Citation Nr: 1102388 Decision Date: 01/20/11 Archive Date: 01/26/11 DOCKET NO. 07-16 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a respiratory disability other than chronic obstructive pulmonary disease/emphysema, to include chronic asthma and pulmonary disease due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from November 1955 to March 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's claim for chronic asthma. The current appeal stems from the Veteran's specific claim for service connection for chronic asthma, which was received by VA in December 2005. The Board notes at this juncture that the Veteran's prior claim of entitlement to service connection for chronic obstructive pulmonary disease (COPD) and emphysema related to his tobacco use was denied by VA, most recently in a July 2004 rating decision. In correspondence dated January 2006, which accompanying his chronic asthma claim, the Veteran expressly stated that he was seeking VA compensation only for this disease, and was not seeking to reopen a claim for service connection for emphysema: I (request) service connection for my chronic asthma that first occurred while I was on active duty. Although the symptomatology is the same as emphysema, the disease is definitely not the same. (I am aware that I was denied service connection for emphysema in 1994). Therefore I request VA rate my chronic asthma separately and without any consideration regarding emphysema. The Board therefore defines the current issue on appeal as entitlement to service connection for a respiratory disability other than COPD/emphysema, to include chronic asthma and pulmonary disease due to asbestos exposure. The Veteran and his spouse, accompanied by his representative, appeared at the RO to present oral testimony and evidence in support of his claim before a Decision Review Officer (DRO) in a hearing conducted in December 2006. The transcript of this hearing has been duly associated with the evidence for consideration. In May 2009, the Board remanded the claim to the RO, via the Appeals Management Center, for further evidentiary and appellate development. Following this development, the claim was denied in a July 2010 rating decision/supplemental statement of the case. The case was returned to the Board in October 2010 and the Veteran now continues his appeal. FINDINGS OF FACT A chronic respiratory disability other than COPD/emphysema, to include chronic asthma or asbestosis, did not have its onset during active military service. CONCLUSION OF LAW A chronic respiratory disability other than COPD/emphysema, to include chronic asthma or asbestosis, was not incurred and is not presumed to have been incurred in active duty. 38 U.S.C.A. § 1110, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to notify and assist The Board notes at the outset that, in accordance with the Veterans Claims Assistance Act of 2000 (VCAA), the VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the service connection claim on appeal, generally, the notice requirements of a service connection claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that the VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). During the course of the appeal, § 3.159(b) was revised and the requirement that the VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation. The service connection claim decided herein stems from the Veteran's application for VA compensation for a chronic respiratory disability other than emphysema, to include chronic asthma and asbestosis, which was filed in December 2005. VCAA notice letters addressing the applicability of the VCAA to the service connection claim at issue and of the VA's obligations to the Veteran in developing the claim (including claims based on asbestos exposure) were dispatched to the Veteran in January 2006, March 2006, and May 2009, which collectively address the issue on appeal and satisfy the above-described mandates, as well as the requirements that the Veteran be informed of how the VA calculates degree of disability and assigns an effective date for the disability, as prescribed in Dingess v. Nicholson, 19 Vet. App. 473 (2006). To the extent that there is any defect in the timing of the notice, as those notices issued after the June 2006 rating decision on appeal were followed by subsequent readjudications via several rating decisions/supplemental statements of the case, most recently in July 2010, any defective notice error is deemed to have been "cured" by these readjudications. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Furthermore, neither the Veteran nor his representative have made any assertion that there has been any defect in the timing or content of the VCAA notification letters associated with this claim. The VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). The VA informed the Veteran of its duty to assist in obtaining records and supportive evidence. In this regard, the Board observes that pursuant to actions taken by the RO in compliance with the instructions of the prior remand that occurred during the course of this appeal, the Veteran's service treatment records and relevant post-service VA and private medical records for the period spanning 1981 - 2010, as well as private nexus opinions provided by the Veteran himself, have been obtained and associated with the claims file. In any case, the Veteran has not indicated that there are any outstanding relevant post- service medical records or other pertinent evidence that must be considered in this current appeal with respect to the issue decided on the merits herein. The Veteran was also afforded VA examinations and nexus opinions in January 2007, October 2007, July 2009, and May 2010, which determined his current pulmonary diagnoses and specifically addressed the relationship between these diagnoses and military service. Furthermore, these opinions included adequate discussion of the opining examiner's clinical observations and a rationale to support these findings and conclusions within the context of the Veteran's relevant clinical history as contained within his claims file. Thus, the January 2007, October 2007, July 2009, and May 2010 nexus opinions and medical examinations are collectively deemed to be adequate for adjudication purposes for the matter at issue. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board also notes that in correspondence dated September 2009 and August 2010, the Veteran and his spouse challenges the veracity of the prior VA examiner's reports regarding the above examinations, particularly the July 2009 examination, generally contending that some statements appearing on the examination reports are, in the Veteran's opinion and recollection, false or incorrect. While the Board acknowledges that the Veteran's individual recollection of the events and circumstances surrounding his examinations may differ from what was reflected in the VA examiner's reports, the Board finds as a factual matter that the VA examination reports and opinions addressing the current issue on appeal do not appear to contain any obvious inconsistencies or inadequacies in their discussion of the pertinent facts of the case that would call into question the truthfulness of their author. Therefore, the Board finds no basis to remand the case for a new examination. Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of his service connection claim decided herein, and thus no additional assistance or notification is required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of this appeal. Entitlement to service connection for a chronic respiratory disability other than emphysema, to include chronic asthma or asbestosis. The Veteran contends that he currently suffers from a respiratory disability as a result of exposure to asbestos while serving aboard ships in naval service. His service records show that these vessels also included aircraft carriers. His service records show that he served as a clerk and was engaged in clerical duties throughout his entire period of military service. The Veteran's service treatment records confirm his service aboard several ships during his period of active duty in the United States Navy, from November 1955 to March 1980, including the USS Noa (DD-841). In November 1955, he reported a history of whooping cough. In January 1956, he reported a history of whooping cough and chronic cough. In February 1956, April 1957, and March 1958, he was treated for complaints relating to acute upper respiratory infections, which included a cold, a cough, a sore throat, and general malaise. In January 1959, he was treated for complaints of trouble breathing at night. Examination at the time revealed a few crackling rales in his left anterior chest and the impression was bronchitis. In January 1961, he was treated for acute bronchitis. In October 1961, he was treated for a cold and sore throat. In April 1963, he was treated for a sore throat and a cough that produced yellow sputum. In August 1964, he reported a history of whooping cough and chronic cough. In September and December 1964 and April and October 1966, he was treated aboard ship for a cold. During hospitalization in March 1971, the Veteran reported having a long history of a productive cough with scant yellow phlegm. In May 1974, he reported a history of having frequent colds, shortness of breath, and chronic cough. In September 1976, he reported a history of shortness of breath and pain or pressure in the chest. In February 1977, he was treated for an acute upper respiratory infection. In February 1980, he complained of having flu symptoms and a productive cough. At the time, he was noted to have a smoking habit with a consumption of two cigarette packs per day and was advised to discontinue smoking. On his March 1980 separation examination, the Veteran reported a history of sinusitis, hay fever, asthma, shortness of breath, pain or pressure in the chest, and chronic cough. Examination of his lungs and chest on separation was clinically normal, and his chest X-ray was within normal limits. Post-service medical records show a diagnosis of chronic bronchitis and suspect pulmonary emphysema associated with a very mild obstructive ventilatory defect on VA examination in May 1981. COPD secondary to tobacco abuse was assessed on March 1994 VA outpatient examination. April 1998 chest X-rays from private treatment sources revealed lines of fibrosis permanently affecting the right upper lobe, and the impression was COPD. June 1999 private pulmonary diagnostic studies noted a diagnosis of COPD and a two pack-per-day, 49-year-long cigarette smoking history, as well as a reported history of exposure to asbestos in service. On July 1999 examination by the Veteran's private physician, C.G., M.D., the Veteran presented a 10-year history of shortness of breath and a chronic cough that was described as a smoker's cough. He was noted at the time to be a one pack-per-day smoker, reduced from a high of three packs per day prior to an April 1998 myocardial infarction. He also reported having a history of exposure to asbestos aboard ships during over two decades of military service. Dr. C.G.'s impression was moderate COPD secondary to cigarette smoking. Private chest X-rays conducted in May 2000 revealed fibrotic and emphysematous changes in the Veteran's lungs. October 2002 private chest X- rays by G.H., M.D., revealed findings consistent with COPD, as well as interstitial fibrosis and scarring bilaterally. Findings obtained from private chest X-rays dated after July 2003 supported an impression of COPD. After a August 2003 examination by Dr. C.G., the impression was COPD with suggestion of an asthmatic component; when seen again in October 2003, the impression was mild to moderate COPD with an asthmatic component. After November 2003 VA outpatient examination, the impressions included asthma. After a January 2004 private examination, Dr. C.G.'s impression was moderate COPD with an asthmatic component, and the physician noted the Veteran's longstanding history of a chronic cough dating back to his military service, which she suspected represented a chronic bronchitic manifestation of COPD. In August 2005, Dr. C.G.'s impression was severe COPD. An October 2005 private CT scan of the Veteran's chest revealed extensive changes of bullous emphysema and mild bilateral bronchiectasis. In February 2006, Dr. C.G.'s impression was COPD which was predominantly emphysema. An August 2006 private CT scan revealed soft tissue node irregularity in the posterior aspect of the Veteran's right upper lobe with bronchiectasis in the left lower lobe. Severe COPD/emphysema was noted bilaterally. A December 2006 private CT scan revealed advanced changes of COPD and multiple bilateral pulmonary nodules. At a December 2006 DRO hearing, the Veteran testified that he experienced frequent upper respiratory problems during his long period of military service that he believed represented a diagnosis of chronic asthma whose onset began during active duty. He testified that on separation examination from active duty in 1980, a naval corpsman advised him that he had asthma and so the Veteran reported asthma in his medical history. The report of a January 2007 VA examination, which was conducted by a nurse-practitioner, shows that the Veteran's pertinent clinical history was reviewed and he was diagnosed with COPD/emphysema and asthma, which the nurse-practitioner opined were not caused by or a result of the Veteran's military service, noting that COPD with an asthmatic component was not diagnosed until 2003, and that the most likely cause of the COPD/emphysema was the Veteran's cigarette smoking. In March 2007, D.N., M.D., the Veteran's private treating physician and a specialist in pulmonary medicine, stated that he reviewed the Veteran's medical records showing a history of asthma dating back to early in his military career, and that these records offered information that he was having intermittent respiratory difficulties and was aware of a diagnosis of asthma on examinations in the military dating back as far as 1980. The physician stated that the Veteran clearly had episodes of shortness of breath and acute bronchitis in military service in the 1950s and early 1960s, and that he was still reporting respiratory difficulties at the time of his March 1980 separation examination. With consideration of the natural history of emphysema, Dr. D.N. opined that it was more than likely that the Veteran's respiratory disease was progressing during his over 20 years in military service. A May 2007 private CT scan of the Veteran's chest revealed severe, diffuse emphysema with superimposed pneumonia. Another CT scan in June 2007 revealed extensive emphysematous changes and mild interstitial fibrotic changes in the right upper lobe. The report of an October 2007 VA pulmonary examination, which was conducted by a nurse-practitioner and co-signed by an overseeing physician, shows that the Veteran's pertinent clinical history was reviewed and he was diagnosed with COPD/emphysema, which the nurse-practitioner opined were not caused by or a result of the Veteran's military service. The rationale for the opinion was that there was no documentation of diagnosis of, or treatment for COPD/emphysema in the Veteran's service treatment records, and that there was only a single episode of a self-reported history of asthma documented in these records, but unsupported by a formal diagnosis of asthma by a medical care provider during active duty. Treatment of bronchitis noted in service in January 1959 and January 1961 was only sporadic and episodic and most likely caused by his 2 - 3 pack per day cigarette smoking habit. A November 2007 private CT scan revealed chronic fibrotic changes in the Veteran's lungs, bilaterally, with reticular interstitial changes in the right mid-lung that were slightly more prominent than in the prior CT study. In a November 2007 statement, a service comrade attested that he served with the Veteran aboard the USS Noa (DD- 841) during the period from 1956 to 1960, and believed that the Veteran was exposed to asbestos and asbestos particles from shipboard pipe, duct, and conduit insulation. Private lay witness statements from the Veteran's spouse and fellow servicemen indicate, in pertinent part, that the Veteran was observed by these witnesses to have frequent colds and display symptoms of frequent coughing, shortness of breath, breathing difficulties, and use of a medicated inhaler during active duty. A March 2008 private CT scan revealed extensive chronic interstitial fibrosis of the Veteran's right upper lobe. A September 2008 CT scan revealed extensive fibrotic changes. The report of a July 2009 VA pulmonary examination, which was conducted by a nurse-practitioner and co-signed by an overseeing physician, shows that the Veteran's pertinent clinical history was reviewed and he was diagnosed with emphysema (categorized by the examiner as a obstructive respiratory disease) that was deemed secondary to tobacco abuse, which the nurse-practitioner opined was not caused by or a result of the Veteran's military service. The examiner further found no evidence of asbestosis on clinical and radiological evaluation of the Veteran. The examiner's rationale for her negative nexus opinion was that there was no clinical documentation in the Veteran's service treatment records that would substantiate a finding of service onset of chronic emphysema and asbestosis. The examiner further noted that the Veteran had a history of severe tobacco abuse, smoking at least one pack or more per day for approximately 50 years, which began prior to his entry into service. In an October 2009 opinion, a private physician, C. N. B., attested to his expertise as an independent medical expert. Dr. B.'s opinion, in pertinent part, was that the VA examiner who provided the prior negative nexus opinions regarding the Veteran's current pulmonary diagnoses and service was less qualified to present these opinions as she was only a nurse- practitioner, and in any case Dr. B.'s opinion was entitled to greater probative deference because his professional medical credentials exceeded those of the VA examiner. Dr. B. reported that he had reviewed the Veteran's pertinent clinical history and concluded the following: The Veteran's pulmonary diagnoses, according to CT scan, included fibrosis, bronchiectasis, COPD/emphysema, and nodules and soft tissue node in his right upper lung lobe. The Veteran's fibrosis, bronchiectasis, and nodules and soft tissue node in his right upper lung lobe "are all likely due to his numerous in-service lung infections as these changes take years to develop and his post service lung infections have been minimal compared to his service time infections likely significantly contributed to by his reactive airway disease (asthma). These changes would be difficult to see on routine chest x-ray, which explains his negative chest film on exit from service. (H)is new right lung node could be early asbestosis. . . as he was exposed to asbestos fibers while on ship in the navy." Dr. B. concurred with the opinion of private physician, Dr. D.N., that the Veteran likely had longstanding asthma as far back as the 1950's, during service. The obstructive component of his respiratory disease was likely present in service and developed slowly overtime and was likely due to the Veteran's smoking history "but was aggravated by Diesel Exhaust fumes from his years stationed on ships and in ports during service." In a VA medical opinion dated in May 2010, a VA physician reviewed the Veteran's pertinent clinical history, including the October 2009 private opinion of Dr. B. The VA physician considered each clinical assertion of Dr. B.'s opinion and expressly refuted Dr. B.'s opinion and his premise and rationale in detail. The VA physician found, in pertinent part, that the negative nexus opinions provided by the VA nurse-practitioner were valid, well-reasoned, and predicated on the simple fact that there was no actual clinical diagnoses of the Veteran's claimed pulmonary conditions during service or, in the case of bronchiectasis, within the one-year post-service presumptive period. The VA physician also stated that VA nurse-practitioners were trained and qualified to provide medical diagnoses and express clinical opinions regarding etiology, and that there was nothing in this regard that would disqualify the VA nurse- practitioner involved in the present case from presenting such findings, Dr. B.'s condescendingly adverse attitude towards nurse-practitioner's notwithstanding. The VA physician found that the mention of asthma in the Veteran's clinical history on separation examination was a self-reported history and not a clinical diagnosis of an asthma condition in service, and to the extent that the Veteran alleged that a navy corpsman informed him that he had asthma, corpsmen were medics but were not qualified to make valid clinical diagnoses. The VA physician further found Dr. B.'s opinion that the Veteran's current pulmonary diagnoses were due to his history of upper respiratory infections to be unsupported by the evidence, as the upper respiratory infections in service were acute and not representative of onset of a chronic disease process. Further, notwithstanding Dr. B.'s speculative statement that the Veteran's new right lung node could be early asbestosis, the VA physician stated that no actual clinical findings of asbestosis were found on pulmonary examination and testing of the Veteran to date. The VA physician concluded that the Veteran's current lung diseases (i.e., COPD with asthmatic component, pulmonary nodules, mild bronchiectasis, and fibrosis) are not related to or caused by his active military service, and that the most likely cause of these conditions was the Veteran's longstanding history of tobacco use. The Veteran submitted an August 2010 opinion from his private physician, Dr. D.N., who stated that based on his review of the Veteran's clinical history, including his military medical records and duty assignments, the obstructive component of his pulmonary disease was likely present in service and likely due to his smoking history, but Dr. D.N. also added that it "was more likely than not (also) aggravated by Diesel Exhaust (and) other inhaled particulate matter from his years stationed on ships and in ports during service." Dr. D.N. cited a study from the VA War related Illness & Injury Study Center and the American Lung Association as the basis for this opinion. A copy of this study was included in the evidence, and shows that there existed a potential for possible adverse upper respiratory health effects due to "direct and substantial breathing of (diesel) exhaust fumes" and that "very high and/or prolonged exposures to (diesel) exhaust fumes may cause respiratory symptoms such as coughing, chest tightness, and breathlessness." Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a) (2010). With chronic disability or disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307 (2010)) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any notation of treatment for upper respiratory complaints in service will permit service connection for a chronic respiratory disorder, first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2010). Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2010). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Board has considered the aforementioned evidence and finds that the weight of the evidence is against the Veteran's claim of entitlement to service connection for a respiratory disability other than emphysema, to include chronic asthma and pulmonary disease due to asbestos exposure. To the extent that the Veteran contends that his current asthma diagnosis is related to service on the basis of his notation of asthma in his medical history on separation examination in 1980, this premise is flawed because no actual clinical diagnosis of asthma is demonstrated in service, and the Veteran, as a lay person, cannot render a diagnosis as he lacks the requisite medical training, expertise, and professional competence to do so, and any self-diagnosis on his part is not entitled to any probative weight. See Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Inasmuch as the Veteran states that his notation of asthma on separation from service was based on a naval corpsman informing him at the time that he had asthma, even regarding this statement to be credible and true, the Board must defer to the May 2010 opinion of the VA physician, who determined that a naval corpsman does not possess the degree of training and expertise to make a clinical diagnosis of asthma. The medical evidence shows that the Veteran's current chronic respiratory diagnoses (other than COPD/emphysema) include fibrosis, bronchiectasis, and nodules and soft tissue node in his right upper lung lobe. Although Dr. B.'s October 2009 opinion seeks to draw a link between these respiratory diagnoses and service on the premise that the Veteran's episodes of upper respiratory infections in service actually caused these diagnoses, which Dr. B. regarded as slowly developing diseases, or otherwise represented early manifestations of a chronic respiratory disease process that only years later became fully manifest and diagnosable respiratory diseases, this opinion was refuted by the May 2010 VA physician's opinion, which further endorsed and gave professional credence to the prior VA nexus opinions of the VA nurse-practitioner, whose clinical conclusions was that the Veteran did not have a chronic respiratory disease (other than tobacco-related COPD/emphysema) manifested in service or for many years thereafter, and that his present chronic respiratory diagnoses are all more likely attributable to the Veteran's longstanding cigarette smoking habit. To the extent that the Veteran contends that his current respiratory disease is due to asbestos exposure in service, even conceding such exposure in view of the credible statements of the Veteran and his fellow servicemates, the VA examiners have found no clinical evidence of asbestosis up to the present time to support such a claim. In this regard, Dr. B.'s opinion is rather speculative on the matter as well, stating only that CT finding of a new right lung node in the Veteran could be early asbestosis, but otherwise not presenting a definitive clinical diagnosis of a pulmonary disease related to asbestos exposure. In conclusion, the Board finds that the weight of the evidence does not support the Veteran's claim for service connection for a chronic respiratory disability other than emphysema, to include chronic asthma or asbestosis. Because the evidence in this case is not approximately balanced with respect to the merits of this claim, the benefit-of-the-doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The probative evidence tends to show that the Veteran's current chronic respiratory disorders are entirely attributable to his long history of tobacco use, and VA does not currently permit compensation to be paid for disease or disability due to in- service tobacco use. For claims received by VA after June 9, 1998, a disability or death will not be considered service- connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products during service. 38 C.F.R. § 3.300(a) (2010). The provisions of § 3.300(a), however, do not prohibit service connection if the disability resulted from a disease that can be service-connected on some basis other than the veteran's use of tobacco products during service, or if the disability became manifest during service. 38 C.F.R. § 3.300(b)(1) (2010). In this regard, to the extent that the clinical evidence indicates that the Veteran's COPD/emphysema was aggravated by his alleged exposure to diesel exhaust fumes in service, the Veteran is hereby advised at this juncture that as service connection for COPD/emphysema was previously denied in a prior final rating decision and as he has expressly stated that the present claim on appeal is for VA compensation for a respiratory disability other than COPD/emphysema, he may wish to pursue a claim for new and material evidence and apply to reopen his COPD/emphysema claim, per 38 C.F.R. § 3.156 (2010). ORDER Service connection for a chronic respiratory disability other than emphysema, to include chronic asthma or asbestosis, is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs