Citation Nr: 21067844 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 20-05 910 DATE: November 5, 2021 ORDER Service connection for hypothyroidism is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of hypothyroidism. 2. The Veteran served in Vietnam; as such, he is presumed to have been exposed to herbicide agents. CONCLUSION OF LAW The criteria for an award of service connection for hypothyroidism have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 309; William M. Thornberry National Defense Authorization Act for Fiscal Year 2021 (P.L. 116-283). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from June 1960 to June 1984, to include service in Vietnam. His decorations include the Vietnam Service Medal, the Vietnam Campaign Medal, the Republic of Vietnam Meritorious Unit Commendation Cross of Gallantry with Palm, and the Combat Action Ribbon. This matter comes to the Board of Veterans' Appeals (Board) on appeal from September 2018 and November 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In its September 2018 rating decision, the RO denied each of the issues addressed herein. In its November 2018 rating decision, after receiving additional evidence, the RO confirmed and continued its prior denial of service connection for hypothyroidism. In June 2021, the Veteran and his spouse testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Entitlement to service connection for hypothyroidism The Veteran contends that his hypothyroidism was incurred in or caused by service, as due to exposure to herbicide agents. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Pond v. West, 12 Vet. App. 341 (1999). A Veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). The National Defense Authorization Act for Fiscal Year 2021, P.L. 116-283, § 6501, 134 Stat. 3388 (Jan. 1, 2021) recently added hypothyroidism to the list of conditions presumptively associated with exposure to herbicide agents. 38 U.S.C. § 1116(a)(2)(J). There is no material dispute that the Veteran has been diagnosed with hypothyroidism. A May 2016 private treatment record shows a diagnosis of primary hypothyroidism. There is also no material dispute that he was exposed to herbicide agents by virtue of his service in Vietnam. Military personnel records confirm that he served in Vietnam during the requisite time period. His exposure to herbicide agents is therefore presumed. In light of the fact that the Veteran has a current diagnosis of hypothyroidism and was exposed to herbicide agents during his service in Vietnam, the criteria for an award of service connection for hypothyroidism on a presumptive basis have been met. The appeal of this issue is granted. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. 2. Entitlement to service connection for a right hip disability is remanded. 3. Entitlement to service connection for a left hip disability is remanded. The Veteran contends that his low back and hip disabilities were incurred in or caused by service. Specifically, at the June 2021 Board hearing, he testified that his disabilities were caused by the physical rigors of service. He explained that during service he was constantly hiking in fields with backpacks and running in combat boots. He also testified that he was involved in at least two helicopter crashes during service and that while he did not report or complain of back problems at that time, the crashes took a toll on his back. He attributes his back and hip disabilities to wear and tear from many years of hiking and other physical activities in service, and also testified at his June 2021 hearing that after service he worked in an administrative position which was not rigorous and sedentary in nature. In support of his claim, in a February 2019 submission the Veteran asserted that military service and arthritis were connected and cited to a medical article indicating that veterans have much more arthritis overall than the general public. If a Veteran engaged in combat with the enemy during active service, lay or other evidence of service incurrence or aggravation of an injury or disease alleged to have been incurred in or aggravated by such service will be accepted as sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, VA will resolve every reasonable doubt in favor of a Veteran. 38 U.S.C. § 1154(b). A finding of service incurrence of such a disease or injury may be rebutted only by clear and convincing evidence to the contrary. Id. As an initial matter, the Board notes that the Veteran has current diagnoses of low back and hip disabilities. A January 2021 VA examination regarding the low back shows diagnoses of degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome, spinal fusion, and spinal stenosis. A January 2018 VA examination regarding the hips shows a diagnosis of osteoarthritis and a prior replacement of the left hip. While the examination curiously does not indicate in its initial pages that the Veteran has a disability of the right hip, it later notes that the Veteran underwent a right total hip replacement in 2010. The claims file also contains the operative reports from both hip replacements, confirming that the Veteran's right hip was replaced in January 2010 and that his left hip was replaced in October 2011. The first element of service connection regarding the presence of current disabilities as to the low back and both hips has therefore been established. Regarding an in-service event, injury, or disease, the Board notes that the Veteran's service treatment records (STRs) are largely silent for complaints of, treatment for, or diagnoses related to the low back or hips. A January 1980 STR, however, does note that the Veteran was treated for low back pain. A rule out diagnosis of a herniated disc was given, but examination was negative, and no formal diagnosis regarding the low back was ever given during the Veteran's service. However, the Board notes that there is no material dispute that the Veteran served in combat, as demonstrated by his award of the Combat Action Ribbon. As noted, military personnel records also confirm that he served in Vietnam during the Vietnam War. The Board finds his statements with regard to helicopter crashes taking a toll on his back, and the physical rigors of his service impacting his hips and back generally, to be consistent with the circumstances, conditions, or hardships of his service, notwithstanding the fact that there is no official record of such incurrence or aggravation in service. Still further, the Veteran has consistently reported that he did not seek treatment for these problems during service, a report that is consistent with his STRs. Given the Veteran's status as a combat veteran, and the fact that his statements regarding in-service events and/or injuries are consistent with the circumstances and conditions of his service, the Board finds his reports in this regard fully credible. The second element of service connection has therefore also been established. Regrading the link, or nexus, between the Veteran's current disabilities and an in-service event or injury, the Board notes that the claims file contains conflicting medical opinion evidence. In March 2019, one of the Veteran's private providers, K.E., D.C., provided a thoracolumbar spine Disability Benefits Questionnaire (DBQ). While she noted the Veteran's low back diagnoses and described resultant functional impairment, she did not provide an opinion with regard to etiology in her March 2019 DBQ. The Veteran was afforded VA examinations in connection with his claims for service connection for low back and hip disabilities in January 2021. On each examination, the examiner noted the Veteran's contention that the onset of his back and hip pain was in service, and that following discharge he had ongoing pain but was not under a doctor's care. The examiner offered negative nexus opinions as to the low back and left hip, stating that it was less likely than not that the disabilities were incurred in or caused by service, to include as due to wear and tear due to the rigors of 24 years of active service. He noted that while the Veteran claimed onset of the disabilities in service, his STRs were silent regarding ongoing back or hip conditions, that there was no nexus following discharge, and that he was diagnosed with degenerative disc disease and spinal stenosis in 2018, and with degenerative joint disease (DJD) of the left hip in 2009. He concluded that the Veteran's low back condition did not appear to be related to anything from service, and that because STRs were silent as to the hips, the Veteran's total hip replacement and DJD were not related to service. Another of the Veteran's private providers, S.K., D.O. provided a positive nexus opinion in May 2021. He noted that he reviewed the statement of the case and treatment records since the Veteran's separation from service but did not indicate that he had reviewed STRs. Dr. K. outlined the Veteran's diagnoses, stated that he had treated him for the past several years, and that the Veteran had served in the Marines for 24 years. He further stated that most of that time was spent in the infantry battalion which required a tremendous amount of physical exertion, that he had also served in Vietnam and been involved in two helicopter crashes, and that on both of those occasions he had experienced severe back pain but did not seek treatment. Dr. K. then opined that he would consider the Veteran's low back and hip disabilities to be a direct result of his 24 years of service in the Marine Corps, which was physically grueling and demanding. Finally, in July 2021, Dr. E. provided a positive nexus statement regarding the Veteran's low back disabilities. She indicated that she had reviewed the Veteran's treatment records from his separation from service but did not indicate that she had reviewed any other records. She then stated that the Veteran had been treated in her office for chronic lumbar spine pain for over 10 years, and opined that in her professional opinion, his current complaints were causally related to his military service. The Board finds that the January 2018 VA examinations do not adequately consider the Veteran's primary contention, which is that 24 years of rigorous service, including frequent marches in combat boots and helicopter crashes, caused his current low back and hip disabilities. The examiner appears to support his negative nexus opinion primarily by noting that the Veteran's STRs are silent for in-service complaints or treatment of the disabilities. However, as noted, the Veteran has consistently reported that he did not seek treatment for the problems in service, and given his status as a combat Veteran, the Board has conceded that the in-service events as he has described them actually occurred. In addition, because the subsequent private opinions of record as well as the article regarding a possible connection between military service and arthritis were not submitted until after the January 2018 VA examiner offered his opinions, he was unable to review them. Finally, it remains unclear why the examiner limited his nexus opinion to the left hip, failing to provide any opinion whatsoever as to the right hip. Under the circumstances, the Board will seek addendum opinions. The Board has also carefully considered Dr. K.'s May 2021 and Dr. E.'s July 2021 opinions. While clearly supportive of the Veteran's claim, the Board finds that they are insufficient, at present, for an award of service connection. The claims file does not contain any treatment records from Dr. K., so the Board is unable, at present, to make a finding regarding the probative weight of his opinion. While the claims file does contain treatment records from Dr. E., her opinion is not supported by any rationale. On remand, efforts should be made to procure the private treatment records of Dr. K. At his June 2021 hearing, the Veteran also testified that he had received treatment from an A.G., a chiropractor, as well as Dr. E. While the Veteran subsequently submitted treatment records from Dr. E., the claims file still contains no treatment records from Dr. G. Efforts to procure them should therefore be made. Updated records of any VA treatment should also be procured. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency). These matters are REMANDED for the following action: 1. Ask the Veteran to provide appropriate releases for records of private treatment from Dr. K. at Penn Highlands DuBois in DuBois, Pennsylvania, and from Dr. G., a chiropractor, and to identify and provide an appropriate release for relevant private treatment records from any other care providers who have treated him for the issues remaining on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to provide the record on appeal to an appropriately qualified clinician for an addendum opinion regarding the etiology of the Veteran's low back disabilities. The examiner should review the record. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's low back disabilities had their onset in, or are otherwise attributable to, service. In so doing, the examiner should consider and address the Veteran's contention that the physical rigors of his service over a 24-year military career, including frequent marches in combat boots and helicopter crashes, caused his low back disabilities, and should accept as true his statements that the onset of his back pain was during his service. The examiner should also consider and address Dr. K.'s May 2021 opinion, Dr. E.'s July 2021 opinion, and the medical article cited to by the Veteran in his February 2019 submission to the effect that arthritis is more prevalent in veterans than in the general population. The need for another in-person and/or telephonic interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinion. A complete medical rationale for all opinions expressed must be provided. 4. Also arrange to provide the record on appeal to an appropriately qualified clinician for an addendum opinion regarding the etiology of the Veteran's right and left hip disabilities. The examiner should review the record. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's right and left hip disabilities had their onset in, or are otherwise attributable to, service. In so doing, the examiner should consider the Veteran's contention that the physical rigors of his service over a 24-year military career, including frequent marches in combat boots, caused his hip disabilities, and should accept as true his statements that the onset of his hip pain was during his service. The examiner should also consider Dr. K.'s May 2021 opinion, Dr. E.'s July 2021 opinion, and the medical article cited to by the Veteran in his February 2019 submission to the effect that arthritis is more prevalent in veterans than in the general population. The need for another in-person and/or telephonic interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinion. A complete medical rationale for all opinions expressed must be provided. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.