Citation Nr: 21005687 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-36 432 DATE: February 2, 2021 ORDER Entitlement to service connection for hypothyroidism is granted on a presumptive basis as due to herbicide agent exposure. Entitlement to service connection for peripheral neuropathy of the upper extremities, secondary to hypothyroidism, on a causation basis, is granted. Entitlement to service connection for peripheral neuropathy of the lower extremities, secondary to hypothyroidism, on a causation basis, is granted. REMANDED Entitlement to service connection for anemia, to include as due to presumed herbicide agent exposure, is remanded. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam War era. 2. The Veteran has been diagnosed with hypothyroidism. 3. The Veteran’s peripheral neuropathy of the upper and lower extremities was caused at least in part by now service-connected hypothyroidism. CONCLUSIONS OF LAW 1. The criteria for service connection for hypothyroidism are met on a presumptive basis as due to herbicide agent exposure.  38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for peripheral neuropathy of the upper and lower extremities, secondary to hypothyroidism, on a causation basis, are met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.  REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to June 1971. His DD Form 214 reflects that he served in the Republic of Vietnam from December 1968 to December 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to service connection for anemia and peripheral neuropathy of the upper and lower extremities. In October 2016, the Veteran testified during a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In February 2017, November 2017, and August 2019, the Board remanded the Veteran’s claims of service connection for anemia and peripheral neuropathy of the upper and lower extremities for further development. Regrettably, another remand is necessary to comply with the Board’s August 2019 remand directives in regard to the claim of service connection for anemia.  Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for hypothyroidism and peripheral neuropathy of the upper and lower extremities\ Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).  Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in-service.  38 C.F.R. § 3.303(d).  Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  As indicated above, the Veteran’s DD Form 214 reflects that he served in the Republic of Vietnam from December 1968 to December 1969. The Veteran is therefore presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116(f). In November 2011, the Veteran filed a claim for service connection for, among other things, peripheral neuropathy and anemia, indicating on the VA Form 21-526 that he was exposed to Agent Orange. During the pendency of his claim, a July 2012 VA examination was conducted with regard to the peripheral neuropathy claim, after which the examiner opined that there was a lack of a relationship between the peripheral neuropathy and service. The rationale included that the Veteran’s symptoms were “most likely than not related to his hypothyroid disease or his chronic anemia.” Where, as here, the disability for which a Veteran seeks service connection is not directly associated with service, but information obtained during the processing of the claim reasonably indicates that the cause of the disability is a disease that may be associated with service, VA must investigate whether the causal disability is related to service to determine whether the claimed disability is related secondarily to service. DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011). If VA determines that the causal disability is, in fact, related to service, then the claim for service connection for this disability “reasonably encompasses” a claim for that causal disability, such that no additional filing is necessary to initiate a claim for service connection for the causal disability. Id. In DeLisio, the Court held that where a claim for service connection for peripheral neuropathy remained open when medical evidence indicated that the Veteran’s peripheral neuropathy was caused by diabetes and VA found diabetes related to service, the claim reasonably encompassed a claim for service connection for diabetes. Id. at 56. Similarly, here, the claim for service connection for peripheral neuropathy remained open when the medical evidence indicated that the peripheral neuropathy was caused at least in part by hypothyroidism. Subsequently, VA determined that hypothyroidism is presumptively related to herbicide agent exposure. Specifically, section 9109 of the National Defense Authorization Act of Fiscal Year 2021 added three diseases to the list, including hypothyroidism, the addition of which will be codified at 38 U.S.C. § 1116(a)(2)(K). Thus, the claim for service connection for peripheral neuropathy must be considered to have reasonably encompassed a claim for service connection for hypothyroidism. Moreover, the Court has recently indicated in different contexts that such claims can be adjudicated by the Board even in the absence of an explicit agency of original jurisdiction adjudication. Bailey v. Wilkie, __ Vet. App. __, No. 19-2661 (Jan. 6, 2021) (38 C.F.R. § 3.155(d)(2) requires that, when entitlement to secondary service connection is raised, a formal claim for secondary service connection need not be filed, rather, VA must consider those “complications” in connection with the claim on appeal); Morgan v. Wilkie, 31 Vet. App. 162, 164-67 (2018) (including adjudication of a secondary service connection claim as one of the tools to be employed by the Board prior to considering remand for referral of extraschedular consideration of symptoms not contemplated by the rating criteria). As the Veteran has been diagnosed with a disease presumed service connected in Veterans exposed to herbicide agents, and he is presumed to have been exposed to herbicide agents based on his service in Vietnam, entitlement to service connection for hypothyroidism is warranted on a presumptive basis. In this regard, although the law adding hypothyroidism to the presumptive list did not contain an effective date and has not yet been codified, in the absence of such guidance it must be presumed that the law became effective upon its January 1, 2021 enactment. See Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991) (“It is well established that, absent a clear direction by Congress to the contrary, a law takes effect on the date of its enactment”). In addition, the medical opinion indicating that the peripheral neuropathy is caused at least in part by hypothyroidism is probative and there is no contrary medical opinion in the evidence of record. Entitlement to service connection for peripheral neuropathy of the upper and lower extremities is therefore warranted on a secondary, causation, basis. 38 C.F.R. § 3.310(a). REASONS FOR REMAND Entitlement to service connection for anemia The Veteran contends that his anemia is due to herbicide agent exposure during his service in Vietnam. As noted above, the Veteran is presumed exposed to herbicide agents. As noted previously, certain disabilities that are presumed to be related to herbicide agent exposure are listed at 38 U.S.C. § 1116(a)(2) and 38 C.F.R. § 3.309(e). Anemia is not listed as one of the disabilities presumed to be related to herbicide agent exposure. Regardless of any of the above presumptions, the Veteran is not precluded from establishing direct service connection for his anemia. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). A September 2019 VA physician noted that anemia is not one of the diseases associated with exposure to certain herbicide agents, and that the Veteran’s claims file was also silent for a diagnosis or therapy of anemia during active service. Therefore, the Veteran’s anemia was less likely than not related to service. The September 2019 VA opinion relied in part in its reasoning that anemia is not on the list of diseases presumed service-connected in Veterans exposed to herbicide agents. As argued by the Veteran’s representative in the January 2021 post remand brief, this rendered the rationale inadequate because of the Board’s remand instructions and also because it is contrary to 38 U.S.C. § 1113(b) and 38 C.F.R. § 3.303(d). Another remand for an opinion is therefore warranted. The Board apologizes for the additional delay with regard to this claim. Accordingly, the matter is REMANDED for the following action: Obtain an opinion from an appropriate physician to address whether it is as least as likely as not (50 percent probability or more) that the Veteran’s anemia had its onset during service or was related to service, to include presumed exposure to herbicide agents during service. In answering this question, the physician should not use as a basis for his/her opinion the fact that anemia is not on the list of diseases presumed service-connected in Veterans exposed to herbicide agents. The physician should also address whether it is at least as likely as not that the Veteran’s anemia was either (a) caused or (b) aggravated by his now service-connected hypothyroidism. If aggravation is found, the physician should identify to the extent possible the baseline level of the disability prior to the aggravation. The claims file should be provided to and reviewed by the physician.    A complete rationale should accompany any opinion provided. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, 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.