Citation Nr: A25035168 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 210908-183025 DATE: April 16, 2025 REMANDED Entitlement to service connection for thyroid disorder is remanded. Entitlement to service connection for Graves' ophthalmopathy disease is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2003 to July 2004, and from October 2008 to November 2009. In the September 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Review docket. Therefore, the Board may only consider the evidence of record at the time of the June 2021 agency of original jurisdiction (AOJ) decision on appeal and the evidence submitted by the Veteran within the 90-day period following receipt of VA Form 10182. 38 C.F.R. §§ 20.300, 20.303. However, because the Board is remanding the appeal, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). The Board initially notes that there appear to be outstanding private treatment records that may be pertinent to the issues on appeal. Specifically, the June 2021 VA examination report noted that the Veteran received treatment from a private endocrinologist. These records are not associated with the claims file, and the AOJ did not attempt to obtain these records, or request that the Veteran submit copies of them before issuing the rating decision on appeal. Hence, remand is necessary to correct a pre-decisional duty to assist error. On remand, the Veteran should be provided the opportunity to submit or identify any outstanding private endocrinology care, and to provide the necessary information in order for the VA to assist him in obtaining these potentially relevant records. See 38 C.F.R. § 3.159. Pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), a disability examination which considers service connection as due to a toxic exposure is now required in situations where there is (a) evidence of a disability, (b) evidence of a toxic exposure risk activity (TERA), and (c) not enough evidence to establish service connection for the disability. 38 U.S.C. § 1168. In a September 2023 memorandum, the AOJ determined that the Veteran's service in Iraq and Kuwait in 2008 and 2009 qualified him as a toxic-exposed veteran under 38 U.S.C. §§ 101(38) and 1710(e)(1)(C). As such, the Board finds that an opinion is necessary that addresses whether the Veteran's thyroid disorder and/or Graves' ophthalmopathy disease is related to his military service, to include his in-service TERA in Iraq and Kuwait. The matters are REMANDED for the following action: 1. Give the Veteran an additional opportunity to submit or authorize VA to obtain on his behalf, any records of private endocrinology care. The AOJ should take all appropriate steps to obtain identified records. 2. The Veteran should be afforded a VA examination to determine whether his thyroid disorder and/or Graves' ophthalmopathy disease had its onset during, or is otherwise related to, his military service. The record must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should take a history from the Veteran as to the progression of his thyroid disorder and/or Graves' ophthalmopathy disease. After a review of the record and an examination and interview of the Veteran, the examiner should offer an opinion as to the following: Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's thyroid disorder and/or Graves' ophthalmopathy disease began during service or is otherwise related an in-service injury, event, or disease, to include any hazardous exposure while serving in Southwest Asia? In offering a response, the examiner must consider the full record, to include the lay statements of record concerning the onset and continuity of symptomatology. The examiner is reminded that the Veteran's hazardous exposure while serving in Iraq and Kuwait is presumed, and he has been deemed to have participated in a toxic exposure risk activity (TERA) due to his location of service. The examiner must consider the total potential exposure through all applicable military deployments, and the synergistic, combined effect of all toxic risk activities. (CONTINUED ON NEXT PAGE) A clearly stated rationale for any opinions offered should be provided and must be based on consideration of all pertinent lay and medical evidence. Leetra J. Harris Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.