Citation Nr: 20042032 Decision Date: 06/19/20 Archive Date: 06/19/20 DOCKET NO. 18-52 300 DATE: June 19, 2020 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a hypothyroidism disability; the appeal to reopen is granted. Entitlement to service connection for hypothyroidism is granted. REMANDED Entitlement to an initial compensable disability rating for hypertension is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a July 2007 decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran’s claim for service connection for a hypothyroidism disability. The Veteran did not perfect an appeal of the decision or submit new and material evidence within one year of the decision. 2. The evidence pertaining to the Veteran’s hypothyroidism disability submitted after the July 2007 AOJ denial is not cumulative or redundant of evidence of record at the time of the prior denial, relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims. 3. The Veteran has qualifying service in the Republic of Vietnam and, therefore, it is presumed that he was exposed to herbicides. 4. The evidence of record is at least in relative equipoise as to whether his current hypothyroidism is related to his in-service herbicide exposure. CONCLUSIONS OF LAW 1. The July 2007 denial of the claim for service connection for a hypothyroidism disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104; 20.302, 20.1103. 2. As additional evidence received since the July 2007 denial is new and material, the criteria for reopening the claim for service connection for a hypothyroidism disability, are met. 38 U.S.C. §§ 1110, 5100, 5102, 5103, 5103A, 5107, 5108; 38 C.F.R. §§ 3.156, 3.159. 3. The criteria for entitlement to service connection for hypothyroidism have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to October 1971, including service in the Republic of Vietnam. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a hypothyroidism disability The Veteran’s claim for service connection for a claimed hypothyroidism disability, was denied in a July 2007 rating decision, based on a finding that the Veteran’s hypothyroidism was not related to his active duty service to include his presumed exposure to herbicides. The Veteran did not perfect a timely appeal of the July 2007 decision, and the decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b); 20.302, 20.1103. Generally, a claim which has been denied in an unappealed VA regional office (RO) decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156. Regardless of the determination reached by the RO, the Board must find new and material evidence to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The evidence received since the last final denial of July 2007 includes a March 2018 private medical opinion indicating that the Veteran’s current hypothyroidism may be related to his active duty service to include his presumed exposure to herbicides. The Board finds that the newly submitted evidence is material; therefore, it provides a basis for reopening the Veteran’s claim for service connection for a hypothyroidism disability. 2. Entitlement to service connection for hypothyroidism The Veteran contends that his hypothyroidism warrants entitlement to service connection. Specifically, the Veteran asserts that his hypothyroidism is directly related to his active duty service, including his presumed exposure to herbicides in Vietnam. 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). A Veteran, who during active service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during that service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any herbicide agent during service. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Service connection based on herbicide exposure will be presumed for certain specified diseases. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6). The claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When the evidence supports the claim or is in relative equipoise, the claim will be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this case, private treatment records indicate that the Veteran has a current diagnosis of hypothyroidism. A current disability has therefore been demonstrated. Additionally, the Veteran is presumed to have been exposed to herbicides during his service in the Republic of Vietnam. See 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Accordingly, an in-service injury has been shown. As the record contains evidence of a current disability, and evidence of an in-service injury or disease, what remains to be established is whether there is a nexus between the diagnosed hypothyroidism and his in-service disease or injury. The Veteran submitted a March 2018 private assessment from Dr. D.R. regarding his hypothyroidism condition. Dr. D.R. interviewed the Veteran and reviewed the medical evidence of record. The doctor also review and supplied relevant medical literature noting a potential link between hypothyroidism and exposure to herbicides like Agent Orange. Based on the totality of the evidence, Dr. D.R. opined that it was at least as likely as not that the Veteran’s hypothyroidism was caused by exposure to herbicides, including Agent Orange, while serving in Vietnam. The Board finds that the probative medical evidence of record is in favor of finding that the Veteran’s hypothyroidism is related to his active military service, including his presumed exposure to herbicides in Vietnam. The Board finds the March 2018 private medical opinion from Dr. D.R. to carry significant probative weight because Dr. D.R. provided an adequate rationale based on the medical evidence of record and the appropriate medical literature. Furthermore, there is no medical opinion of record that directly contradicts this opinion. Accordingly, the Board finds that service connection for hypothyroidism is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to an initial compensable disability rating for hypertension is remanded. The Veteran contends that his current service-connected hypertension disability warrants an increased rating. The Veteran most recently underwent an examination related to his service-connected hypertension disability in July 2016. The Veteran has subsequently stated that his service-connected hypertension disability has worsened. Specifically, the Veteran has stated that he currently takes twice as much medication to control his hypertension. Since the July 2016 examination findings appear to not be representative of the current severity of the disability on appeal, the claim must be remanded as a new VA examination is warranted. 2. Entitlement to a TDIU is remanded. Where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Board finds the issue of entitlement to a TDIU was raised by the record; therefore, the issue is properly on appeal. The claim for a TDIU is inextricably intertwined with the service connection claim granted herein, as well as the Veteran’s remanded claim for an increased rating for hypertension. As such, the grant must be implemented and the remanded claim must be adjudicated by the AOJ, before the TDIU claim can be addressed on appeal. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for appropriate VA examination to determine the severity of his service-connected hypertension. The file must be made available to the examiner for review of the case. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail. The examiner must identify all manifestations of the Veteran’s hypertension disability, including the predominant diastolic pressures and systolic pressures; and state whether continuous medication is required for control of the hypertension. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David M. Sebstead, 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.