Citation Nr: 20050199 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 15-10 362A DATE: July 28, 2020 ORDER Entitlement to service connection for thyroid cancer to include as due to herbicide exposure and secondary to service-connected prostate cancer is denied. Entitlement to service connection for liver cancer to include as due to herbicide exposure and secondary to service-connected prostate cancer is denied. FINDINGS OF FACT 1. Thyroid cancer is not currently manifest and did not manifest at any point during the appeal period. 2. Liver cancer did not manifest in service and is not attributable to service; liver cancer did not manifest to a compensable degree within one year of discharge from service and is not secondary to a service-connected disability. CONCLUSIONS OF LAW 1. Thyroid cancer was not incurred in service and is not secondary to a service-connected disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. 2. Liver cancer was not incurred in service nor may it be presumed to have been incurred therein and is not secondary to a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from July 1963 to November 1966. These issues are on appeal from an April 2015 rating decision. The Board remanded these issues in June 2018 for evidentiary development. The development was completed and the Veteran’s claims folder has returned to the Board for further appellate consideration. In June 2018, the Board also remanded claims of service connection for erectile dysfunction and special monthly compensation for the loss of use of a creative organ. In a subsequent rating decision dated June 2020, these claims were granted. In view of the foregoing, these issues have been resolved and are no longer before the Board. See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997). Service Connection The Veteran seeks service connection for liver cancer and thyroid cancer which he asserts are directly related to his exposure to herbicide agents in service. See Correspondence dated October 2015. Additionally, in a supplemental statement, the Veteran raised a secondary theory of entitlement indicating that he developed liver cancer and thyroid cancer as a result of the treatment he received for his service-connected prostate cancer. See Correspondence dated April 2016. Veterans are entitled to compensation from VA if they develop a disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For certain chronic disorders, including cancer, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. 1. Thyroid cancer The Veteran’s service treatment records are absent complaints of, or treatment for, thyroid cancer or associated symptoms. However, service personnel records verify the Veteran’s service in Vietnam. Therefore, he is presumed to have been exposed to herbicides in service. 38 U.S.C. § 1116(f). VA regulations provide that certain diseases associated with in-service herbicide exposure may be presumed service connected. 38 C.F.R. §§ 3.307, 3.309(e). Thyroid cancer is not included as a presumptive condition. Nonetheless, the Veteran may establish service connection with sufficient evidence of actual causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board adds that the Veteran is service connected for prostate cancer. Pertinently, the current medical evidence indicates that the Veteran does not have thyroid cancer. In this regard, the Veteran was provided a VA thyroid examination in September 2019. After examination of the Veteran and consideration of his medical history, the VA examiner did not diagnose the Veteran with thyroid cancer. The Board notes that another VA examiner also did not diagnose the Veteran with thyroid cancer after her review of the record in a March 2019 report. The examiner did diagnosis hypothyroidism, but concluded that it was not caused by or related to the Veteran’s treatment for prostate cancer. The March 2019 and September 2019 VA medical opinions were based upon thorough review of the record and analysis of the Veteran’s entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”). There are no medical findings contrary to the VA examination reports as to whether the Veteran has thyroid cancer. The Board has considered the Veteran’s statements that he has thyroid cancer. However, the Veteran is not competent to diagnosis himself with thyroid cancer. The Veteran’s lay assertions are therefore afforded less probative weight than the VA opinions. In this instance, the Board concludes that the most probative evidence establishes that the Veteran does not have thyroid cancer. The existence of a current disability is the cornerstone of a claim for VA disability benefits. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Therefore, in the absence of current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). With regard to the diagnosis of hypothyroidism, the evidence does not indicate that such began during service or is otherwise etiologically related to service. Hypothyroidism was diagnosed in 2000, many years after his separation from service. There is no indication that such was caused by his presumed exposure to herbicides. As noted above, the VA examiner determined it was not caused by or aggravated by his service-connected prostate cancer. As the preponderance of the evidence is against the claim, the claim is denied. 2. Liver cancer With regard to the Veteran’s contention that he has liver cancer related to service, to include herbicide exposure, the Board initially notes that the Veteran currently has liver cancer. See, e.g., the September 2019 VA examination report. Additionally, the Board notes that the Veteran’s service treatment records are absent complaints of, or treatment for, liver cancer or associated symptoms. However, as discussed above, service personnel records verify the Veteran’s service in Vietnam. Therefore, he is presumed to have been exposed to herbicides in service. 38 U.S.C. § 1116(f). VA regulations provide that certain diseases associated with in-service herbicide exposure may be presumed service connected. 38 C.F.R. §§ 3.307, 3.309(e). Liver cancer is not included as a presumptive condition. Nonetheless, the Veteran may establish service connection with sufficient evidence of actual causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board has carefully evaluated the evidence and finds that a preponderance of the evidence of record is against a finding that the Veteran’s current liver cancer is related to his service on a direct or presumptive basis. There was no showing of liver cancer during service. In as much as the September 1966 separation examination revealed normal liver findings, he did not have characteristic manifestations sufficient to identify the chronic disease entity, cancer, during service or within one year of separation. 38 C.F.R. § 3.303(b). With respect to the Veteran’s contention that his liver cancer is secondary to his prostate cancer, the Veteran was provided a VA examination September 2019. After examination of the Veteran and consideration of the Veteran’s medical history, the examiner diagnosed the Veteran with liver cancer and indicated that it is less likely than not that the liver cancer is caused or aggravated by the prostate cancer. The examiner’s rationale for her conclusion was based on her review of medical literature which did not support a relationship between liver cancer and prostate cancer. The Board notes that another VA examiner concluded in a March 2019 report that it is less likely than not that the Veteran’s liver cancer was caused or aggravated by the prostate cancer. The examiner’s rationale for her conclusion was based her finding that the most likely etiology of the liver cancer is nonalcoholic steatohepatitis based on mild AST/ALT elevations and the Veteran’s history of obesity and poor diet quality. The September 2019 and March 2019 VA medical opinions were based upon thorough consideration and analysis of the Veteran’s pertinent medical history. See Bloom, supra. The Veteran has not submitted a medical opinion to contradict the VA examiners’ opinion that his current liver cancer is not caused or aggravated by his service-connected prostate cancer. The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has not done so. See 38 U.S.C. § 5107(a)(it is the claimant’s responsibility to support a claim for VA benefits). The Board observes that the Veteran has submitted lay statements indicating that his liver cancer is secondary to his service-connected prostate cancer. The Board notes that the Veteran is competent to report that he has been diagnosed with liver cancer. However, to the extent the Veteran proffers this information as a positive nexus between his liver cancer and prostate cancer, the Board finds that such an opinion is outweighed by the evidence of record, in particular the September 2019 and March 2019 VA medical opinions which were based on thorough review of the Veteran’s pertinent medical history and medical condition and supported by adequate rationales. Therefore, this lay evidence is accorded little probative value. For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for liver cancer, to include as due to herbicide exposure and secondary to service-connected prostate cancer. The benefit sought on appeal is accordingly denied. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nadia Kamal, Counsel 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.