Citation Nr: 1756820 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 14-39 990 ) 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 Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. N. Shannon, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran requested a hearing before the Board. The requested hearing was conducted in June 2017 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. FINDING OF FACT The evidence is in equipoise regarding whether the Veteran's thyroid cancer relates to his active service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for thyroid cancer have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Applicable Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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); See also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2017). VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307 (a)(6) are met. 38 C.F.R. § 3.309(e). A Veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on 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 that service. 38 C.F.R. § 3.307(a). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Facts and Analysis The Veteran contends that his thyroid cancer was incurred in service, due to exposure to herbicides and dioxin, while serving in Vietnam. In January 2011, the Veteran was diagnosed with papillary carcinoma of the thyroid (thyroid cancer). Because he served in Vietnam during the Vietnam era, he is presumed to have been exposed to herbicides. Crucially however, papillary thyroid cancer is not one of the enumerated disabilities presumed to be related to herbicide agent exposure under 38 C.F.R. § 3.309(e). Therefore, the Veteran is not entitled to service connection for thyroid cancer on a presumptive basis under 3.309(e). Notwithstanding the above, a Veteran who does not meet the requirements of 38 C.F.R. § 3.309 is not precluded from establishing service connection by way of proof of actual direct causation. See Combee. Therefore, the Board will consider the Veteran's claim under a theory of direct service connection based on the specific facts and evidence presented in this case. The Veteran's service entrance and separation examinations are each silent as to any conditions of the throat or neck. His service treatment records (STRs) reveal that he was treated for a sore throat and cough in May 1969. There are no other complaints for the neck or throat noted during his service. The Veteran testified in a June 2017 videoconference hearing that he first noticed a lump in his neck around his late twenties. He admits he did not begin treatment for this condition until 2010. In treating the growth in his neck, physicians discovered papillary thyroid cancer in January 2011. In June 2011, VA received a private medical opinion letter from Dr. D.D., MD. Dr. D.D. wrote that had reviewed the extensive records from the Veteran's VA Medical Center and the Veteran's medical history. The examiner "performed an extensive literature search on the carcinogenic potential of dioxin as it was used in the Vietnam conflict." See June 2011 Private Opinion Letter from Dr. D.D., MD. The examiner opined, that "it is indeed quite possible that [the Veteran's] dioxin exposure could be related to his development of papillary thyroid carcinoma." "I do believe it is reasonable to consider his papillary thyroid carcinoma service connected." Id. The letter also included attached medical articles discussing the relationship between herbicide exposure and thyroid cancer. The Veteran was examined by VA in February 2013. The VA examiner opined that the Veteran's thyroid cancer was "less likely than not incurred in or caused by the claimed in-service injury, event or illness." The examiner considered the articles referenced by the private examiner Dr. D.D in his June 2011 letter. The VA examiner referred to a 2010 medical update when discussing that "the toxicologic evidence indicates that a connection of TCDD and perhaps cacodylic acid with cancer in humans is, in general, biologically plausible but must be determined case by case whether such potential is in a given tissue." See February 2013 VA Examination at page 9. The examiner goes on to say, "there is insufficient evidence to determine whether there is an association between exposure to Agent Orange (TCDD, Dioxin) and thyroid cancer." Id. at 10. In June 2017 the Veteran submitted a letter from Dr. S.J., MD, a private otolaryngologist, addressing the Veteran's disability. The examiner indicated she reviewed the Veteran's extensive records and medical history, and she summarized the Veteran's prior treatment for his neck growth, his cancerous tumor, and the nature of his disease on a molecular level. The examiner also reviewed literature addressing the association of thyroid cancer and Agent Orange exposure and referenced a recent study dated in 2016 suggestive of a relationship. Based on this literature and her understanding of the Veteran's disease, she opined that "I do believe that [the Veteran's] papillary thyroid carcinoma could be considered more likely than not to be service related." See June 13, 2017 Private Opinion Letter from Dr. S.J., MD. Dr. S.J. indicated that her opinion is reinforced by the knowledge that the Veteran had no standard risk factors for the development of thyroid cancer such as prior exposure to ionizing radiation, a significant family history of thyroid cancer, or personal history of prior thyroid disease. The Veteran also obtained an updated opinion from Dr. D.D., who in June 2017, provided another letter on behalf of the Veteran. Dr. D.D. referenced a recent 2016 abstract article noting a significantly higher proportion of Agent Orange exposure among those who developed thyroid cancer. See June 19, 2017 Private Opinion Letter from Dr. D.D., MD. Dr. D.D. stated that this evidence, along with the Veteran's own exposure to Agent Orange, should serve to declare his cancer "service-connected." Based on the evidence presented to VA in this case concerning this Veteran, the Board finds that the competing medical opinions reference above, which are both for and against the claim, are in equipoise, requiring that reasonable doubt be resolved in favor of the Veteran. See 38 U.S.C. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517 (2014). Therefore, the Board finds that service connection for thyroid cancer is warranted. ORDER Entitlement to service connection for thyroid cancer is granted. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs