Citation Nr: 1732376 Decision Date: 08/10/17 Archive Date: 08/23/17 DOCKET NO. 12-01 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for thyroid disease. 2. Entitlement to service connection for a chronic disability manifested by fatigue. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Y. A. Miller, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This appeal was remanded in May 2015 for further development. It has been returned to the Board for appellate consideration. FINDINGS OF FACT 1. A thyroid disability was not manifest in active service and is not otherwise etiologically related to such service, to include in-service herbicide exposure. 2. While many years after service, the Veteran was diagnosed to have sleep apnea, it is not shown related to any in-service disease or injury. CONCLUSIONS OF LAW 1. The criteria for service connection for a thyroid disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2014); 38 C.F.R. §§. 3.303, 3.307, 3.309(e) (2016). 2. The criteria for service connection for disability manifested by fatigue have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, (2016) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). I. Entitlement to Service Connection A. Applicable Law Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts demonstrate that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting service, was aggravated therein. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2016). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In making its determination, the Board is obligated to weigh the credibility and probative value of lay evidence against the remaining evidence of record. King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. Lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); also Kahana, 24 Vet. App. at 433, n.4. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015); also Jandreau, 492 F.3d 1376-77. The Board must account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287-88(2009); also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Fagan, 573 F.3d at 1287 (quoting 38 U.S.C.A. § 5107(b)). B. Facts and Analysis The Veteran seeks service connection for a thyroid disease. The Veteran has alleged that his thyroid disease is related to herbicide exposure to include Agent Orange (AO) that occurred while stationed on Guam. The Board understands the Veteran to mean by herbicide and/or AO to be the herbicide agents referenced in 38 C.F.R. § 3.307. The Veteran further clarified that he was specifically exposed to AO while helping clear brush in Guam. The Veteran's service treatment records are silent regarding any in service injury or treatment for any type of thyroid disease. The Veteran's October 1965 entrance examination and his September 1967 separation examination were both noted to be normal. Post service, the evidence reflects the Veteran's thyroid condition diagnosed in the late 1990's. This lengthy period of time between service and the presentation of the disability, suggests a low probability of any relationship with military service. A private physician, Dr. C. Bash expressed the view that it was due to the Veteran's exposure to AO on Guam. (It is clear from the report that the basis for his view the Veteran was so exposed was the Veteran's report of exposure.) However, information from the Department of Defense revealed that AO had not been stored on Guam since 1953. The Board considers the Department of Defense information to be more probative than the Veteran's unsupported assertion. Thus, the Board concludes AO was not present on Guam at the time of the Veteran's service there. Accordingly, he was not exposed to AO, and any contention or opinion based on this claimed exposure is of little probative value. Because the Veteran described clearing brush on Guam, or an adjacent island, that had the appearance of having been first reduced by means of the application of a chemical weed clearing product of some sort, an opinion was sought to address whether the thyroid condition could have been a result of some exposure to herbicides more generally. A VA examiner in October 2015 opined in the negative. Thus, there is essentially no probative evidence that links the Veteran's thyroid disorder to service. Accordingly, a basis upon which to establish service connection has not been presented. The Board acknowledges that the Veteran might sincerely believe that his thyroid disease is etiologically related to his active service. However, the question of whether the Veteran's thyroid disease was caused by or related to active service and whether herbicide exposure causes a thyroid disease fall outside the realm of the common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an opinion on these questions. In this regard, it is observed that even if only minimal probative value was accorded the VA examination report due to an absence of a comprehensive explanation for the conclusion, the greater weight of the evidence remains against the claim. More specifically, the record would simply show the onset of a thyroid disorder many years after service. The Veteran is also seeking service connection for chronic disability manifested by fatigue. The record reflects this complaint to be a consequence of obstructive sleep apnea. The Veteran's service treatment records are silent regarding any type of chronic tiredness; there is also no evidence of the Veteran having symptoms of or being treated for sleep apnea while in service. Post service records reflect it was not documented until decades after service, which alone weighs against a nexus with service. In an opinion from a private physician, dated in 2010, Dr. Bash offered that the Veteran's sleep apnea is due to a combination of the Veteran's service-time acquired snoring and his service time knee injury induced weight gain. (The logic seems to be the knee disability caused an inability to exercise, which caused weight gain.) The deficiency of this opinion is plain, as it ignores the matter of calorie in-take over the years by the Veteran and its role in his weight gain. Dr. Bash's opinion does point to weight gain as a cause for the sleep apnea, and in this regard, it is notable the Veteran weighed 166 pounds at his service entrance and separation examination, and he weighed 193 pounds at age 63, (in 2008). This would tend to establish his weight gain occurred after service, which argues against a nexus with service. A VA examiner who addressed the question of a nexus between the Veteran's obstructive sleep apnea and service, found no such nexus, pointing to the clear absence of any sign or symptom of it in service to support that conclusion. With the absence of evidence of obstructive sleep apnea in the service records, or for many years thereafter, the adverse VA medical opinion, and the only favorable suggestion of a nexus negated by the intervening role played by the Veteran's calorie intake over the years since service, the Board concludes that the greater weight of the evidence is against the claim. ORDER Service connection for a thyroid disease to include hyperthyroidism is denied. Service connection for a chronic disability manifested by fatigue is denied. ____________________________________________ MICHAEL KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs