Citation Nr: 21039765 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-67 282 DATE: July 1, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for hypothyroidism is granted. Entitlement to service connection for hypothyroidism is granted on a presumptive basis as due to herbicide agent exposure. REMANDED Service connection for obstructive sleep apnea (OSA) is remanded. FINDINGS OF FACT 1. Since the July 2014 rating decision, there is new and material evidence of record relating to the Veteran's claim for service connection for hypothyroidism. 2. The Veteran served in the Republic of Vietnam during the Vietnam era. 3. The Veteran has been diagnosed with hypothyroidism. CONCLUSIONS OF LAW 1. New and material evidence having been received, the claim for service connection for hypothyroidism is reopened. 38 U.S.C. § 5108 ; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for hypothyroidism are met on a presumptive basis as due to herbicide agent exposure. 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 CONCLUSIONS The Veteran served on active duty from July 1964 to July 1968. His DD Form 214 reflects that he served in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision. The Veteran requested a hearing in the December 2017 VA Form 9 (substantive appeal) but withdrew that request in a March 2020 statement. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for hypothyroidism is granted. A decision of the AOJ becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision. 38 U.S.C. § 7105 ; 38 C.F.R. §§ 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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. 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. 38 C.F.R. § 3.156 (a). As noted above, the Veteran's claim for service connection for hypothyroidism was denied by a July 2014 rating decision. The Veteran did not appeal the July 2014 rating decision and therefore they became final. Therefore, in order to reopen his claim, the Veteran must submit new and material evidence. The evidence must relate to an unestablished fact necessary to substantiate the claim. In December 2016, the Veteran stated that his hypothyroidism is due to herbicide exposure. Further, the law has recently changed to include hypothyroidism within the presumptive disabilities for service connection when herbicide exposure is found. This evidence relates to an unestablished fact, the "nexus" requirement, for the Veteran's claim for service connection. As such, the evidence is both new and it is also material. Therefore, the Veteran's claim is reopened. Entitlement to service connection for hypothyroidism is granted on a presumptive basis as due to herbicide agent exposure. Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. 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 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). Certain diseases have been determined to be associated with the use of herbicides in Vietnam and VA regulations identify those diseases that are presumptively associated with herbicide exposure in Vietnam. 38 C.F.R. § 3.309 (e). As indicated above, the Veteran's DD Form 214 reflects that he served in the Republic of Vietnam during a qualifying period of service. The Veteran is therefore presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116 (f). VA has 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). As the Veteran's VAMC treatment records reflect that he has been diagnosed with hypothyroidism, a disease now presumed to be service connected in Veterans exposed to herbicide agents, and he had service in Vietnam, entitlement to service connection for hypothyroidism is warranted on a presumptive basis. REASONS FOR REMAND Service connection for OSA is remanded The Veteran contends that his currently diagnosed OSA may be proximately due to or aggravated by his service-connected type II diabetes mellitus (DM II) and/or his PTSD, and/or due to herbicide exposure. The Veteran has not yet been afforded a VA examination in connection with this disability. Therefore, this matter should be remanded for the Veteran to be provided with an adequate medical examination because no examination was provided and the available evidence meets the low threshold under McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain any relevant outstanding VA or private treatment records. 2. Obtain an opinion by a qualified clinician which addresses the following questions. If and only if the examiner determines that an in-person examination is required should one be scheduled. 3. Is it at least as likely as not (50 percent or greater probability) that the Veteran's OSA was incurred or is causally related to his active duty service to include due to his conceded exposure to herbicides? 4. Is it at least as likely as not (50 percent or greater probability) that the Veteran's OSA is proximately due to, or aggravated by, his service-connected disabilities (to include DM II, PTSD, and hypothyroidism)? *With respect to the term "aggravation" in the context of a claim for secondary service connection, the examiner is advised that aggravation refers to any incremental increase in disability or any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected disabilities, regardless of permanence. The clinician should provide a complete rationale for all opinions expressed. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.