Citation Nr: 18147213 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 09-13 131 DATE: November 5, 2018 ORDER Entitlement to service connection for thyroid cancer, to include as due to herbicide exposure is denied. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as due to herbicide exposure is denied. FINDINGS OF FACT 1. Thyroid cancer was not manifested in service or in the first post-service year; thyroid cancer is not an enumerated disease listed as related to exposure to herbicides; and the Veteran’s thyroid cancer is not otherwise shown to be related to his exposure or service. 2. Peripheral neuropathy of the bilateral upper and lower extremities was not manifested in service or in the first post-service year; the Veteran’s peripheral neuropathy is not shown to be related to his herbicide exposure as it did not manifest within one year of his exposure and it is not otherwise shown to be related to such exposure or his service. CONCLUSIONS OF LAW 1. The criteria for service connection for thyroid cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for peripheral neuropathy of the upper and lower extremities have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1964 to January 1968, to include service in the Republic of Vietnam. In April 2013, the Board remanded the Veteran’s claims for additional development and adjudication. Subsequently, a medical opinion from a specialist in the employ of the Veteran’s Health Administration (VHA) was requested in October 2013. A VHA opinion dated November 18, 2013, was subsequently associated with the file. The Veteran previously testified before a Decision Review Officer (DRO) at the RO in May 2011 and before a Veteran’s Law Judge in January 2013. Transcripts of these hearings are of record. Since the time of the Veteran’s January 2013 hearing before the Board, the Veteran’s Law Judge who conducted that hearing is no longer employed by the Board. In a signed letter dated March 19, 2014, the Veteran elected to appear before an additional Veterans Law Judge at the Board via video conference at the RO. In November 2017, the Veteran submitted a new VA Form 21-22 appointing, Tyrsa J. Cameron, Attorney as his representative. As such, the Board recognizes this change in representation. In December 2017, the Board again remanded the claims in order for the Veteran to testify at a second Board hearing. In June 2018, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The Board finds that the Agency of Original Jurisdiction (AOJ) has substantially complied with the remand orders of the Board’s April 2013 and December 2017 remands and no further action is necessary in this regard. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). Service Connection Service connection may be granted for disabilities due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after discharge when the evidence establishes that disability was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established by showing continuity of symptomatology after discharge. 38 C.F.R. § 3.303 (b). Certain chronic diseases may be presumed to have been incurred or aggravated in service, if they are manifested to a compensable degree within a specified period of time post-service. 38 U.S.C. §§ 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). The Board notes that certain diseases may be service connected on a presumptive basis, as due to exposure to herbicides/Agent Orange, if manifested in a Veteran who served in Vietnam during the Vietnam Era (or a Veteran who is otherwise shown to have been exposed to herbicides in service). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Furthermore, the Board notes that the Veteran’s service personnel records confirm that he served in Vietnam during the Vietnam Era and he is presumed to have been exposed to herbicides by virtue of such service. To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; 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, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to service connection for thyroid cancer, to include as due to herbicide exposure. The Veteran alleges that his thyroid cancer is due to his exposure to herbicides in service. As previously noted, his service personnel records show that he served in Vietnam during the Vietnam era. His service treatment records are silent for complaints, treatment, or diagnosis pertaining to thyroid cancer. Post-service treatment records reflect that the Veteran was diagnosed with thyroid nodules on an ultrasound in February 2006. A March 2006 biopsy was negative for malignancy. In July 2006 he had a questionable cold nodule on imaging, and in December 2006 he underwent a thyroidectomy which revealed a 1.8 cm papillary thyroid carcinoma. The Veteran underwent treatment with I-131 or radiation treatment. In January 2013, the Veteran submitted a statement from his treating physician, who stated that the Veteran suffered from thyroid cancer which was due to his exposure to Agent Orange in Vietnam. However, the private examiner provided no rationale to support his finding. In June 2013, the Veteran underwent a VA examination, however the examiner found that she could not provide an opinion without resorting to mere speculation as there was insufficient evidence to support or deny an association. The examiner cited to a 2010 study which found insufficient evidence to determine if an association exists. In November 2013, a VHA examiner opined that the Veteran’s thyroid cancer was less likely than not related to his herbicide exposure in service, and provided the rationale that there was no conclusive evidence that herbicide exposure caused carcinomas of the thyroid and cited the same 2010 study. The study noted “inadequate/insufficient evidence to determine whether an association exists” for cancers of the endocrine glands. In June 2018, the Veteran testified at a Board hearing. The Veteran testified that his treating physician indicated to him that his thyroid cancer was due to his exposure to herbicides, specifically Agent Orange. He stated that he did not have a family history of cancer or any prior trouble with his thyroid. It is not in dispute that the Veteran has thyroid cancer. However, thyroid cancer was not manifested in service or in the first post-service year. Therefore, service connection for such disease on the basis that it became manifest in service or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112) is not warranted. Consequently, what must be shown to substantiate this claim is that the Veteran’s thyroid cancer is somehow otherwise related to his service. The Veteran specifically asserts that his thyroid cancer is related to his exposure to herbicides in service. As previously noted, as he served in Vietnam during the Vietnam era, he is presumed to have been exposed to herbicides in service. However, thyroid cancer is not among the enumerated diseases listed in 38 C.F.R. § 3.309 (e) as presumptively due to such exposure. Therefore, the presumptive provisions of 38 U.S.C. § 1116 do not apply. Such finding is not fatal to the Veteran’s claim; he may still establish service connection with affirmative evidence of a nexus between his thyroid cancer and his exposure to herbicides or his service otherwise. He argues that there is no other likely etiology for his thyroid cancer, as he does not have a family history of such disease. To assist him in this matter, the Board obtained a November 2013 VHA medical advisory opinion which was against his claim. The provider expressed familiarity with the record, and the opinion includes rationale that cites to supporting factual data. The consulting expert noted that herbicides are not a known etiological factor for the development of thyroid cancer and as noted cited to a 2010 study. The Board finds that opinion highly probative. In so finding, the Board is cognizant of the private opinion provided by the Veteran from his treating physician in January 2013. However, as previously noted the private physician provided no rationale to support his conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Therefore, the Board affords the opinion no probative weight. Finally, the Board notes that while the Veteran has contended that his thyroid cancer is secondary to his herbicide exposure, he is not competent to endorse such a medical relationship between his disability and his service to include any exposure therein; that is a medical question beyond the scope of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim. Therefore, the benefit of the doubt rule does not apply. The appeal in this matter must be denied. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as due to herbicide exposure. The Veteran alleges that he has peripheral neuropathy of the bilateral upper and lower extremities due to his exposure to herbicides during his active duty service. As previously noted, his service personnel records show that he served in Vietnam during the Vietnam era. His service treatment records are silent for complaints, treatment, or diagnosis pertaining to peripheral neuropathy. Post-service treatment records reflect the Veteran’s reports of arm and leg pain in addition to numbness. In 2006 the Veteran was diagnosed with lumbar radiculopathy of the bilateral lower extremities and bilateral carpal tunnel syndrome. However, there is no definitive diagnosis of peripheral neuropathy. In January 2013, the Veteran submitted a statement from his private physician which stated that the Veteran suffered from neuropathy “due to Vietnam.” However, no rationale was provided to support such a determination. In June 2013, the Veteran underwent a VA Peripheral Nerves examination. The examiner noted a thorough review of the Veteran’s lengthy record and confirmed diagnoses of lumbar radiculopathy of the bilateral lower extremities and bilateral carpal tunnel syndrome. He opined that the Veteran’s conditions were less likely than not related to his Agent Orange exposure. The examiner provided the rationale that “a review of the medical evidence finds the diagnoses to explain the Veteran’s symptoms established as Lumbar Radiculopathy and Carpal Tunnel Syndrome.” In June 2018, the Veteran testified at a Board hearing. He reported that he suffered from neuropathy in his hands and feet. The Veteran reported that he developed such while undergoing treatment for his thyroid cancer. He stated that his symptoms included tingling, pain and numbness. He reported that his conditions made it difficult for him to use his hands and feet and that they often cramped up and caused chronic pain. It is not in dispute that the Veteran suffers from nerve disabilities, specifically the diagnoses of record are lumbar radiculopathy and bilateral carpal tunnel syndrome. However, there is no definitive diagnosis of peripheral neuropathy of the bilateral upper and lower extremities. In addition, neither lumbar radiculopathy nor carpal tunnel syndrome were manifested in service or in the first post-service year. Furthermore, even assuming that the Veteran did have a diagnosis of peripheral neuropathy, such also was not manifested in service or in the first post-service year. Therefore, service connection for such disabilities on the basis that they became manifest in service or on a presumptive basis (as chronic diseases under 38 U.S.C. § 1112) is not warranted. Consequently, what must be shown to substantiate this claim is that the Veteran’s disabilities are somehow otherwise related to his service. He asserts that his claimed peripheral neuropathy of the bilateral upper and lower extremities is related to his exposure to herbicides in service. As previously noted, as he served in Vietnam during the Vietnam era, he is presumed to have been exposed to herbicides in service. In this regard, peripheral neuropathy is a disease enumerated under 38 C.F.R. § 3.309 (e) as presumed to be due to herbicide exposure. However, such did not manifest within one year of the Veteran’s exposure, but rather he alleges that such began during his treatment for his thyroid cancer several years following his discharge from service. Thus, again assuming that he did have a definitive diagnosis for such, service connection for such disability on a presumptive basis as due to exposure to herbicides under 38 U.S.C. § 1116, is not warranted. In addition, neither lumbar radiculopathy nor carpal tunnel syndrome are enumerated under 38 C.F.R. § 3.309(e). Therefore, presumptive service connection is not warranted for either disability. However, this is not fatal to the Veteran’s claim; he may nonetheless substantiate his theory of entitlement by presenting affirmative evidence of an etiological relationship between his disability and his exposure to herbicides. Here there are two conflicting etiological opinions, the private January 2013 opinion and the June 2013 VA opinion. The Board affords the Veteran’s private positive January 2013 opinion no probative weight as the examiner failed to provide a rationale to support his conclusion in regards to the Veteran’s alleged neuropathy. See Nieves-Rodriguez, 22 Vet. App. at 295; Stefl, 21 Vet. App. at 124. Furthermore, the private examiner did not discuss the Veteran’s lumbar radiculopathy or his carpal tunnel syndrome. However, the Board finds the negative June 2013 VA opinion both probative and persuasive, as the examiner noted that the Veteran’s proper diagnoses were lumbar radiculopathy which contained its etiology in its diagnosis, that his radiculopathy was due to his lumbar spine, and carpal tunnel syndrome. Furthermore, the examiner attributed neither condition to the Veteran’s herbicide exposure. Finally, the Board notes that while the Veteran has contended that he has neuropathy of the upper and lower extremities secondary to his herbicide exposure, he is not competent to endorse such a medical relationship between his claimed disability and his service to include any exposure therein; that is a medical question beyond the scope of lay observation. See Jandreau, 492 F.3d at 1377. Furthermore, the Board again notes that there is no definitive diagnosis of peripheral neuropathy of the upper and lower extremities, but rather lumbar radiculopathy and carpal tunnel syndrome. Nothing in the medical evidence in the record suggests, and the Veteran has not contended, that such a relationship could exist between his lumbar radiculopathy and carpal tunnel syndrome and his service. Therefore, service connection for such disabilities is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim. Therefore, the benefit of the doubt rule does not apply. The appeal in this matter must be denied. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Unger, Associate Counsel