Citation Nr: 1323142 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 09-35 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for papillary carcinoma of the thyroid, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from January 1967 to December 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In a May 2011 decision, the Board previously referred the issue of entitlement to service connection for posttraumatic stress disorder (PTSD). This issue has not yet been addressed by the RO in the first instance and is again REFERRED to the RO for proper adjudication. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In a May 2011 remand, the Board instructed the Veteran be provided a VA examination to obtain an etiological opinion regarding whether his papillary carcinoma of the thyroid is due to in-service herbicide exposure or is otherwise etiologically related to his active service. The requested examination was conducted in January 2012, and a negative etiological opinion was provided. The examiner provided two rationales for the negative opinion. First, the examiner stated that carcinoma of the thyroid is not currently associated as an Agent Orange disease. Second, the examiner noted that the Veteran was not diagnosed with the disease during active service. Both rationales provided by the VA examiner are insufficient to support the negative etiological opinion and, therefore, the opinion is inadequate for the purposes of determining service connection. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). First, without citing medical evidence, the examiner simply notes carcinoma of the thyroid is not "currently associated" with Agent Orange. Essentially, the examiner is noting that carcinoma of the thyroid has not been determined to be a presumptive disability related to herbicide exposure. See 38 C.F.R. § 3.309(e) (2012). However, as emphasized by the Board previously in the May 2011 remand, the Federal Circuit has held that a claimant is not precluded from establishing service connection for a disability due to herbicide exposure with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established.) With regard to the second rationale, the Board notes that service connection may be warranted for a disease diagnosed after service separation if the medical evidence establishes the current disability was incurred in active service. See 38 C.F.R. § 3.303(d); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). The VA examiner's statement that the Veteran's carcinoma of the thyroid was not diagnosed during active service is therefore an insufficient rationale for the negative opinion provided. Finally, noting the Veteran was diagnosed with carcinoma of the thyroid shortly after service separation (less than five years), the Board requested an opinion as to whether this condition may have manifest to a compensable degree within one year of service discharge. This opinion was not provided. Therefore, a remand is necessary to obtain the requested opinions with sufficient supporting rationale. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the VA examiner who conducted the January 2012 VA examination for an addendum opinion. If the January 2012 VA examiner is unavailable, the claims file should be forwarded to another endocrinologist. If it is determined an additional examination of the Veteran is necessary, one is to be arranged. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Following a review of the claims file, and examination of the Veteran if deemed necessary, the examiner is to address the following: a. Is it at least as likely as not (probability of at least 50 percent) that the Veteran's thyroid condition developed to a compensable degree within one year of the Veteran's separation from active service. In providing this opinion, the examiner is instructed that the date of diagnosis is not dispositive of the issue regarding the development of the thyroid condition absent citation to medical evidence. The AOJ must specifically inform the examiner of the definition of "to a compensable degree" in accordance with relevant Diagnostic Codes, to include DC 7914, 7901 and 7903. b. Is it at least as likely as not (probability of at least 50 percent) that the Veteran's thyroid condition is etiologically related to (incurred in, caused or aggravated by) his period of active service, to include herbicide exposure. In providing this opinion, the examiner is instructed that the fact that carcinoma of the thyroid is not a presumptive disability related to herbicide exposure is not dispositive of the issue of direct service connection. A complete rationale must be provided for all opinions expressed. 2. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefit sought on appeal is not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case, and an appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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. 2012). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).