Citation Nr: 1333220	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  10-48 216	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUE

Entitlement to service connection for thyroid disorder, to include as due to a service-connected disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. Curameng, Counsel

INTRODUCTION

The Veteran had active duty service from June 1946 to March 1948 and from 
June 1950 to July 1953.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  On substantive appeal received in November 2010, the Veteran marked the appropriate box to indicate that he wanted a hearing before the Board at the RO.  A hearing was scheduled for July 2013, but the Veteran failed to appear.  To date, no request has been made by either the Veteran or his representative to reschedule the hearing.  

Additional evidence was received in July 2013 with waiver of RO review.

In a statement received in November 2010, it appears to the Board that the Veteran has raised various claims that have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  The Board notes that some of these claims are already service connected and it appears that he is raising increased rating claims.  The remaining issues are new claims of service connection.  Since the Board does not have jurisdiction over them, they are referred to the AOJ for appropriate action.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran's thyroid disability is etiologically related to his service-connected otitis externa. 

CONCLUSION OF LAW

Service connection for thyroid disability is warranted.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Laws and Regulations

The issue before the Board involves a claim of entitlement to service connection for thyroid disorder, to include as secondary to a service connected disability.  Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  

Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disability.  When service connection is established for a secondary condition, the secondary condition shall be considered part of the original condition. 3 8 C.F.R. § 3.310(a).  Secondary service connection may be found where a service-connected disability aggravates another condition (i.e., there is an additional increment of disability of the other condition which is proximately due to or the result of a service-connected disorder).  38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995).

The Board is charged with the duty to assess the credibility and weight given to evidence.  Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation).

Analysis

The Board acknowledges that all theories of entitlement--direct and secondary--must be considered.  See Hodge v. West, 155 F.3d 1356, 1362-1363 (Fed. Cir. 1998).  However, the Veteran is not claiming (and the record does not suggest) service connection on a direct basis, but rather on a secondary basis.  He asserts that the x-ray treatment for his service-connected otitis externa after service led to the development of thyroid disorder.  Since he is not asserting radiation exposure from any radiation-risk activities in service as defined in 38 C.F.R. § 3.309(d), service connection pursuant to 38 C.F.R. § 3.309(d) is not for application.  Further discussion of direct service connection is not necessary.  As will be seen below, service connection on a secondary basis is warranted.  

In support of his claim, the Veteran submitted duplicate copies of a June 1954 narrative summary showing x-ray therapy that was instituted due to seborrheic dermatitis of the scalp, face and ears.  While the document itself does not specifically state that the treatment is for otitis externa, subsequent treatment records lead the Board to find that the references to treatment for seborrheic dermatitis are for treatment of the service-connected otitis externa.  

A VA treatment record with a handwritten notation that it was from a December 1952 appointment shows external otitis in the right ear and noted chronic fungus.  A December 1953 record shows seborrheic dermatitis of the external auditory canals.  A September 1955 VA treatment record shows that examination of the ear revealed a fungal-like growth in both external auditory canals; and an interim diagnosis showed otitis externa that was treated and improved.  A March 1971 VA medical record shows that he had chronic external otitis; and it was noted that the Veteran "has had radiation therapy to his ears."  An April 1971 entry that follows shows "Fungus in ears..." An April 1986 VA treatment report shows a history of fungal disease of the ear "for which he received radiation in the 1950's".  Thus, the Veteran's reports of radiation treatment for otitis externa are consistent with the aforementioned evidence.  

When the Veteran was afforded a VA examination for the thyroid in November 2008, he gave a history of radiation treatment to his head, neck and scalp for a severe fungal infection after returning from Korea.  He reported several radiation treatments.  It was noted that the Veteran later developed nodular goiter.  He has had multiple biopsies and was told that it was malignant.  It was noted that the "most likely cause is because of radiation."  After interviewing and examining the Veteran, and after reviewing the claims file, the VA examiner diagnosed multinodular goiter with possible malignancy.  It was noted that the Veteran was to undergo a total thyroidectomy.  The examiner opined that the otitis externa does not cause thyroid condition, but "[r]adiation as likely as not can cause thyroid abnormalities." 

When the Veteran was afforded a VA examination for otitis externa in December 2008, the examiner diagnosed otits externa and thyroid nodule.  The examiner examined the Veteran and reviewed the record and noted the Veteran's history of radiation treatment for otitis externa "which was at that time recommended for persistent otitis externa."  The examiner stated that the radiation for otitis externa is a "high-risk factor for a thyroid disorder with the development of a thyroid nodule."  He concluded, that "it is at least as likely as not that his thyroid condition is related to the radiation therapy for his otitis externa." 

A January 2009 VA operation report for total thyroidectomy shows that the preoperative and postoperative diagnosis was follicular neoplasm with history of radiation and multinodular goiter.  It was noted that the Veteran had a history of radiation exposure years ago.  The Veteran was undergoing total thyroidectomy after discovery of follicular neoplasm and multiple nodules in the contralateral lobe.  

A January 2009 VA discharge summary shows that principal diagnoses were thyroid neoplasm and multi-nodular goiter. 
 
An April 2009 VA treatment record shows that the Veteran was admitted to the hospital for radioactive iodine ablation following total thyroidectomy for follicular thyroid cancer.  It was noted that he had a history of external beam radiation for persistent fungal ear infections after the Korean War.  Past biopsies and treatment were noted.

A January 2012 treatment record from Atlantic Hematology Oncology Associates, LLC shows that the Veteran has been on endocrine replacement with Synthroid since undergoing total thyroidectomy and postoperative radioactive iodine therapy in January 2009.

Based on the foregoing, service connection on a secondary basis is warranted.  The medical evidence shows various thyroid diagnoses and two VA medical opinions addressing their etiology.  The December 2008 VA opinion links the radiation treatment specifically for otitis externa to his thyroid nodule, and this is supported by the November 2008 VA opinion that links radiation exposure to thyroid disabilities.  Thus, the grant of service connection is based on the two competent medical opinions (that are based on interview and examination of the Veteran, and review of his claims file) that support the Veteran's claim for secondary service connection.  The Board notes that there are no competent medical records to the contrary.   

During the course of the appeal the Veteran has been diagnosed with various thyroid conditions (multinodular goiter, thyroid nodule, follicular neoplasm with history of radiation and multinodular goiter, and follicular thyroid cancer) which appear to represent a progression of disability over the course of the appeal.  The November 2008 opinion linked "thyroid abnormalities" (and not a specific diagnosis) to radiation exposure and the December 2008 VA examiner was more specific and opined as to the thyroid nodule.  The Board is granting service connection for a thyroid disability, rather than for a specific diagnosis, as the evidence is clear that a thyroid disability is caused by the treatment for a service-connected disability.   

Overall, the evidence establishes a link between the Veteran's thyroid disability and the Veteran's service-connected otitis externa.  Service connection on a secondary basis is established.

Notice and Assistance

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); and Dingess v. Nicholson, 19 Vet. App. 473 (2006).

VA has substantially satisfied the duties to notify and assist.  To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to grant the claim.  

ORDER

Entitlement to service connection for thyroid disability as secondary to the Veteran's service-connected otitis externa is granted.




____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs