Citation Nr: 21007742 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 18-12 845 DATE: February 10, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim for service connection for Graves’ disease, is granted. Service connection for Graves’ disease as a result of in-service herbicide agent exposure is granted. Service connection for hypothyroidism as a result of in-service herbicide agent exposure is granted. FINDINGS OF FACT 1. An October 2010 rating decision denied service connection for Graves’ disease. The Veteran did not perfect an appeal on this decision, and new and material evidence was not received which prevented it from becoming final. 2. The evidence associated with the claims file since the October 2010 rating decision includes evidence that relates to unestablished facts necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim for service connection for Graves’ disease. 3. The Veteran’s Graves’ disease is etiologically related to his in-service herbicide agent exposure. 4. The Veteran’s hypothyroidism is etiologically related to his in-service herbicide agent exposure. CONCLUSIONS OF LAW 1. The October 2010 rating decision that denied service connection for Graves’ disease is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The evidence received since the October 2010 rating decision is new and material evidence and serves to reopen the Veteran’s claim for service connection for Graves’ disease. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for Graves’ disease as a result of in-service herbicide agent exposure have been met. 38 U.S.C. §§ 1101, 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for hypothyroidism as a result of in-service herbicide agent exposure have been met. 38 U.S.C. §§ 1101, 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1961 to January 1967, with service in the Republic of Vietnam. In November 2020, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. This matter comes before the Board of Veterans Appeals (Board) on appeal from a May 2017 rating decision which, in pertinent part, denied the Veteran’s claim for service connection for Graves’ disease and hypothyroidism. New and Material Evidence – Graves’ Disease A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Regardless of how the regional office (RO) decided a reopening question, the Board must consider the matter on appeal. Reopening is a threshold jurisdictional question for the Board. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The United States Court of Appeals for Veterans Claims (Court) has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, the United States Court of Appeals for the Federal Circuit has held that evidence that is merely cumulative of other evidence in the record cannot be new and material, even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). When making a decision as to whether received evidence meets the definition of new and material evidence, the Board is cognizant of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In a June 2010 rating decision, the RO denied the Veteran’s claim for Graves’ disease. The Veteran then submitted additional evidence and a subsequent rating decision was issued in October 2010, again denying the claim. The decision explained that the condition was not subject to service connection based on the presumption of in-service herbicide agent exposure, nor did it manifest during service or to a compensable degree within one year from separation of service. The Veteran did not perfect an appeal on this adverse determination, nor did he submit any additional evidence within the time frame needed to prevent it from becoming final. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Thus, the October 2010 rating decision became final as to this issue, based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. The evidence added to the record since the October 2010 rating decision includes a positive nexus opinion from the Veteran’s private physician opining to a connection between his Graves’ disease and his in-service herbicide agent exposure. This evidence is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim for service connection for Graves’ disease. Thus, this claim is reopened. Service Connection – Graves’ Disease and 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. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service 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). A veteran who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to herbicide agents. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA laws and regulations provide that, if a Veteran was exposed to herbicide agents during service, certain diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). The listed diseases are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus (adult-onset diabetes), Hodgkin’s disease, ischemic heart disease, chronic B-cell leukemias, multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The presence of a chronic disability at any time during the claim process can justify a grant of service connection, even if the disability has since resolved or where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran argues that his Graves’s disease and hypothyroidism are a result of his in-service herbicide agent exposure. As an initial matter in this regard, the Board notes that the Veteran’s service personnel records reflect that he served in Vietnam during the requisite timeframe. As such, the Veteran is presumed to have been exposed to herbicide agents during active duty, and the presumptions outlined in 38 C.F.R. § 3.309(e) are applicable. 38 C.F.R. § 3.307(a)(6)(iv). However, the Board notes that neither Graves’ disease nor hypothyroidism is a disease that VA regulations include on the presumptive list, thus service connection cannot be granted on a presumptive basis. Notwithstanding the inapplicability of the herbicide presumption, the Board is obligated to fully consider the Veteran’s service connection claim on a direct basis. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The medical evidence of records confirms that the Veteran has been diagnosed with both Graves’ disease and hypothyroidism. Accordingly, the first element of Shedden is established for this claim. Further, as previously noted herein, the Veteran’s in-service herbicide agent exposure is conceded, and therefore, the second element of Shedden is also established. Accordingly, the question becomes whether his current disabilities are related to his service. On this question, the only medical opinion of record is in favor of the claim. In October 2020, the Veteran’s private physician provided a positive nexus opinion. The physician stated that the Veteran was under his medical care and that he (the doctor) was aware of the Veteran’s in-service exposure to Agent Orange, an herbicide agent. Further, the physician acknowledged that the Veteran has a history of Graves’ disease, and, subsequent to a radioactive ablation, he now also has hypothyroidism. Noting that there is an association between Agent Orange exposure and Graves’ disease and hypothyroidism, the physician opined that the Veteran’s current disabilities may be associated with his Agent Orange exposure. The Board acknowledges that the Veteran has not been afforded a VA examination related to his appeal. However, there are no negative medical opinions of record which contradict the medical opinion discussed above. As such, the evidence is in favor of a medical nexus between his in-service herbicide agent exposure and his Graves’ disease and hypothyroidism. The Board finds that the preponderance of the evidence supports a finding that the Veteran’s Graves’ disease and hypothyroidism is related to his in-service herbicide agent exposure. Service connection for Graves’ disease and hypothyroidism—on a direct basis—is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Benson, 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.