Citation Nr: 21074687 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-46 094 DATE: December 16, 2021 REMANDED Entitlement to service connection for papillary thyroid cancer is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1970 to August 1971, including in the Republic of Vietnam during the Vietnam Era. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO). The Board previously remanded this matter in April 2019 for a medical opinion on the etiology of the Veteran's papillary thyroid cancer. Entitlement to service connection for papillary thyroid cancer is remanded. The Veteran asserts his papillary thyroid cancer condition is due to exposure to herbicide agents, including Agent Orange. See January 2015 Claim. As the Veteran served in Vietnam during the Vietnam Era, he is presumed to have been exposed to herbicide agents. See 38 U.S.C. §1116(f); 38 C.F.R. § 3.307(a)(6)(iii). An April 2019 VA examiner found the Veteran had a history of malignant neoplasm of the thyroid, first diagnosed in 2014. Unfortunately, another remand is required to ensure substantial compliance with the Board's previous remand directives. Stegall v. West, 11 Vet. App. 268, 271 (Vet. App. 1998). In the April 2019 remand, the Board posed several questions to the VA examiner, including asking what is the likely etiology of the Veteran's thyroid cancer and is it at least as likely as not (50 percent or better probability) that the cancer is related to his military service, to include exposure to Agent Orange. The remand directive also directed the examiner to discuss literature provided by the Veteran in June 2015, which links the chemical Dioxin (found in Agent Orange, according to the literature) and certain cancers, including thyroid cancer. See June 2015 receipt of Case Study: Dioxin. The remand directive concludes by instructing the examiner to identify the likely etiology of the Veteran's thyroid cancer if it is not related to service. In November 2019, the Veteran was afforded a VA medical examination that concluded his thyroid cancer was less likely than not (less than 50% probability) related to his service. The opinion reasoned only that Agent Orange exposure is not considered a risk factor for this condition, and that thyroid cancer is not one of the presumptive service connection conditions for Agent Orange exposure. See November 2019 VA Examination. The opinion neither discussed the literature provided by the Veteran, nor opined on the likely etiology of the Veteran's thyroid cancer as instructed. A remand is thus necessary, as the Veteran is entitled to substantial compliance with the Board's previous remand directives. See Stegall, 11 Vet. App. at 271. Additionally, because the National Academies of Sciences, Engineering & Medicine's (NAS) report, Veterans and Agent Orange: Update 2014 (10th Biennial Update 2016) (NAS Update 2014) was not associated with the file, the examiner could not consider or discuss it. See Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021) (indicating that the VA is in constructive possession of the NAS 2014 Update and should consider it when it is relevant and reasonably connected to the claim). A quick review of the NAS report reveals that there are multiple mentions of thyroid cancer. Here, as the Board finds that the NAS report's discussion of a possible link between thyroid cancer and herbicide exposure is relevant and reasonably connected to the claim, the examiner should consider and discuss it. Moreover, even if there is no link between herbicide agent exposure and thyroid cancer, service connection for the Veteran's thyroid cancer may still be established on the basis of direct causation (by affirmative proof of such). See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Also, certain chronic diseases, including malignant tumors (cancer), may be presumed to have been incurred in if manifested to a compensable degree within a specified period following discharge from service (one year for malignant tumors). See 38 U.S.C. §§1101, 1112; 38 C.F.R. §§3.307, 3.309. The November 2019 VA examiner was silent on direct service connection other than related to Agent Orange exposure. Finally, the previous examiner was asked to opine if it was "at least as likely as not" (a 50 percent or greater probability) that the Veteran's thyroid cancer was connected to service. This language found in the previous remand entitled the Veteran to the benefit of the doubt if the evidence was in equipoise. Following direction from the United States Court of Appeals for the Federal Circuit in Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), the proper standard of review is whether the factors are in an "approximate balance." Lynch held that the Veteran is entitled to the benefit of the doubt when the evidence is in an approximate balance i.e. nearly equal and does not require the evidence to be in exact equipoise. Id. The matters are REMANDED for the following action: 1. The Decision Review Operations Center (DROC) should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. The DROC should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. 2. The DROC should obtain and associate a copy of the National Academies of Sciences, Engineering & Medicine's (NAS) report, Veterans and Agent Orange: Update 2014 (10th Biennial Update 2016) (NAS Update 2014) with the claims file as the Board finds VA has constructive possession of this document. See Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021). 3. After associating the documents with the file, the DROC should obtain a new opinion, to include a new examination if necessary (if and when the Veteran can attend one), as to the etiology of the Veteran's thyroid cancer. a. The medical professional should opine whether it at least as likely as not (an approximate balance of negative and positive evidence) the Veteran's thyroid cancer began during service, manifested within a year of service, or was otherwise caused by events during the Veteran's military service, including due to exposure to herbicide agents. A complete opinion will discuss the literature provided from the Veteran entitled Case Study: Dioxin, as well as the 2014 NAS report. See June 2015 receipt of Case Study: Dioxin; National Academies of Sciences, Engineering & Medicine's report, Veterans and Agent Orange: Update 2014 (10th Biennial Update 2016). If the medical professional determines that the Veteran's thyroid cancer is unrelated to his herbicide agent exposure, the medical professional should cite to relevant medical literature supporting that determination. b. As detailed in the last remand, if the medical professional should determine that the thyroid cancer is unrelated to service, the medical professional should identify the more likely etiology. The medical professional should include rationale for all opinions. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Maisel, S. Alexander 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.