Citation Nr: 21072908 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 16-30 881 DATE: December 6, 2021 REMANDED Entitlement to service connection for chronic lung disease, claimed as bronchitis, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1965 to May 1969. On his February 2016 substantive appeal, submitted via VA Form 9, the Veteran requested a Board video conference hearing before a Veterans Law Judge (VLJ). In February 2019, VA sent the Veteran a letter notifying him that his requested hearing was scheduled for July 2019, but the Veteran did not appear for the scheduled hearing; nor has he provided good cause as to why he did not appear for the hearing or request that the hearing be rescheduled. Therefore, the Board finds all due process has been afforded the Veteran with respect to a hearing. 1. Entitlement to service connection for chronic lung disease, claimed as bronchitis is remanded. The Veteran is seeking service connection for chronic bronchitis, which he believes is due to exposure to tactical herbicide agents during service in Vietnam. His service in the Republic of Vietnam is not in dispute and he is presumed to have been exposed to tactical herbicide agents. The Veteran has been diagnosed with bronchitis and chronic lung disease. Neither condition is presumptively associated with exposure to tactical herbicide agents. See 38 C.F.R. § 3.309. However, service connection may still be awarded with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (observing that the "availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange"). In support of his claim, the Veteran has submitted a June 2015 private treatment record wherein the physician rendered a diagnosis of chronic lung disease which he opined is directly related to the Veteran's exposure to dioxin and the herbicide Agent Orange during service in the Navy. However, the June 2015 private physician did not provide a rationale in support of his opinion which renders the opinion inadequate. In January 2016, a VA physician opined that, while the Veteran was treated for tonsillitis and pharyngitis during service, it is less likely than not that his chronic lung disease was incurred in or caused by his herbicide exposure as there was no evidence of diagnosis or treatment for bronchitis in the service treatment records or within one year of service and because bronchitis is not considered a presumptive diagnosis for herbicide exposure. The Board finds the January 2016 VA opinion is insufficient because a lack of a diagnosis or treatment specifically for bronchitis during service does not preclude service connection, particularly given the Veteran's competent report of experiencing chronic cough, congestion, and shortness of breath since his Vietnam service. See June 2015 private treatment record. Additionally, a medical opinion that concludes that a disease is not related to herbicide exposure solely because there is no presumption of service connection (i.e., is not listed in 38 C.F.R. § 3.309) is inadequate. Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) (holding that it is inappropriate to "permit the denial of direct service connection simply because there is no presumptive service connection."). While the VA physician is correct that bronchitis is not on the list of diseases presumed to be caused by herbicide exposure, this does not preclude a finding that the Veteran's bronchitis is directly related to his herbicide exposure. As a result, a remand is needed to obtain a VA opinion that provides a complete rationale to support the opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The matters are REMANDED for the following action: 1. Request that an appropriate medical professional review the claims file and provide an addendum opinion regarding the Veteran's chronic lung disease, claimed as bronchitis. The need for an examination is left to the discretion of the examiner. The claims file must be reviewed, and the examination report must reflect that such review was accomplished. After reviewing the claims file, the examiner is requested to provide an opinion as to the following: Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's chronic lung disease/bronchitis was incurred in or as a result of his active service, to include his acknowledged exposure to herbicides therein? In providing the opinion, the examiner must take into account the Veteran's personal circumstances and how the recognized risk factor(s) apply in his particular case. The examiner may not rely solely on the fact that the Veteran's chronic lung condition is not on the presumptive list of diseases associated with tactical herbicide exposure. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. A clear rationale must be provided for the opinion and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Turnipseed, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.