973, and a period of other than honorable service from September 1973 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), in Huntington, West Virginia. The Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge in June 2009 in Huntington, West Virginia; a transcript of that hearing is associated with the claims file. At that time the Veteran submitted additional evidence along with a waiver of initial RO consideration. This case originally came before the Board in September 2009 when the Board remanded the case for further development. After that development was completed, the case was returned to the Board for further appellate review FINDINGS OF FACT 1. The Veteran is not shown to have been exposed to asbestos during service. 2. The Veteran is presumed to have been exposed to herbicides as a result of service in the Republic of Vietnam. 3. The competent evidence of record indicates that the Veteran's current respiratory disorders are not related to any injury or event in service, but instead are related to his chronic heavy smoking. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder, to include as secondary to exposure to asbestos and herbicides during service, have not been met. 38 U.S.C.A. §§ 1103, 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.300, 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) defines VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA are codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2009). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, preadjudication VCAA notice was provided in a December 2005 letter in connection with his claim, regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The Veteran was sent an April 2006 letter which additionally informed him how disability evaluations and effective dates are assigned, and the type evidence which impacts those determinations. See Dingess, supra. The claim was last adjudicated in January 2010. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). As to the VA's duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes the Veteran's service personnel and treatment records, VA treatment records and examination reports, private treatment records, Social Security Administration (SSA) records, the transcript from the June 2009 Travel Board hearing, and statements from the Veteran and his representative in support of his claim. The Board notes that this case was originally remanded in September 2009 for a VA examination on whether the Veteran's COPD was related to his military service, to include asbestos and herbicide exposure. The Veteran underwent a VA respiratory examination in December 2009, in which the examiner specifically addressed whether the Veteran's COPD or other respiratory diseases were related to service, including asbestos and herbicide exposure therein. Therefore, the Board finds that the AMC has fully complied with its remand order, and the Board may proceed to adjudicate upon the merits of this case. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument, as well as testifying before the undersigned Acting Veterans Law Judge in June 2009 and presenting for a VA examination in December 2009. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Legal Criteria Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2009). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2009). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). Further, the Board acknowledges that applicable VA law and regulations prohibit service connection for any disability resulting from injury or disease attributable to the use of tobacco products for any claims filed on or after June 9, 1998. 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300 (2009). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Background The Veteran's DD Form 214 indicates that the Veteran served on active duty from June 1971 to June 1973, with a Military Occupational Specialty (MOS) of Mortarman. The Veteran also served on active duty from September 1973 to August 1975. However, that second period resulted in a dishonorable discharge for VA purposes, as was found in a December 1975 adjudicative decision. Accordingly, only the Veteran's first period of service will be considered in the instant case. The Veteran's service personnel records further show that the Veteran was in the Republic of Vietnam from August 1972 to December 1972, as an ammo carrier and gunner. (Though he was awarded combat service for this period, the Veteran does not allege his current respiratory disorder is due to combat). On his August 2007 VA Form 9, the Veteran alleges asbestos exposure during a three day trip on a ship en route to Camp Fuji, Japan. However, this is not confirmed in the personnel records. The Veteran's service treatment records show multiple complaints of and treatment for acute and chronic bronchitis from June 1971 until he was discharged in June 1973. At the time the Veteran was diagnosed with chronic bronchitis in July 1971, it was noted he had a history of heavy cigarette smoking. The Veteran was hospitalized in February 1973 for his bronchitis, and it was noted that he was a three-pack-a- day smoker. The Board notes that the Veteran was told to discontinue smoking at that time. At his May 1973 separation examination, the Veteran was noted as having wheezes in his right lung. However, he was noted as normal a few months later at his reenlistment examination in September 1973. A treatment record from January 1975 shows that the Veteran had a history of bronchitis since June 1971, and