Citation Nr: A21020563 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 211112-199846 DATE: December 27, 2021 ORDER Entitlement to service connection for thyroid cancer, to include as due to exposure to an herbicide agent, is denied. Entitlement to an initial compensable rating for hypothyroidism is denied. FINDINGS OF FACT 1. The Veteran's thyroid cancer was not caused or aggravated by his service connected hypothyroidism, did not have its onset in service or for many years thereafter, and is not otherwise related to service, to include as due to exposure to an herbicide agent. 2. The Veteran's hypothyroidism symptomatology does not more nearly approximate hypothyroidism with myxedema. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for thyroid cancer have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. 2. The criteria for an initial compensable rating for service connected hypothyroidism have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.119, Diagnostic Code (DC) 7903. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1954 to September 1975 with service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2021 and August 2021 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) which, respectively, granted service connection for hypothyroidism evaluating it as noncompensable, and continued its denial of service connection for thyroid malignant neoplasm. On August 23, 2017, the President signed into law the Appeals Modernization Act (AMA). This law creates a framework for Veterans dissatisfied with VA's decision on their claim to seek review. In November 2021, the Veteran filed two VA Form 10182, Decision Review Request: Board Appeals (Notices of Disagreement), requesting Direct Review, and indicating that he would not submit additional evidence in support of his appeal. Accordingly, pursuant to 38 C.F.R. § 20.202(b)(1), the Board will only consider the evidence of record as of the date of the May 4, 2021, and August 11, 2021 rating decisions. This decision has been written consistent with this AMA framework. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (b). If a veteran was exposed to an herbicide agent, such as Agent Orange, during active service, service connection will be presumed for certain diseases which are listed at 38 C.F.R. § 3.309 (e), if the requirements of 38 C.F.R. § 3.307 (a) are met, even if there is no record of such disease during service. 38 U.S.C. § 1116(f); 38 C.F.R. §§ 3.307(a) (6) (iii), 3.307(e). For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran who, during active military, navel, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116 (f). Malignant Neoplasm The RO's favorable findings, by which the Board is bound, include that the Veteran performed service in Vietnam, thus exposure to herbicides is conceded; and that the Veteran has a diagnosis of thyroid cancer. The Veteran's service treatment records do not indicate that he was treated for thyroid cancer or thyroid cancer symptomatology during service. His June 1975 medical examination report is normal with the exception of bursitis rales left to right. A March 2021 VA examination report reflects that the Veteran's thyroid nodule was discovered in 2008 which was treated with total thyroidectomy followed by radioiodine ablation. The Veteran did not report any thyroid problems or medications prior to 2007. The Veteran's diagnosis in 2008 was of papillary thyroid cancer, and the examination report indicated that since treatment, the Veteran suffers from thyroid endocrine dysfunction. The physician opined that the Veteran's thyroid cancer was less likely than not (less than a 50 percent probability) incurred in, or caused by the claimed in-service injury, event, or illness, stating that there is no evidence of thyroid cancer during military service, noting that it was first diagnosed in 2008, 33 years after retirement. The physician also reiterated that the Veteran denied a history of a thyroid condition or thyroid medication prior to 2007 to support her opinion. In a July 2021 addendum opinion, the physician opined that the Veteran's papillary carcinoma of the thyroid was less likely than not (less than a 50 percent probability) caused by any in-service event, injury, disease, or disorder, or in any way originated during service, including as a result of the Veteran's presumed exposure to herbicide agents. She again noted that the Veteran denied thyroid issues prior to 2008, and that his incidental nodule in the right lobe of the thyroid was discovered 33 years after military service making it less likely than not that the cancer was incurred in active service. The physician reported that there is insufficient evidence in the medical literature to support the argument that herbicides cause papillary thyroid cancer. She also concluded that there is insufficient evidence in the service treatment records of causative risk factors for papillary thyroid cancer. The physician additionally opined that the Veteran's papillary carcinoma of the thyroid was less likely than not (less than a 50 percent probability) proximately due to, or the result of his hypothyroidism as there is no history of hypothyroidism prior to his diagnosis of papillary thyroid cancer. The Board notes that for secondary service connection to be warranted, there is no temporal requirement that the primary disability be service connected or diagnosed at the time the secondary condition is incurred, See Frost v. Shulkin, 29 Vet. App. 131, 133 (2017). However, the physician, after reviewing the treatment records, concluded that there was no history of hypothyroidism, indicating that there was not only no diagnosis, but no hypothyroidism symptomatology prior to the Veteran's diagnosis of papillary thyroid cancer. She also stated that his papillary thyroid cancer was less likely than not (less than a 50 percent probability) aggravated by hypothyroidism, explaining that the Veteran has not had a recurrence of papillary thyroid cancer since 2010, and has in fact been cancer free for the past 11 years which does not support the contention of aggravation of papillary thyroid cancer. Considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for thyroid cancer. Initially, the Board notes that thyroid cancer is not among those on the list of diseases presumed service connected in veterans exposed to herbicide agents. While service connection may still be established on a direct basis, see 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a Veteran from establishing service connection with proof of actual direct causation), the July 2021 physician opined that the Veteran's thyroid cancer is less likely than not (less than a 50 percent probability) related to military service, including as due to exposure to Agent Orange, referring to treatise material which indicates that there is insufficient evidence to support a correlation between exposure to Agent Orange and the development of thyroid cancer. Additionally, the July 2021 physician concluded that the Veteran's thyroid cancer was less likely than not caused or aggravated by his service connected hypothyroidism, and that it was not otherwise related to service. The physician provided a thorough rationale to support her opinions based on an accurate characterization of the evidence of record. Therefore, her opinions are afforded significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no contrary medical opinion in the evidence of record, and the evidence does not otherwise indicate that the Veteran's thyroid cancer is related to Agent Orange exposure, or any injury, event, or disease in service. In addition, although malignant tumors are chronic diseases for which service connection is warranted if they manifest in service or the one year presumptive period, the above reflects that there is no evidence or argument suggesting such manifestation, as the first indication of thyroid cancer occurred 33 years after service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). Therefore, service connection for thyroid cancer as a chronic disease is not warranted. The Board acknowledges the Veteran's contention that his thyroid cancer is due to Agent Orange exposure in service. However, while the Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The record does not show, nor does the Veteran contend, that he has specialized education, training, or experience that would qualify him to render a diagnosis or render a medical opinion on this matter. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the issue in this case is outside the realm of common knowledge of a lay person because it involves a complex medical issue that goes beyond a simple and immediately observable cause-and-effect relationship. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). Thus, the Veteran's statements in this regard are not competent and are afforded no probative weight. For the above reasons, the evidence is thus neither evenly balanced nor approximately so with regard to whether service connection for thyroid cancer is warranted. Rather, the evidence persuasively weighs against this claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3, is therefore not for application. Lynch v. McDonough, __ F.4th __, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). RATINGS Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Hypothyroidism The Veteran contends that his hypothyroidism, currently rated noncompensable, warrants a higher rating. The diagnostic code for hypothyroidism, DC 7903, was revised effective December 10, 2017. 82 Fed. Reg. 50806 (Nov. 2, 2017). Because this revision occurred prior to the instant claim, only the revised version can be applied. Ervin v. Shinseki, 24 Vet. App. 318, 322 (2011) (citing Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003)) (discussing the analysis to be undertaken when a regulation is changed during the pendency of a claim). Under DC 7903 of the revised version, a 30 percent rating is warranted for hypothyroidism without myxedema. Note 2 following this section in the DC indicates that this rating is to continue for 6 months after initial diagnosis. Thereafter, residuals of disease or medical treatment are to be rated under the most appropriate diagnostic code(s) within the appropriate body system. Note 3 indicates that if there also is eye involvement (exophthalmos, corneal ulcer, blurred vision, or diplopia), it is to be separately rated under the most appropriate DC of 38 C.F.R. § 4.79. 38 C.F.R. § 4.119, DC 7903. A 100 percent rating is warranted for hypothyroidism manifesting as myxedema (cold intolerance, muscular weakness, cardiovascular involvement (including, but not limited to, hypotension, bradycardia, and pericardial effusion), and mental disturbance (including, but not limited to, dementia, slowing of thought and depression)). Note 1 following this section in the DC indicates that this rating is to continue for 6 months beyond the date an examining physician has determined crisis stabilization. Thereafter, residual effects are to be rated under the appropriate diagnostic code(s) within the appropriate body system. September 2019 VA treatment records reflect that the Veteran takes medication to treat hypothyroidism. The Veteran's March 2021 VA examination report reflects that he has a 2008 diagnosis of hypothyroidism. The VA examination report indicates that the Veteran has thyroid endocrine dysfunction, but has no current findings, signs, or symptoms attributable to a thyroid condition, a hypothyroid condition, or a hyperthyroid condition. There were no findings of a thyroid enlargement, and the Veteran had no diagnosis of thyroiditis. The examining physician noted that the Veteran did not have any findings, signs, or symptoms attributable to a parathyroid condition, a hyperparathyroid condition, or hypoparathyroid condition. The Veteran did not have a benign or malignant neoplasm or metastases related to his hypothyroidism, but did likely have a residual scar. Laboratory testing was normal, and the Veteran did not have any other pertinent physical findings, complications, conditions, signs, or symptoms related to his hypothyroidism. The physician opined that the Veteran's hypothyroidism did not impact his ability to work. The evidence thus reflects that a higher, compensable rating is not warranted for the Veteran's hypothyroidism under DC 7903. While the September 2019 treatment records reflect that the Veteran takes medication to treat hypothyroidism, there was no indication that without the medication there would be residuals of disease or medical treatment warranting a compensable rating and the Board has therefore not considered any ameliorative effects of the medication. Cf. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) ("the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria"). The March 2021 examination report notes no findings, signs, or symptoms of a hypothyroid or hyperthyroid condition. The Veteran's laboratory testing was normal, and there were no symptoms noted related to hypothyroidism. As the evidence reflects that the Veteran does not have any signs or symptoms of hypothyroidism, his symptomatology does not more nearly approximate hypothyroidism without myxedema, thus a higher 30 percent rating is not warranted. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if "§ 3.321(b) (1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board" (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). The evidence is thus neither evenly balanced nor approximately so with regard to whether an initial compensable rating is warranted. Rather, the evidence persuasively weighs against an initial compensable rating for hypothyroidism. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3, is therefore not for application as to this claim. Lynch v. McDonough, __ F.4th __, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.