Citation Nr: 25005187 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 20-00 548 DATE: April 16, 2025 REMANDED Entitlement to service connection for a thyroid disability, to include a nodule, is remanded. REASONS FOR REMAND The Veteran had active service from November 2000 to December 2024. In August 2023, a Board decision denied the claim to entitlement to service connection for a thyroid disability. The Veteran appealed to the Court of Appeals for Veterans Claims ("the Court"). In June 2024, the Court issued a Joint Motion for Partial Remand (JMPR). The June 2024 JMPR vacated and remanded the August 2023 Board decision to the extent that it denied service connection for a thyroid disorder including a nodule because the November 2018 etiology opinion it relied upon when adjudicating the claim was not adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Specifically, the JMPR stated that the November 2018 VA examiner's opinion was inadequate because it did not "... address Appellant's credible and competent report of weight gain and fatigue during service..." See, e.g., Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009) (holding, in part, the appellants are competent and credible to report on what comes to them via their own senses). In October 2024, the Board remanded the matter again to comply with the June 2024 JMPR instructions. The Board instructed another examination should be obtained. The examiner must provide any diagnoses of all thyroid disorders including a nodule. For each diagnosed thyroid disability, the examiner was requested to provide an etiology opinion as well considering whether the diagnosis was due to the Veteran's service in Southwest Asia. The examiner was requested to consider etiology on other bases other than presumptive service connection. The examiner was also instructed to consider the Veteran's lay statements as well as providing a basis for any opinion offered. The Board also instructed the RO to consider entitlement under the PACT Act. The Veteran had an examination for her thyroid in January 2025. The examiner reviewed the Veteran's record and noted she had been diagnosed with a thyroid cyst in 2014. Since onset, the condition had not changed with no current symptoms or treatment. The examiner opined it was less likely than not the Veteran's thyroid was incurred in or due to her time in service, saying there was no objective evidence for findings related to thyroid nodules during active service with the first reports being made in 2014, 10 year after separation from service. The examiner also opined it was less likely than not the Veteran's thyroid was incurred in or due to her time serving in Southwest Asia, saying the Veteran's thyroid disorder is a disease with clear and specific etiology and diagnosis and there is no scientific evidence of an association between thyroid nodules and the hazardous exposures experienced while in Southwest Asia. Lastly, the examiner opined it was less likely than not the Veteran's thyroid disability was caused by TERA after considering the total potential exposure, saying again the Veteran's condition had a specific etiology and there was not positive scientific evidence of an association between thyroid nodules and hazardous exposures as reported on the Veteran's TERA memo. The Board finds there has not been substantial compliance with the previous Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In that remand, the Board specifically instructed the examiner that, "he/she cannot rely solely on negative evidence such as service treatment records being negative for a thyroid disorder including a nodule and the post-service record not diagnosing a thyroid disorder including a nodule until years after service." The examiner, "must specifically consider her [the Veteran's] claims, to include, as noted by the JMPR, her "... report of weight gain and fatigue during service..." In providing answers to the above questions the examiner should provide reasons for accepting or rejective the Veteran's lay claims." The January 2025 examiner did not follow these remand instructions, explicitly basing the negative direct etiology opinion on the lack of in service treatment and the lack of diagnosis for many years after her time in service. Additionally, the examiner did not address the Veteran's statements of her in-service symptoms and did not explain whether those lay statements could be evidence of an in-service thyroid condition. Therefore, another remand is warranted in order to obtain an adequate examination. The matters are REMANDED for the following action: 1. Obtain and associate with the record any outstanding medical treatment records. The Veteran is invited to submit any outstanding records herself. 2. Schedule the Veteran for a VA examination for her thyroid condition, preferably with the January 2025 examiner. If the Veteran cannot report to an examination, an addendum opinion should be obtained. The examiner should opine as to the following: (a) Whether it is at least as likely as not the Veteran's disability was incurred in or due to her time in service? (b) Whether it is at least as likely as not the Veteran's disability is proximately due to any of her service connected disabilities. (c) Whether it is at least as likely as not the Veteran's disability was aggravated by any of her service connected disabilities. NOTE: Aggravation in this context does not mean a permanent worsening. Any incremental or temporary worsening constitutes aggravation. * In providing answers to the above questions, the examiner is advised that he/she cannot rely solely on negative evidence such as service treatment records being negative for a thyroid disorder including a nodule and the post-service record not diagnosing a thyroid disorder including a nodule until years after service. *In providing answers to the above questions, the examiner is advised that he/she cannot rely on the fact that thyroid disorders are neither a presumptive Persian Gulf Illness nor particulate exposure disorder for finding it is not related to service. *In providing answers to the above questions the examiner should note that the Veteran is competent and credible to report on what comes to her via her own senses to include observable adverse symptomatology and must specifically consider her claims, to include, as noted by the JMPR, her "... report of weight gain and fatigue during service..." *In providing answers to the above questions the examiner should provide reasons for accepting or rejective the Veteran's lay claims. In providing answers to the above questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. *If the examiner cannot provide an answer to any of the above questions without resort to speculation he or she should so state, and must further explain why it is not feasible to provide an answer, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (Continued on the next page) ? 3. After undertaking the above development to the extent possible issue the Veteran and her representative a supplemental statement of the case (SSOC) that discusses, among other things, all evidenced added to the claims file since the RO issued the December 2019 statement of the case as well as, among other laws and regulations, 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317 including the PACT Act. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Snoparsky, A. 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.