Citation Nr: 1326810 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 10-41 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for hypothyroidism, claimed as secondary to service-connected Type II diabetes mellitus (hereinafter "DM"). 2. Entitlement to service connection for hyperlipidemia, claimed as secondary to service-connected DM. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to November 1972. This matter comes to the Board of Veterans' Appeals (hereinafter "Board") on appeal from a rating decision dated in June 2009 by the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in Phoenix, Arizona. In November 2010, the Veteran testified at a hearing before the undersigned Veterans Law Judge (hereinafter "VLJ") at the Phoenix RO. A transcript of this hearing is associated with the record. In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence, and no additional documents pertinent to the present appeal have been revealed. The issue of entitlement to service connection for chronic renal disease, claimed as secondary to service-connected DM has been raised by the record (see the Veteran's claim, received in October 2008), but has not been adjudicated by the Agency of Original Jurisdiction (hereinafter "AOJ"). Therefore, the Board does not have jurisdiction and refers it to the AOJ for appropriate action. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matters on appeal have been accomplished. 2. The weight of the competent evidence is in relative equipoise on the question of whether the Veteran's hypothyroidism is causally or etiologically related to his service-connected DM. 3. Hyperlipidemia (i.e., elevated lipids) represents no more than a laboratory finding, and not an actual disability. CONCLUSIONS OF LAW 1. The criteria for service connection for hypothyroidism are met. 38 U.S.C.A. §§ 1110, 1154(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 2. Hyperlipidemia is not a disease or disability within the meaning of legislation governing the award of compensation benefits. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code (hereinafter "38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations (hereinafter "38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (hereinafter "the Federal Circuit") (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (hereinafter "the Court") (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issues under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (hereinafter "VCAA") describes VA's 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has satisfied its duty to notify by issuing pre- and post-adjudication notice letters in November 2008, January 2009, August 2009 and August 2010. These letters advised the Veteran of what evidence was required to substantiate his claims for service connection, and of his and VA's respective duties for obtaining evidence. The November 2008 and August 2009 letters also provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. The claims were most recently readjudicated in a November 2010 supplemental statement of the case (hereinafter "SSOC"). Accordingly, prejudicial error in the timing or content of VCAA notice has not been established and any error is not outcome determinative. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency). Further, if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome by the following: (1) based on the communications sent to the Veteran over the course of this appeal, he clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to him by VA, it is reasonable to expect that he understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The duty to assist provisions of the VCAA have been met. The claims file contains the Veteran's lay statements and hearing testimony, in-service and post-service medical treatment records, and report of VA examination dated in September 2010. At the November 2010 hearing, the undersigned VLJ and representative for the Veteran outlined the issues on appeal and engaged in a colloquy as to substantiation of the claims. Overall, the hearing was legally sufficient and the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the claims on appeal. He has been given ample opportunity to present evidence and argument in support of his claims. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of the issues has been obtained and the case is ready for appellate review. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). The Merits of the Claim-Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and 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 ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability. In the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal; service connection may be awarded even though the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a) may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a disease listed in 38 C.F.R. § 3.309(a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. If chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)." Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the Veteran's case, since his claim for service connection for hypothyroidism does not involve a chronic disease listed in 38 C.F.R. § 3.309(a), he cannot benefit from continuity of symptomatology to establish service connection. Also, he has at no time alleged that he experienced hypothyroidism continuously since service, thus the pertinent provisions under the Walker holding do not apply. Service connection may also 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). A disability can be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a). Secondary service connection may be established by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(b), effective October 10, 2006. See 71 Fed. Reg. 52,744-52,747 (September 7, 2006). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991). Where a service-connected disability aggravates a nonservice-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. Allen, 7 Vet. App. at 448. A claim for secondary service connection requires competent medical evidence linking the asserted secondary disorder to the service-connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998). See also Wallin v. West, 11 Vet. App. 509, 512 (1998) and McQueen v. West, 13 Vet. App. 237 (1999) (both indicating, like Velez, that competent medical nexus evidence is required to associate a disorder with a service-connected disability). In short, in order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). A Veteran bears the "'evidentiary burden' to establish all elements of a claim, including the nexus requirement." Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). The Board's duty is to first determine the probative value of all pertinent medical and lay evidence of record based on its credibility and competency, and then weigh the probative value of the evidence regarding all material elements of a claim. See 38 U.S.C.A. § 7104(d); Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); see also 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"). A "veteran is given the 'benefit of the doubt' 'regarding any issue material' to the veteran's claim 'when there is an approximate balance of positive and negative evidence.'" Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). Thus, if there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may assign greater probative to one medical opinion over by providing an adequate statement of reasons or bases for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In making all determinations, the Board must also fully weigh the probative value of the lay evidence of record against the remaining evidence of record. See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012). If credible, 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). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. See Kahana, 24 Vet. App. at 438; Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). Moreover, lay evidence must not be categorically dismissed as incompetent evidence of medical causation merely because it is lay evidence. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Rather, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence of a layperson, (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 Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana, 24 Vet. App. at 433, n.4. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. See Jandreau, 492 F.3d 1367-77; see also Kahana, 24 Vet. App. at 438, J. Lance dissenting; Robinson v. Shinseki, 312 Fed. Appx. 336, 339 (Fed. Cir. 2009) (nonprecedential). 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). Hypothyroidism In considering the evidence of record under the laws and regulations as set forth above, the Board finds after careful consideration that service connection is warranted for hypothyroidism, as the evidence is at least in a state of relative equipoise on all material elements of the Veteran's hypothyroidism claim. First, the Veteran is currently service-connected for DM. Second, private treatment records from "Dr. Kitei," the Veteran's family practitioner, establish that the Veteran has been diagnosed with DM since 2002 and with hypothyroidism since approximately 2005, which satisfies the first and second elements of a claim for secondary service connection. Wallin, 11 Vet. App. at 512. Thus, with consideration of the above-undisputed facts, the central question before the Board concerns whether the record contains medical nexus evidence establishing a connection between the current hypothyroidism and the service-connected DM. In January 2009, Dr. Kitei provided an opinion, in which he unequivocally related the Veteran's hypothyroidism to his DM. In assessing the relative probative weight of conflicting medical opinions, the Board notes that the findings of a physician are medical conclusions that it cannot simply ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). However, a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Throughout the appeal, the Veteran has submitted various Internet research and articles in support of his appeal. An article from "Clinical Diabetes" entitled "Thyroid Disease and Diabetes," by Patricia Wu, MD, FACE, FRCP, indicates findings that diabetic patients have a higher prevalence of thyroid disorders compared with the normal population, and a number of reports have indicated that a higher than normal prevalence of thyroid disorders in DM patients, with hypothyroidism being the most common disorder. The article concludes that thyroid dysfunction is common in diabetic patients and can produce significant metabolic disturbances. The Board notes that this article, which is not specific to this Veteran, is not sufficient, alone, to grant the benefit sought on appeal. See, e.g., Winsett v. West, 11 Vet. App. 420, 424 (1998) and Wallin v. West, 11 Vet. App. 509, 514 (1998). However, the Board finds this article supports and adds probative value to Dr. Kitei's opinion that the Veteran's hypothyroidism is related to his DM. In September 2010 the Veteran underwent a VA thyroid and parathyroid diseases examination, in which the examiner observed that the Veteran had been diagnosed with hypothyroidism in 2005 or 2006 by Dr. Kitei while he was being treated for fatigue and decreased stamina. The examiner noted that the Veteran had no family history of thyroid disease, and denied any history of autoimmune disease or problem with mentation. The examiner reviewed the claims file, including Dr. Kitei's medical opinion and VA treatment records, and interviewed the Veteran. The examiner noted that it has been established through population studies that there is an increased incidence of hypothyroidism in people with diabetes, especially Type I diabetics. The examiner opined that, while there is an association of thyroid disease and diabetes, to the best of her knowledge it had never been established that thyroid disorder was a direct complication of diabetes, per se. The examiner concluded that it was less likely than not that the Veteran's hypothyroidism is a complication of his DM. The Board finds that the VA examiner failed to provide an explanation of why hypothyroidism was not believed to be a complication of DM, thus the opinion is far less probative in comparison to Dr. Kitei's opinion as it fails to adequately support or weigh against the claim. Id. Dr. Kitei's opinion is based on medical literature. The Board's duty is to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, it may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Based on the foregoing, there is at least an approximate balance of positive and negative evidence regarding the issue at hand, and the Board finds that the evidence raises at least a reasonable doubt as to whether the Veteran's current hypothyroidism is causally or etiologically related to his service-connected DM. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board also observes that the Court has cautioned against seeking an additional medical opinion where favorable evidence in the record is unrefuted. The Court specifically indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Thus, for the reasons described above, the Board concludes that there is a reasonable doubt as to whether the Veteran's current hypothyroidism is causally or etiologically related to his service-connected DM. To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board concludes that service connection for hypothyroidism is warranted. Hyperlipidemia The Veteran asserts that he has a current disability manifested by hyperlipidemia (and elevated cholesterol levels) that is caused or aggravated by his service-connected DM. The record is replete with reference to treatment for and findings referable to hyperlipidemia (and elevated cholesterol levels). Also, the Veteran has submitted various Internet research in support of his claim that relates hyperlipidemia to DM. Moreover, Dr. Kitei provided a medical opinion in January 2009, which relates the Veteran's hyperlipidemia to his DM. However, there is no medical evidence of record that the Veteran's hyperlipidemia (and elevated cholesterol levels) has resulted in actual disability. The term "disability" for VA purposes refers to impairment of earning capacity. In that regard, Congress has specifically limited entitlement to service connection to diseases or injuries which have resulted in a disability. See 38 U.S.C.A. § 1110 (West 2002); see also Allen v. Brown, 7 Vet. App. at 448 (1995). Hyperlipidemia (and elevated cholesterol levels) is a symptom of other disabilities and not an independent disability for VA purposes. See 38 U.S.C.A. §§ 101(16), 105(a) (West 2002); 38 C.F.R. § 3.303(c) (2012); see also 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities). See also Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that a symptom without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). The Board acknowledges the Veteran has submitted evidence that at least one other Veteran has been service-connected for hyperlipidemia. However, since Board decisions are non-precedential, previous decisions have no bearing on the outcome of this case. See 38 C.F.R. § 19.5 (listing the criteria governing the disposition of Board decisions). Therefore, the Board may only rely on the applicable law and the facts and circumstances of this particular case. Thus, the Board finds that service connection for the claimed hyperlipidemia is simply not warranted. Where, as here, medical evidence does not establish that the Veteran has the disability for which service connection is sought, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the instant case, the claim for service connection for hyperlipidemia must be denied, because the first essential criterion for a grant of service connection, evidence of a current disability upon which to predicate a grant of service connection, has not been met. The only evidence of record supporting the Veteran's claim is his various lay assertions. Although the Veteran is competent to provide evidence of visible symptoms, he is not competent to provide evidence that requires medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Veteran, as a layperson, is not qualified to provide a medical diagnosis or competent opinion indicating he has a current disability manifested by hyperlipidemia. Significantly, he, himself has not identified a current disability manifested by hyperlipidemia. For the foregoing reasons, the Board finds that the claim of entitlement to service connection for hyperlipidemia must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against this claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for hypothyroidism is granted. Service connection for hyperlipidemia is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs