Citation Nr: 1328463 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 10-48 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for parathyroid adenoma, including as secondary to exposure to ionizing radiation. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from December 1969 to January 1972, from March 1973 to March 1976, and from November 1981 to February 2000. He appealed to the Board of Veterans' Appeals (Board/BVA) from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In early June 2011, the Veteran submitted additional evidence through his representative supporting the claim. He waived the right to have the RO initially consider this additional evidence, preferring instead to have the Board do so in the first instance. 38 C.F.R. § 20.1304(c) (2012). In late June 2011, in further support of his claim, he testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing). A transcript of the hearing is of record. FINDING OF FACT The evidence is at least in relative equipoise, so about evenly balanced, as to whether the Veteran's parathyroid adenoma is the result of his military service. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the Veteran's parathyroid adenoma is due to disease or injury incurred during his service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided by the VCAA, VA has duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application. 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). In this case, however, because the Board is fully granting this claim, there is no need to discuss whether there has been compliance with these obligations. The Veteran is receiving the requested benefit, regardless. Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2012) (reasonable doubt to be resolved in Veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Governing Statutes, Regulations and Case Law Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). That an injury occurred in service alone is not enough; there must be chronic (i.e., permanent) disability resulting from that injury. If there is no showing of a resulting chronic condition during service, or this is legitimately questionable, then a showing of continuity of symptomatology after service is required to support a finding of chronicity and the claim. 38 C.F.R. § 3.303(b). The U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has clarified, however, that this notion of continuity of symptomatology as an alternative means of showing chronicity of disease or injury in service to alternatively link the currently claimed disability to service only pertains to chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). This VA regulation - 38 C.F.R. § 3.309(a) - allows for certain conditions that are considered chronic, per se, to also be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). These presumptive conditions include malignant (so cancerous) tumors. So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection is permissible for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In sum, to establish entitlement to service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a relevant disease or an 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). A claim of entitlement to service connection generally must be accompanied by medical evidence establishing the claimant currently has the claimed disability or, at the very least, showing he has at some point since the filing of his claim. Absent proof of present disability, there can be no valid claim because there necessarily is no current disability to relate or attribute to his military service. See, e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (38 U.S.C. § 1110 requires current symptomatology at the time the claim is filed in order for a Veteran to be entitled to compensation); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (38 U.S.C. § 1131 requires the existence of a present disability for VA compensation purposes); Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992) (noting that service connection presupposes a current diagnosis of the claimed disability); Chelte v. Brown, 10 Vet. App. 268 (1997) (observing that a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection). There are instances when the type of disability claimed is what is considered a "simple" condition, allowing for lay evidence to establish its existence. So medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). But that said, although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc., they are not competent to provide evidence on more complex medical questions beyond simple observations, such as concerning cancer. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (indicating lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (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 also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). Discussion The Veteran asserts that he developed parathyroid adenoma as a result of exposure to ionizing radiation during his service. Alternatively, he argues that he had an undiagnosed parathyroid abnormality during his service as indicated by elevated serum calcium and kidney stones. Special provisions apply to Veterans who claim to have been exposed to ionizing radiation during their military service. Service connection for a condition claimed to be due to radiation exposure can be established in one of three ways: (1) by demonstrating that the condition at issue is one of the types of cancer that are presumptively service connected under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309; (2) by demonstrating direct service connection under 38 C.F.R. § 3.303(d), a task that "includes the difficult burden of tracing causation to a condition or event during service," see Combee v. Brown, 34 1039, 1043 (Fed. Cir. 1994); or (3) by demonstrating direct service connection under 38 C.F.R. § 3.303(d), with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is one of the "radiogenic diseases" listed by the Secretary of VA in § 3.311(b). See Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997). Here, though, since this claim is being granted on a direct- incurrent basis under 38 C.F.R. § 3.303, no further discussion is required regarding the exposure to ionizing radiation theory of entitlement. The service treatment records (STRs) indicate hypercalcemia and diagnoses of urolithiasis, in other words kidney stones, which were removed during the Veteran's service. His last period of service ended in February 2000. In approximately 2007, a parathyroid adenoma was diagnosed. It was resected in 2008. As already explained, in deciding this appeal the Board cannot rely on the Veteran's lay representations regarding the origins of this claimed condition and its purported relationship or inception during his military service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), complex biochemical bodily processes such as the origins of parathyroid adenomas fall outside the common knowledge of a layman. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Hence, there has to be supporting medical nexus evidence, which in this instance there is allowing for the granting of this claim. The record on appeal contains only one competent and relevant medical opinion. In a May 2011 statement, the Veteran's primary care physician, N.H., D.O., explained the Veteran had high serum calcium levels causing kidney and gallbladder stones in the years 1987 - 2005 [so while in service], as evidenced by military medical records. Dr. N.H. indicated that most cases of hypercalcemia (raised serum calcium levels) were hyperthyroidism caused by parathyroid adenoma or a malignancy. He concluded that, because there was high serum calcium along with kidney stones, there was a subsequent parathyroid adenoma. At one point in that May 2011 statement Dr. N.H. referred to hypocalcemia in service. However, the context of his statement, namely, defining hypocalcemia as elevated serum calcium, reveals that he seemingly intended to refer to hypercalcemia. Records show Dr. N.H. treated the Veteran when the parathyroid adenoma was found. As well, the context of his statement reflects that he reviewed the relevant STRs, indeed, as he made specific reference to them. Furthermore, he provided a cogent rationale for his conclusion. Consequently, the Board considers his findings not only competent but also credible and, thus, highly probative. Wensch, 15 Vet. App. at 367; Wood, 1 Vet. App. at 193; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008); Prejean, 13 Vet. App. at 448-9 (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). The record on appeal, as mentioned, contains no other competent and credible medical opinion regarding the etiology of the Veteran's parathyroid adenoma. So, at the very least, there certainly is as much probative evidence supporting the claim as there is against it. Because, therefore, the only competent and credible medical opinion of record surmises that the parathyroid adenoma first diagnosed after service is nonetheless related to the elevated serum calcium levels and urolithiasis, i.e., kidney stones, the Veteran had in service, service connection for the parathyroid adenoma is warranted. 38 C.F.R. §§ 3.102; 3.303(d). ORDER The claim of entitlement to service connection for parathyroid adenoma is granted. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs