Citation Nr: 21026762 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 13-11 276 DATE: May 3, 2021 ORDER Entitlement to service connection for bronchitis is denied. FINDING OF FACT The preponderance of the evidence is against finding that bronchitis began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for bronchitis have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service from August 1969 to June 1971, with additional reserve service. He is in receipt of a Combat Action Ribbon, which denotes his participation in combat. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A transcript of the Veteran's April 2017 testimony at a videoconference hearing before the undersigned Veterans Law Judge is of record. This claim was last before the Board in September 2020 where it was remanded for additional development. 1. Entitlement to service connection for bronchitis The Veteran contends that his bronchitis is related to his conceded in-service herbicide exposure. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Veterans who, during active military, naval, or air service, served in the Republic of Vietnam from February 28, 1961 to May 7, 1975, shall be presumed to have been exposed to an herbicide agent, including Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iii). Herbicide agent exposure has been conceded. Additionally, 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 section 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The Secretary of Veterans Affairs 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. Id. Although a veteran may not be entitled to a regulatory presumption of service connection for a given disability, the claim must be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994), rev'd in part, Combee v. Principi, 4 Vet. App. 78 (1993). Bronchitis and other pulmonary conditions other than lung cancer are not included in the list of diseases presumptively linked to herbicide exposure. Therefore, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Service treatment records are negative for bronchitis or any chronic lung condition. The Veteran's May 1971 separation examination revealed normal lungs and chest. Chest x-ray at that time was within normal limits. The Veteran testified during his Board hearing that starting around 1976 or 1977, he would get bronchitis two times a year. Treatment records show the Veteran was diagnosed with bronchitis in 2008. The Veteran does not contend that chronic bronchitis had an in-service onset. Therefore, the question before the Board is whether the Veteran has a current disability that is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of bronchitis, and in-service herbicide exposure is presumed to have occurred, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of bronchitis is related to an in-service injury, event, or disease. A March 2021 VA examiner opined that the Veteran's bronchitis was less likely than not related to his service, to include his herbicide exposure. The examiner noted that despite the reported history of bronchitis one to two times a year, the Veteran's bronchitis and his presumed herbicide exposure are less likely than not related. The examiner noted that chronic bronchitis was not shown for many years after discharge from service, and that the Veteran's history of chronic bronchitis is related to his prior smoking history. There is no competent medical opinion to the contrary. While the Veteran believes his bronchitis is due to his herbicide agent exposure, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized medical education. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the March 2021 medical opinion. In sum, there is no competent evidence of record establishing that the Veteran's current bronchitis is related to service. Accordingly, the preponderance of the competent and probative evidence is against the Veteran's claim, and service connection for bronchitis is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. N. Wilson, Associate 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.