Citation Nr: A21020524 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 211124-200663 DATE: December 27, 2021 ORDER Entitlement to service connection to thyroid cancer, to include as secondary to diabetes mellitus, type II, is denied. FINDING OF FACT The Veteran's thyroid cancer was not shown in service and is otherwise unrelated to active-duty service, including as secondary to his service-connected diabetes mellitus, type II. CONCLUSION OF LAW The criteria for entitlement to service connection to thyroid cancer, to include as secondary to diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to July 1971. Within the framework of the AMA, in November 2021, the Veteran submitted VA Form 10182, Decision Review Request Board Appeal (Notice of Disagreement) and elected Direct Review by a Veterans Law Judge. 38 C.F.R. § 19.2(d). In this regard, the Board notes that under the direct review option, no new evidence can be submitted in support of the Veteran's claim. The Veteran was informed of this both on the VA Form 10182 itself and in a November 30, 2021 letter from VA. No new evidence other than an appellate brief, which can be reviewed under the AMA rules governing propriety of review of evidence. Service Connection The law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Entitlement to service connection to thyroid cancer, to include as secondary to diabetes mellitus, type II The Veteran is seeking service connection for thyroid cancer. Specifically, he asserts that his thyroid cancer is secondary to his service-connected diabetes mellitus, type II, he has not attested to any other theory of entitlement for his thyroid cancer. After a review of the evidence of record, the Board finds that the Veteran's claim should be denied. As an initial matter, the Veteran's service treatment records are silent for any indications of thyroid cancer. Additionally, the Veteran has not claimed that his thyroid cancer began during active-duty service. In fact, the Veteran was first diagnosed with thyroid cancer in October 2020. Therefore, it is clear that there were no continuous thyroid symptoms since service. Indeed, the Veteran has not claimed, nor is there evidence to support a finding of continuous thyroid cancer symptoms since active-duty service. Next, service connection may nevertheless be established if a relationship is otherwise demonstrated by sufficient competent evidence, including medical evidence and opinions. In this case, the Board places significant probative value on the opinion from the December 2020 VA examiner. In the December 2020 examination report, the examiner noted that they reviewed the Veteran's e-folder. The examiner opined that the Veteran's diabetes and thyroid cancer are completely separate and independent of each other. Further, the examiner noted that there was no evidence of multiple and creatinine neoplasia syndromes, and thus no association between the two disorders at this time. The appellate brief submitted by the Veteran's representative included some medical arguments suggesting a link between diabetes mellitus and thyroid cancer. However, the main conclusion of the arguments was that having diabetes mellitus, type II, may play a role in thyroid cancer risk. While this may be true, this does not assert that thyroid cancer is at least as likely as not related to diabetes. Moreover, under AMA, there is no basis to remand the claim for a VA examiner to review this evidence, as it was not of record at the time the claim was reviewed by the RO, and there is no evidence that there was an error in VA's duty to assist. If the Veteran wishes this evidence to be considered by the RO or a VA examiner, he should submit a supplemental claim. If a supplemental claim is submitted within a year of this decision, the claim will be considered "continuously pursued" and his original effective date may be preserved. Moreover, this included argument is far less conclusive than the opinion of the VA examiner and carries little weight. There is no indication that the VA examiner did not perform a detailed review of Veteran's specific medical history and general medical literature regarding diabetes mellitus, type II, and thyroid cancer. Therefore, there is no indication of a deficient examination or any other duty to assist error which would necessitate a remand in this instance. As part of this claim, the Board recognizes the statements from the Veteran and his representative regarding the claimed relationship between his thyroid cancer and diabetes mellitus, type II. Nevertheless, while the Veteran and his representative are competent to provide testimony regarding observable symptomatology, they are not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377 n.4. Therefore, the unsubstantiated statements regarding the etiology of the Veteran's thyroid cancer are found to lack competency. As a final matter, the Board is aware of the Veteran's exemplary service, especially in the Republic of Vietnam. As such, he is presumed to have been exposed to toxic herbicides. Indeed, it appears that a number of his service-connected disabilities were granted based on such exposure. See 38 C.F.R. §§ 3.307, 3.309. It should be noted that, pursuant to the National Defense Authorization Act for Fiscal Year 2021, hypothyroidism was added as a disease associated with exposure to herbicide agents. See Pub. L. 116-283 ; 38 U.S.C. § 1116 (a)(2). However, hypothyroidism was specifically not diagnosed at the Veteran's December 2020 VA examination, and there is no clinical evidence of record linking the Veteran's thyroid cancer to his toxic herbicide exposure. Therefore there is insufficient to grant service connection on this basis. However, as mentioned above, the Veteran is free to submit additional supporting evidence in a supplemental claim, if he so chooses. In light of the above discussion, the Board concludes that the preponderance of the evidence is against his claim of service connection and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Veteran's appeal is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor