Citation Nr: 21014084 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-60 360 DATE: March 11, 2021 ORDER Entitlement to service connection for hypothyroidism, due to herbicide agent exposure, is granted. FINDING OF FACT The Veteran has been diagnosed with hypothyroidism and it is presumed related to his presumed herbicide agent exposure; in any event, the competent evidence shows that the Veteran’s post service hypothyroidism was related to presumed herbicide agent exposure. CONCLUSION OF LAW The criteria for service connection for hypothyroidism, due to herbicide agent exposure, are met. 38 U.S.C. §§ 1110, 1116, 1131, 1154(b), 5107, 5121A; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.1010. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1957 to October 1978 and earned a Combat Action Ribbon and Purple Heart for service in the Republic of Vietnam. He died in September 2019, and the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for hypothyroidism. In March 2020, the RO recognized the appellant as a substitute claimant for purposes of continuing the Veteran’s pending claims to completion. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. In April 2020, the Board remanded this claim for the agency of original jurisdiction (AOJ) to issue a statement of the case in response to the timely notice of disagreement filed in July 2017. The appellant perfected an appeal as a substitute claimant and requested a Board hearing. (See March 2020 AOJ letter; August 2020 VA Form 9). In August 2020, the appellant appointed an attorney as her representative. In March 2021, the appellant testified at a Virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has not yet been associated with the claims file, but one is not necessary because the benefit sought is being granted in full. Service connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. 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 service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When a Veteran has engaged in combat with the enemy, satisfactory lay or other evidence "shall be accepted as sufficient proof of service connection" for certain diseases or injuries, even if "there is no official record of such incurrence or aggravation in such service." 38 U.S.C. § 1154(b). This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected"). Nevertheless, even when the claimed cause of a disability is established by lay testimony, this does not prevent a veteran from also invoking the section 1154(b) rules in order to show that he incurred the disability itself while in service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). The appellant contends that the Veteran’s hypothyroidism is related to his exposure to herbicide agents (including Agent Orange) while in the Navy. Personnel records confirm that the Veteran received combat decorations as part of a river patrol unit and a Purple Heart for service in Vietnam. Herbicide agent exposure for the Veteran is conceded. 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 listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 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 during such service to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA recently 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). Although this law 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 June 2016, Dr. S, an endocrinologist, furnished a letter in support of the claim. He had furnished endocrinology treatment for the Veteran. He recounted that the Veteran had a history of Agent Orange exposure, later developed Hashimoto’s thyroiditis and hypothyroidism. A 2014 epidemiologic study show showed an increased prevalence of hypothyroidism in Veteran exposed to Agent Orange. He indicated that the Veteran’s current thyroid disorders were related to herbicide agent exposure. For the following reasons, the Board finds that service connection for hypothyroidism is warranted. The Veteran is presumed to have had herbicide agent exposure during service in Vietnam. In addition, he had been diagnosed with hypothyroidism, which was recently added to the list of diseases presumed service connected in veterans exposed to herbicide agents. Moreover, Dr. S’s June 2016 medical opinion is highly probative evidence of a relationship to presumed herbicide agent exposure. Dr. S is qualified as an endocrinologist, possesses extensive knowledge of the Veteran’s medical history, and cited a medical study in support of his positive medical opinion. Accordingly, Dr. L’s May 2018 medical opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). There is no conflicting medical opinion. In sum, hypothyroidism is presumed to be related to the Veteran’s presumed herbicide agent exposure and in any event the weight of the evidence supports such a relationship in this particular case. Entitlement to service connection for hypothyroidism is therefore warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. D. Simpson, 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.