Citation Nr: 21003286 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 13-22 253A DATE: January 21, 2021 ORDER Entitlement to service connection for thyroid cancer, to include as due to herbicide exposure, on the basis of substitution, is denied. FINDING OF FACT Thyroid cancer did not have its onset in active service or for many years thereafter, and is not otherwise related to service, to include herbicide agent exposure therein. CONCLUSION OF LAW The criteria for service connection for thyroid cancer are not met. 38 U.S.C. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1951 to February 1971, to include service in Vietnam. The Veteran died in December 2016. The appellant is his surviving spouse who was substituted for the Veteran in this appeal, granted by way of a November 2019 correspondence. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before a Veterans Law Judge in October 2016. A transcript is of record. After the Veteran’s death in December 2016, the Board dismissed the claim on appeal in February 2017 for lack of jurisdiction, noting the dismissal did not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing the claim to completion. Subsequent to the appellant’s substitution in the case in November 2019, the Board remanded the case in June 2020 for a medical opinion concerning the origins of the Veteran’s terminal thyroid cancer, particularly insofar as a relationship with his military service and presumed exposure to Agent Orange in Vietnam. The RO obtained a VA medical opinion in June 2020. However, the Board found that opinion lacked adequate rationale in that it appeared to rely exclusively on the absence of service treatment records documenting diagnosis or treatment for thyroid cancer. The Board remanded the case in July 2020 for an addendum medical opinion reflecting consideration of documented history, lay contentions, and medical evidence of record. In October 2020, an addendum opinion reflecting consideration of the items specified in the Board remand was associated with the claims file. As explained below, the opinion obtained, in combination with the other evidence, is adequate to decide the claim. Therefore, there has been substantial compliance with the Board’s requested development and there has been no contention to the contrary. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Service connection for thyroid cancer, to include as due to herbicide agent exposure Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain diseases may be presumed to have been incurred in service where a veteran was exposed to herbicide agents, such as Agent Orange, while on active service, even when there is no evidence of such exposure during the period of service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In this case, the evidence establishes that the Veteran served in the Republic of Vietnam; thus, he was presumed exposed to herbicides in service. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Moreover, while thyroid cancer is not listed as a disease presumptively incurred in service due to herbicide agent exposure, the appellant is not precluded from establishing entitlement to service connection with proof of direct causation (i.e., with probative evidence directly linking the thyroid cancer to exposure to presumed herbicide exposure. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In the Veteran’s formal appeal to the Board, he wrote that his condition did not manifest itself until after he left the service, and therefore there would be no relevant entries in his service treatment records. The Veteran’s service treatment records do not include any complaint or treatment regarding his thyroid or associated symptoms. VA treatment records show thyroid nodule in May 2010, thyroid neoplasm in July 2010 the same month he had been seen for “neck mass,” and malignant neoplasm of thyroid gland in September 2010. At a May 2010 dermatology visit, the Veteran had reported a lump or swelling in the neck and that his adam’s apple had been shifting to the right side for many years and recently noted more deviation and a fullness in his left mid-anterior neck. In September 2009, the Veteran’s thyroid showed no abnormalities. In October 2005, the Veteran’s thyroid was not found to be enlarged. In June 1980, a government medical treatment record shows the Veteran’s thyroid was negative. There is also evidence that the Veteran did not have hypothyroidism. See e.g. VA treatment records from October 2008, September 2009. At the October 2016 Board hearing, the Veteran testified to having something on his neck from the early to mid-1980s all the way up through the 1990s. He detailed the process of undergoing diagnostic testing via biopsies and scans to show something was developing. He told the Veterans Law Judge that none of his doctors would say that papillary cancer was not caused by Agent Orange. However, he offered his opinion on that matter pointing out that he would sit and eat outside when chemicals were continually sprayed and aerial crop dusting occurred. In a February 2013 general medical examination, a VA examiner included that the Veteran had an endocrine and/or metabolic condition of thyroid and parathyroid, having been diagnosed with status-post thyroid cancer/thyroidectomy in 2010. This diagnosis appears to be based upon medical history taken from the Veteran as the examiner indicated that evidence was not reviewed. Following the Board’s June 2020 remand for a medical opinion, a VA physician found that based on review of the Veteran’s service treatment records and “any other relevant evidence” including from the Board remand, that the Veteran’s previously diagnosed papillary thyroid carcinoma was less likely than not incurred in or cause by service. The rationale included that no etiology of thyroid cancer was identified, thyroid cancer is not presumptively associated with exposure to herbicides, and there was no thyroid cancer in the Veteran’s service treatment records. The Board found this opinion inadequate and remanded the case for an addendum in October 2020. In an October 2020 addendum, the VA physician clarified his opinion. He wrote that there is no evidence to suggest that the Veteran’s thyroid cancer was service related, and nothing in the opinion is based solely on the fact that VA has not recognized thyroid cancer as a presumptive disease related to herbicide exposure. Rather, the opinion is based on the fact that there is no cause shown, no history in service, and no other evidence that the Veteran’s thyroid cancer was service related. As the VA physician explained the reasons for his conclusion based on an accurate characterization of the evidence and considered multiple factors, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no contrary medical opinion in the evidence of record. The medical evidence indicates that the Veteran was first diagnosed with thyroid cancer many years after service. The first indication of a thyroid or neck issue was in 2010, at which point he reported a history of neck symptoms. However, previous medical visits in the several years prior show the Veteran was negative for thyroid issues. Moreover, the Veteran indicated in lay statements that there were no symptoms until years after service. A nexus via continuous symptoms from service or a continuity of symptomatology for thyroid cancer is not shown. In addition, the lay and medical evidence reflect that tumors, a chronic disease, did not manifest in service or within the one year presumptive period. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). The Veteran was and the appellant is competent to report the history of his neck and thyroid symptoms, but the issue of whether the Veteran’s thyroid cancer is related to service is a complex medical issue because of the post-service onset and complex disease processes involved. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Thus, lay evidence is not competent as to this question and competent medical evidence is required to establish a nexus for this disability. 38 C.F.R. § 3.159(a)(1). Because the Veteran was not shown to be competent as a medical expert, greater probative value must be assigned to the adequate and probative medical evidence described above. Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). The Board is sympathetic to the appellant and recognizes the distinguished service of the Veteran but is bound by the laws and regulations that apply to veterans’ claims. 38 U.S.C. § 7104(c) (2012); 38 C.F.R. § 20.105 (2020). As the preponderance of the above described evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and service connection for thyroid cancer is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Kuczynski, 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.