Citation Nr: 1750199 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 11-13 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a thyroid disorder. 2. Entitlement to service connection for hypertension, to include as secondary to a thyroid disorder. 3. Entitlement to service connection for obstructive sleep apnea, to include as secondary to a thyroid disorder. REPRESENTATION Veteran represented by: Lori Chism, Attorney ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty from September 1979 to September 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal of the Veteran originally included a claim for service connection for a mental health disability. In a May 2016 rating decision, the RO granted service connection for major depressive disorder. This is considered a full grant of the benefit sought on the appeal for the claim of service connection for a mental health disability. Holland v. Gober, 10 Vet. App. 433, 436 (1997). The Board notes that the Veteran, as a lay person, filed his claims as service connection for hypothyroidism. Multiple medical diagnoses that differ from the claimed condition do not necessarily represent a separate claim, and what constitutes a claim cannot be limited by a lay Veteran's assertion of his condition in his application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). Because the evidence indicates that the Veteran may have different conditions or diagnoses for a thyroid disability, the Board has therefore stated the issues as set forth on the first page of this decision. In March 2014, the Board remanded the case to the RO for additional development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran's thyroid disability was not caused or aggravated by military service. 2. The Veteran's hypertension was not caused or aggravated by military service. 3. The Veteran's obstructive sleep apnea was not caused or aggravated by military service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a thyroid disability have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). 2. The criteria for establishing service connection for hypertension have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). 3. The criteria for establishing service connection for obstructive sleep apnea have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2016). Service Connection for a Thyroid Disability The Veteran seeks service connection for a thyroid disorder. He contends that weight gain in service represented the onset of a thyroid problem that was not properly diagnosed in service. The Veteran's theory is that his thyroid problems manifested in service and a proper investigation would have resulted in a proper diagnosis in 1984. The Veteran submitted the medical literature discussing that a thyroid disorder such as hypothyroidism can have an insidious onset, develops overtime, and the non-specific symptoms can result in a delayed diagnosis. After service, in 1997 or 1998, the Veteran was diagnosed with Graves' disease, which is the most common form of hyperthyroidism. Hyperthyroidism is excessive functional activity of the thyroid gland. Santiago v. Brown, 5 Vet. App. 288, 290 (1993). The Veteran was treated with radioactive iodine in 1998 which resulted in hypothyroidism. Hypothyroidism is the deficiency of thyroid activity, characterized by decrease in basal metabolic rate, fatigue, and lethargy. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, page 920, (31st Ed. 2007). Thus, the remaining question is whether the thyroid disability is related to the Veteran's military service. The Veteran was separated from service in September 1984 due to the failure to maintain weight standards, i.e., a weight gain. A service medical officer in February 1983 found the weight gain was not due to a pathological disorder. His separation examination in August 1984 was negative for any thyroid problems and again noted the Veteran's weight gain was not due to a pathological condition. Service treatment records do not show a diagnosis or treatment related to the thyroid. As noted above, the Veteran's initial thyroid diagnosis, Graves' disease, occurred in 1997. As reported in a December 2010 mental health VA examination, in 1997, the Veteran became aware of a tremor in his hands, excessive sweating, difficulty sleeping, feeling hot and cold, and mood shifts. He was diagnosed with Graves' disease and went through iodine radiation treatment. After the radiation treatment, he experienced a hypoactive thyroid. Since that time, his hypothyroidism has remained stable with medication. An August 2009 statement from H. N. Naddaf, M.D., indicated that the Veteran had a current diagnosis of hypothyroid, which could cause weight gain. In a December 2010 VA examination, the VA examiner noted the 1997/98 diagnosis of Graves' disease meant the Veteran had hyperthyroidism. Initially when he was diagnosed with Graves' disease, he had lost large amounts of weight. According to recent medical literature, there is no known cause for Graves' disease as it is an autoimmune disease. Graves' disease is treated with thyroidectomy or radioactive iodine treatment, which is how the Veteran was treated. The Veteran ended up being hypothyroid due to the radioactive iodine treatment. The December 2010 VA thyroid examiner concluded that it was less likely than not that the Veteran's current diagnosis of hypothyroidism was related to any type of weight issues in the military. The Veteran did not have any diagnoses of hypothyroidism in the military nor was the Veteran was treated for signs and symptoms of thyroid problems in service. Also the Veteran was diagnosed with Graves' disease 14 years after he left the military. It was noted that the Veteran's weight upon enlistment in 1970 was 168 pounds, and that when he was discharged he weighed 163 pounds. The examiner indicated that the Veteran's treatment for Graves' disease was radioactive iodine which kills the thyroid, eventually causing an individual to become hypothyroid. In an August 2015 VA examination, the VA examiner determined that there was no evidence that he had thyroid disorder during or soon after service. Instead, he was diagnosed with thyroid disorder 14 years after service in 1998. This was Graves' disease or hyperthyroidism. Radioactive iodine treatment resulted in hypothyroidism and the Veteran has been stable since that time with medication. In accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA) in May 2017. The Board asked the expert to address whether it is as likely as not that any of the Veteran's diagnosed thyroid disorders had its onset in service, became manifest to a compensable degree a within one year of discharge from active service, or is otherwise shown to be causally related to active service. The expert was also asked to discuss the Veteran's assertion that his weight gain in service represented a symptom of a thyroid problem that was either misdiagnosed or not properly diagnosed and to comment on the medical literature submitted by the Veteran. Finally, the Board asked whether it is as least as likely as not that Graves' disease or hypothyroidism could manifest during the period of active service from November 1979 to September 1984 and then remain undiagnosed or unchecked until the disability was initially diagnosed in the record over 13 years later in 1997 or 1998. The expert, an endocrinologist, replied in July 2017. She noted the Veteran presented in 1997 with classic signs and symptoms of hyperthyroidism (Graves' disease), resulting in the hyperthyroidism diagnosis and treatment with iodine. In her opinion, it was less likely than not that Graves' disease existed in service (or for the first year after separation) and then did not present again clinically until 1997. According to the VHA expert, by that time the Veteran was quite symptomatic with a common presentation of hyperthyroidism. After reviewing literature regarding stress induced hyperthyroidism the VHA expert stated remitting and relapsing hyperthyroidism can be expected to recur in 1 year or less in most people. Moreover, hyperthyroidism is not associated with weight gain. The VHA expert also concluded the weight gain in service was less likely than not to be related to a manifestation of a misdiagnosed or undiagnosed thyroid disorder. Weight gain can be associated in approximately 10 percent of the hypothyroid cases but hyperthyroidism is most commonly associated with weight loss. The VHA expert conceded it was possible for an autoimmune thyroid disease to smolder and go undiagnosed and for Graves' disease to remit and relapse. However, based upon the history of this case the expert found it less likely than not that the Veteran would have smoldering untreated Graves' disease for 14 years, not have enough symptoms to seek treatment, and also gain weight. Stated another way it is less likely than not he would have asymptomatic Graves' disease in service (with associated weight gain instead of weight loss), then remission and recurrence 14 years later with classic symptoms of hyperthyroidism. Finally, the VHA expert noted that autoimmune thyroid disease can be present for many years before clinical presentation or manifest itself biochemically. However, hyperthyroidism, especially in young adults is typically quite symptomatic with the type of symptoms the Veteran had at diagnosis. There is not a long lag time between disease onset and diagnosis. Stress related Graves' disease is plausible but there is not yet compelling epidemiological evidence this occurs and it would be unlikely Graves' disease in service would be associated with weight gain, the Veteran would not report any typical Graves disease symptoms in service, and that no recurrence would occur for 14 years. A thyroid disorder is not shown to be present during service or in the year following separation from service, thus, in-service incurrence cannot be presumed. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a) (2016). The two VA examiners and the VHA endocrinologist were asked to address any relationship between the in-service weight gain and the current thyroid disability. All three medical experts concluded that it was less likely than not that the current hypothyroidism was related to the Veteran's weight gain problem during service. The weight gain was determined not to have a pathological basis and the examination at separation was otherwise normal. The endocrinologist explained that the Veteran first developed hyperthyroidism/ Grave's disease well after service and weight gain is not associated with hyperthyroidism. Instead, what he did exhibit at diagnosis in 1997 was weight loss and other symptoms of hyperthyroidism. There is no medical evidence in significant conflict with the opinions of the VA examiner and the VHA endocrinologist. Thus, the most probative medical evidence is against the claim. A veteran is competent to describe symptoms that he is able to perceive through the use of his senses and to give evidence about what he has experienced. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, the Veteran is not shown to possess any medical expertise; thus, his opinion as to the existence of a thyroid disability or as to the etiology of a thyroid disability is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current thyroid disability requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). In any event, the Board finds the medical opinions more probative than the Veteran's lay statements as the opinion were offered by medical professionals after examination of the Veteran (or review of examination reports) and consideration of the history of the disability including the Veteran's reports, the medical literature he submitted, and as the opinions are supported by a clear rationale. In summary, the preponderance of the evidence is against a finding that the Veteran has a current thyroid disability that was caused or aggravated by service. Thus, the claim for service connection is denied. Service Connection for Hypertension The Veteran was diagnosed with hypertension at about the same time he was diagnosed with Graves' disease, which was in 1997-98. He was placed on medication and remains stable. Thus, the remaining question is whether hypertension is related to the Veteran's military service. Service treatment records do not reflect any complaints, report of symptoms, treatment, or diagnosis of hypertension in service. His blood pressure was tested on numerous occasions in service while being treated for a variety of unrelated ailments such as viral infections and all readings were within normal limits. Hypertension is not shown to be present during service or in the year following separation from service, thus, in-service incurrence cannot be presumed. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a) (2016). The August 2015 VA examiner was asked to address any relationship between service and the current hypertension. The examiner opined that it was less likely than not that the current hypertension was related to service. The examiner explained that there was no evidence of the presence or onset of hypertension during service and that hypertension was not diagnosed until years later (1998). The Board recognizes that the Veteran asserts hypertension has been caused or aggravated by his thyroid disorder, Grave's disease, followed by hypothyroidism due to radioactive iodine. As discussed above, however, the Board finds the Veteran's current thyroid disability is not related to service and therefore no further discussion is necessary regarding this theory. There is no medical evidence in significant conflict with the opinions of the VA examiner. Thus, the most probative medical evidence is against the claim. Furthermore, for the same reasons discussed above, although a veteran is competent to describe symptoms that he is able to perceive through the use of his senses and to give evidence about what he has experienced, Jandreau, supra; Layno, supra, whether the symptoms the Veteran experienced in service or following service are in any way related to his current hypertension requires medical expertise to determine. Clyburn, supra. In any event, the Board finds the medical opinion more probative than the Veteran's lay statements as the opinion was offered by a medical professional after examination of the Veteran and consideration of the history of the disability including the Veteran's reports, and as the opinion is supported by a clear rationale. In summary, the preponderance of the evidence is against a finding that the Veteran has hypertension that was caused or aggravated by service. Thus, the claim for service connection is denied. Service Connection for Obstructive Sleep Apnea The Veteran was diagnosed with obstructive sleep apnea in October 2002 and currently uses a C-PAP machine. Thus, the remaining question is whether the obstructive sleep apnea is related to the Veteran's military service. Service treatment records do not reflect any complaints, report of symptoms, treatment, or diagnosis of sleep apnea in service. A September 2009 statement from F. Ahmed, M.D., notes that the Veteran was his patient and that he was diagnosed with sleep apnea. Dr. Ahmed reported that the Veteran did have a history of obesity. Dr. Ahmed also commented that the Veteran had a history of thyroid problems in the past, which may have contributed to his obesity and his related sleep apnea. The August 2015 VA examiner was asked to address any relationship between the service and the current obstructive sleep apnea. The examiner opined that it was less likely than not that the current obstructive sleep apnea was related to service. The examiner explained that the examination at separation was normal, and that obstructive sleep apnea did not occur until years later. He was diagnosed with sleep apnea in 2000. The Board recognizes that the Veteran asserts his obstructive sleep apnea has been caused or aggravated by his thyroid disorder, Grave's disease, followed by hypothyroidism due to radioactive iodine treatment. As discussed above, however, the Board finds the Veteran's current thyroid disability is not related to service and therefore no further discussion is necessary for this theory. There is no medical evidence in significant conflict with the opinions of the VA examiner. Thus, the most probative medical evidence is against the claim. Furthermore, for the same reasons discussed above, although a veteran is competent to describe symptoms that he is able to perceive through the use of his senses and to give evidence about what he has experienced, Jandreau, supra; Layno, supra, whether the symptoms the Veteran experienced in service or following service are in any way related to his current obstructive sleep apnea requires medical expertise to determine. Clyburn, supra. In any event, the Board finds the medical opinion more probative than the Veteran's lay statements as the opinion was offered by a medical professional after examination of the Veteran and consideration of the history of the disability including the Veteran's reports, and as the opinion is supported by a clear rationale. In summary, the preponderance of the evidence is against a finding that the Veteran has obstructive sleep apnea that was caused or aggravated by service. Thus, the claim for service connection is denied. ORDER Entitlement to service connection for a thyroid disability is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for obstructive sleep apnea is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs