Citation Nr: 1800276 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 14-11 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a thyroid disability. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel INTRODUCTION The Veteran served honorably on active duty with the United States Army from June 2000 to November 2000; from February 2003 to May 2004; and from October 2010 to October 2011. He had overseas service in the Southwest Asia Theater of Operations during the Persian Gulf War. The Veteran also had additional service in the U.S. Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In August 2018, the Veteran presented testimony in a videoconference hearing before the undersigned and a copy of the transcript has been associated with the electronic record. The claim of entitlement to service connection for a thyroid disability was originally adjudicated as a claim of service connection for hypothyroidism. To ensure that any diagnosis of a thyroid condition is considered, the Board has recharacterized the issue as a claim of entitlement to service connection for a thyroid disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that the issues of whether new and material evidence has been received to reopen claims for service connection for a lower back disability, a bilateral knee disability, breathing problems, and for weakness and fatigue were appealed to the Board. However, these claims have not yet been certified to the Board, are still pending development at the RO, and will not be addressed herein. For reasons detailed below, this appeal is REMANDED to the RO for further development. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Specifically, remand is necessary to determine whether the Veteran's thyroid disability was incurred in or aggravated by a qualifying period of active service-of which there are several. In this case, the Veteran contends that he has a thyroid disability that is related to his active military service. The medical evidence of record shows that he has a currently diagnosed thyroid disability, but it is not clear whether the disability was incurred during a qualifying period of active service. In a November 2007 Army Report of Medical Examination, the Veteran did not report a diagnosis or symptoms of a thyroid disability. VA treatment records from January 2009 indicate that the Veteran was diagnosed as a hypothyroid in late 2008. An April 2015 U.S. Army Periodic Health Assessment suggests that the thyroid condition started in 2004, but is silent for further details. During his August 2017 Board hearing, the Veteran testified that he was diagnosed with hypothyroidism in 2007. As an initial matter, the Board notes that a Veteran is presumed to be in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious and manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in the examination reports are to be considered as noted. 38 U.S.C. §§ 1111, 1137 (2012); 38 C.F.R. § 3.304 (b) (2017). The presumption of soundness attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225 (1991). The term "noted" denotes only such conditions as are recorded in the examination reports, and a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304 (b) (1); Crowe v. Brown, 7 Vet. App. 238 (1994); Contant v. Principi, 17 Vet. App. 116 (2003). As previously mentioned, the Veteran has several periods of active service: June 2000 to November 2000; February 2003 to May 2004; and October 2010 to October 2011. The Board observes that the evidence of record in this case includes notations of hypothyroidism in the Veteran's 2010 pre-mobilization examination records. Consequently, the presumption of soundness, discussed above, does not attach to the period of active duty following that examination, and service connection for a thyroid disability during that time may be considered only on the basis of aggravation during active service. However, the presumption of soundness attaches for any qualifying periods of active service prior to that date. A preexisting disease will be presumed to have been aggravated by military service when there is an increase in disability during such service, unless there is a specific finding that the increase is due to the natural progression of the disease. See 38 U.S.C. § 1153; 38 C.F.R. § 303 (a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). The burden falls on the Veteran to establish an increase in severity. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Should an increase be established, the presumption of aggravation under section 1153 applies, and the burden shifts to the Government to show through clear and unmistakable evidence a lack of aggravation by establishing that the increase in disability is due to the "natural progress" of the disease. 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Here, the Veteran was afforded a VA examination in July 2012, during which he suggested that he began experiencing symptoms of a thyroid disability in 2004. The VA examiner noted that the Veteran was clinically diagnosed with hypothyroidism in 2007, but ultimately did not provide an opinion concerning whether the disease was etiologically related to service. The Veteran was afforded another VA examination in October 2017. The examiner noted that the Veteran was diagnosed with hypothyroidism in 2011, during service, but did not address the earlier diagnoses of record or provide a nexus opinion. VA has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c). This duty includes providing a medical examination if such examination is determined to be necessary to decide the claim. 38 C.F.R. § 3.159 (c) (4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006); Robinette v. Brown, 8 Vet. App. 69, 76 (1995). Here, especially in light of the conflicting evidence of record concerning date of diagnosis, the medical opinions obtained by VA in July 2012 and October 2017 do not adequately address the nature and etiology of the Veteran's thyroid disability. Consequently, the Board must remand the Veteran's claim for further development in order to ensure there is a complete record upon which to decide his claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (where VA has undertaken to provide examinations, the examinations must be adequate). Accordingly, the case is REMANDED for the following actions: 1. Identify and obtain any outstanding medical treatment records that are not already associated with the claims file. All efforts to obtain additional evidence must be documented in the electronic file. 2. Return the claims file to the VA examiner that conducted the October 2017 examination, or, if unavailable, another appropriate VA examiner for an addendum opinion. If the VA examiner determines an additional examination of the Veteran is necessary, one is to be arranged. The entire claims file must be provided to the examiner for review, and the examination report should reflect such review was accomplished. Any clinically indicated testing and/or consultations must be performed. Following a review of the claims file, and examination of the Veteran if performed, the examiner is to address the following: a. Is it at least as likely as not (probability of at least 50 percent) that any current thyroid disability had its onset during or is otherwise etiologically related to a qualifying period of active service? b. If the answer to (a) is no, is there clear and unmistakable evidence (obvious, manifest, undebatable) that the Veteran suffered from a thyroid disability prior to a period of active service? If answered in the affirmative, the examiner must provide a discussion of any such evidence. c. If the answer to (b) is yes, is there clear and unmistakable evidence (obvious, manifest, undebatable) that the Veteran's preexisting thyroid disability was not aggravated by service (i.e., did not undergo an increase in severity or, if so, any such increase was due to the natural progression of the condition)? If answered in the affirmative, the examiner must provide a discussion of any such evidence. A complete rationale must be offered for all opinions expressed, including a discussion of the evidence and medical principles which led to the conclusions reached. 3. After completing the above, and any other development deemed necessary, readjudicate the Veteran's appeal based on the entirety of the evidence. If the benefit sought on appeal is not granted, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). _________________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).