Citation Nr: 1029659	
Decision Date: 08/06/10    Archive Date: 08/16/10

DOCKET NO.  06-00 879	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for a chronic respiratory 
disorder, to include as a result of in-service asbestos exposure.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

T. Y. Hawkins, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1943 to February 
1946, and from October 1950 to June 1951.

This matter comes to the Board of Veterans' Appeals ("Board") 
on appeal from a July 2005 rating decision issued by the 
Department of Veterans Affairs ("VA") Regional Office ("RO") 
in Cleveland, Ohio, which denied the Veteran's claim of 
entitlement to service connection for pulmonary fibrosis, claimed 
as a result of in-service asbestos exposure.

In November 2008, the Board denied the Veteran's claim.

In May 2009, pursuant to a Joint Motion for Remand ("Joint 
Motion") filed by the VA Office of General Counsel and the 
appellant's representative, the United States Court of Appeals 
for Veterans Claims ("Court") vacated the Board's November 2008 
decision with respect to the aforementioned issue, and remanded 
the issue to the Board for compliance with the instructions 
contained in the Joint Motion.  

In October 2009, the Board remanded the Veteran's claim for 
further development, specifically to obtain additional medical 
treatment records and a VA examination and opinion concerning 
whether the Veteran's claimed disorder was related to service.  
In April 2010, the VA Appeals Management Center issued a 
Supplemental Statement of the Case, in which it continued to deny 
the Veteran's claim.  The claims folder has been returned to the 
Board for further appellate proceedings.

The Board notes that, although the Veteran's claim has previously 
been adjudicated as a claim of entitlement to service connection 
for pulmonary fibrosis, based on clinical findings during the 
most recent VA examination, the Board has recharacterized the 
Veteran's claim as one of entitlement to service connection for a 
chronic respiratory disorder.  As such, the issue has been 
broadened to encompass all theories of entitlement.  

The Veteran's case has been advanced on the Board's docket in 
accordance with 38 C.F.R. § 20.900(c) (2009).




FINDING OF FACT

The probative evidence of record is against finding that the 
Veteran has a chronic respiratory disorder that is related to 
military service, to include as a result of in-service asbestos 
exposure.


CONCLUSION OF LAW

A chronic respiratory disorder was neither incurred in nor 
aggravated by active duty service.  38 U.S.C.A. §§ 1110, 1153, 
5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 
3.303, 3.304 (2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 ("VCAA")

With respect to the Veteran's claim, VA has met all statutory and 
regulatory notice and duty to assist provisions.  See 38 U.S.C.A. 
§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 
2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009).

      a.) Duty to Notify

Under the VCAA, when VA receives a complete or substantially 
complete application for benefits, it is required to notify the 
claimant and his or her representative, if any, of any 
information and medical or lay evidence that is necessary to 
substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 
C.F.R. § 3.159(b) ( 2009); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 
(2004) ("Pelegrini II"), the Court held that VA must inform the 
claimant of any information and evidence not of record (1) that 
is necessary to substantiate the claim; (2) that VA will seek to 
provide; (3) that the claimant is expected to provide; and (4) 
request that the claimant provide any evidence in his or her 
possession that pertains to the claim.  Element (4), however, 
(regarding the requirement of requesting that the claimant 
provide any evidence in his possession that pertains to the 
claim), was eliminated by the Secretary during the course of this 
appeal.  See 73 Fed. Reg. 23353 (final rule eliminating fourth 
element notice as required under Pelegrini, effective May 30, 
2008). 

The VCAA notice requirements apply to all five elements of a 
service connection claim.  These are: (1) veteran status; (2) 
existence of a disability; (3) a connection between a veteran's 
service and the disability; (4) degree of disability; and (5) 
effective date of the disability.  See Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 
483 F.3d 1311 (Fed. Cir. 2007).  Of particular importance, in 
Dingess/Hartman, the Court held that the VCAA notice must include 
notice that a disability rating and an effective date of the 
award of benefits will be assigned if service connection was 
awarded.

VA essentially satisfied the notification requirements of the 
VCAA by means of an April 2005 letter.  The Veteran was informed 
of the types of evidence needed in order to substantiate his 
claim of entitlement to service connection, the division of 
responsibility between the appellant and VA for obtaining the 
required evidence, and was asked to provide any information or 
evidence in his possession that pertained to such claim.  38 
U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b).  The Board notes that a 
subsequent VCAA letter, dated March 2006, also satisfied the 
requirements of Dingess and informed the Veteran of how VA 
determines the disability rating and effective date elements of a 
claim.

      b.) Duty to Assist

The Board concludes that VA's duty to assist has been satisfied.  
The claims folder contains the Veteran's service treatment 
records, post-service VA and private treatment records, and VA 
examination reports dated July 2007 and March 2010.  
Additionally, the claims file contains the Veteran's statements 
in support of his claim.  The Veteran has not referenced any 
outstanding records that he wanted VA to obtain or that he felt 
were relevant to his claim that have not already been associated 
with the claims folder.
As will be discussed in greater detail below, during the July 
2007 VA examination, there was no clinical evidence that the 
Veteran had pulmonary fibrosis.  As a result, his claim was 
remanded by the Board and, in March 2010, he was afforded a 
second examination and opinion as to his claimed disorder.  A 
review of the March 2010 examination report shows that, in 
arriving at her conclusion that, although the Veteran had a 
chronic respiratory disorder, it was not related to service, the 
examiner reviewed the complete claims folder, including the 
Veteran's relevant service and post-service treatment records, as 
well as the July 2007 VA examination report, elicited from the 
Veteran his history of respiratory complaints and treatment, 
reviewed diagnostic test results and conducted a thorough 
physical examination.  Accordingly, the Board concludes that this 
examination report is adequate upon which to base a decision in 
this case.

In short, the Board has carefully considered the provisions of 
the VCAA in light of the record on appeal and, for the reasons 
expressed above, finds that the development of the claim has been 
consistent with the provisions of the VCAA.  The appellant has 
been provided every opportunity to submit evidence and argument 
in support of his claim and to respond to the VCAA notice.  The 
purpose behind the notice requirement has been satisfied because 
the appellant has been afforded a meaningful opportunity to 
participate effectively in the processing of his appealed claim.  
Accordingly, the Board will proceed to a decision on the merits.

II. Applicable Laws and Regulations

The Board has thoroughly reviewed all of the evidence in the 
Veteran's claims folder.  Although the Board has an obligation to 
provide reasons and bases supporting this decision, there is no 
need to discuss, in detail, the evidence submitted by the Veteran 
or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 
(Fed. Cir. 2000) (the Board must review the entire record, but 
does not have to discuss each piece of evidence).  The analysis 
below focuses on the most salient and relevant evidence and on 
what this evidence shows, or fails to show, on the claim.  The 
Veteran must not assume that the Board has overlooked pieces of 
evidence that are not explicitly discussed herein.  See 
Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires 
only that the Board address its reasons for rejecting evidence 
favorable to the Veteran).

The Board must assess the credibility and weight of all evidence, 
including the medical evidence, to determine its probative value, 
accounting for evidence which it finds to be persuasive or 
unpersuasive, and providing reasons for rejecting any evidence 
favorable to the claimant.  Equal weight is not accorded to each 
piece of evidence contained in the record; every item of evidence 
does not have the same probative value.  When all the evidence is 
assembled, VA is responsible for determining whether the evidence 
supports the claim or is in relative equipoise, with the Veteran 
prevailing in either event, or whether a preponderance of the 
evidence is against the claim, in which case, the claim is 
denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 
  
Under 38 U.S.C.A. § 1154(a), VA is also required to give "due 
consideration" to "all pertinent medical and lay evidence" in 
evaluating a claim for disability or death benefits.  In Jandreau 
v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United 
States Court of Appeals for the Federal Circuit ("Federal 
Circuit") held that "[l]ay evidence can be competent and 
sufficient to establish a diagnosis of a condition when (1) a 
layperson is competent to identify the medical condition, (2) the 
layperson is reporting a contemporaneous medical diagnosis, or 
(3), lay testimony describing symptoms at the time supports a 
later diagnosis by a medical professional." (footnote omitted).  
However, the Court has held that "[t]he type of evidence that 
will suffice to demonstrate entitlement to service connection, 
and the determination of whether lay evidence may be competent to 
satisfy any necessary evidentiary hurdles, depends on the type of 
disability claimed."  Barr v. Nicholson, 21 Vet. App. 303, 308 
(2007).

In order to establish a right to compensation for a present 
disability, a veteran must show:  "(1) the existence of a 
present disability; (2) the in-service incurrence or aggravation 
of a disease or injury; and (3) a causal relationship between the 
present disability and the disease or injury incurred or 
aggravated during service"- the so-called "nexus" 
requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 
2004).    
Alternatively, under 38 C.F.R. § 3.303(b), service connection may 
be awarded for a "chronic" condition when (1) a chronic disease 
manifests itself and is identified as such in service, or within 
the presumptive period under 38 C.F.R. § 3.307, and the veteran 
presently has the same condition; or (2) a disease manifests 
itself during service, or during the presumptive period, but is 
not identified until later, and there is a showing of continuity 
of related symptomatology after discharge, and medical evidence 
relates that symptomatology to the Veteran's present condition.  
Savage v. Gober, 10 Vet. App. 488, 495-98 (1997).

III.  Factual Analysis

The Veteran contends that he currently suffers from a chronic 
respiratory disorder as a result of asbestos exposure during 
active duty service.  Specifically, he claims that, while serving 
on naval ships as a gunner's mate, he was exposed to asbestos 
while sleeping under asbestos-wrapped pipes and through the 
wearing of asbestos gloves and an asbestos suit while working in 
fire control.

As an initial matter, 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.  VA has, however, 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.   

The VA Veteran's Benefits Administration Manual M21-1 ("VBA 
Manual M21-1"), Part VI, Chapter 7, Subchapter IV, § 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 VBA Manual M21-1, 
Part VI, Subchapter IV, § 7.21(a).
The applicable section of 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 the attention of the medical community 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 the fact that the exposure to asbestos may be 
brief (as little as a month or two) or indirect (bystander 
disease).  See VBA Manual M21-1, Part VI, Chapter 7, Subchapter 
IV, § 7.21 (b).  In Dyment v. West, 13 Vet. App. 141, 145 (1999), 
however, the Court found that provisions in former section 7.68 
(predecessor to § 7.21) of VBA Manual M21-1, Part VI, did not 
create a presumption of exposure to asbestos in such persons.  
Accordingly, medical-nexus evidence is required in claims for 
asbestos-related diseases related to alleged asbestos exposure in 
service.  See VAOGCPPREC 04-00.

The clinical diagnosis of asbestosis requires a history of 
exposure and radiographic evidence of parenchymal lung disease.  
Symptoms and signs may include dyspnea on exertion and end-
respiratory rales over the lower lobes.  Clubbing of the fingers 
occurs at late stages of the disease.  Pulmonary function 
impairment and cor pulmonale can be demonstrated by instrumental 
methods.  Compensatory emphysema may also be evident.  See VBA 
Manual M21-1, Part VI, § 7.21(c).

The Board will first address the issue of whether the Veteran had 
a probable exposure to asbestos, or an incurrence or aggravation 
of a respiratory disorder in service.

In this regard, the Board notes that the Veteran's service 
treatment records are negative for any complaints of, treatment 
for, or a diagnosis of a chronic respiratory disorder during 
service.  Review of his service personnel records indicates that, 
while his military occupational specialty (MOS) was that of a 
Gunner's Mate, the majority of his time in service was spend as 
an armed guard.  There is also no evidence in these records to 
substantiate the Veteran's claim that he was exposed to asbestos 
by sleeping under asbestos-wrapped pipes or through the wearing 
of asbestos suits or gloves.  Rather, these reports indicate that 
his asbestos exposure would have been minimal.

The claims folder reveals that, following service, the Veteran 
neither sought treatment for, nor was diagnosed with a 
respiratory disorder until approximately April 1986, when he was 
seen by Dr. J. Kreindler for complaints of wheezing.  He was 
diagnosed with allergic rhinitis and bronchial asthma.  In 
February 1992, he sought treatment again from Dr. Kreindler for 
complaints of increasing shortness of breath, at which time, he 
was diagnosed with asthma.  

Of record are VA Medical Center ("VAMC") treatment records 
dated October 1995 to March 2005, which show that he was seen for 
complaints of shortness of breath and wheezing.  Chest x-rays 
from October 1995 and August 1999 revealed essentially normal 
findings.  A pulmonary function test ("PFT") performed in 
December 2001 showed minimal changes of pulmonary fibrosis.

In May 2002, the Veteran was afforded a high resolution chest CT 
scan at a private hospital for complaints of shortness of breath 
and asbestos exposure.  Although a few small linear shadows were 
present in the subpleural distribution, the airways were noted as 
normal.  The results showed minimal changes of pulmonary 
fibrosis.  

In March 2005, pursuant to his initial claim of entitlement to 
service connection, the Veteran submitted a letter from Dr. F. 
Dumont, dated March 2005, in which Dr. Dumont stated that 
radiographs confirmed the diagnosis of pulmonary fibrosis, and 
the Veteran's prior exposure during service as a Gunner's Mate 
had contributed to his condition.  However, Dr. Dumont neither 
provided a basis for his conclusion, nor submitted any treatment 
reports or diagnostic test results to support his statement.

In July 2007, the Veteran was afforded a VA respiratory 
examination.  He told the examiner that he first began to 
experience problems with shortness of breath and wheezing in 1951 
after separation from service.  He said that, following service, 
he was employed as a letter carrier and had no occupational 
asbestos exposure.  He also reported that he had had a history of 
smoking two packs of cigarettes per day for more than 20 years 
prior to quitting in 1969.  A review of the then-current 
treatment records showed that he used a daily inhaled 
bronchodilator.  A high resolution CT scan revealed mild air 
trapping consistent with small airways disease.  However, there 
was no evidence of interstitial lung disease, asbestos pleural 
plaque or asbestosis.  Based on her review of the complete claims 
folder, as well as a complete physical examination and review of 
diagnostic test results, the examiner concluded that there was no 
objective evidence to support a diagnosis of pulmonary fibrosis.  
She further opined that it was less likely than not that the 
Veteran's claimed condition of pulmonary fibrosis was a result of 
asbestos exposure in service.  She explained that, in order to 
diagnose asbestosis, one must determine the presence of pulmonary 
fibrosis and determine whether the exposure has occurred with 
duration and intensity sufficient to put the person at risk for 
the disease.  She noted that, according to the Veteran's service 
records, he was an armed guard and Gunner's Mate, and that the 
service records indicated that the asbestos exposure in these 
positions was minimal.  She further noted that, although a PFT 
performed in conjunction with the VA examination indicated a 
restrictive component, it was mild and the findings could be 
associated with other causes.  

In March 2010, the Veteran was afforded a second VA respiratory 
examination.  The examiner noted that there was no history of 
restrictive disease and no condition underlying a restrictive 
disease.  A PFT revealed no evidence for an obstructive lung 
defect, although it was noted that there was significant response 
to a bronchodilator, as might be seen in a reversible airways 
disease, such as asthma.  The VA examiner diagnosed the Veteran 
with asthma with minimal evidence for pulmonary fibrosis, but no 
evidence of asbestosis.  However, she opined that these disorders 
were neither caused by, nor were a result of exposure to 
asbestos, as the Veteran only had minimal exposure to this 
substance during service.

IV.  Conclusion

It is the responsibility of the Board to weigh the evidence, 
including the medical evidence, to determine where to give credit 
and where to withhold the same, and in so doing, the Board may 
accept one medical opinion and reject others.  Evans v. West, 12 
Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 
433 (1995).  The Board is mindful that it cannot make its own 
independent medical determinations, and that it must have 
plausible reasons, based upon medical evidence in the record, for 
favoring one medical opinion over another.  Evans v. West; see 
also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin 
v. Derwinski, 1 Vet. App. 171 (1991).  Thus, the weight to be 
accorded the various items of evidence in this case must be 
determined by the quality of the evidence, and not necessarily by 
its quantity or source.

Based on a review of the complete evidence, the Board concludes 
that the probative evidence of record weighs against the 
Veteran's claim of entitlement to service connection for a 
chronic respiratory disorder, to include as a result of asbestos 
exposure in service.  

In this instance, two VA examiners reviewed the Veteran's service 
treatment and personnel records and found that, despite his 
claims of having been exposed to asbestos during service, these 
reports revealed that he had experienced only minimal asbestos 
exposure.  The examiners provided thorough, well-reasoned 
opinions based on medical literature that fully explained the 
reasons and bases for their conclusions.  Although both examiners 
considered the Veteran's personal statements concerning his 
reports of having been exposed to asbestos during service, they 
nonetheless concluded that his disorder was not related to 
service.

In addition to the opinions of the VA examiners, the Board has 
also considered the March 2005 statement from Dr. Dumont, who 
opined that the Veteran had pulmonary fibrosis confirmed by 
radiographs, and that his prior exposure during service as a 
Gunner's Mate had contributed to his condition.  

In this regard, the Board notes that whether a physician provides 
a basis for his or her medical opinion goes to the weight or 
credibility of the evidence in the adjudication of the merits.  
See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998).  
Other factors for assessing the probative value of a medical 
opinion are the physician's access to the claims folder and the 
thoroughness and detail of the opinion.  See Prejean v. West, 13 
Vet. App. 444, 448-49 (2000).  The weight of a medical opinion is 
diminished where that opinion is ambivalent, based on an 
inaccurate factual premise, based on an examination of limited 
scope, or where the basis for the opinion is not stated.  See 
Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 
Vet. App. 140 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 
(1993).  

In this case, the Board finds no basis for either Dr. Dumont's 
conclusion that the Veteran had pulmonary fibrosis, or that it 
was due to asbestos exposure during service.  As noted above, 
despite his statement, Dr. Dumont failed to provide a basis for 
his opinion, or to submit the medical treatment records that he 
purportedly relied upon in arriving at his conclusion.  Although 
the Board remanded the Veteran's claim in order to obtain such 
records, the only records Dr. Dumont provided were the results of 
a CT scan and a PFT, dated 2002 and 2004 respectively, which 
revealed essentially normal findings.  These reports showed 
findings that were inconsistent with his opinion stated in his 
letter.

In addition, the Board notes that while professional medical 
opinions must be considered, the Board is not bound to accept the 
opinions of physicians whose diagnoses or opinions are based on a 
medical history provided by a veteran.  See LeShore v. Brown, 8 
Vet. App. 406, 409 (1995) (the mere transcription of a claimant's 
statements regarding medical history does not transform the 
information into competent medical evidence merely because the 
transcriber happens to be a medical professional).  In this case, 
there is no evidence that Dr. Dumont ever reviewed the Veteran's 
service treatment or personnel records, which, as noted, show 
that his in-service asbestos exposure would have been minimal.  
As such, the Board finds that his opinion, apparently based 
primarily on the Veteran's description of his service history, to 
be of no probative value.

It should also be noted that following his military service, the 
first evidence of record that the Veteran sought treatment or was 
diagnosed with a respiratory disorder was in 1986, some 35 years 
after service.  A prolonged period without medical complaint can 
be considered, along with other factors concerning a claimant's 
health and medical treatment during and after military service, 
as evidence of whether an injury or a disease was incurred in 
service which resulted in any chronic or persistent disability.  
See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  The 
amount of time that passed between service and the first 
treatment or documented complaint of record of a respiratory 
disorder is evidence that weighs against the Veteran's claim.

In addition to the medical evidence, the Board has also 
considered the Veteran's claims that asbestos exposure caused his 
current respiratory disorder.  In this regard, the Board is 
cognizant that the Court has repeatedly held that a veteran is 
competent to describe symptoms of which he or she has first-hand 
knowledge.  See Charles v. Principi, 16 Vet. App. 370, 374-75 
(2002).  The Board finds shortness of breath and wheezing to be 
the type of symptoms that the Veteran is competent to describe.  
See Barr v Nicholson, 21 Vet. App. 303 (2007); see also Falzone 
v. Brown, 8 Vet. App. 398, 405 (1995).  As such, his assertions 
are entitled to some probative weight.  See Washington v. 
Nicholson, 19 Vet. App. 362, 368 (2005).

However, the Court has also held that a lay person is not 
competent to offer an opinion on a matter clearly requiring 
medical expertise, such as linking shortness of breath or asthma 
to minimal asbestos exposure some 50 years ago.  See Jandreau v. 
Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 
4 that a veteran is competent to provide a diagnosis of a simple 
condition such as a broken leg, but not competent to provide 
evidence as to more complex medical questions).  As a result, his 
assertions do not constitute competent medical evidence that his 
current respiratory disorder is the result of service.  Instead, 
for the reasons expressed above, the Board finds the opinions of 
the VA examiners to be the most probative evidence of record with 
regard to the relationship between the Veteran's current 
respiratory disorder and service, and ultimately outweighs his 
claims concerning asbestos exposure during service.     

Finally, the Board notes in passing that the medical evidence 
shows that the Veteran had a previous history of smoking two 
packs of cigarettes per day for more than 20 years.  Although the 
Veteran has not specifically asserted that his current 
respiratory disorder is the result of smoking (nor was this 
history cited by either of the VA examiners as the cause of his 
current respiratory condition), VA regulations mandate (for 
claims received by VA after June 9, 1998) that a disability will 
not be considered service connected on the basis that it resulted 
from injury or disease attributable to a veteran's use of tobacco 
products during service.  See 38 U.S.C.A. § 1103 (West 2002); 38 
C.F.R. § 3.300(a) (2009).

Accordingly, the Board concludes that the competent evidence of 
record is against the Veteran's claim of entitlement to service 
connection for a respiratory disorder, to include as a result of 
asbestos exposure in service.  In arriving at the decision to 
deny the claim, the Board has considered the applicability of the 
benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b).  
However, as there is not an approximate balance of evidence, that 
rule is not applicable in this case.  See generally Gilbert, 
supra; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).


ORDER

Entitlement to service connection for a chronic respiratory 
disorder, to include as a result of in-service asbestos exposure, 
is denied.



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs