Citation Nr: A20008732 Decision Date: 05/15/20 Archive Date: 05/15/20 DOCKET NO. 191022-39284 DATE: May 15, 2020 ORDER Entitlement to service connection for hypothyroidism is denied. FINDING OF FACT The Veteran’s hypothyroidism was not shown in service, was not manifest within one year of separation from service and is not etiologically related to service, to include exposure to herbicides. CONCLUSION OF LAW The criteria for entitlement to service connection for hypothyroidism, to include on a presumptive basis, have not been met or approximated. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from October 1967 to October 1969, and then from December 1969 to February 1976 and is a recipient of the Purple Heart. In an October 2019 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for hypothyroidism. The Veteran submitted a timely VA Form 10182 and requested direct review by a Veterans Law Judge (VLJ). In November 2019, the Veteran submitted a motion to advance his appeal on the Board's docket due to financial hardship. Appeals must be considered in docket number order but may be advanced where a Veteran is experiencing "severe financial hardship." 38 C.F.R. § 20.800(c). The Veteran has not submitted any evidence in support of the motion, and the record does not otherwise indicate that the Veteran is currently suffering from financial hardship such that expedited consideration is warranted. In the absence of evidence of sufficient cause, the motion to advance on the docket is denied. Entitlement to service connection for hypothyroidism. The Veteran contends that he is entitled to service connection for hypothyroidism as due to exposure to Agent Orange. 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; 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of hypothyroidism, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service, except for chloracne and acute and subacute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service, the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307, 3.309(e). Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. The Board notes that VA has conceded the Veteran’s service in the Republic of Vietnam during the presumptive period. If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means 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. Id. In October 1976, the Veteran was afforded a VA examination for a claim of pain in his left hip and upper back due to an injury in Vietnam. The Board notes that the Veteran did not report any thyroid symptoms, nor were any thyroid symptoms documented or thyroid conditions diagnosed. A January 1994 letter from a VA Assistant Chief notes the Veteran had hyperthyroidism and a large goiter that was previously treated with radioactive iodine and was likely to need further treatment of the same nature. A subsequent January 1994 VA discharge summary notes the Veteran was admitted 4 days prior for "severe swelling of the thyroid gland, headache, sweating, and palpitations for three months duration." Diagnoses of thyrotoxicosis, hypertension and headaches were noted. A May 1994 VA treatment record notes a thyroid ultrasound revealed findings that were "compatible for a fairly large sized irregular diffuse goiter." In a July 1994 letter, a VA staff physician noted that the Veteran "still appears to be clinically hyperthyroid" and recommended treatment with medication to normalize his symptoms. A February 1995 discharge summary notes the Veteran was admitted 2 days prior. A diagnosis of hyperthyroidism was noted (the Board notes that hypothyroidism is used throughout the document, but with hypo crossed through and replaced with hyper and initialed). Symptoms upon admission were noted as tremors, sweating, heat intolerance, palpitations, increase in appetite and fatigue. Hyperthyroidism with goiter was noted. On VA examination in September 1996, the Veteran reported having longstanding thyroid problems. A November 1998 VA examination notes the Veteran has hypothyroidism. A March 1999 VA treatment record notes the Veteran reported a sore neck. A history of thyroid treatment with radiation was noted. Upon examination, his thyroid was palpable. An April 2000 VA treatment record notes the Veteran has a history of goiter, hyperthyroidism, status post radioiodine treatment, with development of hypothyroidism. Continued VA treatment records reflect history of hypothyroidism, status post radiation treatment. He was noted to be stable on current treatment. Here, the competent evidence of record shows the Veteran had previously been diagnosed with goiter and hyperthyroidism and has most recently been diagnosed with hypothyroidism. The Board notes that none of these thyroid disorders are enumerated under 38 C.F.R. § 3.309(e). Thus, the Board finds that the Veteran is not entitled to presumptive service connection for hypothyroidism due to herbicide exposure. The fact that a Veteran cannot establish entitlement to service connection on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.304(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Endocrinopathy (hypothyroidism) is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of a "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. With a chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as endocrinopathies, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Here, the evidence of record clearly shows that it was not until the early 1990s, nearly two decades after the Veteran’s February 1976 discharge from service, that the Veteran was diagnosed with hyperthyroidism, and it was not until 1998 that a diagnosis of hypothyroidism was rendered. The Board further notes that there is no evidence, lay or medical, that supports a finding that the Veteran was diagnosed with hypothyroidism, or any other thyroid condition, or that such condition manifested to a compensable degree within one year of discharge. Accordingly, the Board finds that symptoms of hypothyroidism were not chronic in service nor continuous after service separation. Because the Veteran's thyroid disability did not manifest to a compensable degree in service or within one year of service separation, the Board finds that the presumption of service connection under 38 C.F.R. § 3.303(b) is not warranted. Finally, there is no evidence, lay or medical, that the Veteran had symptoms of, was diagnosed with or treated for any thyroid condition during his periods of active duty, nor has the Veteran presented any evidence or argument regarding in-service symptoms. As such, the Board finds that the evidence does not establish an in-service injury, disease, or relevant event with regard to hypothyroidism. Service treatment records are silent for any mention of hypothyroidism and the Veteran has not presented any competent evidence linking this condition to his active duty service, to include herbicide exposure therein, from nearly two decades prior to his diagnosis. Therefore, VA has no duty to provide an examination. Accordingly, and based on this evidentiary posture, the Board concludes that a nexus to service is not demonstrated. As such, service connection on a direct basis is not warranted. As the preponderance of the evidence is against the above claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. G. E. Wilkerson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.