Citation Nr: A21019396 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 200901-107627 DATE: December 6, 2021 ORDER Service connection for hypothyroidism is granted. REMANDED Service connection for bilateral athlete's foot condition is remanded. Service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran has a current disability of hypothyroidism and is presumed to have been exposed to herbicide agents during his service in the Republic of Vietnam. CONCLUSION OF LAW The criteria for presumptive service connection for hypothyroidism as due to herbicide exposure are met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to May 1970, with combat service in the Republic of Vietnam. These matters come to the Board of Veterans' Appeal (Board) on appeal from an August 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially requested the hearing option in the VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD). In November 2021, the Veteran withdrew the hearing request; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his or her representative within 90 days following receipt of the withdrawal. 38 C.F.R. § 20.302(b). In requesting cancellation of his hearing request, the Veteran waived the 90-day period for submission of additional evidence. This case has been advanced on the docket pursuant to 38 C.F.R. § 20.902(c). 1. Service connection for hypothyroidism Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of that disease during service, provided that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975 is presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116(a)(1)(B); 38 C.F.R. § 3.307(a)(6)(iii). The diseases for which presumptive service connection based on herbicide exposure is available include hypothyroidism. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). After reviewing the evidence of record, the Board finds that service connection for hypothyroidism is warranted. Under the AMA, the Board is bound by favorable findings by the AOJ in the absence of evidence of clear and unmistakable error. 38 C.F.R. § 3.104(c). The AOJ found that the Veteran has a current disability of hypothyroidism. Military personnel records demonstrate that the Veteran participated in combat operations in the Republic of Vietnam from December 1968 to December 1969; therefore, herbicide exposure is presumed. As hypothyroidism is an enumerated disease under 38 U.S.C. § 1116(a)(2) and presumed associated with certain herbicide agents, presumptive service connection is granted. REASONS FOR REMAND 1. Service connection for bilateral athlete's foot condition is remanded. The Board is not able to make a fully informed decision on the issue of service connection for bilateral athlete's foot condition. The Veteran was afforded a VA examination in July 2020. The examiner rendered an amended negative etiological opinion in August 2020. Although the examiner noted the report of recurrent athlete's foot during service in May 1969, the examiner opined there was not a nexus because there were no more complaints of athlete's foot during service and the earliest report of athlete's foot after service was in October 2003, some 33 years after service. The examiner reasoned that chronicity of care for an athlete's foot condition in service is not present and therefore a nexus cannot be established. The Board finds that the examiner's opinion is inadequate for adjudication purposes. The examiner failed to consider that in October 2003 the Veteran reported that he had problems with chronic athlete's foot since Vietnam. The AOJ's failure to obtain an adequate opinion constitutes a pre-decisional duty to assist error and remand is necessary to obtain an addendum opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (a medical opinion is inadequate if it does not consider the Veteran's reports of symptoms and history); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (finding the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). Once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Service connection for bilateral hearing loss is remanded. The Board is not able to make a fully informed decision on the issue of service connection for bilateral hearing loss. The Veteran was afforded a VA examination in July 2020. The examiner determined that although noise exposure is conceded and the relationship of noise, auditory damage, and hearing loss is well established, auditory damage and hearing loss are not conceded based on noise exposure alone. He concluded that the evidence is against a nexus in this case; therefore, it is less likely than not that hearing loss is related to military noise exposure. The Board finds that the examiner's opinion is inadequate for adjudication purposes. The examiner failed to support his opinion with a clear rationale. In addition, the examiner failed to address private treatment records from January 2003 noting the Veteran reported a decline in hearing over time and finding mild bilateral sensorineural hearing loss consistent with noise exposure. See October 5, 2005, Medical Treatment Record Government. The AOJ's failure to obtain an adequate medical opinion constitutes a pre-decisional duty to assist error and a remand is necessary to obtain an addendum opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (a medical opinion is inadequate if it does not consider the Veteran's reports of symptoms and history). Once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from the appropriate clinician to determine the nature and etiology of the Veteran's bilateral athlete's foot condition. The examiner should review the claims file and address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current bilateral athlete's foot condition manifested in or is otherwise related to his period of active service. The examiner should consider and address the report of recurrent athlete's foot during service in May 1969 and the Veteran's October 2003 report that he has had chronic problems with athlete's foot since service in Vietnam. 2. Obtain an addendum medical opinion from the appropriate clinician to determine the nature and etiology of the Veteran's bilateral hearing loss. The examiner should review the claims file and address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss (1) manifested during active service or is otherwise related to conceded in-service noise exposure, (2) manifested within one year after discharge from service, or (3) was noted in service with continuity of the same symptomatology since service. (Continued on the next page) The examiner should consider and address January 2003 audiology treatment records noting the Veteran's report of hearing loss over time and finding mild bilateral sensorineural hearing loss consistent with noise exposure. 3. A rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. The Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptoms and history, he or she must provide a reason for doing so. The examiner is reminded that the lack of medical evidence is not an adequate reason for discounting the Veteran's statements. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ball Jackson, 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.