Citation Nr: 21031258 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 19-08 137 DATE: May 21, 2021 ORDER Because there is new and material evidence, the petition to reopen a claim of entitlement to service connection for hypothyroidism, including as the result of exposure to the herbicide Agent Orange, as well as the claim, itself, are granted. FINDINGS OF FACT 1. A Department of Veterans Affairs (VA) Regional Office (RO) decision in August 2009, in relevant part, considered and denied the Veteran's claim for service connection for hypothyroidism; he was duly notified of that decision and apprised of his procedural and appellate rights, but he did not appeal that decision and new and material evidence was not actually or constructively received during the appeal period. 2. There also was no subsequent communication received until July 22, 2016 when he filed a petition to reopen this claim that could be interpreted as an informal or formal claim of entitlement to service connection for hypothyroidism. 3. The Veteran served in the Republic of Vietnam between May 1966 and January 1967 (i.e., during the Vietnam era); thus, it is presumed he was exposed to herbicides (including the dioxin in Agent Orange) while there; moreover, hypothyroidism is a disease recently added to the list of diseases presumptively associated with exposure to Agent Orange in Vietnam, and there is no medical or other probative evidence tending to refute this presumptive association. CONCLUSION OF LAW The Veteran's hypothyroidism was presumptively incurred during his service. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1963 to May 1967, including in the Republic of Vietnam between May 1966 and January 1967. An August 2009 RO rating decision, in relevant part, considered and denied the Veteran's claim for service connection for hypothyroidism. He did not appeal that earlier decision, and new and material evidence also was not actually or constructively received during the time he had for appealing that prior decision. Thus, that earlier decision became a final and binding determination based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In July 2016, the Veteran filed a petition to reopen this claim, which the RO initially denied in October 2016, concluding there was not the required new and material evidence. However, in April 2017, the RO reopened this claim, so conceded there was new and material evidence, but then proceeded to confirm and continue the prior denial of this claim on its underlying merits. This appeal to the Board of Veterans' Appeals (Board/BVA) ensued. In February 2021, the Veteran testified in support of this claim during a "virtual" tele-conference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. Despite the RO already concluding there is new and material evidence to reopen this claim, the Board must make this threshold preliminary determination, regardless,, because the initial decision affects the Board's jurisdiction to adjudicate the claim on its underlying merits (de novo). See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996)). If the Board does not find there is the required new and material evidence to reopen the claim, that is where the analysis must end; further analysis of the claim in that circumstance is neither required nor permitted. Id., at 1384; Butler v. Brown, 9 Vet. App. 167, 171 (1996). Conversely, if there is the required new and material evidence, the Board must reopen the claim and review its former disposition. 38 U.S.C. § 5108. Entitlement to service connection for hypothyroidism, including as the result of herbicide exposure The Veteran contends that his hypothyroidism was caused by or is otherwise related to his exposure to the herbicide Agent Orange during his service in Vietnam. Generally, a claim that has been previously considered and denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105, However, according to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed unless inherently incredible or beyond the competency of the person making the assertion. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. In this case at hand, the Board finds that the required new and material evidence has been submitted since the last final and binding denial of this claim in August 2009 to permit reopening it. 38 C.F.R. § 3.156(a). The prior August 2009 decision denying this claim found no evidence relating the Veteran's hypothyroidism diagnosis to his military service including to his presumed exposure to Agent Orange. At the time of that decision, hypothyroidism was not presumptively associated with Agent Orange exposure, but the Veteran could still establish direct causation by having probative evidence directly linking his hypothyroidism to his service and especially to his presumed exposure to Agent Orange. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which, instead, concerned exposure to radiation, are equally applicable in cases involving Agent Orange exposure to establish direct causation). There was no such evidence of record at that time, however. In petitioning to reopen this claim July 2016, the Veteran submitted a previously unsubmitted medical opinion and treatment notes from treating provider Dr. Manestar, who opined that the Veteran's hypothyroidism is more likely than not the result of his exposure to Agent Orange while in Vietnam. She cited medical research and her own knowledge of his history in reaching her conclusion. In January and April 2017, Dr. Manestar provided two updated opinions, further advocating for a connection between the Veteran's hypothyroidism and his service. The Board finds this more than sufficient to satisfy the low threshold for new and material evidence, and the claim accordingly is reopened. Service connection may be granted for any disease initially diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). As particularly relevant here, the law also provides that diseases presumptively associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be considered to have been presumptively incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). A veteran is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975 (Vietnam era), unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The presumption of service connection requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Pursuant to the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicide agents used in Vietnam is warranted for conditions found to have a statistically significant association with such exposure. VA has determined that such a statistically significant association exists for the following conditions: chloracne or other acneform disease consistent with chloracne, non-Hodgkin's lymphoma, soft tissue sarcoma, Hodgkin's disease, porphyria cutanea tarda (PCT), multiple myeloma, "early-onset" peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson's disease, ischemic heart disease, and B-cell leukemias, such as hairy cell leukemia. See 38 C.F.R. § 3.309(e). Notably, however, the National Defense Authorization Act for Fiscal Year 2021 has added three disorders to this list of diseases presumptively associated with exposure to herbicide agents. Specifically, it amended 38 U.S.C. § 1116(a)(2) to include parkinsonism, bladder cancer, and hypothyroidism to this list of conditions where statistically significant association exists between exposure to herbicide agents and subsequent development. Dr. Manestar's submissions show the Veteran received a diagnosis of hypothyroidism in 1997, with current treatment as recently as March 2019. Further, the Veteran served in the Republic of Vietnam and earned two decorations for his service there namely the Vietnam Service Medal and the Vietnam Campaign Medal. See DD Form 214. As such, it is presumed he was exposed to herbicide agents, including Agent Orange, while there. Indeed, as was pointed out during his February 2021 hearing before this Board, he already has three disabilities that were determined service connected based on his presumed exposure to Agent Orange in Vietnam (coronary artery disease, type II diabetes, and peripheral neuropathy of his lower extremities). Moreover, there are secondary complications of those disabilities that also resultantly have been determined service connected. Thus, as hypothyroidism is now also on the list of diseases presumed to be caused by exposure to herbicide agents, the Board finds that the Veteran's hypothyroidism also was caused by his service (i.e., is a service-connected disease). Therefore, this claim for service connection for hypothyroidism is granted. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.