Citation Nr: 21069860 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 16-03 150 DATE: November 22, 2021 ORDER Service connection for a thyroid disability, to include post-thyroidectomy residuals of Hashimoto's thyroid and hypothyroidism, is denied. FINDING OF FACT A thyroid disability was not present in service or for years thereafter and is not etiologically related to service, including exposure to ionizing radiation. CONCLUSION OF LAW The criteria for service connection for a thyroid disability, to include Hashimoto's thyroiditis and hypothyroidism, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309. 3.311 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1982 to December 1985. In October 2019, the Veteran testified during a Board video-conference hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. This matter was previously before the Board in February 2020 and May 2021, where it was remanded for additional development. Specifically, the case was remanded "to obtain and associate with the claims file any and all documents pertaining to the Veteran dated between December 1992 to July 2013, to specifically include any September 2009 rating decision denying service connection for a thyroid disability, and all evidence considered herein." See BVA February 2020 and May 2021 remands. The Department of Veterans Affairs (VA) has determined that the requested records cannot be located and are therefore, unavailable. See October 2021 letter from VA. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). VA regulations provide that diseases specific to radiation-exposed veterans shall be presumed to have been incurred in service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2019). A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309 (d)(3) as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device, the occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946, internment as a prisoner of war in Japan that resulted in an opportunity for exposure to ionizing radiation comparable to that of veterans who were in the occupation forces of Hiroshima or Nagasaki during the period August 6, 1945, to July 1, 1946, or certain service on the grounds of gaseous diffusion plants located in Paducah, Kentucky, Portsmouth, Ohio, and Oak Ridge, Tennessee, or, in certain circumstances, service on Amchitka Island, Alaska. See 38 C.F.R. § 3.309(d)(3)(n). The following radiogenic diseases shall be service-connected if they become manifest in a radiation-exposed veteran, provided the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied; leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary gland, cancer of the urinary tract, bronchio-alveolar carcinoma, cancer of the brain, cancer of the colon, cancer of the lung, and cancer of the ovary. 38 U.S.C. § 1112 (c); 38 C.F.R. § 3.309 (d) (2019). In all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in Sec. 3.307 or Sec. 3.309, and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. When dose estimates provided are reported as a range of doses to which a veteran may have been exposed, exposure at the highest level of the dose range reported will be presumed. 38 C.F.R. § 3.311 (a) (2019). For purposes of this section the term "radiogenic disease" means a disease that may be induced by ionizing radiation and shall include the following: All forms of leukemia except chronic lymphatic (lymphocytic) leukemia, thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer, and any other cancer. 38 C.F.R. § 3.311(b)(2) (2019). When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107 (2012); 38 C.F.R. § 3.102 (2019); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. 1. Service connection for a thyroid disability, to include post-thyroidectomy residuals of Hashimoto's thyroid and hypothyroidism The Veteran contends that he developed a thyroid disability, to include Hashimoto's thyroiditis, and subsequently had his thyroid removed, as a result of radiation exposure during active military service. He alleges specifically that while serving as a military policeman, in the 165th Military Police Company from October 1982-April 1984, he was exposed to ionizing radiation while assigned to guard nuclear missile warheads and 'other items' at the Fischbach Army Depot in Fischbach, West Germany, a nuclear weapons storage facility. See March 2017 correspondence from the Veteran, October 2019 Board hearing transcript, and April 2021 correspondence from the Veteran. Two veterans who served with the appellant also submitted statements in support of the Veteran's claim, where they reported that they served with the Veteran at the Fischbach Army Depot from 1982-1983, and at that location being exposed to radiation from nuclear material. See March 2021 statements from W. B. and K.H. The Veteran's military records do not include participation in any radiation risk activity, as defined in 38 U.S.C. § 1112 (c) and 38 C.F.R. § 3.309 (d)(3). In this regard, service personnel records indicate the Veteran served in Germany as a military policeman from October 1982 through April 1984. There is no indication of the type of duties or specific location where he served, and no evidence of the Veteran being assigned to Fischbach Army Depot. Furthermore, there is no indication in either the service treatment records or service personnel records that he was exposed to radiation. Therefore, he is not considered to be a "radiation-exposed" veteran. Furthermore, although thyroid cancer is listed both among the diseases subject to presumptive service connection for a "radiation-exposed Veteran" under 38 C.F.R.