Citation Nr: 1715314 Decision Date: 05/08/17 Archive Date: 05/22/17 DOCKET NO. 16-22 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for thyroid disease, to include as due to exposure to ionizing radiation. 3. Entitlement to service connection for post-operative residuals of gallbladder disease, to include as due to ionizing radiation. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from October 1957 to November 1965. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals from an April 2014 rating decision of a VA Regional Office (RO) that denied entitlement to service connection for bilateral hearing loss disability, and entitlement to service connection for thyroid disease and postoperative residuals of gallbladder disease, to include as due to the effects of exposure to ionizing radiation. Following review of the record, the issues of entitlement to bilateral hearing loss disability and postoperative residuals of gallbladder disease are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). A motion to advance this appeal on the Board's docket has been raised by the Board's acting Vice Chairman. The undersigned is granting the motion and advancing the appeal on the docket based upon advanced age. 38 C.F.R. 20.900(c) ("advanced age" is defined as 75 or more years of age). FINDING OF FACT There is no competent diagnosis, finding or evidence of any thyroid disorder in the record. CONCLUSION OF LAW A thyroid disorder or disease was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016) REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance regarding the appellant's claim of entitlement to service connection for a thyroid disorder or disease. There is no issue as to providing an appropriate application form or the completeness of the application. VA appropriately notified the Veteran of the information and evidence needed to substantiate and complete the claim in January 2014. The Board also finds that the duty to assist has been fulfilled. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (c), (d) (2016). The RO obtained the Veteran's available VA treatment records and private records that he has identified in this regard. VA's duty to assist the Veteran in the development of a claim includes providing an examination when indicated. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has not been afforded a VA examination with respect to a claim for service connection of a thyroid disorder. In McLendon v. Nicholson, 20 Vet.App. 79 (2006), the Court of Appeals for Veterans Claims (Court) held that VA must provide a medical examination when there is: (1) competent evidence of a current disability or persistent recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. In this case, the Board finds that the threshold requirement to determine whether a medical examination is warranted, that there is competent of a current disability, has not been demonstrated as to the claim for a thyroid disorder. Therefore, VA has no duty to obtain a medical examination in this regard. See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); Duenas v. Principi, 18 Vet.App. 512, 516 (2004). Pertinent Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2016). Factual Background and Legal Analysis The Veteran's service treatment records reflect that the endocrine system was evaluated as normal on service entrance examination in October 1957, on separation examination in November 1965, and on physical examinations conducted during the interim in 1959, 1962, and 1963. The Veteran filed a claim in April 2013 for disorders that included thyroid problems as a result of atomic radiation in service. He did not submit any clinical evidence showing that he had this disability. Subsequently received were VA outpatient clinical records dating from 2006 through April 2016 in which it was noted in June 2010 that the thyroid was negative and that the neck showed neither masses nor thyroid enlargement. The thyroid was noted to be negative in June 2010 and April 2014. No thyromegaly was observed in April 2015. Private clinical records from dated in August 2015 from Jane Phillips Medical Center did not refer to a thyroid problem. No clinical support evidencing treatment of a thyroid disorder or disease has been received to date. The Board points out that a key element in establishing service connection is to show that the Veteran currently has a diagnosis of the disability for which service connection is sought. See 38 C.F.R. § 3.304. Although the appellant has presented a claim, there no showing of a thyroid disorder or disease in the record except by the Veteran's own report. Since regulations require medical evidence diagnosing the claimed condition, the Veteran's self-assessment is not competent. 38 C.F.R. § 3.304. The Board recognizes that the Veteran is competent to provide evidence as to what he experienced. See Layno v. Brown, 6 Vet.App. 465, 470 (1994). In the instant case, however, whether he has a thyroid disorder is not substantially capable of lay observation. The onset and development of this disease process is confirmed by clinical laboratory and/or other diagnostic studies/findings that are beyond a layman's competence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, any statement by the Veteran as to the onset of and whether he has thyroid disease, in the absence of a clinical diagnosis, may not be accepted as competent evidence to establish a lay nexus to service. See Jandreau v. Nicholson, 492, F.3d 1371 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331. A medical professional has the greater skill. As such, the Board concludes that there is no competent or probative evidence showing that the Veteran has a thyroid disorder. In the absence of a diagnosis of current disability, there can be no valid claim in this regard. See Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992). Therefore, the preponderance of the evidence is against the claim and service connection for a thyroid disorder or disease must be denied. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet.App. 49, 54-56 (1990). ORDER Service connection for a thyroid disease or disorder is denied. REMAND The Board finds that further development is warranted with respect to the claims of entitlement to service connection of bilateral hearing loss disability and post-operative residuals of gallbladder surgery. As to hearing loss, the Veteran was afforded a VA audiology examination in March 2014. He was found to have bilateral sensorineural hearing loss. The examiner opined that hearing loss was not at least as likely as not caused by or the result of an event during service and that hearing loss was not the result of military service. Pertinent rationale for this finding included that review of the electronic claims file showed that hearing was within normal limits in 1963 and at separation with no significant hearing threshold shift and no hearing threshold greater than a 10-decibel loss. The Board points out, however, that prior to January 1, 1967, the Board presumes that audiogram results were reported in criteria set by the American Standards Association (ASA). Since December 31, 1970, the standards for hearing acuity have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Between January 1, 1967 and December 31, 1970, hearing findings are considered under both ASA and ISO-ANSI standards, if the standard used is not clearly indicated. These standards differ and one may be more favorable to the Veteran than the other. In this case, audiometric readings were obtained from the Veteran prior to January 1, 1967. As such, it is assumed that the ASA standard applied at that time. Thus, in order to facilitate data comparison, the ASA standards must be converted to ISO-ANSI units. The Board observes that the VA examiner in March 2014 did not indicate whether there had been conversion of the in-service audiometric findings in April 1962, 1963 and 1965 to ISO-ANSI standards. Additionally, the Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet.App. 155, 157 (1993). Under Hensley, even if a Veteran's service treatment records do not reflect bilateral hearing loss disability for VA purposes as defined by 38 C.F.R. § 3.385 (2016) in service or at separation from service, service connection could still be established if clinical evidence were obtained indicating that current hearing loss disability might reasonably be related to service. This includes some demonstration of hearing loss in service on audiometric examination. Id. Under the circumstances, the Board finds that the holding in Hensley might be particularly applicable to the April 1962 audiogram showing recorded decibel losses of 15/15/15/25/25 and 15/15/15/15/25 at 500/1000/2000/3000/4000 Hertz in the right and left ears, respectively. When converted to ISO-ANSI standards, the decibel losses are 30/25/25/35/30 and 30/25/25/25/30 in the right and left ears at the applicable Hertz frequencies which are suggestive of some hearing loss. The Board notes that the Veteran reported long-standing hearing loss on VA audiology consultation in August 2010. As such, additional development is warranted to reconsider the hearing values in service in accordance with Hensley. As to the claim for residuals of gallbladder disability, service treatment records reflect that the Veteran was admitted in December 1960 with symptoms that included myalgia of the thigh muscles and passing dark reddish urine. He complained of pain and cramping in the upper abdomen in March 1961. On service discharge examination in November 1965, the abdomen was evaluated as normal. Post service, VA and private clinical records refer to a history of gallbladder surgery. An open cholecystectomy in 1982 was recorded in VA outpatient clinical data in June 2010. The Board observes, however, that there are no contemporaneous records of treatment for the gallbladder, including surgery. As the Veteran claims that his gallbladder surgery is related to service, it would be to his advantage to provide additional information and/or authorization to retrieve clinical records and other information pertaining to his gallbladder from all providers who treated him for such after service, including the surgery record. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Dusek v. Derwinski, 2 Vet.App. 519, 522 (1992), citing Wood v. Derwinski, 1 Vet.App. 190, 193. If and only if additional clinical records pertaining to treatment and surgery for his gallbladder are received, the Board finds that the facts pertaining to the Veteran's abdominal complaints in service reasonably invoke the four-step analysis of McLendon v. Nicholson, 20 Vet.App. 79 (2006) such that he should be afforded a VA examination for gallbladder purposes. The threshold for providing a VA examination is low. McLendon at 83. Accordingly, the case is remanded for the following actions: 1. Contact the Veteran and request that he provide written authorization with the names and addresses of all health care providers, to include any within the VA system, who treated him and operated on him for gallbladder symptoms after service. Thereafter, the RO must attempt to secure all pertinent records from the identified providers and associate them with the electronic claims folder (ECF). All attempts to obtain the records should be documented in the claims file. 2. If and only if evidence of treatment and surgery for the Veteran's gallbladder is received, schedule him for a VA examination by an appropriate examiner to determine whether a gallbladder disease process leading to surgery was related to service. Access to the ECF must be made available to the examiner. The examiner must indicate whether the claims folder is reviewed. All indicated tests and studies must be conducted and clinical findings should be reported in detail and correlated to a specific diagnosis. The examiner must provide an opinion as to whether the Veteran has any postoperative residuals of gallbladder surgery that relate back to abdominal symptoms he experienced or was treated for during active duty. Complete rationale for all opinions expressed should be provided. 3. Refer the case to the same audiologist who examined the Veteran in March 2014 (or other pertinent specialist if that one is not available) for a supplementary opinion. Access to the electronic claims folder and a copy of this remand must be made available to the examiner. The examiner must be informed that in-service noise exposure is conceded. The examiner is requested to reconsider the Veteran's inservice audiograms when converted from ASA standards to ISO-ANSI units, particularly in 1962, and provide an opinion as to whether it is at least as likely as not (probability of at least 50 percent) any current hearing loss is related to service, including noise exposure therein. A complete rationale for the conclusion reached must be provided in the clinical report. A new VA examination should be scheduled if the examiner deems such an examination necessary to provide the requested addendum. 4. The RO should ensure that the clinical reports requested above comply with this remand and its instructions. If the report is insufficient, or if a requested action is not taken or is deficient, it should be returned to the examiner for correction. 5. After taking any further development deemed appropriate, re-adjudicate the claims. If a benefit is not granted, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond before the case is returned to the Board. 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). ____________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs