Citation Nr: 1511353 Decision Date: 03/17/15 Archive Date: 03/27/15 DOCKET NO. 08-29 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a chronic thyroid disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. M. Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from May 1968 to May 1972. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Jurisdiction of the claims file is currently with the RO in Waco, Texas. In August 2011, the Veteran testified at a Travel Board hearing. A transcript of that hearing is of record. In May 2012, the Board remanded the issue of entitlement to service connection for a chronic thyroid disability for additional development. After the directed development had been completed, the Board denied the claim in a March 2013 decision. The Veteran appealed the March 2013 decision to the United States Court of Appeals for Veterans Claims (Court), and in a memorandum decision dated in May 2014, the Court vacated the Board's March 2013 decision and remanded the claim to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the May 2014 Court decision, the Court determined that the January 2008 and June 2012 VA medical opinions of record were inadequate. With regard to the January 2008 opinion, the Court stated: The examiner's opinion is clearly inadequate because he did not discuss medical evidence in this case that has a direct bearing on his ultimate conclusion. The examiner generally focused on ascertaining whether the appellant's hypothyroidism first began during her service. When he did at last turn to hyperthyroidism, he stated that hyperthyroidism "comes rather suddenly" and is "accompanied by weight loss." The examiner noted that the appellant gained a lot of weight during the early days of her service, but did not then consider evidence indicating that between March 1969 and April 1970 the appellant lost 21 pounds, or about 14% percent of her body weight. He did not consider that service medical records reveal that she continued losing weight through the end of her service and that she later testified that her weight loss persisted after her service ended. He did not make it clear that he was aware of these facts. Furthermore, the examiner did not discuss other symptoms that the appellant experienced during her service that may be signs of hyperthyroidism. At the time of her discharge from active service, the appellant complained about "eye trouble," "leg cramps," "back pain," "foot trouble," depression or excessive worry, and nonspecific nervous "trouble." Hyperthyroidism can cause "nervousness," muscular weakness, and eye abnormalities...The medical professional also diagnosed the appellant with a heart murmur... The examiner should have thoroughly discussed whether those symptoms are related to the hyperthyroidism that was successfully treated in the early 1990's. With regard to the June 2012 opinion, the Court stated that it was unclear to what extent the examiner reviewed the Veteran's claims file and that the examiner based his opinion on an inaccurate factual premise when he stated that the Veteran's "weight fluctuated between 127 and 137 pounds during her service." The Court also noted that the June 2012 examiner did not clearly state his opinion whether the Veteran's hyperthyroidism was related to her service. Further, "he did not (1) describe the symptoms and usual manifestations of hyperthyroidism; (2) describe the usual etiology of hyperthyroidism; (3) opine about what caused the appellant's hyperthyroidism to develop; (4) discuss the appellant's precipitous in-service weight loss; or (5) discuss the appellant's other in-service symptomatology." As the two previous VA medical opinions have been determined to be inadequate, the Board finds that a new opinion must be sought regarding the etiology of the Veteran's current hypothyroidism. Once VA undertakes the effort to provide an examination when developing a claim for service connection, even if not statutorily obligated to do so, it must provide an adequate one. See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007), citing Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001). Here, further clarification of the evidence is essential for a proper appellate decision as the opinions provided by the Veteran's VA physician do not reflect that they based upon fact (and at times conflict with facts established in the claims file), lack rationales that support these opinions, and have not addressed the Veteran's lack of thyroid treatment for approximately two decades after service. Therefore, the Board finds that a new opinion is necessary. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain a medical opinion from an endocrinologist regarding the etiology of the Veteran's current hypothyroidism (a physical examination is not required unless deemed necessary by the examiner). The Veteran's claims file, including the Veteran's electronic records in VBMS and Virtual VA, and a copy of this remand must be made available to and reviewed by the examiner prior to completion of the medical opinion. Review of both of these should be noted in the examiner's report. The examiner is then asked to address whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current hypothyroidism was incurred in or is otherwise related to her service. If the examiner determines, that it is not at least as likely as not that the Veteran's current hypothyroidism was incurred in or is otherwise related to service the examiner is asked to specifically discuss the following: (1) describe the symptoms and usual manifestations of hyperthyroidism; (2) describe the usual etiology of hyperthyroidism; (3) opine about what caused the appellant's hyperthyroidism to develop; (4) discuss the appellant's precipitous in-service weight loss; and (5) discuss the appellant's other in-service symptomatology. Specifically, the examiner should discuss the Veteran's weight changes between March 1969 and April 1970, the Veteran's continued weight loss through the end of her service that is documented in her service medical records, and her statements that her weight loss persisted after her service ended. The examiner should also discuss any other symptoms that the claims file indicates she may have experienced from March 1969 through her separation from service, and until her diagnosis of a thyroid condition in the 1990's. Particularly, the examiner should discuss her symptoms at discharge from active service that included eye trouble, leg cramps, back pain, foot trouble, depression or excessive worry, nonspecific nervous trouble, and a heart murmur. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A rationale should be provided for any opinions rendered. If an opinion cannot be provided without resort to pure speculation, the VA examiner should explain why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). 2. After completion of the foregoing and all other necessary development, the AOJ should readjudicate the remanded claim for service connection for a thyroid disability. If the benefit sought remains denied, the Veteran and her representative should be furnished a Supplemental Statement of the Case, and should be given an opportunity to submit written or other argument in response before the record is returned to the Board for further appellate consideration. 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 2014). _________________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).