§ 3.309(d)(2), and as a radiogenic disease under 38 C.F.R. § 3.311(b)(2); a thyroid nodule, which is not necessarily cancerous, is not. Moreover, thyroiditis and hypothyroidism are also not listed among the diseases subject to presumptive service connection under 38 C.F.R. § 3.309(d)(2) or 38 C.F.R. § 3.311(b)(2). For all these reasons, the Veteran is not entitled to a presumption of service connection for his thyroid disability. 38 C.F.R. § 3.309 (d) (2019). Notwithstanding the above, the Veteran could establish service connection with evidence of direct incurrence. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran was not diagnosed with a thyroid disability for many years after service, and there is no competent evidence to establish that his current thyroid disability was due to any event or incident of the Veteran's period of active duty. Service treatment records are negative for any complaints, treatment, or diagnosis for a thyroid disability during active duty or at discharge. Post-service treatment records show the Veteran was diagnosed with a thyroid disability many years after discharge. Specifically, he was noted to have a history of abnormal swallowing in 1998. A thyroid nodule was noted on examination, and based on the Veteran's reported history of radiation exposure, which increased his risk of thyroid cancer, he subsequently underwent surgical removal of the thyroid (thyroidectomy) in September 1998. Following the surgery, he was diagnosed with Hashimoto's thyroiditis and he also later developed hypothyroidism. See July 2013 Thyroid Disability Benefits Questionnaire (DBQ). A May 2015 Thyroid DBQ also notes diagnoses of hypothyroidism, and Hashimoto's thyroiditis. The post-service treatment records do not indicate that the Veteran's thyroid disability, including Hashimoto's thyroiditis and hypothyroidism or his thyroidectomy was related to his active military service, and there is no probative evidence otherwise linking the current thyroid disability to service. In this regard, the July 2013 Thyroid DBQ shows the Veteran's reports that his thyroid was removed as a result of his history of radiation exposure; this was not a medical finding by the private doctor who conducted the examination. See July 2013 Thyroid DBQ. The same doctor wrote a statement in November 2013, indicating that the Veteran had a history of radiation exposure in the military from 1982-1984, and subsequently developed Hashimoto's thyroiditis, and his surgeon removed his thyroid because of his radiation exposure. See November 2013 statement from J.H., MD. However, as with the July 2013 DBQ, this statement is based on the Veteran's reported history alone; it is not based on clinical findings from the Veteran's surgeon. Therefore, the Board finds that inasmuch as J.H. is opining that the Veteran's Hashimoto's thyroiditis is related to radiation exposure in service, this opinion lacks probative value because it is based on the Veteran's reported oral history, which is not corroborated by the service records or other medical evidence of record. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of a thyroid disability, the Board notes that this passage of time weighs significantly against a finding of direct service connection for a thyroid disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges the Veteran's assertion that his thyroid disability is due to active military service, including exposure to ionizing radiation in service. However, while the Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability; in the present case, the Veteran is not competent to provide a nexus between his thyroid disability and his active service. Such an opinion would require medical expertise as it would require clinical testing and interpretation of clinical findings as well as assessing the relevance of any noted symptomatology. This is particularly true where, as here, there is no reference to the disorder in service or for many years later. Thus, the Board finds that the Veteran, as a layperson, is not qualified to render an opinion concerning the cause of his thyroid disability. 38 C.F.R. § 3.159 (a)(1), (2) (2019). For the reasons and basis stated above, the Board finds that service connection for a thyroid disability, on a direct or presumptive basis, is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is the against the claim, that doctrine is not applicable. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board F. Yankey, 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.