Citation Nr: 1343497 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 09-17 372 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for thyroid cancer. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In April 2013, the Board remanded this matter for additional development. The Veteran had hearings before a Decision Review Officer at the RO in December 2008 and April 2010. Transcripts of the hearings have been associated with the claims file. The issue of whether to reopen a previously denied claim of entitlement to service connection for hypothyroidism, claimed as secondary to thyroid cancer, been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The competent and credible evidence of record is in equipoise as to whether the Veteran's thyroid cancer was incurred as a result of active duty military service. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, thyroid cancer was incurred in active duty military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Furthermore, given the favorable disposition herein, any deficiencies in complying with VCAA would be harmless error. II. Law and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all 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 preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2013). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2013). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). III. Analysis A. Presumption of Soundness The Board recognizes that there is conflicting evidence regarding whether the Veteran had a thyroid condition that pre-existed his active duty service. In a May 2013 statement, the Veteran mentioned that his mother had told him that he had an enlarged thymus as a baby, and a doctor had suggested he undergo radiation treatments. The Veteran said that according to his mother, his father adamantly refused that he undergo radiation treatments. Several treatment records from J.K., M.D., the Veteran's prior VA endocrinologist, contain an indication that the Veteran underwent radiation therapy to his thymus as a child. In July 2013 letter, Dr. K. explained that she did not have medical documentation of that childhood treatment; she had recorded that history based on what she thought was the Veteran's verbal report. Dr. K. remarked that she apparently misunderstood the Veteran's verbal report, and if no medical documentation could be found of the Veteran receiving thymus radiation as a child, that should be removed from his medical history. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). The Veteran's April 1968 service entrance examination reflects that he had a normal endocrine system. As such, he is presumed to have been sound upon entrance. In order to rebut this presumption of soundness, the evidence must include clear and unmistakable evidence of a preexisting condition, and clear and unmistakable evidence that the pre-existing condition was not aggravated by service. The Court has described the clear and unmistakable standard as an onerous one consisting of evidence that is undebatable. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Vanerson v. West, 12 Vet. App. 254, 258 (1999). In this case, there is debate as to the existence of a thyroid condition prior to the Veteran's active duty service. Although the Veteran said that treatment was recommended for his thymus when he was a baby, he received that information secondhand through his mother. Likewise, Dr. K. did not have direct knowledge of the alleged thymus treatment; she received her information indirectly and later conditionally recanted the given history. The claims file contains no direct medical documentation of a thyroid condition that pre-existed the Veteran's service. As such, the clear and unmistakable standard has not been met, and for the purposes of the present claim, the Veteran is presumed to have been of sound condition at the time he entered active duty service. B. Service Connection The Veteran has asserted that he has thyroid cancer as a result of being exposed to herbicides while he was on active duty. VA regulations provide that if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain medical conditions shall be service connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of the disability during service. 38 C.F.R. § 3.309(e). A veteran, who during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, 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 service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service medical records reveal that in May 1971, the Veteran received medical treatment at the Phan Rang Air Base in the Republic of Vietnam. As such, exposure to herbicides is presumed. However, thyroid cancer is not one of the diseases for which VA has determined that presumptive service connection based on exposure to herbicides used in Vietnam is warranted. VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See 75 Fed. Reg. 53,202-53,216 (Aug. 31, 2010); see also 72 Fed. Reg. 32,345-32,407 (June 12, 2007); 61 Fed. Reg. 57,586-57,589 (Nov. 7, 1996); and 59 Fed. Reg. 341-46 (Jan. 4, 1994). Therefore, even if the Veteran was exposed to herbicides during his active duty, service connection may not be granted for thyroid cancer on the basis of the presumptive regulatory provisions discussed above. However, the Veteran's claim of service connection for thyroid cancer can still be considered on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this matter, there are two medical opinions of record which address the question of whether the Veteran has thyroid cancer as a direct result of his exposure to herbicides while on active duty. First, an April 2011 letter from J.K., M.D., reflects that she was the Veteran's endocrinologist at a VA medical center. Dr. K. indicated that the Veteran had a papillary and follicular thyroid carcinoma diagnosed in 1979, status post right hemithyroidectomy, and a newly diagnosed left thyroid nodule. The examiner reviewed and commented on the Veteran's prior treatment records. She performed a literature review and said that animal studies demonstrated the development of thyroid tumors exposed to tetrachlorobdibenzo-p-dioxin, the chemical in Agent Orange thought to be responsible for many of Agent Orange's health effects. Dr. K. opined that based on that study, it was reasonable to believe that herbicide exposure could also cause thyroid tumors in humans. She explained that the time lag between the Veterans exposure to herbicides and his diagnosis with thyroid cancer was not inconsistent with causality, as differentiated thyroid cancers were typically slow-growing and could take years to manifest clinically. As such, Dr. K. concluded that the Veteran's papillary and follicular thyroid carcinoma was at least as likely as not caused by or a result of herbicide exposure. The Board affords the letter from Dr. K. great probative weight, as Dr. K. is an endocrinologist, reviewed and commented on the Veteran's pertinent history, performed a review of the medical literature on the subject, and gave adequate support for her given opinion. Second, in May 2013, a VA compensation and pension examiner reviewed the claims file and examined the Veteran. The report reflects that in 1979, the Veteran underwent a hemithyroidectomy and was diagnosed with papillary thyroid carcinoma. Subsequently, in 2011, the Veteran underwent a thyroidectomy and was found to have a benign neoplasm, follicular adenoma. The examiner noted that the Veteran was currently in a watchful waiting status. The examiner opined that the Veteran's thyroid cancer was less likely than not a result of his exposure to herbicides while on active duty. He explained that although tetrachlorodibenzo-p-dioxin exposure had caused thyroid tumors in rodents, it has not been shown in humans. The examiner further explained that the Veteran's endocrinologist had stated that the Veteran underwent thymus radiation as a child, and that was a known risk factor for development of thyroid malignancy in adulthood. The Board finds the May 2013 VA examiner's opinion to be of lesser probative weight. While the May 2013 VA examiner is a medical doctor, the evidence does not suggest that he is an endocrinologist. Additionally, in providing an alternative etiology to support his negative opinion, he relied on a medical history recorded in the Veteran's treatment notes that has since been conditionally recanted by the treatment provider. In evaluating the probative value of competent medical opinion evidence, the Court has stated in pertinent part: "The probative value of medical evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches...As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator..." See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Likewise, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The medical opinions of record appear to be in equipoise. In light of the fact that the Veteran is currently diagnosed with residuals of thyroid cancer; and in light of the most persuasive medical opinion that the Veteran's thyroid cancer was directly caused by exposure to herbicides, the Board finds that the evidence is, at the very least, in relative equipoise. Therefore, the Board will resolve doubt in favor of the Veteran and grant the Veteran's claim. In summary, for the reasons explained above, having resolved doubt in favor of the Veteran, service connection for thyroid cancer is warranted. ORDER Service connection for thyroid cancer is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs