Citation Nr: 21014577 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-03 417 DATE: March 15, 2021 ORDER Entitlement to service connection for a thyroid condition, as due to radiation exposure is denied. FINDING OF FACT The Veteran’s thyroid condition did not have its onset in service, or manifest within a year of service, or presumed to be exposed to ionizing radiation or is otherwise related to active duty. CONCLUSION OF LAW The criteria for service connection for a thyroid condition, as due to exposure to ionizing radiation, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1968 to October 1976. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board remanded the issues on appeal for additional development. The Board finds that the Regional Office (RO) substantially complied with the Board’s remand instructions and an additional remand to comply with the Board’s directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded sc claims for basal cell carcinoma, coronary artery disease, a thyroid disorder, cataracts, and ulcerative colitis. The RO subsequently granted sc for ulcerative colitis. The claims for basal cell carcinoma, coronary artery disease and cataracts are no longer in the legacy appeal system as the Veteran opted in October 2020 to have them considered under the Appeals Modernization Act. Therefore, only the claim for service connection for a thyroid disorder remains in the legacy appeal system. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also 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). Establishing service connection generally requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence, which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony maybe heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a thyroid condition as due to radiation exposure The Veteran contends he was exposed to radiation because he was a radar operator and crew chief in the Army. The Veteran stated that he handled vacuum tubes, which were present in the equipment he used as a radar operator. He stated that there was no protocol to check or test the exposure levels of the people working on those sites. The Veteran contends that he was exposed to TCE and PCB. Presumption Service connection for a disability based on ionizing radiation exposure during service may be established in one of three ways: (a) presumptively service connected under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d) for radiation -exposed veterans, (b) directly service connected after specified development procedures are conducted under the special framework of 38 C.F.R. § 3.311 if the claimed condition is a radiogenic disease, or (c) directly service connected by showing that the disease was incurred in, or aggravated by, service. In March 2014, the Army Dosimetry Center submitted a letter indicating that they were unable to locate any records that demonstrated that the Veteran was exposed to radiation during service. A "radiation-exposed Veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. The term "radiation-risk activity" includes (1) on-site participation in a test involving the atmospheric detonation of a nuclear device; (2) the occupation of Hiroshima or Nagasaki, Japan, during the period beginning on August 6, 1945, and ending on July 1, 1946; (3) internment as a prisoner of war of Japan during World War II resulting in an opportunity for exposure to radiation comparable to those occupying Hiroshima or Nagasaki; and (4) certain service on the grounds of a gaseous diffusion plant in Paducah, Kentucky, Portsmouth, Ohio, or at area K25 at Oak Ridge, Tennessee; or certain service on Amchitka Island, Alaska. See 38 C.F.R. § 1112(c)(3)(B); 38 C.F.R. § 3.309(d)(3)(ii). The Veteran did not participate in any of these activities, and thus is not a radiation exposed veteran. A veteran is entitled to special development under 38 C.F.R. § 3.311 if such veteran has a radiogenic disease as listed under 38 C.F.R. § 3.311(b)(2)(i)-(xxiv), and such disease was manifested during specified periods as defined in 38 C.F.R. § 3.311(b)(5). After such development, if it is determined that the Veteran as exposed to ionizing radiation and subsequently developed a radiogenic disease that manifested during the specified period, the claim should be forwarded to the Under Secretary for Benefits for consideration of the claim. The Under Secretary for Benefits, after a consideration of the factors of the case, may then request an advisory medical opinion from the Under Secretary for Health. The duty to obtain an advisory opinion under 38 C.F.R. § 3.311 not only applies to radiogenic diseases listed in 38 C.F.R. § 3.311(b)(2), but also to any other disorder when a claimant cites or submits competent scientific or medical evidence that the claimed disease "may be induced by ionizing radiation" under 38 C.F.R. § 3.311 (b)(4). See 67 Fed. Reg. 6,870 (Feb. 14, 2002). The Veteran asserts that service connection for a thyroid condition is warranted because it was caused by exposure to radiation when he handled vacuum tubes and worked as a radar operator and crew chief in the Army. In November 2019, the Veteran was afforded a VA examination for a thyroid condition. The examiner stated that the Veteran does not have or ever has had a thyroid or parathyroid condition. The examiner explained that there is no objective evidence to support a thyroid condition at this time. In December 2019, the examiner clarified stating that the Veteran has had a cold thyroid nodule associated with cystic type lesion, and that the Veteran had an ultrasound, and a biopsy that was benign. But the Veteran does not have any current findings, signs or symptoms attributable to a thyroid condition. Thus, the Veteran is not considered to be a “radiation-exposed Veteran” as defined by 38 C.F.R. § 3.309(d)(3). The Veteran cannot he establish presumption under a radiogenic disease described by 38 C.F.R. § 3.311(b)(4) and the provisions of 38 C.F.R. § 3.311 do not apply in this case. Thus, a presumption of ionizing radiation exposure is not appropriate. Direct Service Connection The Veteran contends that his thyroid condition is the result of active service. 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran had a biopsy of his left nodule in his thyroid in 2014, the preponderance of the evidence weighs against finding that the Veteran has a thyroid condition that began during service or is otherwise related to an in-service injury, event, or disease. The Veteran’s service treatment records do not contain complaints, treatment, or diagnosis for a thyroid condition. In December 2014, the Veteran had a biopsy of his left thyroid lobe nodule. The pathology report states benign findings. In 2015, the Veteran had a notation that he had a “thyroid nodule cold.” In November 2019, the Veteran was afforded a VA examination for a thyroid condition. The examiner stated that the Veteran does not have, or ever has had a thyroid or parathyroid condition. The examiner explained that there is no objective evidence to support a thyroid condition at this time. The examiner notes that the Veteran reported that during another procedure he was told that he may have a problem with his thyroid. He had labs performed in November 2019 that indicated that his TSH=1.06, T3=2.9, and T4=1.42. The examiner noted that the Veteran does not currently have any findings, signs or symptoms of a thyroid or parathyroid condition. The Veteran did not have any findings of a thyroid enlargement. The examiner stated that the Veteran’s neck was normal, no palpable thyroid enlargement or nodules. The examiner opined that the Veteran’s thyroid disorder did not have an onset in service or manifested within one year of service or was related to any in-service disease, event, or injury. The examiner stated that the Veteran’s medical records do not indicate an onset during service, and the condition did not manifest within a year of service or is related to any in-service disease, event or injury. The examiner explained that she could not locate any complaints of a thyroid condition in the Veteran’s records, and the Veteran’s current lab results were negative for a thyroid condition. In December 2019, the November 2019 examiner provided an addendum opinion clarifying her results. She acknowledged that the Veteran had a previous thyroid condition. Specifically, that that in 2013 the Veteran had a “cold thyroid nodule associated with cystic type lesion on the left needs to be followed at 6-12 months, according to radiology report.” The examiner also noted that in 2014 the Veteran had an ultrasound and the later a biopsy of his left nodule. The ultrasound report noted, “Multiple thyroid gland nodules seen on ultrasound on 12/16/14. Larger heterogeneous nodule in the left hilar lobe.” The biopsy was benign. The examiner noted that the Veteran does not have any current signs or symptoms attributable to a thyroid condition. The examiner opined that it is less likely than not that the Veteran’s history of multiple thyroid gland nodules had its clinical onset during service, or were manifest within one year of service and are less likely than not related to any in-service disease, event or injury. The examiner reiterated that there were no service treatment records that noted any thyroid problems, and his separation examination did not note any thyroid problems. The examiner also explained that the lab work regarding the Veteran’s thyroid in November 2019 was normal. The examination report also noted that the Veteran does not have any findings, signs or symptoms attributable to a thyroid condition. The Board acknowledges that the Veteran is competent to report observable symptoms, but the Veteran has not reported any symptoms. The Veteran has only reported that while undergoing a different procedure a doctor told him that he may have a thyroid problem. Consideration has also been given to the Veteran’s personal assertion that he has a thyroid condition related to active service. However, while lay persons are competent to provide opinions on some medical issues, See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disability at issue is not a condition that is readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board considered the lay evidence, treatment records, and the November 2019 and December 2019 VA examinations and concluded that is less likely than not that the Veteran’s thyroid condition had its onset during service, or manifested within one year of service and was related to any in-service disease, event or injury. The Board affords the November 2019 and December 2019 VA examiner’s opinions the most probative evidence because the medical examiner’s reports contained not only clear conclusions with supporting data, but also reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner explains that the Veteran does not have any findings, signs or symptoms attributable to a thyroid condition. In addition, there is no conflicting VA or private opinion in the record that suggests that the Veteran has a thyroid condition related to service. Furthermore, the Veteran has not offered probative and competent medical evidence establishing a nexus between a thyroid disorder and service exists. (Continued on the next page)   Absent competent, credible, and probative evidence of a nexus between the Veteran’s service and a thyroid disorder, the Board finds that a thyroid disorder was not incurred in service, manifested within a year of service, and is not otherwise related to active service. Accordingly, service connection for a thyroid disorder is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence weighs against the claim, it is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.