Citation Nr: 1113804	
Decision Date: 04/07/11    Archive Date: 04/15/11

DOCKET NO.  04-11 856	)	DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUES

1.  Entitlement to an evaluation in excess of 10 percent for hypothyroidism, status post subtotal thyroidectomy.

2.  Entitlement to service connection for hypertension, to include as secondary to the service-connected thyroid disability.


REPRESENTATION

Appellant represented by:	Robert M. Kampfer, Attorney


ATTORNEY FOR THE BOARD

M. Hannan, Counsel


INTRODUCTION

The Veteran appellant served on active duty in the United States Army from February 1951 to February 1953.  This case originally came before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision issued by the above Regional Office (RO) of the Department of Veterans Affairs (VA) which, in part, denied the appellant's claim of entitlement to service connection for hypertension and increased the evaluation for his thyroid disability to 10 percent, declining to grant a higher evaluation.

Thereafter, in an April 2007 decision, the Board denied each claim.  The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In October 2008, the parties filed a Joint Motion for Remand.  A December 2008 Order of the Court granted the Joint Motion and vacated the Board's decision, and the two issues on appeal were remanded for readjudication pursuant to the provisions of 38 U.S.C.A. § 7252(a).

The Board remanded the two claims for additional development in September 2009. After accomplishing some additional development, the RO continued to deny each one of the appellant's two claims and returned the case to the Board.  In November 2010, the Board requested medical expert opinions pursuant to 38 U.S.C.A. § 5107(a) and 38 C.F.R. § 20.901.  Two medical opinions were rendered in November 2010.

As previously noted, the RO increased the appellant's thyroid disability evaluation during the pendency of the appeal, from zero percent to 10 percent, effective from March 25, 2002; however, it is presumed that he is seeking the maximum benefit allowed by law and regulation, and "it follows that such a claim remains in controversy where less than the maximum available benefit is awarded."  AB v. Brown, 6 Vet. App. 35, 38 (1993).

In March 2011, the appellant's attorney telefaxed additional evidence from his office to the Board.  This evidence included a March 2011 medical opinion from the appellant's treating endocrinologist and the report from the appellant's visit to his private cardiologist in November 2010.  The attorney also indicated that the appellant's right to initial review of the submitted evidence by the RO was being waived.  Therefore referral or remand to the RO of the evidence received directly by the Board is not required.  38 C.F.R. § 20.1304.

The appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2010).


FINDINGS OF FACT

1.  Over the course of this appeal, the appellant has complained of constipation, weight gain, fatigue, weakness, decreased concentration, poor memory, cold intolerance, and cardiovascular involvement.

2.  Throughout the course of this appeal, the objective medical evidence of record demonstrates that the appellant has been clinically euthyroid.

3.  Fatigability, constipation, cold intolerance, muscular weakness, mental disturbance, bradycardia, and sleepiness have either not been clinically demonstrated or not been clinically related to the service-connected thyroid disability.

4.  Chronic hypertension was not clinically shown prior to 1990; the in-service hyperthyroidism was transient and did not result in any chronic hypertension or other cardiac disorder.

5.  The competent and probative medical evidence preponderates against a finding that the appellant has hypertension or any other cardiac disorder that is due to any incident or event in military service, to include as proximately due to, the result of, or aggravated by service-connected postoperative residuals of a toxic goiter, or that hypertension or any other cardiac disorder was manifested to a degree of ten percent or more within one year after service separation. 


CONCLUSIONS OF LAW

1.  The criteria for a disability evaluation in excess of 10 percent for the residuals of a thyroidectomy have not been met.  38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.321, 3.159, 4.1, 4.2, 4.7, 4.20, 4.119, Diagnostic Code (DC) 7903 (2010).

2.  No cardiac disorder, including hypertension, was incurred in or as a result of military service, to include as proximately due to, the result of, or aggravated by the service-connected post-operative subtotal thyroidectomy residuals, nor may any such cardiac disorder, including hypertension, be presumed to have been incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.103, 3.303, 3.307, 3.309 (2010). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1) (2010).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In addition, the decision of the United States Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date.

In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  See Dingess v. Nicholson, supra.

In May 2003, prior to the promulgation of the June 2003 rating action that, in part, denied the appellant's claim of entitlement to service connection for hypertension and increased his thyroid disability evaluation to 10 percent, effective in March 2002, the RO sent the appellant a letter informing him of the types of evidence needed to substantiate each type of claim and its duty to assist him in substantiating his claims under the VCAA.  The letter informed him that VA would assist him in obtaining evidence necessary to support his claims, such as medical records, records from other Federal agencies, etc.  He was advised, under 38 C.F.R. § 3.159(b)(1), that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claims.

The appellant has had ample opportunity to respond/supplement the record and he has not alleged that notice in this case was less than adequate.  See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues").  The United States Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  In this case, neither the Veteran nor his attorney has alleged any prejudicial or harmful error in VCAA notice, and the Board finds, based the factors discussed above, that no prejudicial or harmful error in VCAA notice has been demonstrated in this case.

As noted, the Veteran is represented by an attorney.  Representation by counsel does not alleviate VA's obligation to provide compliant notice; however, that representation is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error.  An attorney is presumed to know the law and has a duty to communicate about the law to his client.  Overton v. Nicholson, 20 Vet. App. 427, 438-439 (2006).  VA communications to the claimant and his or her counsel, the claimant's actions and communications to VA, and the counsel's actions and communications to VA will signal whether, under the circumstances of each case, it has been demonstrated that the appellant had a meaningful opportunity to participate effectively in the processing of his or her claim.  Id.  It is clear from the Veteran's communications that he is cognizant as to what is required of him and of VA.  Moreover, the Veteran and his attorney have not indicated there is any outstanding evidence relevant to either claim.

VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d).  Here, the appellant's service treatment records (STRs) have been associated with the claims file and reviewed by VA.  Social Security Administration (SSA) records have been included in the claims file and reviewed.  Private and VA medical treatment records have been associated with the claims file and reviewed.  The appellant was afforded VA medical examinations in June 2003, and October 2009.  In November 2010, the Board requested medical expert opinions pursuant to 38 U.S.C.A. § 5107(a) and 38 C.F.R. § 20.901.  Two medical opinions (from an endocrinologist and a cardiologist) were rendered in November 2010.  

A medical opinion is adequate when it is based upon consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one."  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  Each one of these four medical reports was generated by a medical professional, and each report reflects review of the appellant's prior medical records.  The examinations and VHA opinion reports included reports of the symptoms for the claimed hypothyroidism, as well as for the claimed hypertension, and demonstrated objective evaluations.  The health care professionals were able to assess and record the status of the appellant's thyroid function.  They were able to assess and speak to the etiology of the appellant's hypertension and other cardiac disorders.  

The Board finds that the examination reports and the medical expert reports are sufficiently detailed with recorded history, impact on employment and daily life, and clinical findings.  In addition, it is not shown that the reports were in any way incorrectly prepared or that the VA authors of those reports failed to address the clinical significance of the appellant's claimed conditions.  Further, the VA examination and medical expert reports addressed the applicable rating criteria.  As a result, the Board finds that additional development by way of another examination or medical expert opinion would be redundant and unnecessary.  See 38 C.F.R. § 3.326 and 38 C.F.R. § 3.327 and Green v. Derwinski, supra.  Therefore, the Board concludes that the appellant was afforded adequate examinations.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

The Board finds that the information provided to the appellant complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist.  In addition, the rating decision, along with the March 2004 Statement of the Case (SOC) and the various Supplemental SOC (SSOCs) issued in December 2009, January 2010, and May 2010, explained the basis for the RO's actions, and provided him with opportunities to submit more evidence.  It appears that all obtainable evidence identified by the appellant relative to his claims has been obtained and associated with the claims file, and that he has not identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal.  In addition, the appellant's attorney has submitted a March 2011 medical opinion from the appellant's treating endocrinologist.  It is therefore the Board's conclusion that the appellant has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. 

In addition, to whatever extent the decision of the Court in Dingess v. Nicholson, supra, requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the Veteran in proceeding with the present decision.  An October 2009 letter from the RO contained the information required by Dingess. 

Furthermore, the appellant was informed about the kind of evidence that was required and the kinds of assistance that VA would provide, and he was supplied with the text of 38 C.F.R. § 3.159.  The appellant did not provide any information to VA concerning available relevant treatment records that he wanted the RO to obtain for him that were not obtained.  He had previously been given more than one year in which to submit evidence after the RO gave him notification of his rights under the pertinent statute and regulations.

The appellant was provided with notice as to the medical evidence needed for service connection for hypertension, including as secondary to service-connected disability, and as to the medical evidence needed for increased evaluations for hypothyroidism, as well as the assistance VA would provide.  Therefore, there is no duty to assist that was unmet and the Board finds no prejudice to the Veteran in proceeding with the issuance of a final decision.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby).  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

A Court or Board remand confers upon a veteran the right to substantial, but not strict, compliance with that order.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  The directives of the October 2008 Joint Motion and the associated September 2009 Board remand have been substantially fulfilled.  The appellant was provided with VCAA notice.  The appellant's SSA records have been added to the claims file, VA medical records dated prior to 2004 were obtained and three medical opinions were obtained.  All relevant facts with respect to each claim addressed in the decision below have been properly developed.  

Under the circumstances of this case, a remand would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).

II.  Merits of the Claims

In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim.  The appellant prevails in either event.  However, if the weight of the evidence is against the appellant's claim, the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

A veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  Pain is the sort of condition that is observable by a lay person.  See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).


A.  Increased rating claim

The law provides that disability evaluations are determined by the application of a schedule of ratings that is based upon an average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. §§ 3.102, 4.3, 4.7.  In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether they were raised by the appellant or not, as well as the entire history of the veteran's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

In the evaluation of service-connected disabilities, the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity.  38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41.  In this case the evidence reviewed includes the appellant's service medical treatment records; VA and private medical treatment records dated between 1989 and 2010; the reports of the VA medical examinations conducted in March 1973, June 2003, and October 2009; the November 2010 VA medical opinions from an endocrinologist and a cardiologist; Social Security Administration (SSA) records; the appellant's testimony at a personal hearing conducted at the RO in July 2008; a March 2011 private medical opinion; articles about hypothyroidism and hypertension and various written statements submitted by the appellant and his representative.

While a veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994).  In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence of record contains factual findings that demonstrate distinct time periods in which the claimant's service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  38 C.F.R. § 4.20.

Service connection for the postoperative residuals of toxic goiter was granted in a rating decision issued in May 1953; a noncompensable (zero percent) rating was assigned under 38 C.F.R. § 4.119, Diagnostic Code (DC) 7999-7903, effective in February 1953.  In June 2003, the RO increased the disability rating for the thyroid disability to 10 percent, effective June 2002.  The Veteran contends that a higher disability rating is warranted.

The appellant underwent a VA medical examination in March 1973.  The examiner noted that the appellant had had a thyroidectomy twenty years earlier for hyperthyroidism.  The examiner also stated that the appellant had developed hypothyroidism gradually, and that the diagnosis of hypothyroidism had been confirmed one year before.  The appellant had then been placed on medication for the hypothyroidism and with this medication he had noticed a significant improvement.  The examiner stated that the appellant was currently euthyroid and that he needed to be on medication.

The appellant has submitted multiple lengthy and detailed letters about his claim.  In his March 2003 claim for an increased evaluation, he stated that he had many problems at work after service in that he could not think or concentrate at times.  He reported that he was not able to pass exams which left him in a helper position instead of a supervisory position.  He said that he was 72 years old and not in the best of health and that he felt that a lot of his problems in life had been caused by his thyroid.  

In February 2004, the appellant wrote that he was a helper for 18 years at his job because of his problems with thinking.  He said that after his surgery he had gained almost 100 pounds in about six months.  He also stated that he came out of service at 219 pounds.  The appellant further stated that he was always having to take medicine for constipation and that he had bad periods of depression and could not concentrate or think clearly.  He said that over the past 50 years he had taken many different prescriptions for his thyroid.  

In his March 2004 VA Form 9, the appellant stated that he suffered from constipation and that he could not handle the cold.  He said that, at work, he could not think and had memory problems.  He also stated that he was lucky to have had a supervisor who let him stay on, but with no promotions and little pay.  The appellant stated that he had told doctors for years how tired he was and that he was always constipated.  He further stated that he had been going to one particular physician (Dr. M) for years and that he had told this doctor for years about these things, but it was "not in his charts."  

In July 2004, the appellant wrote that he had been held back in his job for the State of Idaho because he could not pass the Civil Service test for promotions.  He also wrote that he had a terrible time in his house trying to sleep because it was always too hot and that he was sweating all of the time.  However, he also said that, at the same time, he would freeze in the slightest cold.

The appellant provided testimony in relation to his psychiatric claim under oath at a personal hearing held at the RO in July 2008.  He spoke at length about his in-service experiences, including his diagnosis and treatment for a thyroid condition, and his post-service work experiences.  He testified that he flunked his civil service examinations every time he tried to take one.  He said that his "memory is completely gone."  He testified that, but for the assistance of his supervisor at Fish and Game, he would not have been able to keep his job at all and that he could just not concentrate.  He said that he had been at Fish and Game for 28 years and that he stayed a helper for 18 years because he could not concentrate or think enough to pass examinations for civil service.  The appellant also testified that he had been constipated for years and that he was still constipated at the present time.  

Review of the appellant's SSA records reveals an August 1990 medical evaluation for diffuse joint pains performed for the Idaho Power and Light Company.  The appellant was noted to have retired from the Fish and Game Commission in 1985, and to have been working for Idaho Power for the past five years.  The appellant complained of feeling excessively warm and excessive sweating both day and night.  He reported that he had lost approximately 23 pounds at the urging of his physician.  He reported an episode of diarrhea and an at work right hip injury.  The examiner noted that the appellant was finding it increasingly difficult to perform his tasks and that he had been urged to get a medical retirement.

Review of the appellant's September 1990 application for SSA disability benefits reveals that he reported working for the Fish and Game Commission for 28 years and that for his last 10 years (he retired in June 1985), he had been the superintendent of the fish hatcheries.  He stated that, in this capacity, he had one or two employees, that he was responsible for all equipment, that he had large inventory and that he was responsible for monthly and yearly reports, as well as "lots of public relations."  Subsequent to his retirement, he went to work for the power company as a janitor.  He was promoted to a substation route reader.  He said that this entailed driving 450-500 miles per week, taking readings at 42 stations per week, with some readings having to be taken on the hour.  He stated that it had become impossible for him to do any work of any kind because of his arthritis in his hands, hip and leg.  There was no mention of any other mental or physical conditions that affected his ability to work.

The appellant has repeatedly contended that he suffers from fatigue, constipation, and problems with memory and concentration that are all due to his thyroid disability.  Review of the medical evidence of record reveals that both VA and private treatment notes reflect his complaints of fatigue.  For example, a July 2003 private physician (Dr. M) note indicates that the appellant has had some problems with fatigue which had been lifelong since the thyroidectomy.  The physician stated that the appellant had been able to go into the Navy for a while and that he was eventually kicked out of all of the services because of hypertension.  The doctor wrote that the appellant was eventually drafted by the Army and that "he even went over to the Korean conflict."  The appellant was noted to report problems with difficulty with memory that had been lifelong since the thyroidectomy.  He also complained of some ongoing constipation.  In an October 2006 progress note, this physician wrote concerning the appellant's hypothyroidism that he had been hypothyroid since he was in the military in 1951 or 1952, and that he had cold intolerance, weakness, slowing of thought, sleeplessness and cardiac problems all of which may be related.  The doctor also noted that the appellant had needed medication since he was in service.  However, treatment records from this physician dated between April 1999 and February 2002 include no mention of any of these symptoms other than weakness and fatigue.

A December 2006 report from a diabetes treatment center indicates that the appellant was seeking to tie together his complaints of weight gain, heart disease, foggy mental faculties, memory loss and fatigue and see if there was any association with his thyroid disability.  The appellant stated that he actually felt reasonably well but that he had had 10 years where he had felt terribly and markedly distracted (sic) his life.  The review of systems revealed complaints of chills, weight gain and fatigue in general.  As for the gastrointestinal system, the appellant reported constipation.  No medication for constipation was included in his list of active medications.  The physician discussed with the appellant that his history of mental fogginess, weight gain, fatigue, cold intolerance, fluctuations in body temperature, and constipation could all classically be associated with improperly replaced thyroid.  The physician indicated that this was the 10 year period when synthetic thyroid was not in existence to replace thyroid.  Finally, the doctor noted that the appellant did have continuous malaise and fatigue and stated that the appellant had "several other reasons that contributed to this."  In particular, the physician mentioned the appellant's sleep apnea, dysmetabolic syndrome and his need for weight loss.

Turning to the reports from the appellant's VA medical treatment dated between 2002 and 2009, the appellant denied fatigue, weight gain or loss, weakness, and constipation in September 2002.  In April 2003, the appellant complained of feeling tired which he attributed to the thyroid.  The appellant stated that he felt good and physically active with no limiting symptoms.  He denied constipation, dizziness, motor weakness, cold intolerance, and anxiety.  His weight was 255 pounds, and diet and exercise for his obesity was discussed with him.  A May 2003 note states that the appellant's doctor wanted him to follow a more strict diet and exercise routine for better control of his weight.  In December 2003, the appellant reported feeling tired, although he said he was physically active with no limiting symptoms.  He denied constipation.  Notations of no constipation and no cold intolerance were made in August 2004, June 2005, August 2005, and July 2006.  In November 2007, the appellant complained of constipation that was controlled with Metamucil.  He also complained of cold intolerance and an inability to lose weight.  He was noted to weigh 264 pounds and to not exercise.  In December 2007, the appellant's weight was down to 256 pound and his non-VA medications included Psyllium.  A February 2008 primary care note states that the appellant was complaining of memory loss with an onset years ago and more trouble with short term memory loss over the past few months.  The appellant was noted to have started hydrocodone at the same time as the recent concentration/memory problems.  The provider stated that it was possible that the hydrocodone was affecting the appellant's memory function.  His hypothyroidism was noted to be controlled.

The appellant underwent a VA medical examination in October 2009; the examining physician reviewed the claims file.  The appellant reported that he was not diagnosed as hypothyroid until 1973, and that he was placed on medication at that time.  He said that prior to that time he had quite a bit of trouble with memory problems and trouble following directions; these problems improved once he was started on thyroid replacement.  The appellant reported some fatigue for four to five years.  The examiner noted that the appellant had other medical problems that can cause fatigue.  The appellant stated that he could not stand heat or cold and that he had had constipation for years.  He also reported some memory loss with age over the last few years.  In August 2009, a thyroid ultrasound demonstrated residual thyroid tissue on the left.  In July 2009, the appellant's TSH level was noted to be normal.  The appellant reported having no energy.  The examiner noted a May 2007 cardiology note that showed nausea and weakness; these symptoms were said to improve after a cardiac medication was stopped.  The appellant weighed 246 pounds.  The examiner stated that it appeared that the appellant had been euthyroid for many years with medication.  The examiner noted that the goiter removal in service had a residual of hypothyroidism which was adequately treated with medication that made the appellant euthyroid.  The examiner stated that in the euthyroid state, the appellant's symptomatology from hypothyroidism should be nominal to none.  The examiner also noted that the appellant's fatigue had many other possible causes such as osteoarthritis, heart disease and diabetes.

A November 2010 opinion from a VA endocrinologist is of record.  The specialist stated that euthyroid is a term describing a normal thyroid state and that there are no symptoms associated with euthyroid as it is not a pathological state.  The specialist also stated, since 2002, the available laboratory values indicated that the appellant has been biochemically euthyroid on Synthroid replacement as prescribed.  

As previously noted, the appellant's service-connected thyroid disability is rated 10 percent under DC 7999-7903.  His specific disability is not listed on the Rating Schedule, and the RO assigned DC 7999-7903 pursuant to 38 C.F.R. § 4.27, which provides that unlisted disabilities requiring rating by analogy will be coded as the first two numbers of the most closely related body part and "99."  See 38 C.F.R. § 4.20.  The RO determined that the most closely analogous diagnostic code is 38 C.F.R. § 4.71a, DC 7903, for hypothyroidism.

Under DC 7903, a 10 percent rating is warranted for hypothyroidism with fatigability, or with continuous medication required for control.  A 30 percent rating is warranted for hypothyroidism with fatigability, constipation, and mental sluggishness.  A 60 percent rating is assigned when there is hypothyroidism with muscular weakness, mental disturbance, and weight gain.  A 100 percent rating is warranted for hypothyroidism with cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. 

The appellant maintains that he suffers from most of these symptoms and has stated that the symptoms have been in effect for many years - including back to his separation from service.  Therefore, the accuracy of the appellant's statements must be considered.  It is not a pleasant task for the Board to discount the appellant's credibility; however, in determining whether he manifests the symptoms needed for an increased evaluation for his service-connected thyroid disability, the Board must undertake a comparison of what the appellant claims with what the record shows.

The Board notes that the appellant has stated that he gained 100 pounds within six months after his thyroidectomy and that he weighed 219 pounds (a rather precise number) when he was discharged from service.  Review of his service medical records reveals that he weighed 137 pounds at the time of his pre-induction examination in December 1950, that he weighed 154 pounds in July 1952, and that he weighed 175 pounds at the time of his separation examination in February 1953.  At that time, he was 68 inches tall.

The appellant insists that he told many doctors about his list of symptoms over the years and argues that the doctors (VA and private) just never wrote down these symptoms.  Review of his medical records reveals multiple notations of where the appellant denied the specific symptoms, as well as notations of fatigue that was attributed to medical conditions other than the hypothyroidism.  

The appellant says that his memory is terrible and that he cannot concentrate, but yet he has able, since his initial claim in 2003, to submit long and detailed written statements filled with specific names and occurrences from many years ago.  Indeed, he is able to respond spontaneously to questions about his thyroid problems over the years with similar such long and detailed descriptions as reflected by his July 2008 personal hearing testimony.  

The appellant has proffered numerous written statements and testimony under oath to the effect that he was never able to get promotions at work because he was mentally incapable and that he was just a helper for 18 years.  However, he very carefully never mentioned his promotion to the position of superintendent after 18 years on the job or his service in that higher level capacity for ten years.  He did describe his duties as superintendent in detail for his SSA claim, but never in his VA claim.  He also carefully failed to mention his hiring by the power company as a janitor in 1985, and his promotion to substation route reader.  He described himself to VA as incapable of any task at work without help, but described himself to SSA as performing job duties that entailed his driving 450 to 500 miles a week to find 42 substations and take multiple readings often at precise times.  The evidence of record demonstrates that he performed these tasks for many months, and only stopped due to orthopedic problems in 1990.  There is no indication that his euthyroid condition played any part in his award of SSA disability benefits.

The evidence of record includes one private treatment note that reflects the appellant's report of symptoms of fatigue, cold intolerance, weight gain, and constipation.  However, the physician also stated that the appellant had been hypothyroid since the early 1950s and that he had needed medication since service.  The evidence of record refutes these statements.  As noted by the October 2009 VA examiner and the two November 2010 VA specialist opinions, the appellant underwent a subtotal thyroidectomy in service and the residual thyroid tissue functioned until about 1972, when he was initially put on thyroid medication.  Clearly this physician did not review the appellant's medical records, and relied on what the appellant told him.  (Confusion about the actual facts of the appellant's history is also reflected in this doctor's July 2003 notations that the appellant had been in the Navy, had been kicked out of the Navy for hypertension, and had served in Korea in the Army.)  The Board notes that the doctor's statement that the appellant had cold intolerance, weakness, slowing of thought and sleeplessness exactly tracks the order of those symptoms in the 100 percent rating for hypothyroidism under Diagnostic Code 7903.  Except, of course, that it should be sleepiness and not sleeplessness.  These symptoms are not mentioned anywhere else in this physician's records, either.

After carefully reviewing the evidence of record, the Board finds the preponderance of the evidence is against the grant of an increased evaluation for the Veteran's service-connected thyroid disability.  The findings needed for the next higher evaluation are not currently demonstrated.  Review of the evidence shows the Veteran's service-connected thyroid disability requires continuous medication for control.  

Although the appellant has reported having many of the symptoms listed for an increased evaluation under DC 7903, the Board finds an increased rating is not warranted for the following reasons.  As noted above, in order for a 30 percent rating to be granted, there must be evidence that a claimant has fatigability, constipation, and mental sluggishness.  The Board notes the evidence does show that the appellant has complained of fatigue to VA and private doctors on various occasions.  However, this symptom has generally been associated with conditions (osteoarthritis, cardiac disease, diabetes, sleep apnea, and dysmetabolic syndrome, for example) other than the service-connected thyroid disability.  In addition, while the appellant has reported mental sluggishness for many years, his employment record indicates he did not have any such mental symptoms between 1975 and 1990.  Furthermore, his complaint of memory difficulties in the past few years has been associated with non-thyroid medications and age-related deficits.  In addition, there is no clear evidence of record that the appellant has constipation or, more importantly if he does, that the constipation is caused by the thyroid disability.  In particular, because the objective evidence of record demonstrates that the appellant has been in a euthyroid state since 2002, and because a euthyroid state by definition reflects no symptomatology, it cannot be said that the appellant has constipation that is due to his service-connected disability.  Therefore, the Board finds an evaluation in excess of 10 percent is not warranted in this case.

In addition, the Board notes the evidence does not show the appellant has bradycardia associated with his service-connected thyroid disability as the objective medical evidence of record shows that his pulse has been at least 60 or more beats per minute.  A March 2010 VA psychiatric examination yielded no diagnosis on Axis I.  Moreover, there is no evidence showing the appellant has ever complained of sleepiness associated with his service-connected disability.  In sum, the Board finds that the 10 percent disability rating currently assigned adequately reflects the functional impairment associated with the appellant's service-connected thyroid disability as there is no competent evidence of record showing he exhibits the symptomatology that is required for the assignment of an increased rating under DC 7903.  The findings needed for an evaluation in excess of 10 percent are not demonstrated in the evidence of record.

Notwithstanding the above discussion, an increased evaluation for the claimed disability could be granted if it were demonstrated that the particular disability presented such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1).  Given the appellant's complaints associated with employment, the Board has considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1).  See Barringer v. Peake, 22 Vet. App. 242 (2008).  

However, the record reflects that the appellant has not required any hospitalization for his thyroid disability over the course of this appeal, and that the manifestations of the thyroid disability are not in excess of those contemplated by the currently assigned rating.  Furthermore, although the appellant might experience occupational impairment, there is no indication in the record that the average industrial impairment from the thyroid disability would be in excess of that contemplated by the currently assigned 10 percent rating.  The Court has held that, "if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required."  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  

The Board finds no evidence that the thyroid disability on appeal presents such an unusual or exceptional disability picture as to require an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b).  As discussed above, there are higher ratings available for this disability, but the required manifestation have not been shown in this case.  The appellant has not offered any objective evidence of any symptoms due to the thyroid disability on appeal that would render impractical the application of the regular schedular standards.  Consequently, the Board concludes that referral of this case for consideration of an extraschedular rating for the disability on appeal is not warranted in this case.  See Floyd v. Brown, 8 Vet. App. 88, 96 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-339 (1996) (when evaluating an increased rating claim, it is well established that the Board may affirm an RO's conclusion that a claim does not meet the criteria for submission for an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1), or may reach such a conclusion on its own). 

In this case, the various symptoms described by the appellant fit squarely within the criteria found in the relevant diagnostic codes for the thyroid disability on appeal.  In short, the rating criteria contemplate not only his symptoms but the severity of his disability.  For these reasons, referral for extraschedular consideration is not warranted.

The Board acknowledges that the appellant, in advancing this appeal, believes that his thyroid disability on appeal has been more severe than the assigned disability rating reflects.  Medical evidence is generally required to probatively address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes.  Espiritu v. Derwinski, supra.  However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). 

The Board has carefully considered the appellant's contentions and arguments.  In this case, however, the competent medical evidence offering detailed descriptions of the euthyroid nature of the thyroid disability and specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the claimed symptoms for the disability on appeal.  The lay statements have been considered together with the probative medical evidence clinically evaluating the severity of the thyroid disability.  The preponderance of the most probative evidence does not support the assignment of an evaluation in excess of the currently assigned 10 percent evaluation.

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470.  He is not, however, competent to identify a specific level of disability of a disability according to the appropriate diagnostic code.  See Robinson v. Shinseki, 557 F.3d 1355 (2009).  The same analysis holds true for the statements of the Veteran's attorney.

Such competent evidence concerning the nature and extent of the euthyroid thyroid disability has been provided by the medical personnel who have examined the Veteran and his medical records during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.  The medical findings (as provided in the examination reports, medical opinion reports and treatment notes) directly address the criteria under which the thyroid disability has been evaluated.  

The Board has carefully considered the appellant's contentions and arguments; however, the competent medical evidence offering detailed descriptions of the euthyroid nature of the thyroid disability and specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating whether an increased evaluation is warranted.  The lay statements have been considered together with the probative medical evidence clinically evaluating the severity of the disability on appeal.  The preponderance of the most probative evidence does not support assignment of any higher rating.  The findings needed for the next higher evaluation are not currently demonstrated.  Because the preponderance of the evidence is against the appellant's increased rating claim, the benefit-of-the-doubt doctrine is inapplicable.  See Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

A decision of the Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.  

As reflected in the decision above, the Board did not find variation in the appellant's claimed symptomatology or clinical findings for the manifestations of the thyroid disability that would warrant the assignment of any staged rating, as the Court has indicated can be done in this type of case.  The Board did not find any variation in the clinical manifestations of the claimed disability at any point during the appellate period.  Based upon the record, the Board finds that at no time during the claim/appellate period has the thyroid disability on appeal been more disabling than as currently rated.

B.  Service connection claim

A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.  Watson v. Brown, 4 Vet. App. 309, 314 (1993).  The resolution of this issue must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which the claimant served, his medical records and all pertinent medical and lay evidence.  Determinations relative to service connection will be based on review of the entire evidence of record.  38 C.F.R. § 3.303(a).  There must be medical evidence of a nexus relating an in-service event, disease, or injury, and a current disability.  Caluza v. Brown, 7 Vet. App. 498 (1995), Grottveit v. Brown, 5 Vet. App. 91 (1993).

To establish service connection for a disability, symptoms during service, or within a reasonable time thereafter, must be identifiable as manifestations of a chronic disease or permanent effects of an injury.  Further, a present disability must exist and it must be shown that the present disability is the same disease or injury, or the result of disease or injury incurred in or made worse by the appellant's military service.  Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 3.303(a).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  

Furthermore, the law provides that, where a veteran served ninety days or more of active military service, and certain chronic diseases, such as diseases of the cardiovascular system (e.g., hypertension), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.

When a veteran is found not to be entitled to a legal presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a another basis.  See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994).  In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Under 38 C.F.R. § 3.310(a), service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  Where a service-connected disability aggravates a non-service-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Aggravation will be established by determining the baseline level of severity of the non-service-connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level.  38 C.F.R. § 3.310(b).

During the pendency of this claim and appeal, an amendment was made to the provisions of 38 C.F.R. § 3.310.  71 Fed. Reg. 52,744-47 (Sept. 7, 2006).  The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged.  Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, supra, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of secondary service connection may be made.  This had not been VA's practice, which suggests that the recent change amounts to a substantive change.  The present case predates the regulatory change.  Given what appear to be substantive changes, our analysis of secondary service connection in the present appeal considers the version of 38 C.F.R. § 3.310 in effect before the change, which version is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made.

For VA purposes, hypertension means that the diastolic blood pressure is predominantly 90 mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm.  See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1.

The appellant is seeking service connection for hypertension, to include as secondary to his service-connected thyroid disability.  He contends that his service-connected thyroid disability has affected many of his bodily functions, including his blood pressure.  The Board notes that, while the appellant was in service, he underwent a subtotal thyroidectomy to treat his hyperthyroidism.  His postoperative course was good until many years after service when he was diagnosed with hypothyroidism; he currently takes medication for that condition.  In support of his claim for service connection, the appellant specifically asserts that service connection for hypertension is warranted because the hyperthyroidism he manifested in service caused him to have high blood pressure after service. 

Review of the evidence of record reveals that a VA Form FL 21-104 was filled out by a private physician in February 1973.  The doctor indicated that he had treated the appellant between 1969 and 1972.  In 1969, the appellant's chief complaint was pain in his outer left chest.  His blood pressure was 140/100.  In 1970, the appellant's chief complaint was numbness of his legs and pain in his wrists.  Blood pressure readings were 170/120, 150/100 and 140/100.  In 1971, the appellant complained of stomach problems.  In March 1972, the appellant sought treatment after having passed out three weeks prior.  He complained of much gas and liquid stool.  His blood pressure was 150/100.  The appellant was put on Cytomel at that time.  The physician stated that laboratory test results for the appellant were within normal limits in May 1972.  The appellant was last seen by this doctor on June 10, 1972; the appellant's blood pressure was 118/80 at that time.  The doctor stated that the appellant was taking Cytomel.

Review of the evidence of record also reveals that a review of the appellant's medical history was undertaken by a VA physician in March 1973.  The reviewer noted that the appellant had undergone a thyroidectomy 20 years before for hyperthyroidism.  The reviewer stated that the appellant had developed hypothyroidism gradually, and that the diagnosis had been confirmed one year prior to the review.  The reviewer noted that the appellant had been placed on Cytomel and that, with this medication, the appellant had noted a significant improvement.  The reviewer concluded that the appellant was euthyroid at the present time.  

The evidence of record contains a letter from the appellant's treating internist; the letter is dated in April 1973.  In that letter, the private internist noted the appellant's 1952 surgery and stated that since then the appellant had not had any replacement therapy.  This physician further stated that the appellant had "gained a slight amount of weight" and had not felt well.  After he was started on Cytomel, he markedly improved with about a 20 pound weight reduction and an improvement in his wellbeing.  This doctor noted that the appellant's other nonspecific symptoms, such as syncopal episodes, also subsided after he was started on Cytomel by another physician.  The internist stated that the appellant had responded clinically to the Cytomel and that he should continue on Cytomel.

In a May 1973 letter to VA, the appellant himself stated that when his doctor put him on thyroid medicine, he "came right out of it."  He stated that he had "not had any problems in the past year."  The appellant further stated that he had lost 25 pounds as he was getting heavy from a slow thyroid.  He noted that this phenomenon had also existed after his operation overseas and that it had taken a while to lose the weight then.  He also stated that he had experienced problems for three or four years after his discharge; that his thyroid had leveled off after a while and then he started feeling better; and that he had not put in for any compensation because he had thought that he would not have any more trouble.  He said that he had seen a doctor for treatment on 10 occasions after he got out of service.  He further stated that he had experienced symptoms such as tiredness and suffering with cold over the prior three years before he found out it was his thyroid again.  The appellant wrote, "But now I feel good."  

A February 1989 private medical record indicates that the appellant had no history of heart disease.  He was on asthma medications as well as prednisone.  A March 1989 VA treatment record states that the appellant did not have any cardiac disease.  The report from the August 1990 Workers Compensation evaluation reflects a blood pressure reading of 120/72 and a weight of 210 pounds.  A September 2002 VA treatment record indicates that the appellant had been diagnosed with hypertension in 1994. 

The appellant underwent a VA medical examination in June 2003; the examiner reviewed the claims file.  On physical examination, the appellant's blood pressure reading was 180/90 in the right arm and 170/80 in the left arm.  After examining him and reviewing the appellant's medical history, the examiner rendered a diagnosis of benign hypertensive vascular disease.  The VA examiner noted that the appellant had manifested hypertension for a number of years and also noted that systolic hypertension can be, and often is, a manifestation of hyperthyroidism.  However, the VA examiner opined that the appellant's current hypertension was less likely than not due to his currently manifested hypothyroidism. 

A March 2005 Pocatello Cardiology note states that the appellant had systemic hypertension with secondary diastolic heart failure; normal ejection fraction; no evidence of coronary disease; and pulmonary hypertension secondary to sleep apnea.  A November 2006 written statement from the appellant's private cardiologist states that the appellant's current heart condition was caused by his longstanding hypertension.  

The appellant underwent a VA medical examination in October 2009; the examiner reviewed the claims file.  The examiner noted that the appellant's service medical records had indicated a diagnosis of hypertension in 1950, prior to service.  The appellant stated that he took medication for a couple of months prior to service, but not in service.  He was unsure of when he started to take medication for hypertension after service, but he thought it was more than 10 years prior.  The examiner noted a prior medical history that included atrial fibrillation and hypertension.  The examiner also noted that the appellant had become normotensive after his in-service thyroid surgery.  The examiner stated that the hypertension caused by the hyperthyroidism was resolved after the thyroid surgery and that the hypertension that was diagnosed subsequently would be considered essential hypertension unless it was caused by some other condition.  However, the appellant's hypertension was not caused by the in-service hyperthyroidism because that condition had ceased to exist prior to his separation from service.  The examiner stated that hypothyroidism did not cause hypertension.  The examiner explained that the goiter removal caused a residual of hypothyroidism and that this was adequately treated which made the appellant euthyroid.  The examiner concluded that the appellant's current hypertension was not caused by or the result of the service-connected residuals of the toxic goiter.  The examiner also opined that it was less likely than not that the appellant's hypertension was aggravated by the thyroid disability and that the current atrial fibrillation was not secondary to the thyroid disability.  The examiner indicated that it was plausible that the appellant did gain a bit of weight after active duty since he had a history of a delay in starting thyroid replacement.

The evidence of record includes a VA medical opinion from an endocrinologist dated in November 2010; the opinion was based on a review of the claims file.  The reviewer stated that the appellant had been in a euthymic state since 2002, and that systolic hypertension is seen in hyperthyroidism.  The endocrinologist further stated that there was no evidence that the hyperthyroid state initially noted in service and treated by a thyroidectomy in 1952 led to any chronic or permanent cardiovascular state while in service.  The hypertension noted prior to the surgery was almost certainly related to the hyperthyroid state as it was isolated systolic hypertension.  Post-operatively, however, the appellant's blood pressure and pulse returned to normal and there was no evidence of any sequelae while in service.  The appellant presented in 1973 with signs, symptoms and laboratory evidence of hypothyroidism.  His hypertension diagnosis was first stated in 1994.  

In analyzing the issue, the endocrinologist stated that there was no evidence linking the hypothyroidism, which was being adequately treated to a euthyroid state, to the onset of the appellant's hypertension.  There was no documentation in the appellant's record of hypertension being present until 40 years after his initial thyroid surgery.  The endocrinologist therefore concluded that the post-surgical hypothyroidism was not the cause of the appellant's hypertension.  Further, the reviewer concluded that the appellant's obesity was not caused by his hypothyroidism, since the hypothyroidism developed at some point during the 20 years following surgery and because the amount of weight gain in the appellant was far in excess of that which would be expected due to hypothyroidism.  The specialist concluded that the appellant's obesity was not related to the thyroid disability, in that it would be highly unusual for marked obesity to occur solely related to hypothyroidism itself and it is virtually never seen in a patient on adequate replacement.  The endocrinologist stated that it cannot then be concluded that the appellant's weight gain was directly and solely the result of his hypothyroidism, and certainly not following treatment for the same.

The reviewing endocrinologist further stated that he was not aware of a causal link between Type II diabetes and hypothyroidism.  

The Board also sought a medical opinion from a cardiologist, who rendered an opinion in November 2010, after a review of the claims file.  The cardiologist stated that hypothyroidism does not cause longstanding or chronic hypertension.  The cardiologist stated that the appellant has essential hypertension and that essential hypertension is idiopathic, in that it has no specific etiology and will occur in upwards of 90 percent of the American population at some point in their lives.  The reviewer said the appellant's atrial fibrillation had multiple causes, including hypertension and sleep apnea and that diastolic heart failure leads to pericardial disease.  The cardiologist further stated that the appellant's in-service hyperthyroidism was transient and preceded the development of his atrial fibrillation by nearly 40 years; it was felt to not be a causative factor.  The appellant's diastolic dysfunction/heart failure was secondary to the diastolic dysfunction that was found in March 2005.  The appellant developed chronic heart failure in March 2005.  The cardiologist stated that the appellant had several reasons for his pulmonary hypertension: left ventricle diastolic dysfunction, sleep apnea, and a past smoking history.  

The reviewing cardiologist also stated that there was zero evidence that the appellant's in-service hyperthyroidism led to a chronic heart problem in service or beyond.  The specialist noted that there was no evidence in the record that the appellant was hypothyroid between 1953 and 1973.  The cardiologist opined that the appellant's residual thyroid tissue played out in 1973, then became hypothyroid with the appellant then presenting and being given appropriate treatment.  Hypothyroidism would be a contributory factor to hypertension in only a small percentage of patients.  The cardiologist concluded that the appellant's hypothyroidism was not the cause of any post-service cardiac pathology, or of his hypertension.  

The specialist stated that obesity is a relative risk factor for hypertension; it may be causal or aggravating.  The cardiologist stated that there is no correlation between obesity, per se, and atrial fibrillation.  The cardiologist further stated that the appellant's current conditions of hypertension, atrial fibrillation and chronic heart failure were unlikely related to his active service and that it was less likely as not that any of the appellant's cardiac illnesses were related to his hypothyroidism. 

In March 2011, the appellant's attorney submitted a medical opinion from the appellant's treating private endocrinologist that was in response to the November 2010 VHA medical opinion from a VA endocrinologist.  The private endocrinologist did not address the November 2010 VHA opinion from the VA cardiologist.  It is unknown what records the private endocrinologist reviewed in connection with the generation of his March 2011 medical opinion.  

The private endocrinologist stated that he wanted to address salient points that had not been accorded sufficient weight in the analysis of the appellant's case.  The private doctor stated that the appellant developed symptoms consistent with hypothyroidism in the months after his discharge.  The doctor further stated that these symptoms, as reflected in the history given by the appellant to a private psychologist in February 2009, included depression and fatigue.  However, review of that February 2009 psychological evaluation report does not reveal any such mention of any symptoms that occurred in the months after the appellant's discharge - only symptoms during service and current symptoms were mentioned.  The private psychologist did note, however, that the appellant reported a period of enjoyment of his service which began following the surgical intervention in Germany.

The private endocrinologist stated that the appellant's hypothyroidism had not been recognized until 20 years later in 1973, and opined that the 20 years of untreated hypothyroidism with its chronic fatigue and depression was more than sufficient to have been a significant contributor to the development of the appellant's obesity.  The doctor stated that the appellant's recent euthyroid state did not obviate the consequences of 20 years of untreated hypothyroidism.  The private physician further opined that the lack of diagnosis and treatment of the appellant's hypothyroidism were important contributors to the development of his obesity which was a prime factor in his hypertension.  He stated that hypothyroidism itself can lead to hypertension, independent of obesity.  The private endocrinologist went on to say that the fatigue and depression due to 20 years of unrecognized and untreated hypothyroidism were certainly aggravating factors in the development of the appellant's obesity.  However, he did acknowledge that it was true that short-term hypothyroidism and modest degrees of hypothyroidism are not significant etiologies of significant obesity; but, he said that the appellant's hypothyroidism "was neither short-term nor modest."  The endocrinologist did not cite to any objective clinical data to support this statement.

In addition, the private endocrinologist stated that the appellant had had 20 years of debilitating fatigue and depression from his significant untreated hypothyroidism.  He said that the period after treatment was initiated, in 1973, was not the important consideration and that the period with the untreated active hypothyroidism was the period from which the appellant's obesity arises.  The private endocrinologist concluded that the appellant's untreated active hypothyroidism was a significant aggravating factor in the appellant's development of obesity and hypertension.

However, the private endocrinologist does not explain why the hypertension was not diagnosed until between August 1990, when the appellant had a normal blood pressure, and 1994, when he was first treated for hypertension.  The private endocrinologist does not cite to the contemporaneous evidence from the early 1970s which contradicts the version of events used to support his conclusion.  To wit, the contemporaneous evidence shows that the appellant developed hypothyroidism gradually, that he had gained a slight amount of weight, that he had lost 25 pounds by May 1973, and that he had lost weight after he gained some weight soon after his thyroidectomy.  The clinical treatment notes dated between 1969 and 1973 do not reveal any complaints of extreme fatigue or debilitating depression.  The appellant himself wrote that he did get medical treatment after he was discharged, that he was approved by VA for medical treatment of his thyroid and he only described some problems for about three years after service that went away until about three years before he was given thyroid medication (in 1972).  That would mean that he had over 13 years without problems.

The March 2011 private endocrinologist's opinion does not point to any clinical data dated between 1953 and 1973 that would support his hypotheses.  The private endocrinologist did not address the VHA endocrinology opinion that the amount of weight gain in the appellant was far in excess of that which would be expected due to hypothyroidism (with reference to medical literature).  The private endocrinologist did not address the other causes of hypertension for the appellant that were noted in the November 2010 VHA cardiology opinion, nor did he explain why the hypothyroidism was the cause of the hypertension, as opposed to other possible causes.  

An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached.  The credibility and weight to be attached to such opinions are within the province of the Board as adjudicator.  Guerrieri v. Brown, 4 Vet. App. 467 (1993).  Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36 (1994).  The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion.  Sklar v. Brown, 5 Vet. App. 140 (1993).

The Board finds the determinations of the October 2009 VA examiner, and the opinions rendered in November 2010 by the two VHA specialists, collectively indicating that neither the appellant's current cardiac problems, including hypertension, nor his obesity were caused or aggravated by any incident of service or by the service-connected thyroid disability, to be more probative and persuasive than the March 2011 private medical opinion of record.  Those VA findings and opinions were based on a thorough and detailed examination of the claims file and supported by adequate and persuasive rationales.  Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the physician's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion).  In this case, the private medical opinion includes no reference to the contrary contemporaneous evidence of record to include private treatment records and written statements of the appellant, for the period from 1953 to 1973.  Although a physician can render a current diagnosis based on examination of a claimant, without a thorough review of the record, a medical opinion regarding etiology if based on facts reported by the claimant can be no better than the facts alleged by the claimant.  See Swann v. Brown, 5 Vet. App. 229 (1993).  The Board observes that, without a review of the claims file in this case, the private endocrinologist was unable to review the appellant's medical history from 1953 to 1973, and thereby provide a fully informed opinion.  See also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Particularly when the contemporaneous evidence of record paints a different picture of the appellant's physical condition at the time in question.  The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, or based on an examination of limited scope, or where the basis for the opinion is not stated.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993).  Given these circumstances, the private endocrinologist's opinion has little probative value in this matter.

The evidence of record also includes articles and extracts of articles relating to hypertension, hypothyroidism, and body mass index (BMI).  The appellant obtained this information from the internet and submitted it without any reference to it by any health care professional.  In addition, he has not explained how these articles relate to his claim.  The Court has held that generic medical literature which does not apply medical principles regarding causation or etiology to the facts of an individual case does not provide competent evidence to establish the nexus element.  See Libertine v. Brown, 9 Vet. App. 521, 523 (1996).  Medical treatise information may be regarded as competent evidence where "standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion."  Wallin v. West, 11 Vet. App. 509, 513 (1998).

None of the material submitted in this case appears to meet the standard set forth in Wallin, because none of it delves into an association between the Veteran's service or his service-connected hypothyroidism and his currently demonstrated obesity, hypertension, or any other cardiac condition.  These articles and excerpts proffered by the appellant are not regarded as germane, as not one of them applies the specific facts to this specific case.  Sacks v. West, 11 Vet. App. 314, 317 (1998).

Service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints.  The Board finds that the preponderance of the competent evidence is against a finding of a nexus between the Veteran's obesity, hypertension or any other cardiac disorder and his active service, including his service-connected hypothyroidism disability, despite his contentions to the contrary.  In that regard the Board finds substantially probative the October 2009 and November 2010 VA medical opinions undertaken specifically to address the matter on appeal.  These opinions were rendered after review of the appellant's claims file, including his service medical records; the opinions are clearly based on an accurate history.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (finding that a physician's access to the claims file and the thoroughness and detail of the opinion are important factors in assessing the probative value of a medical opinion).

The only evidence of record to support the appellant's contentions comes from two sources.  First, an October 2006 private physician note in which the doctor indicated that the appellant had cold intolerance, weakness, slowing of thought, sleeplessness, and cardiac problems all of which may be related.  However, the Board finds that this statement is of minimal probative value, because it is generic in nature and does not provide a medical rationale which is specific to the appellant's medical history.  Instead the statement refers to a general or possible relationship between hypothyroid symptoms and cardiac disorders.  

The Board notes that the award of benefits may not be predicated on a resort to speculation or remote possibility.  38 C.F.R. § 3.102; see Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (physician's comment couched in terms of "may or may not" was held to be speculative); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that the veteran "may" have had pertinent symptoms also implied "may or may not", and was deemed speculative).  Any medical opinion to the effect that it is possible that there is some connection between the appellant's thyroid disability and his hypertension or other cardiac disorder is therefore not probative.

The second item of evidence that supports the appellant's contentions is the March 2011 private endocrinology opinion.  However, the Board finds that this medical opinion is minimally probative, because it does not provide a medical rationale that is specific to the appellant's medical history - particularly the evidence of record dated between 1953 and 1973, which the private endocrinologist states is the only period that matters.  There is no contemporaneous evidence of record to support the endocrinologist's statements that the appellant was significantly hypothyroid between 1953 and 1973, that he was obese or unable to lose weight between 1953 and 1973, or that he had debilitating fatigue and depression between 1953 and 1973.  It appears that this private endocrinologist - who first treated the appellant in July 2009 - is basing his conclusions on a history given by the appellant without any access to the appellant's actual medical record from 1953 to 1973.  In addition, the private endocrinologist cites for support to a July 2009 psychological evaluation wherein the appellant was noted on psychological testing to have mental deficits often found in aging individuals and to seem "mildly confused" at times.  For example, the appellant reported being diagnosed with sleep apnea in the 1960s.

Further, with respect to presumptive service connection, the evidence does not show that the hypertension from the in-service hyperthyroidism was other than acute and transitory or that any hypertension was manifested to a compensable degree within a year of the Veteran's discharge from service in 1953.  The first evidence of chronic post-service hypertension in the record occurs in the early 1990s.  Accordingly, service connection is not warranted on a direct basis or a presumptive basis for the appellant's active duty.

The evidence of record also does not show that it is at least as likely as not that the appellant's currently diagnosed hypertension or any other current cardiac disorder is causally related in any way to his service-connected thyroid disability.  There are three competent and probative medical opinions of record which specifically state that there is no etiologic connection between the appellant cardiac pathology and his service-connected thyroid disability, including by way of aggravation.  On the other hand, there is a private endocrinology opinion which puts forth the proposition that the appellant had significant hypothyroidism, untreated between 1953 and 1973, which led to the onset of obesity which in turn led to at least aggravation of the appellant's hypertension that was initially diagnosed approximately 20 years after the appellant was started on thyroid medication in 1972.  However, while the opinion is competent, the Board does not find the opinion to be persuasive.

The Board has considered the appellant's statements and sworn testimony asserting a nexus between his currently-diagnosed cardiac disorders (including hypertension), and his military service.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

The Board recognizes the sincerity of the arguments advanced by the appellant that he has a cardiac disorder that is related to his military service.  It is true that a veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  While the appellant is competent to say that he was diagnosed with hypertension while in service and now, he does not have the expertise to state that there is an etiologic relationship between his thyroid disability and any current cardiac disorder; a medical opinion would be required.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009).  The same hold true for the appellant's attorney.  Thus, the Board cannot give decisive probative weight to the opinions of the appellant and his attorney as to the etiology of his claimed cardiac disorder, because they are not qualified to offer such opinions. 

To the extent that lay assertions are offered in an attempt to establish a medical finding of aggravation of the appellant's cardiac pathology by the service-connected thyroid disability, such an attempt must fail.  The matter of aggravation of a disability is within the province of trained medical professionals.  See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994).  As neither the appellant nor his attorney has been shown to be other than a layperson without the appropriate medical training and expertise, neither of them is competent to render a probative (persuasive) opinion on a medical matter.  Hence, the lay assertions in this regard have no probative value.

After consideration of the entire record and the relevant law and cases, the Board finds that the appellant's claimed cardiac disorder, including hypertension, is not related to his active service.  While it is apparent that the appellant does suffer from hypertension and other cardiac disorders, the medical evidence of record as a whole supports the proposition that there is no etiological relationship between the origin and/or severity of any such condition and service.  The Board has scrutinized the record with a view towards ascertaining whether there is any basis (e.g., direct, presumptive or secondary) to indicate that the claimed disorder was incurred by any incident of military service, but it has gleaned no such supporting evidence or suggestion thereof.  Schroeder v. West, 212 F.3d 1265 (Fed. Cir 2000); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994) (Both for the general proposition that in claims involving presumptive service connection, the Board must also examine the evidence of record to ascertain if there is any other basis upon which to develop or grant the claim, including direct service connection).  See Bingham v. Principi, 421 F.3d 1346 (Fed. Cir. 2005); Roebuck v. Nicholson, 20 Vet. App. 307, 312-313 (2006).

Therefore, the Board finds that the preponderance of the evidence is against the appellant's claim of service connection for a cardiac disorder, to include as secondary to service-connection disability and by way of aggravation.  As a result, the evidence is insufficient to support a grant of service connection for any cardiac disorder, including hypertension.  For the above reasons, the Board finds that the preponderance of the evidence is against the appellant's cardiac disorder claim.  Because the preponderance of the evidence is against the cardiac disorder service connection claim, the benefit of the doubt doctrine does not apply.  Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).


ORDER

Entitlement to an evaluation in excess of 10 percent for the thyroid disability is denied.

Entitlement to service connection for a cardiac disorder, to include hypertension, and claimed as secondary to the service-connected thyroid disability, is denied. 



___________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs