Citation Nr: 0014445 Decision Date: 06/01/00 Archive Date: 06/09/00 DOCKET NO. 98-19 755 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to service connection for a thyroid disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Miyake, Associate Counsel INTRODUCTION The veteran served on active duty from August 5, 1990, to May 22, 1996; she also had 2 years, 6 months, and 24 days of active military service prior to August 5, 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1997 rating decision by the RO that, among other things, denied a claim of entitlement to service connection for a thyroid disorder. FINDING OF FACT No competent medical evidence has been presented showing that any thyroid disorder began during military service or may otherwise be attributed to the veteran's period of military service; no endocrinopathy was shown in service or within a year of the veteran's separation from service. CONCLUSION OF LAW The claim of service connection for a thyroid disorder is not well grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only if the claimant meets this burden does VA have the duty to assist her in developing the facts pertinent to her claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom, Epps v. West, 118 S. Ct. 2348 (1998). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible, to satisfy the initial burden of 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Murphy, 1 Vet. App. at 81. A claimant cannot meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection is also warranted where the evidence shows that a chronic disability or disorder has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310 (1999); Allen v. Brown, 7 Vet. App. 439 (1995). When disease is shown as chronic in service, or within a presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has held that competent evidence pertaining to each of three elements must be submitted in order to make a claim of service connection well grounded. There must be competent (medical) evidence of a current disability, competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service, and competent (medical) evidence of a nexus between the in-service injury or disease and the current disability. This third element may be established by the use of statutory presumptions. 38 C.F.R. §§ 3.307, 3.309 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d at 1468. An endocrinopathy is considered "chronic" within the meaning of 38 C.F.R. § 3.307. § 3.309. Consequently, if such disability is manifested to a compensable degree within a year of the veteran's separation from service, a presumption of service incurrence or aggravation applies. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (1999). The veteran contends that she has a thyroid disorder that began during service. She asserts that such a disorder is attributable to contaminated drinking water or possible exposure to lead-based paint during service. For the reasons that follow, the Board finds that the veteran's claim of service connection for a thyroid disorder is not well grounded. The veteran's service medical records are negative for complaints of, treatment for, or diagnoses suggesting any thyroid abnormality. The records do show that, when seen in September 1990 for complaints of cramps in the heart, examination of the neck revealed a few nodes. The impression was sinusitis. When examined in December 1990, no lymphoid of the neck was noted. A May 1993 examination report indicates that the veteran's endocrine system was normal. In her report of medical history, dated in May 1993, the veteran reported having had medical treatment for "thyroid" but none at the present time. When examined by VA in August 1996, the veteran's endocrine system was normal. Subsequently prepared VA records show that, in April 1997, a thyroid scan revealed a normal-sized gland with no hot or cold spot. The impression was slightly low uptake and no cold or hot spot. A May 1997 VA operation report indicates that the veteran was found to have a thyroid nodule on physical examination. Thyroid function tests were normal. Thyroid radionuclide scan was normal. An ultrasound was obtained, which was read as showing a slightly larger right thyroid lobe with a serpiginous fluid collection. She underwent a right thyroid lobectomy. Pathological examination revealed a benign nodular goiter of the right thyroid. At an August 1997 VA examination, the veteran reported that she had seen an enlargement in her right neck and had sought medical advice, and was found to have a benign nodular goiter in April 1997. Examination revealed a two-inch long thyroidectomy scar at the mid-anterior area of the neck. No abnormal thyroid findings on palpation were noted. "Thyroid adenoma, benign, postoperative, recovered" was diagnosed. The veteran submitted reports to support her argument that her thyroid disease may have been caused by contaminated drinking water or exposure to lead-based paint during service. A March 1994 letter from the service department indicates that the veteran's living quarters might contain some lead-base paint surfaces. A May 1994 "Notice to Water Consumers" report from the service department indicates that the water served during the month of March 1994 exceeded the primary maximum contaminant level for bacteriological quality. An August 1994 "Notice to Consumers" report indicates that the water served during the months of June and July 1994 exceeded the primary maximum contaminant level for bacteriological quality. As noted above, the veteran must present competent medical evidence of both current disability and relationship between that disability and service. Although the veteran developed a right thyroid mass and underwent surgery to remove it as noted above, none of the examiners has reported that any such problem is attributable to problems incurred in or aggravated by military service. The Board has also considered the veteran's written statements and reports on possible exposure to lead-base paint and water contamination regarding her opinion on the etiology of her thyroid problems. However, while she is competent to provide information regarding the symptoms she currently experiences and has experienced since military service, there is no indication that she is competent to comment upon etiology or time of onset of currently diagnosed disability. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993); Espiritu, 2 Vet. App. at 494- 95. Consequently, absent the presentation of competent medical evidence showing a link between any post-service diagnosis and service, the veteran's claim may not be considered well grounded and must be denied. (The statutory presumption of 38 C.F.R. § 3.307 does not aid the veteran because there is no basis in the evidence for finding that an endocrinopathy was found during the one-year presumptive period following the veteran's separation from service. 38 C.F.R. §§ 3.307, 3.309. Indeed, hormone tests were normal during this time frame.) The Board also notes that it has been contended on the appellant's behalf that the Board should determine whether the RO complied with M21-1, Part III, 1.03(a) (Change 50) (Feb. 23, 1996) and M21-1, Part VI, 2.10(f) (Change 48) (Aug. 5, 1996). The provisions of M21-1 Part VI, 2.10(f) provide that "the duty to assist will prevail while development is undertaken." A careful reading of this provision clearly shows the initiation of this "development" is predicated on the claim being "potentially plausible on a factual basis." Essentially, "potentially plausible on a factual basis" means the claim is well grounded. Epps, supra. Consequently, development is undertaken pursuant to M21-1 Part VI, 2.10(f) only after the appellant has presented a well-grounded claim. As the appellant has not done so here, M21-1 Part VI, 2.10(f) is not applicable to her case. M21-1 Part III, 1.03(a) provides that "[b]efore a decision is made about a claim being well-grounded, it will be fully developed." However, only when a claim is well grounded does VA have an obligation to assist the claimant in "developing the facts pertinent to the claim." Robinette v. Brown, 8 Vet. App. 69, 77-74 (1995) (emphasis added) (referring to evidentiary development required by the duty to assist under 38 U.S.C.A. § 5107(a)); Epps, supra; Beausoleil v. Brown, 8 Vet. App. 459, 465 (1996). In contrast to the evidentiary development referred to in 38 U.S.C.A. § 5107(a), the provisions of M21-1, Part III, 1.03(a) refer to development of the claim. The requirement to fully develop a claim - as compared to development of the evidence underlying the claim - merely demands that VA ensure that the appellant has not filed a defective or incomplete application. See 38 U.S.C.A. § 5103 (West 1991); Robinette, 8 Vet. App. at 78. See 38 C.F.R. §§ 3.1(p), 3.160(a) (defining a claim as an application for VA benefits); see also M21-1, Part III, 1.01(a) (discussing development of pertinent facts "concerning a well-grounded claim"); M21-1, Part VI, 2.10(f) (discussed, supra); compare M21-1, Part III, 2.01(c) (during initial screening stage of claims processing, the RO shall review all applications and evidence immediately to determine if "a claim" is incomplete and requires "further development"). Indeed, M21-1, Part III, 1.03(a) relies upon Grottveit, supra, in which the Court stated that, "[i]f the claim is not well grounded, the claimant cannot invoke the VA's duty to assist [under 38 U.S.C.A. § 5107(a)] in the [evidentiary] development of the claim." Grottveit, 5 Vet. App. at 93, citing 38 U.S.C.A. § 5107(a). Therefore, until an appellant has submitted a well-grounded claim, VA is under no duty to assist the appellant in establishing the evidentiary elements of his or her claim. Morton v. West, 12 Vet. App. 477 (1999). In other words, the requirement to "fully develop" a claim pursuant to M21-1, Part III, 1.03(a) is not identical to the duty to assist which arises after a well-grounded claim has been submitted; instead, it appears merely to reiterate the duty to inform under 38 U.S.C.A. § 5103. Consequently, ensuring that a claim is "fully developed" under M21-1 Part III, 1.03(a) means that, where the appellant's application for benefits is incomplete, VA shall notify the appellant of the evidence necessary to complete the application. Id. at 80. As there is no indication in the present case that the appellant's application is incomplete, or that she is aware of evidence which would render her service connection claim for thyroid disability well grounded, the Board finds that the RO complied with 38 U.S.C.A. § 5103 and 1.03(a). ORDER Service connection for a thyroid disorder is denied. MARK F. HALSEY Member, Board of Veterans' Appeals