Citation Nr: 20020486 Decision Date: 03/19/20 Archive Date: 03/19/20 DOCKET NO. 17-58 044 DATE: March 19, 2020 ORDER Entitlement to service connection for a thyroid disorder, to include hypothyroidism, is denied. FINDINGS OF FACT 1. The Veteran’s thyroid disorder was not shown in service or for many years thereafter, and is not otherwise related to active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a thyroid disorder, claimed as hypothyroidism, have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1971 to July 1975, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This appeal is also pursuant to an April 2019 remand by the Board, and is now ready for adjudication. Originally, the issue of service connection for a skin disorder was on appeal; however, it was granted by the RO in January 2020. Beyond the above, it is essential for the Veteran to understand that he is already in receipt of a 100 percent combined disability rating. In fact, he has been rated 100 percent disabled since July 2, 1990. Thus, additional awards of service connection, based on an analysis of this record, will not result in increased compensation beyond the 100 percent rating (by definition, the maximum rating). Service Connection 1. Entitlement to service connection for a thyroid disorder, to include hypothyroidism The Veteran asserts that his thyroid disorder was caused by herbicide exposure, or were otherwise etiologically related to service, to include as secondary to his service-connected diabetes mellitus. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury, to include as secondary to and/or aggravated by a service-connected disability; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Moreover, VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, 2,4-Dichlorophenoxyacetic acid or 2,4,5-Trichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Service connection is warranted for the following diseases where a veteran has been exposed to toxic herbicide agents during active military service (subject to the requirements of 38 C.F.R. § 3.307(a)): AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, diabetes mellitus, Hodgkin’s disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lungs, bronchus, larynx, or trachea), and soft-tissue sarcomas. In fact, service connection is warranted even if these disorders were not shown during active duty. 38 C.F.R. § 3.309(e). Here, the Veteran asserts that his thyroid disorder is related to his service-connected diabetes mellitus, or alternatively, is due to his exposure to toxic herbicides. As an initial matter, the Board concedes toxic herbicide exposure, as the Veteran’s personnel records reflect that the served in the Republic of Vietnam. However, service connection is not warranted on a presumptive basis, as his thyroid disorder is not presumptively related to toxic herbicides. Therefore, service connection is not warranted on this basis. Next, although service connection is not warranted on a presumptive basis, the Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). The Board concludes that, while the Veteran has a current diagnosis of a thyroid disorder, the preponderance of the evidence weighs against finding that the Veteran’s disorders began during service or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a), (d), 3.304, 3.307, 3.309. The Veteran did not have any complaints, symptoms or a diagnosis of a thyroid disorder during service. In fact, the Veteran’s July 1975 exit exam shows a normal endocrine system, and did not reflect a thyroid disorder. The Board notes that the post-service medical evidence may include some statements to the Veteran’s medical providers that he may have had symptoms of these disorders since service. However, the objective medical evidence does not demonstrate any symptoms, manifestations, or a diagnosis related to a thyroid disorder until 1982 and no treatment until approximately 2001. Therefore, continuity of symptoms has not been shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307 (a)(3). As part of this claim, the Board recognizes the statements from the Veteran regarding his history of symptoms since service. In this regard, while the Veteran is not competent to make a diagnosis related these disorders, as they may not be diagnosed by their unique and readily identifiable features, and thus requires a determination that is ”medical in nature,” he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Nevertheless, the Board determines that the Veteran’s reported history of continued symptomatology since active service, while competent, is nonetheless not sufficient to establish continuity of symptomology. As an initial matter, the large gap in treatment for the asserted conditions weighs against the Veteran’s claims. Further, the Veteran’s treatment records, including his service treatment records and July 1975 separation examination and report of medical history, contradict his assertions that his symptoms have persisted since service. Further, the Board notes that the Veteran first filed a claim for VA benefits in 1979 with no mention of a thyroid disorder. Therefore, the fact that the Veteran was aware of the VA benefits system and sought out a claim for other benefits, but made no reference to the disorder he now claims is inconsistent with symptoms since service. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints, or as secondary to an already service-connected disorder. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran’s claimed thyroid disorder to active duty, despite his contentions to the contrary. Specifically, the October 2019 VA examiner opined that the Veteran’s current thyroid disease, was less likely than not related to his diabetes mellitus and/or otherwise related to active service. In support, the examiner indicated that there was no diagnosis of hypothyroidism during service. He noted that hypothyroidism is not listed as a VA recognized presumptive condition associated with exposure to Agent Orange or other herbicides during military service. He also noted that the service treatment records did not show evidence of hypothyroidism as related to an in-service injury, event, or disease. As related to secondary service connection, the examiner stated that the hypothyroidism was diagnosed prior to the diabetes mellitus, therefore, it is less likely than not proximately due to or the result of the service-connected diabetes mellitus. A September 2016 VA examiner opined that the Veteran’s hypothyroid condition is less likely than not related to service/combat action badge. He further opined that even if he was extensively exposed to herbicides there is still no medical evidence or documentation to support such being the cause of the Veteran’s thyroid disorder. These opinions are highly probative, as they were rendered by medical professionals familiar with the Veteran’s medical history. Additionally, of significant importance, the Veteran did not submit any medical opinions stating differing opinions than the examiners, or to substantiate his assertions. The Board also acknowledges the statements from the Veteran regarding the etiology of his thyroid disorder. A lay person is competent to report observable symptomatology, such as pain. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). However, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent that the Veteran believes that his thyroid disorder may be the result of service, including diabetes mellitus, he is a lay person without appropriate medical training and expertise to provide a medical nexus opinion regarding the etiology of his disorder. The Board concludes that the preponderance of the evidence is against the claim for service connection for a thyroid condition, and there is no doubt to be otherwise resolved. Therefore, the claim for service connection must be denied. 38 U.S.C. A. § 5107 (b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Billinger, Associate Counsel