Citation Nr: 21013503 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 19-25 075 DATE: March 9, 2021 ORDER Entitlement to service connection for medullary thyroid cancer, to include as due to Agent Orange, is granted. FINDING OF FACT Affording the Veteran the benefit of the doubt, the Veteran’s thyroid cancer is causally related to his presumed exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for thyroid cancer have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1968 to May 1971. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from an August 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. This case has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c) (2019). Entitlement to service connection for medullary thyroid cancer, to include as due to Agent Orange The Veteran asserts entitlement to service connection for medullary thyroid cancer. Specifically, the Veteran contends that his thyroid cancer was caused by Agent Orange exposure during his service in Vietnam. See July 2018 Fully Developed Claim. 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). If a Veteran was exposed to an “herbicide agent,” such as Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam from January 9, 1962, to May 7, 1975, then, absent affirmative evidence to the contrary, certain diseases, will be presumptively service connected even if there is no record of the disease in service. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.307 (a)(6), (d), 3.309(e). The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). The record reflects that the Veteran was diagnosed with thyroid cancer in 2017. Further, the evidence of record reflects that the Veteran served in the Republic of Vietnam during his period of active service, and therefore the Veteran is presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307 (a)(6)(iii). Thus, the dispositive issue in this case is whether the Veteran’s thyroid cancer is causally related to service. As an initial matter, the Board notes that thyroid cancer is not one of the disabilities presumed to be related to herbicide agent exposure, and therefore a nexus cannot be presumed in this case. 38 C.F.R. § 3.309 (e). However, service connection may still be established on a direct basis if the competent and credible evidence establishes a direct link between the Veteran’s herbicide agent exposure and his thyroid cancer. Combee, 34 F.3d 1039. The Veteran has submitted a July 2018 physician’s note from Dr. R. B. stating that his thyroid cancer is at least as likely as not a result of exposure to Agent Orange. Dr. R. B. did not provide a rationale for linking the Veteran’s thyroid cancer to Agent Orange exposure. Thus, the opinion is afforded little probative weight. The Veteran has submitted a January 2019 physician’s note from Dr. J. R. documenting the Veteran’s biopsy of his tyroid and his total thyroidectomy in August 2018 and malignant lymph node removal in October 2018. Dr. J. R. reported that the Veteran’s thyroid cancer was metastatic to local lymph nodes at the time of his first surgery and is incurable. The Veteran was afforded a VA examination in July 2019. The VA examiner noted a diagnosis of medullary thyroid cancer in 2017 and thyroid surgery in 2018. Following review of the Veteran’s medical records and a physical examination, the VA examiner reported that it is impossible to determine if the Veteran’s thyroid cancer is incurred in or caused by Agent Orange exposure during service without resorting to speculation. A VA addendum opinion was provided in July 2019. The VA examiner opined that the Veteran’s thyroid cancer is less likely than not incurred in or caused by his active military service, including exposure to Agent Orange. In support of this opinion, the VA examiner reasoned that an extensive medical literature review fails to demonstrate a causal relationship between medullary thyroid cancer and Agent Orange exposure. The Veteran submitted another note from Dr. J. R. in August 2019. Dr. J. R. opined that the Veteran’s thyroid cancer is more likely than not caused by Agent Orange exposure in service. In support of her opinion, Dr. J. R. cited to two studies showing increased risk of thyroid cancer following exposure to Agent Orange. The Veteran has submitted copies of the cited studies. Based on the foregoing, the Board finds that the evidence of record is in relative equipoise regarding whether the Veteran’s thyroid cancer is causally related to his Agent Orange exposure during service. The July 2019 VA addendum opinion provided a negative nexus opinion while the August 2019 private medical opinion provided a positive nexus opinion. Both physicians reviewed the Veteran’s medical records, cited to competent medical evidence, and provided reasoned bases for their conclusions. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for thyroid cancer is warranted and the Veteran’s appeal is granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303; see Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. C. Slaughter, 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.