Citation Nr: 21001533 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 16-13 524 DATE: January 8, 2021 ORDER Entitlement to service connection for hypothyroidism (claimed as thyroid disorder) associated with diabetes mellitus type II, is granted. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam and herbicide exposure has been conceded. 2. The medical evidence establishes that the Veteran has a current diagnosis of hypothyroidism. CONCLUSION OF LAW The criteria for entitlement to service connection for hypothyroidism (claimed as thyroid disorder) associated with diabetes mellitus, type II have been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from April 1971 to April 1974. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newnan, Georgia. This matter was previously before the Board in May 2019 and August 2020. However, the Board denied the matter in a May 2019 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims, resulting in a March 2020 Joint Motion for Remand (JMR). In August 2020, the Board remanded the matter for additional development consistent with the Court’s remand order. The Board finds that there has been substantial compliance with its remand directives and the matter is properly before the Board. Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives). Service Connection Service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In each case where a veteran is seeking service connection for a disability, due consideration shall be given to the places, types, and circumstances of the veteran’s service as shown by the veteran’s service record, the official history of each organization in which the veteran served, the veteran’s treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154(a). Additionally, service connection may be granted on a secondary basis. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In making all determinations, the Board must consider fully the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. 38 C.F.R. § 3.159. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence also can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for hypothyroidism (claimed as thyroid disorder) associated with diabetes mellitus, type II The Veteran contends that service connection is warranted for hypothyroidism (claimed as thyroid disorder) associated with diabetes mellitus, type II. A review of the record shows that service connection for diabetes mellitus, type II was granted on the basis of presumption of herbicide exposure during service in the Republic of Vietnam. The RO conceded exposure to herbicides after noting that Veteran’s service records showed that he served on the USS Deluth LPD 6 between May 1967 to Aug 1972. USS Duluth (LPD-6) made numerous dockings at Da Nang, as well as transporting troops and supplies to Chu Lai, Vung Tau, and Quang Tri, from May 1967 to August 1972. Furthermore, the Veteran’s personnel records reveal that he was awarded a Combat Action Ribbon, Vietnam Service Medal and Vietnam Campaign Medal. See DD Form 214. Section 1116 of title 38, United States Code, provides that a veteran who "served in the Republic of Vietnam" during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be considered exposed to an herbicide agent, and that exposure in turn will be presumed to be the cause of certain enumerated diseases. VA had historically interpreted the statutory phrase "served in the Republic of Vietnam" as incorporating a requirement that the Veteran served on land or inland waterways. See Haas v. Peake, 525 F.3d 1168, 1180-83 (Fed. Cir. 2008). In Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc), the U.S. Court of Appeals for the Federal Circuit held that veterans who served in the 12 nautical mile territorial sea of the Republic of Vietnam are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section's other requirements. The Veteran was afforded a post remand VA examination in October 2020. The examiner noted that the Veteran was diagnosed with diabetes mellitus in 2014 and hypothyroidism in 2015 and added that Diabetes mellitus, type II and hypothyroidism are two distinct medical conditions that have followed their normal progression. The examiner provided a negative nexus opinion and concluded that there is no medical evidence to support aggravation of the hypothyroid condition by service-connected diabetes mellitus, type II. However, on January 1, 2021, the National Defense Authorization Act (NDAA) for Fiscal Year 2021 became law. One section of the law added additional diseases to the list of those presumed service connected in veterans exposed to herbicide agents. Specifically, the law added hypothyroidism to 38 U.S.C. § 1116(a)(2)(K). As a result, hypothyroidism was added as a presumptive condition during the pendency of this appeal. As the Veteran's exposure to herbicide agents has already been conceded based on his service in the Republic of Vietnam and in light of the NDAA for Fiscal Year 2021’s addition of hypothyroidism as a presumptive condition, the Board finds that the preponderance of the evidence is for the claim and entitlement to presumptive service connection for hypothyroidism is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, 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.