Citation Nr: 21016240 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 16-32 395 DATE: March 22, 2021 ORDER Service connection for hypothyroidism, as presumptively due to herbicide agent exposure, is granted. FINDINGS OF FACT 1. The Veteran presently has a diagnosis of hypothyroidism. 2. The Veteran served in the Republic of Vietnam from February 13, 1967 to November 1, 1967, so is presumed to have herbicide agent exposure. CONCLUSION OF LAW The criteria for presumptive service connection for hypothyroidism as due to herbicide exposure are met. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309(e). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active duty service from November 1965 to October 1967. This service included service in the Republic of Vietnam from February 13, 1967 to November 1, 1967. The instant case is on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision that, in pertinent part, denied service connection for hypothyroidism. The instant case has been before the Board of Veterans’ Appeals (Board) previously. In an August 2019 Board decision, the issue of service connection for hypothyroidism was remanded for a VA examination and opinion as to whether the hypothyroidism was proximately caused by or aggravated by the service-connected type 2 diabetes mellitus. The opinions have been procured, so there has been substantial compliance with the terms of the remand and the case is ready for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Legal Authority Presumptive Service Connection for a Disease Due to Herbicide Agent Exposure In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, the evidence must show the following: (1) service in the Republic of Vietnam (Vietnam) during the period beginning on January 9, 1962, and ending on May 7, 1975 (or was otherwise exposed to an herbicide agent during active service); (2) a current disability from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the current disease manifested to a degree of 10 percent or more within the specified time period prescribed in § 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). On January 1, 2021, the National Defense Authorization Act for Fiscal Year 2021 became law. One section of the law added three diseases to the list of those presumed service connected in veterans exposed to herbicide agents. Specifically, the law adds to 38 U.S.C. § 1116(a)(2), which currently lists diseases in subparagraphs (A) through (H): (I) parkinsonism, (J) bladder cancer, and (K) hypothyroidism. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the listed diseases will be service connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. Direct Service Connection Service connection can be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) competent evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. Secondary Service Connection Service connection may be granted for a condition that is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) competent nexus evidence establishing a connection between the current disability and the service-connected disability, which relates to either causation or aggravation. See id.; Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Service Connection for Hypothyroidism The evidence shows a current diagnosis of hypothyroidism. See November 2019 VA examination. The Veteran has asserted, through his representative, that he is entitled to secondary service connection (38 C.F.R. § 3.310) because the hypothyroidism is due to (proximately caused by) or worsened in severity beyond a normal progression (aggravated by) the service-connected type 2 diabetes mellitus. The Board finds that it is not necessary to address this secondary service connection theory because presumptive service connection for hypothyroidism can be granted as due to herbicide agent exposure. The Veteran had active duty service in the Republic of Vietnam during the requisite period that leads to presumptive herbicide agent exposure. The Veteran served in the Republic of Vietnam from February 13, 1967 to November 1, 1967, so is presumed to have herbicide agent exposure. Because hypothyroidism was recently added to the list of diseases that are deemed presumptive diseases due to herbicide agent exposure, the criteria for presumptive service connection for hypothyroidism have been met. See 38 U.S.C. § 1116(a)(2)(K). J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.