a chest x-ray was taken which was normal. The Veteran's August 1975 separation examination demonstrated that the Veteran's lungs and chest were normal. The evidence of record demonstrates that post-service the Veteran was admitted into a private hospital in June 1987 with a history of hemoptysis. The Veteran was noted as being a chronic heavy smoker, smoking three packs a day. Chest x- rays taken were normal. He was released in July 1987, at which time he was diagnosed with hemoptysis secondary to acute bronchitis and COPD. The Veteran was again hospitalized in October 1990, at the same private hospital. The Veteran was again noted as being a chronic heavy smoker, who smoked three packs a day. The Veteran diagnosed with COPD upon discharge. The Veteran underwent a chest x-ray in November 1991, which revealed hyper-expanded lung fields, with mild interstitial changes. No infiltrates or effusion were shown. The Veteran was diagnosed with severe emphysema. The Veteran underwent another chest x-ray in September 1994, which revealed that the Veteran has extensive interstitial changes over both lung fields. He was diagnosed with severe interstitial lung disease. A third chest x-ray in February 1999 revealed no infiltrate, effusion or mass. There was no active cardiopulmonary disease shown at that time. VA and private treatment records from throughout the appeal period demonstrate that the Veteran was noted as having a history of COPD, and that he was treated throughout the appeal period for COPD and bronchitis. A private x-ray of the chest from December 2004 noted that the Veteran had a history of shortness of breath, and that the Veteran lungs were clear. There was no evidence of cardiopulmonary disease noted at that time. The Veteran had inpatient nebulizer treatment at a VA facility in June 2007. In his lay statements and testimony before the undersigned Acting Veterans Law Judge in the June 2009 Travel Board hearing, the Veteran contended that his respiratory disorder was a result of military service. He contended that it was due to asbestos as a result of his exposure during transport on a naval ship. He alternatively contends that his respiratory disorder is due to exposure to herbicides as a result of his service in the Republic of Vietnam. He contends that during the time he was stationed in the Republic of Vietnam in 1972 he was exposed to herbicides as well as other chemicals, such as napalm, particularly when rockets ignited an ammunition dump. The Veteran testified that he was not diagnosed with any respiratory disorder until the late 1980's. He further testified that his doctor from the 1980's told him that his smoking caused his respiratory disease and COPD. He further testified that he began smoking at age 15, and that he was currently smoking about 2 packs a day. Pursuant to the Board's remand instructions, the Veteran underwent a VA respiratory examination in December 2009. During this examination, the Veteran reported being treated and hospitalized in service for bronchitis. He reported that he was treated in the 1970's and afterwards for bronchitis and emphysema, at a private hospital. The Veteran reported beginning treatment with VA in 2003. He stated that he was exposed to asbestos when he was on a 3-day, 3-night ship transport from Okinawa, Japan to mainland Japan for cold weather training. He reported being in the Republic of Vietnam for 4 months where he did perimeter security of Bien Hoa Air Force Base. Following his tour of duty in the Republic of Vietnam, the Veteran reported that he was sent back to Parris Island where he worked in the post office until discharge from service. He reported that he was never told that he had asbestos-related lung disease. The examiner noted that the Veteran had been recently examined for a new pulmonary nodule and that so far he was stable. It was noted that the Veteran was prescribed an inhaled bronchodilator which he takes daily, as well as an inhaled anti-inflammatory, which he takes intermittently. The Veteran reported that those medications did help his breathing to some extent. The Veteran was noted as having a 100 pack-a-year smoking history and that he is still smoking a pack a day. The examiner compared two chest x-rays from June 2008 and April 2009. The examiner noted minimal interstitial changes, but no infiltrate or effusion. The Veteran was shown to have an unchanged non-calcified pulmonary nodule. The Veteran was shown to have nonspecific interstitial disease with no alveolar infiltrate. No acute disease was noted. Following pulmonary function testing, the Veteran was shown to have normal spirometry with no significant post-bronchodilator response. The examiner noted that the only diagnosis of a pulmonary condition in the VA treatment records was COPD. He noted, however, that the pulmonary function testing and x-rays taken did not support that diagnosis. The examiner, instead, diagnosed the Veteran with mild interstitial lung disease and chronic bronchitis. The examiner noted that there was no clear evidence of pulmonary asbestosis on his examination, CT scan or chest x-ray. The examiner noted that the Veteran's exposure to asbestos was for three days on a ship as a passenger in the military and would have been minimal. The examiner additionally conceded exposure to herbicides during service because the Veteran had service in the Republic of Vietnam. He noted, however, that there was no recognized relationship by VA between the two diagnoses he rendered and herbicides in service. Finally, the