Citation Nr: 1751020	
Decision Date: 11/08/17    Archive Date: 11/17/17

DOCKET NO.  13-25 441	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for thyroid cancer status post thyroidectomy, including due to exposure to herbicide agents and radiation.



REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. Bredehorst



INTRODUCTION

The Veteran served on active duty in the Navy from July 1965 to July 1969.

This appeal to the Board of Veterans' Appeals (Board) is from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The case was remanded in July 2015 for additional development. 


FINDINGS OF FACT

1.  The Veteran was not exposed to herbicide agents or ionizing radiation during his service. 

2.  His thyroid cancer did not manifest in service or within the first post-service year and the more probative evidence shows it is not related to service.


CONCLUSION OF LAW

The criteria are not met for service connection for thyroid cancer including on a presumptive basis.  38 U.S.C. §§ 1110, 1111, 1112, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311, 3.313 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In this case, required notice was provided and the Veteran has not alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development.  See Shinseki v. Sanders, 129 U.S. 1696 (2009).  Thus, VA's duty to notify has been satisfied.

As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Veteran's service treatment records, service personnel records, VA treatment records, and private treatment records have been obtained, to the extent available.  The Veteran was also afforded an October 2015 VA examination in conjunction with his claim and the development completed reflects substantial compliance with the Board's July 2015 remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  Although the VA examiner provided a flawed rationale for an unfavorable opinion concerning a nexus between thyroid cancer and exposure to herbicide agents, such an opinion proves to be unnecessary.  As discussed in further detail below, the evidence tends to show that the Veteran's service did not involve exposure to herbicide agents.  Thus, any opinion requested regarding herbicide agents is superfluous.  

Neither the Veteran nor his representative has raised any other issues with the duty to notify or 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 the duty to assist argument).  Therefore, since nothing more is required, the Board will address the merits of the claim.

II. Legal Criteria and Analysis

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.

Service connection requires competent evidence showing: (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also be established under 38 C.F.R. §  3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned.  The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013).

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 appellant 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 Veteran contends that his thyroid cancer is related to his exposure to herbicide agents and radiation during service.  See Statement in Support of claim received February 2011.  

The law provides that, if a veteran was exposed to an herbicide agent during service, certain listed diseases shall be service-connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied.  The list of diseases afforded this presumption does not includes thyroid cancer.

"Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 C.F.R. §  3.307.  The presumption requires that the veteran actually stepped foot on land in Vietnam.  Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97.  In other words, for purposes of applying the presumption of exposure to herbicides under 38 C.F.R. §  3.307(a)(6)(iii), the service member must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict.

Previous testimony shows the Veteran has denied being on the landmass of Vietnam and instead was offshore in the Tonkin Gulf.  See page 2 of Hearing Testimony received May 2005.  

A recent amendment to the VA's Adjudication Procedure Manual classifies inland waterways as fresh water rivers, streams, and canals, and similar waterways.  Because those waterways are distinct from ocean waters and related coastal features, service on those waterways is considered service in the Republic of Vietnam.  VA considers inland waterways to end at their mouth or junction to other offshore water features.  For rivers and other waterways ending on the coastline, the end of the inland waterway will be determined by drawing straight lines across the opening in the landmass leading to the open ocean or other offshore water feature, such as a bay or inlet.  For the Mekong and other rivers with prominent deltas, the end of the inland waterway will be determined by drawing a straight line across each opening in the landmass leading to the open ocean.  VBA Manual M21-1, IV.ii.1.H.2.c.; VBA Manual M21-1, IV.ii.2.C.3.m.

Offshore waters are the high seas and any coastal or other water feature, such as a bay, inlet, or harbor, containing salty or brackish water and subject to regular tidal influence.  That includes salty and brackish waters situated between rivers and the open ocean.  VBA Manual M21-1, IV.ii.1.H.2.b.

Under the amended criteria, consistent with the pre-amended criteria, the Gulf of Tonkin is considered to be offshore waters of the Republic of Vietnam and is not an inland waterway subject to the presumption of exposure to herbicide agents.  VBA Manual M21-1, IV.ii.1.H.2.c.  The Gulf of Tonkin is open to the sea, is not connected to any major inland river, and has deep channels for the anchorage of large ships.  Significantly, there is no historical evidence or evidence of record of extensive herbicide aerial spraying over the Gulf of Tonkin.

A response from the Personnel Information Exchange System (PIES) also states that there is no documented evidence of the Veteran having been exposed to herbicide agents in service.  See VA 21-3101 Request for Information received July 2006.

VA also maintains a list of Navy and Coast Guard ships associated with military service in Vietnam and possible exposure to Agent Orange based on military records which is found on VA's website.  The vessels are placed in five categories of ships that operated on the waters of Vietnam.  A ship is placed on this list when documentary evidence shows that it fits into a particular category.  The required evidence can come from an official ship history, deck logs, cruise books, Captain's letters, or similar documents.  A specific ship may be listed in more than one category, based on its activities.  Evidence requirements for the presumption of Agent Orange exposure may vary depending on what dates the Veteran was aboard and what ship activity occurred on those dates.  

Ship categories include: (1) Ships operating primarily or exclusively on Vietnam's inland waterways, (2) Ships operating temporarily on Vietnam's inland waterways, (3) Ships that docked to shore or pier in Vietnam, (4) Ships operating on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore (5) Ships operating on Vietnam's close coastal waters for extended periods with evidence that smaller craft from the ship regularly delivered supplies or troops ashore.  See http://vbaw.vba.va.gov/bl/21/rating/VENavyShip. htm.  The U.S.S Bausell is identified on the list and is listed under Group 4 - Ships operating on Vietnam's close coast waters for extended periods with evidence that crew members went ashore.  Thus, there is further evidence that the Veteran's ship was in coastal waters of Vietnam but not the inland waters.

Since the Veteran never went ashore in Vietnam and his ship was not in any inland water, his service does not qualify him for a presumption of herbicide agent exposure under 38 C.F.R. §§ 3.307(a)(6), 3.309(e).

In addition to there being no presumption of exposure, attempts to verify exposure to herbicide agents have not yielded any probative evidence suggesting exposure.  In short, there is no credible and probative evidence that the Veteran was exposed to herbicide agents during service.  Although the Veteran believes he was exposed to herbicide agents in the offshore waters of Vietnam, he is not competent to make such a determination and his statement is not supported by any other evidence acquired.  In light of the foregoing, a preponderance of the evidence is against finding the Veteran was exposed to herbicide agents during his service.  

As noted, the Veteran also contends that his thyroid cancer is related to his exposure to radiation during service.  See Statement in Support of claim received February 2011.  Although statements made since he filed the February 2011 claim did not specify whether he was alleging ionizing or non-ionizing radiation exposure, statements he made in a prior claim and during a more recent VA examination in October 2015 show he reported being exposed to radiation while performing duties on lookout watches that put him in close proximity to the ship's radar at a distance of 25 to 30 feet.  See Statement in Support of claim received January 2007 and C&P Exam received .

Although not raised by the Veteran, an August 2017 Informal Hearing Presentation from his representative notes the procedural requirements under 38 C.F.R. § 3.311 for developing claims involving exposure to ionizing radiation.  It also notes the Veteran does not contend exposure through participation in atmospheric nuclear testing or the American occupation of Hiroshima or Nagasaki, but indicates that the evidence does suggest occupational exposure.  This presumably is in reference to the Veteran's assertions of radiation exposure through radar.

The U.S. Court of Appeals for Veterans Claims (CAVC) has taken judicial notice that naval radar equipment emits microwave-type non-ionizing radiation which is not subject to review under the ionizing radiation statute and regulations.  Rucker v. Brown, 10 Vet. App. 67 (1997) citing The Microwave Problem, Scientific American, September 1986; Effects upon Health of Occupational Exposure to Microwave Radiation (RADAR), American Journal of Epidemiology, Vol. 112, 1980; and Biological Effects of Radiofrequency Radiation, United States Environmental Protection Agency, September 1984.  Consequently, service connection cannot be established under the provisions of 38 C.F.R. § 3.311 as they are not applicable, but instead must be considered under the general service connection provisions in light of potential exposure based on non-ionizing radiation.  

The record contains several articles submitted by the Veteran that discuss, among other things, the causes for thyroid cancer.  These causes include radiation exposure, family history of thyroid cancer, and the aging process.  Some researchers questioned the effects of emissions from radar and some experiments suggested it can damage DNA.  See Correspondence received May 2005, January 2007, and October 2007.

The Board finds that these articles are insufficient to provide any meaningful support for the claim.  A medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion.  Sacks v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998) (finding that medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus); Mattern v. West, 12 Vet. App. 222, 228 (1999).  Here, the internet research materials associated with the file are of very little probative value, as they were general in nature, did not specifically relate to the facts and circumstances surrounding this particular case, and were not accompanied by the opinion of any medical expert.  

There is also nexus evidence that addresses the etiology of the Veteran's thyroid cancer.

In January 2009, Dr. T. W noted the Veteran's history of thyroid cancer and exposure to radiation during service over the course of 4 years via radar.  She opined that to the extent that traditional exposure is known to contribute to the occurrence of several types of cancer, it is possible that the Veteran's military related exposure may have contributed to his thyroid cancer.  See Medical Treatment Record -Government Facility received February 2009.

The record also contains an October 2015 VA examination that notes the Veteran's history and contentions.  There were currently no signs or symptoms of hypo or hyperthyroid or hypo parathyroid condition, but there was a scar from the thyroidectomy.  The examiner reviewed the articles of record and found that they failed to provide support for the Veteran's contention that the claimed condition of thyroid cancer caused by radar exposure.  The clinician explains that non-iodizing radiation is low-energy radiation that includes radiation from sources such as sunlight, microwaves, radio frequencies, radar and sonar.  There is lack of supporting evidence in widely accepted medical literature for low energy radiation from radar causing thyroid cancer.  Based on UpToDate, risk factors for development of thyroid cancer are medical uses of radiation (e.g., treatment of childhood malignancies) or environmental exposure secondary to atomic weapons (e.g., Nagasaki/Hiroshima, Japan), or nuclear power plant accidents.  Therefore, Veteran's claimed thyroid cancer condition is not at least likely as not (less than 50 percent probability) related to his reported exposure to radar.  

When reviewing conflicting medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another.  Owens v. Brown, 7 Vet. App. 429, 433 (1995).  However, the Board may not reject medical opinions based on its own medical judgment.  Colvin v. Derwinski, 1 Vet. App. 171 (1991). Ultimately, in weighing medical evidence, "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

The Board finds that the statement from Dr. T. W is inconclusive or speculative as to the origin of the Veteran's thyroid cancer due to use of words such as "possible" and "may have".  See Bostain v. West, 11 Vet. App. 124, 127-28 (1998), Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); see also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by physician too speculative).  Therefore, the probative value of the opinion is significantly diminished and is insufficient to support the claim in any meaningful way.

In contrast, the VA examiner offered a well-reasoned rationale for his unfavorable opinion and explained why the articles were not persuasive evidence to support the claim.  Consequently, this opinion is highly probative and weighs heavily against the claim.

While the Veteran has not established service connection for thyroid cancer based upon herbicide agent or radiation exposure, direct service connection can still be established by showing that the disorder was otherwise incurred in or aggravated by service.  See Stefl v. Nicholson, 21 Vet. App. 120-23 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as a malignant tumor, are presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service.  38 U.S.C.A. § 1112, 1113; 38 C.F.R. § 3.307, 3.309.  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.

The Veteran's service treatment records contain no evidence of a thyroid disorder in service.  See STR - Medical.  

In May 2005, the Veteran testified that he never complained of anything in service, but that he had noticed during and after service that there was a little constriction or tightness in his neck.  See page 5 of Hearing Testimony.

Post-service treatment records show the Veteran's thyroid cancer was first suspected in September 1995 and diagnosed in December 1995.  See pages 3 and 9 of Medical Treatment Record - Non-Government Facility received August 2003.  His thyroid was subsequently removed and he continues to be on medication.  

The Veteran is competent to report the symptoms he experienced.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).  However, his assertion is not credible for the purpose of establishing that the "tightness" was related to a tumor or that a thyroid tumor was present during or right after separation from service.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994).  The history provided in September 1995 shows that the nodule was only present for 2 months.  Even a record dated in December 1995 that provides a different history of the mass indicates it was only present for one year.  See pages 3 and 7 of Medical Treatment Record - Non-Government Facility received August 2003.  

The Veteran also testified that the physician who diagnosed his thyroid cancer stated it had probably been present for years, but he also stated that the physician did not provide an approximate date of onset.  Instead, it was the Veteran who concluded that the onset was during service.  See page 2 of Hearing Testimony.  The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion as to medical causation.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012).  Consequently, his assertion as to the onset of his tumor is not probative evidence.

As there is no evidence of the tumor in service or within one year of separation, service connection may not be granted as a chronic disease on a presumptive basis.  38 C.F.R. §§ 3.307, 3.309.  The absence of symptoms in service and since service also precludes service connection based on continuity of symptomatology.  See 38 C.F.R. § 3.303 (b);Walker, supra.
In light of the foregoing, the service connection is not warranted.  In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claims of entitlement to service connection that doctrine is not applicable.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Service connection for thyroid cancer status post thyroidectomy is denied.




____________________________________________
A. ISHIZAWAR
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs