Citation Nr: 18148806 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-28 996 DATE: November 8, 2018 ORDER As new and material evidence has been received, the previously denied claim for service connection for a hypothyroid disorder is reopened. REMANDED The issue of entitlement to service connection for a hypothyroid disorder is remanded. The issue of entitlement to service connection for a right hip disorder is remanded. The issue of entitlement to service connection for a left knee disorder is remanded. The issue of entitlement to service connection for a right knee disorder is remanded. The issue of entitlement to service connection for bilateral leg cramps is remanded. FINDINGS OF FACT 1. In a March 1972 rating decision, the agency of original jurisdiction (AOJ) denied the Veteran’s claim for service connection for hypothyroidism; he was advised of the AOJ’s decision, and of his appellate rights. 2. The Veteran did not appeal the March 1972 rating decision, nor was any new and material evidence received within one year of the March 1972 rating decision. 3. Additional evidence received since the March 1972 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for hypothyroidism, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 1972 rating decision denying service connection for hypothyroidism is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2018). 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for hypothyroidism. 38 U.S.C. §§ 1110, 5108 (2012); 38 C.F.R. §§ 3.303, 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1971 to January 1972. New and material evidence having been received, the claim for service connection for hypothyroidism is reopened. In the present case, the AOJ, by a decision entered in March 1972, denied the Veteran’s claim for service connection for hypothyroidism on grounds that it was not incurred in or aggravated by service. The Veteran did not appeal, no new and material evidence was received within a year of the rating decision, and the decision became final. 38 C.F.R. § 3.156 (b). Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2018); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). For claims to reopen filed on or after August 29, 2001, such as the Veteran’s, evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. “New and material evidence” can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a “reasonable possibility of substantiating the claim” should be considered a component what constitutes new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has also held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. Pertinent evidence received since the March 1972 rating decision includes the Veteran’s sworn lay testimony that his thyroid medication was taken from him during basic training and that he was not permitted to seek medical treatment for the same once he began to feel the effects of not having such medication during service. See e.g. Transcript pages 3, 16. This evidence was not before the AOJ when the Veteran’s claim was denied in March 1972. Rather, the Veteran’s service records indicate that the Veteran voluntarily stopped taking his medication prior to service. The new evidence is not cumulative or redundant of the evidence of record at the time of the March 1972 decision. The new evidence also relates to an unestablished fact necessary to substantiate the claim for service connection for the thyroid disorder - namely that if it clearly and unmistakably preexisted service, it may have been aggravated by the Veteran’s superior taking away the medication in service - and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. REASONS FOR REMAND 1. The issue of entitlement to service connection for a hypothyroid disorder is remanded. Having determined that the claim is reopened, the Board finds that further development is necessary to address the merits. A medical opinion is necessary to assess whether the Veteran’s current hypothyroid disorder was caused or aggravated by service. The Veteran’s July 1971 service entrance examination noted that his endocrine system was normal. Thus, the Veteran is presumed to have been in sound condition on service entrance. In order to rebut the presumption of soundness, it must be shown that a disability clearly and unmistakably preexisted service and was not aggravated by service. While treatment records dated prior to service indicate that the Veteran was treated for hypothyroidism prior to service, the records do not expressly state that the disorder was congenital, as assumed in the prior March 1972 rating decision. See July 1970 treatment record. To date, no medical opinion has been obtained to address whether there is clear and unmistakable evidence of a preexisting hypothyroid disorder, and if so, whether there is clear and unmistakable evidence that the disorder was not aggravated during service. As the Veteran was hospitalized for approximately one month during service for treatment for the hypothyroid disorder, the Board finds that a medical opinion is required. 2. The issues of entitlement to service connection for bilateral leg cramps, left and right knee disorders, and a right hip disorder are remanded. The Veteran asserts that he first experienced leg cramps, hip pain, and knee pain, during basic training in service. See Transcript page 8. He asserts that when his legs cramped in service, his knees would lock. He reports that he still has leg cramps, bilateral knee pain, and hip pain. Treatment records indicate a current diagnosis of osteoarthritis in the right knee as well as a history of glomus tumor in the right knee, and osteoarthritis in the right hip. See e.g. July 2015 VA treatment record, April 2013 private X-ray of the right knee, and April 2018 private X-ray report for the right hip. VA and private treatment records do not address diagnoses for the left knee or leg cramps; however, the Veteran has reported that he experiences bilateral knee pain and leg cramps that affect his ability to function with respect to the speed and distance with which he is able to walk. See e.g. Transcript pages 17-18. Recent case law held that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. See Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). As the Veteran has offered competent and credible testimony that his current knee, hip, and leg cramp symptoms began in service, a remand for a VA examination is required. While on remand, any outstanding VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records dated since June 2016. 2. Obtain any outstanding service clinical records regarding the Veteran’s hospitalization from November 1971 to December 1971. The Board notes that the last page of the hospital summary is already of record. 3. Obtain a VA medical opinion from an appropriate clinician regarding the Veteran’s hypothyroid disorder. (a.) Is it clear and unmistakable (i.e., undebatable) that the Veteran’s hypothyroid disorder preexisted the Veteran’s entry into service beginning in July 1971? Consider the July 1970 private treatment record which indicated treatment for hypothyroidism in January 1968 and a history of hypothyroid disorder since childhood. (b.) If the answer to (a) is “YES,” is it also clear and unmistakable that the disorder was not aggravated by service. Consider that the Veteran was hospitalized for approximately one month during service, beginning in November 1971, for his hypothyroid disorder. Consider also the Veteran’s lay testimony that his thyroid medication was taken from him when he started basic training and that he did not feel that he was allowed to seek treatment from sick call when he began to experience the effects of not having his thyroid medication. (c.) If the answer to either (a) or (b) is “NO,” then assume as true that the Veteran entered service without a hyperthyroid disability. With that assumption in mind, is it at least as likely as not (50 percent or greater probability) that the hypothyroid disorder and onset in, or is otherwise related to his active duty service, to specifically include his assertion that he was forced to stop taking medication from July 1971 to November 1971? Complete rationale must be offered for any opinion rendered. If an in-person medical examination is necessary to provide responses to the opinion requests above, such should be scheduled. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any leg cramp, knee, or right hip disorder, to include arthritis in the right knee and right hip. The examiner is asked to address the following. (a.) Identify all disorders of the left and right knees, right hip, and leg muscles, including leg cramps, present at any time during the pendency of the appeal. If no current diagnosis is found for the left knee and/or leg cramp complaints, the examiner must address whether these complaints affect the Veteran’s ability to function. Consider the Veteran’s statements that his bilateral knee pain and leg cramps affect his ability to walk long distances, such as walking around a mall, or keep pace with whomever he is walking. (b.) For each disorder identified, or each complaint associated with functional impairment, the examiner must opine as to whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner must consider the Veteran’s statements that his current disorders began during basic training in service. The examiner is reminded that the Veteran is competent to report his observations of pain and cramping in service even if he was not treated for the same. Additionally, the examiner should consider the Veteran’s sworn testimony that his training instructor threatened to report him as AWOL if he left training to seek treatment (Transcript page 16) and thus, the Veteran did not feel that he could seek such treatment during basic training. (c.) For any disorder found to be not directly related to service, the examiner is asked to opine as to whether it is at least as likely as not caused or aggravated beyond its natural progression by the Veteran’s hypothyroid disorder. Complete rationale must be offered for any opinion rendered. (Continued on Next Page) 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the Veteran’s claims based on the entirety of the evidence. If any claim remains denied, issue the Veteran and his representative a supplemental statement of the case. Allow an appropriate period of time for response. V. CHIAPPETTA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel