Citation Nr: A21017201 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 190731-69457 DATE: October 25, 2021 ORDER Entitlement to service connection for hypothyroidism is granted. FINDING OF FACT The Veteran was exposed to herbicide agents during his service in the Republic of Vietnam, and he has a current diagnosis of hypothyroidism. CONCLUSION OF LAW Hypothyroidism is presumed to have been incurred in active service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2019 supplemental statement of the case. In July 2019, the Veteran opted into the Appeals Modernization Act (AMA) review system by submitting a timely Decision Review Request: Board Appeal (Notice of Disagreement) form (VA Form 10182) and electing the hearing review option. Historically, in an August 2012 rating decision, the Regional Office (RO) denied service connection a thyroid disorder. In November 2016 and August 2018, the Board, in relevant part, remanded the issue of entitlement to service connection for a thyroid disorder for further development. In July 2019, the Veteran opted into the AMA review system for the issue currently on appeal. In December 2019, the Board, in relevant part, remanded the issue of entitlement to service connection a thyroid disorder. Thereafter, in April 2020, the Board vacated the December 2019 decision finding that the Veteran was denied due process of law because the remand was issued under the Legacy review system. In June 2020, the Board, in relevant part, denied service connection for a thyroid disorder. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2021 Order, the Court granted a Joint Motion for Partial Remand (Joint Motion) filed by the parties to vacate and remand the June 2020 Board decision. The Veteran testified before a Decision Review Officer (DRO) at the RO in April 2014 regarding his claim for service connection for a thyroid disorder. He also testified at a Board hearing regarding that claim in November 2014. Transcripts of those proceedings are or record. The Veteran also testified at a hearing before the undersigned Veterans Law Judge in connection with his AMA appeal in December 2019. A transcript is of record. The Board notes that additional evidence was added to the claims file during a period of time when new evidence was not allowed. However, as the Board is deciding the issue of entitlement to service connection for hypothyroidism, it may not consider the additional evidence in its decision. 38 C.F.R. § 20.300 The Board will consider the evidence of record at the time of the July 2019 supplemental statement of the case (SSOC), evidence submitted by the Veteran and his representative at the December 2019 Board hearing, and evidence submitted by the Veteran and his representative within 90 days following the December 2019 Board hearing. 38 U.S.C. § 7113(b); 38 C.F.R. § 20.302. Law and Analysis In October 2021, the Veteran's representative asserted that the Agency of Original Jurisdiction (AOJ) erred by failing to obtain a VA medical opinion. However, as the Board is granting the benefit sought on appeal in full, there is no prejudice to the Veteran in proceeding with adjudication of the claim at this time. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The law also provides that diseases associated with exposure to certain herbicide agents used in support of military operations in Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). A veteran is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The presumption of service connection requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). The National Defense Authorization Act for Fiscal Year 2021, P. L. 116-283, § 6501, 134 Stat. 3388 (Jan. 1, 2021) added hypothyroidism to the list of conditions presumptively associated with exposure to herbicide agents. 38 U.S.C. § 1116(a)(2)(K). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is entitled to service connection for hyperthyroidism. The Veteran has contended that he developed a thyroid disorder as a result of exposure to herbicide agents during service. The Agency of Original Jurisdiction (AOJ) made the favorable finding that the Veteran served in the Republic of Vietnam during the Vietnam era. Therefore, the Veteran is presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). The post-service medical evidence also shows that the Veteran was diagnosed with hypothyroidism during the appeal period. See, e.g., January 2019 VA medical record. At the time of the July 2019 supplemental statement of the case, the list of diseases associated with exposure to herbicide agents did not include hypothyroidism. However, as noted above, hypothyroidism was recently added to the list of conditions presumptively associated with exposure to herbicide agents. Based on the foregoing, the Veteran was exposed to herbicide agents during his military service, and he has a current diagnosis of hypothyroidism that is presumed to be associated with such exposure. Accordingly, the Board concludes that service connection is warranted. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Wulff, 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.