Citation Nr: 21061783 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 14-25 370A DATE: October 5, 2021 ORDER Entitlement to service connection for hypothyroidism is granted. Entitlement to service connection for residuals of thyroid cancer is granted. REMANDED Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities is remanded. FINDINGS OF FACT 1. The Veteran served within the 12-mile nautical territorial sea of the Republic of Vietnam and is presumed to have been exposed to herbicide agents. 2. The Veteran's hypothyroidism is presumed to be associated with in-service exposure to herbicide agents. 3. Resolving reasonable doubt in his favor, the Veteran's thyroid cancer is due to in-service exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for service connection for hypothyroidism are met. 38 U.S.C. §§ 1110, 1116, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for thyroid cancer are met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from September 1966 to June 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal of March 2012 and July 2018 rating decisions issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2017, the Veteran provided testimony before Veterans Law Judge (VLJ) Monroe. A transcript of that hearing is of record. In a September 2019 decision, the Board reopened the Veteran's claim for service connection for peripheral neuropathy and denied the claim on the merits. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In August 2020, pursuant to a Joint Motion for Partial Remand (Joint Motion), the Court vacated the portion of Board's decision that denied service connection for peripheral neuropathy. In January 2021, the Veteran was notified that VLJ Monroe was no longer employed at the Board. He requested another hearing before a VLJ who would ultimately make the decision in his appeal. In June 2021, he testified before the undersigned VLJ. A transcript of the hearing is of record. Service Connection Hypothyroidism and Thyroid Cancer In this case, the Veteran maintains that his current disabilities are related to in-service exposure to herbicide agents and other chemicals. Regarding herbicide exposure, the Veteran served on the U.S.S. Chicago during the Vietnam era. The evidence, including deck logs, indicated that the U.S.S. Chicago traveled within the 12-mile territorial waters of the Republic of Vietnam and anchored in Da Nang harbor during the Veteran's service aboard that ship. Therefore, the Veteran is presumed to have been exposed to herbicide agents during his service. See Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir 2019) (en banc). In other words, in-service exposure to herbicide agents, including Agent Orange, is conceded. The Veteran's treatment records and an August 2020 VA examination report indicate that he has been diagnosed with hypothyroidism and thyroid cancer. Thus, the remaining and dispositive question is whether there is a link, i.e., a nexus, between his current disabilities and the in-service exposure to herbicide agents or other chemicals. Regarding hypothyroidism, the National Defense Authorization Act (NDAA) for Fiscal Year 2021, Pub. L. No. 116-283 § 9109, added three disorders to the list of diseases presumptively associated with exposure to herbicide agents. Specifically, it amended 38 U.S.C. § 1116(a)(2) to include parkinsonism, bladder cancer, and hypothyroidism. Therefore, as hypothyroidism is presumed to be associated to exposure to herbicide agents, service connection for hypothyroidism is warranted. Regarding thyroid cancer, the Board notes that the disease is not listed among the diseases that VA presumes as associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). However, direct service connection may be established by evidence demonstrating that the disease was in fact "incurred" during service. See 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The August 2020 VA examiner opined that it was at least as likely as not that thyroid cancer was incurred in or caused by service, noting that the Veteran had been exposed to herbicide agents during service. In addition, the Veteran submitted an article noting that a team of physicians presented research that found veterans with known Agent Orange exposure have a higher rate of thyroid cancer. The above evidence indicates that the Veteran's thyroid cancer is related to in-service exposure to herbicide agents. There are no medical opinions of record to the contrary. Therefore, resolving reasonable doubt in his favor, the Board finds that service connection for residuals of thyroid cancer is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND In the Joint Motion, the parties agreed that the Board's September 2019 decision did not adequately address a May 2010 VA neurology note containing a medical opinion stating that it was conceivable that the Veteran's Agent Orange exposure may have played a role in his idiopathic neuropathy. The parties noted that the Board relied primarily on a March 2014 VA examiner opinion, which also did not address the May 2010 VA neurology note. The Veteran has also raised an additional theory of entitlement that was not addressed by the March 2014 VA examiner. In May 2018, he submitted lay statements from fellow sailors who noted that they used dry cleaning fluid and trichlorethylene (TCE) for degreasing purposes. In addition, they reported working with hydraulic fluid, epoxy paint, and methyl ethyl ketone. The Veteran maintains that exposure to those toxins during service could have caused his peripheral neuropathy. In addition, the Veteran submitted information on peripheral neuropathy from the Mayo Clinic. The Mayo Clinic listed hypothyroidism as a possible cause of peripheral neuropathy. As discussed above, the Board has granted service connection for hypothyroidism. Based on the foregoing, the Board finds that the March 2014 VA examination is inadequate. Therefore, a remand is necessary to afford the Veteran an additional VA examination to address the nature and etiology of his peripheral neuropathy. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any peripheral neuropathy that may be present. If possible, the VA examination should be conducted by a neurologist. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present peripheral neuropathy is etiologically related to the Veteran's active service, to include in-service exposure to herbicide agents, dry cleaning fluid, TCE, hydraulic fluid, epoxy paint, and/or methyl ethyl ketone. In rendering the above opinion, the examiner should address the May 2010 VA neurology note containing a medical opinion stating that it was conceivable that the Veteran's Agent Orange exposure may have played a role in his idiopathic neuropathy. In addition, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present peripheral neuropathy is caused or aggravated by the Veteran's service-connected hypothyroidism. The examiner should address the information from the Mayo Clinic submitted in May 2018, which notes that hypothyroidism is a possible cause of peripheral neuropathy. A rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all opinions provided comport with this remand and undertake any other development found to be warranted. 4. Then, readjudicate the issue remaining on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mishalanie, 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.