Citation Nr: 18148605 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 13-09 552 DATE: November 7, 2018 ORDER Entitlement to service connection for hypothyroidism is denied. Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for a bilateral knee disability, to include degenerative joint disease of the bilateral knees, is denied FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a current hypothyroidism disability. 2. The Veteran’s diabetes mellitus did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 3. The Veteran’s bilateral knee disability, to include degenerative joint disease of the bilateral knees, did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for hypothyroidism are not met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 2. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 3. The criteria for service connection for bilateral knee disability, to include degenerative joint disease of the bilateral knees, are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2017) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1977 to July 1990. This appeal to the Board of Veterans’ Appeals (Board) arose from a January 2010 rating decision issued by the Department of Veterans Affairs (VA). See July 2011 rating decision; January 2012 Notice of Disagreement (NOD); February 2013 Statement of the Case (SOC); March 2013 Substantive Appeal (VA Form 9). The Veteran testified before the undersigned Veterans Law Judge in a May 2014 hearing. A transcript of the hearing is associated with the claims file. In May 2015, the Board granted the Veteran’s request to reopen the claims of service connection for diabetes mellitus and hypothyroidism. The Board then denied entitlement to service connection for diabetes mellitus, and remanded the Veteran’s claims of service connection for hypothyroidism and degenerative joint disease of the bilateral knees to afford the Veteran additional VA examinations. The Veteran appealed the May 2015 Board decision to the United States Court of Appeals for Veterans Claims (“Court”). In April 2016, the Court granted a Joint Motion for Partial Remand (“Joint Motion”), which included vacating and remanding the part of the May 2015 Board decision that denied the Veteran’s claim of service connection for diabetes mellitus to obtain an adequate VA examination. The Agency of Original Jurisdiction (AOJ) afforded the Veteran new VA examinations directed by the May 2015 Board decision and the Court. In August 2016, the Board again remanded the Veteran’s claims of service connection for diabetes mellitus, hypothyroidism, and bilateral knee disability, to include degenerative joint disease of the bilateral knees, to obtain adequate VA examinations. The Board advised that a lack of contemporaneous medical records documenting complaints of or treatment for the Veteran’s asserted disabilities is insufficient by itself as rationale to support a medical nexus opinion. In November 2017, the Board requested an expert medical opinion from the Veteran’s Health Administration (VHA). 38 C.F.R. § 20.901 (2017). A May 2018 VHA opinion was received and the Veteran waived consideration by the Agency of Original Jurisdiction (AOJ). See September 2018 Medical Opinion Response Form. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, certain chronic diseases such as arthritis, diabetes mellitus, and endocrinopathies, that manifest to a compensable degree within one year after discharge from active duty shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such diseases during the period of service. See 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, if a chronic disease listed at 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a) is noted during service or the presumptive period, but not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is competent to report on the onset and continuity of current symptomatology based on personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if the layperson: (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) is describing symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, at 1376-77 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for hypothyroidism is denied. During the May 2014 hearing, the Veteran testified that her medical treatment providers during service were concerned about her thyroid due to feeling something when she swallowed and an elevated thyroid test. The Veteran asserts that she was diagnosed with hypothyroidism in 1983 and prescribed medication, but was then taken off the medication at separation and that this resulted in a return of her symptoms. See August 2009 Correspondence. The Veteran asserts that her symptoms related to hypothyroidism include weight gain, coarse hair, hair loss, muscle cramps, depression, irritability, and heavy menstrual bleeding. See July 2010 Correspondence. The Veteran’s daughter submitted a written lay statement indicating that she, herself, has a thyroid condition and believes the Veteran has the same symptoms. See September 2009 Buddy statement. The question for the Board here is whether hypothyroidism is a current disability. The Board finds that it is not. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See, e.g., Degmetich v. Brown, 104 F.3d 1328 (1997). However, Congress has specifically limited entitlement to service connection for a disease or injury where such instances have resulted in a disability. 38 U.S.C. §§ 1110, 1131. Hence, where the evidence does not support a finding of a current disability of hypothyroidism upon which to predicate the grant of service connection, there can be no valid claim for this benefit. See Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The evidence in this case shows that the Veteran does not have a current disability of hypothyroidism, and has not had one recent to the filing of the claim or any time during its pendency. While the Board finds the Veteran’s lay statements about the symptoms she presently experiences and those during her service credible, the statements are not competent to support a diagnosis of hypothyroidism. The Veteran is competent to report having experienced symptoms of weight gain, coarse hair, hair loss, muscle cramps, depression, irritability, and heavy menstrual bleeding, but whether the symptoms are due to hypothyroidism falls outside of the realm of knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau, 492 F.3d at 1377. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, supra. Although the Veteran is competent to describe the symptoms and their onset, the statements regarding the etiology of the symptoms are of limited probative value because this determination involves a complex medical question. Id. Likewise, while the Board finds the Veteran’s daughter is competent to relate to her observation of the Veteran’s symptoms, and considered that her daughter has hypothyroidism, the Board finds she is also not competent to attribute those symptoms to diagnosis of hypothyroidism. Instead, the Board gives probative weight to the December 2016 VA examiner’s opinion. The VA examiner opined that the evidence does not have a current hypothyroidism disorder nor one since separation. See December 2016 VA examination. The VA examiner indicated that this was very clear and based on objective laboratory evidence. Id. The VA examiner gave rationale that the Veteran was not on a thyroid supplement during her thyroid testing in 1996, 2012, and 2016, but her thyroid-stimulating hormone (TSH) levels were still within normal limits. Id. The VA examiner opined that this is indicative of a person who does not have hypothyroidism. Id. Regarding the Veteran’s diagnosis and treatment for hypothyroidism during service, the VA examiner opined that the service treatment records show the diagnosis and treatment were based on a service treatment provider’s belief the Veteran “probably” had a failing thyroid gland and that the need for a thyroid supplement was then later question by a subsequent treatment provider. See Id. The December 2016 VA examiner is a qualified medical professional, who is competent to assess whether the symptoms and objective findings support a diagnosis of hypothyroidism, and provided detailed rationale to support her opinion. The VA examiner’s opinion is also consistent with more recent private medical treatment records that show the TSH levels are within normal reference range. See February 2007, March 2008, and April 2009 Private treatment records. Thus, the Board finds the VA examiner’s opinion is entitled to probative weight. The Board acknowledges that the March 2016 VA examination report shows a diagnosis of hypothyroidism, but the Board gives the diagnosis no weight. The VA examiner indicated the Veteran has a diagnosis of hypothyroidism based on laboratory testing performed on March 18, 2016, but the VA examiner remarked on the same examination report that these testing results show normal TSH levels. The VA examiner provided no rationale as to why the normal TSH levels support a diagnosis for hypothyroidism. The Board also considered the Veteran’s complaints of weight gain, coarse hair, hair loss, muscle cramps, depression, irritability, and heavy menstrual bleeding. The Veteran’s depression and irritability are evaluated in a separate December 2016 rating decision for an asserted insomnia disorder claimed as posttraumatic stress disorder with depression and anxiety. The evidence reflects that the other complaints of symptoms do not amount to a disability that functionally impairs the Veteran. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the symptoms related to a specific body system or joint involved must functionally impair the Veteran to constitute a disability). The Veteran testified during the May 2014 hearing that she is not currently being treated for a thyroid condition. The March 2016 and December 2016 VA examiners found no functional impact from the Veteran’s thyroid or parathyroid condition. The lack of treatment and the VA examiners’ opinions of no functional impairment is highly probative against finding that the symptoms functionally impair the Veteran. The Board also considered the Veteran’s representative contention that the December 1983 diagnosis of hypothyroidism based on an abnormal thyroid testing supports that the disability manifested during service. As discussed above, the probative evidence supports that the Veteran did not actually have hypothyroidism during service and, moreover, that she does not have a current hypothyroidism disorder to satisfy the current disability requirement to establish service connection. Because the first element of service connection, i.e., a current disability, has not been met, service connection for hypothyroidism must be denied. 2. Entitlement to service connection for diabetes mellitus is denied. The Veteran relates that she had weight problems while in service despite exercise and eating properly, and numerous doctor visits and tests showed abnormal blood sugar levels. August 2009 Correspondence. The Veteran testified at the May 2014 hearing that she believes she had problems with blood sugar around 1988 based her needing to use the bathroom every hour, weight gain, and vision problems. The Veteran also testified that she was diagnosed with diabetes during service on December 4, 1979, and September 10, 1980, but did not receive treatment. Id. The Veteran’s sister relates that they have a family history of diabetes and that she has observed the Veteran’s exhaustion, frequent thirst, and frequent urination. See August 2009 Buddy statement. A friend who knew the Veteran during service related in an August 2009 buddy statement that she and the Veteran exercised together and she observed the Veteran to have frequent thirst and need to urinate. The Board does not dispute that Veteran has a current disability of diabetes mellitus and that she had treatment for her blood sugar and symptoms that include weight, exhaustion, frequent thirst, and frequent urination during service. See December 1979 Service treatment record; May 2014 hearing testimony; December 2016 VA examination. However, after careful review of the evidence, the Board finds that the preponderance of the evidence is against finding service connection for diabetes mellitus under a presumptive service connection or on a direct through a medical nexus. As discussed with regards to her hypothyroidism, the Veteran is competent to report having experienced symptoms of increased weight, frequent thirst, and frequent urination, but the etiology of these symptoms falls outside of the realm of knowledge of a lay person. Kahana, 24 Vet. App. at 435; Jandreau, 492 F.3d at 1377. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, supra. While the Board finds the lay statements by the Veteran, her sister, and her friend about weight gain, vision problems, frequent thirst, and frequent urination credible, the statements about diabetes being the etiology of the symptoms are of limited probative value because this determination involves a complex medical question. Moreover, the competent and more probative medical evidence is against such a finding. The Board finds the December 2016 VA examiner’s opinion the most probative evidence as to whether the Veteran’s current diabetes mellitus was incurred in or otherwise related to service. The December 2016 VA examiner opined that the Veteran’s diabetes mellitus was not incurred in or caused by service. The VA examiner opined that the August 1980 glucose tolerance test (GTT) results shows only one out of four values above normal range, and that this is insufficient to show a positive diagnosis for glucose intolerance. See August 1980 service treatment records; December 2016 VA examination. The VA examiner explained that the opinion is based on objective laboratory evidence and that the Veteran’s reported symptoms during service could be due to many different reasons. See December 2016 VA examination. The VA examiner opined that, not only do these objective glucose test findings supersede reported symptoms for that reason, but they rule out glucose intolerance and diabetes mellitus as the cause for her symptoms. Id. The Board finds the VA examiner’s opinion probative as it is detailed and provides a thorough evaluation of the evidence. The Board notes that while the December 2016 VA examiner did not explicitly state that the Veteran’s diabetes mellitus is less likely than not related to service, the Board may reasonably infer this from the VA examiner’s clear statement that diabetes mellitus was “not incurred in or caused by service.” See Emenaker v. Peake, 551 F.3d 2332, 2335 (Fed. Cir. 2008). The Board also gives probative weight to the August 1998 opinion by private treatment provider E.G., M.D. Dr. E.G. indicated that the Veteran’s military records were reviewed and, while her service treatment provider opined that the Veteran’s GTT was borderline, it is her opinion that the values are normal and do not suggest a diagnosis of diabetes. Id. Dr. E.G. further added that she believes the Veteran’s service treatment provider misspoke in a progress note that references mild glucose intolerance as secondary to diabetes because other service treatment records indicate it was due to being overweight. Id. Dr. E.G. is a medical professional who treated the Veteran, reviewed the available medical evidence, and gave an opinion closer in time to when the Veteran separated from service. Accordingly, the Board gives the opinion probative weight. Based on the opinions from the December 2016 VA examiner and Dr. E.G., the Board finds that the preponderance of the evidence against finding that diabetes mellitus manifested in service or within one year after separation. While the Board finds the lay statements about the Veteran’s symptoms of weight gain, vision problems, frequent thirst, and frequent urination credible, the objective evidence rules out diabetes as a cause for her symptoms at that time. A December 1979 service treatment record also indicates that the Veteran was considered overweight prior to entering service in 1977, and lost 17 pounds for enlistment. The Board also considered whether the evidence supports service connection on a direct basis, but finds that the competent and more probative evidence does not for the same reasons. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). The Veteran’s representative contends that the August 2009 opinion from Dr. E.A., M.D., should be considered in finding a nexus between the Veteran’s current diabetes mellitus and service, but the Board finds the opinion is outweighed by the overall and more probative evidence. Dr. E.A. opined that the Veteran was diagnosed with abnormal GTT with diabetic pattern, and that this is a high risk factor for a subsequent diagnosis of diabetes mellitus. However, Dr. E.A. does not discuss the service treatment records that indicates the Veteran’s GTT was actually normal. Accordingly, the Board finds this opinion less probative. The September 2013 VA examiner also opined that glucose intolerance is a risk factor for diabetes, but, likewise, does not consider the service treatment records indicating that GTT values during service does not support glucose intolerance. See September 2013 VA examination. While the VA examiner ultimately opines that the Veteran’s diabetes is less likely than not incurred in or caused by service, the Board finds opinion is still entitled to less probative weight for that reason. Id. The Board also acknowledges that the Veteran submitted a medical opinion and functional assessment from J.S.K., M.D., while this appeal was pending. Dr. J.S.K. noted that a November 1979 medical record references “Borderline Diabetes,” and opined the current pharmacologic agents used to treat diabetes did not exist during the Veteran’s period of service, but that the Veteran’s recollection of a prescribed weight loss program, including diet and exercise, seem similar to lifestyle interventions recently shown to reduce the incidence of type 2 diabetes mellitus. September 2018 Private treatment record. However, Dr. J.S.K. did not mention the evidence discussed by the December 2016 VA examiner and Dr. E.G., which indicates that the diagnosis of borderline diabetes was in error. Moreover, Dr. J.S.K. does not actually opine that the Veteran’s current diabetes was incurred in or otherwise related to service, only that the recommended exercise and diet has been shown to reduce the incidence of diabetes mellitus. Id. In addition, Dr. J.S.K.’s functional assessment of the Veteran’s current diabetes symptoms indicates the Veteran’s diagnosis of diabetes has an onset in 1992, at least a year after the Veteran’s separation from service. See June 2018 Diabetes Mellitus Disability Benefits Questionnaire. Given that the opinion does not consider all the relevant evidence and does not opine on whether the Veteran’s current diabetes mellitus was incurred or otherwise related to service, the Board finds it less probative. Therefore, the Board finds the overall competent and probative evidence is against finding the Veteran’s diabetes mellitus was incurred in or otherwise related to service. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 3. Service connection for a bilateral knee disability, to include degenerative joint disease of the bilateral knees. The Veteran testified that she did not injure her knees during service, but had problems such as pain when she rode a bike or ran. May 2014 hearing testimony. The Veteran testified that she has had symptoms since separation, uses a brace since 2006, and had surgery on her right knee in 2008. Id. As an initial matter, the Board finds the Veteran has a current bilateral knee disability, to include degenerative joint disease of the bilateral knees. However, the Board finds that the Veteran’s current bilateral knee disability does not include prepatellar bursitis of the left knee. The May 2018 VHA opinion obtained by the Board indicates the evidence shows that the Veteran has not had prepatellar bursitis of the left knee at any time since 2010, and that her current knee problems are not related to or caused by her prior episode of prepatellar bursitis. See May 2018 VHA opinion. The Board finds this opinion highly probative as it is from a qualified orthopedic surgeon who reviewed the evidence in the claims file, provided detailed rationale, and is the only opinion on whether prepatellar bursitis is a current disability. Thus, the Board does not dispute that the Veteran has a current bilateral knee disability, to include degenerative joint disease of the bilateral knees, but finds that her current knee disability does not include prepatellar bursitis. The Board also does not dispute that the Veteran experienced pain in her knees during service based on her testimony. See May 2014 hearing testimony. The questions remaining for the Board is whether the evidence shows that the Veteran’s current bilateral knee disability, to include degenerative joint disease of the bilateral knees, warrants a presumptive service connection as a chronic disease or under a direct service connection basis. The Board finds that preponderance of the evidence is against finding that service connection warranted under either basis. The Board finds that the competent and probative evidence does not support that her knee complaints during service is related to her current bilateral knee disability. The Veteran’s lay statements of having knee pain while in service is credible, but whether the cause of her knee pain during service is related to her current bilateral knee disability is outside the realm of knowledge of a lay person. See Kahana, 24 Vet. App. at 435; Jandreau, 492 F.3d at 1377. As discussed above, the VHA opinion obtained by the Board indicates that the Veteran’s complaints of left knee pain and diagnosis of prepatellar bursitis during service is not at all likely related to nor the cause of the Veteran’s current knee problems. See May 1985 Service treatment record; May 2018 VHA opinion. The VHA expert also opined that it is less likely than not that the Veteran’s current degenerative joint disease of either knee manifested within one year of discharge from service based on the lack of treatment between July 1990 to Jul 1991. See May 2018 VHA opinion. This is consistent with the December 2016 VA examiner opinion that there is no evidence of a chronic or continuing bilateral knee problem during service and considered that the Veteran reported that she had no bone joint or other deformity on her Report of Medical History at separation. See December 2016 VA examination. The December 2016 VA examiner also opined that the degenerative changes shown by the Veteran’s 2011 bilateral knee x-rays are typical for a person of her age and body habitus, and not due to military service. Id. Taken together, the opinions and evidence cited by the December 2016 VA examiner and May 2018 VHA expert are probative against finding that the Veteran’s current bilateral knee disability, to include degenerative joint disease of the bilateral knees, manifested during or within a year after separation from service, or a continuity of symptomatology. Moreover, the evidence shows the Veteran’s 2008 knee surgery was due to a right knee twist injury that occurred that same year, which is more than a decade after her service. See June 2008 to December 2008 Private treatment records. The Board also considered whether there is a medical link, or nexus, between the Veteran’s current bilateral knee disability and service to support service connection on a direct basis, but finds there is not. In addition to the evidence discussed above, both the December 2016 VA examiner and May 2018 VHA expert opined that it is less likely than not that the Veteran’s current bilateral knee disability, to include degenerative joint disease of the bilateral knees, was incurred in or etiology related to service. See December 2016 VA examination; May 2018 VHA opinion. Thus, the Board finds that service connection on a direct basis is also not warranted. (Continued on the next page)   In reaching the conclusions above, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lin, Associate Counsel