Citation Nr: 1334890 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 07-18 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected left ankle fracture. 2. Entitlement to service connection a respiratory disorder, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1969 to September 1973. Service in the Republic of Vietnam is indicated by the record. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a March 2006 rating decision of the Huntington, West Virginia, Department of Veterans Affairs (VA) Regional Office (RO). Original jurisdiction now resides at the Louisville RO. Where a Veteran claims service connection for a specific disorder, any disorder reasonably encompassed by the Veteran's claim must be considered. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that the issues on appeal were previously characterized as service connection for degenerative disc disease of the lumbar spine and service connection for a history of asthmatic bronchitis. In accordance with Clemons, the issues have been re-characterized above to include all lumbar spine and respiratory disorders. The issues on appeal were previously before the Board in April 2011 when they were remanded for additional evidentiary development. The issue of service connection for coronary artery disease was also appealed by the Veteran; however, in a September 2011 rating decision, service connection for this disability was granted. As the benefit sought was granted in full, the issue is no longer before the Board. The Veteran was scheduled to appear at the Louisville RO to have a personal hearing before a Veterans Law Judge. However, in November 2008 the Veteran, through his representative, withdrew his request for a hearing. See 38 C.F.R. § 20.704(e) (2012). Since the issues on appeal were last adjudicated, additional treatment records have been added to the Veteran's Virtual VA records. Upon review, however, these records pertain only to treatment for the Veteran's disorders- the diagnosis of which are clearly established-and do not address the Veteran's in-service symptoms or a nexus between the Veteran's current disorders and service. The Veteran is therefore not prejudiced by the Board's adjudication prior to review of these records by the RO. FINDINGS OF FACT 1. The preponderance of the competent and probative evidence of record does not show that the Veteran's currently diagnosed lumbar spine disorder is related to either his military service or to a service-connected disability. 2. The preponderance of the competent and probative evidence of record does not show that the Veteran's currently diagnosed respiratory disorder is related to his military service to include exposure to herbicides. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lumbar spine disorder, to include as secondary to a service-connected left ankle disorder, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). 2. The criteria for entitlement to service connection for a respiratory disorder, to include as secondary to herbicide exposure, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In October 2005, December 2008 and February 2009 letters, VA notified the Veteran of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The December 2008 and February 2009 letters provided notice of how disability ratings and effective dates are determined following the initial adjudication. The Veteran was not provided with notice pertaining to service connection as due to exposure to herbicide until he received his October 2007 supplemental statement of the case, however, following that notice, the case was readjudicated in October 2008 and March 2012 as shown by supplemental statements of the case from these dates. Thus, while full notice did not precede the March 2006 rating decision, any timing-of-notice error was cured and rendered harmless. 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 in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). While the Veteran did not receive full notice prior to the initial decision, after notice was provided, he was afforded a meaningful opportunity to participate in the adjudication of the claim via the presentation of pertinent evidence and testimony. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, to include obtaining his service treatment records, VA records, private treatment records and Social Security Administration records. These matters were most recently before the Board in April 2011, when the case was remanded to the VA RO (via the Appeals Management Center (AMC), in Washington, D.C.). The purpose of this remand was to obtain VA examinations in order to determine the etiology of the Veteran's spine and respiratory disorders. The Board finds that the VA examinations are adequate because, as shown below, they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and thus allows the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). All of the actions previously sought by the Board through its prior development request appear to have been completed as directed, and it is of note that the Veteran does not contend otherwise. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Subsequently, a supplemental statement of the case (SSOC) was issued in March 2012, which continued the previous denial. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication, and the Board may address the merits of the appeal. Service Connection Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. Arthritis is a presumptive condition. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). The applicable presumptive period is one year following separation from service. 38 C.F.R. § 3.307(a)(3). Additionally, certain listed diseases are subject to presumptive service connection for herbicide exposed Veterans. Respiratory disorders to include asthma, bronchitis, rhinitis and sinusitis are not among the enumerated diseases. Exposure to herbicides, including Agent Orange, is presumed for Veterans who served in Vietnam between January 9, 1962, and May 7, 1975. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). In determining whether service connection is warranted for a disability, 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. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Entitlement to service connection for a lumbar spine disorder to include as secondary to a service-connected left ankle fracture. The Veteran's service treatment records are silent as to any complaints of or treatment for a lumbar spine disorder. The Veteran's service treatment records reveal that, in December 1970 and January 1971, he was treated for a wrist and ankle injury following an incident which was described as the Veteran falling off a truck and, later, as stepping out of a truck twisting his ankle. No back injury was noted. The report of the Veteran's August 1973 separation examination revealed that clinical evaluation of the spine was normal at that time. In a September 2004 private treatment note, the Veteran reported that he and a friend pulled an extremely heavy load and he had had back pain as a result since. An MRI report found desiccation of the intervertebral discs at all levels. There was a broad base budge at the L2-L3 vertebra as well as the L3-L4 and L4-L5 vertebra. An September 2004 MRI report noted degenerative discs at the L4-L5 level. In a November 2004 treatment note, the Veteran was shown to have reported low back pain beginning in 1991. He stated that his pain was significantly worse. A February 2005 treatment note reveals the Veteran reported that he had low back pain after pulling a 225 lb fixture across a table. It was written that the Veteran had strained his back again. In his March 2005 claim for service connection, the Veteran stated that he had had back problems from 1990 to the present. In a March 2005 private treatment record, the Veteran stated that he sustained an injury while serving in Vietnam when he fell off a truck landing on the ground and experienced back pain. He stated that his lower back pain had been present since then but increased in 1990. A second March 2005 treatment record revealed that the Veteran was planning to undergo surgery and that he did a lot of manual labor on his job and would require a more sedentary job following surgery. In April 2005, the Veteran underwent a posterior decompression and spinal fusion from the L4 vertebra to the sacrum. An April 2005 VA clinical record reveals the Veteran reported his back problems began in the 1970's. In a June 2007 VA medical record, the Veteran reported pain in the left side of the back after he fell. He did not mention his ankle going out at that time. An assessment of acute musculoskeletal pain from a fall was provided. In a July 2007 statement in support of his claim, the Veteran explained that, in June 2007, he was in the bathroom, and that his left ankle gave and he fell and hit his back on the toilet bowl. A September 2007 VA examination reveals that the Veteran reported left ankle instability but physical examination did not reveal instability. An October 2009 VA medical treatment note referenced that a MRI study demonstrated moderate to severe spinal canal stenosis of the L3-L4 vertebra. In a December 2007 disability determination for the state of Kentucky, the Veteran reported a history of back pain for over thirty-five years. He noted that he injured his ankle when blown off of a tank in Vietnam but that he could not recall any particular trauma or acute injury to the back. A May 2008 VA medical center treatment note indicates that the Veteran had a lumbar fusion in 2005 and pain progressed in the last five months following a fall. MRIs were reported as demonstrating new stenosis at L3-4 above the fusion. On VA examination in September 2008, the Veteran reported that, while serving in Vietnam, he was thrown off of a tank and injured his back. He sought treatment from medics after the incident. Over the course of time, after being discharged, back pain increased to the point that surgery was performed in 2005. He felt he was doing better until he reinjured his back when he slipped on a toilet and landed on his back after his ankle gave way. A diagnosis of chronic back pain was made. With regard to whether the Veteran's back problems were caused by or aggravated by the service-connected ankle disability, the examiner found that he could not render an opinion without resort to mere speculation. The examiner observed that there was documented evidence of chronic low back pain in the claims file. The examiner found, however, that with the Veteran's history of being overweight and evidence of osteopenia in X-rays, it would be conjecture to document that the Veteran's ankle fracture might have caused a fall that was severe enough that it might have caused significant re-injury to the low back. There were too many events in performing activities of daily living that would be just as onerous to cause an injury aggravating the low back. In his October 2008 VA-9 substantive appeal form, the Veteran explained that, in May 2007, his left ankle gave way, causing him to fall on to the toilet resulting in damage to his lumbar spine. The Veteran stated that his VA doctor then found him unable to work permanently. A June 2011 radiology note reported stable mild generalized degenerative changes of the lumbar spine. The Veteran was afforded a VA examination of the lumbar spine in June 2011. The examiner noted that the claims file was reviewed. During the examination the Veteran explained that, in Vietnam, he was blown off a tank and landed on his back but did not seek medical care at the time. He reported that he had immediate pain which continued to increase and that he had sciatic nerve damage to his legs. He stated that, in 2004, he had a lumbar fusion and that his back improved until one year later when he fell in the bathroom and ruptured three discs above his fusion. The Veteran reported constant low back pain at a moderate level without radiation and also reported numbness and burning in his thighs. Following a review of the Veteran's claims file and physical examination of the Veteran, the examiner concluded that the Veteran's lumbar spine disability was not caused by or the result of military service and that the Veteran's ankle disability was not likely the cause of the Veteran's back disability. The examiner further opined that the back disorder was less likely than not permanently aggravated by a left ankle disability. The examiner noted that there was no evidence to support an injury to the low back while on active duty but that the Veteran's claims file demonstrates an acute lifting injury in the 1990s, twenty years following his service, and that the Veteran had had intermittent pain since that time. The examiner further stated that the Veteran reported falling three times between May and August 2007 but did not report left ankle pain or instability at that time of those falls and that left ankle examinations did not reveal instability nor did current ankle exam reveal instability. The examiner explained that the Veteran had lumbar fusion from the L4 and L5 vertebra. The examiner noted that two years later the Veteran was found to have functional stenosis one level above that fusion which was a common finding due to the transference of forces and pressure when a vertebral column was fixed at one point and did not occur from an acute, high loading injury but from repetitive micromovements in the area. The examiner explained that the fall was therefore not likely the cause of the stenosis in the lumbar spine as it was shown that the Veteran did not have any ankle instability which would result in a fall. Analysis Service connection is not warranted for a lumbar spine disorder. Initially, arthritis to a compensable degree is not shown within one year of service, and therefore may not be presumed to be due to service. There are no medical records dated within one year of the Veteran's discharge which document the presence of arthritis. The Veteran is not competent to provide evidence as to the presence of arthritis within one year of discharge as this diagnosis requires specialized testing (X-rays) as well as medical training. Service treatment records do not demonstrate an injury to the spine at any time. The Veteran asserts that he fell off a tank and injured his back. While a fall off of a truck is documented, there is no injury to the back noted in the Veteran's service treatment records. Only injuries to the wrist and ankle are noted. The Board finds the lack of evidence of complaints regarding the back after the reported fall off the truck constitutes evidence which weighs against the claim. The Board finds that if, in fact, the Veteran had had a back injury at the time he injured his ankle after the fall, he would have sought treatment for the disorder or, at a minimum, reported back symptomatology at the time that the initial treatment was rendered. The Board finds this evidence (or the lack thereof) cuts against the Veteran's post-service allegations of having injured his back during active duty. Reduced probative value is placed on the Veteran's self-reported history. The Board finds further discrepancy between the in-service evidence and the Veteran's post-service allegations. The Veteran has alleged, on more than one occasion, that his back injury was the result of being blown off the truck by a rocket explosion. Significantly, the service treatment records were completely devoid of any evidence that the Veteran had been subjected to a rocket explosion which resulted in him being blown anywhere. The Board finds that if, in fact, the Veteran had been involved with a rocket explosion, this would have been referenced in the service treatment records. The Board further notes that the Veteran has reported several stressors in connection with his post-traumatic stress disorder claim. Significantly, the Veteran did not ever report as a stressor being subjected to a rocket explosion. It is not apparent to the Board why the Veteran would exclude reporting this purported stressful situation which allegedly resulted in permanent injuries in connection with his PTSD claim if it actually occurred as the Veteran claims. In his August 2005 claim for service connection, the Veteran reported that his back problems began in the 1990s and in a December 2007 disability determination for the state of Kentucky, while the Veteran reported a history of back pain over for over thirty-five years, he noted that he could not recall any particular trauma or acute injury to the back. Again, as a result of this evidence, reduced probative value is attached to the Veteran's self-reported medical history. The lack of any reference to the alleged in-service fall from the vehicle and resulting trauma to the back cuts against his current allegations that his back was injured after the fall. Even assuming, arguendo, that the Veteran did injure his spine, the Veteran's normal separation examination documents that any spine injury had resolved by the time of the Veteran's discharge. The Board finds the evidence of record weighs against a finding of continuity of back symptomatology after discharge. The service treatment records were silent as to complaints of, diagnosis of or treatment for back problems and the first complaints of a spine disability are demonstrated decades after service. In addition, the Board finds reason to place reduced probative value on the Veteran's self-reported medical history as his statements are inconsistent and contradicted by other competent evidence of record (or the lack thereof). The Board further notes that there is evidence of multiple injuries to the spine which occurred subsequent to the Veteran's active duty service. The Veteran alternatively asserts that his lumbar spine disorder was aggravated by his service-connected left ankle disability, specifically, that his left ankle gave out while he was in the restroom and he hit his back. Significantly, the first treatment note which references the Veteran's reports of this fall, a June 2007 treatment record, is silent as to any allegation that the fall was the result of the Veteran's ankle instability. Again, the fact that the Veteran did not report at the time that he received treatment for the post-service back injury that the injury was caused by ankle instability weighs against the claim. The Board finds it reasonable to assume that, if the Veteran had injured his back as a result of his ankle, this would have been reported at the time the initial treatment was rendered. Even if the Veteran was found to be wholly credible, while he is competent to make lay observations, such as back pain following a fall, he is not shown to have the medical expertise to opine as to whether his lumbar spine disorder was permanently aggravated by such a fall. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The competent medical evidence does not support the Veteran's assertions. In fact, following a thorough review of the claim file and an examination of the Veteran, the June 2011 VA examiner opined that the Veteran's lumbar spine disability was not caused by or the result of military service. He further found that the Veteran's ankle disability was not likely the cause of the Veteran's back disability and that his back disorder was less likely than not permanently aggravated by a left ankle disability. In so finding, the examiner noted the time between the Veteran's service and any demonstration of symptoms and intervening injuries between the Veteran's service and first demonstrated complaints of a lumbar spine disorder. The examiner further stated that the Veteran's symptoms were consistent with his lumbar fusion as opposed to a single injury. Finally, the examiner noted that the injury itself was unlikely as the Veteran's prior examinations did not demonstrate any objective evidence of left ankle instability. In reaching this decision, the Board has considered the benefit-of-the-doubt rule; however, as the preponderance of the competent probative evidence is against the Veteran's service connection claim, the Board finds that such rule is not for application. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a respiratory disorder to include as due to herbicide exposure The Veteran's service treatment records dated in January 1970 demonstrate that the Veteran had a sore throat and cough. In a January 1971, the Veteran is shown to report slight chest pain. A January 1972 service treatment record reflects treatment for and diagnosis of upper respiratory infection. Additionally, a September 1972 clinical record documents treatment for chest pain, sore throat, and sinus drainage. Upon examination, the clinician noted that the Veteran's throat was slightly red and that he was slightly congested. The Veteran was prescribed medication for treatment. The remainder of the Veteran's service treatment records, to include the August 1973 separation examination are absent any evidence of a respiratory disorder. The first competent evidence of a respiratory disorder is dated in December 1995, where the Veteran is shown to request medication for his sinuses and requested a nicotine patch. In a December 1995 private treatment note the Veteran reported that he was trying to quit smoking and had been having some sinusitis and allergic rhinitis. A September 1996 private treatment note includes a diagnosis of asthmatic bronchitis. A later September 1996 treatment note reported wheezing probably secondary to smoking. In his March 2005 claim for service connection, the Veteran stated that he had had respiratory problems from 1990 to the present. An April 2006 VA medical center treatment note indicated that the Veteran complained of nasal congestion and cough and it was noted that the Veteran continued to smoke. An assessment of upper respiratory infection was provided. In September 2009 the Veteran was treated for rhinosinusitis. He was advised to discontinue smoking. The Veteran was afforded a VA examination in June 2011. It was noted that the claims file was reviewed. The examiner provided a thorough report of the Veteran's respiratory complaints and noted that the Veteran reported an onset of chronic bronchitis ten years earlier. The Veteran informed the examiner that he began smoking cigarettes during service and smoked a pack per day ten years ago when he had trouble breathing and was wheezing, coughing and getting dizzy. He was told at that time that he had bronchitis and was given an inhaler. Following physical examination and review of the claims file, the VA examiner concluded that the Veteran's respiratory disorders were less likely than not caused by or a result of active military service, to include in-service treatment for sinus congestion and upper respiratory infection, as well as herbicide exposure. The examiner explained that the Veteran was treated for three episodes of upper respiratory conditions during his almost four years on active duty. The examiner stated that all of these were self limiting conditions which resolved without further treatment or evaluation. He noted that following the Veteran's separation from service there was no evidence to suggest he was treated again for respiratory symptoms until the 1990s, 20 years later. The examiner noted that pulmonary function tests that were performed three years prior and the Veteran's current pulmonary function tests were consistent with findings of obesity. The examiner stated that, even with forty years of tobacco use, the Veteran had minimal permanent lung pathology. The examiner noted that the 2008 Veterans Agent Orange Review concluded that there was insufficient evidence to determine an association between exposure to the herbicides and mortality from all nonmalignant respiratory disease. The examiner stated that it was his opinion that the Veteran's mild ventilator restrictive disease and intermittent upper respiratory tract infections were less likely than not caused by or the result of herbicide exposure. It was noted that there was no nexus to support a continuous pattern of pathology related to the few, self-limited episodes that occurred while on active duty and no evidence in the agent orange literature to support a link between agent orange and non malignant respiratory disorders. Analysis The Board finds that service connection is not warranted for a respiratory disorder. Initially, the Board finds that there is no competent evidence of record documenting the presence of a respiratory cancer to a compensable degree within one year of the Veteran's discharge. The Veteran does not allege such a fact pattern. Service connection is not warranted for any of the Veteran's diagnosed respiratory disorders on a presumptive basis. There is no competent evidence of record which links a current respiratory disorder to the Veteran's active duty service on a direct basis. Turning to the Veteran's claim that he has a respiratory disorder secondary to herbicide exposure, the Board finds that the Veteran is a lay person without medical training. As such, his opinion regarding the medical question as to the etiology of his respiratory disorder is not competent medical evidence and of limited or reduced probative value. The Board finds that the competent probative evidence of record demonstrates that the Veteran's respiratory disorder was not related to his service-which only demonstrated acute respiratory disorders- or herbicide exposure, which as the examiner explained, has not been medically shown to be related to the Veteran's types of respiratory disorders. The Board finds that service connection is not warranted for a respiratory disorder on a direct basis or as secondary to exposure to herbicides including agent orange. The evidence which supports the Veteran's claim consists of the Veteran's allegations. As set out above, the Board has determined that the Veteran is not competent to provide evidence regarding a link between his respiratory disorder and service to include herbicide exposure. To the extent that the Veteran relates his respiratory symptoms to smoking, regardless as to whether his smoking was encouraged in service as he asserts, service connection is not warranted for disabilities or death due to use of tobacco products. 38 U.S.C.A. § 1103, 38 C.F.R. § 3.300. Generally, 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; 38 C.F.R. § 3.300(a). "Tobacco products" means cigars, cigarettes, smokeless tobacco, pipe tobacco, and roll-your-own tobacco. Id. Service connection is not prohibited if the disability can be service-connected on some basis other than a veteran's use of tobacco products during service, or if the disability became manifest during service. See 38 U.S.C.A. § 1103(a); 38 C.F.R. § 3.300(b); see also VAOGCPREC 6-2003 (neither the statute nor the regulation bars a finding of secondary service connection for a disability related to a veteran's use of tobacco products after the veteran's service, where that disability is proximately due to a service-connected disability that is not service-connected on the basis of being attributable to the veteran's use of tobacco products during service). In the current case, there is no competent evidence which links the Veteran's use of tobacco products to a service-connected disability. Neither the Veteran's private physicians-who assert that his symptoms are due to smoking- nor his VA examiner suggest that there is a link between the Veteran's service and his respiratory disorders. The VA examiner provides a negative nexus which is well-reasoned and supported by his review of the Veteran's claims file. There is no competent medical evidence which supports the Veteran's claim for service connection for a respiratory disorder. Based on the above, the Board finds the competent probative evidence of record demonstrates that the Veteran's respiratory disorder is not etiologically linked to any aspect of his active duty service, including herbicide exposure. In reaching this decision, the Board has considered the benefit-of-the-doubt rule; however, as the preponderance of the competent probative evidence is against the Veteran's service connection claim, the Board finds that such rule is not for application. 38 U.S.C.A. § 5107(b) ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The appeal is denied. ____________________________________________ G.A. WASIK Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs