Citation Nr: 1423208 Decision Date: 05/21/14 Archive Date: 05/29/14 DOCKET NO. 09-35 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for thyroid disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Roya Bahrami, Associate Counsel INTRODUCTION The appellant was a member of the U S Air Force Reserve which service included a period of active duty for training from December 31 1984 to October 25 1985, and a period of active duty from September 30 1990 to June 2 1991. The appellant also had an unverified period of service in the U S Air Force Reserves both before and after her verified periods of active duty. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The instant matter was previously remanded by the Board in March 2012 and August 2013 for further development. As will be discussed below, a review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT No thyroid disability has been present during the period of this claim. CONCLUSION OF LAW The criteria for service connection for thyroid disease have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 4.119, Diagnostic Codes 7900, 7903 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a) , must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. The Veteran was provided with a notification letter in January 2007 that fully addressed all notice elements and was sent prior to the May 2008 RO decision. The letter notified the Veteran of what information and evidence is needed to substantiate his claim of service connection, what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the evidence necessary to support a disability rating and effective date. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The RO has obtained relevant service treatment, VA, and private records. Pursuant to the most recent (August 2013) Board remand, the RO requested service treatment records from the National Personnel Records Center and informed the Veteran of the unavailability of medical records from Keesler Air Force Base Medical Center. In addition, the RO obtained service personnel records to verify the Veteran's periods of ACDUTRA/INACDUTRA. Accordingly, the Board finds that the RO has substantially complied with the remand instructions, Stegall, supra, and has fulfilled its duty to obtain relevant records on the Veteran's behalf. In addition, the Veteran was afforded an appropriate VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.). The Board acknowledges that the opinion provided in March 2014 is not probative as it relies on an inaccurate factual premise, namely that the Veteran only had service between December 1984 to October 1985 and June 1990 to June 1991. However, because the record includes another opinion rendered in March 2013, which is probative, the Board finds the record contains sufficient competent evidence to decide the claim for service connection for a thyroid disease. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). II. Discussion The Veteran asserts that she has hypothyroidism that was diagnosed during service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(2), (24) ; 38 C.F.R. § 3.6(a). When a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of active duty for training. Id.; 38 U.S.C.A. § 1110; Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995)). In the absence of such evidence, the period of active duty for training would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "Veteran" by virtue of the active duty for training alone. See Acciola, 22 Vet. App. at 324. Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Subsection (a) also refers to "each disabling condition...for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." Id. Certain chronic diseases, such as thyroid disease, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active duty. However, this presumption does not apply to ACDUTRA or INACDUTRA claims. 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr, 21 Vet. App. at 308 (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. In ascertaining the competency of lay evidence, the Courts historically had held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr, 21 Vet. App. at 303 (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have generally been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service treatment records show that in September 1991, the Veteran reported that she had gained 20 pounds over the course of the previous year. A thyroid profile showed low levels of thyroid hormones triiodothyronine (T3). In June 1998, the Veteran complained of subjective fullness in neck over last 2 weeks. The Veteran reported excessive eating over the last 2 months and weight gain of 25 pounds over the past 6 months. The examiner noted diffuse enlargement of thyroid in both glands; no nodules felt; no tenderness. The impression was hypothyroidism. On follow up two weeks later, the examiner assessed a goiter. Lab tests revealed a thyroid-stimulating hormone level (TSH) of .65 and thyroxine (T4) of 1.03, both within normal limits. The examiner noted that the Veteran would like to try suppressive therapy (Synthroid). A September 1998 private treatment record shows low levels of thyroid-stimulating hormone (TSH) and indicated that the Veteran was taking Synthroid. A February 2002 medical evaluation revealed that the Veteran weighs and tapes more than the usual woman as set forth in the Body Fat standards. A health record from February 2004 noted symptoms of swollen-tender lymph nodes and difficulty swallowing. Examination of the neck revealed that it was tender. The examiner noted the Veteran was taking Synthroid and assessed hypothyroidism. Lab reports show that the Veteran's TSH levels were 1.8 in October 2005, 1.00 in September 2010, and 1.640 in April 2011, all within normal limits. On VA examination in March 2013, the examiner opined that the claimed thyroid disability was less likely than not incurred in service. The examiner noted that the Veteran has been taking a regular dose of 50 mcg on Synthroid daily for the past 14 years. Although the Veteran demonstrated signs/symptoms of hypothyroidism (i.e., weight gain), hypothyroidism has never been confirmed by a laboratory test. The Veteran's TSH levels were within normal limits at the time she was started on Synthroid. No imaging studies were performed at the time of diagnosis of a goiter. The Veteran has undergone multiple TSH studies, none of which have demonstrated an increased level. The Veteran's level over the past 15 years have demonstrated a low of .05 in September 1998 (indicative of too much Synthroid) to a high of 2.52 in September 1992. Her low level in September 1998 was approximately 3 and a half months after she had been started on Synthroid. Her dose was decreased to 50 mcg daily at that time. A January 2014 anesthetic evaluation did not note a thyroid disability. Lab reports revealed a TSH of 1.2 and T4 of 1.31, both within normal limits. On VA examination in March 2014, the examiner opined that the Veteran's claimed hypothyroidism is not related to her period in service and is more related to comorbidities after military service to include obesity, diabetes, gastric bypass surgery, etc. The examiner reasoned that there are no diagnoses of hypothyroidism form December 1984 to October 1985 or June 1990 to June 1991. However, the Board notes that the RO has verified that the Veteran's period of service extends beyond those dates, and thus this opinion is not probative to the Board's decision in this matter. The probative medical evidence of record indicates that the Veteran does not have a diagnosis of thyroid disease for which service connection is available. In this regard, the Board finds highly probative the VA examiner's opinion that TSH levels have remained within normal limits and that annual laboratory testing has not confirmed any assessment or impression of hypothyroidism. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of a present disability, there can be no valid claim."). Given the lack of a current diagnosis of thyroid disease, service connection cannot be awarded. The Board is mindful that competent medical evidence is not necessarily required where the determinative issue in a case involves the existence of a disability. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). However, the Veteran is not providing statements related to the diagnosis of a simple disorder but is instead rendering an opinion as to the existence of a current thyroid disability. This is a matter that requires medical expertise, which the Veteran lacks. In sum, taking into account all of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's claimed thyroid disability is related to a period of honorable active service or to any incident of honorable active service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. ORDER Service connection for a thyroid disease is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs