Citation Nr: 18156355 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 16-43 528 DATE: December 11, 2018 REMANDED Entitlement to service connection for a lung disability, to include as due to exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1966 to August 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In November 2016, the Veteran requested a Central Office Board hearing before a Veterans Law Judge. On August 31, 2018, the Veteran was issued notice that a Central Office Board hearing was scheduled for November 14, 2018 in Washington, DC. Included with this notice was comprehensive information regarding the rules governing rescheduling of the hearing and failure to report to the scheduled hearing. In a written statement received on November 2, 2018, the Veteran requested postponement of his hearing because he would be undergoing a surgical procedure the week before the scheduled hearing and would still be recuperating. Pursuant to 38 C.F.R. § 20.702(c)(1), a request for a change in the hearing date must be received “within 60 days from the date of the letter of notification of the time and place of the hearing, or not later than two weeks prior to the scheduled hearing date, whichever is earlier.” Sixty days from August 31, 2018 was October 30, 2018, and two weeks prior to November 14, 2018 was October 31, 2018. The Veteran faxed in his request for a postponement of the hearing on November 2, 2018. This date is confirmed on the fax coversheet, as well as the date stamp produced by the fax machine during transmission; thus, the postmark rule set forth in 38 C.F.R. § 20.305(a) is not for application. The Veteran’s request for postponement of the hearing was not timely received, and 38 C.F.R. § 20.702(c)(2) dictates that once the time period prescribed in 38 C.F.R. § 20.702(c)(1) has passed, “the date of the hearing will become fixed.” The Veteran did not attend the scheduled November 14, 2018 Central Office Board hearing, and pursuant to the authority in 38 C.F.R. § 20.702(c)(2), the Veterans Law Judge assigned to preside over the scheduled November 14, 2018 Central Office Board hearing determined that good cause was not shown to support postponement of the hearing or to substantiate the Veteran’s absence. Pursuant to 38 C.F.R. § 20.702(d), “[i]f an appellant…fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn.” The Veteran has not filed a motion for a new hearing within 15 days following the original hearing date, accompanied by good cause, and the time to do so has now elapsed. See id. Accordingly, the Veteran’s hearing request is no longer valid, and the Board shall proceed as if the hearing request has been withdrawn. With this procedural matter out of the way, the Board turns to the substance of the Veteran’s appeal. The Veteran’s primary contention is that his current lung disability, which has been variably diagnosed as asthma, dyspnea, and bronchitis (with a history of pneumonia), is the direct result of exposure to herbicide agents during his service in the Republic of Vietnam. The RO has conceded that the Veteran served inland in the Republic of Vietnam between January 9, 1962 and May 7, 1975 and is presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran’s lung disability is not included in the list of disabilities in 38 C.F.R. § 3.309(e) subject to presumptive service connection due to in-service herbicide agent exposure. Service connection under this theory of entitlement is unavailable. However, this does not preclude the Veteran from establishing service connection for a disability due to herbicide agent exposure on a direct basis with proof of actual or direct causation. Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran submitted a January 2017 positive nexus statement linking his lung disability to herbicide exposure in the Republic of Vietnam. This opinion was conclusory and was not fully informed based on the evidence; thus, it lacks the probative value necessary to substantiate the claim. In written argument received in August 2016, the Veteran’s representative cited medical literature suggesting exposure to herbicide agents has the potential to result in increased respiratory symptoms. While the medical articles referenced by the Veteran’s representative are not sufficient to establish service connection under the facts of this case, these articles are adequate to trigger VA’s duty to obtain a new VA examination. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998) (holding that information contained within treatises is generally too abstract to prove the nexus element of a service-connection claim, although it is possible that a treatise might “discuss generic relationships with a degree of certainty” that would allow a finding of “plausible causality based upon objective facts”); 38 C.F.R. § 3.159(c)(4). The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from December 2015 to present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s lung disability. The entire electronic claims file must be reviewed by the examiner prior to issuing his/her opinion, and such review must be noted in the examination report. The examiner must then opine: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current lung disability began in, or is otherwise related to his active duty service, to include his presumed exposure to herbicide agents? In formulating an opinion, the examiner is requested to consider the medical articles cited by the Veteran’s representative in the August 2016 appellate brief. The examiner is cautioned that a negative opinion based solely on the fact that the Veteran’s lung disability is not included in the list of diseases presumed to be due to herbicide agent exposure is not adequate. The examiner must provide a complete rationale for any opinion expressed that is based on the examiner’s clinical experience, medical expertise, established medical principles, and record evidence. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Galante, Associate Counsel