Citation Nr: 22010069 Decision Date: 02/22/22 Archive Date: 02/22/22 DOCKET NO. 16-20 804 DATE: February 22, 2022 ORDER Service connection for hypothyroidism and Graves' disease status post (s/p) hyperthyroidism with radioactive iodine treatment (hereafter, "thyroid condition") is denied. FINDING OF FACT There is no probative medical evidence indicating that the Veteran's current thyroid condition was caused by an injury, disease or event that occurred during his active service, including claimed exposure to chemicals in drinking water. CONCLUSION OF LAW The criteria to establish service connection for a thyroid condition have not been met. 38 U.S.C. §§ 1101, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1973 to August 1977. In June 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a discussion with the Veteran towards substantiating the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). The transcript is in the record. In June 2021, the Board of Veterans' Appeals (Board) remanded the claim to the VA Regional Office (RO) to schedule an additional VA examination and medical opinion, which were completed later in June 2021. The RO substantially complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The Board applies the law enacted by Congress and published in Title 38, United States Code ("38 U.S.C."); regulations established by VA and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). SERVICE CONNECTION FOR A THYROID CONDITION VA awards service connection for disabilities resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). "Direct" service connection requires: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus (a causal link) between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge may still be service connected if the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain "chronic" diseases may be service connected even if there is no evidence of the disease during service. See 38 C.F.R. §§ 3.309 (a), 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hypothyroidism, Hyperthyroidism, and Graves' disease are "endocrinopathies," and are considered chronic diseases. Id. Therefore, the provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). This is referred to as "presumptive" service connection. While a chronic disease need not be diagnosed within one year of separation, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease during that time. Id. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). In deciding appeals, the Board analyzes the credibility and probative value of the evidence, accounts for the evidence which it finds to be persuasive or unpersuasive and explains its rejection of any evidence favorable to the veteran. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of symptoms, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). 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. Jandreau, 492 F.3d 1372, 1377. In deciding claims, the Board evaluates the entire record on appeal. 38 U.S.C. § 7104 (a). When the evidence fully supports the claim, it will be granted. When the evidence for and against the claim is approximately balanced, The Board resolves any reasonable doubt in the Veteran's favor and grant the claim. When the evidence is not approximately balanced, there is no reasonable doubt to resolve, and the claim will be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 999 F.3rd 1391 (2021). The Veteran contends that his thyroid condition was caused by drinking contaminated well water at Naval Air Station ("NAS") Agana, in Guam. His service records reflect that he was stationed at NAS Agana during February 1974 to August 1977. The Veteran does not contend that his thyroid condition was diagnosed during active service or was symptomatic during service. His service treatment records (STRs) are silent for diagnoses or treatment for a thyroid condition or related symptoms. At his separation physical, his endocrine evaluation was clinically normal. The Veteran reports treatment for a thyroid nodule in 1984 and thyroid symptoms in 1985. He was diagnosed with hyperthyroidism in 1987 and completed radioactive iodine treatment. His current diagnoses include Graves' disease and residual hypothyroidism. The requirement of a "current disability" is met. See 38 C.F.R. § 3.303 (a) (service connection requires a current disability). The Veteran submitted a November 2017 article from the Guam Daily Post titled "Feds to fund study of toxic chemicals." The article stated that, in 2016, perfluorinated compounds (PFCs) were detected in a water well located at the former site of NAS Agana. The article asserted that PFCs were contained in firefighting foam commonly used at NAS Agana until the base was shut down in 1995. The article also suggested that PFCs are "associated with" serious health problems, including thyroid disease. In support of these statements and opinions, the article cited to a press release by the Green Science Policy Institute. The article did not cite any peer-reviewed scientific or medical literature. At the June 2019 Board hearing, the Veteran testified that he was first treated for thyroid symptoms in 1984 and diagnosed with hyperthyroidism in 1987. In August 2019, a private physician (J.T. Houston, M.D.) opined that the Veteran's thyroid problem is likely "military service related." Dr. Houston noted the Veteran was treated for hyperthyroidism in 1987. However, Dr. Houston noted that the Veteran stated that he recalled his endocrinologist telling him in 1987 that his thyroid condition was likely caused by chemical exposure during service. Dr. Houston also noted that it "appeared" that the federal government was investigating multiple types of toxic chemical exposures during the time the Veteran was on active duty. Dr. Houston cited internet-based links that the Veteran previously submitted to VA. During his June 2019 hearing before the undersigned, the Veteran testified that he contacted his 1987 facility "USA Medical Center" (University of South Alabama) to obtain his medical records. However, the Veteran played a voicemail recording from USA's records department that his 1987 records could not be located. The Veteran added that unknown persons believed his records were lost in a flood. Dr. Houston's opinion is therefore based on the Veteran's assertion of contaminants at NAS Agana. However, the opinion is speculative and has low probative value. Dr. Houston did not account for the Veteran's other risk factors, and his opinion is not based on any accurate assessment of the contaminant level, if any, of the Veteran's claimed exposure even if substanatiated. See Leshore v. Brown, 8 Vet. App. 406 (1995) (the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional); Mariano v. Principi, 17 Vet. App. 305 (2003) (observing that flawed methodology in creating medical report renders physician's opinion of "questionable probative value"). In June 2021, a VA examiner explained that the presence of a chemical agent in a location does not by itself confirm exposure to that agent or the amount of potential exposure (if any). The examiner stated the presence of a chemical agent alone in an area could not correlate with causation of an injury or chronic disease or related health effects. The examiner explained that the cause of Graves' disease and hyperthyroidism is "not well understood" and risk factors include a family history of the disease, other immune disorders such as type 1 diabetes or rheumatoid arthritis, smoking tobacco, and stressful life events or illnesses an October 2014 VA medical record shows the Veteran smoked three packs of cigarettes per day for 41 years. The VA examiner concluded that the Veteran's thyroid condition was likely not related to service because he was not exposed to a cumulative dose of a chemical that was scientifically validated to cause thyroid conditions. The June 2021 VA examiner reviewed the November 2017 article submitted by the Veteran and opined that retrospective studies concerning chemical exposure and later-developed medical conditions are flawed because other causes are not considered. In a September 2021 letter, the Veteran asserted that he drank water "every day" while stationed in Guam and that "the chemical agent was in the water well at NAS Agana." He suggested that because the well was shut down due to high PFC levels in 2016, it must have also had high levels of these chemicals from 1974 to 1977. The Veteran suggested that the June 2021 VA examiner resorted to speculation and ignored his statements that he regularly drank contaminated water during service. The Veteran also challenged the June 2021 VA examiner's finding that he was diagnosed with a thyroid condition in 1987. The Veteran asserted that he was diagnosed in 1984 and treatment began in 1987. While the Veteran has a current disability, service connection is denied. As noted, Dr. Houston's opinion principally rests on the Veteran's unsubstantiated account of diagnosis and treatment shortly after service, and does not account for the Veteran's other risk factors as noted by the VA physician. Presumptive service connection based on chronic disease is not warranted because the Veteran was not diagnosed with a thyroid condition within one year of separation, and his condition did not manifest to a compensable degree within one year of service. The Board considered the Veteran's assertion that he drank chemically contaminated water "every day" at NAS Agana, causing him to develop his current thyroid condition. However, as a layperson, the Veteran lacks the medical training required to give an opinion as to the cause of his thyroid condition. See Jandreau, Layno, above. The evidence for and against the claim is not approximately balanced. There is no reasonable doubt to resolve, and service connection is denied. See Lynch, above. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hiaasen The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.