Citation Nr: 21068247 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 20-25 344 DATE: November 9, 2021 ORDER Entitlement to service connection for coronary artery heart disease (CAD) is granted. Entitlement to service connection for diabetes mellitus type II is granted. Entitlement to service connection for hypothyroidism is dismissed. REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for major depressive disorder (MDD) is remanded. Entitlement to service connection for residuals of a dental injury, to include additional tooth loss, is remanded. FINDINGS OF FACT 1. The Veteran's diagnosed CAD is presumed to be causally related to his exposure to herbicides during active service. 2. The Veteran's diagnosed diabetes mellitus is presumed to be causally related to his exposure to herbicides during active service. 3. As service connection has been granted for the Veteran's hypothyroidism, no question of fact or law remains; the claim is therefore dismissed. CONCLUSIONS OF LAW 1. The criteria for service connection for CAD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The issue of entitlement to service connection for hypothyroidism is dismissed as moot. 38 U.S.C. §§ 7104(a), 7105(d)(5); 38 C.F.R. § 20.101(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1964 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Herbicide Exposure Veterans 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 to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. §§ 1116; 38 C.F.R. § 3.307. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a) (6) (iii), 3.313(a). The phrase the Republic of Vietnam now includes the 12 nautical mile territorial sea of Vietnam. As a result, the presumption of exposure to herbicide agents extends to veterans who served within that area, and such veterans are entitled to the presumption of exposure. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and acute and subacute peripheral neuropathy, which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307, 3.309(e). In an August 2021 memorandum, the RO conceded herbicide exposure based on the Veteran's nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. As such, herbicide exposure is conceded. 1. Entitlement to service connection for coronary artery heart disease CAD. The Board notes that the Veteran's VA treatment records show a diagnosis of CAD as an active problem. Ischemic heart disease, to include CAD, is one of the enumerated diseases listed in 38 C.F.R. § 3.309(e) as a disease presumed to be associated with exposure to certain herbicide agents. As exposure to herbicides has been conceded and he has a current diagnosis of CAD, the Board finds that entitlement to service connection for CAD is warranted. 2. Entitlement to service connection for diabetes mellitus type II. The Board notes that the Veteran's VA treatment records show a diagnosis of diabetes mellitus as an active problem. Diabetes mellitus is one of the enumerated diseases listed in 38 C.F.R. § 3.309(e) as a disease presumed to be associated with exposure to certain herbicide agents. As exposure to herbicides has been conceded and he has a current diagnosis of diabetes mellitus, the Board finds that entitlement to service connection for diabetes mellitus is warranted. 3. Entitlement to service connection for hypothyroidism. Since entitlement to service connection for hypothyroidism was granted in September 2021, the Board finds that the claim for entitlement to service connection for hypothyroidism is moot. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5). The Veteran's claim for service connection for hypothyroidism has already been granted in full by the September 2021 rating decision. Therefore, there is no longer any pending adverse determination for the Board to adjudicate with respect to that service connection claim. Shoen v. Brown, 6 Vet. App. 456 (1994). The appeal on the merits of the claim of entitlement to service connection for hypothyroidism is moot by virtue of the prior grant of service connection for hypothyroidism, and must be dismissed. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 1. Entitlement to service connection for COPD is remanded. Under 38 C.F.R. § 20.1304(c), any pertinent new evidence received by the Board without a waiver must be referred to the RO. 38 C.F.R. § 20.1304(c). The Veteran was informed of the submission of new evidence and a waiver was requested in September 2021. The Veteran did not waive RO review of the new evidence. As such, the issues remaining before the Board must be remanded to allow the RO to review the new evidence. 2. Entitlement to service connection for MDD is remanded. Please see the analysis in Remand Section 1, above. 3. Entitlement to service connection for residuals of a dental injury, to include additional tooth loss, is remanded. Please see the analysis in Remand Section 1, above. The matters are REMANDED for the following action: After reviewing the evidence of record and undertaking any additional development deemed necessary, the Veteran's remaining claims should be readjudicated. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patricia Veresink, 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.