Citation Nr: 21041202 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-38 557 DATE: July 8, 2021 ORDER Entitlement to service connection for hypothyroidism is granted. Entitlement to service connection for lumbar bulging disc at L5-S1 and degenerative changes with bilateral foraminal stenosis, claimed as low back pain, is granted. REMANDED Entitlement to an evaluation in excess of 10 percent for bilateral conjunctivitis is remanded. Entitlement to service connection for glaucoma is remanded. Entitlement to an evaluation in excess of 10 percent for residuals of left ankle strain is remanded. Entitlement to an evaluation in excess of 20 percent for degenerative changes of thoracic spine is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam from December 1970 to December 1971. 2. The Veteran has a current diagnosis of hypothyroidism. 3. The Veteran's lumbar bulging disc at L5-S1 and degenerative changes with bilateral foraminal stenosis is related to his service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypothyroidism are met. 38 U.S.C. §§ 1110, 1116, 5107 (2018 & Supp. II); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for lumbar bulging disc at L5-S1 and degenerative changes with bilateral foraminal stenosis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1970 to December 1971 and from October 1978 to October 1981. The Veteran testified before the undersigned Veterans Law Judge during a March 2021 virtual hearing; a transcript is of record. Although the Veteran initially filed a claim for depression and for low back pain characterized as dorsal kyphosis, the Veteran has also been clinically treated for anxiety disorder and adjustment disorder and diagnosed with a lumbar spine disorder. Additionally, the Veteran is in receipt of service connection for thoracic spine disability associated with dorsal kyphosis, based on a May 2014 VA medical opinion. To afford the Veteran the broadest possible scope for his claims, the issues have been recharacterized accordingly to that of entitlement to service connection for an acquired psychiatric disorder and a lumbar spine disability, claimed as low back pain, respectively. Clemons v. Shinseki, 23 Vet. App. 1,6 (2009). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Hypothyroidism A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). Section 3.307(a)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307 (a)(6)(i). Section 3.307(a)(6) also provides that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. The National Defense Authorization Act for Fiscal Year 2021 (NDAA 2021) has added three disorders to the 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. The Veteran's service records show that he served in Vietnam from December 1970 to December 1971. There is no affirmative evidence of record that the Veteran was not exposed to herbicide agents Thus, the Veteran is presumed to have been exposed to herbicide agents while he served in Vietnam. 38 C.F.R. § 3.307. The medical evidence shows that the Veteran is currently diagnosed with hypothyroidism, a disease presumptively associated with exposure to herbicide agents under the NDAA 2021. Therefore, entitlement to service connection for hypothyroidism, as due to exposure to herbicide agents, is granted. Holton, 557 F.3d at 1366. 2. Lumbar spine disability The Veteran contends that his current low back disability is related to his service because he started to have low back pain while carrying military equipment, weighing 25 to 30 pounds, on his body for one year while in service. See, e.g., July 2010 VA examination; October 2015 VA examination. The Veteran has a current diagnosis of lumbar bulging disc at L5-S1 and degenerative changes with bilateral foraminal stenosis, as reflected in the October 2015 VA examination and October 2020 VA examination. During the October 2015 VA examination, he stated that since his military service, he has back pain due to carrying heavy ruck sacks on his back, for which he was assigned to light duty. He recalled that the back pain was associated with carrying heavy ruck sacks and jumping down from large military vehicles. He also reported mid back pain in addition to low back pain. His service treatment records document complaints and treatment for low back pain and temporary profile for muscle soreness and thoracic kyphosis. The Veteran is service-connected for thoracic spine disability, based on a May 2014 medical opinion stating that the thoracic spine condition, which had a postural etiology, i.e., thoracic kyphosis and later resolved with exercise and postural correction, nevertheless produced degenerative changes in the biomechanical process. As for etiology for lumbar spine disability, two medical opinions are associated with the claims file. An October 2015 examiner opined that the lumbar bulging disc is at least as likely as not related to the Veteran's in-service activities of carrying heavy loads and jumping down from vehicles with heavy loads. In contrast, an October 2020 examiner opined that the Veteran's lumbar spine disability was not related to his service or his service-connected thoracic spine disability. The rationale was that osteopenia and his work in the postal service were the most likely cause and that there was no evidence of direct injury during service. The October 2020 examiner also noted a July 2010 negative nexus opinion for dorsal kyphosis due to congenital condition. The Board affords more probative weight to the October 2015 opinion than the October 2020 opinion, for the rationale provided for the latter opinion is inadequate and inconsistent with the facts found in the claims file. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). First, it relied on the July 2010 medical opinion, which was later abrogated substantively and essentially amended by the May 2014 opinion on etiology of the thoracic spine disability. Second, although the October 2020 examiner points out that there was no evidence of direct injury during service, there is also no evidence of direct injury while he worked for the post office. Last, the October 2020 examiner did not consider the Veteran's statement concerning relevant activities he carried out while in service. Therefore, the evidence of record is at least in equipoise that the Veteran's lumbar bulging disc at L5-S1 and degenerative changes with bilateral foraminal stenosis is related to his service. The claim is granted. Holton, at 1366. REASONS FOR REMAND 1. Increased rating for bilateral conjunctivitis 2. Service connection for glaucoma During the March 2021 hearing, the Veteran testified that his vision was getting worse. The Veteran underwent the last VA eye examination in November 2015. A remand is necessary to afford the Veteran an examination to evaluate his current level of disability. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Also, a Goldmann visual field test was conducted during the October 2015 VA examination. However, the result of the test has not been associated with the claims file. Thus, the Goldmann visual field test chart from October 2015 must be obtained as well. Moreover, the Veteran is now service-connected for hypothyroidism. The VA Schedule for Rating Disabilities indicates that hypothyroidism may result in disorders of the eye. 38 C.F.R. § 4.119, Diagnostic Code 7903, Notes (2), (3). As such, a medical opinion for service connection for glaucoma secondary to hypothyroidism must be obtained. 38 C.F.R. § 3.159(c)(4). Lastly, the record indicates that the Veteran has received treatment from a non-VA ophthalmologist or optometrist. Thus, the AOJ must attempt to obtain treatment records from the clinician with proper authorization. 3. Increased rating for left ankle disability The Veteran's most recent VA ankle examination was conducted in October 2015. During the examination, the Veteran reported episodes of flareup with increased pain in the left ankle. The examiner did not provide any description of functional impairment or assessed loss in range of motion because the Veteran did not have flareup during the examination. The Veteran must be afforded a new VA examination in order to ascertain the current severity of the left ankle disability with functional loss during flareup and in weight-bearing and passive motion. Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). 4. Increased rating for thoracic spine disability The issue of entitlement to an increased rating for thoracic spine disability is inextricably intertwined with a rating assigment for the lumbar spine disability, now determined as service connected in this decision because the rating schedule requires treating the thoracic and lumbar spine segments as a unit. See Langdon v. McDonough, - F.3d -, No. 2020-1789, slip op. at 6-7 (Fed. Cir., June 9, 2021). Therefore, the Agency of Original Jurisdiction (AOJ) must readjudicate the issue in conjunction with an initial rating assignment for the lumbar spine disability. 5. Service connection for an acquired psychiatric disability The most recent October 2015 VA mental disorders examination found that the Veteran had never been diagnosed with a mental disorder. The medical treatment records since then, however, document a diagnostic impression for depression and anxiety. Also, a November 2019 private treatment record for obstructive sleep apnea indicates that the Veteran has a long-term insomnia with some posttraumatic stress disorder (PTSD) components. Therefore, the Veteran must be afforded a new VA examination to ascertain a psychiatric diagnosis and etiology if any psychiatric diagnosis is found. The matters are REMANDED for the following action: 1. Obtain any outstanding relevant treatment records from VA. 2. Obtain the Goldmann visual field test result from the October 2015 VA examination. 3. Ask the Veteran to complete a VA Form 21-4142 for Dr. Milton Irizarry, ophthalmologist. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 4. Schedule the Veteran for an eye examination by an appropriate clinician to determine the current severity of his service-connected conjunctivitis and the etiology of glaucoma. The examiner 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. The examiner must provide an opinion whether the Veteran's glaucoma is at least as likely as not related to his service or is proximately due to or aggravated beyond its natural progress by service-connected disability, to include conjunctivitis and hypothyroidism. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left ankle disability. The examiner 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. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Moreover, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 6. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to claimed in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. A full and complete rationale for all opinions expressed must be provided. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Taylor 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.