Citation Nr: 21071985 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 08-34 311 DATE: December 1, 2021 ORDER Entitlement to service connection for a thyroid disability, to include as due to radiation or chemical exposure is granted. Entitlement to service connection for sleep apnea, to include as secondary to a thyroid disability is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his thyroid disability is at least as likely as not related to radiation and/or chemical exposure in service. 2. Resolving reasonable doubt in the Veteran's favor, his sleep apnea was caused by his service-connected thyroid disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a thyroid disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for sleep apnea as secondary to a service-connected thyroid disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1968 to March 1971. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded by the Board for further adjudication in September 2012, January 2017, May 2018, and September 2020. 1. Entitlement to service connection for a thyroid disability, to include as due to radiation or chemical exposure The Veteran contends that his thyroid disability is related to his in-service exposure to ionizing radiation and chemical solvents, to include trichloroethylene (TCE). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, there must be (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As to disease or injury caused by radiation exposure, service connection may also be established in one of two other ways. Combee v. Brown, 34 F.3d 1039, 1043-5 (Fed. Cir. 1994). First, if a Veteran participated in service in a radiation-risk activity (as defined by statute and regulation) and, after service, developed one of the specifically enumerated cancers, it will be presumed that the cancer was incurred in-service. 38 U.S.C. § 1112 (c); 38 C.F.R. § 3.309 (d). The list of the specifically enumerated cancers includes thyroid cancer. Id. The list of the specifically enumerated radiation-risk activities includes onsite participation at atmospheric nuclear tests; participation in the occupation of Hiroshima or Nagasaki, Japan during specific periods of time; and service at specific nuclear weapons production facilities. 38 C.F.R. §§ 3.309 (d)(3). Second, if a Veteran was exposed in service to ionizing radiation and, after service, developed one of the specifically enumerated diseases within a period specified for each by law, then his claim is referred to the Under Secretary for Benefits who must determine, based on the extent of the exposure, whether there is a reasonable possibility that the disease was incurred in-service. 38 C.F.R. § 3.311. The list of the specifically enumerated diseases includes thyroid cancer. The availability of presumptive service connection for a disability based on ionizing radiation exposure does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). At the outset, the Board notes the Veteran had a diagnosis of Hashimoto's thyroiditis and multinodular goiter for which the Veteran underwent a total thyroidectomy in November 2006. The pathology from that procedure revealed the Veteran had a papillary thyroid carcinoma, or thyroid cancer. See September 2011 Third Party Correspondence. The Veteran contends that his thyroid disability is related to his in-service exposure to ionizing radiation and chemical solvents, to include trichloroethylene (TCE). The Veteran's military personnel records show he was stationed at Fort Tilden, New York, which was noted to have a nuclear armed warhead and high explosive fragmentation warhead at the time the Veteran was stationed there. See September 2011 VA Memo. However, the Veteran's duties were that of a switchboard operator and equipment reports clerk. The Veteran's claim was referred to the Director of Compensation Services for a radiation review. He opined it was less likely than not that the Veteran's thyroid disability is the result of exposure to ionizing radiation during service. See October 2014 VA Memo. The Veteran's claim was also referred to the Under Secretary for Health who determined the Veteran's radiation exposure did not exceed 87.5 millisievert and that it was not a reasonable possibility that the Veteran's thyroid disability was incurred in service. Therefore, the Board finds the Veteran is not entitled to presumptive service connection for his thyroid disability based on radiation exposure in service. The Veteran did not participate in radiation-risk activities as defined in 38 C.F.R. §§ 3.309 (d)(3). In addition, the Under Secretary for Benefits determined it was not a reasonable possibility that the disease was incurred in-service. 38 C.F.R. § 3.311. Next, as noted above, the availability of presumptive service connection for a disability does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl, supra. The Veteran's service treatment records and January 1971 separation examination are silent for complaints of treatment, diagnoses, or complaints of a thyroid disability. In support of his claim, the Veteran submitted two private positive nexus opinions which link the Veteran's thyroid disability with chemical and radiation exposure in service. See May 2015 Letter from Dr. R.P. and September 2011 Third Party Correspondence. In contrast, May 2021, February 2021, and October 2019 VA opinions find it was less likely than not that the Veteran's thyroid disability is due to service, to include radiation and chemical exposure. However, the Board gives less weight to the February 2021 VA opinion as it is merely a conclusory statement that the Veteran's thyroid disability is not due to service without any accompanying rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). In addition, the Board previously found the October 2019 VA opinion inadequate for adjudicatory purposes as the opinion is not clear. See September 2020 BVA Decision. As such, the Board does afford it much probative value. The Board can not remand this case indefinitely. Given the above, the Board finds the evidence is in relative equipoise as to whether the Veteran's thyroid disability is due to radiation and chemical exposure in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds service connection for a thyroid disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for sleep apnea, to include as secondary to a thyroid disability The Veteran seeks service connection for his sleep apnea he contends is secondary to his service-connected thyroid disability. Service connection may be granted on a secondary basis for a condition that is not directly caused by the Veteran's service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b). The Veteran has a current diagnosis of sleep apnea. See July 2015 VA Examination. The July 2015 VA examiner indicated the Veteran's thyroid disability and weight caused his sleep apnea. In addition, a June 2020 treatment record noted the Veteran's sleep apnea was initially diagnosed due to an obstructing thyroid mass. In contrast, the February 2021 VA examiner and May 2021 VA examiners provided negative nexus opinions. However, the Board affords the February 2021 VA opinion no probative value as to the question of secondary service connection because the examiner only offered an opinion as to direct service connection. Given the above, the Board finds the evidence is in relative equipoise as to whether the Veteran's thyroid disability caused the Veteran's sleep apnea. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds service connection for sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.310. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe, 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.