Citation Nr: 1337980 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-19 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for the residuals of thyroid cancer, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) Waco, Texas, which denied service connection for residuals of thyroid cancer, to include as due to herbicide exposure. The Veteran submitted a substantive appeal in May 2010 and requested a hearing before the Board. He subsequently withdrew this request. FINDINGS OF FACT 1. Although the Veteran served in Vietnam, and is thus presumed to have been exposed to herbicides (to include Agent Orange), thyroid cancer and the residuals of such are not among the disabilities recognized by VA as etiologically related to herbicide exposure. 2. There is no current diagnosis of thyroid cancer or the residuals of thyroid cancer. CONCLUSION OF LAW Residuals of thyroid cancer were not incurred in or aggravated by the Veteran's active service, nor may they be presumed to have been incurred during his service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The VA has a duty 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 & 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was notified in a letter dated in October 2009 regarding the type of evidence necessary to establish his claim. He was instructed how to establish service connection. The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. This letter also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs) and post-service medical records. The RO did not arrange for a VA examination/opinion as to the claim decided herein. The Board has considered whether an examination is necessary. Absent any competent (medical) evidence suggesting that the Veteran has a diagnosis of thyroid cancer or that the Veteran's claimed disability may be associated with his service, to include as due to herbicide exposure, an examination to secure a medical nexus opinion is not necessary, as even the low standard in McLendon v. Nicholson, 20 Vet. App. 27 (2006), is not met. See 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512, 516 (2004). VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); 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). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include malignant tumors, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. Service in the Republic of Vietnam includes service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The following diseases are associated with herbicide exposure for purposes of the presumption: chloracne or other acneform disease consistent with chloracne, Type II diabetes, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and certain soft- tissue sarcomas. However, sarcomas of the skin are not among those for which the presumption is available. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). Chloracne or other acneform disease consistent with chloracne must manifest to a degree of ten percent or more within one year after the last date of exposure to an herbicide agent. 38 C.F.R. § 3.307 (a) (6). In addition, effective August 31, 2010, VA amended 38 C.F.R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to an herbicide agent (to include Agent Orange). 75 Fed. Reg. 53202-53216 (August 31, 2010). Thus, a presumption of service connection arises for a Vietnam Veteran (presumed exposed to Agent Orange) who develops one of the aforementioned conditions. Claims based on herbicide exposure are unique in that entitlement is based on an analysis of scientific evidence, ordered by statute. 38 U.S.C.A. § 1116(b). The Agent Orange Act of 1991 (in part) directed the Secretary of Veteran Affairs to enter into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in support of military operations in the Republic of Vietnam during the Vietnam Era and each disease suspected to be associated with such exposure. Whenever the Secretary determines that a positive association exists between exposure of humans to an herbicide agent and a disease, the Secretary will publish regulations establishing presumptive service connection for that disease. If the Secretary determines that a presumption of service connection is not warranted, he must publish a notice of that determination, including an explanation of the scientific basis for that determination. The Secretary's determination must be based on consideration of NAS reports and all other sound medical and scientific information and analysis available to the Secretary. See 38 U.S.C.A. § 1116(b)-(c). In response to five NAS reports (and a special interim report), the Secretary published notices of these determinations in January 1994, August 1996, November 1999, January 2001, June 2002, May 2003, March 2005 and, most recently in July 2009. In July 2009, NAS published another report, entitled "Veterans and Agent Orange: Update 2008" (Update 2008). Consistent with prior reports of NAS, Update 2008 again found that there was "sufficient evidence of an association" between herbicide exposure and five categories of diseases in Veterans and "limited/suggestive evidence" of an association between herbicide exposure and six other categories of diseases in Veterans. The presumptions of service connection for each of these diseases were discussed above. Update 2008 also categorized certain health outcomes as having inadequate or insufficient evidence to determine whether they may be associated with herbicide exposure. In December 2010, the Secretary of Veterans Affairs published determinations regarding these diseases, based on all available evidence in Update 2008 and prior NAS reports. The Secretary determined that a positive association between exposure to herbicides and skin cancers, to include basal and squamous cell cancers, does not exist. The Secretary also reiterated that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined that a presumption of service connection is warranted. See 72 Fed. Reg. 32,395 (June 12, 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran contends that he developed the residuals of thyroid cancer as due to exposure to Agent Orange during active military service in the Republic of Vietnam. The Veteran's service personnel records reflect that he served in the Republic of Vietnam during the Vietnam era. Thus, the Veteran is presumed to have been exposed to herbicides, to include Agent Orange. See 38 C.F.R. § 3.307(a)(6)(iii). However, the residuals of thyroid cancer are not among the disabilities recognized by VA as associated with herbicide exposure. See 38 C.F.R. § 3.309(e). Therefore, presumptive service connection for such residuals as due to Agent Orange exposure is not warranted. 38 C.F.R. §§ 3.307, 3.309. Even if a Veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's STRs are silent for any findings or diagnosis of thyroid cancer or any residuals of such. Notably, his January 1970 separation examination report and associated report of medical history did not list any findings regarding thyroid cancer. Post-service private treatment records indicate that the Veteran was seen and treated for hyperthyroidism in March and April 1994 and that an April 1994 diagnostic study revealed findings suggestive of Grave's Disease. After considering the evidence of record, the Board finds that the Veteran does not have thyroid cancer and/or the residuals from such disability. The Veteran is certainly competent to report symptoms related to his thyroid, Layno v. Brown, 6 Vet. App. 465, 469 (1994); however, as to the specific issue in this case, determining a diagnosis of a current disability falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." The requirement that a claimant have a current disability before service connection may be awarded for that disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, the only evidence of complaints related to the thyroid is an assessment of hyperthyroidism and findings suggestive of Graves' Disease in 1994. However, such treatment records do not reflect evidence of thyroid cancer or findings of residuals of thyroid cancer. Further, there is no evidence indicating thyroid cancer or the residuals of thyroid cancer in the Veteran's STRs. A necessary, if not sufficient, condition for the granting of service connection is the presence of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, there is no competent and credible evidence of the presence of the residuals of thyroid cancer at any time during the appeal period. McClain, 21 Vet. App. 319. There being no current disability, the Board finds that service connection for residuals of thyroid cancer must be denied. Id.; 38 C.F.R. § 3.303; see also Shedden, supra. As the preponderance of the evidence weighs against the Veteran's claim for service connection for residuals of thyroid cancer, the benefit of the doubt doctrine is not applicable, and the claim for service connection must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. 3.102. ORDER The appeal for service connection for residuals of thyroid cancer, to include as due to herbicide exposure, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs