Citation Nr: 21030394 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-40 950A DATE: May 18, 2021 REMANDED Entitlement to service connection for a thyroid disability, claimed as hypothyroidism, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1966 to April 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in July 2019. A transcript of the hearing is associated with the Veteran's claims folder. This case was previously before the Board in November 2019, on which occasion the claim was remanded. In the Board's November 2019 decision, a claim for entitlement to service connection for bilateral hearing loss was also remanded. The RO subsequently granted service connection for bilateral hearing loss in a January 2021 rating decision. This constitutes a full grant of benefits sought by the Veteran. Therefore, there is no longer a case or controversy regarding the issue of entitlement to service connection for bilateral hearing loss for the Board to consider. The remaining claim has been returned to the Board for further adjudication. Entitlement to service connection for hypothyroidism is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the Veteran's claims can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for hypothyroidism because no VA examiner has opined whether the Veteran's diagnosis of hyperthyroidism in the 1980s is at least as likely as not related to service, including exposure to herbicide agents while serving aboard the USS Ramsey. The Veteran underwent a VA examination in August 2020 wherein a VA examiner opined that his hypothyroidism was less likely than not incurred in or caused by exposure to herbicide agents. In rendering an opinion, the examiner noted that the Veteran was diagnosed with hyperthyroidism in the 1980s and was treated with radioactive iodine. This treatment caused the Veteran to develop hypothyroidism. Thus, the examiner concluded that the Veteran's current diagnosis of hypothyroidism was caused by his treatment for hyperthyroidism, radioactive iodine, not his service in Vietnam. However, the examiner did not address whether the Veteran's hyperthyroidism was related to exposure to herbicide agents. (8/11/2020, C&P Exam, p. 2). The Board notes that hyperthyroidism is not presumptively related to herbicide agent exposure. However, service connection for diseases not presumptively related to exposure to herbicide agents may still be demonstrated on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As no VA examiner has opined on whether hyperthyroidism was related to exposure to herbicide agents, the claim must be remanded for further medical development. In rendering this decision, the Board acknowledges the National Defense Authorization Act for Fiscal Year 2021 (NDAA), which amended 38 U.S.C. § 1116(a)(2) to include, in pertinent part, hypothyroidism among the list of diseases eligible for presumptive service connection based on herbicide agent exposure for veterans who served in the Republic of Vietnam during the Vietnam Era. The NDAA went into effect on January 1, 2021. Pub. L. No. 116-283. While hypothyroidism is presumptively related to exposure to herbicide agents, this presumption is rebuttable with affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d). Here, the Veteran's VA medical records, his own lay testimony, and a VA medical opinion, all attribute his current diagnosis of hypothyroidism to the intercurrent cause of his treatment for hyperthyroidism. (5/17/2018, CAPRI, p. 5); (7/22/2019, Hearing Transcript, p. 4); (8/11/2020, C&P Exam, p. 2). As such, the Board finds that the presumption has been rebutted in this case. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities from August 2020 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of hyperthyroidism. The examiner must opine whether hyperthyroidism is at least as likely as not related to in-service herbicide agent exposure. The examiner is reminded that a veteran may be entitled to service connection for disabilities not included in 38 C.F.R. § 3.309(e) on a direct basis. As such, concluding that service connection is not warranted because hyperthyroidism is not included as a presumptive disease is not adequate. Should the examiner conclude that hyperthyroidism is related to herbicide agent exposure, or is otherwise related to the Veteran's service, the examiner should then opine on the relationship between hyperthyroidism and the Veteran's current diagnosis of hypothyroidism. The examiner should indicate whether hypothyroidism is at least as likely as not related to or was aggravated beyond its natural progression by hyperthyroidism, to include as a side effect of being treated with radioactive iodine. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Glenn, 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.