Citation Nr: 1418737 Decision Date: 04/28/14 Archive Date: 05/06/14 DOCKET NO. 08-17 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a higher initial evaluation than the 10 percent assigned for a right knee disability. 2. Entitlement to service connection for hypothyroidism status post thyroid ablation for Graves' disease. 3. Entitlement to service connection for left ventricular disease, including as secondary to claimed hypothyroidism. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and her spouse ATTORNEY FOR THE BOARD H. Papavizas, Associate Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) from August 1984 to November 1984, and on active military duty from May 1985 to May 1996. The appeal comes before the Board of Veterans' Appeals (Board) from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which, inter alia, granted service connection for a right knee disability and anxiety disorder, and denied service connection for hypothyroidism status post thyroid ablation for Graves' disease (hypothyroidism) and left ventricular disease, including as secondary to claimed hypothyroidism (left ventricular disease). The Veteran perfected her appeal of these issues. During the course of the appeal, the Veteran changed her state of residence to Florida and testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing conducted in February 2012, at the St. Petersburg, Florida RO. That RO will thus likely serve as the new RO having jurisdiction over the case. At the February 2012 hearing, the Veteran and her representative expressed satisfaction with the 50 percent rating assigned by the RO in a May 2011 supplemental statement of the case (SSOC) for her service-connected anxiety disorder from September 28, 2009, but continued to disagree with the 30 percent assigned for the prior interval beginning from February 27, 2006. In June 2012, the Board increased the Veteran's rating for her anxiety disorder from 30 percent to 50 percent for the period from February 27, 2006 to September 27, 2009. The Veteran's claims for a higher initial evaluation for right knee disability and for entitlement to service connection for hypothyroidism and left ventricular disease were remanded for further development to the Appeals Management Center (AMC) in Washington, DC. After taking further action, the AMC increased the Veteran's right knee disability rating to 20 percent but continued to deny the claims for hypothyroidism and left ventricular disease, as reflected in the December 2012 supplemental statement of the case (SSOC) and rating decision. These matters have been returned to the Board for further appellate consideration. The Board observes that the Veteran requested "a total of 100% Veteran disability for service connected illness" in her May 2008 Form 9. However, the Board does not construe this statement as an implied claim for a total disability rating based on individual unemployability (TDIU). But see Rice v. Shinseki, 22 Vet. App. 447 (2009) (an expression of unemployability related to claimed disabilities is to be considered an implied claim for TDIU). In May 2007, the Veteran submitted an April 2007 letter from an employer discussing the physical demands of her job and her struggles to meet them. In January 2013, having moved to Florida from another state, the Veteran indicated that she began working at the Miami, Florida VA Medical Center (VAMC). At no point in the course of the appeal has the Veteran contended that she is not employed or not employable due to her service-connected disabilities. Accordingly, the Board finds that the Veteran's May 2008 VA Form 9 statement constitutes merely an expression of her general desire for the maximum possible benefit to which she is entitled for her service-connected disabilities, which are to be considered every case unless otherwise asserted by the claimant. AB v. Brown, 6 Vet. App. 35, 38 (1993). Finally, the Board notes that, in addition to the paper claims file, the Veteran also has paperless, electronic Virtual VA and Veteran Benefits Management System (VBMS) files. A review of the documents in Virtual VA reveals that, with the exception of the March 2014 Appellant's Brief and VA treatment records dated from December 2009 to December 2012, which were considered by the AMC in the December 2012 SSOC, they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. Similarly, the Veteran's VBMS file contains documents which are duplicative or irrelevant to the issues on appeal. The issues of entitlement to an increased rating for right knee disability and service connection for left ventricular disease are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The Veteran's hypothyroidism is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for hypothyroidism are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision to grant the Veteran's claim of entitlement to service connection for hypothyroidism is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; an in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Here, the competent evidence of record establishes that the Veteran has a current disability of hypothyroidism, thus meeting the first element of service connection. See November 2011 VA examination. Additionally, the Board finds that the Veteran incurred hypothyroidism in service. The Veteran alleges, and her service medical records show, that she suffered and complained of the following symptoms while in service: fatigability, dry skin, a tight feeling in her throat, hoarseness, difficulty swallowing, difficulty breathing, irregular periods, weight gain, and difficulty losing weight. See e.g., October 12, 1984 (feeling very tired for one week), September 19, 1985 (feeling very tired, gaining weight, skin very dry, amenorrhea), November 1, 1985 (no menses since July), May 5, 1993 (weight management), October 10, 1991 (hoarse), May 10, 1996 (weight gain of 50 pounds) Service Treatment Records; see also February 2006 Veteran's Statement. As indicated by the examiner in a November 2012 VA examination report, the Veteran most certainly had symptoms, at least in 1985, that could have been due to hypothyroidism. Additionally, as noted by the examiner, the Veteran's in-service treating physician suspected hypothyroidism in September 1985 and ordered testing, which does not appear to be of record. Although there is no indication in the record that the Veteran received a formal diagnosis of hypothyroidism in service, the Board finds the above evidence sufficient to satisfy the second element of an in-service incurrence of disease. Finally, the Board finds that there is sufficient evidence of nexus for service connection. Although the VA thyroid examiner provided a negative etiology opinion, the Board finds such conclusion lacking in probative value as the examiner appears to have assumed that he could not provide the Board with a reliable medical opinion based upon symptoms without formal diagnostic testing and as such may have inappropriately subjected the Veteran to a higher standard of proof. Regardless, the Board credits the opinion to the extent that the examiner concluded that the Veteran most certainly had symptoms of hypothyroidism and thus could have had hypothyroidism. Under the Board's interpretation, such opinion indicates that it is at least as likely as not that the Veteran's hypothyroidism had its onset or was otherwise caused by or related to her active duty military service. The Board finds its conclusion further bolstered by a November 2012 VA cardiac examination report in which the examiner noted "definite signs of thyroid disease during active duty" and by allegations by the Veteran's husband that she continued to experience hypothyroid symptoms after her discharge from service in 1996 until she sought medical treatment for her thyroid condition in 1999. Because all three elements for service connection are met, service connection for hypothyroidism is warranted. ORDER Service connection for hypothyroidism is granted. REMAND As noted above, the Veteran's claims for an increased rating for right knee disability and service connection for left ventricular disease were most recently remanded by the Board in June 2012 for VA examination. The Board finds that a remand is necessary because the Board's June 2012 directives were not adequately executed. With respect to the Board's order for an examination of the Veteran's left ventricular disease, the examiner was asked to identify all current disabilities of the heart and note any in-service and post-service EKG findings, particularly those associated with left atrium or left ventricle disease. Additionally, the examiner was required to provide medical opinions as to (1) whether it is at least as likely as not (i.e., 50 percent or greater probability) that any current disability of the heart found developed in service or is otherwise causally related to service, and (2) whether it is at least as likely as not that such disability was caused or aggravated in service by any thyroid dysfunction. In the November 2012 VA cardiac examination, the examiner found that there was no left atrial enlargement based upon review of a June 1998 EKG (deemed invalid) and June 1999 echocardiogram. However, the examiner did not note or address medical findings of left ventricular wall thickness, possible left atrial enlargement, and hypertrophic cardiomyopathy with mild ventricular flow obstruction reflected in numerous 2011 and 2012 VA treatment records and in an October 14, 2005 Private Stress Echocardiographic Report, an October 28, 2010 Private Echocardiogram, and a March 9, 2012 VA ECG Report. Additionally, the examiner failed to provide an opinion as to whether the Veteran's left ventricular disease was, not merely caused, but aggravated by her thyroid condition With respect to the Board's order for an examination of the Veteran's knee, the Board, in pertinent part, requested the examiner to (1) state whether there is objective evidence of lateral instability or recurrent subluxation; (2) address the observed and clinical findings supporting or not supporting symptoms of disability, including the Veteran's complaints of impairment; (3) differentiate disability due to the right knee from disability due to other causes, including anxiety; and (4) give an opinion as to the effect that the Veteran's right knee disability has on her ability to engage in substantially gainful employment. Regarding the above remand directives, the November 2012 VA right knee examiner was unable to test the Veteran's medial-lateral instability but did not explain why such test was not performed. Additionally, the examiner failed altogether to address the observed and clinical findings supporting or not supporting symptoms of disability, including the Veteran's complaints of impairment (particularly, pain, instability, and buckling); and to differentiate disability due to the right knee from disability due to other causes, including anxiety. Although the examiner gave an opinion on the functional impact of the Veteran's right knee disability, the examiner's statement that the Veteran's disability would negatively impact her "pursuit of sports activities, prolonged walking, running, and stair/ladder climbing" does not answer the question of the Veteran's ability to engage in substantially gainful employment. Because not all of the Board's November 2012 directives were complied with, another remand is required to ensure fulfillment of the Board's prior remand instructions by obtaining an additional addendum opinion. See Stegall v. West, 11 Vet. App. 268, 270 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand). Finally, the Board finds that a remand is necessary in order to obtain outstanding VA medical records. The record reflects that the Veteran has received treatment at Miami, Florida VA Medical Center (VAMC), and the claims file includes VA treatment records up to December 2012. Therefore, while on remand, the Veteran should be asked to identify any VA or non-VA healthcare provider whom she has seen for treatment of right knee and left ventricular disease, thereafter, all identified records - to include the any outstanding, relevant VA treatment records from Miami VAMC from January 2013 to the present - should be obtained for consideration in his appeal. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any non-VA healthcare provider who has treated her right knee disability and left ventricular disease. After obtaining any necessary authorization forms, obtain all identified, outstanding records. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. Obtain outstanding, relevant VA treatment records concerning treatment of the Veteran's right knee and left ventricular disease from the Miami VAMC from January 2013 to the present. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After all records and/or responses are associated with the claims file, afford the Veteran an examination by a specialist in cardiac disorders and their etiology, to provide informed medical opinion addressing the questions posed. The claims file must be made available to the examiner for review before the examination. In addressing the questions below, the examiner's opinion must be informed by a review of the Veteran's medical history and findings as documented in service and post-service records, to include any prior examinations or treatments. To the extent credible and medically supportable, other evidence, including lay statements, may be used to support a diagnosis or an assessment of severity or etiology, even in the absence of contemporaneous medical evidence. Any tests or studies necessary to answer the questions below should be conducted. The examiner should address the following: a. Identify all current disease or disability of the heart, to include in particular left ventricular disease or defect or dysfunction, to include left ventricular wall thickness, possible left atrial enlargement, and hypertrophic cardiomyopathy with mild ventricular flow obstruction. b. Note in-service and post-service EKG or other relevant diagnostic testing, and note any findings including in particular as associated with left atrium or left ventricle disease or defect or dysfunction, to include any such findings contained in an October 14, 2005 Private Stress Echocardiographic Report, an October 28, 2010 Private Echocardiogram, and a March 9, 2012 VA ECG Report. c. For each identified current disease or defect or dysfunction or other disorder of the heart, determine whether it is at least as likely as not (i.e., 50 percent or greater probability) that the disorder developed in service or is otherwise causally related to service, based on the Veteran's periods of service from August 1984 to November 1984 and from May 1985 to May 1996. d. For each identified current disease or defect or dysfunction or other disorder of the heart, determine whether it is at least as likely as not (i.e., 50 percent or greater probability) that the disorder was either caused or aggravated (permanently increased in severity) by a thyroid disorder which developed in service, to include consideration pulse rates over 100 in the Veteran's service treatment records. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. The examiner must answer both questions concerning causation and aggravation. A rationale must be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. 4. Afford the Veteran an examination by an appropriate specialist to determine the current nature and severity of his right knee disability. The claims file must be made available to the examiner for review before the examination. In addressing the questions below, the examiner's opinion must be informed by a review of the Veteran's medical history and findings as documented in service and post-service records, to include any prior examinations or treatments. To the extent credible and medically supportable, other evidence, including lay statements, may be used to support a diagnosis or an assessment of severity or etiology, even in the absence of contemporaneous medical evidence. Any tests or studies necessary to answer the questions below should be conducted. The examiner should address the following: a. Detail the Veteran's recent history, including any recent surgery and any associated period of convalescence. If pertinent, the examiner should state whether a post-convalescent level of functioning may be accurately addressed by the current examination. b. Measure and record the Veteran's range of motion of the right knee (flexion and extension) in degrees. c. State whether the right knee exhibits weakened movement, excess fatigability, or incoordination. Also, state whether pain could significantly limit functional ability during flare-ups or when the right knee is used repeatedly over a period of time. Each of these determinations should be stated in terms of the degree of additional range of motion lost due to any weakened movement, excess fatigability, incoordination, or pain on use or during flare-ups. If this is not feasible, the examiner should explain why. d. State whether there is objective evidence of lateral instability or recurrent subluxation of the right knee. If there is, the degree (i.e., slight, moderate, severe) of such instability and/or subluxation should be discussed. If the examiner is unable to perform any joint stability tests of the Veteran's right knee, the examiner should explain why. If objective evidence is not found, attempt to reconcile - by either accepting or discounting, and in either case providing an explanation - any subjective reports by the Veteran of any giving way, buckling, or instability of the knee. In other words, please discuss the significance of these reports and state whether these subjective reports are due to something other than lateral instability or subluxation, and explain why. Also, state whether the Veteran can have instability or subluxation of the right knee which would not manifest on objective testing, and if so, the severity of such should be described in terms of slight, moderate or severe. e. Address observed and clinical findings supporting or not supporting symptoms of disability, including the Veteran's complained-of levels of impairment in the joint, to include the Veteran's allegations of pain, instability, and buckling. f. To the extent possible, differentiate disability due to the right knee from disability due to other causes, including in particular any anxiety symptoms or other psychogenic overlay. The examiner may state if such finding is not pertinent to his or her opinion. g. With respect to each associated impairment caused by the service-connected right knee disability give an opinion as to the effect that such impairment has on the Veteran's ability to engage in a substantially gainful occupation, including manual and sedentary positions. A rationale must be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. 5. Thereafter, readjudicate the remanded claims de novo. If any benefit sought is not granted to the Veteran's satisfaction, the Veteran and her representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs