Citation Nr: 21000841 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 14-23 990 DATE: January 6, 2021 ORDER Entitlement to service connection for a thyroid disorder (resulting in a thyroidectomy, an associated scar on the anterior neck, and residual thyroid endocrine dysfunction), to include as due to herbicide agent exposure, is granted. FINDING OF FACT The probative evidence weighs in favor of finding that the Veteran’s thyroid disorder was at least as likely as not caused by his in-service exposure to herbicide agents. CONCLUSION OF LAW The criteria for entitlement to service connection for a thyroid disorder have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from May 1969 to August 1974, including in the Republic of Vietnam. See DD Form 214; February 2020 Memorandum (conceded exposure to herbicide agents). In a March 2018 Decision, the Board denied entitlement to service connection for a thyroid disorder. In a November 2018 Joint Motion for Remand, the U.S. Court of Appeal for Veterans Claims vacated the March 2018 Board Decision and remanded the issue of entitlement to service connection for a thyroid disorder for further development and adjudication. In a June 2019 Decision, the Board remanded the issue of entitlement to service connection for a thyroid disorder. Service Connection If a veteran was exposed to herbicide agents during service, then presumptive service connection may be established for certain conditions enumerated at 38 C.F.R. § 3.309(e); however, because thyroid nodules/disorder is not among the enumerated conditions, presumptive service based on exposure to herbicide agents is precluded. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Nevertheless, the Veteran’s inability to prevail on a presumptive basis does not foreclose his opportunity to prevail on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-33 (Fed. Cir. 1994). Direct service connection may be warranted if the evidence shows: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for a thyroid disorder The Veteran generally contends that his thyroid disorder is etiologically related to his in-service exposure to herbicide agents. See November 2012 VA Form 21-526EZ; November 2012 Third Party Correspondence; February 2013 Correspondence with concurrently-submitted research articles; July 2013 Notice of Disagreement; June 2014 VA Form 9; April 2017 Brief; January 2018 Brief; March 2019 Correspondence with concurrently-submitted research articles; June 2019 Brief; August 2019 Correspondence; November 2020 Brief. As stated above, the Board concedes the Veteran’s in-service exposure to herbicide agents based on his service in the Republic of Vietnam. See DD Form 214; February 2020 Memorandum (conceded exposure to herbicide agents). However, the evidence fails to show that the Veteran has the necessary medical background to competently diagnose hypothyroidism or render a pertinent etiological opinion (this condition is not lay observable because it is diagnosed after objective diagnostic testing); accordingly, the Veteran’s opinions regarding date of diagnosis and etiology are of no probative value and the Board must defer to the competent medical evidence of record. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Service treatment records (STR’s) do not indicate that the Veteran’s thyroid disorder began or was chronic in service. The July 1969 entrance examination and the August 1974 separation examination did not document any pertinent abnormalities and listed the endocrine system as clinically normal upon examination. Further, the remaining STR’s did not document pertinent complaints, treatment, or diagnoses. In a February 2019 private treatment record, Dr. MS of Foothills Family Practice diagnosed hypothyroidism status-post total thyroidectomy for a severe multinodular goiter. The provider opined that the goiter was more likely than not caused by the Veteran’s in-service exposure to dioxin from the herbicide Agent Orange that was used as a defoliant in the Republic of Vietnam during his time there in 1971. The provider explained that: (a) the Veteran’s personal medical history supports that opinion (because he has no family history of goiter or hypothyroidism and no history of radiation exposure to the neck or elsewhere); and (b) the medical literature supports that opinion (because several studies have examined dioxin effects on the thyroid, including two cited by the provider in the treatment record). The Veteran was afforded a December 2019 VA thyroid and parathyroid examination, in which the examiner diagnosed residual thyroid endocrine dysfunction status-post thyroidectomy in 2004. Notably, a December 2019 VA scars/disfigurement examination diagnosed a scar on the anterior neck from the thyroidectomy. The December 2019 VA examiner opined that the thyroid disorder was less likely than not incurred in or caused by the in-service exposure to herbicide agents or any other in-service injury, disease, or event. Without providing adequate rationale to support that conclusion, the examiner merely stated that there was no evidence to confirm a nexus, so no nexus could be established. In an August 2020 VA addendum opinion, the examiner again opined that the thyroid disorder was less likely than not incurred in or caused by the in-service exposure to herbicide agents. The examiner explained that: (a) there is no evidence of a multinodular goiter or thyroid condition in service or proximate to service (the Veteran claims to have been diagnosed with benign multinodular goiter in 1992, with subsequent thyroidectomy in 2004); (b) the current, widely-accepted, peer-reviewed literature has not established any relationship, as to cause and effect, between Agent Orange and benign multinodular goiter; (c) established medical knowledge and practice does not include Agent Orange as a cause of multinodular goiter; and (d) the research articles submitted by the Veteran in 2013 do not establish cause and effect and any relationship suggested in the articles does not establish cause and effect. Based on this evidence, the Board finds that the probative evidence weighs in favor of finding that the Veteran’s thyroid disorder was at least as likely as not caused by his in-service exposure to herbicide agents. Specifically, the Board finds Dr. MS’s opinion to be highly probative because he provided adequate rationale to support his favorable opinion, basing it on the Veteran’s personal medical history and citations to pertinent medical literature. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Further, the Board finds the December 2019 VA examiner’s opinion to be of no probative value because it lacked adequate rationale, as discussed above. Barr, supra. Also, the Board finds the August 2020 VA examiner’s opinion to be of no probative value because the examiner failed to consider the favorable evidence of record (Dr. MS’s opinion) and did not even consider all of the articles the Veteran submitted (the examiner only referenced articles submitted in 2013, but the Veteran also submitted articles in March 2019). Barr, supra. As such, the Board finds that the probative evidence weighs in favor of finding that the Veteran’s thyroid disorder was at least as likely as not caused by his in-service exposure to herbicide agents; thus, the claim is granted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, Associate 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.