Citation Nr: 21015714 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-41 866 DATE: March 18, 2021 ORDER Entitlement to service connection for hypothyroidism is granted. REMANDED Entitlement to an initial compensable rating for traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam War era. 2. The Veteran experiences current hypothyroidism. CONCLUSION OF LAW The criteria for service connection for hypothyroidism are met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1967 to May 1969 and from March 1970 to May 1971, which includes service in the Republic of Vietnam. He had additional service with the Army National Guard. His awards include the Combat Action Ribbon. These matters come before the Board of Veterans’ Appeals (Board) from a July 2014 rating decision. An informal hearing conference with a Decision Review Officer (DRO) was conducted in March 2017 and a report of that conference has been associated with the Veteran’s claims file. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a July 2019 hearing and a transcript of the hearing is associated with his claims file. As for characterization of the issues on appeal, a July 2017 statement of the case (SOC) included the issues of entitlement to service connection for thyroid disability and entitlement to higher ratings for TBI, type II diabetes mellitus, degenerative arthritis of the left knee, and bilateral hearing loss. The Veteran’s former representative initially submitted a substantive appeal (VA Form 9) in August 2017, on which it was indicated that the Veteran wished to appeal all of the issues listed on the July 2017 SOC. The Veteran subsequently submitted another VA Form 9 in September 2017, on which he specified that he only wished to appeal the issues of entitlement to service connection for thyroid disability and entitlement to a higher initial rating for TBI. He confirmed during the July 2019 Board hearing that these were the only two issues he wished to appeal. 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; 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). A veteran, who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Service “in the Republic of Vietnam” includes service both on the landmass of Vietnam and the waters that are no more than 12 miles offshore of Vietnam. 38 U.S.C. § 1116A (a). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes; Hodgkin’s disease; 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); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin’s lymphoma; Parkinson’s disease; early-onset 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). 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309 (e). Moreover, the National Defense Authorization Act for Fiscal Year 2021, Pub. L. No. 116-283, amended 38 U.S.C. § 1116(a)(2) and added Parkinsonism, bladder cancer, and hypothyroidism as additional diseases which are presumed to be associated with exposure to herbicide agents (including Agent Orange). 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”) Entitlement to service connection for hypothyroidism The Board finds, for the following reasons, that the Veteran is presumed to have been exposed to herbicide agents (including Agent Orange) during service and he has a current diagnosis of hypothyroidism that is presumptively service-connected. Medical records, including a November 2019 VA primary care note, indicate that the Veteran experiences current hypothyroidism which is treated with medication. Thus, current hypothyroidism has been demonstrated. Moreover, as the Veteran served in Vietnam during the Vietnam War era, he is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iii). As the Veteran has current hypothyroidism and is presumed exposed to herbicide agents in Vietnam, service connection for hypothyroidism is warranted on a presumptive basis. REASONS FOR REMAND Entitlement to an initial compensable rating for TBI is remanded. The Veteran was afforded a VA examination in March 2017 to assess the severity of his service-connected TBI. However, this examination is inadequate because the physician who conducted the examination did not provide any of the information necessary to properly rate the Veteran’s TBI under the appropriate diagnostic criteria. Rather, he provided an extensive explanation for why the Veteran did not experience a TBI in service, why the diagnosis of TBI was incorrect, and why the diagnosis was based only on the Veteran’s reports of injury in service without any clinical evidence of TBI in service. The Board points out that the Veteran has already been awarded service connection for TBI and a TBI in service has been conceded. Therefore, a new examination is necessary to properly assess the current severity of all residuals of the Veteran’s service-connected TBI. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Alaska VA Healthcare System (dated to May 2014), the VA Northern Indiana Health Care System (dated to June 2012), the VA Puget Sound Health Care System (dated to February 2020), the VA Portland Health Care System (dated to March 2013), and the Spokane Vista electronic records system (dated to October 2020). Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. The matter is REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for residuals of TBI, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for residuals of TBI from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s outstanding VA treatment records from the Alaska VA Healthcare System for the period since May 2014; the VA Northern Indiana Health Care System for the period since June 2012; the VA Puget Sound Health Care System for the period since February 2020; the VA Portland Health Care System for the period since March 2013; the Spokane Vista electronic records system for the period since October 2020; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for all appropriate examinations to determine the current severity of his service-connected TBI and its residuals. The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. Specifically, the clinician should provide an assessment of the current nature and severity of all residuals of the Veteran’s service-connected TBI consistent with the schedular criteria for evaluating the residuals of TBI under 38 C.F.R. § 4.124a, Diagnostic Code 8045. The clinician should specifically address the degree to which the service-connected disability is manifested by facets of cognitive impairment including memory, attention, concentration, and executive functions; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms; neurobehavioral effects; communication; and consciousness. For each such area of impairment identified, the clinician should opine whether it is at least as likely as not a symptom associated (in whole or in part) with the Veteran’s service-connected TBI. The clinician should also identify all comorbid physical, neurological, or mental disorder(s) (including, but not limited to, headaches and dementia), and state whether each is shown to be caused by the Veteran’s TBI. If not, then, with respect to each comorbid disorder identified, the clinician should attempt to distinguish any symptoms and impairment attributable to such disability from the symptoms and impairment attributable to the identified TBI. If the manifestations cannot clearly be distinguished, the clinician should clearly so state. For purposes of the above information, the clinician is advised that a TBI in service has been conceded and it shall be presumed that any reports by the Veteran of TBI related problems in service are accurate. The clinician must provide reasons for any opinion given. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.