Citation Nr: 18155174 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 11-11 585 DATE: December 4, 2018 ORDER Service connection for hyperthyroidism is granted. FINDINGS OF FACT 1. The Veteran has a current diagnosis of hypothyroidism. 2. The evidence is at least in equipoise as to whether the Veteran’s hypothyroidism began during service and has continued since separation of service. CONCLUSION OF LAW The criteria for service connection for hypothyroidism have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1964 to September 1966. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for hypothyroidism. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in September 2013. A copy of the transcript has been reviewed and associated with the claims file. This matter was before the Board in April 2014 and April 2015, on each occasion it was remanded for additional evidentiary development. In a September 2017 decision, the Board denied service connection for hypothyroidism. The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). The parties filed a Joint Motion for Partial Remand (JMR), which vacated and remanded the Board’s September 2017 decision to the extent that it denied service connection for hypothyroidism. The JMR was granted by CAVC in a May 2018 order. Entitlement to service connection for hyperthyroidism Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Service connection may 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Hypothyroidism, as an endocrinopathy, is a chronic disease listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a “continuity of symptoms” after service is required to establish service connection. 38 C.F.R. § 3.303(b). Additionally, as a chronic disease, hypothyroidism will be considered to have been incurred in or aggravated by service if the disease becomes manifest to a compensable degree within one year from the date of service separation. 38 C.F.R. § 3.307(a)(3). In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). In the present case, the Veteran asserts that service connection is warranted for hypothyroidism as symptoms began during service and have continued since separation of service. The Veteran has a current diagnosis of hypothyroidism. She testified at the hearing in September 2013 and indicated that she began having symptoms of hypothyroidism in 1965, including sweats, mood changes, protruding eyes, fatigability, and a knot began to grow under her throat. The Veteran’s service-treatment records reveal complaints of nausea, constipation, creak in neck which affected her sight, and dizziness while in service. Thus, a present disability and in-service incurrence have been shown by the evidence. The Veteran was discharged from service in September 1966. She testified at the hearing and indicated that she immediately sought treatment for her thyroid disorder after service and had her thyroid removed in Texas in 1967. The Veteran submitted statements from her ex-husband dated in February 2007 and January 2011. He indicated that he was married to the Veteran from August 1965 to March 1987. During the spring of 1966, she began having mood swings, night sweats, and would become upset very easily. In June or July of 1967, her parents came to visit and noticed a large lump on her throat, enlarged eyes, weight gain, excessive sweating, and mood swings. They became distraught by her appearance and brought the Veteran to Texas, where she underwent surgery to remove her thyroid. This information was corroborated by the statements dated in December 2010 by the Veteran’s three sisters and brother, who all confirmed that the Veteran underwent an operation for her hypothyroid disability in the summer of 1967 in Texas. A June 1998 treatment note revealed the Veteran’s diagnosis of hypothyroidism. Physical examination revealed a thyroidectomy scar. An August 2011 treatment note confirmed the Veteran’s past surgical history of a thyroidectomy in 1967. The Veteran underwent VA examinations in June 2014 and February 2016. The examiner confirmed the diagnosis of postoperative hypothyroidism and noted the Veteran’s scar or disfigurement of the neck related to treatment for a thyroid disability. However, the examiner concluded that it was less likely than not that the Veteran’s hypothyroidism was incurred in service or within one year of discharge given that there were no records or documentation of a thyroid disability in service and the earliest documentation diagnosing hypothyroidism was in 1998. After a review of the evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current hypothyroidism was incurred in service. The Veteran is competent to describe what she experienced in service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In this regard, the Veteran is competent to testify regarding her in-service complaints of fatigue and mental disturbance, which are symptoms of hypothyroidism. See 38 C.F.R. § 4.119, Diagnostic Code 7903. Furthermore, the Veteran, her ex-husband, three sisters, and brother indicated that the Veteran underwent thyroid surgery in the summer of 1967, which is within one year of discharge of service. The Veteran’s post-service treatment records and VA examinations reveal a thyroidectomy scar. Lastly, an August 2011 treatment note reveals a history of a 1967 thyroidectomy. The Board finds that the statements by the Veteran, her ex-husband, brother, and three sisters are credible and they are competent to state that the Veteran underwent thyroid surgery in 1967. Furthermore, the Veteran indicated at the hearing that she continued to receive treatment following her thyroid surgery, including a continuous prescription for Synthroid. The Board also finds that her statements with respect to his continuity of symptomatology to be credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-38 (Fed. Cir. 2006). Moreover, the Board finds that the Veteran’s hypothyroidism manifested to a degree of 10 percent within a year from discharge as required pursuant to 38 C.F.R. § 3.307(a)(3). Indeed, to achieve a 10 percent rating for hypothyroidism pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7903, the Veteran must experience fatigability or prescribed continuous medication for control. In this case, the Veteran indicated that she experienced fatigue in service. Accordingly, this requirement has been met. The Board acknowledges the negative opinions provided by the June 2014 and February 2016 examiner. However, the Board gives no weight to these opinions. In this regard, the examiner acknowledges that the Veteran had a prior thyroidectomy and correlating scar but provided no opinion as to when this thyroidectomy occurred. Furthermore, he did not discuss the Veteran’s statements of fatigue and mood swings in service and did not consider the statements by her ex-husband, three sisters, and brother, who all indicated that she underwent thyroid surgery in the summer of 1967, which was within one year of discharge from service. The Board further notes that hypothyroidism, an endocrinopathy, is a chronic disease under 38 C.F.R. § 3.309(a) and service connection may be awarded solely based on evidence of continuity of symptomatology. In view of the foregoing, and in consideration of the credible lay statements indicating that the Veteran had in-service symptoms of hypothyroidism and underwent thyroid surgery within one year of discharge, the Board finds that the evidence is at least in equipoise regarding the question of whether the Veteran’s hypothyroidism is the result of military service. In cases where the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel