On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida
THE ISSUES
1. Entitlement to service connectiotn for papillary thyroid carcinoma, claimed as due to herbicide (Agent Orange) exposure, for accrued benefits purposes.
2. Entitlement to service connection for a left arm/shoulder disorder, claimed as secondary to surgery for papillary thyroid carcinoma, for accrued benefits purposes.
3. Entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.30 for a period of convalescence following papillary thyroid carcinoma surgery on December 12, 2008, for accrued benefits purposes.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
ATTORNEY FOR THE BOARD
L.A. Rein, Counsel
INTRODUCTION
The Veteran served on active military duty from September
1963 to September 1969, to include service in the Republic of Vietnam from January 1965 to January 1966 and from May 1968 to May 1969. The Veteran died in April 2011 during the course of the appeal; the Veteran's spouse, who is the present appellant, filed a timely Motion to Substitute under 38 U.S.C.A. § 5121A , which was granted by the RO in July 2011. The present appellant is accordingly considered to be the claimant for the purpose of processing the claims to completion, for the purpose of obtaining any accrued benefits to which the appellant may be entitled. See generally 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000.
This case, comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
This case was recently before the Board in June 2011, at which time the matters on appeal were dismissed and the Board referred the appellants May 2011 request for substitution to the Agency of Original Jurisdiction for appropriate action. As noted above, the RO determined in July 2011 that the appellant qualified as the substituted claimant.
The issues of service connection for accrued benefits purposes for: a left arm/shoulder disorder, claimed as secondary to surgery for papillary thyroid carcinoma; and entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.30 for a period of convalescence following papillary thyroid carcinoma surgery on December 12, 2008, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washingtcn, DC.
FINDINGS OF FACT
1. The evidence of record establishes that the Veteran actually served in the Republic of Vietnam during the Vietnam Era; and thus herbicide (Agent Orange) exposure in service may be presumed.
2. The Veteran's diagnosed papillary thyroid carcinoma is not on the list of diseases presumptively associated with herbicide (Agent Orange) exposure.
3. The only medical opinion evidence of record relates the Veteran's papillary thyroid carcinoma to his in-service herbicide! (Agent Orange) exposure; there is no contrary medical evidence of record.
CONCLUSION OF LAW
Resolving all reasonable doubt in favor of the appellant, the criteria for service connection for papillary thyroid carcinoma, claimed as due to herbicide (Agent Orange)
exposure, for accrued benefits purposes, have been met. 38 U.S.C.A. §§ 1101, 1110, 1113, 1116, 5103, 5103A, 5107, 5121, 5121A (WE!St 2002 & Supp. 2011); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.307, 3.309, 3.1000 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONI. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCM), codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011} includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implement:ing the VCM have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011).
Given the favorable disposition of the claim for service connection for papillary thyroid carcinoma, claimed as due to herbicide! (Agent Orange) exposure, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished.
II. Service connection
As was noted in the Introduction section of this decision, the Veteran unfortunately died while this appeal was pending. In this case, the appellant has timely substituted to
continue the claim started by the Veteran prior to his death. The Appellant is currently pursuing this appeal for the purpose of securing entitlement to accrued benefits should
the service-connected benefits initially sought by the Veteran be awarded. 38 U.S.C.A. §§ 5121; 5121A; 38 C.F.R. § 3.1000.
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 . Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabid,eau v. Oerwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d)
Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all Veterans who served in Vietnam during the Vietnam Era. See 38 U.S.C.A. § 1116(f) (West 2002) and 38
C.F.R. § 3.307(a)(6)(iii) (2011).
If a Vete·ran was exposed to a herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though tere is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II or adult-onset diabetes mellitus), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, 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). VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See Notice•, 61 Fed. Reg. 414,421(1996), see also 67 Fed. Reg. 121, 42,600 (June 24,
2002).
Effective August 31, 2010, VA has amended 38 C. F. R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to certain herbicid1! agents. The intended effect of this amendment is to establish presumptive service connection for these diseases based on herbicide exposure.
In this case, the RO verified that the Veteran served in Vietnam; hence, exposure to herbicides (Agent Orange) is presumed. However, mere exposure is not sufficient to establish service connection. It must still be demonstrated that pap:lllary thyroid carcinoma is the result of this exposure .. In this regard, papillary thyroid carcinoma is not one of the disabilities that can be presumed to be the result of Agent Orange exposure. See 38 C.F.R. § 3.309(e). Therefore, the Agent Orange presumptive provisions do not provide a basis upon which to establish service connection for papillary thyroid carcinoma.
Nonetheless, the availability of presumptive service connection -for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct incurrence or aggravation in service. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F. 3d Hl39 (Fed. Cir. 1994).
In this regard, the Veteran's servic:e treatment records are negative for complaints, symptoms, findings or diagnosis of a thyroid disability.
Post-service medical evidence includes October 2008 VA medical records showing that the Veteran denied any thyroid problems. It was noted within the record that an August 2008 private CT of the neck revealed a suspicion for malignancy.
A November 2008 VA cytopathology rec:ord reflects a diagnosis o-f papillary thyroid carcinoma.
A December 2008 VA hospital discharge records reflect that the Veteran was admitted and a total thyroidectomy and left neck dissection was performed. He was discharged on December 16, 2008.
to establish presumptive service connection for these diseases based on herbicide exposure.
In this case, the RO verified that the Veteran served in Vietnam; hence, exposure to herbicides (Agent Orange) is presumed. However, mere exposure is not sufficient to establish service connection. It must still be demonstrated that pap:lllary thyroid carcinoma is the result of this exposure .. In this regard, papillary thyroid carcinoma is not one of the disabilities that can be presumed to be the result of Agent Orange exposure. See 38 C.F.R. § 3.309(e). Therefore, the Agent Orange presumptive provisions do not provide a basis upon which to establish service connection for papillary thyroid carcinoma.
Nonetheless, the availability of presumptive service connection -for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct incurrence or aggravation in service. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F. 3d Hl39 (Fed. Cir. 1994). file, to include his service and post-service medical records. Dr. Bash provided opinions which he said were all to a high degree of medical certainty, which would equate to a greater than 75 percent certainty. He opined that the Veteran' ; thyroid cancer was due to his exposure to Agent Orange in Vietnam that the Veteran had during his military service. He provided the basis for his opinion in great detail, to include reference to medical literature to support his opin1on. Dr. Bash noted that the Veteran entered service fit for cluty and was exposed to Agent Orange, which is known to cause carcinomas. He explained that the Vietnam and Agent Orange Institute of Medicine (IOM) books support a plausible biological mechanism. The toxicology section documents that four herbicides were used in Vietnam, one of which is known to affect the thyroid gland by way of reductions in thyroid hormone Thyroxin. These substances are known to cause oxidativ• stress in cells, which leads to chromosome abnormalities and mutations, which eventually leads to cancer. This process is well document in the literature and the Agent Orange IOM report, from which Dr. Bash quotes " ... TCDD is carcinogenic and an extremely potent promoter of neoplasia in laboratory rats ... cancers of the thyroid ... have been seen ... " He further opined that the Veteran did not have any other risk factors for his thyroid cancer and the lag time and interval between exposure to Agent Orange and carcinogeneous is appropriate. Based on the literature, Agent Or,3nge has not been shown to be protective to the induction of thyroid cancer; therefore, it is more likely than not (more studies show a cancer causing effects than show protection) that Agent Orange caused the Veteran's thyroid cancer.
In a second letter from Dr. Bash in October 2009, he reiterated that it was his professional medical opinion that the Veteran's thyroid cancer was caused by his exposure to Agent Orange. The basis for his opinion was based on the IOM studies that he stated provide very good evidence that Agent Orange is a carcinogen. In addition, there are no available studies that show that Agent Orange does not cause thyroid cancer or that Agent Orange is somehow protective against the development of cancer.
The Board finds that the private medical opinions provided by Dr. Bash in June and in October 2009 constitute competent and probative evidence on the medical nexus question-based as it was on review of the Veteran's documented medical history and a discussion of medical literature in support of his conclusions. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). Significantly, moreover, there is no medical evidence to the contrary. Accordingly, by resolving all reasonable doubt in favor of the appellant, the Board concludes that the criteria for service connection for papillary thyroid carcinoma, claimed as due to herbicide (Agent Orange) exposure, are met. 38 U.S.C.A. § 5107(b); 38 CFR § 3.102.
ORDER
Service connection for papillary thyroid carcinoma, claimed as due to herbicide (Agent Orange) exposure, for accrued benefits purposes, is granted.
