Citation Nr: 1141069	
Decision Date: 11/04/11    Archive Date: 11/21/11

DOCKET NO.  08-09 880A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to service connection for gout, to include as secondary to Agent Orange exposure.

2.  Entitlement to service connection for thyroid cancer, to include as secondary to Agent Orange exposure.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

F. Yankey, Counsel


INTRODUCTION

The Veteran served on active duty from February 1969 to November 1970.  This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied service connection for gout and service connection for thyroid cancer.

The Veteran testified before the undersigned at an August 2011 Video Conference hearing.  The hearing transcript is of record.  

The issue of entitlement to service connection for gout is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran served in Vietnam and was exposed to herbicides.

2.  Thyroid cancer was not present in service or until years thereafter, and is not etiologically related to service.



CONCLUSION OF LAW

Thyroid cancer was not incurred or aggravated during active duty, and its incurrence or aggravation during such service may not be presumed.  38 U.S.C.A. §§ 1101, 1110, 1112, 1116 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Legal Criteria

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.A. § 1110, 1131; 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 claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b) an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post- service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).  

In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, No. 2009-7075 (Fed. Cir. Sept. 14, 2009).  

"[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").  

Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic."  When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  
Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2011).  

The provisions of 38 U.S.C.A. § 1116(a) (West 2002) provide presumptive service connection on the basis of herbicide exposure for specified diseases manifested to a degree of 10 percent within a specified period in 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.  It also provides presumptive service connection on the basis of herbicide exposure for each additional disease that the Secretary determines in regulations prescribed under this section warrants a presumption of service-connection by reason of having a positive association with exposure to an herbicide agent, and that becomes manifest within the period (if any) prescribed in such regulations in 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.  

Whenever the Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease for the purposes of this section.  38 U.S.C.A. § 1116(b)(1).  

In making determinations for the purpose of this subsection, the Secretary shall take into account (A) reports received by the Secretary from the National Academy of Sciences under section 3 of the Agent Orange Act of 1991, and (B) all other sound medical and scientific information and analyses available to the Secretary.  In evaluating any study for the purpose of making such determinations, the Secretary shall take into consideration whether the results are statistically significant, are capable of replication, and withstand peer review.  38 U.S.C.A. § 1116(b)(2).  

An association between the occurrence of a disease in humans and exposure to an herbicide agent shall be considered to be positive for the purposes of this section if the credible evidence for the association is equal to or outweighs the credible evidence against the association.  38 U.S.C.A. § 1116(b)(3).  

The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e).  

Thyroid cancer is not among the diseases specified in 38 U.S.C.A. § 1116(a).  In addition, the Secretary has not determined, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of thyroid cancer in humans.  See 38 C.F.R. § 3.309(e).  

Analysis

The Veteran contends that his thyroid cancer is the result of herbicide exposure in Vietnam.  Because the Veteran served in Vietnam, his exposure to herbicides is presumed.  38 C.F.R. § 3.307(a)(6)(iii).  Thyroid cancer is not subject to presumptive service connection on the basis of herbicide exposure, because the Secretary has not determined, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of thyroid cancer in humans.  

The Veteran could, nonetheless establish service connection with evidence of direct incurrence.  Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  The current record contains no evidence of a nexus between the Veteran's military service and his thyroid cancer.  

The Veteran's service treatment records contain no findings of thyroid cancer, and the Veteran has reported no in-service symptoms or treatment.  In fact, during his August 2011 Board hearing, he testified that the only reason he believed his thyroid cancer was related to service was because the thyroid gland is in the same general area as other parts of the body that are subject to presumptive service connection based on herbicide exposure.  See August 2011 Video Conference hearing transcript.

The post-service medical evidence of record shows that he underwent an excision of two sebaceous cysts of the neck in December 1987.  They also show that after a right thyroidectomy revealed papillary carcinoma of the thyroid, he underwent a total thyroidectomy in April 1996.  See private treatment records from Katherine Shaw Bethea Hospital dated from October 1980 to May 2006.  No medical professional has linked the Veteran's thyroid cancer to service.  

There is no evidence otherwise linking the current disability to service.  The Veteran has not reported a continuity of symptomatology beginning in service and there is no other evidence, VA or private, that the current thyroid cancer may be related to service.  

The Veteran is competent to report the symptoms of his thyroid disability however, as a layperson; he does not have the expertise to link the current disability to herbicides in service.  See Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  Indeed the statutory scheme discussed above envisions that the link between a disease and herbicide exposure is established by scientific or medical evidence.  See 38 U.S.C.A. § 1116.  


Accordingly, the Board must conclude that the preponderance of the evidence is against a link between the current disability and service.  As the evidence is against the claim, reasonable doubt does not arise, and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002).  


ORDER

Service connection for thyroid cancer is denied.


REMAND

During his August 2011 Video Conference hearing, the Veteran reported that within a few months of his discharge, he was treated for gout at the VA Medical Center in Iowa City, Iowa.  Records of this treatment are not currently associated with the claims file.  The procurement of potentially pertinent medical records referenced by the Veteran is required.  As it appears that there may be available VA medical records that are not associated with the claims folder, a remand is required.  See 38 C.F.R. § 3.159(c)(2).  The provisions of 38 C.F.R. § 3.159(c) provide that VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency.  38 C.F.R. § 3.159(e).

Accordingly, the case is REMANDED for the following action:

1.  The RO or AMC should take the necessary steps to obtain any medical records from the VA Medical Center in Iowa City, Iowa, showing treatment for the Veteran's gout since his discharge in November 1970, and any other pertinent evidence identified but not provided by the Veteran.  If the RO or AMC is unsuccessful in obtaining any such evidence, it should document the efforts to obtain the records, and should request the Veteran and his representative to provide a copy of the outstanding evidence to the extent they are able to.

2.  The veteran should be afforded a VA examination to determine whether there is a nexus between any currently manifested gout and the veteran's active military service.  All indicated tests and studies should be conducted and all findings described in detail.  The claims file must be made available to the examiner for review and the examination report should reflect that such review is accomplished.  The examiner should offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any currently diagnosed gout, in whole or in part, existed during the veteran's active service or is related to his active service.  The veteran's statements regarding treatment for gout shortly after service must be considered in arriving at any opinion.  A complete rationale for all opinions offered should be provided.

3.  Readjudicate the issue on appeal based on a review of the record.  If the benefit sought on appeal is not granted, the agency of original jurisdiction should issue a supplemental statement of the case.  The case should be returned to the Board, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).



______________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs