Citation Nr: 1304899 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-37 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for Graves' disease, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to March 1970 This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. FINDING OF FACT Graves' disease (hyperthyroidism) was not present in service or until many years thereafter and is not shown by competent medical or lay evidence to be etiologically related to any incident of service, to include exposure to herbicides during service. CONCLUSION OF LAW Graves' disease was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA) VA has duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 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 and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. In correspondence dated in September 2009, VA informed the appellant of what evidence was required to substantiate his claim for service connection, and his and VA's respective duties for obtaining evidence. It also notified him that a disability rating and effective date would be assigned, in the event of award of the benefit sought, as required by the Court in Dingess/Hartman. In Pelegrini, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision. Because VCAA notice in this case was completed prior to the initial AOJ adjudication denying the claim, the timing of the notice complies with the express requirements of the law as found by the Court in Pelegrini. The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. The VCAA requires that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board finds that the VCAA notice requirements have been met in this case. With regard to the duty to assist, the claims file contains the Veteran's service treatment records, as well as VA and private medical records, and statements from the Veteran. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The medical evidence of record shows that the Veteran has been found to have Graves' disease (hyperthyroidism). The Veteran contends that he was exposed to herbicides while serving in Vietnam. As discussed below, his exposure to herbicides in Vietnam is conceded, however, there is no competent evidence that his Graves' disease or any thyroid disorder may be related to exposure to herbicides in Vietnam. The Veteran has not reported a continuity of symptomatology since service. His assertion that Graves' disease is the result of herbicide exposure is insufficient to trigger VA's duty to provide an examination. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (a veteran's assertion that one condition was caused by another is insufficient to trigger VA's duty to provide an examination). Accordingly, a medical examination or opinion is not required. The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Finally, as there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Law and Analysis A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Additionally, VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e) (2012). A veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. If a veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; chronic lymphocytic leukemia; B cell leukemia, Parkinson's disease, multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). The record clearly establishes the presence of a current thyroid disability. The medical evidence of record shows that the Veteran has a history of Graves' disease and hyperthyroidism dating back to August 2008. He had ocular involvement, which required five eye surgeries. VA outpatient treatment records reflect that he had been on medications for hyperthyroidism but it did not successfully treat the condition and that he was being evaluated for a possible thyroidectomy. The Board has considered whether the Veteran is entitled to service connection for Graves' disease on a presumptive basis due to exposure to herbicides, but finds that he is not. Graves' disease is not a disorder that may be presumed to be related to herbicide exposure. Thus, even if the Veteran did have service in Vietnam, presumptive service connection is not warranted on the basis of herbicide exposure. Nonetheless, the Veteran could establish service connection with evidence of direct incurrence. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Concerning this, the second element of a claim for service connection is medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease. However, the Veteran's service treatment records contain no findings of Graves' disease or a thyroid disorder and the Veteran has reported no in-service symptoms. On his March 1970 service separation examination, the Veteran denied experiencing symptoms of eye trouble, weight loss, heart palpitations or frequent trouble sleeping on the report of medical history. Regarding the third element of service connection, a nexus between the Veteran's current thyroid disability and an in-service injury, the Board notes that service records do not indicate such a link. No chronic thyroid conditions were noted on any examinations conducted during active duty, and as noted above, the Veteran denied experiencing symptoms of eye trouble, weight loss, heart palpitations or frequent trouble sleeping on the March 1970 report of medical history. There is also no objective evidence of thyroid problems or symptoms until approximately 38 years after the Veteran's separation from active duty in March 1970. Further, the Veteran has not reported a continuity of symptoms since service. In fact, the earliest evidence of complaints related to thyroid dysfunction dates from August 2008, when the Veteran was found to have severe Graves' ophthalmopathy. A September 2008 private endocrinology report indicated that the Veteran started developing low energy and poor sleep in March 2008 and poor vision followed in the next few months. He was initially seen by an optometrist who subsequently referred him to a neuroophthalmologist for Graves' eye disease. High-dose Prednisone was started in August 2008. In September 2008, the Veteran was seen by endocrinology for management of Graves's disease with a diagnosis of severe Graves' ophthalmopathy. His symptoms were significant for recent weight loss, poor vision, decreased energy and decreased sleep. A similar history was reported in a June 2009 private endocrinology consultation report, which indicates that the Veteran's symptoms of low energy and poor sleep started in March 2008, with subsequent impaired vision, which resulted in a diagnosis of Graves' eye disease. The absence of any clinical evidence for many years after service weighs the evidence against a finding that the Veteran's thyroid dysfunction was present in service or in the years between service and his later complaints. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, the current record contains no evidence of a nexus between the Veteran's military service and his Graves' disease or hypothyroidism. No medical professional has linked the Veteran's diagnoses of Graves' disease or hypothyroidism to service. There is no evidence otherwise linking the current disability to service. The Veteran has not reported a continuity of symptomatology beginning in service and there is no other evidence, VA or private, that the current Graves' disease or hyperthyroidism may be related to service. The Board acknowledges that the Veteran is competent to testify as to observable symptoms of Graves' disease or hypothyroidism, such as weight loss and difficulty sleeping, but finds that as a lay person, he does not have the expertise to link the current disability to herbicide exposure in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006); but cf. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Indeed the statutory scheme discussed above envisions that the link between a disease and herbicide exposure is established by scientific or medical evidence. See 38 U.S.C.A. § 1116. In short, there is no competent medical or lay evidence in support of the Veteran's claim for service connection. The Board acknowledges that the Veteran has cited to other Board decisions pertaining to a similar claim for service connection for Graves' disease due to exposure to herbicides. However, Board decisions are not precedential and may not be used to support another veteran's claim, even if the disability is exactly the same. Hence, the Board finds that this decision lacks probative value for the Veteran's claim. Moreover, each Board decision is based on the evidence included in the individual's claims file, and here, the Veteran has not submitted a statement from a medical professional or other competent and probative evidence that supports his claim. Accordingly, the Board concludes that the preponderance of the evidence is against a link between the current disability and service. As the evidence is against the claim, reasonable doubt does not arise, and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Service connection for Graves' disease is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs