Citation Nr: 19166255 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 12-06 635 DATE: August 27, 2019 ORDER As new and material evidence has been received, the Veteran's claim to entitlement to service connection for thyroid cancer, status post thyroidectomy is reopened is granted. Entitlement to service connection for thyroid cancer, status post thyroidectomy to include as due to exposure to contaminated water at Camp Lejeune is granted. Entitlement to service connection for non-Hodgkin’s lymphoma is dismissed. FINDINGS OF FACT 1. The September 2009 rating decision is final. 2. The newly received evidence since the previous final denial is related to unestablished facts necessary to substantiate the claim and are not cumulative or redundant. 3. The Veteran’s residuals of thyroid cancer are related to exposure to contaminated water at Camp Lejeune. 4. During the March 4, 2019, Board hearing, the Veteran withdrew the appeal of her claim for service connection for non-Hodgkin’s lymphoma. CONCLUSIONS OF LAW 1. The criteria for reopening the claim for service connection for thyroid cancer, status post thyroidectomy have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for thyroid cancer, status post thyroidectomy are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for withdrawal of the appeal of his claim for service connection for non-Hodgkin’s lymphoma by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1980 to January 1987. This matter comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) Regional Office (RO) decision issued in May 2016. 1. Entitlement to service connection for non-Hodgkin’s lymphoma is dismissed. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran’s representative at the March 2019 hearing withdrew the issue of entitlement to service connection for non-Hodgkin’s lymphoma, stating that the Veteran requests that she would like to only appeal the issue of entitlement to service connection for thyroid cancer. As such, the Veteran has withdrawn her appeal for the issue of service connection for entitlement to service connection for non-Hodgkin’s lymphoma. 38 C.F.R. § 20.204. 2. As new and material evidence has been received, the Veteran's claim to entitlement to service connection for thyroid cancer, status post thyroidectomy is reopened. A claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Veteran seeks to reopen her claim for service connection for thyroid cancer, status post thyroidectomy. In May 2016, the RO denied the Veteran’s claim because new and material evidence had not been received since a September 2009 rating decision that denied the Veteran’s claim for entitlement to service connection for thyroid cancer. The Veteran subsequently submitted a notice of disagreement in October 2009. A January 2012 Statement of the Case and November 2013 Supplemental Statement of the Case again denied the claim. No further action was taken until the Veran then submitted a new claim in November 2015. Accordingly, the September 2009 denial became final. Since that final denial the Veteran has submitted additional evidence to support her claim. This evidence includes significant treatment records, including service treatment records; lay statements; medical opinions; and hearing testimony. The Board finds this evidence to be new because it was not included in the record at the time of the previous final denial. The Board also finds this evidence material because it relates to unestablished facts necessary to substantiate the Veteran’s claim. This newly-submitted evidence is not cumulative or redundant of the evidence previously of record. New and material evidence having been received, the Veteran’s claim for entitlement to service connection for thyroid cancer, status post thyroidectomy is reopened. 3. Entitlement to service connection for thyroid cancer, status post thyroidectomy to include as due to exposure to contaminated water at Camp Lejeune. The Veteran was diagnosed with thyroid cancer in 2004 and had a total thyroidectomy in the same year. Medical records show that she still suffers from symptoms including fatigability, mental sluggishness, muscular weakness, weight gain, and cold intolerance. VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from August 1953 through December 1987 were potentially exposed to drinking water contaminated with volatile organic compounds (VOCs). 38 C.F.R. § 3.307 (a)(7). In the early 1980s, it was discovered that two on-base water-supply systems were contaminated with the VOCs trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry-cleaning agent. Benzene, vinyl chloride (VC), and other VOCs were also found to be contaminating the water-supply systems. See VBA Training Letter 11-03 (Revised) (November 29, 2011) (citing the National Academy of Sciences’ (NAS)’s National Research Council (NRC)’s report, “Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects.”) Until scientific evidence shows otherwise, it will be assumed by VA that any given Veteran-claimant who served at Camp Lejeune was potentially exposed in some manner to the full range of chemicals known to have contaminated the water there between 1957 and 1987. Id. at p. 6. There are several diseases that are recognized by VA as having evidence of an association with the contaminating water-supply system at Camp Lejeune; however, thyroid cancer is not one of them. VA’s lack of a recognition does not preclude service connection. See Combee v. Brown, 5 Vet. App. 248 (1993). As with all conditions, service connection remains available where the evidence is at least in equipoise with regard to all elements of service connection. With regard to the service-connection elements of a current condition and an in-service incident, the evidence supports favorable findings. First, it is not in dispute that the Veteran has a 2004 diagnosis of thyroid cancer. Further, her service personnel records show she served at Camp Lejeune, and thus, her exposure to contaminated drinking water at Camp Lejeune is established. Thus, the question presented by this claim is whether there is competent evidence of a nexus between her in-service exposure to contaminated drinking water and her claimed disability. The first VA examination offered to the Veteran on this issue came to the conclusion that it was not medically possible to determine the cause of the Veteran’s thyroid cancer. He could not offer an opinion without resorting to speculation. No further rationale was provided. Therefore, the board offers this evidence little weight. The next opinion came from a March 2017 VA examination. The VA examiner concluded that the Veteran’s thyroid cancer is not related to exposure to Camp Lejeune contaminated water. The rational provided that medical literature has not identified tyroid cancer as a disability known to be related to the contaminants at Camp Lejeune. The VA examiner also cites to the American Cancer Society who does not identify chemical exposures as a risk factor for thyroid disease. Additionally, the Veteran was within the most common age window for being diagnosed with thyroid cancer. The Board finds the VA examiner to be competent to render this opinion because of his education and experience. This opinion also included an extensive rationale for the conclusions drawn. Accordingly, the Board affords this evidence significant weight. In February 2019 a private physician concluded that the Veteran’s thyroid cancer is directly linked to the exposure to contaminated drinking water at Camp Lejeune. The rationale provided that the March 2017 VA examiner cited to medical literature that only supported his contentions as to males with thyroid cancer, whereas the Veteran is female. Additionally, the March 2017 VA examiner noted the Veteran’s sex as male. The physician also stated that the March 2017 VA examiner cited to studies that only identified four contaminants in the ground water at Camp Lejeune, even though at least eleven have been identified. The physician then continues to show examples where the VA examiner “cherry picked” his evidence, then conclude by citing to extensive medical evidence in support of a positive nexus. In addition to submitting his medical opinion, this physician appear at the Veteran’s hearing and testified to the same under oath. The Board finds this medical opinion competent because of the physician’s education and experience. Similarly, the Board also finds this evidence credible because of the extensive reasoning and critique of the previous negative nexus opinion. Accordingly, the Board affords this medical opinion and accompanying testimony significant weight. The Board finds that the evidence is, at minimum, in equipoise regarding the question of whether the Veteran’s thyroid cancer is related to an in-service water contamination at Camp Lejeune. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303. The benefit of the doubt will be conferred in the Veteran’s favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Having satisfied all elements of service connection, the service-connection claim for thyroid cancer is granted. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Hebert, Law Clerk The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.