Citation Nr: 1320708 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 07-27 551 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for a thyroid disorder. 2. Entitlement to service connection for a thyroid disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from April 1955 until February 1959. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from November 2006 rating decision of the RO. FINDINGS OF FACT 1. The Veteran's claim of service connection for a thyroid condition was last denied in an October 1987 rating decision. 2. The evidence received since the October 1987 rating decision is new in that it is neither cumulative nor repetitive of facts previously considered and raises a reasonable possibility of substantiating the Veteran's claim. 3. The currently demonstrated hypothyroidism is shown as likely as not to be due to a thyroidectomy performed during the Veteran's period of active service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for a thyroid disorder. 38 U.S.C.A. §§ 5103, 5103A, 5108, 7105 (West 2002); 38 C.F.R. § 3.156, 20.1103 (2012). 2. By extending the benefit of the doubt to the Veteran, his disability manifested by hypothyroidism is due to disease or injury that was incurred during active service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Requirements As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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). Specific to requests to reopen, the claimant must be notified of the criteria required to reopen the claim and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In cases, such as the present case, where the claimant's service records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The heightened duty to assist the claimant in developing facts pertinent to his claim in a case where service records are presumed destroyed includes the obligation to search for alternative medical records and alternative sources of evidence to substantiate the claim. Dixon v. Derwinski, 3 Vet. App. 261 (1992); Moore v. Derwinski, 1 Vet. App. 401 (1991). Although neither the June 2006 nor September 2007 notice letters complied with Kent or Dixon, to the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not required at this time. New and Material Evidence The Veteran seeks service connection for a thyroid condition. The claim of service connection for a thyroid condition was considered and denied by the RO in a November 1983 rating decision. The Veteran filed a Notice of Disagreement in February 1984 and a Statement of the Case was issued in March 1984. The Veteran did not perfect the appeal by filing a Substantive Appeal. 38 C.F.R. § 20.200, 20.202. The RO again considered and denied the claim of service connection for a thyroid disorder in October 1987. The Veteran did not appeal this rating decision. 38 C.F.R. § 20.1103. Accordingly, the Veteran's claim may be reopened only if new and material evidence has been secured or presented since the last final rating decision. 38 U.S.C.A. § 7104(b); 38 C.F.R. § 20.1105; Glynn v. Brown, 6 Vet. App. 523, 527 (1994). In this regard, although the RO appeared to reopen the previously denied claim in the August 2007 Statement of the Case, the Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims de novo. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. Barnett, 83 F.3d at 1383. As general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156, 20.1105. Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to assist. Id. at 118. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the October 1987 rating decision that denied service connection for a thyroid condition, the evidence of record consisted of VA outpatient treatment records, private treatment records and lay statements. Subsequent to the October 1987 rating decision, additional VA outpatient treatment records, reports from VA examinations, private treatment records, records from the Social Security Administration and lay statements were associated with the claims file. The evidence submitted subsequent to the October 1987 rating decision is new, in that it was not previously of record. The newly submitted evidence is also material. The claim was denied in October 1987 as no new and material evidence indicating treatment in service or proving that the Veteran had surgery in service had been submitted. The claim was previously denied in November 1983 as the hypothyroidism was diagnosed many years after service, and there was no treatment or diagnosis during service and no nexus to service. The evidence received subsequent to the October 1987 rating decision includes several lay statements attesting to the fact that the Veteran had a partial thyroidectomy in 1958 and reporting that the Veteran had thyroid problems during service. To the extent that the Veteran had previously informed VA that he had a thyroidectomy, the lay statements of V.R., J.R.H-J., and R.S. corroborate this fact and are therefore not cumulative. See, e.g., Paller v. Principi, 3 Vet. App. 535, 538 (1992); see also Forrest v. Brown, 4 Vet. App. 276, 279 (1993) (noting that statements from a former military policeman and a social worker, although "similar" to statements by the Veteran previously in the record, are "corroborative statements from different sources, and thus cannot be rejected as 'merely cumulative'"). As noted, new and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Here, the Veteran has presented evidence that speaks directly to an element which was not of record, mainly the presence an event during service, in this case the performance of a thyroidectomy. See Kent v. Nicholson, 20 Vet. App. 1, 10 (2006)(finding that "the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied"). Presumed credible, the additional evidence received since the October 1987 rating decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim for service connection for a thyroid disability is deemed to be reopened. Service Connection Turning to the merits of the claim, the Veteran asserts that he underwent a thyroidectomy during service and developed hypothyroidism that required medication ever since that time. Having carefully considered the claim in light of the record and the applicable law, the Board finds the evidence to be in approximate balance in showing that the Veteran as likely as not had thyroid disease that required the performance of a partial thyroidectomy during service. As an initial matter, the Board notes that this is a case where some of the Veteran's service treatment records are presumed to have been destroyed in the 1973 fire at the National Personnel Records Center in St. Louis. In such a case, there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury incurred in service alone is not enough. There must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Several alternative paths to service connection exist for certain chronic diseases identified in 38 C.F.R. §3.309(a), such as certain types of endocrinopathies. Service connection may be awarded if a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013) (finding that "§3.303(b) is constrained by §3.309(a), regardless of the point in time when a Veteran's chronic disease is either shown or noted, in that the regulation is only available to establish service connection for the specific chronic diseases listed in §3.309(a)."). If, however, a chronic disease is noted during service but is either not chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required in order to grant service connection. 38 C.F.R. §§ 3.303(b); Walker, 708 F.3d at 1336. A careful review of the record shows that the Veteran has a current diagnosis of a hypothyroidism as noted in VA outpatient treatment records. As such, he has a current disability. The remaining questions are whether there is evidence of an inservice occurrence of an injury or disease and medical evidence of a nexus between the current disability and the inservice disease or injury. The Veteran has reported that he underwent a partial thyroidectomy in November 1958 at Laredo, Texas Air Force Base. As noted, the service treatment records are presumed to be destroyed in a fire. Based upon information provided by the Veteran, the RO requested verification of the surgery by way of requesting medical dental, surgeon general office reports and sick or morning reports. A September 2006 response indicated that the morning reports of the 3640th Transportation Squadron from November 1958 until January 1959 failed to identify the Veteran. Although the morning reports did not verify the Veteran's claimed hospitalization, the Veteran is competent to describe being hospitalized, undergoing surgery and can even attest to the diagnosis provided. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting that lay evidence may be competent to establish a diagnosis when the layperson is reporting a contemporaneous medical diagnosis). The Board finds the Veteran's report of undergoing a partial thyroidectomy in 1958 to be credible as there are no conflicting statements in the record, nor is there any evidence suggesting the Veteran was mistaken. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)(holding that credibility can be impeached generally by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character). The Veteran has been consistent in reporting this medical history, including informing his treating physicians. In fact, a February 1974 private record related the Veteran's complaint of feeling tired and thinking he may have thyroid trouble again and history of having had a thyroidectomy in 1958. Additionally, the Veteran submitted lay statements in support of his claim. A statement of J.D. reported that the Veteran had thyroid problems while in the Air Force. The August 1987 affidavits of J.A.H., J.D., and M.K. indicated that the Veteran had told them that he had had a portion of his thyroid removed while at Laredo Air Force Base. The recently submitted June 2006 statement from V.R. related that the Veteran developed a toxic thyroid during service, was operated on and had the thyroid removed. A February 2013 statement of J.R.H-J. reported that the Veteran had trouble with his thyroid and had surgery in 1958 and had been on thyroid medicine since the surgery. A March 2013 statement of R.S. explained that the Veteran told him years ago that he had had his thyroid removed. Accordingly, resolving all doubt in the Veteran's favor, the Board accepts the Veteran's report of a partial thyroidectomy in 1958 to be the inservice event. The final element is competent evidence of a nexus linking the hypothyroidism to the inservice surgery. The nexus may also be proven by establishing a continuity of symptomatology. 38 C.F.R. § 3.303. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, as noted, in certain cases, competent lay evidence may satisfy any of the required elements. "Competent lay evidence" is defined as any evidence not requiring that the proponent have specialized education training or experience but is provided by a person who has the 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)(2). Under the "benefit-of-the- doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). Significantly, the mandate to accord the benefit of the doubt is triggered when the evidence has reached a stage of balance or relative equipoise. In the present case, the first post service indication of thyroid trouble was a February 1974 private medical record, nearly 15 years after the Veteran's separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000)(ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). The first diagnosis of hypothyroidism was noted in a June 1978 VA outpatient treatment record, nearly 19 years after the Veteran's separation from service. Moreover, there are records which generally link the hypothyroidism to the thyroidectomy. For example, an August 1999 private record noted a history of thyroid surgery in 1958 through VA with subsequent thyroid replacement. Similarly, an October 1992 private medical record for an unrelated condition noted a past medical history of a thyroidectomy for hypothyroidism in 1958 for which the Veteran took thyroid replacement. An August 2010 VA outpatient treatment record concluded with the assessment of hypothyroidism, not otherwise specified, on treatment and the physician noted the Veteran was status post partial thyroidectomy in 1958 for a goiter. The Veteran has also recently submitted lay statements in support of his claim indicating he underwent a partial thyroidectomy during service and treated with medication since that time. As explained, the Veteran and his friends are competent to testify as to his symptoms and treatment, as it is something of which they would have personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Thus, the Board finds the report of having hypothyroidism since the thyroidectomy in service to be credible. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although there is a gap in the actual treatment records, there is nothing in the record that specifically contradicts the Veteran. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). As noted, medical records support the conclusion that the Veteran's hypothyroidism was a result of the thyroidectomy. In resolving all reasonable doubt in the Veteran's favor, service connection for hypothyroidism is granted. ORDER New and material evidence has been submitted to reopen the claim of service connection for a thyroid disorder. Service connection for hypothyroidism is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs