Citation Nr: 18153179 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-48 319 DATE: November 28, 2018 ORDER Service connection for lumbar degenerative disc disease (DDD) is granted. REMANDED The issue of service connection for thyroid cancer is remanded. The issue of service connection for scars, to include as secondary to thyroid cancer, is remanded. The issue of service connection for a right arm condition, to include as secondary to thyroid cancer, is remanded. The issue of service connection for a chest condition, to include as secondary to thyroid cancer, is remanded. The issue of service connection for bilateral vocal cord paralysis, to include as secondary to thyroid cancer, is remanded. The issue of service connection for a respiratory condition, to include as secondary to thyroid cancer, is remanded. The issue of service connection for an acquired psychiatric disorder, to include anxiety and depression, as secondary to thyroid cancer, is remanded. FINDING OF FACT With resolution of the doubt in his favor, the Veteran’s lumbar degenerative disc disease (DDD) is a result of active duty service. CONCLUSION OF LAW The criteria for service connection for lumbar degenerative disc disease (DDD) have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.309(d) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from February 1990 to December 1998. This appeal is before the Board of Veterans’ Appeals (Board) from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. 1. Lumbar DDD Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Laypersons are considered competent to provide a medical diagnosis only if (1) the condition is simple to identify (such as a broken leg), (2) he or she is reporting a contemporaneous medical diagnosis, or (3) his or her description of symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicolson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran’s service treatment records demonstrate repeated complaints of back pain. See Service Treatment Records from June 1998, August 1998, and October 1998. The Veteran was prescribed pain medication and muscle relaxants. In October 1998, after examining the Veteran and reviewing MRI imaging, a physician concluded that the Veteran had mild disc bulges at L2-3, L3-4, and L4-5. The Veteran’s November 1998 separation examination noted lower back pain April 2014 imaging demonstrated mild dextroscoliosis, narrowing of the L4-5-disc space, and first degree retrolisthesis at L5-S1. In April 2014 and September 2015, the Veteran was afforded VA examinations. Both examiners cited the Veteran’s in-service back pain, and noted the Veteran’s current diagnosis of lumbar DDD (noting a date of diagnosis of 1997.) In May 2014, a VA examiner concluded that the Veteran’s lumbar DDD was not incurred in or caused by an injury or event during the Veteran’s active service because the Veteran had no treatment or care for his back since his active duty separation in 1998. In February 2015, the Veteran’s private physician concluded that the Veteran’s current low back disability is related to his in-service low back disability, citing similar low back imaging results from 1998 and December 2014. The Veteran is competent to report that he had back pain in service and the fact is demonstrated by record. The Veteran is also competent to report that the pain has existed from service to the present. 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App 370, 374 (2002). The Veteran provided credible evidence that he had in-service back pain which has continued since service, he currently has a diagnosis of lumbar DDD, and examiners provided positive nexus opinions. The Board will accord the Veteran the benefit of the doubt and grant the benefit. The present decision is based on the record in this appeal, and carries no precedential weight as to any other pending cases. 38 C.F.R. § 20.1303. REASONS FOR REMAND For veterans who were exposed to ionizing radiation during service, service connection for a condition that is claimed to be attributable to such exposure may be established in one of three different ways. First, there are 15 types of cancer that are presumptively service-connected if they become manifest in a radiation-exposed veteran. 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). Second, 38 C.F.R. § 3.311(b)(2) lists other radiogenic diseases that may also be service connected if the VA Undersecretary for Benefits determines that they are related to ionizing radiation exposure during service. Third, direct service connection can be established by showing that the disease was incurred during or aggravated by service. See Combee v. Brown, 34 F.3d 1039, 1045. For the purposes of presumptive service connection, the enumerated cancers concern the primary cancer site, and not where the enumerated cancer resulted from metastasis of a non-enumerated cancer. See VAOPGCPREC 9-90 (April 30, 1990). The Board has determined that additional development is necessary. and the appeal is, therefore, REMANDED as directed below: 1. Advise the Veteran that he may submit any additional medical or non-medical evidence in support of his claims. Provide the Veteran with appropriate release of information forms and assist in the retrieval of any information cited by the Veteran. 2. Reasons for the Remand: The Veteran contends that his thyroid cancer is related to his active duty service. Specifically, the Veteran contends: (a.) His thyroid cancer was caused by in-service exposure to radiation and/or burned varnish vapors, AND; (b.) His thyroid cancer and related treatment THEN CAUSED secondary disabilities, to include scars, a right arm condition, a chest condition, bilateral vocal cord paralysis, a respiratory condition, and an acquired psychiatric disorder. 3. After a reasonable period, conduct development to: (a.) Obtain an opinion FROM AN ONCOLOGIST regarding the Veteran’s thyroid cancer, to include whether it was the primary cancer site or resulted from metastasis. The findings should be reported in detail. (b.) IF THE VETERAN’S THYROID CANCER WAS THE PRIMARY SITE, obtain an opinion as to: (i.) whether the Veteran has a current diagnosis of, and (ii.) whether the Veteran’s thyroid cancer or treatment thereof then caused the following claimed disabilities: 1. Scars, 2. A right arm condition, 3. A chest condition, 4. Bilateral vocal cord paralysis, 5. A respiratory condition, and 6. An acquired psychiatric disorder, to include anxiety and/depression. THE APPELLANT MAY BE REQUESTED TO PROVIDE THE DATES, LOCATIONS, AND CIRCUMSTANCES OF ANY RELEVANT MEDICAL RECORDS AND/OR TREATMENT TO ENABLE VA TO INVESTIGATE THE CLAIM. All relevant medical records must be made available to the examiner for review of pertinent documents. The opinion should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. 4. The examiner must review all medical evidence in the record. However, his or her attention is drawn to the following: * In February 2013, the Veteran underwent a right supraclavicular lymph node biopsy, neck exploration, and direct laryngoscopy. A Veteran had a history of benign findings consistent with goiter. * Later in February 2013, the Veteran underwent a total thyroidectomy, thymectomy, right modified radical neck dissection (levels II and V,) central compartment neck dissection, sternotomy, pectoralis myofascial flap dissection, and deep neck soft tissues resection. * The Veteran was assigned preoperative and postoperative diagnoses of a metastatic papillary thyroid carcinoma. * Following the February 2013 operation, a fiberoptic bronchoscopy showed an immobile right true vocal fold. The left true vocal fold was hypomobile. * The Veteran underwent numerous VA examinations related to his tyroid cancer and claimed secondary disabilities. The evidence is silent as to whether the Veteran’s thyroid cancer was the primary cancer site or resulted from metastasis. 5. Thorough explanations must be provided for the opinions rendered. If the examiner cannot provide an opinion without resorting to speculation, he or she should expressly indicate this and provide state what evidence would enable him or her to provide a non-speculative opinion. 6. After completing all indicated development, INCLUDING IF APPLICABLE ANY EVIDENCE CITED BY THE EXAMINER TO ENABLE A NON-SPECULATIVE OPINION, readjudicate the claim considering the evidence. If the benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal should be returned to the Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Carolyn Colley, Associate Counsel