Citation Nr: 22045455 Decision Date: 08/10/22 Archive Date: 08/10/22 DOCKET NO. 19-38 361 DATE: August 10, 2022 ORDER Entitlement to service connection for hypothyroidism, as due to herbicide agent exposure, is granted. REMANDED Entitlement to service connection for a thyroid disability, other than hypothyroidism, is remanded. FINDING OF FACT The Veteran's hypothyroidism is due to his exposure to herbicide agents during his service in Vietnam. CONCLUSION OF LAW The criteria for entitlement to service connection for hypothyroidism are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1964 to December 1968, with service in the Republic of Vietnam. His awards and decorations include, in part, the Purple Heart and the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in March 2022. A transcript is of record. This appeal is advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c) (2019); 38 U.S.C. § 7107 (a)(2) (2012). Service Connection The Veteran contends herbicide agent exposure caused his thyroid disabilities. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). 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). A Veteran, who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service "in the Republic of Vietnam" includes service both on the landmass of Vietnam and the waters that are no more than 12 miles offshore of Vietnam. 38 U.S.C. § 1116A. The National Defense Authorization Act (NDAA) for Fiscal Year 2021 has added three disorders to the list of diseases presumptively associated with exposure to herbicide agents, including hypothyroidism. Thus, a presumption of service connection arises for a Veteran who served in the Republic of Vietnam during the aforementioned period and who develops hypothyroidism. The Veteran's military personnel records confirm he served in the Republic of Vietnam. The Veteran submitted a Thyroid and Parathyroid Conditions Disability Benefit's Questionnaire (DBQ) completed by Dr. L.Z. Dr. L.Z. reported the Veteran has current diagnoses of hypothyroidism, malignant neoplasm of the thyroid, and benign neoplasm of the thyroid. See April 2018 Thyroid and Parathyroid Conditions DBQ. As noted above, section 9109 of the NDAA for Fiscal Year 2021 added three diseases to the list of presumptive diseases outlined in 38 C.F.R. § 3.309 (e), including hypothyroidism, the addition of which will be codified at 38 U.S.C. § 1116 (a)(2)(J). The Veteran has a diagnosis of hypothyroidism. As of January 1, 2021, VA now concedes that there is a presumptive correlation, or nexus, between exposure to herbicide agents and eventual development of hypothyroidism. Accordingly, as the Veteran has a diagnosis of hypothyroidism, and is entitled to the presumptions based on herbicide agent exposure due to qualifying service in Vietnam, service connection for hypothyroidism as due to in-service herbicide agent exposure is granted. REASONS FOR REMAND Entitlement to service connection for a thyroid disability, other than hypothyroidism, is remanded. The Veteran seeks service connection for thyroid disabilities, asserting that his thyroid disabilities are related to herbicide agent exposure in Vietnam. The Veteran is now service connected for hypothyroidism; however, the record indicates the Veteran has other thyroid diagnoses. The Veteran filed his original service connection claim for "Thyroid and Parathyroid Conditions." See April 2018 VA Form 21-526EZ, Fully Developed Claim. The Thyroid and Parathyroid Conditions DBQ indicates the Veteran has additional diagnoses of malignant neoplasm of the thyroid and benign neoplasm of the thyroid. See April 2018 Thyroid and Parathyroid Conditions DBQ. The Veteran's claim for service connection for thyroid disability includes all thyroid disabilities diagnosed during, or proximate to, the claims period. Although VA regulations do not provide for presumptive service connection for malignant neoplasm of the thyroid or benign neoplasm of the thyroid based on exposure to herbicide agents, service connection for a disability claimed as due to exposure to herbicide agents may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). VA has not provided the Veteran an examination to determine whether his malignant neoplasm of the thyroid or benign neoplasm of the thyroid are related to conceded herbicide agent exposure. Here, the private Thyroid and Parathyroid Conditions DBQ shows diagnoses of malignant neoplasm of the thyroid and benign neoplasm of the thyroid. The Veteran is presumed exposed to herbicide agents. Further, he submitted a medical article, "High Prevalence of Agent Orange Exposure Among Thyroid Cancer Patients in the National VA Healthcare System," which discusses thyroid cancer and herbicide agent exposure. See March 2022 Correspondence. The Veteran's current thyroid disabilities, other than hypothyroidism; his presumed herbicide agent exposure; and the medical article are sufficient to trigger VA's duty to provide an examination under the McLendon standard because the evidence meets the low threshold of showing the claimed disability may be related to service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The matter is REMANDED for the following action: Schedule the Veteran for an examination regarding his service connection claim for a thyroid disability, other than hypothyroidism. The selected examiner must provide an opinion addressing whether the Veteran's thyroid disability, other than hypothyroidism, is at least as likely as not (at least an approximate balance of positive and negative evidence) related to his active-duty service, to include presumed herbicide agent exposure. The selected clinician must specifically address the medical article the Veteran submitted, "High Prevalence of Agent Orange Exposure Among Thyroid Cancer Patients in the National VA Healthcare System." The examiner should address any other pertinent evidence of record. The Veteran's report of symptoms capable of lay observation may not be disregarded solely on the basis that they are not recorded in contemporaneous medical treatment records. The examiner must be advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The selected examiner must provide a full rationale for his or her conclusion. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, 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.