Citation Nr: 0900885 Decision Date: 01/09/09 Archive Date: 01/14/09 DOCKET NO. 05-29 828 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for Graves' disease. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Nicole L. Northcutt, Associate Counsel INTRODUCTION The veteran served on active duty from April 1972 to April 1974 and from September 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction of the veteran's claims file has since been transferred to the RO in Baltimore, Maryland. By way of background, the Board notes that the veteran timely perfected his appeal to the Board through a June 1996 VA Form 9; however, the veteran's claim remained pending without certification to the Board. The veteran inquired about the status of his claim in June 2002, which the RO considered as a claim to reopen, and in an April 2003 rating decision, the RO denied the veteran's claim on the basis that new and material evidence had not been submitted. Because the RO's initial denial of the veteran's claim in March 1995 never became final, new and material evidence is not necessary to reopen the veteran's claim, and the Board will address the veteran's appeal accordingly. FINDING OF FACT The most probative medical evidence of record fails to relate the veteran's Graves' disease to service. CONCLUSION OF LAW The criteria for service connection for Graves' disease have not been met. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2008); 38 C.F.R. § 3.303 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, VA's notice requirements were partially fulfilled by a December 2002 letter. Although the letter erroneously informed the veteran that he would have to provide new and material evidence to reopen his claim, the veteran was also informed of the evidence necessary to establish service connection, and this information was reiterated in a June 2005 statement of the case. Thereafter, the veteran's claim was readjudicated as reflected by supplemental statements of the case dated in December 2006 and January 2008. The veteran's testimony reflects an understanding of how to establish service connection and he has been represented by a Service Organization throughout the claims process. Accordingly, the Board concludes that any notice errors are harmless. With respect to the duty to assist, the veteran's private and VA treatment records have been obtained, and all available records identified by the veteran have been obtained. Additionally, the veteran was afforded a VA examination and medical opinion, and he testified at a hearing before the undersigned Veterans Law Judge. In sum, the Board finds that VA's duties to notify and assist have been met, and therefore there is no prejudice to the veteran in adjudicating this appeal. II. Service Connection In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein. Secondary service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a). The veteran has testified in his Board and RO hearings that he experienced headaches while serving overseas in the Gulf War. He testified that when he sought treatment for his headaches while in service, he was told that his headaches were normal given his circumstances. (He further testified that his corresponding treatment record was destroyed in a tent fire.) The veteran has also testified that the continued headaches, fatigue, and sleep disturbances that he experienced after his release from active duty eventually prompted him to seek medical treatment in 1994, at which time he was diagnosed with Graves disease. The veteran's service medical records are void of any treatment for Graves' disease or symptoms identified as related to Graves' disease. Moreover, the veteran's separation physical examination report notes his endocrine system was found to be normal, and in his corresponding report of medical history, the veteran denied having any frequent or severe headaches, thyroid trouble, or frequent trouble sleeping. The veteran's VA treatment records reflect that he was diagnosed with Graves' disease in February 1994, after a thyroid scan revealed that his thyroid was two to three times normal size. Thereafter, a June 1994 VA examination report reflects the examiner's notation that the veteran developed frontal headaches, fatigue, memory loss, snoring, and nervousness in February 1994, and subsequent testing revealed him to be mildly hyperthyroid. The examiner noted a diagnosis of history of hyperthyroidism, status post- radioactive therapy, with frontal headaches, fatigue, memory loss, and snoring thought to be secondary to his hyperthyroidism; however, no opinion was offered regarding the onset of the veteran's Graves' disease or its relationship to service. A June 1995 letter from the veteran's treating physician states that the veteran had no evidence of a thyroid disorder from the time the veteran first became his patient in 1980 through September 1989, when the veteran underwent a complete medical evaluation. In a subsequent January 2005 letter, the physician again observed there were no signs of a thyroid disorder prior to September 1989. He then stated, It is as likely as not that the veterans currently diagnosed with Graves Disease, manifested itself during active service. [The veteran] did a tour of duty in the Gulf War for 1 year. Based on the symptoms shown at that time I deem this to be the case with [the veteran]. A June 2005 report from the Chief of Endocrinology at a VA Medical Center reflects the opinion of its author that after reviewing the medical evidence associated with the veteran's claims file, there is no evidence that the veteran's Graves' disease began in service. This endocrinologist noted he had studied the veteran's records, including his service records, and based his conclusion on his review of the records, noting specifically the military records revealed no evidence of thyroid disease. While the veteran has reported that he sought treatment for headaches during service, there are no corresponding service treatment records corroborating that contention, and in fact, the veteran denied having had severe or recurrent headaches when he was discharged from active duty. As such, his contentions that he experienced such symptoms in service, are not deemed credible, which in turn reduces the credibility of his post service contentions that he also experienced fatigue, memory loss, snoring and nervousness in service. The medical opinion relating the veteran's Graves' disease to service references the veteran's in-service thyroid symptomology; however, there is no objective evidence that the veteran had symptoms of Graves' disease while in service, and no specific examples of the in-service symptoms were cited/identified by this physician. To the extent they were those symptoms reported by the veteran, since his descriptions of those symptoms are not considered credible, the probative value of this physician's opinion based on the veteran's report is markedly reduced. It is also noteworthy, that the structure of the opinion by the veteran's private physician is confusing grammatically, and that the veteran was not diagnosed with Graves' disease until February 1994, approximately three years after his discharge from service, with no documented evidence of the claimed symptoms prior to February 1994. The VA medical opinion authored by the VA Chief of Endocrinology at the Washington VA Medical Center concludes that there is no evidence that the veteran's Graves' disease began in service, citing the lack of evidence of thyroid disease in service and the medical findings when the veteran was diagnosed with Graves' disease in February 1994. The Board finds that this opinion is more probative than the opinion of the veteran's treating physician because the VA endocrinologist's opinion is based upon and cites to the medical evidence of record, and it is clearly articulated. Accordingly, because the more probative medical evidence fails to relate the veteran's Graves' disease to service, service connection for Graves' disease is denied. In reaching this decision, the Board notes that throughout the claims process, the veteran has asserted that he has several disabilities, including headaches and sleep apnea, secondary to his Graves' disease. However, because service connection for Graves' disease has been denied, service connection for any secondary disabilities is also not warranted. ORDER Service connection for Graves' disease is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs