Citation Nr: 0812908 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 06-18 482 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for papillary thyroid carcinoma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and spouse ATTORNEY FOR THE BOARD Raymond F. Ferner, Senior Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board of Veterans' Appeals or Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that denied the benefit sought on appeal. The veteran, who had active service from June 1965 to June 1968, appealed that decision to the BVA, and the case was referred to the Board for appellate review. FINDING OF FACT Papillary thyroid carcinoma is causally or etiologically related to service. CONCLUSION OF LAW Papillary thyroid carcinoma was incurred during active service. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.102, 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The notification obligation in this case was accomplished by way of letters from the RO to the veteran dated in May and July 2004. While this notice does not provide any information concerning the evaluation or the effective date that could be assigned should service connection be granted, Dingess v. Nicholson, 19 Vet. App. 473 (2006), the veteran is not prejudiced by the failure to provide him that further information because after receiving this decision, the RO will promulgate a rating decision granting service connection, and assign both an evaluation and an effective date. If the veteran is dissatisfied with either the evaluation or effective date assigned he will have an opportunity to appeal either to the BVA. The RO also provided assistance to the veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the veteran's appeal. The veteran essentially contends that his thyroid cancer is due to Agent Orange he was exposed to while serving in Vietnam. Applicable law provides that service connection will be granted if it is shown that a veteran suffers from a disability resulting from an injury suffered or a disease contracted in the line of duty, or for aggravation of a pre- existing injury suffered or disease contracted in the line of duty, in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for certain chronic diseases, such as a malignant tumor, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307, 3.309. In addition, service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) Medical evidence of a current disability, (2) medical evidence or in certain circumstances, lay testimony of an in-service incurrence or aggravation of injury or disease, and (3) medical evidence of a nexus or relationship between the current disability and the in- service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, the law provides that the veteran who, during active military, naval or air service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed during such service to certain herbicidal agents (e.g., Agent Orange) unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. If the veteran was exposed to an herbicide agent during service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied; chloracne or other acneform disease consistent with chloracne, Type II diabetes (also known as Type II diabetes colitis or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutaneous tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchitis, laryngitis or trachea) and soft tissue sarcomas, other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma. 38 C.F.R. § 3.309(e). However, as indicated above, notwithstanding the foregoing, regulations provide that service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. Combee v. Brown, 34 F. 3d. 1039 (Fed. Cir. 1994). A review of the evidence of record discloses that the veteran's thyroid cancer was not manifested during service or within one year of separation from service, nor does the veteran contend that it was manifested during service or within one year of separation from service. The record clearly reflects that the veteran's thyroid cancer was not diagnosed until 2003. Therefore, the Board finds that the veteran's thyroid cancer was not manifested during service or within one year of separation from service. The veteran's thyroid cancer is also not presumptively related to exposure to Agent Orange since that disorder is not listed as one of the disorders that is presumed to have been associated with exposure to herbicide agents such as Agent Orange. However, the United States Court of Appeals for the Federal Circuit has stated that notwithstanding the regulations pertaining to presumptive service connection for disorders associated with Agent Orange, that service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disability was incurred in service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this case, the veteran has submitted two statements from his private physician, David DeAtkine, Jr., M.D., which tend to support the veteran's claim that his thyroid cancer is directly due to exposure to Agent Orange. In a May 2005 letter Dr. DeAtkine stated that exposure to Agent Orange has been associated with the late development of epithelioid carcinomas in some of those exposed. He noted that the veteran had no family history of thyroid cancer and no other risk factors for the development of thyroid cancer. Dr. DeAtkine concluded that one must be concerned that his thyroid cancer was causally related to his exposure history. A later-dated December 2007 letter from Dr. DeAtkine stated a more definitive conclusion and stated that the veteran's thyroid cancer is more than likely not related to his exposure to the herbicide Agent Orange. Based on this record, the Board believes that service connection can be granted for thyroid cancer on a direct basis. The record contains a medical opinion which directly links the veteran's thyroid cancer to his exposure to Agent Orange and this opinion is uncontroverted. Therefore, the Board concludes that service connection for papillary thyroid cancer is established. ORDER Service connection for papillary thyroid cancer is granted. ____________________________________________ M. W. Greenstreet Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs