Citation Nr: 21074755 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-44 225 DATE: December 16, 2021 ORDER Entitlement to service connection for a thyroid tumor is denied. REMANDED Entitlement to service connection for a right hip condition is remanded. Entitlement to service connection for a left hip condition is remanded. Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for a deviated septum is remanded. Entitlement to service connection for a sinus condition is remanded. Entitlement to service connection for a sleep condition is denied. FINDING OF FACT The preponderance of the evidence is against finding that a thyroid condition began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a thyroid condition, to include as a result of exposure to ionizing radiation, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 2010 to September 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Board remanded the claims for additional development. The Board notes that additional VA medical records were received after the last Supplemental Statement of the Case (SSOC) in August 2021. However, the evidence is cumulative, and waiver is not necessary. With respect to the Veteran's claim for obstructive sleep apnea, a review of the medical record shows the Veteran has not been diagnosed with sleep apnea. However, she has presented with complaints of insomnia and sleep disturbances. Under Clemons, the Board finds her claim should be expanded to also include insomnia, as insomnia is reasonably related to general sleep disabilities. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by different methods. See 38 U.S.C. § 1112 (c); 38 C.F.R. § 3.309 (d); Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service connected, specific to radiation-exposed veterans. 38 U.S.C. § 1112 (c); 38 C.F.R. § 3.309 (d). Second, when a "radiogenic disease" first becomes manifest after service, and it is contended that the disease resulted from exposure to ionizing radiation during service, various development procedures must be undertaken in order to establish whether or not the disease developed as a result of exposure to ionizing radiation. 38 C.F.R. § 3.311 (a)(1). Third, even if the claimed disability is not listed as a presumptive disease under 38 C.F.R. § 3.309 (d) or as a radiogenic disease under 38 C.F.R. § 3.311, service connection must still be considered under 38 C.F.R. § 3.303 (d) in order to determine whether the disease diagnosed after discharge was incurred during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 1. Entitlement to service connection for a thyroid tumor The Veteran seeks service connection for a thyroid tumor. She contends that her thyroid tumor is related to radiation that she was exposed to as part of her duties during active service. First, hypothyroidism and/or thyroid nodule are not one of the diseases set forth in 38 C.F.R. § 3.309(d) as presumptively related to radiation exposure. As to the second method for establishing service connection, the provisions of 38 C.F.R. § 3.311 provide for development of claims based upon a contention of radiation exposure during active service and post-service development of a radiogenic disease. The governing regulation essentially states that, in all claims in which it is established that a radiogenic disease first became manifest after service, and it is contended that the disease resulted from radiation exposure, a dose assessment will be made. Dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2). In this regard, 38 C.F.R. § 3.311(b) includes a list of "radiogenic disease" which will be service connected provided that certain conditions specified in that regulation are met. This list includes thyroid cancer, but does not include hypothyroidism or thyroid nodule. The April 2019 remand determined that the Veteran's MOS (military occupational specialty) was consistent with radiation exposure, and an estimated exposure level should be obtained. Pursuant to the remand, a dose estimate was obtained. The U.S. Army in an April 2021 letter did not confirm that the Veteran was exposed to ionizing radiation. It determined that there was no evidence of ionizing radiation dosimetry information, meeting the minimum monitoring threshold requirements of 5 millisieverts, for the Veteran's MOS. The letter indicated that personnel in the Veteran's MOS would be exposed to nonionizing microwave or radio frequency radiation. Thus, as the systems produced a form of non-ionizing radiation, and the Veteran did not have ionizing radiation exposure, the rules for service connection under 38 C.F.R. § 3.311 are not applicable. Simply put, the preponderance of the evidence is against finding that the Veteran was exposed to ionizing radiation. Service connection for a thyroid nodule or hypothyroidism can still be established by establishing that the condition is directly related to service. For the following reasons, the preponderance of the evidence is against so finding. Service treatment records are silent for complaints, diagnosis, or treatment of a thyroid condition. In June 2015, private treatment notes reflet that the Veteran appeared for evaluation of a thyroid nodule. The Veteran reported at about one month prior, she noticed a lump on the right side of her neck that was not present on the left. In November 2015, she appeared for a follow up of a thyroid nodule. Treatment notes indicated that the cyst had enlarged in size and was slightly tender. The Veteran had dysphagia, but no dyspnea. VA treatment notes from January 2017 show the Veteran reported that a thyroid lump. She indicated that she was seen outside VA, and that multiple biopsies showed it to be benign. She complained of pain at times. In March 2019, the Veteran presented for thyroid nodule and multiple complaints. The Veteran was afforded a VA examination in August 2020. The Veteran reported a thyroid condition diagnosed 8 or 9 years before, for which she took medication. The examiner diagnosed hypothyroidism and thyroid endocrine dysfunction. No symptoms were noted at the examination. The examiner opined the condition was less likely related to service, including as secondary to the Veteran's service-connected disabilities. The examiner explained that degenerative joint disease is related to uneven weight distribution and arthritis, while hypothyroidism is subnormal production of thyroid hormones that had no pathophysiological cause and effect. The Board finds that the VA examiner's opinion is competent and credible, and as such, entitled to significant probative weight. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The opinion was rendered after reviewing the Veteran's STRs and other medical records, soliciting a medical history from the Veteran, and conducting a physical examination and clinical testing of the Veteran. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the examiner's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). The VA examiner provided facts and rationale on which he based his opinion. Furthermore, neither the Veteran nor her representative has produced a medical opinion to contradict the conclusions of the VA examiner. As such, there is no competent medical evidence that relates the current thyroid condition to military service. The Board concludes that, while the Veteran has a diagnosis of a thyroid nodule and hypothyroidism, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. While the Veteran believes her thyroid condition is related to radiation exposure, the Board reiterates that the preponderance of the evidence weighs against findings that ionizing radiation exposure occurred. As the preponderance of the evidence is against finding that the Veteran was a "radiation-exposed veteran," or suggest that the thyroid nodule was present during service (either directly or presumptively) or otherwise due to service, the Board concludes that the preponderance of the evidence is against the claim of service connection for thyroid nodule. In such cases, the benefit-of- the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right hip condition is remanded. 2. Entitlement to service connection for a left hip condition is remanded. The Veteran seeks service connection for a bilateral hip condition. She contends that her hip condition is related to treatment for hip strain during active service. The Veteran reports that she injured her hips in a parachute landing fall (PLF) during active service. The Board remanded the claim in April 2019. The Board indicated an August 2017 VA opinion provided no rationale to support the conclusion that the Veteran's hip strain was unrelated to the inservice PLF. The Board also found that a question was presented whether the Veteran's hip strain is secondary to her bilateral knee arthritis. The Veteran was afforded a VA examination in January 2020. The examiner opined the Veteran's bilateral hip strain was less likely related to service. The examiner noted that the Veteran was seen for hip sprain in May 2011. She reiterated that there was no chronicity of care for more than 6 years after separation. She concluded that the medical literature does not support a nexus between the conditions. The examiner's rationale does not address the Veteran's lay report of ongoing hip pain since service. The examiner also did not provide a medical opinion with respect to whether the Veteran's bilateral hip condition was aggravated by her bilateral knee arthritis. The Board finds that there has not been substantial compliance with the remand directives and corrective action is necessary to obtain an addendum opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Entitlement to service connection for a deviated septum is remanded. The Veteran seeks service connection for a deviated septum. The Board remanded the claim in April 2019. The Board indicated that an August 2017 VA examination failed to provide a nexus opinion as to the etiology of the Veteran's deviated septum. The Veteran was afforded a VA examination in January 2020. At the exam, the Veteran reported sinus issues since 2011. She reported that during training she was punched in the nose, that the medic adjusted her nose, and she went back to her unit. The examiner opined the Veteran's deviated septum is less likely related to service. The examiner noted a visit in 2017, but indicated this was more than 5 years after separation from service. The rationale provided shows that the examiner merely relied on the lack of evidence documented in the service treatment records to support the negative opinions and did not consider the Veteran's lay statements regarding an in-service injury and symptomatology. A medical opinion based solely on the absence of documentation in the service treatment records or that fails to take into account lay statements is inadequate. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006) (VA examiner's opinion inadequate that relied on the absence of contemporaneous medical evidence); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). For these reasons, an addendum opinion is required. Stegall v. West, 11 Vet. App. 268 (1998). 4. Entitlement to service connection for a sinus condition is remanded. 5. Entitlement to service connection for a sleep condition is remanded. The Veteran seeks service connection for a sinus condition and sleep apnea. She asserts that her sinus and sleep conditions are secondary to her deviated septum. Because a decision on the remanded issue of service connection for a deviated septum could significantly impact a decision on the issues of service connection for a sinus condition and sleep condition, the issues are inextricably intertwined. A remand of the claims for a sinus condition and sleep condition is required. 6. Entitlement to service connection for migraine headaches is remanded. The Veteran seeks service connection for migraine headaches. The Board remanded the claim in April 2019. The Board indicated an August 2017 VA examination failed to address the Veteran's report of onset in 2012, or her report of continued headaches thereafter. Additionally, the Board found the examination failed to address how it was "clear and unmistakable" that headaches existed prior to service and were not aggravated. The Board determined in its remand that the evidence within the available service treatment records did not show the claimed headaches clearly and unmistakably existed prior to service. Pursuant to the Board's remand, the Veteran was afforded a VA examination in January 2020. The examiner reiterated that the Veteran's headaches clearly and unmistakably existed prior to service, and were not aggravated during service. In July 2021, a VA examiner provided a medical opinion addendum. After review of the claims file, the examiner opined that the evidence did not confirm the presence of a preexisting headache condition. However, no opinion was offered by the examiner on whether the Veteran's headaches arose during service or are otherwise related to service. For these reasons, an addendum opinion is required. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's bilateral hip condition is at least as likely as not related to a parachute fall injury or treatment for hip sprain in-service, or proximately due to or aggravated beyond its natural progression by service-connected bilateral knee arthritis. A complete rationale must be provided for all opinions expressed. The examiner is further advised that the opinion and rationale must reflect consideration of the Veteran's account of a hip injury during training and ongoing problems since that time. If the examiner is unable to provide the requested opinions, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's deviated septum is at least as likely as not related service, to include a reported nose injury during training in 2011. A complete rationale must be provided for all opinions expressed. The examiner is further advised that the opinion and rationale must reflect consideration of the Veteran's account of a nasal injury during training and sinus issues since service. If the examiner is unable to provide the requested opinions, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's headaches at least as likely as not arose during service or are otherwise related service. A complete rationale must be provided for all opinions expressed. The examiner is further advised that the opinion and rationale must reflect consideration of the Veteran's account of a nasal injury during training and sinus issues since service. If the examiner is unable to provide the requested opinions, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. N. NELSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Lauritzen, 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.