examiner further noted that the Veteran was treated and hospitalized in service for "bronchitis." He noted that the Veteran was smoking at that time, and that he had given a history of smoking since age 15. He noted pulmonary function tests given in 1971 and 1999, neither of which showed findings consistent with chronic obstructive lung disease, with no obstruction noted either time. The examiner noted that he believed that the Veteran had recurrent lung infections (bronchitis) that were related to smoking and "possibly from crowded conditions of the military." He further noted that it was well known that certain bacteria are more likely to cause lung infections in smokers and in the Veteran's case there is good documentation of these recurrent infections. The examiner concluded that the major risk factor for interstitial lung disease and chronic bronchitis was the Veteran's smoking history. Analysis In adjudicating the Veteran's claim, the Board will first consider his contention of asbestos exposure and whether presumptive service connection is available based on conceded herbicide exposure. The Board will then address service connection on a direct basis. Asbestos Exposure The Veteran's presentation hinges, to some degree, on his contention that he was exposed to asbestos in service. In essence, he contends that he was exposed to asbestos as a result of a 3-day, 3-night trip aboard a navy ship en route to Camp Fuji, Japan. See, e.g., the Veteran's August 2007 VA Form 9; December 2009 VA examination. The Board notes that there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumors, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus, persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. See VA O.G.C. Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). The Veteran's DD Form 214 shows that his Military Occupational Specialty (MOS) was Mortarman. The Veteran's MOS does not demonstrate that he worked with asbestos or that he worked in an occupational specialty noted as having exposure to asbestos. The Board thus has no cause for disbelieving that the Veteran traveled to Camp Fuji by ship. However, the Veteran has presented no evidence whatsoever that he was exposed to asbestos fibers thereby. The Veteran does not claim that he himself worked with any material which allegedly contained asbestos. His service medical records do not refer to any asbestos exposure, respiratory or pulmonary difficulties other than chronic bronchitis-which is noted prior to the Veteran's alleged exposure to any asbestos as a result of traveling on a navy ship. Nor is there any post- service evidence which suggest in-service asbestos exposure. To the contrary, the December 2009 VA examination report specifically noted that there was no clear evidence of pulmonary asbestosis on examination, CT scan or chest x-rays, and the Veteran's claimed exposure as a passenger on a ship for 3 days would have been minimal and not resulted in the Veteran's diagnosed respiratory diseases. Finally, the Veteran's claimed disabilities are not included in the list of disabilities associated with asbestos exposure in M21-1, Part VI, para 7.21(a). In short, the Veteran's contention that he was exposed to asbestos fibers while on board a ship for three days amounts to mere speculation of his part and is not substantiated by any objective evidence in the file. The Board accordingly finds that the Veteran was not exposed to asbestos in service. Herbicide Exposure A veteran who served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f) (West 2002). VA has stated that "service in the Republic of Vietnam" includes service on inland waterways. See 66 Fed. Reg. 23,166 (May 8, 2001); see also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (confirming VA's interpretation of § 3.307(a)(6)(iii) as requiring a servicemember's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption). In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116(a) (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2009). The following diseases shall be service connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied: chloracne or other acneform disease consistent with chloracne, Hodgkin's disease, type II diabetes mellitus, multiple myeloma, non- Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309(e) (2009). A presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated With Exposure to Certain Herbicide Agents, 68 Fed. Reg. 27,630 (May 20, 2003); see also Health Outcomes Not Associated With Exposure to Certain Herbicide Agents, 72 FR 32395-01 (June 12, 2007). The United States Court of Appeals for the Federal Circuit has held, however, that a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board notes that the Veteran's service personnel records demonstrate that the Veteran served in the Republic of Vietnam from August 1972 to December 1972, in Bien Hoa, Vietnam. The Board accordingly finds that the Veteran served in the Republic of Vietnam and therefore is presumed to have been exposed to herbicide agents as a result of his military service. See 38 U.S.C.A. § 1116(f); Haas, supra. However, the Board notes that the evidence of record does not demonstrate that the Veteran has any type of respiratory cancers, and his claimed respiratory diseases, including COPD, interstitial lung disease and chronic bronchitis, are not acknowledged as diseases for which the Veteran can be service connected presumptively as a result of military exposure to herbicides. See 38 C.F.R. § 3.309(e). Accordingly, presumptive service connection based on herbicide exposure is not available. Direct Service Connection The Veteran's current diagnoses are mild interstitial lung disease and chronic bronchitis. The Board notes that the Veteran was diagnosed with COPD in 1987, and that his VA treatment records showed several recurring diagnoses of COPD. However, the December 2009 VA examiner noted that the Veteran's chest x-rays, CT scans, and pulmonary function testing did not demonstrate COPD, and instead diagnosed the Veteran as having mild interstitial lung disease and chronic bronchitis. The VA examiner had his current examination of the Veteran and had reviewed the entire claims file before rendering his opinion as to what the Veteran's respiratory disease was. The Board finds his opinion to be more probative on this issue than older treatment records. Additionally, the Board notes that several x-rays from 1997 through 2004 repeatedly showed no cardiopulmonary disease. Thus, the Board finds that the preponderance of the evidence demonstrates that COPD is not a current diagnosis, but that the Veteran is currently diagnosed with mild interstitial lung disease and chronic bronchitis. The Board will further note that the Veteran was diagnosed with chronic bronchitis during military service, particularly in 1971. Post-service treatment records do not demonstrate chronicity of that disease following discharge from service. The Board notes that following the Veteran's second period of service, the evidence of record demonstrates that the Veteran's first treatment for any respiratory disease post service was in 1987. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim.). Additionally, the Veteran has not alleged he experienced continuous respiratory symptoms since service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (Fed. Cir. 2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection). Thus, the Board finds that there is no continuity of symptomatology demonstrated from service for his claimed respiratory disease. Furthermore, while the Board is cognizant that the Veteran relates his current respiratory diseases to his military service, the Board notes that he is not competent to make such a medical opinion because he lacks specialized knowledge, training and experience. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). The only competent medical evidence of record regarding etiology of the Veteran's current respiratory disorders is the December 2009 VA examiner's opinion which links the Veteran's respiratory diseases to his smoking. The Veteran testified that he has been smoking since the age 15 and that he was smoking in service. Throughout the record, the Veteran was shown to be an approximate three-pack-a-day smoker. The December 2009 VA examiner noted that the Veteran was exposed to herbicides during service and that he had chronic bronchitis in service. He noted that certain bacteria were more likely to cause lung infections in smokers, and that the Veteran had good documentation of recurrent infections. He concluded that the Veteran's mild interstitial lung disease and chronic bronchitis was due to his extensive smoking history. To the extent the examiner noted the Veteran's chronic bronchitis in service was "possibly" due to crowded conditions in the military, such opinion is couched in speculation and cannot support his claim. See generally Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In any event, the examiner's ultimate conclusion was that the major risk factor for the Veteran's respiratory disorders was smoking. Moreover, the Veteran testified in his June 2009 hearing that his private doctor from the 1980's also indicated that his respiratory disorders were related to his smoking. The Veteran is competent to relate what other doctors have told him as to the etiology of his claimed respiratory diseases. See Jandreau, supra. Here, the Veteran competently stated that other private doctors have additionally related his respiratory diseases to his heavy smoking history, as opposed to any military service event or injury, including any exposure to herbicides or other chemicals. It should also be noted that as far back as February 1973, the physicians who treated the Veteran during service were advising him to discontinue his smoking. In short, the preponderance of evidence demonstrates that while the Veteran was shown to have chronic bronchitis during military service, the Veteran was not treated for that condition for many years after discharge. Additionally, while the Veteran is presumed to have been exposed to herbicides and may have been exposed to other chemicals during military service, the competent medical evidence of record links his respiratory diseases to his long history of heavy cigarette smoking instead of to the any event or injury in service. Since the Veteran filed his claim after June 9, 1998, VA law and regulations do not permit service connection for disabilities due to his tobacco product use during service. See 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300. Accordingly, the Board must deny service connection for a respiratory disease (claimed as COPD), to include as secondary to exposure asbestos and herbicides during service. See 38 C.F.R. §§ 3.300, 3.303, 3.307, 3.309. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for a respiratory disorder, to include as secondary to exposure to asbestos and herbicides in service, is denied. ____________________________________________ S. BUSH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs