Citation Nr: 1323484 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 09-27 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for multi-nodular goiter, claimed as non-malignant thyroid nodular disease with enlarged thyroid due to exposure to ionizing radiation. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from August 1954 to August 1958. This matter came to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In June 2010, a videoconference hearing was held before a Veterans Law Judge who has since retired. The Veteran exercised his right to appear at a second videoconference hearing, which was held before the undersigned in June 2013. Transcripts of both hearings are of record. In June 2010 and January 2013, the Board remanded the claim for further development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). At the June 2013 hearing, the Veteran submitted additional medical evidence accompanied by a waiver of initial RO review of the evidence, in accordance with 38 C.F.R. § 20.1304 . This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's current diagnosed bilateral multi-nodular goiter is likely the same disorder as non-malignant thyroid nodular disease with enlarged thyroid. 2. The Veteran's current thyroid nodular disease was not shown to have had onset during service; the thyroid nodular disease, first diagnosed many years after discharge from active service, is unrelated to an injury, disease, or event of service origin, to include his confirmed exposure to ionizing radiation. CONCLUSION OF LAW Service connection for bilateral multi-nodular goiter is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in April 2009. The Veteran was notified of the evidence needed to substantiate the claim of service connection, namely, evidence of current disability; evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. The Veteran was also notified that VA would obtain service records, VA records, and records of other Federal agencies and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any such records on his behalf. The Veteran was encouraged to furnish information regarding his alleged radiation exposure, and was provided a radiation risk activity information sheet as a guide on what to report to the RO. As for content of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (to the extent there was pre-adjudication notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim). Furthermore, under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran was afforded a hearing before the undersigned in June 2013, as well as at an earlier hearing before a different Veterans Law Judge in June 2010. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearings, the Veterans Law Judges indicated that the hearings would focus on the issue of service connection for multi-nodular goiter, claimed as non-malignant thyroid nodular disease with enlarged thyroid, and discussed the elements of the claim that was lacking to substantiate the claim. The Veteran was assisted at the hearings by an accredited representative from Tennessee Department of Veterans Affairs. The representative and the Veterans Law Judges asked questions to ascertain the nature and etiology of the claimed thyroid disease. The Veteran and his representative did not identify any pertinent evidence that remains outstanding. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection for multi-nodular goiter, claimed as non-malignant thyroid nodular disease with enlarged thyroid. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the Veterans Law Judges complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Additionally, the RO obtained theVeteran's service personnel and treatment records and VA treatment records. The RO has also obtained information from appropriate service departments concerning occupational radiation exposure of the Veteran. The Veteran has not identified any additional records, such as private treatment records, for the RO to obtain on his behalf. VA has also conducted medical inquiry in an effort to substantiate the Veteran's claim. 38 U.S.C.A. § 5103A(d). A VA medical opinion was obtained in August 2010 to determine whether the Veteran's currently diagnosed bilateral multi-nodular goiter was the same disorder as non-malignant thyroid nodular disease (which is listed in 38 C.F.R. § 3.311(b)(2)). Then, after confirmation that the Veteran was a participant in a radiation activity (Operation HARDTACK I) during service with presumed exposure to ionizing radiation, and after a dose estimate was received from Defense Threat Reduction Agency (DTRA) in February 2011, the case was referred to VA's Compensation and Pension Service, which in turn sought a medical opinion from the Under Secretary for Health on the association, if any, between the Veteran's radiation exposure in service and his current thyroid disorder. That opinion was rendered in April 2011. As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with VA's duty to assist. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Where a veteran served 90 days or more of continuous, active military service and certain chronic diseases, such as endocrinopathies, become manifest to a degree of 10 percent within one year from date of separation from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). 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 disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a condition that is claimed to be attributable to ionizing radiation exposure during service may be established in one of three different ways, which have been outlined by the United States Court of Appeals for Veterans Claims (Court). See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, where it is contended that disease developed as a result of exposure to ionizing radiation during service, service incurrence may be presumed under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) for veterans who participated in defined radiation risk activities and have certain diseases. Second, service connection may be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311 if certain conditions are met. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). As it applies to 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d), the term "radiation-exposed veteran" means a veteran who participated in a "radiation-risk activity." 38 U.S.C.A. § 1112(c)(3)(A); 38 C.F.R. § 3.309(d)(3)(i). The term "radiation-risk activity" means: onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima or Nagasaki, Japan, during the period beginning on August 6, 1945, and ending on July 1, 1946; internment as a prisoner of war of Japan during World War II resulting in an opportunity for exposure to radiation comparable to those occupying Hiroshima or Nagasaki; certain service on the grounds of a gaseous diffusion plant in Paducah, Kentucky, Portsmouth, Ohio, or at area K25 at Oak Ridge, Tennessee; or certain service on Amchitka Island, Alaska. See 38 U.S.C.A. § 1112(c)(3)(B); 38 C.F.R. § 3.309(d)(3)(ii). Specifically, service before January 1, 1974, on Amchitka Island, Alaska, qualifies as a radiation-risk activity if, during such service, the veteran was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests. 38 C.F.R. § 3.309(d)(3)(ii)(D)(2). Diseases presumptively service connected for radiation-exposed veterans under the provisions of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) are: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary gland, cancer of the urinary tract, bronchiolo-alveolar carcinoma, cancer of the bone, cancer of the brain, cancer of the colon, cancer of the lung, and cancer of the ovary. 38 U.S.C.A. § 1112(c)(2); 38 C.F.R. § 3.309(d)(2). As previously noted, in radiation claims, the second approach is found in 38 C.F.R. § 3.311. To consider a claim under § 3.311, the evidence must show the following: (1) the veteran was exposed to ionizing radiation in service; (2) he subsequently developed a radiogenic disease; and (3) such disease first became manifest within a period specified by the regulation. 38 C.F.R. § 3.311(b). If any of the foregoing three requirements has not been met, service connection for a disease claimed as secondary to exposure to ionizing radiation cannot be granted under 38 C.F.R. § 3.311. 38 C.F.R. § 3.311(b)(1)(iii). For purposes of 38 C.F.R. § 3.311, the term "radiogenic disease" means a disease that may be induced by ionizing radiation. 38 C.F.R. § 3.311(b)(2). The regulation states that the term radiogenic disease shall include: (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) Thyroid cancer; (iii) Breast cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver cancer; (vii) Skin cancer; (viii) Esophageal cancer; (ix) Stomach cancer; (x) Colon cancer; (xi) Pancreatic cancer; (xii) Kidney cancer; (xiii) Urinary bladder cancer; (xiv) Salivary gland cancer; (xv) Multiple myeloma; (xvi) Posterior subcapsular cataracts; (xvii) Non-malignant thyroid nodular disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma; (xx) Tumors of the brain and central nervous system; (xxi) Cancer of the rectum; (xxii) Lymphomas other than Hodgkin's disease; (xxiii) Prostate cancer; and (xxiv) Any other cancer. 38 C.F.R. § 3.311(b)(2). Section 3.311(a) calls for the development of a radiation dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumptive period specified in either 38 C.F.R. § 3.307 or § 3.309, and where it is contended that the disease is a result of ionizing radiation in service. Dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing and in claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2). In all other claims involving radiation exposure, the VA Under Secretary for Health will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. Id. Finally, as previously noted, direct service connection can be established by "showing that the disease or malady was incurred during or aggravated by service," a task which "includes the difficult burden of tracing causation to a condition or event during service." Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Factual Background and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file (and in "Virtual VA"). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each item of evidence. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence as appropriate, prior to applying the law. The Veteran seeks service connection for multi-nodular goiter, which he asserts is non-malignant thyroid nodular disease with enlarged thyroid. In statements and testimony, he maintains that the disease is due to exposure to ionizing radiation in service, specifically while stationed on the U.S.S. Monticello during Operation HARDTACK I. Service personnel records confirm that he was stationed on the U.S.S. Monticello during at least a portion of Operation HARDTACK I, which refers to testing involving the atmospheric detonation of a nuclear device during the period from April 28, 1958 through October 31, 1958, according to 38 C.F.R. § 3.309(d)(3)(v)(O). Evidence received from the Veteran regarding the location of the U.S.S. Monticello during Operation HARDTACK I suggests the ship was in the vicinity of atmospheric nuclear tests. Service treatment records, to include the report of the Veteran's separation examination in August 1958, do not show a diagnosis of a thyroid disorder, or complaints or clinical findings relative thereto. On the basis of the service treatment records alone, a thyroid disorder was not affirmatively shown to have been present in service. There was no complaint, treatment, or diagnosis of a thyroid disorder during service or at the time of the Veteran's separation physical examination, before discharge from service. Thus, service connection under 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not established. As the preponderance of the evidence is against the claim on this theory of service connection, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). After service, a VA general medical examination in December 1998 found that the endocrine system was normal and that the TSH (thyroid stimulating hormone) was at a normal level. It was also noted that the TSH was obtained specifically due to the Veteran's history of radiation exposure. An August 2000 VA outpatient record indicates that the Veteran was exposed to atomic radiation; examination of the neck showed no goiter and there was a normal TSH in the last three months. Subsequent VA records show that in August 2002 the Veteran was noted to have a nodule of the right thyroid, which had been detected on an ultrasound (a July 2002 ultrasound indicated a complex mass in the mid-portion of the right lobe of the thyroid). It was noted that the Veteran had a history of radiation exposure in the past, which reportedly made him a "fairly high risk." A scan was ordered. In September 2002, it was noted that a biopsy was indefinite and a thyroid scan did not detect a nodule. Continued monitoring showed that in November 2005 a thyroid ultrasound showed bilateral multiple hypoechoic nodular lesions, reflecting multi-nodular goiter with areas of degeneration most likely. Compared with the prior reportings, the number of the nodules had increased. The scan represented new abnormal findings or changes. In December 2008, the Veteran was seen as anxious and concerned about his thyroid; it was noted that he had multi-nodular goiter, a biopsy had been nonspecific, all TSH levels since 1998 had been normal, and a recent CT scan was negative. On examination there was a very small nodule felt in the upper right thyroid. A repeat thyroid ultrasound that month indicated bilateral multiple nodules as before with no gross change; the most likely diagnosis was bilateral mild multi-nodular goiter. Records in 2010 noted the condition to be stable. In August 2010, a VA medical opinion was secured regarding whether the Veteran's current diagnosis of bilateral multi-nodular goiter was the same disorder as non-malignant thyroid nodular disease, as listed in 38 C.F.R. § 3.311(b)(2). The examining physician opined that the Veteran's currently diagnosed bilateral multi-nodular goiter was at least as likely as not the same disorder as non-malignant thyroid nodular disease, based on review of the claims file and VA medical records and on the medical literature. Thereafter, VA records continue to show the presence of a thyroid disorder. In May 2011, it was noted that the thyroid gland was not enlarged and no nodules were detected on palpation, but the assessment noted an abnormal thyroid ultrasound that revealed an enlarged parathyroid gland. An April 2012 thyroid ultrasound showed a multi-nodular thyroid gland with a few nodules on the left that were slowly becoming larger (none of them met current biopsy criteria); the next monitoring examination was to be obtained in one year. A May 2013 thyroid ultrasound showed a bilateral enlarged thyroid with multiple solid and cystic nodules, which were not significantly increased in size compared with the previous examination. In view of the foregoing, under 38 C.F.R. § 3.309(a), wherein endocrinopathies are included among the chronic diseases for which presumptive service connection may be established, there is no evidence whatsoever that the Veteran's thyroid disorder, for which symptoms were not shown to have manifested prior to 2002, was present during the Veteran's service or to a compensable degree within one year after service, and he has never so contended. The evidence instead indicates that his thyroid disorder was initially manifest and diagnosed many years after service. Therefore, the Board finds that the presumptive provisions of 38 C.F.R. § 3.309(a) are not for application. Additionally, the provisions of 38 C.F.R. § 3.309(d), for veterans who participated in defined radiation risk activities and have certain diseases, are also not for application. The Veteran is a "radiation-exposed veteran" as he was confirmed to be present at a test site or test staging area in relation to atmospheric detonation of nuclear devices in the Pacific Ocean, namely Operation HARDTACK I. His status as a radiation-exposed veteran is not at issue. However, his diagnosed bilateral multi-nodular goiter, which is found likely to be the same disorder as non-malignant thyroid nodular disease, is not one of the diseases set forth in 38 C.F.R. § 3.309(d) as presumptively related to radiation exposure. Thus, the Board finds that the presumptive provisions of 38 C.F.R. § 3.309(d) are not for application with respect to the Veteran's claim that his thyroid disorder is due to radiation exposure in service. The provisions of 38 C.F.R. § 3.311 constitute another method for establishing service connection by allowing for development of claims based upon a contention of ionizing radiation exposure during active service and post-service development of a radiogenic disease. The purpose of these provisions is to relieve claimants of the burden of having to submit evidence to show that their disease may have been induced by radiation. These provisions do not give rise to a presumption of service connection, but rather establish a procedure for handling claims brought by radiation exposed veterans or their survivors. See Ramey v. Gober, 120 F.3d 1239, 1244 (Fed. Cir. 1997). The provisions of 38 C.F.R. § 3.311 are for application in this case, as will be explained; however, after following the procedures outlined in the regulations, the Board finds that there is no competent evidence in the record that links the Veteran's thyroid disorder to an injury, disease, or event of service origin including his confirmed exposure to ionizing radiation. The governing regulation essentially states that, in all claims in which it is established that a radiogenic disease first became manifest after service, and it is contended that the disease resulted from radiation exposure, a dose assessment will be made. To obtain dose data, a request will be made for any available records concerning the veteran's exposure to radiation, including the veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records that may contain information relevant to the veteran's radiation dose in service. 38 C.F.R. § 3.311(a)(2). As the Veteran in this case has a radiogenic disease - "non-malignant thyroid nodular disease" - as defined in 38 C.F.R. § 3.311(b)(2), which became manifest five years or more after exposure (see 38 C.F.R. 3.311(b)(5)(iv)), the RO undertook to obtain dose data in December 2010 from the Defense Threat Reduction Agency (DTRA) of the Department of Defense, which is the Executive Agent for the Nuclear Test Personnel Review (NTPR) Program and is responsible for verifying participation and providing radiation dose information to VA. The Veteran was informed of this in a letter from DTRA in December 2010. In response to the request for a dose assessment regarding the Veteran's exposure to radiation in service, DTRA responded in February 2011 that the Veteran was indeed a confirmed participant of Operation HARDTACK I, conducted at the Pacific Proving Ground in 1958. DTRA noted that its NTPR Program has established conservative maximum doses utilizing scientific methods, technical calculations, and actual radiation level measurements from U.S. atmospheric nuclear test detonations, and that the reported doses were based on worst-case parameters and assumptions. The doses that the Veteran could have received during his participation in Operation HARDTACK I, were not more than the following: upper bound external gamma dose of 18 rem; upper bound neutron dose of 0.5 rem; internal committed alpha dose to the thyroid of 0.1 rem; and internal committed beta plus gamma dose to the thyroid of 7 rem. Thereafter, in accordance with 38 C.F.R. § 3.311(b)(1), the Veteran's claim was referred to the VA Under Secretary for Benefits for further consideration as to whether sound scientific medical evidence can support the conclusion that it is at least as likely as not that the Veteran's thyroid disorder resulted from radiation exposure during service. As permitted under 38 C.F.R. § 3.311(c), the VA Director of Compensation and Pension Service in March 2011 sought an advisory medical opinion from the VA Under Secretary for Health, as to whether the Veteran's thyroid disorder resulted from exposure to ionizing radiation in service. Such opinion was received in April 2011, and it was based on an evaluation of the Veteran's claim utilizing a number of factors, such as the probable dose, the Veteran's gender and pertinent family history, the Veteran's age at time of exposure, and time-lapse between exposure and onset of disease. See 38 C.F.R. § 3.311(e). The examiner opined that it was unlikely that the Veteran's thyroid multi-nodular goiter could be attributed to radiation exposure while in service. By way of explanation, the examiner noted that thyroid cancer and benign nodular thyroid disease demonstrate a dose response but that the Veteran's total thyroid dose was well below the threshold dose for such a response. Further, atomic bomb survivors under the age of 30 (as was the Veteran in service) at the time of exposure have shown a dose-dependent excess of thyroid disease, including non-toxic nodular goiter, and hypothyroidism, but that the excess became evident within 20 years after irradiation (the Veteran's disease was not manifest until more than 40 years after his exposure). The examiner cited to various medical articles in support of the opinion. In consideration of this opinion and after a review of the evidence in its entirety, the Director of Compensation and Pension Service concluded that there was no reasonable possibility that the Veteran's thyroid disorder resulted from his exposure to radiation in service. Given the foregoing, the Board finds there is no objective evidence to show that the Veteran's exposure to ionizing radiation during service resulted in his current thyroid disorder. Accordingly, the Board finds that the evidence does not warrant a grant of the benefit sought under 38 C.F.R. § 3.311. As to the third method for establishing service connection (i.e., direct), 38 C.F.R. § 3.303(d) provides that service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. Thus, if a veteran is found to not be entitled to a regulatory presumption of service connection for a given disability or to the regulatory development procedures applicable to a radiogenic disease, the claim must still be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). In other words, the fact that the veteran may not meet the requirements of a presumptive regulation would not in and of itself preclude him from establishing service connection, because he may in the alternative establish service connection by proof of actual direct causation. After careful consideration, the Board finds that the claim - on a basis other than 38 C.F.R. §§ 3.309, 3.311, as discussed above - must also be denied. The Veteran was not treated for a thyroid disorder during service, and his current disorder was first documented no earlier than 2002. This is 44 years after separation from service. This lengthy period without treatment is evidence that there has not been a continuity of symptomatology, and is a factor that weighs against the claim on a direct basis. The Board otherwise notes that continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Here, there is no contention or competent evidence either contemporaneous with or after service that a thyroid disorder was noted or observed during service. Hence, the alternative basis for granting service connection, on the theory of continuity of symptomatology, is not applicable. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). As another factor against the claim, there is no competent evidence showing that the Veteran's thyroid disorder is related to his service. Specifically, there is no medical opinion of record that supports the claim; the sole medical opinion (i.e., the opinion obtained from the Under Secretary for Health) that considered the Veteran's assertion that ionizing radiation exposure in service resulted in his thyroid disorder is unfavorable to the claim. That opinion took into consideration the entire record including the Veteran's confirmed radiation exposure history in service as well as the estimated radiation dose he received at the time. In other words, the provider accounted for the significant facts in the record and provided rationale, referring to the documents in the file. There are no medical opinions to the contrary in the record. Accordingly, the opinion carries substantial weight and is of significant probative value. Notably, the Veteran has not offered any medical opinions to contradict the findings of the opinion. The Board has closely reviewed the Veteran's own lay statements that relate his multi-nodular goiter to his exposure to radiation in service. The Board finds that they are not competent (and probative) evidence in the matter of a nexus between the Veteran's multi-nodular goiter and his exposure to radiation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board.) A multi-nodular goiter is not a [simple] condition identifiable by lay observation; the Veteran is not reporting a contemporaneous (in service or proximate thereto) diagnosis; and he does not describe symptoms (in or proximate to service) that support a later diagnosis. The matter of a nexus between multi-nodular goiter (which involves an insidious process) and radiation exposure in a particular case requires expertise (to include familiarity with scientific studies) which the Veteran is not shown (and does not claim) to have. Significantly, he does not cite to a supporting medical opinion or medical literature. The Board earlier discussed the medical opinion obtained in connection with a possible association with radiation exposure in service, which found that the Veteran's thyroid disorder was not related to his confirmed radiation exposure in service. That opinion was rendered by an examiner qualified by education and training to offer it. It is accompanied by rationale (that points to supporting factual data, citing factors such as probable dosage, age at exposure, and time interval between exposure and initial manifestation of the disability), and reflects familiarity with the entire record, and cites to supporting medical literature. Consequently it is highly probative evidence in this matter, and persuasive. Hence, the preponderance of the evidence is against the claim based on a disability first diagnosed after service under 38 C.F.R. § 3.303(d). In conclusion, considering the lay and medical evidence in this case, the preponderance of the evidence is against the claim for service connection for multi-nodular goiter, claimed as non-malignant thyroid nodular disease with enlarged thyroid, on multiple bases as articulated above, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER The appeal seeking service connection for multi-nodular goiter, claimed as non-malignant thyroid nodular disease with enlarged thyroid due to exposure to ionizing radiation, is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs