Citation Nr: 0704128 Decision Date: 02/09/07 Archive Date: 02/22/07 DOCKET NO. 03-36 330 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for thyroid dysfunction secondary to Graves disease, incurred as a result of exposure to herbicide agents. 2. Entitlement to service connection for opthalmopathy secondary to Graves disease, incurred as a result of exposure to herbicide agents. REPRESENTATION Appellant represented by: Brooks M. McDaniel WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Simone C. Krembs, Associate Counsel INTRODUCTION The veteran served on active duty from February 1966 to February 1968. This appeal comes before the Board of Veterans' Appeals (Board) from February 2000 and August 2001 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the veteran's claims for service connection for thyroid dysfunction and opthalmopathy secondary to Graves disease, incurred as a result of exposure to herbicide agents. In July 2006, the veteran testified before the Board at a hearing that was held at the RO. In a July 2006 statement, the veteran raised new claims of entitlement to service connection for diabetes mellitus, secondary to exposure to herbicide agents, for service connection for hypertension, secondary to diabetes mellitus and/or post-traumatic stress disorder, and for an earlier effective date of service connection for post-traumatic stress disorder. These claims are referred to the RO for appropriate action. FINDINGS OF FACT 1. The veteran's thyroid dysfunction is secondary to Graves disease, which, as likely as not, was incurred as a result of exposure to herbicide agents in service. 2. The veteran's opthalmopathy is secondary to Graves disease, which, as likely as not, was incurred as a result of exposure to herbicide agents in service. CONCLUSIONS OF LAW 1. Thyroid dysfunction secondary to Graves disease is proximately due to or the result of exposure to herbicide agents. 38 U.S.C.A. §§ 1131; 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2006). 2. Opthalmopathy secondary to Graves disease is proximately due to or the result of exposure to herbicide agents. 38 U.S.C.A. §§ 1131; 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2006). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Service connection for certain chronic diseases will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2006). The veteran's Graves disease and related disorders (hypothyroidism and opthalmopathy) are not conditions subject to presumptive service connection. Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e) (2006), will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. Graves disease, hypothyroidism, and opthalmopathy, however, are not among these diseases. See 38 C.F.R. §§ 3.307(a)(6)(iii); 3.307(d), 3.309(e) (2006). An appellant, however, is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Service connection may 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2006). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2006). A veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, 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). The veteran in this case served on active duty in Vietnam for approximately one year during the applicable time period. Thus, he will be afforded the presumption of exposure to Agent Orange. However, the veteran has not been diagnosed with a disease that has been shown to have a positive association with exposure to herbicides, and service connection as secondary to exposure to Agent Orange is therefore not warranted on a presumptive basis. See 38 C.F.R. § 3.309(e). The veteran, however, has submitted evidence establishing proof of actual direct causation, and the Board accordingly finds that he is entitled to service connection for both thyroid dysfunction and opthalmopathy secondary to Graves disease. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In a July 2006 letter, the veteran's private physician opined that the veteran's Graves disease, which resulted in his current diagnoses of hypothyroidism and opthalmopathy, was as likely as not caused by exposure to Agent Orange. Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In this case, the July 2006 positive nexus supplied by the veteran's private physician supports the veteran's claims, and there is no evidence to the contrary on any issue relevant to entitlement to service connection. As the veteran's Graves disease has been determined to be, as likely as not, related to exposure to herbicide agents, and the veteran's current diagnoses of thyroid dysfunction and opthalmopathy are related to his Graves disease, the Board finds that service connection for both thyroid dysfunction and opthalmopathy is warranted. As the preponderance of the evidence is in favor of the claim, service connection for thyroid dysfunction and opthalmopathy, each secondary to Graves disease, incurred as a result of exposure to herbicide agents, is warranted. The benefit-of-the-doubt rule has been considered in making this decision. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Appellant In light of the favorable disposition, the Board finds that a discussion as to whether VA's duties to notify and assist the veteran have been satisfied is not required. The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the veteran. ORDER Service connection for thyroid dysfunction secondary to Graves disease, incurred as a result of exposure to herbicide agents, is granted. Service connection for opthalmopathy secondary to Graves disease, incurred as a result of exposure to herbicide agents, is granted. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs