Citation Nr: 21066670 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 18-47 595 DATE: November 1, 2021 ORDER Entitlement to service connection for hypothyroidism as due to herbicide exposure is granted. FINDING OF FACT The Veteran's hypothyroidism is due to his conceded herbicide exposure during his active military service. CONCLUSION OF LAW The criteria for service connection for hypothyroidism as due to herbicide exposure have been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to June 1970, including service in Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2021. Service Connection Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Service connection may also be established based on herbicide exposure. 38 C.F.R. § 3.307(a)(6). For VA purposes, an "herbicide agent" includes the chemicals 2,4D; 2,4,5T and its contaminant TCCD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). For the purposes of determining herbicide exposure, a veteran who served in qualifying locations is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). If the veteran is presumed to have been exposed to herbicides, the veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309(e). This presumption is specifically limited to those diseases listed; hypothyroidism previously was not included. Id. However, the National Defense Authorization Act for Fiscal Year 2021 (NDAA) added three more conditions to the Agent Orange presumptive-conditions list, including hypothyroidism. See 38 U.S.C. § 1116(a)(2)(K). 1. Entitlement to service connection for hypothyroidism, to include as due to herbicide exposure. The Veteran filed an application for service connection for hypothyroidism in November 2017. Along with his application he submitted a hypothyroidism physician statement dated October 30, 2017. Here, his physician indicated that the Veteran was diagnosed with hypothyroidism prior to 2008, and that said condition causes fatigability or requires continuous medication for control. The Veteran was given a VA examination for his hypothyroidism in December 2017. Here, the VA examiner also diagnosed hypothyroidism and indicated that the Veteran is being treated with Synthroid. Under remarks the examiner wrote "As per Agent Orange guidelines hypothyroidism is not presumptive condition for Agent Orange exposure." Based on this examination the RO issued a December 2017 rating decision denying the claim. Also in December 2017, the Veteran submitted a statement in support of claim wherein he noted that "recent scientific research strengthened the association between Agent Orange and hypothyroidism" therefore he thought it was more likely than not that his hypothyroidism should be presumptively service connected due to his conceded herbicide exposure. He filed a formal notice of disagreement to the December 2017 rating decision in April 2018. In September 2018 the RO issued a statement of case continuing to deny the claim. The Veteran appealed this issue up to the Board. In January 2021 the Veteran submitted another statement in support of claim arguing that pursuant to the passing of the 2021 NDAA, his claim should be granted as hypothyroidism was now a presumptive condition for herbicide exposure. Finally, the Veteran participated in a Board hearing in October 2021. He indicated that he continues to take Synthroid. The Board finds that the Veteran has a current diagnosis of hypothyroidism that manifested to a compensable degree (see 38 C.F.R. § 4.119, Diagnostic Code 7903), and as herbicide exposure is conceded, pursuant to the 2021 NDAA, entitlement to service connection for hypothyroidism as due to herbicide exposure is granted. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Ruiz, 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.