Citation Nr: 21073660 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 18-01 088 DATE: December 9, 2021 ORDER Entitlement to service connection for hypothyroidism, to include as due to exposure to herbicides is granted. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a respiratory condition, to include sleep apnea, is remanded. Entitlement to service connection for a skin condition, to include as due to exposure to herbicides, is remanded. Entitlement to service connection for an allergy condition, to include as due to exposure to herbicides, is remanded. Entitlement to service connection for a heart condition, to include as due to exposure to herbicides, is remanded. Entitlement to service connection for hypertension, to include as due to exposure to herbicides, is remanded. Entitlement to service connection for a foot fungus condition, to include as due to exposure to herbicides, is remanded. FINDING OF FACT The Veteran served in the Republic of Vietnam and is diagnosed with hypothyroidism that is compensably disabling. CONCLUSION OF LAW The criteria for service connection for hypothyroidism have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U. S. Marine Corps from March 1966 to March 1968, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in September 2021. A transcript of that hearing is of record. During the hearing, the VLJ clarified the issues, asked if there was outstanding evidence and held the file open for the submission of evidence. Such actions comply with 38 C.F.R. § 3.103. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, 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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during such service to certain herbicide agents (e.g., Agent Orange). In the case of such a veteran, service incurrence for the following diseases will be presumed if they are manifest to a compensable degree within specified periods, even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and sub-acute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, and trachea), and soft-tissue sarcomas. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Effective August 31, 2010, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), is included as a disease associated with herbicide exposure under 38 C.F.R. § 3.309 (e). (Under 38 C.F.R. § 3.309 (e), the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e) (Note 3.). On January 1, 2021, the National Defense Authorization Act for Fiscal Year 2021 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. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for hypothyroidism, to include as due to exposure to herbicides The Veteran contends that he has hypothyroidism that is caused by service, to include as due to Agent Orange exposure. An October 2021 VA memorandum states that the Veteran's exposure to Agent Orange was affirmed based on his duty in the Republic of Vietnam. The evidence shows that the Veteran has current diagnoses of hypothyroidism. See VA examination April 2015 and February 2017 VA treatment records. In light of the above, the inquiry shifts to whether the Veteran's hypothyroidism has manifest to a compensable degree. See 38 C.F.R. § 3.307(a)(6)(ii). During the period of the appeal, Diagnostic Code 7903 provided a 10 percent rating for hypothyroidism with fatigability, or continuous medication required for control. 38 C.F.R. § 4.119, Diagnostic Code 7903. The current criteria provide a 30 percent rating for hypothyroidism without myxedema for six months then as appropriate for the affected body system. When there is a change in regulations, the Veteran is afforded the old or new regulations whichever is more favorable provided that the new regulations may not be applied prior to the effective date of the change. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In the VA examination in April 2015, the examiner noted that VA records from 2011 showed a diagnosis of hypothyroidism based on a blood test, and the Veteran was prescribed medication. There were no other symptoms or dysfunction. February 2017 VA treatment records reflect that the Veteran is prescribed a daily medication to treat his hypothyroidism. In the present case, the Board finds that the Veteran's hypothyroidism became manifest to a compensable degree during the period of the appeal. Accordingly, after resolving any doubt in favor of the Veteran, the Board finds that his current hypothyroidism is related to his military service as a presumptive condition associated with herbicide (Agent Orange) exposure during his period of service. See 38 C.F.R. §§ 3.307, 3.309(e). REASONS FOR REMAND 2. Entitlement to service connection for tinnitus The Veteran contends that he is entitled to service connection for tinnitus as due to noise exposure sustained while serving as a U.S. Marine photographer in the Republic of Vietnam. The Veteran's personnel records reflect that he served as a photographer, including during a detail in counter-insurgency operations while in Vietnam. He testified during his August 2021 Board hearing that he photographed combat in Vietnam. The Veteran's service treatment records (STRs) do not reflect treatment for or reports of tinnitus of ringing in the ears. The Veteran attended a VA examination in April 2015. The examiner determined that the Veteran did not have tinnitus. During his August 2021 Board hearing, the Veteran testified that he experienced tinnitus multiple times a week. Tinnitus is a condition that may be diagnosed by its unique and readily identifiable features, and the presence of the disorder is not a determination that is medical in nature and is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that "ringing in the ears is capable of lay observation"). The Board finds that hazardous noise exposure is conceded as it is consistent with the Veteran's service as a combat photographer. A supplemental opinion should fully address direct and presumptive service connection. As such a remand is warranted for a supplemental VA examination. 3. Entitlement to service connection for an allergy condition 4. Entitlement to service connection for a respiratory condition, to include sleep apnea 5. Entitlement to service connection for a skin condition, to include as due to exposure to herbicides 6. Entitlement to service connection for hypertension, to include as due to exposure to herbicides 7. Entitlement to service connection for a foot fungus condition, to include as due to exposure to herbicides During his September 2021 Board hearing, the Veteran testified that he received VA medical treatment in Poplar Bluff, Missouri in the 1980's. Any VA treatment records are within VA's constructive possession and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. 8. Entitlement to service connection for a heart condition, to include as due to exposure to herbicides The Veteran contends that he is entitled to service connection for a heart disability as due to his exposure to Agent Orange in Vietnam. Ischemic heart disease and coronary artery disease (CAD) are presumptive to Agent Orange exposure. 38 C.F.R. § 3.309(e). As noted above, an October 2021 VA memorandum states that the Veteran's exposure to Agent Orange was acknowledged based on his duties in the Republic of Vietnam. An August 2019 private treatment record reflects that the Veteran underwent a heart test that suggested he may have CAD. More recent medical records do not reflect a diagnosis of CAD. The record is not clear on what heart disabilities the Veteran has and was treated for during the period on appeal. Accordingly, clarification is needed. Additionally, the Board cannot make a fully informed decision on the issue of service connection for a heart disability, to include CAD, because no VA examiner has opined as to direct and presumptive service connection. As such the Board finds that a remand is warranted for a VA examination. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records, to include the treatment received at the Poplar Bluff, Missouri VA in the 1980's and associate with the claims file and VA testing for hearing loss. 2. Contact the Veteran, and, with his assistance, identify any relevant outstanding records of pertinent medical treatment from private providers and associate them with the claims file. 3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's tinnitus and whether: (a.) It is at least as likely as not (a 50 percent probability or greater) that the Veteran's current tinnitus is caused by an in-service injury, event or disease, including the conceded in-service hazardous noise exposure. (b.) It is at least as likely as not (a 50 percent probability or greater) that the Veteran's tinnitus (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomology since service. Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any heart condition. The examiner must answer the following questions: (a.) What are the Veteran's heart disabilities? If the examiner determines that the Veteran does not have coronary artery disease, he or she is asked to specifically reconcile the opinion with the August 2019 private treatment record. (b.) Are any of the diagnosed heart disabilities at least as likely as not related to an in-service injury, event, or disease, to include exposure to herbicides? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. After completing the development requested above, and any other development deemed necessary, to include scheduling the Veteran for additional VA examinations for his skin, feet, hypertension, allergy, and respiratory disorders, readjudicate the Veteran's claim. If any of the benefits sought are not granted in full, the AOJ should furnish the Veteran and his representative with an SSOC and afford an opportunity to respond. The claims file should then be returned to the Board for further appellate review. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.