Citation Nr: A20017899 Decision Date: 12/03/20 Archive Date: 12/03/20 DOCKET NO. 200716-98203 DATE: December 3, 2020 ORDER New and relevant evidence has been submitted to warrant readjudicating a claim for service connection for hypothyroidism, to include as due to in-service exposure to herbicide agents. New and relevant evidence has been submitted to warrant readjudicating a claim for service connection for hairy B-cell leukemia, claimed as pernicious anemia, to include as due to in-service exposure to herbicide agents. REMANDED Entitlement to service connection for hypothyroidism, to include as due to in-service exposure to herbicide agents, is remanded. Entitlement to service connection for hairy B-cell leukemia, claimed as pernicious anemia, to include as due to in-service exposure to herbicide agents, is remanded. FINDINGS OF FACT 1. In an unappealed June 2005 rating decision, the RO confirmed and continued the denial of the Veteran’s claim for entitlement to service connection for hypothyroidism. 2. Evidence received since the June 2005 rating decision is new and relevant to the claim of entitlement to service connection for hypothyroidism, to include as due to in-service exposure to herbicide agents. 3. In an unappealed May 2011 rating decision, the RO conducted a special review of the Veteran’s previously denied claim for service connection pursuant to Nehmer v. U.S. Department of Veterans Affairs, 284 F.3d 1158 (9th Cir. 2002) and denied the claim service connection for hairy B-cell leukemia, claimed as pernicious anemia, associated with herbicide exposure. 4. Evidence received since the May 2011 rating decision is new and relevant to the claim of entitlement to service connection for hairy B-cell leukemia, claimed as pernicious anemia, to include as due to in-service exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for readjudicating the claim for service connection for hyperthyroidism, to include as due to in-service exposure to herbicide agents, have been met. 38 C.F.R. §§ 3.156, 3.2501, 19.2. 2. The criteria for readjudicating the claim for service connection for hairy B-cell leukemia, claimed as pernicious anemia, to include as due to in-service exposure to herbicide agents, have been met. 38 C.F.R. §§ 3.156, 3.2501, 19.2. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1968 until his honorable discharge in August 1994, to include service in the Republic of Vietnam. The Board thanks the Veteran for his service to our country. This matter is before the Board of Veterans’ Appeals on appeal from an August 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decisions on their claims to seek review. This decision has been written consistent with the new AMA framework. In March 2020, the Veteran submitted VA Form 10182, Decision Review Request: Board of Appeal (Notice of Disagreement), where he elected the Direct Review docket to the two issues on appeal. As explained in the VA Form 10182, “Direct Review” means the Board’s decision must be based on the evidence of record at the time of the prior decision, with no evidence submission or hearing request. As such the Board has considered only the evidence of record at the time of the August 2019 rating decision. The Board observes since the filing of his March 2020 VA Form 10182, the Veteran has made multiple submissions of evidence; the Veteran has requested his compensation and pension examinations be rescheduled. See VA Forms 27-0820 Report of General Information, dated October 2019 and February 2020, respectively. However, this evidence was added to the claims file during a period of time when new evidence was not allowed. As noted, above, the Veteran selected “Direct Review” when he appealed his claim to the Board, thus the Board may not consider this evidence in its decision. 38 C.F.R. § 20.300. However, the Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. New and Relevant Evidence Claims VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156(d). New evidence is evidence not previously part of the actual record before agency adjudicators. Relevant evidence is information that tends to prove or disprove a matter at issue in a claim. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed. 38 C.F.R. § 3.2501(a)(1). Here the Veteran contends readjudication of his claims for entitlement to service connection for hyperthyroidism and hairy B-cell leukemia, claimed as pernicious anemia, is warranted. For the sake of clarify, the procedural history of these claims will be discussed separately. 1. New and relevant evidence has been submitted to warrant readjudicating a claim for service connection for hypothyroidism, to include as due to in-service exposure to herbicide agents. In July 2004, the RO denied the Veteran’s initial claim for entitlement to service connection for hypothyroidism as a result of exposure to herbicides on the basis of no in-service incurrence; no evidence of hyperthyroidism having developed to a compensable degree within one year of separation from service; and the available scientific and medical evidence did not support the conclusion that hyperthyroidism is associated with herbicide exposure. Following the denial, new medical treatment records were submitted in December 2004, within a year of the July 2004 rating decision, prompting the RO to readjudicate the claim. In June 2005, the RO confirmed and continued the denial of the claim for service connection for hypothyroidism. As the Veteran did not appeal the June 2005 rating decision, that rating decision is final. In June 2019, the Veteran filed a Supplemental Claim requesting his claim for service connection for hypothyroidism, to include as due to in-service exposure to herbicide agents, be reviewed. In August 2019, the RO denied service connection for hypothyroidism finding the evidence submitted from Atlanta Diabetes Associates did not constitute new and relevant evidence because it was previously submitted and considered in the July 2004 rating decision. Furthermore, the Veteran missed the VA examination scheduled in support of his claim. Therefore, medical evidence that could have been used to support the claim was not available. The RO made a favorable finding that the Veteran has been diagnosed with a hypothyroidism disability. The Veteran timely appealed to the Board requesting direct review. As noted above, the standard for relevant evidence is evidence that tends to prove or disprove a matter in issue. The evidence submitted after the June 2005 final rating decision is new and relevant to the claim. New and relevant evidence associated with the claims file includes lay statements from the Veteran, private treatment records from Atlanta Diabetes Associates, dated April 2006 to October 2018, and private medical opinions, dated in December 2010 and October 2018, in support of the claim. This evidence is new, because it was not contained within the record prior to June 2005. This evidence is relevant, because it is probative of whether the Veteran’s hypothyroidism is related to service, to include as due to in-service exposure to herbicide agents. Therefore, based on the finding that new and relevant evidence has been associated with the record, the claim of entitlement to service connection for hypothyroidism must be readjudicated. 2. New and relevant evidence has been submitted to warrant readjudicating a claim for service connection for hairy B-cell leukemia, also claimed as pernicious anemia, to include as due to in-service exposure to herbicide agents. In July 2004, the RO denied the Veteran’s initial claim for entitlement to service connection for pernicious anemia as a result of exposure to herbicides on the basis of no in-service incurrence; no evidence that pernicious anemia developed to a compensable degree within one year of separation from service; and the available scientific and medical evidence did not support the conclusion that pernicious anemia is associated with herbicide exposure. Following the denial, new medical treatment records were submitted in December 2004, prompting the RO to readjudicate the claim. In June 2005, the RO confirmed and continued the denial of the claim for service connection for pernicious anemia. As the Veteran did not appeal the June 2005 rating decision, that rating decision is final. In November 2010, the RO sent the Veteran a letter explaining it was going to conduct a special review of his claims file pursuant Nehmer v. Veterans Administration of the Government of the United States. The Veteran’s case qualified for this special review based on a prior VA benefits claim for “anemia” because as a result of the Nehmer case, B-cell/Hairy cell leukemia had been added to the list of presumptive diseases associated with herbicide exposure in Vietnam. The RO requested that the Veteran provide information as to whether his anemia had manifested into B-cell/Hairy cell leukemia. The RO readjudicated the Veteran’s claim in May 2011, denying service connection for hairy B-cell leukemia, claimed as pernicious anemia, associated with herbicide exposure for purposes of entitlement to retroactive benefits. The RO concluded a confirmed diagnosis for hairy B-cell leukemia was not shown in the evidence of record. As the Veteran did not appeal the May 2011 rating decision, that rating decision is final. In June 2019, the Veteran filed a Supplemental Claim requesting his claim for service connection for hairy B-cell leukemia, claimed as pernicious anemia, to include as due to in-service exposure to herbicide agents, be reviewed. In August 2019, the RO denied service connection for hairy B-cell leukemia, claimed as pernicious anemia, finding the evidence submitted from Atlanta Diabetes Associates did not constitute new and relevant evidence because it was previously submitted and considered in the May 2011 rating decision. Furthermore, the Veteran missed the VA examination scheduled in support of his claim. Therefore, medical evidence that could have been used to support the claim was not available. The RO made favorable findings: (1) the Veteran was exposed to Agent Orange during military service which is shown to have a possible association with B-cell hairy leukemia and (2) the Veteran has been diagnosed with pernicious anemia. The Veteran timely appealed to the Board requesting Direct Review. As noted above, the standard for relevant evidence is evidence that tends to prove or disprove a matter in issue. The evidence submitted after the May 2011 final rating decision is new and relevant to the claim. New and relevant evidence associated with the claims file includes lay statements from the Veteran, literature providing a link between his pernicious anemia and exposure to herbicide agents, private treatment records from Atlanta Diabetes Associates, dated April 2006 to October 2018, and an October 2018 private medical opinion in support of the claim. This evidence is new, because it was not contained within the record prior to May 2011. This evidence is relevant, because it is probative of whether the Veteran’s pernicious anemia is related to service, to include as due to in-service exposure to herbicide agents. Therefore, based on the finding that new and relevant evidence has been associated with the record, the claim of entitlement to service connection for pernicious anemia must be readjudicated. REASONS FOR REMAND 1. Entitlement to service connection for hypothyroidism, to include as due to in-service exposure to herbicide agents, is remanded. 2. Entitlement to service connection for hairy B-cell leukemia, claimed as pernicious anemia, to include as due to in-service exposure to herbicide agents, is remanded. The issues of entitlement to service connection for hypothyroidism and hairy B-cell leukemia, claimed as pernicious anemia, are remanded to correct a duty to assist error that occurred prior to the August 2019 rating decision on appeal. Prior to the August 2019 rating decision, the Agency of Original Jurisdiction (AOJ) should have obtained medical opinions addressing: (1) whether the Veteran’s hypothyroidism was caused by or is otherwise etiologically related to service, to include as due to in-service exposure to herbicide agents and (2) whether the Veteran’s pernicious anemia was caused by or is otherwise etiologically related to service, to include as due to in-service exposure to herbicide agents. The Board acknowledges the Veteran failed to report for scheduled contractual examinations without providing good cause. Nevertheless, the AOJ should have still obtained medical opinions for these claims, given that the Veteran has a confirmed diagnosis and indication the disability may be associated with the Veteran’s service. VA is required to obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurring symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability; but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the merits of the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires the evidence of record indicate that the claimed disability or symptoms “may be” associated with the established event, disease, or injury, is a low threshold. McLendon, 20 Vet. App. at 83. First, the Board notes the Veteran has current diagnoses of hyperthyroidism and pernicious anemia. See February 2003 medical treatment records. Second, the record provides an indication that the Veteran’s claimed disorders may have been incurred in service, to include as due to in-service exposure to herbicide agents. The Board notes, although hyperthyroidism and pernicious anemia are not listed as presumptive diseases associated with herbicide exposure under 38 C.F.R. § 3.309(e), the Veteran may still be entitlement to service connection on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In support of his claim, the Veteran submitted a December 2010 statement from Dr. N.S. Welch who stated, in evaluation of the Veteran’s medical history it appears his hypothyroidism and pernicious anemia have been long-standing and may be service connected. As noted by the examiner, Hashimoto’s thyroiditis, the most common form of hypothyroidism, is usually present for years before it is diagnosed, as is pernicious anemia. The examiner stated that the condition could have been present before retirement. See December 2010 medical record. The Veteran submitted an October 2018 statement from Dr. J. Ownby who stated, the Veteran’s current problems include hypothyroidism and pernicious anemia with the later causing an increased risk of gastric cancer. The physician stated that per the Veteran’s medical records, these two conditions are longstanding and were present before he left the service in 1994. Dr. Ownby also relayed that the Veteran was exposed to Agent Orange while serving in Vietnam. See October 2018 medical record. The Veteran stated his doctors opined it was more likely than not he contracted pernicious anemia prior to retiring from the United States Army; specifically, because he is a Vietnam Veteran there was a probable service connection between contracting pernicious anemia and having served in Vietnam. The Veteran also stated there is no history of pernicious anemia in his family and he is the only Veteran in his family who served in Vietnam. See December 2010 Correspondence. In May 2019 the Veteran submitted literature linking an association between pernicious anemia and exposure to herbicide agents. The evidence described, which was associated with the record prior to the August 2019 rating decision, triggers VA’s duty to assist by providing medical opinions on these matters. Thus, a remand is warranted to correct the pre-decisional duty to assist error by obtaining medical opinions for the Veteran’s claimed disabilities. The matters are REMANDED for the following action: 1. Obtain medical opinions to determine the nature and etiology of the Veteran’s hypothyroidism and pernicious anemia from an examiner(s) with appropriate expertise. Following review of the claims file, the examiner(s) is requested to respond to the following: (a.) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s hypothyroidism had its onset during, or is otherwise related to any event or injury during the Veteran’s active duty, to include in-service exposure to herbicide agents; or manifested within a year of his active duty discharge. (b.) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s pernicious anemia had its onset during, or is otherwise related to any event or injury during the Veteran’s active duty, to include in-service exposure to herbicide agents; or manifested within a year of his active duty discharge. In rendering these opinions, the examiner’s attention is drawn to the following: • December 2010 medical statement from Dr. N.S. Welch. • October 2018 medical statement from Dr. J. Ownby. • Literature linking an association between pernicious anemia and exposure to herbicide agents, received May 2019. In providing the requested opinions, the examiner(s) is asked to not rely solely on whether the diagnosed hypothyroidism and pernicious anemia are ones for which a “presumption” is established and, instead, state whether they are the result of exposure to herbicide agents even though they are not on the list of “presumptive” diseases. The examiner(s) should note that absence of treatment for a disability in the Veteran’s service treatment records should not serve as the sole basis for a negative opinion. The examiner(s) is also advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the Veteran’s assertions in any regard are discounted, the examiner(s) should clearly so state and explain why. The examiner(s) should provide a complete rationale for all opinions offered. If the examiner(s) is unable to provide any requested opinion without resorting to speculation, he/she should provide an explanation as to why this is so and note what, if any additional evidence would permit such an opinion to be made. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Grace Johnk, 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.