Citation Nr: 18157957 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-61 680 DATE: December 13, 2018 ORDER Entitlement to service connection for thyroid microcarcinoma, to include C-cell hyperplasia of the thyroid is denied. FINDINGS OF FACT 1. The Veteran served in Vietnam and is presumed to have been exposed to an herbicide agent. 2. Thyroid microcarcinoma did not manifest during service and is unrelated to service to include exposure to herbicide agents during service in Vietnam. CONCLUSION OF LAW The criteria for entitlement to service connection for thyroid microcarcinoma, to include C-cell hyperplasia of the thyroid have not been met. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army October 1965 through October 1967, to include service in Vietnam. The Veteran was honorably discharged. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) located in Sioux Falls, South Dakota. Entitlement to service connection for thyroid microcarcinoma, to include C-cell hyperplasia of the thyroid. The Veteran contends his disability, thyroid microcarcinoma to include C-cell hyperplasia of the thyroid should be service-connected. Generally, to prove service connection, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic disabilities if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). 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, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran’s personnel records show that he served in Vietnam and it is presumed that he was exposed to an herbicide agent under 38 U.S.C. § 1116. In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In this regard, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era 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 U.S.C. § 1116(f). The current list of diseases, subject to presumptive service connection, under 38 C.F.R. § 3.309(e), does not include papillary thyroid microcarcinoma or any thyroid carcinoma. 38 C.F.R. § 3.309(e). Notwithstanding the provisions of 38 U.S.C. § 1116 and 38 C.F.R. § 3.309(e), relating to presumptive service connection due to exposure to an herbicide agent a claimant is not precluded from establishing service connection with proof of actual causation, that is, proof the exposure to herbicide agents cause thyroid microcarcinoma, which is not included in the list in 38 C.F.R. § 3.309(e). See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d). Turning to the evidence of record, the Veteran’s service treatment records (STRs) submitted are silent as to any complaints of thyroid disease. Post-service records reveal the Veteran’s thyroid was examined by physicians at multiple stages. A VA medical center (VAMC) pathology test conducted in June 1995 indicated the Veteran’s thyroid hormone, thyroxine, and thyroid index placed within the reference range. VAMC records from in-person examinations conducted in September 2007, April 2008, October 2008, October 2009, November 2009, December 2009, January 2010, May 2010 and June 2010 indicate the Veteran exhibited normal neck adenopathy and his thyroid was clear. The Veteran failed to show any signs of thyroid nodules or thyroid disease. A VAMC laboratory study was conducted in October 2009 and the Veteran’s thyroid test revealed thyroid hormones to be within normal limits. The Veteran first complained of neck pain in February 2011. A computed tomography (CT) scan revealed a cystic mass in the left thyroid lobe and a hypodensity less than 1 cm in the right thyroid lobe. An ultrasound was performed in February 2011 which confirmed the existence of coarse calcifications in the right thyroid lobe and a smoothly marginated lesion and two small complex nodules in the left thyroid lobe. The physician recommended the Veteran repeat the thyroid ultrasound in six months. In April 2011 the Veteran was referred to an endocrinologist due to chronic neck pain and bilateral thyroid nodules. In July the Veteran was informed of the benefits and risks of undergoing a total thyroidectomy with possible central neck lymph node dissection. He elected the thyroidectomy procedure in August 2011. In December 2011 the Veteran’s condition was diagnosed by physicians at the Mayo Clinic as well-differentiated papillary microcarcinoma of the thyroid. The Veteran was placed on hormone replacement therapy after the surgery and his condition has remained stable. Turning to the question of direct service connection, the Veteran has been diagnosed with papillary microcarcinoma of the thyroid. Shedden element (1) has been met. The Veteran fails to satisfy Shedden element (2). STRs are silent as to the existence of a thyroid condition manifesting or occurring in-service. The Veteran exhibited normal thyroid function between 1967 and 2011, approximately 44 years after discharge from service. The Veteran’s positive thyroid function has been confirmed by in-person medical examinations and laboratory testing. Therefore, direct service connection is not warranted. Turning to the question of presumptive service connection for a chronic disease, as the evidence shows that the Veteran’s diagnosis of thyroid microcarcinoma is a disease listed under 38 C.F.R. § 3.309(a), however, it did not manifest to a degree of 10 percent within one year from the date of separation. Additionally, there is no evidence of continuity of symptomatology of the disability since separation. Therefore, service connection pursuant to 38 C.F.R. § 3.309(a) is not warranted. Turning to the question of presumptive service connection for herbicide exposure, the evidence shows that the Veteran’s diagnosis of thyroid microcarcinoma is not included in the list of diseases subject to presumptive service connection under 38 C.F.R. § 3.309(e), thus, service connection on a presumptive basis due to herbicide exposure pursuant to 38 C.F.R. § 3.309(e); 38 C.F.R. § 3.307 (a)(6)(ii) is not warranted. In light of the foregoing, the Board finds that the preponderance of the evidence is against entitlement to service connection for thyroid microcarcinoma, to include C-cell hyperplasia of the thyroid. In the absence of a nexus by presumption or evidence of an in-service occurrence and nexus by direct evidence, the criteria for service connection for a thyroid microcarcinoma, to include C-cell hyperplasia of the thyroid is not met and the appeal must be denied. In reaching this determination, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, because the preponderance of the evidence is against the claim, this doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mahmoudi, Associate Counsel