Citation Nr: 1326714 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 07-38 041A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for Grave's disease, claimed as due to herbicide exposure. 2. Entitlement to service connection for decreased visual acuity, claimed as due to Grave's disease. WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1969 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Houston, Texas. In January 2011, the Veteran testified before the undersigned Veterans Law Judge seated in Washington, D.C. A written transcript of this Board personal hearing has been added to the claims file. In March 2011, this issue was remanded for additional development, to include obtaining additional service treatment records and affording the Veteran a VA medical opinion. These actions were subsequently completed, to the extent possible, by the agency of original jurisdiction (AOJ). Thus, the required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to service connection for decreased visual acuity is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.. FINDINGS OF FACT 1. As the Veteran had service in Vietnam, he is presumed to have been exposed to herbicides during service. 2. The Veteran has a current diagnosis of Grave's disease. 3. Grave's disease is related to the in-service herbicide exposure. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for Grave's disease are met. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Given the favorable nature of the Board's decision with regard to the pending claim, the claim has been more than substantiated, it has been granted; therefore, there is no reason to discuss how VA complied with the duties to notify and assist the Veteran. Service connection for Grave's Disease The Veteran seeks service connection for Grave's disease. He contends such a disorder is the result of herbicide exposure during service. As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In the present case, Grave's disease, is not listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions for "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Next, the Board notes that the Veteran has claimed service in Vietnam during his active duty period. See 38 C.F.R. § 3.309(e). Thus, the theory of service connection for Grave's disease as due to herbicide exposure has been raised by the record. See Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000) (holding that a claim for disability compensation should be broadly construed to encompass all possible theories of entitlement). Any veteran who, during active military, naval or air service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed during such service to certain herbicidal agents (e.g., Agent Orange) unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. If the veteran was exposed to an herbicide agent during service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied; chloracne or other acneform disease consistent with chloracne, Type II diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutaneous tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchitis, laryngitis or trachea) and soft tissue sarcomas, other than osteosarcoma, chondrosarcoma Kaposi's sarcoma, or mesothelioma. 38 C.F.R. § 3.309(e). Grave's disease is not among the listed disorders. Notwithstanding that fact, a veteran may still establish service connection with evidence of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999). As an initial matter, the Veteran's service in Vietnam, and his exposure to herbicides therein, is established within the record and noted by the Board. His DD Form 214 and other records confirm 11 months of foreign service, to include service in Vietnam; thus, his exposure to herbicides is presumed. See 38 C.F.R. § 3.307(a)(6). Next, the Veteran's service treatment records are negative for any diagnosis of or treatment for Grave's disease or any other thyroid disorder, and he does not allege onset therein; rather, the Veteran contends his Grave's disease manifested in the years following service as the result of his exposure to herbicides. After a review of all the evidence, lay and medical, the Board finds that the evidence is in equipoise on the question of whether the Veteran's currently diagnosed Grave's disease is related to herbicide exposure during service. In support of his claim, the Veteran has submitted excerpts from various medical treatises, as well as his own contentions. Of particular importance is a study funded by VA and conducted by endocrinologists at the University of Buffalo. This study concluded that Vietnam veterans who came in contact with Agent Orange were more likely to develop Grave's disease than those without Agent Orange exposure. See Ajay Varanasi, M.D., "Are Veterans Exposed to Agent Orange More Likely to Get Grave's Disease?", OC-036, Presentation made at the 14th International Thyroid Congress in Paris; September 11-16, 2010; see also Science Daily, "Agent Orange Exposure Linked to Grave's Disease in Vietnam Veterans, Study Finds," Jun. 28, 2010. These researchers concluded Grave's disease was three times more prevalent among veterans with Agent Orange exposure. The Board has also taken notice of the Institute of Medicine's research into the effects of dioxin (herbicide) exposure on humans. See Institute of Medicine, Veterans and Agent Orange: Update 2010 (2010). While the Institute found "inadequate or insufficient evidence" to establish a nexus between thyroid disorders such as Grave's disease and dioxin exposure, they also conceded that some effects on thyroid function "have been observed in humans." Id. at 745-56. The Institute's report did not directly address the 2010 University of Buffalo study. Of record is a March 2013 medical opinion from O.A., M.D., a VA endocrinologist, based upon a review of the claims file. In his statement, Dr. A. noted that the Veteran was not diagnosed with Grave's disease until approximately 1993, more than 20 years after service separation and his exposure to Agent Orange. Based on this time gap, Dr. A. opined that it was less likely than not that an etiological nexus existed between the Veteran's Grave's disease and his herbicide exposure. Dr. A. did not address any of the aforementioned research on this topic, however. In May 2013, the Board requested another medical opinion from an expert for VA's Veterans Health Administration (VHA). A response was received that same month from A.J., M.D. In his opinion statement, Dr. J. opined it was less likely than not that the Veteran's Grave's disease was causally related to his herbicide exposure, as Grave's disease was not among the recognized presumptive disorders for which a nexus to herbicide exposure had been found. Regarding the 2010 study, Dr. J. stated that this study had not been published in a peer-reviewed journal, and it therefore should be given "no weight." Upon review of the totality of the record, the Board notes that the Institute of Medicine's 2010 update, while declining to find a positive nexus between herbicide exposure and thyroid dysfunction, did conclude that adverse effects related to dioxin exposure "have been observed in humans." The May 2013 VHA opinion from Dr. J. did not directly refute the conclusion of the 2010 study funded by VA, finding only that it had not been published. Likewise, the March 2013 VHA opinion from Dr. A. only pointed to the length of time between the Veteran's herbicide exposure and subsequent diagnosis of Grave's disease. Dr. A. did not, however, address any clinical studies or discuss the general medical principle, acknowledged by VA in establishing presumptions for certain diseases, that disorders may develop many years after an initial infection, injury, or other incident. See 38 U.S.C.A. §§ 1112, 1117 (West 2002) (establishing presumptions for certain classes of veterans). As at least some of the evidence of record tends to show a causal nexus between the Veteran's confirmed herbicide exposure and his subsequent diagnosis of Grave's disease. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Grave's disease is directly related to the in-service herbicide exposure. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for Grave's disease is granted. REMAND Service Connection for Decreased Visual Acuity The Veteran seeks service connection for a visual acuity disorder. Specifically, he contends his Grave's disease has resulted in visual impairment. Service connection may be awarded for any disability which is proximately due to or the result of, or is otherwise aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). Previously, the RO has denied this claim, finding that a visual acuity disorder was not incurred in service, and that service connection on a secondary basis was not warranted, as the Veteran had not been granted service connection for Grave's disease. As noted above, the Veteran has been awarded service connection for Grave's disease within this Board decision. The Board also notes that the Veteran was diagnosed with Graves ophthalmopathy in approximately 1993, at about the same time he was initially diagnosed with Grave's disease. Moreover, in the March 2013 VHA medical opinion, Dr. O.A., M.D., noted that "Grave's ophthalmopathy can be associated or aggravated by Grave's thyroid disease." In the May 2013 VHA medical opinion, however, Dr. A.J., M.D., found no evidence within the available records of any visual acuity disorders related to the Veteran's Grave's disease. The Board notes that this opinion was based only on a review of the record, without Dr. J. having personally examined the Veteran. VA is obligated to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A. VA's duty to assist includes providing a medical examination and/or obtaining a medical opinion when such an examination becomes necessary to substantiate the claim. 38 U.S.C.A. § 5103A(d). In the present case, the Veteran has been awarded service connection for Grave's disease, and the record contains competent evidence suggesting this disorder may have caused or aggravated a claimed visual acuity disorder. Thus, the Board finds the criteria have been met to afford the Veteran a VA medical examination and opinion to determine if a nexus exists between his Grave's disease and the disorder at issue. See generally McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should schedule the Veteran for a VA visual disorders examination for the purpose of assisting in determining the nature and etiology of any current disorders of the eyes or visual acuity. Following a review of all relevant evidence from the claims file, an interview with the Veteran to obtain a complete medical history, and an examination and any necessary testing, the examiner is asked to offer the following opinions: a) Based upon review of the record and personal evaluation of the Veteran, what current disabilities (diagnoses) of the eyes or visual acuity does the Veteran have? b) Is it at least as likely as not (50 percent or greater degree of probability) that any current disorders of eyes or visual acuity are caused by a service-connected disability or disabilities, including Grave's disease? c) Is it at least as likely as not (50 percent or greater degree of probability) that any current disorders of the eyes or visual acuity are aggravated (permanently increased in severity beyond the natural progression of the disorder) by a service-connected disability or disabilities, including Grave's disease? In answering these questions, the examiner should note that the Veteran's service-connected disabilities are Grave's disease, tinnitus, bilateral hearing loss, chronic eczema, dermatitis, and cellulitis. A rationale should be provided for any opinion or conclusion expressed. This rationale should address any relevant medical opinions of record, to include the 2013 VHA medical opinions from Drs. O.A. and A.J. If the examiner cannot respond without resorting to speculation, he or she should explain why a response would be speculative. 2. After undertaking any additional development deemed appropriate, and giving the Veteran the full opportunity to supplement the record, readjudicate the claim for service connection for decreased visual acuity in light of all additional evidence added to the record. Such reconsideration should include the theory of entitlement to service connection as secondary to a service-connected disability. If any benefit sought on appeal remains denied, the Veteran should be furnished with a supplemental statement of the case, and should be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs