Citation Nr: 1318680 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-34 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a respiratory disorder, claimed as asthma, bronchitis, pleurisy, chronic obstructive pulmonary disease ("COPD") and lung disease, (hereinafter a respiratory disorder), to include as secondary to in-service herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to June 1973. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a September 2008 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 a respiratory disorder. In April 2010, the Veteran testified before the undersigned Veterans Law Judge during a Board video conference hearing. A transcript of the hearing has been associated with the Veteran's claims folder. The Board has previously considered this claim. In February 2011, the Board remanded the claim in order to afford the Veteran a VA examination to determine the etiology of his claimed disorders. Thereafter, in a November 2011 decision, the Board denied the claim. The appellant subsequently appealed the decision to the United States Court of Appeals for Veterans Claims ("Court"). Thereafter, while the case was pending before the Court, the VA Office of General Counsel and the appellant's attorney (hereinafter known as "the parties") filed a Joint Motion for Remand ("Joint Motion"), requesting that the Court vacate the decision. By an Order dated July 2012, the Court granted the parties' Joint Motion, vacated the decision, and remanded the claim to the Board for compliance with the directives specified by the Court. In February 2013, the Board again remanded the claim to allow the Veteran a new VA examination. Accordingly, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The claims folder has been returned to the Board for further appellate proceedings. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT The competent medical evidence or record establishes that the Veteran's respiratory disorders were neither caused by, nor related to any incident of active service, to include herbicide exposure. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a respiratory disorder have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307. 3.309, 3.380 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claim decided herein, 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). 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) (2012); 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), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary of VA (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 is awarded. By means of a letter dated April 2008, the Veteran was informed of the types of evidence needed in order to substantiate his service connection claim, the division of responsibility between himself 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). This letter also satisfied the requirements of Dingess/Hartman 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 file contains the Veteran's service treatment records, post-service treatment records and VA compensation and pension examination reports dated May 2011 and March 2012. The claims folder also contains the Veteran's statements and testimony in support of his claim. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. A review of the May 2011 examination report demonstrates that the examiner reviewed the complete claims folder, interviewed the Veteran regarding his reported history of symptomatology and treatment, performed a comprehensive evaluation, including a review of diagnostic test results, and provided reasons and bases for her opinion that it is less likely than not that the Veteran's current respiratory disorders are related to service. In this respect, however, the Board recognizes that the May 2011 VA examiner did not consider whether the Veteran's respiratory disorders existed prior to, and had been aggravated by active duty service. Review of the March 2013 VA examination report, however, demonstrated that the examiner reviewed the complete claims folder, interviewed the Veteran regarding his reported history of symptomatology and treatment, performed a comprehensive evaluation, including a review of diagnostic test results, and provided reasons and bases for his opinion that it is less likely than not that the Veteran's current respiratory disorders pre-existed and were further aggravated by service, and that they are not otherwise related to any aspect of active duty service, to include herbicide exposure. Accordingly, the Board concludes that, considered as a whole, the VA examinations are adequate upon which to base a decision in this case. Furthermore, as noted above, the appellant was afforded a Board hearing in April 2010. In this regard, the Board observes that in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge ("Veterans Law Judge") who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Board finds that the hearing generally was held in compliance with the provisions of Bryant. Further, a review of the record also reveals no assertion, by the appellant or his service organization representative, that VA or the VLJ failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing. Moreover, the appellant's submissions and statements, as well as those of his representative, demonstrate actual knowledge of the elements and evidence necessary to substantiate the claim because the submissions and statements focus on the evidence and elements necessary to substantiate the claim. As such, the Board finds that the VLJ complied with the duties set forth in Bryant and the claim may be adjudicated based on the current record. Cf. Procopio v. Shinseki, No. 11-1253 (Vet. App. Oct. 16, 2012). It therefore appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he, nor his representative, have identified any other pertinent evidence not already of record that would need to be obtained for a fair disposition of this appeal. Accordingly, the Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claim. See Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). 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. Analysis 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). The Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Service connection is generally precluded for disabilities caused by using tobacco. See also 38 U.S.C.A. § 1103 and 38 C.F.R. § 3.300(a) (2012) (generally prohibiting service connection for death or disability due to an injury or disease attributable to the use of tobacco products by a veteran during active service); cf. VAOPGCPREC 6-2003 (October 28, 2003) (service connection is not precluded secondary to tobacco use after the veteran's service where a tobacco use disorder is proximately due to a service-connected disability). The Veteran avers that his respiratory disorders (diagnosed during the most recent VA examination as asthma and COPD) are the result of herbicide exposure during active military service in the Republic of Vietnam during the Vietnam era. Alternatively, he claims that he had respiratory allergies that pre-existed service and were aggravated beyond the course of their normal development during service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2012). A "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on 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); 38 C.F.R. § 3.307(a)(6)(iii) (2012). These diseases include AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type 2 diabetes, Hodgkin's disease, ischemic heart disease (including acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease, including coronary artery disease (including coronary spasm) and coronary bypass surgery, and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemia (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Ischemic heart disease (including coronary artery disease), Parkinson's disease and B-cell leukemias (such as hairy cell leukemia) were added to the list of diseases effective August 31, 2010. See 75 Fed. Reg. 53202-53216 (Aug. 31, 2010). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). In this regard, the Board notes that the Joint Services Records and Research Center has confirmed that the Veteran served in the Republic of Vietnam from December 1971 to June 1972. As such, he is presumed to have been exposed to herbicides, such as Agent Orange. However, the Secretary has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41,442 -449 (1996). The Secretary has further stated that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for numerous specified diseases, including asthma and COPD. Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924 (Aug. 10, 2012). As asthma and COPD are not diseases for which presumptive service connection based on herbicide exposure is warranted, the Veteran may not establish entitlement to service connection for these conditions on a presumptive basis. Notwithstanding the foregoing discussion regarding presumptive service connection, the Federal Circuit has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir 1994); see also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997), vacated on other grounds (Fed. Cir. 2000). Thus, under Combee, presumption based on herbicide exposure is not the only method for establishing service connection. See also Stefl v. Nicholson, 21 Vet. App. 120 (2007). With regard to the Veteran's claim that his respiratory disorders existed prior to service and were aggravated therein, VA regulations provide that every veteran who served in the active military, naval, or air service after December 31, 1946 is taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137 (West 2002 & Supp. 2012). Only those conditions recorded in examination reports can be considered as "noted," and a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b) and (b)(1); Crowe v. Brown, 7 Vet. App. 238 (1994). Determination of the existence of a pre-existing condition may be supported by contemporaneous evidence or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion (see Miller v. West, 11 Vet. App. 345, 348 (1998), or a later medical opinion based upon statements made by the veteran about the pre-service history of his/her condition. Harris v. West, 203 F.3d. 1347 (Fed. Cir. 2000). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (2012). To rebut the presumption of soundness for conditions not noted at entrance into service, VA must show by both clear and unmistakable (obvious and manifest) evidence that (1) the disease or injury existed prior to service, and (2) that the pre-existing disease or injury was not aggravated by service. 38 U.S.C.A. § 1111; VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005); Wagner v. Principi¸ 379 F.3d 1089, 1096 (Fed. Cir. 2004). Temporary or intermittent flare-ups of a pre-existing injury or disease during service are not sufficient to be considered aggravation in service unless the underlying disability, as opposed to the symptoms of that disability, has worsened. See Hunt v. Derwinski, 1 Vet. App. 292 (1991), Beverly v. Brown, 9 Vet. App. 402 (1996). If the presumption of soundness is not rebutted, "the Veteran's claim is one for service connection." Wagner, 370 F.3d at 1096. Diseases of allergic etiology may not be disposed of routinely for compensation purposes as constitutional or developmental abnormalities. Service connection must be determined on the evidence as to existence prior to enlistment and, if so existent, a comparative study must be made of its severity at enlistment and subsequently. Increase in the degree of disability during service may not be disposed of routinely as natural progress or as due to the inherent nature of the disease. Seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. The determination as to service incurrence or aggravation must be on the whole evidentiary showing. 38 C.F.R. § 3.380. As an initial matter, Board observes that the Veteran's June 1971 service enlistment examination revealed normal findings for the nose, chest, lungs, chest and sinuses; a concurrent chest x-ray also revealed findings within normal limits. Although, on his June 1971 medical history report, the Veteran indicated that he had a history of hay fever, as discussed above, a notation of a pre-service existence of a condition at the time of an enlistment examination does not equate to the actual existence of such condition. 38 C.F.R. § 3.304(b)(1). Service treatment records show that the Veteran was seen on multiple occasions throughout service with various respiratory complaints, including reports of nasal and chest congestion and wheezing. See e.g., November 1972 and January 1973 service treatment records. However, the only confirmed diagnosis, given during a clinic visit in January 1972, was that of a plant allergy. In a February 1972 follow-up report, the clinician noted that the Veteran had a long history of allergic rhinitis and asthma. Although the Veteran was scheduled for an allergy panel, it is unknown whether he actually reported for the panel, as the results are not of record. In February 1973, the Veteran underwent another chest x-ray to rule out pneumonia; the results revealed a small granuloma, but no active disease. During his May 1973 service separation examination, however, the Veteran's nose, chest, lungs, chest and sinuses were again found to be within normal limits. The first post-service evidence that the Veteran sought or received treatment for a chronic respiratory disorder was in November 1991, when he was seen by a private clinician for complaints of a dry cough and pain in the left back area. He reported that he had been diagnosed with pleurisy a year earlier and that his back pain felt similar. The Veteran also reported that he smoked approximately 1.5 packs of cigarettes per day. The clinician diagnosed him with acute bronchitis and pleurisy, prescribed medication, and advised him to reduce his smoking. During a follow-up evaluation in February 1992, chest and abdomen x-rays revealed no acute chest abnormalities. In June 1993, the Veteran complained of a cough and congestion and was diagnosed with questionable respiratory allergies. There is no further evidence of treatment for a respiratory disorder until six years later, in May 1999, when the Veteran underwent a chest x-ray, which revealed calcified granulomas, but no active disease. However, in July 1999, he was diagnosed with moderate asthma and chronic perennial allergic rhinitis. The Veteran continued to receive intermittent allergy care through March 2008. In July 2001, the Veteran underwent a pulmonary function test, which diagnosed him with mild obstructive lung disease with borderline bronchodilator response, mild restrictive lung disease as a result of reduced expiratory reserve volume due to obesity and moderate reduction in diffusion lung capacity for carbon monoxide. In June 2005, the Veteran was seen for complaints that he could not walk outside because of his asthma. At that time, he reported that he was smoking 1.5 packs of cigarettes per day. He was prescribed corticosteroids and a Spiriva bronchodilator. He was again treated for asthma and bronchitis in December 2005, at which time, he was given two nebulizer treatment. He reported he was now smoking one pack of cigarettes per day. In June 2008, the Veteran underwent an Agent Orange evaluation at the VA Medical Center ("VAMC"), at which time, he gave a history of smoking one pack of cigarettes per day since 1971 and a previous diagnosis of asthma in the 1980's. He also mentioned a history of cannabis usage. VAMC treatment reports dated June 2009 show that the Veteran was seen for complaints of allergies and asthma. At that time, he reported that he had been diagnosed with asthma in the 1970's or 1980's. The clinician diagnosed the Veteran with chronic rhinitis, obstructive lung disease and pre-existing asthma. In September 2009, during a follow-up appointment, the Veteran stated that he was no longer smoking and felt that his respiratory disorder symptoms had improved. In April 2010, during his hearing before the Board, the Veteran reported that he had suffered from asthma prior to service. He further said that he had bronchitis several times during service and had been placed on a temporary profile as a result of coughing and wheezing during service in the fields of Vietnam. He reported that his duties in Vietnam included removing all vegetation and creating a "kill zone," which he said caused wheezing, coughing, and spitting up mucus. He also said that, following separation from service, he developed chest infections with sinus draining, nasal tenderness and puffy eyes. In May 2011, the Veteran was afforded a VA compensation and pension examination, at which time, he reported that he had a history of asthma with shortness of breath, but did not know when it began. He did, however, state that he had been diagnosed with hay fever as a child and was started on Benadryl. He said that, during service, he experienced wheezing and shortness of breath, which worsened when he was around people who were smoking or wearing perfume. He added that he had once been medevaced by helicopter during service because of his respiratory disorders. He also reported in-service instances of bronchitis, which were treated with antibiotics, that continued approximately 2-3 times per year after service. Upon physical evaluation, the examiner noted that, although the Veteran had no current respiratory symptoms, he reported that he had occasional coughing and asthma attacks. The examiner opined that the Veteran's cough was most likely related to the ACE inhibitor he used for hypertension, adding that this was a common side effect. She opined that his shortness of breath was more likely than not secondary to his obesity and de-conditioned status instead of his respiratory condition. She further opined that his childhood allergies and hay fever had undergone a natural progression of the disease into asthma. She opined that his COPD was secondary to his use of tobacco and cannabis, adding that the Veteran had exacerbated his condition by smoking a pack of cigarettes per day for 37 years and using cannabis, which has even more serious consequences due to maintaining inhaled smoke in the lungs for prolonged periods. She concluded that it was less likely than not that any respiratory condition was related to service, to include herbicide exposure. In this regard, she opined that the Veteran's respiratory disorders (which she previously identified as allergies) had existed prior to service and had followed a natural progression throughout his life. She added that, although she had considered his reported in-service symptomatology, a review of his service treatment records showed that his symptoms usually resolved upon removal of his allergen triggers, such as seasonal pollens. Significantly, the examiner also opined that his asthma had been exacerbated by his lifelong history of smoking. Finally, she noted that she had consulted with the head of the VA Allergy Clinic and had thoroughly discussed the Veteran's medical history before arriving at her conclusions. She added that the head of the VA Allergy clinic had treated the Veteran as a patient, was very familiar with his case, and had also reviewed his electronic records. In March 2013, the Veteran was afforded a second VA examination, at which time, the VA examiner diagnosed him with COPD and asthma, noting that the COPD was responsible for his limited pulmonary function. In reviewing the evidence of record, the examiner noted that the Veteran reported a history of allergies and hay fever as a child, which, by history, progressed to asthma as an adult. He noted that this was not an uncommon occurrence. He also observed that the Veteran's respiratory disorders were further complicated by a long history of cigarette and cannabis smoking, leading to the development of COPD. He noted that the Veteran was stated to have asthma in service by way of history that also included allergic rhinitis, but noted that there was nothing in the service treatment records regarding treatment of asthma with either oral or inhaled medication. He observed that the Veteran's medical visits during service were for a respiratory disorder of allergic rhinitis. He further noted that, by private medical records and the Veteran's own statements, the condition of asthma began in the 1980's, but noted that COPD had not been diagnosed until June 2005, many years after service. Accordingly, and based on the complete evidence of record, including the previous VA examiner's report, the examiner opined that the Veteran did not have asthma prior to service or develop the condition during service. Rather, he opined that the Veteran had developed the condition following service; noting that his conclusion was also based on the Veteran's own statements. He opined that the Veteran's asthma had followed an established and medically-supported progression that had been aggravated by his continued smoking following service, resulted in numerous post-service treatment, and was not related to any clinical event during service, to include any claimed herbicide exposure. In this regard, the examiner noted that the Veteran had served on active duty from June 1971 to June 1973 with minimal medical visits for various respiratory disorders. He also noted that the Veteran provided a history of childhood allergies and hay fever with rhinitis, periorbital edema, sneezing and coughing, a history that was corroborated by a note of record from his cousin. He noted that hay fever is a strong risk factor for developing asthma, especially if the condition first presents in childhood. Regarding allergic rhinitis, he stated that it is found in over 80 percent of asthmatics. He further stated that asthma is complicated by the effects of smoking on the lungs, adding that the Veteran had a long history of smoking from .25 to 1.5 packs of cigarettes per day for over 30 years. He also noted that the Veteran had a history of cannabis use, which he said was an even more severe irritant to the airway than cigarettes. In addition, the examiner noted that, although the Veteran' service treatment records mentioned allergy testing, there was no evidence of such testing in the treatment reports. Based on a review of the complete evidence of record , the Board concludes that the probative evidence weighs against the Veteran's claim of entitlement to service connection for a respiratory disorder, to include as a result of herbicide exposure. The Veteran entered service in sound condition given his entrance examination which reflects that his respiratory system was within normal limits. Although in his June 1971 medical history report, the Veteran indicated that he had a history of hay fever, a notation of the pre-service existence of a condition at the time of an enlistment examination does not equate to the actual existence of such condition. 38 C.F.R. § 3.304(b)(1). It is acknowledged that the Veteran, his cousin, and various medical examiners have reported that the Veteran had a childhood history of allergies (i.e., hay fever, sneezing and coughing). There is, however, no contemporaneous pre-service evidence corroborating that the Veteran had allergies (or residuals of such) or a chronic respiratory disorder at the time of his entrance into service in June 1971. Generally, seasonal and other acute allergic manifestations (e.g. hay fever) subsiding on the absence or removal of the allergen are to be regarded as acute diseases, healing without residuals. 38 C.F.R. § 3.380 (2012). The Veteran's allergies have been consistently described by medical professionals (to include the 2011 VA examiner) as acute and transitory, resolving without residuals upon removal of the allergen. There is no evidence that the Veteran entered service with a preexisting chronic respiratory disability (to include any allergy residuals). The first prong of the two prong rebuttal standard to rebut the presumption of soundness is not met in that there is no clear and unmistakable evidence of a preexisting chronic respiratory disability. Thus, the Board need not address the matter of aggravation. (For argument purposes it is noted, however, that there is no competent evidence establishing that a preexisting respiratory disability became aggravated during service beyond the normal progression of the condition. See May 2011 and March 2013 VA opinions. To the extent asthma and allergic rhinitis are noted as outgrowths of allergies, both are noted as having developed after service separation and are described as unrelated to service. More discussion on this matter follows. See March 2013 VA opinion.) The question before the Board is whether any current respiratory is directly related to a disease or injury in service or whether it may be presumed to have been incurred therein. As noted above, although the Veteran is presumed to have been exposed to herbicides by virtue of his active duty service in Vietnam, in this case, two VA examiners reviewed his service treatment records and, taking a multitude of factors into consideration, concluded that his respiratory disorders are not the result of any incident of service, to include herbide exposure. Significantly, the examiners noted that the Veteran's asthma, which they concluded developed following service, was the result of a natural progression of childhood allergies and was further aggravated by his heavy cigarette smoking and cannabis use. The examiners provided thorough, well-reasoned opinions that fully explained the reasons and bases for their conclusions. Although both examiners considered the Veteran's personal statements reports of having been exposed to Agent Orange during service, they nonetheless concluded that neither of his disorders were related to service. The Board finds the opinion of the VA examiners, supported with reasons and bases, to be the most persuasive evidence of record as to the relationship between the Veteran's respiratory disorders and active duty service. In addition to the medical evidence, the Board has also considered the Veteran's personal statements, including his testimony during the Board hearing, in which he continued to report that his respiratory disorders were the result of military service. Also of record is a December 2012 statement from the Veteran's cousin, in which he stated that the Veteran suffered from allergies as a child, but participated and excelled in many sports. He added that the Veteran's respiratory disorders had worsened after his return from Vietnam, resulting in occasional medical treatment and his absence from family gatherings. In this regard, the Board notes that the Court has repeatedly held that laypersons, such as the Veteran and his cousin, are considered competent to testify to matters that "lend[] [themselves] to observation by a lay witness." See Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). However, in this instance, neither the Veteran, nor his cousin, have been shown to have the appropriate medical knowledge or training to render either of them competent to provide an opinion on such complex issue as the etiology of diseases of the lungs and airways. 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). Therefore, their assertions do not constitute competent medical evidence that either of the Veteran's respiratory disorders was caused by, or is otherwise related to his military service. Finally, as noted above, per VA regulations, service connection is not warranted for a disability on the basis that it resulted from injury or disease attributable to a veteran's use of tobacco products during service (with the exception of Buerger's Disease). 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300(a) (2012). This provision applies to claims filed after June 9, 1998. Id. Here, both VA examiners took note of the Veteran's more than 30-year history of smoking at least one pack of cigarettes per day, adding that this lengthy history of tobacco use most likely aggravated his COPD and asthma. Assuming that these diseases are related in part to the Veteran's cigarette smoking during and after active service, because he filed his claim in the instant case after June 9, 1998, service connection on the basis of use of tobacco products is barred as a matter of law. Id. Accordingly, the Board concludes that the most probative evidence of record does not support a grant of service connection for a respiratory disorder, including COPD and asthma, to include as a result of herbicide exposure in service. The "benefit-of-the-doubt" rule enunciated in 38 U.S.C.A. § 5107(b) is not applicable, as there is not an approximate balance of evidence. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for a respiratory disorder, to include as a result of herbicide exposure, is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs