Citation Nr: 1300945 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 08-22 585 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a claimed thoracolumbar disorder. 2. Entitlement to service connection for a claimed hypothyroidism. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran had active service from December 1985 to December 1989, November 2001 to March 2003, and December 2005 to May 2006; she served in the Air Force Reserve. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the RO. In August 2008, the Veteran testified at a local hearing; a transcript of this hearing is associated with the claims file. The Board has reviewed the contents of the Veteran's Virtual VA file and found that there is additional medical evidence pertinent to this appeal that is not in his claims file but that was considered by the RO in the July 2012 supplemental statement of the case (SSOC). FINDINGS OF FACT 1. The currently demonstrated thoracolumbar degenerative changes are shown as likely as not to have had its clinical onset during the Veteran's active service. 2. The pre-existing hypothyroidism is shown as likely as not to have been aggravated by the Veteran's second period of active service. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, her thoracolumbar disability is due to disease or injury that was incurred in ACDUDTRA. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. By extending the benefit of the doubt to the Veteran, her pre-existing hypothyroidism was aggravated by active service. 38 U.S.C.A. §§ 1110, 1111, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.306, 4.9, 4.127 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant 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 VCAA notice 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. 38 C.F.R. § 3.159(b)(1) (including as amended effective on May 30, 2008, 73 Fed. Reg. 23353 (Apr. 30, 2008)). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that the notice requirements of VCAA applied to all 5 elements of a service connection claim (i.e., to include the rating assigned and the effective date of award). A June 2006 pre-decisional letter informed the Veteran of the evidence and information necessary to substantiate her claims, the information required of her to enable VA to obtain evidence in support of her claim for service connection, and the assistance that VA would provide to obtain information and evidence in support of her claims. She was also provided notice of disability ratings and effective dates of awards. Regarding the duty to assist, the RO obtained all available pertinent records to include VA and non-VA medical records, and medical opinions were obtained that are adequate to decide the claims. Therefore, because VA's duties to notify and assist have been met and since the decision below is favorable, there is no prejudice to the Veteran in adjudicating this appeal. Legal Criteria Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Under 38 C.F.R. § 3.303(b) , an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis A. Thoracic and Lumbar Spine Disorder The Veteran contends that her current thoracic and lumbar spine disorders are related to an injury sustained in service and was aggravated by the carrying and moving of heavy "mobility bags" during service. The Veteran's service treatment records show that, prior to the May 1991 injury in service, there was no evidence of a low back disorder. The October 1985 enlistment examination revealed that her spine was normal. Similarly, a February 1990 periodic medical examination showed that the Veteran's spine was normal. On an associated medical history report, it shows that the Veteran provided a negative response to having recurrent back pain. The Veteran's service treatment records show that, during her annual tour (i.e., ACDUTRA) from May 18, 1991 to June 1, 1991, she received emergency care on May 28. The chief complaint was noted as a twisting injury to T2 while swimming. A follow-up record 3 days later provides more detail and notes that the Veteran was knocked down in the surf and scraped her chin and left shoulder. She had slight pain on twisting motion involving her back and neck. The assessment was that of musculoskeletal stiffness. During a period of paid inactive duty in July 1991, the Veteran was seen for left shoulder pain. However, the record also notes L1-L2 dorsal spinous ligament status post injury. Initial x-ray studies were within normal limits, and the impression included that of a partial tear/dorsal spinous ligament. A January 1994 periodic service examination shows that an evaluation of the spine was normal. An associated medical history report shows that a negative response was given for having recurrent back pain. A March 1997 physical therapy record indicates that the Veteran reported having a 6 to 7 year history of pain in the neck, back, and upper extremities that followed an accident involving an ocean wave. The x-ray studies did not reveal any structural damage to the bones, and the diagnosis was that of fibromyalgia. A December 1998 periodic service examination indicates that the Veteran's recurrent back pain was secondary to fibromyalgia. The associated medical history note indicates that she had had fibromyalgia since 1995. A January 2001 treatment record from a private hospital indicates that the Veteran was involved in a car accident. These records indicate that she was restrained in the car and had injuries to her nose and arms. No back complaints were noted. During the Veteran's second period of active service, she was evaluated by Dr. M. C. in October 2002 for multiple complaints that included upper and lower back pain. A February 2003 post deployment health assessment indicates that she had unresolved back problems. A medical assessment shows that a positive response was given for having recurrent neck or back pain or any back problems. The diagnoses included that of mid-thoracic myalgias. A March 2003 service dental medical history record indicates that the Veteran had treatment in the past year for her back, which was noted by the dentist as related to fibromyalgia. A March 2003 letter from Dr. M. C. states that the Veteran was re-evaluated for upper and lower back pain. Her current complaints were localized to the mid thoracic and upper cervical regions. A September 2005 service treatment record notes the Veteran's complaints regarding carrying heavy equipment bags, but the complaints relate to her shoulder. The May 2006 x-ray studies of the thoracic and lumbar spine were unremarkable. A letter dated in June "2005" (the Board notes that the year is more likely 2006) from Dr. A. A. states that the recent X-ray studies in May 2006 were read as normal by radiology. However, the physician found that the Veteran did have some mild degenerative joint disease in the thoracic spine with osteophyte formation on the vertebral bodies from T4 to T9 and that T4/T5 was rotated right and side-bent left. The symptoms were noted to indicate slight instability in the thoracic spine, which probably reflected her ongoing discomfort and complaints regarding this region of her back. A June 2006 treatment record notes the Veteran's complaints of chronic mid thoracic and lower lumbar pain. A June 2006 statement from the Veteran's husband indicates that, when the Veteran left for her annual tour in May 1991, she was in perfect health and that, when she returned, she was in terrible pain and had continuing problems with her back. An August 2006 letter from Dr. C. A. provides an opinion in favor of the Veteran's claim. The physician, who treated the Veteran in service as well as in the capacity of a private physician after service, gave a very comprehensive history of the Veteran's medical history with regard to her back. The details provided reflect actual review of medical records and familiarity with the Veteran's history. He stated that, since the Veteran's medical problems developed during periods of active duty and since her musculoskeletal problems seemed to be temporally related back to the injury she experienced in May 1991, he believed that the problems should be service connected. An October 2006 private treatment record when the Veteran was on paid inactive duty shows that the Veteran requested an MRI due to worsening back pain. Past X-ray studies were negative. An MRI in that same month revealed a small T6-T7 disc herniation that abutted but did not distort the spinal cord. A December 2006 private treatment record indicates that the Veteran reported having intermittent lumbar pain. The statements from various people who worked with the Veteran in the National Guard noted that her duties required carrying and handling mobility bags that weighed in excess of 50 and 60 pounds. See August 2006 to April 2007 statements. A January 2007 MRI of the lumbar spine revealed a small focal central disc protrusion/herniation at L5-S1. A February 2007 medical report from Dr. M. H. indicates the Veteran had lumbar complaints of aching and burning that was present for several years with occasional radiation to the knee level. A March 2007 private treatment record contains an assessment that includes that of thoracic spondylosis and lumbar disc herniation. The April 2007 private treatment records indicate that the Veteran was involved in another car accident. She was restrained in the car when it was rear-ended. The only complaints were related to her neck. A follow-up record in May 2007 also shows that her complaints were limited to the neck. An October 2007 private treatment record contains a diagnosis of thoracic disc degeneration. A December 2007 private treatment record contains a diagnosis of thoracic spondylosis. In connection with a December 2007 VA examination, the Veteran's claims file was reviewed. She reported having had a swimming accident in 1991 that, in part, injured her spine and that she was later found to have a disk protrusion in the lumbosacral area and thoracic spine. She was also diagnosed with fibromyalgia in 1995. The physician opined that it was at least as likely as not that the lumbosacral disc protrusion, independent of the fibromyalgia, was related to the same trauma in the ocean "according to literature." In February 2008, the Veteran was afforded another VA examination to determine the likely etiology of the claimed spine disability. The claims file was reviewed, and the Veteran's lumbar complaints were noted. The examiner opined that the Veteran's multiple disc complaints that included the thoracic and lumbar spine were not caused by or a result of a wave accident. He added that the Veteran had minimal to no degenerative disc disease and no disc herniation; her complaints were consistent with fibromyalgia. Despite the Veteran having back complaints that are manifestations of her service-connected fibromyalgia, she is also shown to have thoracic and lumbar spine disabilities that are independent of fibromyalgia. The MRI studies contain clinical findings that revealed disc herniations/protrusions in both spine segments. Due to these disorders sharing the same symptoms it is difficult to attribute specific episodes of pain to a particular disorder. However, the record does clearly show that the onset of back complaints followed the swimming incident while on ACDUTRA. The Veteran is also shown to have had two car accidents, but since there was evidence of pathology prior to the first accident and there were no back complaints at the time of the accidents, neither accident can be identified as the cause of her mid and low back problems. As to the etiology of the claimed disability, Dr. C. A. provided a good medical history in his statement, but since the opinion is vague regarding the specific musculoskeletal problems he linked to service, it is attributed limited probative value. The December 2007 VA examiner provided an opinion that linked the Veteran's lumbar spine disorder to the in-service injury, but his rationale makes a vague reference to literature without identifying the literature or commenting on what the literature says. The February 2008 VA examiner provided an opinion that was against the claim, finding that the Veteran's problems were related to her fibromyalgia. The rationale is also brief and its probative value is additionally diminished by the fact that he stated there were no disc herniations. Since the MRI findings clearly show herniations or protrusions in the thoracic and lumbar areas, it does not appear that the examiner thoroughly reviewed the claims file. The reports are adequate in that they touch on all necessary elements to decide the claim and, to this extent, the evidence is found to be in relative equipoise. In resolving all reasonable doubt in the Veteran's favor, service connection for her thoracolumbar spine disability manifested by degenerative changes is warranted. B. Hypothyroidism The Veteran contends that her hypothyroidism was aggravated by service. Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137 (2012). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). If a preexisting disorder is noted upon entry into service, and the claimant brings a claim for service connection on the basis of aggravation under section 1153, the burden falls on the claimant to establish aggravation of the preexisting disorder. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. §§ 1137, 1153; 38 C.F.R. §§ 3.304, 3.306(b). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Here, there is clear and unmistakable evidence that the Veteran's hypothyroidism existed prior to her second period of service. There was no diagnosis of hypothyroidism made during the Veteran's period of active service from December 1985 to December 1989. Hypothyroidism was first suspected approximately 9 years later in a November 1998 post-service record when the Veteran was found to have an increase in size of her thyroid on the right side. The laboratory tests followed to rule out thyroid disease, and hypothyroidism was diagnosed in December 1998; she was started on medication. Between the time of the diagnosis in December 1998 and when she began her second period of active duty, there are no significant findings. In April 1999, while on TDY, the Veteran needed a refill of her thyroid medication, but did not voice any thyroid complaints. The laboratory tests in March 1999 showed a fluctuation in the TSH level with one finding within normal limits and another showing a low level. An April 2000 laboratory test result showed her TSH was with within normal limits. During the Veteran's second period of active duty from November 2001 to March 2003, she was seen in July 2002 for complaints of dry skin, cold extremities, fatigue, constipation, decreased libido, night sweats and anxiety. Laboratory tests were ordered to check her thyroid function. A November 2002 record shows that the Veteran's thyroid was "full," but that it was not nodular to palpation. The assessment included that of hypothyroidism and her medication was increased. A February 2003 post deployment medical assessment indicated that the Veteran's chief complaints were myalgias, fatigue and her thyroid condition. Laboratory tests showed that the free T4 and TSH levels were within normal limits, however, the notation regarding significant findings included the thyroid. A September 2002 post deployment medical assessment indicated that the frequency of the Veteran's night sweats had decreased. A March 2003 treatment record dated the day before her discharge showed that the Veteran's hair might have been thinning and that there was improvement in her constipation. The assessment was that of hypothyroidism. A November 2002 treatment record during her second period of active duty shows that the assessment indicates that she probably had recent thyroiditis. The service treatment records also include lab tests that showed high TPO levels in July 2002, November 2002 and February 2003. The treatment records following her second period of service included a July 2003 record that noted her thyroid was not enlarged. The July 2003 laboratory test results showed that T3, T4, and TSH levels were normal. An August 2003 treatment record indicates that her values on laboratory tests were gradually improving. The November 2003 laboratory test results showed that the TSH level was high. A December 2003 treatment record showed that a test revealed a 3 mm nodule on the left. The dose of her thyroid medication was increased. A January 8, 2005 record indicated that her hypothyroidism was symptomatically stable. A January 2005 treatment record indicated that she possibly had a right thyroid nodule. Laboratory test results showed that her TSH level was high. The Veteran's third period of service was from December 2005 to May 2006, and the record reflected that she was on continued treatment for thyroid disease. See a March 2006 dental medical history record. In January 2010, the Veteran underwent a VA examination when the claims file was reviewed and pertinent aspects of the Veteran's medical history were noted. The Veteran was noted to have had symptoms including dry hair and skin, decreased concentration, lack of stamina, weakness or fatigue. The examiner commented that the Veteran did have symptoms of the hypothyroidism while she was on active duty but she did not offer an opinion regarding aggravation of the hypothyroidism. In June 2010, the VA examiner again reviewed the claims file and opined that the preexisting hypothyroid condition was not permanently aggravated by active duty service but added that there was no clear and unmistakable evidence that the hypothyroid condition was not aggravated by service. However, the record shows that hypothyroidism was not symptomatic from the time it was diagnosed until the time the Veteran entered her second period of active duty service when she experienced findings consist with active thyroiditis. During service, accordingly, the condition is shown to have progressed requiring her medication dosage to be increased. On this record, the evidence tends to show that the preexisting thyroid disorder as likely as not increased in severity beyond natural progression during period of active service. In resolving all reasonable doubt in the Veteran's favorable, service connection for hypothyroidism is warranted. ORDER Service connection for a thoracolumbar degenerative changes is granted. Service connection for hypothyroidism on the basis of aggravation is granted. ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs