Citation Nr: 0002011 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 97-17 014A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to service connection for thyroid cancer claimed as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The veteran had active military service from May 1966 to May 1970. The veteran served in the Republic of Vietnam from January 1968 to January 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 1997 rating decision by the RO. The Board remanded the case for additional development of the record in December 1998. FINDINGS OF FACT 1. The veteran had active service in the Republic of Vietnam during the Vietnam era. 2. The veteran has not been diagnosed with any disease recognized by VA as being etiologically related to claimed exposure to herbicide agents used in the Republic of Vietnam. 3. No competent evidence has been submitted to show that the veteran has current disability related to thyroid cancer due to claimed exposure to herbicide agents or other disease or injury which was incurred in or aggravated by service. CONCLUSION OF LAW A well-grounded claim of service connection for thyroid cancer has not been presented. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION A careful review of the veteran's service medical records shows they are negative for any findings, complaints or treatment of a thyroid condition or cancer. VA medical records note that the veteran was diagnosed with thyroid cancer in November 1994 and underwent a total thyroidectomy. Treatment records noted no evidence of the cancer in February 1996 and December 1998. The veteran strongly asserts that his exposure to herbicides during his service in Vietnam caused his thyroid cancer. He also notes in this regard that his parents and eight siblings have never had any type of cancer. Service connection may be granted when the veteran has a disability as the result of a disease or injury incurred or aggravated by wartime service that is not the result of the veteran's own willful misconduct. 38 U.S.C.A. § 1110. The threshold question regarding this claim is whether the veteran has presented a well-grounded claim. A well-grounded claim is one which is plausible. If he has not, the claims must fail and there is no further duty to assist in the development of the claims. 38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet. App. 78 (1990). A well-grounded claim requires more than an allegation; the claimant must submit supporting evidence. Furthermore, the evidence must justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). For a claim to be well grounded, there must be competent evidence of a current disability (medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in- service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). A disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than one listed in 38 C.F.R. § 3.309(a) will be considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116; 38 C.F.R. § 3.307(a). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. Therefore, service in the Republic of Vietnam during the designated time period and the establishment of one of the listed diseases is required to establish entitlement to the in-service presumption of exposure to an herbicide agent. McCartt v. West, 12 Vet. App. 164 (1999). The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed.Reg. 341-46 (1994). Because there is no evidence that the veteran has developed an enumerated disease, the veteran is not entitled to the presumption of inservice herbicide exposure. See 38 C.F.R. § 3.309(e); McCartt, supra. Accordingly, consideration of the claim of service connection on a presumptive basis is not warranted. Although the veteran is not entitled to the presumption that he was exposed to herbicide agents, a veteran is not precluded from establishing service connection with proof of actual exposure and direct causation. See McCartt, Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). Where the issue involves a question of medical causation, competent evidence which indicates that the claim is plausible or possible is required to set forth a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As noted previously, Caluza requires for a claim to be well grounded, competent evidence of a current disability (medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence) and of a nexus between the in-service injury or disease and the current disability (medical evidence). The medical evidence in this case shows that he veteran was diagnosed with thyroid cancer in 1994, 24 years after service. However, he has submitted no competent evidence to support his assertions that the thyroid cancer is causally or etiologically related to the exposure to herbicides or other disease or injury which was incurred in or aggravated by service. The Board notes that the veteran sincerely believes that his thyroid cancer was caused by herbicide exposure. However, lay testimony cannot constitute competent evidence because lay persons do not have the expertise to offer opinions as to questions of medical diagnosis or causation. See King, Grottveit, supra; Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The veteran's unsupported personal beliefs, however sincere, cannot form the basis of a well-grounded claim. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). Having carefully reviewed the entire record, the Board finds that no competent evidence has been submitted to show that he has a current disability due to inservice exposure to herbicides or other disease or injury in service. Therefore, since the veteran has not submitted any competent evidence to support his assertions, he has not submitted evidence that would justify a belief by a fair and impartial individual that his claim is well grounded, the veteran has not met the initial burden under 38 U.S.C.A. § 5107(a). Hence, his claim as a matter of law is not well grounded. See McCartt, Grottveit, Tirpak, supra. ORDER Service connection for thyroid cancer as secondary to herbicide exposure is denied, as a well-grounded claim has not been presented. STEPHEN L. WILKINS Member, Board of Veterans' Appeals