Citation Nr: 1330723 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-00 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a thyroid disorder. ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In addition to a paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the claims file indicates that no new relevant evidence has been added to the record since the most recent Supplemental Statement of the Case (SSOC) dated in March 2013. 38 C.F.R. §§ 19.31, 20.1304(c) (2012). FINDING OF FACT A thyroid disorder was not shown in service; a thyroid disorder was not shown until many years after service; and the Veteran's current thyroid disorder is not related to a disease or injury of service origin. CONCLUSION OF LAW A thyroid disorder was not incurred in or aggravated by active service, and may not be presumed related to service. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.313 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to this claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice requirements apply to all five elements of a service connection claim: 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/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO submitted to the Veteran VCAA letters dated in July 2008 and March 2009. The letters notified the Veteran regarding what information and evidence is needed to substantiate his claim of service connection. The letters notified the Veteran regarding what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The letters included provisions regarding disability ratings and effective dates. And the Veteran was fully notified prior to the September 2008 rating decision on appeal. In sum, the Board finds that VA has met its duty to provide VCAA notification to the Veteran regarding the service connection claim addressed in this decision. With regard to the duty to assist, the RO retrieved the Veteran's service treatment records (STRs), and retrieved private and VA treatment records pertaining to his claim. The Board notes that the Veteran did not undergo VA compensation examination for the claim on appeal. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Indeed, such an examination is unnecessary in this case. As will be further detailed in the decision below, there is no evidence of record of an in-service thyroid disorder, or of such a disorder in the immediate years following service. Indeed, the record indicates onset of a thyroid disorder many years following service. Under these circumstances, there is no duty to provide a medical examination and opinion for this claim. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In sum, the record is sufficiently developed for a determination at this time. The Board will rely on the record to determine the claim to service connection. Appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. The Merits of the Claim to Service Connection The Veteran claims service connection for a thyroid disorder. He asserts that he developed the disorder as the result of exposure to herbicides while serving in Vietnam in the late 1960s. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). When a Veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(a). Service connection may be awarded where the evidence shows that a Veteran had a chronic condition in service or during an applicable presumptive period and still has the condition. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Certain disorders are presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. The U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for disease that is diagnosed after discharge from active service, when the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to establish service connection, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 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, and who has one of the listed diseases under 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. Effective August 31, 2010, 38 C.F.R. § 3.309(e) provides that where a Veteran was exposed to an herbicide agent during active military, naval, or air service in the Republic of Vietnam, the following diseases shall be service connected, even though there is no record of such disease during service: chloracne, or any other acneform disease consistent with chloracne, Type II diabetes (also known as Type II diabetes mellitus, 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 (to include coronary spasm) and coronary bypass surgery, and stable, unstable, and Prinzmetal's angina; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (i.e., cancers of the lung, bronchus, larynx, or trachea); all chronic B-cell leukemias (including, but not limited to hairy-cell leukemia and chronic lymphocytic leukemia); or soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2012). The record documents that the Veteran served in Vietnam from February 1967 to February 1968. However, thyroid nodules are not a disorder listed under 38 C.F.R. § 3.309(e). As such, presumptive service connection for thyroid nodules due to exposure to herbicides is not warranted under 38 C.F.R. § 3.309(e). The inquiry in this decision will be limited, therefore, to whether a direct service connection finding would be warranted under 38 C.F.R. § 3.303. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. In Alemany v. Brown, 9 Vet. App. 518 (1996), the United States Court of Appeals for Veterans Claims (Court) found that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). In this matter, the evidence of record documents that the Veteran has a current thyroid disorder. VA treatment records dated from March 2008 note the diagnosis of a non-malignant left thyroid nodule. VA medical evidence dated as recent as October 2012 notes a history of non-malignant thyroid nodule, and notes a May 2012 thyroid stimulating hormone (TSH) test which indicated normal results. However, the evidence of record does not indicate a thyroid injury or disease during service. The Veteran's STRs are silent for a thyroid problem. There is no medical evidence of record indicating a thyroid problem in the years following service. The earliest medical evidence of record of a thyroid disorder is dated in March 2008, over 39 years following discharge from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered in evaluating a claim of service connection). When compared with the other evidence of record, including the lack of evidence indicating the presence of a thyroid disorder prior to 2008, the Board is left with no other conclusion but that the Veteran did not experience an injury or disease during service that led to a chronic thyroid disorder. 38 C.F.R. § 3.303. With reference to Hickson element (3), the ultimate question before the Board is whether the Veteran has a current disability that relates to service. For the Veteran to be successful in his claim to direct service connection, the evidence must show that it is at least as likely as not that his thyroid disorder is related to a disease or injury that occurred in service. If the preponderance of the evidence shows otherwise, the Veteran's claim must be denied. Though the Board finds the Veteran with a current thyroid disorder, the preponderance of the evidence is against the assertion that the current problem relates to service. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As indicated, there is no evidence of record of a thyroid disorder during service, or for several decades following service. Hence, the record demonstrates that the Veteran did not incur the disorder during service, or experience a continuity of symptomatology of the disorder following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. The lack of evidence of a thyroid disorder for over 39 years demonstrates this. Moreover, the Veteran has not submitted into the record any medical evidence indicating that his current benign thyroid nodule relates to his service, either in Vietnam or generally between 1966 and 1969. On the issue of medical nexus, the Board has considered the Veteran's lay assertion that an exposure to herbicides in Vietnam led to the thyroid disorder. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Hence, the Veteran may be competent to testify regarding pain and limitation he may experience in his throat area because such symptoms would be observable. However, his assertion regarding medical nexus is of limited probative value because he is not competent to render such a determination. The glandular disability at issue involves an internal pathology that is beyond the capacity for lay observation. Its etiology and development cannot be determined through observation or by sensation such as feeling. The Veteran is simply not competent to render a medical opinion regarding the way in which the disorder with his thyroid developed. He does not have the training and expertise to provide medical evidence connecting service to the symptoms, or connecting the symptoms to the disorder at issue. The Veteran cannot provide evidence that states that what he experienced during service, or has felt since service, resulted in a thyroid disorder. On this essentially medical question, the Veteran's statements are not probative. In sum, the record demonstrates that the Veteran has a current thyroid disorder. However, the preponderance of the evidence of record demonstrates that he did not experience a disease or injury of the thyroid disorder during service that relates to the current disorder. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. ORDER Entitlement to service connection for a thyroid disorder is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs