Citation Nr: 20004869 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 16-21 766 DATE: January 23, 2020 ORDER Entitlement to service connection for prostate cancer is granted. Entitlement to service connection for hypothyroidism is denied. REMANDED Entitlement to service connection for erectile dysfunction secondary to prostate cancer is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicide agents during his service in the waters offshore of the Republic of Vietnam. 2. The Veteran has a current diagnosis of prostate cancer. 3. The preponderance of the evidence is against finding that hypothyroidism began during active service, or is otherwise related to, an in-service injury or disease, to include exposure to herbicide agents during service. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for hypothyroidism are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1971 to March 1973. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 and March 2017 rating decisions. The Veteran testified before the undersigned during a December 2018 hearing. The Board notes that the issues of entitlement to service connection for prostate cancer, erectile dysfunction, and hypertension were initially denied in the February 2014 rating decision. The Veteran submitted additional evidence in January 2015, specifically deck logs and lay statements in support of his claimed herbicide agent exposure. Though the Veteran submitted a new claim for entitlement to service connection for prostate cancer and erectile dysfunction in January 2015 and the March 2017 rating decision addresses the hypertension claim as a request to reopen a previously denied claim, this new evidence was received within one year following the original denial and related to an unestablished fact necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). Therefore, the February 2014 rating decision was not final with regard to these claims based on herbicide agent exposure. See 38 C.F.R. § 3.156(b). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). If a claimant was exposed to an herbicide agent during active military, naval, or air service, certain diseases enumerated in 38 C.F.R. § 3.309(e) are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1116(a). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam, to include in the waters offshore of the Republic of Vietnam, during the Vietnam era between January 9, 1962, and May 7, 1975, shall be presumed to have been exposed to an herbicide agent unless there is evidence to establish the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Certain chronic diseases, including endocrinopathies like hypothyroidism, may be presumed to have been incurred in or aggravated by service if they manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Moreover, if those same diseases are noted during service, continuity of symptomatology can show chronicity and subsequent manifestations of the same disease is presumed to be service connected. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-99 (1997) (Overruled on other grounds by Walker, 708 F.3d 1331). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for prostate cancer The Veteran seeks service connection for prostate cancer, a disability enumerated in section 3.309(e) as presumptively service-connected with a showing of herbicide exposure. VA and private medical records establish the Veteran has been diagnosed with prostate cancer and a prostatectomy was performed in March 2013 shortly before he submitted his claim for service connection. The record also shows VA has conceded herbicide exposure related to the Veteran’s service aboard the U.S.S. Arnold J. Isbell offshore of the Republic of Vietnam in a January 2019 rating decision that granted service connection for coronary artery disease. As the record clearly shows a current diagnosis of prostate cancer and the Veteran is presumed to have been exposed to herbicide agents, the Board finds service connection for prostate cancer is warranted on a presumptive basis under 38 C.F.R. § 3.309(e). 2. Entitlement to service connection for hypothyroidism The Veteran contends that his hypothyroidism is the result of exposure to herbicide agents during service. 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. The Board concludes that, while the Veteran has a current diagnosis and medical history of hypothyroidism, and herbicide agent exposure has been established on a presumptive basis, as discussed above, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of hypothyroidism began during service or is otherwise related to an in-service injury, event, or disease. The Veteran’s medical records fail to show any evidence of a link between his current hypothyroidism and active service, to include herbicide agent exposure. Service treatment records do not contain any reports of hypothyroidism prior to discharge. At his December 2018 Board hearing, the Veteran acknowledged that no medical professional has ever told him that his hypothyroidism might be the result of exposure to herbicide agents. The Board notes that hypothyroidism is an endocrinopathy subject to presumptive service connection under 38 C.F.R. § 3.309(a); however, the earliest recorded history of hypothyroidism of record is from March 2009, over three decades after separation from service. Though this record indicates the Veteran was already receiving medication for the condition, there is no evidence of record to suggest this condition became manifest within one year of separation from service, nor were there signs of hypothyroidism recorded during service. See 38 C.F.R. § 3.307(a)(3). The Veteran’s lay assertions that his hypothyroidism resulted from in-service exposure to herbicide agents are insufficient to establish his claim because he does not have the requisite skill or training to address a complex medical question such as the etiology for his hypothyroidism. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010) (noting evidence that indicates that the claimant’s disability may be associated with service must go beyond the claimant’s own statements suggesting that such a link exists). The Board acknowledges that the Veteran has not been examined by a VA examiner regarding his hypothyroidism; however, the Board finds no examination is warranted as there is no indication in the record that the Veteran’s hypothyroidism might be connected to his service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Based on these facts, the Board finds the preponderance of the evidence is against entitlement to service connection for hypothyroidism. The evidence fails to show the Veteran’s hypothyroidism manifested during service or within one year of separation from service. Though the Veteran is presumed to have been exposed to herbicide agents, hypothyroidism is not a listed condition for presumptive service connection on this basis and there is no evidence of record indicating an etiological link between herbicide agents and hypothyroidism. Therefore, the benefit-of-the-doubt doctrine does not apply, and service connection for the Veteran’s hypothyroidism is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction secondary to prostate cancer VA is required to obtain a medical opinion when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon, 20 Vet. App. 79. The Veteran’s VA treatment records clearly show a history of erectile dysfunction since 2013. While many of these treatment records note that the Veteran had prostate surgery in 2013 when referencing his erectile dysfunction, there are no medical opinions in these treatment records affirmatively stating the erectile dysfunction is related to the Veteran’s prostate cancer or the residuals of his prostatectomy. The Veteran has not received a VA examination related to his erectile dysfunction condition. As there are indications of a relationship between the Veteran’s erectile dysfunction and his now service-connected prostate cancer, a remand is necessary to schedule a VA examination. 2. Entitlement to service connection for hypertension is remanded. The Veteran has not been provided a VA examination in this case for his hypertension claim. Although hypertension is not included as a presumptive condition for Veterans exposed to herbicide agents in service, the Veterans and Agent Orange: Update 11 (2018), published by the National Academies of Sciences, Engineering and Medicine (NAS) found sufficient evidence of an association for hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War. In this update, hypertension was upgraded from its previous classification in the category of “limited or suggestive” evidence of an association to the category of “sufficient” evidence of an association. According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. Thus, a remand is required to obtain an opinion regarding whether it is at least as likely as not the Veteran’s hypertension is related to his herbicide exposure in service. The matters are REMANDED for the following action: 1. Obtain an opinion regarding the nature and etiology of the Veteran’s erectile dysfunction. The examiner must opine whether it is at least as likely as not (1) proximately due to service-connected prostate cancer disability, or (2) aggravated beyond its natural progression by service-connected prostate cancer disability, to include the residuals of a March 2013 prostatectomy. Schedule an examination of the Veteran only if deemed necessary by the medical professional providing the opinion. The examiner’s report must include a complete rationale for the opinion. 2. Obtain an opinion on the nature and etiology of the Veteran’s hypertension. Schedule the Veteran for an examination only if deemed necessary by the medical professional providing the opinion. The examiner must opine whether hypertension is at least as likely as not related to the Veteran’s conceded exposure to herbicide agents during military service. In responding to this question, the examiner must consider the NAS study and update referenced above that indicates there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and herbicide exposure. The examiner’s report must include a complete rationale for the opinion. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Pitman, 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.