Citation Nr: 21021141 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 16-19 637A DATE: April 9, 2021 REMANDED Entitlement to service connection for thyroid cancer, to include as secondary to service-connected disease or injury and pursuant to 38 U.S.C. § 1151, is remanded. Entitlement to service connection for hypothyroidism, to include as secondary to service-connected disease or injury and pursuant to 38 U.S.C. § 1151, is remanded. Entitlement to service connection for a seizure disorder, to include as secondary to service-connected disease or injury and pursuant to 38 U.S.C. § 1151, is remanded. Entitlement to service connection for angioedema, to include as secondary to service-connected disease or injury and pursuant to 38 U.S.C. § 1151, is remanded. Entitlement to service connection for parathyroid adenoma (also claimed as hypoparathyroid), to include as secondary to service-connected disease or injury and pursuant to 38 U.S.C. § 1151, is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disease or injury, is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected disease or injury, is remanded. Entitlement to special monthly compensation (SMC) is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from September 2003 to November 2005. In November 2018, the Board of Veterans’ Appeals (Board) remanded the issues on appeal for evidentiary development. (The Board also remanded the issues of entitlement to radiculopathy of the upper extremities, as secondary to service-connected neck strain. These disorders have since been granted by the Agency of Original Jurisdiction (AOJ) and are no longer on appeal.) In December 2020, the Board issued a final decision with respect to four issues on appeal. In addition, the Board remanded the issue of entitlement to separate disability ratings for urinary and/or bowel incontinence, as secondary to the Veteran’s service-connected lumbar and cervical spine disabilities. That issue remains under development at the AOJ. 1. Entitlement to disability compensation for thyroid cancer, to include under theories of service connection and pursuant to 38 U.S.C. § 1151 The Veteran was first diagnosed with thyroid cancer in 2012 and underwent lobectomies in July 2012 (on the right) and April 2013 (on the left) at a VA medical facility. She has put forth several theories of entitlement for compensation for thyroid cancer. She initially claimed entitlement pursuant to 38 U.S.C. § 1151; the basis for this contention was her claim that she experienced a variety of unforeseeable complications as a result of the thyroidectomies. She then asserted that her thyroid cancer was secondary to various service-connected disabilities, including major depressive disorder. See 38 C.F.R. § 3.310. She further contends that her thyroid cancer should be service-connected on the basis of the chronic disease presumption provided in 38 C.F.R. §§ 3.307 and 3.309, as her medical records show that she developed a right thyroid nodule in 2006, less than one year after she was discharged from active duty; she argues this nodule was potentially malignant and the source of her cancer diagnosed six years later. The record includes numerous medical opinions addressing issues relating to secondary service connection, as well as an April 2016 opinion addressing the Veteran’s 38 U.S.C. § 1151 claim. In addition, a December 2019 VA medical opinion reflects the finding that there is no evidence of a diagnosis of thyroid cancer in service. However, it does not appear that VA has obtained a medical opinion addressing whether the thyroid nodule identified in 2006 reflected the onset of a malignant growth, or thyroid cancer. Notably, a December 2019 VA examination report indicated that the nodule identified in 2006 was initially thought to be benign but that six years later the same nodule was found to have grown, and was later determined to be malignant. The chronic disease presumption holds that certain diseases, including malignant tumors, which manifest within one year of separation from service will be considered service connected. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Accordingly, if the nodule identified in 2006 is found to be a precursor of malignant growth, service connection would seem to be warranted. The Veteran has specifically raised the contention that the nodule’s identification reflected the actual onset of her cancer. Unfortunately, there is no competent medical opinion of record addressing this contention. As such, the appeal must be remanded for a clarifying examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA provides a claimant with a medical examination or opinion, it must ensure that the examination or opinion is adequate). 2. Entitlement to disability compensation for potential complications from thyroid cancer, to include hypothyroidism, parathyroid adenoma, angioedema, and seizure disorder The Veteran contends that she developed numerous complications as a result of her thyroid lobectomies in July 2012 and April 2013, to include the claims listed above. As an initial matter, it has been established that hypothyroidism was a direct consequence of these procedures. However, the remaining conditions identified by the Veteran have been shown to have less certain, if not unknown, etiologies. Notwithstanding, the Veteran has provided detailed lay statements describing the onset of these conditions shortly after her lobectomies; she clearly believes the disorders to be related to her thyroid cancer and subsequent treatment. Accordingly, the Board finds that these claims are inextricably intertwined with the claim for disability compensation for thyroid cancer, and must therefore be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 3. Entitlement to service connection for obstructive sleep apnea and hypertension, to include as secondary to service-connected disease or injury The Veteran contends that she developed obstructive sleep apnea and hypertension as a result of obesity, which in turn was caused by various service-connected disabilities. Specifically, she asserted in her June 2017 VA Form 9 that her service-connected lumbar and cervical spine disabilities, depression, migraines, and lower extremity radiculopathy “have led to this increase in weight gain causing uncontrolled hypertension and OSA (sleep apnea).” (A March 2021 VA medical opinion demonstrates that obesity was a factor in the development of obstructive sleep apnea.) The Board notes that obesity, in and of itself, cannot be service connected. However, a recent decision issued by the United States Court of Appeals for Veterans Claims, Walsh v. Wilkie, 32 Vet. App. 300 (2020), provides that service connection may be granted on a secondary basis where the claimed disability would not have occurred but for obesity caused or aggravated by a service-connected disability. The Veteran is making this precise argument here. Unfortunately, the Board finds that the principle in Walsh has not been adequately addressed by a medical expert. The Board is prohibited from exercising its own independent judgment to resolve medical questions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). An updated examination and opinion must be provided. See Barr, 21 Vet. App. at 311. 4. SMC To date, the Veteran has not been deemed eligible for SMC as a result of her service-connected disabilities. The evidence does show that she has significant impairment in her day to day life; however, much of this impairment is due to medical conditions—for example, her seizure disorder—that are not currently service-connected. Because the development requested above could result in the award of additional disability compensation, the Board finds the claim for SMC is inextricably intertwined with the remaining claims on appeal, and must be remanded as well. See Harris, supra at 183. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of her thyroid cancer. The clinician must opine as to whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s thyroid cancer had its onset during active service or within one year from her separation from active service, or is otherwise related to active service. The examiner must specifically opine as to whether it is at least as likely as not that the nodule identified on the Veteran’s right thyroid gland in 2006, less than one year following her separation from active duty, was malignant, particularly given the diagnosis of thyroid cancer just six years later. A complete and detailed rationale should be included in support of all opinions provided. 2. After the directives in (1) are completed, schedule the Veteran for examinations by appropriate clinician/s to determine the nature and etiology of her recurrent angioedema, parathyroid adenoma, and seizure disorder. The clinician must opine as to the following: (a) Whether it is at least as likely as not that the Veteran’s recurrent angioedema, parathyroid adenoma, and/or seizure disorder had their onset during active service or were otherwise related to active service. (b) Whether it is at least as likely as not that the Veteran’s recurrent angioedema, parathyroid adenoma, and/or seizure disorder were caused or aggravated by her thyroid cancer. The clinician should specifically discuss the Veteran’s own chronology of her symptoms, including her contention that all of her claimed disorders developed as a result of her thyroid lobectomies. A complete and detailed rationale should be included in support of all opinions provided. 3. Schedule the Veteran for examinations by appropriate clinician/s to determine the nature and etiology of her obstructive sleep apnea and hypertension. The clinician/s must opine as to the following: (a) Whether it is at least as likely as not that the Veteran’s service-connected disabilities caused or aggravated her obesity. (b) Whether it is at least as likely as not that the Veteran’s obesity was a substantial factor in the development of her obstructive sleep apnea and/or hypertension. (Continued on the next page)   (c) Whether it is at least as likely as not that the Veteran’s obstructive sleep apnea and/or hypertension would not have occurred but for obesity caused or aggravated by her service-connected disabilities, to include lumbar and cervical spine disabilities, depression, headaches, and lower extremity radiculopathy. Specifically discuss the contentions included in the Veteran’s June 2017 VA Form 9. A complete and detailed rationale should be included in support of all opinions provided. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Minot, 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.