HYPOTHYROIDISM

Summary

The Veteran served on active duty from January 1971 to January 1975. This case comes before the Board of Veterans' Appeals (Board) following an August 2021 regional office (RO) rating decision that denied service connection for hypothyroidism. The Veteran had initially elected a hearing but later withdrew the request, limiting the Board's review to evidence of record at the time of the RO decision or submitted within 90 days of the withdrawal. The primary issue is entitlement to service connection for hypothyroidism. The Board found that the August 2021 RO decision had already favorably found a diagnosis of hypothyroidism, conceded herbicide exposure in service, and presumptively linked hypothyroidism to this exposure. These findings satisfied the three elements required for service connection. However, the RO denied the claim, stating the hypothyroidism was due to an intercurrent disease (thyroid nodule with thyroidectomy) without obtaining a required medical opinion. The Board noted that VA cannot substitute its own medical judgment for that of an examiner and that further development to rebut the herbicide exposure presumption was impermissible under Mariano v. Principi. Therefore, based on the favorable findings from the prior RO decision and the prohibition against rebutting the presumption, the Board granted service connection for hypothyroidism. The nature and extent of the disability were not considered.

Rationale

Favorable findings from prior RO decision satisfy all elements for service connection.; Hypothyroidism is presumptively linked to herbicide exposure under 38 C.F.R. § 3.309(e).; Board cannot remand to obtain evidence rebutting the presumption.

Full Decision Text

Citation Nr: A26039277
Decision Date: 04/28/26	Archive Date: 04/28/26

DOCKET NO. 211028-194588
DATE: April 28, 2026

ORDER

Entitlement to service connection for hypothyroidism is granted.

FINDING OF FACT

The Veteran's hypothyroidism is presumed related to conceded herbicide exposure from service; this presumption has not been sufficiently rebutted.

CONCLUSION OF LAW

The criteria for service connection for hypothyroidism are met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from January 1971 to January 1975.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2021 Department of Veterans Affairs (VA) regional office (RO) rating decision.

In the October 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. On May 19, 2025, the Veteran withdrew the hearing request.

Therefore, the Board may only consider the evidence of record at the time of the August 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

Service Connection

Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018).

VA laws and regulations also provide that for a veteran was exposed to an herbicide agent (to include Agent Orange) during active service, certain enumerated diseases, to include hypothyroidism, will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e).  This presumption may be rebutted by showing, "evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease."  38 C.F.R. § 3.307(d).

Entitlement to service connection for hypothyroidism

The Board is bound by favorable findings identified by previous VA adjudicators.  See 38 C.F.R. § 3.104(c).  See also Ortega v. Collins, No. 24-4799, 2026 U.S. App. Vet. Claims LEXIS 568 (Apr. 13, 2026) ("only findings that are favorable are binding on subsequent VA adjudicators.").

Here, the August 2021 rating decision favorably found that the Veteran was [1] diagnosed with postoperative hypothyroidism status post non-toxic thyroid removal, [2] was exposed to herbicides in service due to service in the waters of Vietnam, and [3] hypothyroidism is "presumptively linked" to herbicide exposure.  A plain reading of these items indicates that they are unquestion
 3.104(c).  See also Ortega v. Collins, No. 24-4799, 2026 U.S. App. Vet. Claims LEXIS 568 (Apr. 13, 2026) ("only findings that are favorable are binding on subsequent VA adjudicators.").

Here, the August 2021 rating decision favorably found that the Veteran was [1] diagnosed with postoperative hypothyroidism status post non-toxic thyroid removal, [2] was exposed to herbicides in service due to service in the waters of Vietnam, and [3] hypothyroidism is "presumptively linked" to herbicide exposure.  A plain reading of these items indicates that they are unquestionably favorable within the meaning of Ortega given that they fully satisfy all three Shedden elements without any further detailed explanation.  

However, the August 2021 rating decision concluded, without obtaining a medical opinion as required by 38 C.F.R. § 3.159(c)(4) and 38 U.S.C. § 1168, that entitlement to service connection for this disability is not met as the Veteran's "hypothyroidism was due to an intercurrent disease diagnosed as thyroid nodule with complete thyroidectomy." 

Despite the RO's insistence, VA cannot substitute its judgment for that of a medical examiner, or in the alternative, impose its own medical belief in the absence of one.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) ("BVA panels may consider only independent medical evidence to support their findings.").  Accordingly, given the prima facie satisfaction of service connection with the above Ortega favorable findings, to obtain a medical opinion now, even to satisfy statutory and regulatory provisions, would be to obtain evidence rebutting the applicable § 3.309(e) presumption in this case.  And such evidentiary development, even if statutorily and regulatorily warranted, is not permitted.  See Mariano v. Principi, 17 Vet. App. 305, 312 (2003) ("it would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant's case.").

For this limited reason, entitlement to service connection is warranted.  The favorable Ortega findings satisfy all required Shedden elements and the Board cannot remand to rebut the applicable § 3.309(e) presumption in light of Mariano's limitations on undertaking development to obtain evidence against the case. 

The claim is granted.  The nature and extent of this disability is not for Board consideration.  No further discussion is warranted. 

 

M. C. WILSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Finelli, Christopher

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.