Citation Nr: 0914848 Decision Date: 04/21/09 Archive Date: 04/29/09 DOCKET NO. 07-15 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for hypothyroidism. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD L. Jeng, Associate Counsel INTRODUCTION The Veteran had active duty from February 2003 to December 2003. This matter comes before the Board of Veterans' Appeals (Board) from a May 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's hypothyroidism is related to service. CONCLUSION OF LAW Hypothyroidism was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In correspondence dated in January 2006, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2008). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. In June 2008, the RO also notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2008). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. The Veteran has been medically evaluated in conjunction with his claim. Thus, the duties to notify and assist have been met. Analysis The Veteran contends that he has hypothyroidism due to service. He specifically asserts that his hypothyroidism was caused by administration of the anthrax vaccination during service. When 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 service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a). Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303(b). The Veteran currently has a diagnosis of hypothyroidism as noted throughout the record and in the April 2006 VA examination report. Service treatment records are negative for any complaints or findings of hypothyroidism. The records reflect that the Veteran was in the anthrax program during service. While the April 2006 VA examiner noted that the Veteran's thyroid symptoms began in "late 2004," a complete and thorough review of the claims folder indicates that hypothyroidism was not actually diagnosed until May 2005. The April 2006 VA examiner (who completed the evaluation in conjunction with review of the claims folder) confirmed a diagnosis of hypothyroidism and opined that this disorder was due to hashimoto thyoriditis. Based on the record, the Board finds service connection for hypothyroidism is not warranted. Service treatment records are negative for findings of such a disability. Further, symptoms were not shown until approximately one year after discharge from service. Indeed, the first diagnosis of hypothyroidism is dated approximately one-and-a-half years after active duty. Additionally, there is no opinion which provides a nexus between current hypothyroidism and service and/or the result of administration of anthrax vaccinations therein. In fact, the April 2006 VA examination report noted that the Veteran's hypothyroidism was due to hashimoto thyoriditis. Therefore, service connection for hypothyroidism is denied. The Board has also considered the list submitted by the Veteran in April 2007 with regard to the various adverse effects of the anthrax vaccination. VA recognizes a disabling condition as a result of administration of the anthrax vaccination in service. See VAOPGCPREC 4-2002 (May 2002). However, in this case the April 2006 VA examiner specifically linked the cause of the Veteran's hypothyroidism to hashimoto thyoriditis. To the extent that the Veteran is attempting to extrapolate from the medical literature that his hypothyroidism is due to the administration of the anthrax vaccination during service, such extrapolation would constitute nothing more that an unsubstantiated medical opinion by a lay person rather than a conclusion based on the medical evidence of record, and, therefore, cannot be deemed material. Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Sacks v. West, 11 Vet. App. 314 (1998). In adjudicating this claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Recently, in Barr v. Nicholson, 21 Vet. App. 303 (2007), the United States Court of Appeals for Veterans Claims (Court), citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge; see also 38 C.F.R. § 3.159(a)(2) (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 the facts or circumstances and conveys matters that can be observed and described by a lay person). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In this capacity, the Board finds the veteran is competent to attest to his observations of his disability. Layno; 38 C.F.R. § 3.159(a)(2). However, as a lay person, he is not competent to diagnose any medical disability or render an opinion as to the cause or etiology of any current disability (i.e. that he currently has hypothyroidism related to service and/or administration of the anthrax vaccination in service) because he does not have the requisite medical expertise. See, e.g., See Routen v. Brown, 10 Vet. App. 183, 186 (1997); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for hypothyroidism is denied. ____________________________________________ THERESA M. CATINO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs