Citation Nr: 21031903 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-22 797A DATE: May 24, 2021 ORDER Entitlement to service connection for a neck disability is denied. Entitlement to service connection for right eye vision loss is denied. REMANDED Entitlement to service connection for lung cancer is remanded. Entitlement to service connection for emphysema is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The preponderance of evidence is against a finding that the Veteran had a neck disability during or contemporary to the appeal period. 2. A right eye disability is not shown to be due to, etiologically related to, or aggravated by any event, injury, or disease incurred in service, or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a neck disability have not been met. 38 U.S.C. § §§ 1101, 1110; 38 C.F.R. § §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for right eye vision loss have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1964 to September 1967. The Veteran died in October 2016. The Appellant seeks benefits as a surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. Service Connection Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in-service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Secondary service connection may be established for a disability that is proximately due to, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310. Competent lay evidence means 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 the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. §§ 3.159(a)(2). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record but does not have to discuss each piece of evidence). The analysis will focus on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). 1. Entitlement to service connection for a neck disability. The Appellant contends that the Veteran is entitled to service connection for a neck disorder. Neither the late Veteran nor the Appellant have put forth any arguments to or stated how any claimed neck disability is related to service. The Board finds that the evidence of record does not show that the Veteran has had a current diagnosis of a neck disability during or contemporary to the pendency of this claim. Therefore, as the preponderance of evidence is against a finding that the Veteran had a current, chronic neck diagnosis, or any other cervical disability, or has had the claimed disability during or contemporary to the claims period, the claim for service connection must be denied. The evidence of record shows no evidence of a current, chronic neck disability diagnosis or any other chronic cervical spine disability. The Board notes that there is evidence of record showing the Veteran as complaining of neck pain as early as July 2013, approximately 46 years after separation from service. However, the record does not indicate that the Veteran has ever been diagnosed with any neck disability, nor does the evidence suggest pain resulting in functional loss. The Board notes that pain is a symptom and is not considered an actually disabling condition. For purposes of service connection, pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. There is no evidence showing chronic disability manifested by neck pain resulting in functional limitation that began in or was caused by service. Importantly, the evidence does not suggest that any neck pain results in functional loss. The service medical records do not show an event, disease, or injury in service, nor do they show any complaints, treatment, or diagnosis for any neck condition while in service. An analysis of post-service medical records shows no diagnosed neck disability or condition. The Appellant has not submitted any competent evidence that demonstrates a current diagnosis of a chronic neck disability or any other potential chronic cervical spine conditions during the claim period. No post-service treatment record documents a neck diagnosis or any findings other than pain. The Board notes that, competent lay evidence means 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); Bruce v. West, 11 Vet. App. 405 (1998) (one not a medical expert is nevertheless competent to offer evidence of his symptoms in support of a claim for an increased rating); Layno v. Brown, 6 Vet. App. 465 (1994). The Board acknowledges that the Appellant has claimed that the Veteran had a neck disability related to service. However, the Board finds that the Appellant, as a lay person, is not competent to provide a diagnosis of a complex disability of the cervical spine, and thus is not competent to diagnose a chronic cervical spine disability or provide an opinion as to the etiology of any spine disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Appellant has not submitted competent evidence that supports a finding of a chronic neck disability, to include pain resulting in functional impairment, during the pendency of the claim. The Board notes that a VA medical opinion has not been obtained in connection with the claim. 38 U.S.C. § 5103A(a). A VA medical examination is not required as a matter of course in virtually every case. Where only a conclusory generalized statement is provided by the Veteran, an examination may not be required. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). VA only needs to make reasonable efforts to assist a claimant in obtaining a medical opinion when an opinion is necessary to substantiate the claim for a benefit. Delarosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). The claims file contains the Veteran's general lay assertions that link a neck disability to active duty service. The Appellant has put forward no evidence to suggest that the Veteran had a neck disability related to service and did not allege any event or incident during service. There is no evidence of record that suggests that the Veteran had a chronic neck disability diagnosis, an in-service incident, or any possible connection between the two. Thus, the Board does not find it necessary to obtain a medical opinion, as there is no reasonable possibility that it would substantiate the claim. 38 C.F.R. § 3.159(c)(4). VA is not obligated to grant a claim for benefits simply because there is no evidence disproving it. A claimant has the responsibility to present and support a claim for benefits. 38 U.S.C. § 5107; Skoczen v. Shinseki, 564 F.3d 1319 (2009); Fagan v. Shinseki, 573 F.3d 1282 (2009). Although VA has a duty to assist a claimant in substantiating a claim, that duty is not a one-way street, and it is important that a claimant make efforts to assist VA in gathering evidence relevant to the claim. Woods v. Gober, 14 Vet. App. 214 (2000); Hurd v. West, 13 Vet. App. 449 (2000). The Board finds that the Appellant's bare assertion, without more, that the Veteran had an alleged disability due to service does not require more of VA's duty to assist. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (rejecting theory that medical examinations are to be routinely and virtually automatically provided to all Veterans in disability cases involving nexus issues simply because there are lay statements that the condition is linked to service). There is no evidence of the claimed disability or any indication of an association to service. There is sufficient competent evidence of record for the Board to make a decision on the claim. Therefore, VA's duty to provide an examination with an opinion is not triggered. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). After a careful review of the evidence of record, the Board finds the preponderance of the evidence is against the claim of entitlement to service connection for a neck disability. None of the Veteran's medical treatment providers have given any indication that the Veteran had been diagnosed with a chronic neck disability, or had a neck disability resulting in functional impairment, and the Appellant has not submitted any competent medical evidence which supports the claim of a current neck disability or shows a relationship between any diagnosed neck disability and service. In the absence of competent medical evidence providing a current, recurrent chronic neck diagnosis or any other chronic, recurrent cervical spine disability, the threshold requirement for substantiating the claims for service connection is not met. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board is appreciative of the Veteran's faithful and honorable service to our country. The Board acknowledges that VA is statutorily required to resolve reasonable doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. However, the Board finds that the preponderance of the evidence is against a finding of any diagnosis of a neck or cervical spine disability, or functional loss resulting in disability, or that any neck or cervical spine disability is related to active service. Therefore, the claim for service connection for a neck disability must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for right eye vision loss. Prior to his death, the Veteran asserted that current right eye vision loss was due to having a piece of metal removed from the eye while stationed in Vietnam in 1967. The service medical records do not show that event and the Veteran could not provide enough details concerning the location to further research the incident. Nevertheless, because some of the service records were very unclear, his military occupational specialty was cargo handler, which is consistent with the places and circumstances of the incident, and he was consistent in his description of the incident, VA determined that an examination was necessary. Therefore, a July 2019 Board remand sought a medical opinion to determine whether any current eye disorder could be related to the incident described by the Veteran. In a January 2021 opinion, after review of the Veteran's records, the examiner, an ophthalmologist, opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service, injury, event, or illness. The examiner explained that the need for the cornea transplant in the first place was an episode of herpes simplex keratitis which occurred in June 1993. That was in the pertinent notes. A cornea foreign object, which happened in 1967, was less likely than not to cause an infection 26 years later. There was no record of any type of infection or other problem noted in the record. There are no other etiology opinions of record. The only evidence that provides a link between the Veteran's service and a currently diagnosed eye disability comes from the Veteran himself or the appellant. The Board acknowledges the Veteran's assertions that a current right eye disability is the result of an in-service incident. However, the Board finds that the Veteran, and appellant, as lay persons without the appropriate medical training and expertise in diagnosing and treating ocular disabilities, are not competent to provide a probative opinion as to whether an ocular disability was either caused by any incident of active service. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Veteran has not been shown to possess the adequate medical knowledge, education, or training, to competently opine to the diagnosis or etiology of any eye disability. While the Veteran may state that he experienced decreased vision, he is not competent to provide a diagnosis of a specific disability, or to opine as to the etiology of any disability as those issues fall outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). That determination must be provided by a medical professional with the proper training, education, and experience in the appropriate fields. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). It is to be noted that the Board is not free to substitute its own judgment for a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board finds the January 2021 VA examiner opinion to be competent, credible, and persuasive. The VA examiner opined that it was less likely than not that the claimed eye disability was related to an incident of service and explained the basis for the opinion. The Board finds the VA examiner opinion to be more probative than the lay statements of record. The opinion of the VA examiner is highly probative because it is supported by detailed rationale and provided by a trained medical professional, in this case an Ophthalmologist. The VA examiner specifically identified and discussed the Veteran's contentions and theory concerning service and the claimed disability. Accordingly, the VA examiner opinion is found to carry significant weight and to be the most persuasive evidence of record. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). To the extent that the Veteran's lay statements could be found to be competent and credible, the Board finds that they are outweighed by the January 2021 VA examination opinion because of the examiner's medical training. Accordingly, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim and against a finding that an eye disability was incurred in or is related to active service. The most persuasive evidence of record does not support that contention. The Board is appreciative of the Veteran's faithful and honorable service to our country. However, as the preponderance of the evidence is against the claim of entitlement to service connection for a right eye disability, the claim must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for lung cancer is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for lung cancer. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski,1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). In a January 2021 VA medical opinion, after review of the Veteran's record, the examiner stated that the primary source of the Veteran's metastatic adenocarcinoma was never established. As noted on the April 2016 oncology notation and again repeatedly throughout the medical record, the metastatic adenocarcinoma was of unknown source. An additional August 2016 lumbar spine biopsy found poorly differentiated adenocarcinoma of unknown primary etiology. Consequently, it could not be concluded that the primary source of the adenocarcinoma was from the lungs. Thus, a nexus could not be established. The examiner opined that the Veteran's claimed lung cancer was less likely than not (less than 50 percent probability) incurred in or caused by or originated in the lungs, and thus, was presumed due to exposure to herbicide agents during service. In a March 2021 addendum opinion, the same examiner as the January 2021 VA medical opinion, stated that the nodules were highly likely to represent cancer, particularly in the spread of overall metastatic disease. However, there was no tissue confirmation of diagnosis by biopsy or otherwise. Therefore, the cancer should be considered likely to be metastatic to the lungs. However, that could not be stated definitively. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the January 2021 VA medical opinion to be inadequate as it is contradictory. The examiner opined that a nexus cannot be established. Then, the examiner stated that the claimed lung cancer was less likely than not (less than 50 percent probability) incurred in or caused by the originated in the lungs, and thus, was presumed due to exposure to herbicide agents during service. The examiner both stated that a nexus could not be established and then provided, an albeit unclear, nexus statement. Therefore, the examination is inconclusive and cannot be used to adjudicate this claim. The Board finds the March 2021 addendum opinion to be inadequate because it is inconclusive. Medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (medical opinion framed in terms of "may or may not" is speculative and insufficient to support an award of service connection for the cause of death); Warren v. Brown, 6 Vet. App. 4 (1993) (physician's statement framed in terms such as "may" or "could" is not probative). Evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30 (1993). The March 2021 examiner explicitly stated that the cancer should be considered likely to be metastatic to the lungs, however, this cannot be stated definitively. Therefore, the Board finds the March 2021 VA medical opinion to be incomplete as the examiner's rationale was inconclusive. As the January 2021 and March 2021 VA medical opinions have been found to be incomplete and there is an absence of any additional adequate examinations, private or VA, regarding the claimed disability, remand is necessary for an etiological opinion regarding the Veteran's lung cancer. Accordingly, because the Veteran's lung cancer may have been caused by service, the Board finds that a VA opinion to determine any relationship between the Veteran's cancer and service should be obtained. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to service connection for hypertension. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for hypertension. Medical records show that the Veteran was diagnosed with hypertension prior to his death in October 2016. The Veteran asserted that the diagnosed hypertension was due to active service. Specifically, the Veteran asserted that hypertension was related to exposure to herbicide agents. The Veteran was presumed to have been exposed to herbicide agents during active duty service. However, hypertension is not a disease for which presumptive service connection based on exposure to herbicide agents is warranted. 38 C.F.R. § 3.309(e). That finding does not preclude the Veteran from pursuing a claim for service connection to be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In a January 2021 VA medical opinion, after review of the Veteran's records, the examiner stated that, based on the most recent guidance from the National Academy of sciences, herbicide agents are not an established potential etiology of hypertension in the medical literature and there are no more likely alternate etiologies. The examiner then provided a link to the National Academy of Sciences research to support that contention. The examiner then stated that a nexus could not be established. The examiner opined that the hypertension was at least as likely as not (50 percent or greater probability) incurred in or caused by service, to include exposure to herbicide agents during service. The examiner did not provide a rationale for that statement. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the January 2021 VA medical opinion to be inadequate as it is contradictory. The examiner opined that hypertension was not related to and was related to herbicide agent exposure. Therefore, the examination is inconclusive and cannot be used to adjudicate the claim. As the January 2021 VA medical opinion has been found to be incomplete and there is an absence of any additional adequate examinations, private or VA, regarding the claimed disability, remand is necessary for an etiological opinion regarding hypertension. Because the Veteran's hypertension may have been caused by service, the Board finds that a VA opinion to determine any relationship between the Veteran's hypertension and service should be scheduled. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 3. Entitlement to service connection for emphysema. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for emphysema. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski,1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In a January 2021 VA medical opinion, after review of the Veteran's record, the examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that herbicide agents are not an established primary etiology of emphysema in the medical literature. No nexus could be established. The examiner opined that pulmonary emphysema was less likely than not (less than 50 percent probability) incurred in or caused by service, to include exposure to herbicide agents during service. The Board finds the January 2021 VA medical opinion to be incomplete, as the examiner did not provide an adequate rationale to support the opinion. A mere conclusion without an underlying rationale is of no probative value. Miller v. West, 11 Vet. App. 345 (1998). In essence, the examiner stated that the Veteran's emphysema was not related to in-service herbicide agent exposure because herbicide agent exposure was not related to emphysema. The Board finds that rationale to be inadequate as the examiner did not properly explain what led to the opinion and cited no supporting evidence. The examiner reviewed the medical evidence of record for the claimed disability but did not explain how the evidence related to the medical opinion that the claimed disability was not related to service. The examiner simply offered a conclusory statement as rationale for the opinion. As the January 2021 VA examiner did not provide an adequate rationale, the opinion is incomplete. Accordingly, because the Veteran's respiratory disability may have been caused by service, the Board finds that a VA opinion to determine any relationship between the Veteran's respiratory disabilities and service should be scheduled. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Request the Appellant identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided treatment for all of the Veteran's claimed disabilities. After securing the necessary releases, attempt to obtain all copies of pertinent treatment records identified by the Appellant that are not currently of record. At a minimum, obtain any outstanding VA treatment records. All attempts to obtain records must be documented in the claims file. 2. Obtain a VA medical opinion from an oncologist with regard to any relationship between the Veteran's metastatic adenocarcinoma and active service. The examiner must review the claims file, including this Remand in its entirety, and should indicate review of the file in the examination report. Exposure to herbicide agents during service in Vietnam is presumed. After conducting review of the claims files, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that metastatic adenocarcinoma is etiologically related to active service or any event, disease, or injury during service, including whether the cancer (1) began during active service, (2) is related to presumed herbicide agent exposure, (3) manifested within one year after separation from service, or (4) was noted during service with continuity of the same symptomatology since service. The examiner is asked to specifically address whether it is at least as likely as not (50 percent or greater probability) that the Veteran's metastatic adenocarcinoma was caused by exposure to herbicide agents. While a previous opinion noted that that the primary site of the cancer was unknown, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the metastatic adenocarcinoma was a respiratory cancer or a cancer that began in the lungs, bronchus, larynx, or trachea. The examiner should discuss the sites affected and the type of cancer in determining whether it was at least as likely as not a respiratory cancer and if the examiner finds that a non-respiratory cancer was more likely (more than 50 percent likely), the examiner should explain why. The examiner should also state whether or not the Veteran's metastatic adenocarcinoma was a soft-tissue sarcoma. A clearly stated rationale for each opinion offered should be provided and must not be based solely on the lack of an in-service record of the claimed disability. The expert is advised that the absence of metastatic adenocarcinoma from the list of conditions which are presumed to be the result of exposure to herbicide agents in Vietnam is not, by itself, a sufficient explanation for a negative opinion. 3. Obtain an opinion from a medical doctor to determine the nature and etiology of diagnosed hypertension. The examiner must review the claims file, including this Remand and the lay evidence of record and should indicate that review in the examination report. Exposure to herbicide agents during service in Vietnam is presumed. After reviewing the claims files, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that hypertension is etiologically related to active service or any event, disease, or injury during service, including whether the hypertension (1) began during active service, (2) is related to presumed herbicide agent exposure, (3) manifested within one year after separation from service, or (4) was noted during service with continuity of the same symptomatology since service. The examiner is asked to specifically address whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was caused by exposure to herbicide agents. A clearly stated rationale for each opinion offered must be provided and must not be based on the lack of an in-service record of the claimed disability. The expert is advised that the absence of hypertension from the list of disabilities which are presumed to be the result of exposure to herbicide agents is not a sufficient explanation for a negative opinion. 4. Obtain an opinion from a medical doctor to determine the nature and etiology of the Veteran's diagnosed respiratory disability, to include emphysema. The examiner must review the claims file, including this Remand and the lay evidence of record and should indicate that review in the examination report. Exposure to herbicide agents during service in Vietnam is presumed. After reviewing the claims files, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that a respiratory disability, to include emphysema, is etiologically related to active service or any event, disease, or injury during service, including whether the respiratory disability, to include emphysema, (1) began during active service, (2) is related to presumed herbicide agent exposure, (3) manifested within one year after separation from service, or (4) was noted during service with continuity of the same symptomatology since service. The examiner is asked to specifically address whether it is at least as likely as not (50 percent or greater probability) that the Veteran's respiratory disability, to include emphysema, was caused by exposure to herbicide agents. A clearly stated rationale for each opinion offered must be provided and must not be based on the lack of an in-service record of the claimed disability. The expert is advised that the absence of a condition from the list of disabilities which are presumed to be the result of exposure to herbicide agents is not a sufficient explanation for a negative opinion. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.