Citation Nr: 20002919 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 19-04 276 DATE: January 14, 2020 ORDER Reopening of a claim of service connection for hypothyroidism is granted. Entitlement to separate disability evaluations for Gilbert’s disease and cholecystectomy, currently assigned a single 20 percent rating, is denied. REMANDED Entitlement to service connection for hypothyroidism is remanded. Entitlement to service connection for diverticulitis, to include as due to Agent Orange exposure, is remanded. FINDINGS OF FACT 1. An unappealed February 2013 rating decision denied entitlement to service connection for hypothyroidism based on the fact that no nexus to service was shown. 2. Evidence submitted since February 2013 was not previously considered by agency decision makers and addresses an unestablished fact with regard to hypothyroidism. 3. The Veteran is service connected for Gilbert’s disease and cholecystectomy. Gilbert’s disease is rated under Diagnostic Code 7345, and cholecystectomy is rated under Diagnostic Code 7318. He is currently in receipt of a single evaluation of 20 percent for these disabilities under Diagnostic Code 7345. 4. Separate evaluations may not be awarded for disabilities rated under Diagnostic Code 7345 and Diagnostic Code 7318. CONCLUSIONS OF LAW 1. The February 2013 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2019). 2. Evidence submitted since the February 2013 rating decision denying entitlement to service connection for hypothyroidism is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2019). 3. Separate disability evaluations for Gilbert’s disease and cholecystectomy are not warranted. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.114, Diagnostic Codes 7318 & 7345 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from July 1970 to September 1973 and in the U.S. Army from March 1977 to July 1988. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The issue of entitlement to a rating in excess of 20 percent for Gilbert’s disease with cholecystectomy has been raised by the record in an October 2016 Notice of Disagreement and a January 2019 VA Form 9. The claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that matter. 38 C.F.R. § 19.9(b). Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in October 2012. The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have 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 duty to assist argument). New and Material Regardless of the decision of the RO as to whether to reopen a previously denied claim, a finding by the Board of new and material evidence is required in order to establish its jurisdiction to review the merits of a previously denied claim. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means 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). Service connection for hypothyroidism was most recently denied in an unappealed February 2013 rating decision on the grounds that no nexus to service was shown. Since that time, the Veteran has submitted lay statements and Agent Orange medical literature which indicate a possible nexus to service. Reopening of the claim is appropriate. Adjudication of the Veteran’s claim does not end with the determination that new and material evidence has been received. This matter must now be addressed on a de novo basis. For the reasons detailed in the remand section, additional development is required for a full and fair adjudication of the underlying service connection claim. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110; 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection can also be established based on herbicide agent exposure, either directly or by presumption for certain listed diseases. 38 C.F.R. § 3.307(a)(6). A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to an herbicide agent containing dioxin, such as Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed. 38 C.F.R. § 3.307(a)(6)(iii). Personnel record establish the Veteran's Vietnam service, and hence his exposure to herbicides. 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. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran contends that he is entitled to service connection for hypothyroidism. He asserts that his hypothyroidism is due to Agent Orange exposure while stationed in the Republic of Vietnam. The Veteran’s representative acknowledges that the Veteran’s hypothyroidism is not an enumerated disease entitled to the presumption under 38 C.F.R. § 3.309(e), but rather asserts that service connection is warranted on a direct basis. The evidence of record indicates that the Veteran’s hypothyroidism did not manifest until after active service. Service treatment records indicate that a February 1970 enlistment physical examination and July 1973 and May 1988 separation examinations were reported as normal. The evidence of record reflects that the Veteran sought treatment for complaints of fatigue in July 1990. Diagnostic testing indicated that the Veteran was hypothyroid. An August 1990 thyroid sonogram yielded a symmetrical, prominent thyroid with a coarse, heterogenous appearance consistent with a goiterous gland. In August 1990, the Veteran presented for an endocrinology consultation. The examining physician confirmed the diagnosis of hypothyroidism. In October 2012, the Veteran was afforded a VA thyroid examination. The examination report referenced the Veteran’s diagnosis of hypothyroidism. The Veteran reported that he felt tired and fatigued, and treated the condition with medication. He further endorsed symptoms of constipation, mental sluggishness, muscular weakness, sleepiness, and cold intolerance. The VA examiner opined that the Veteran’s thyroid condition (hypothyroidism and goiter) is most likely caused by exposure to dangerous chemicals while on active duty. The Board finds the opinion is entitled to probative weight, as the opinion considered and addressed the Veteran’s lay statements, was based on a thorough review of the claims file, and provided a sufficient supporting rationale for the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There are no contrary opinions of record. The preponderance of the evidence therefore clearly favors the claim, and service connection for hypothyroidism is warranted on a direct basis. Separate Schedular Evaluations The Veteran contends that he is entitled to separate disability evaluations for his service-connected Gilbert’s disease and service-connected cholecystectomy. He asserts that Gilbert’s disease is a distinct, separate issue from the cholecystectomy, as the former concerns blood problems. The Veteran further contends that service connection for Gilbert’s disease was awarded shortly after his first period of active service, and while his subsequent cholecystectomy was caused by a different manifestation of symptoms. The Veteran’s representative contends that the rating criteria under Diagnostic Code 7318 for cholecystectomy involves the severity of symptoms while Diagnostic Code 7345 for Gilbert’s disease generally concerns the evaluation of fatigue-related symptoms. As such, the Veteran’s representative asserts that the evaluations for cholecystectomy and Gilbert’s disease would not violate the rule against pyramiding under 38 C.F.R. § 4.14. Service connection for Gilbert’s disease was awarded in a July 1975 rating decision, with a noncompensable evaluation under Diagnostic Code 7345 with an effective date of February 12, 1975. Service connection for cholecystectomy was awarded in an October 1992 rating decision, with a noncompensable evaluation under Diagnostic Code 7318, effective March 15, 1991. In June 2012, the Veteran submitted an application for increased disability ratings. The RO, in a February 2013 rating decision, increased the evaluation of Gilbert’s disease to 20 percent disabling, effective June 28, 2012, and increased the evaluation of cholecystectomy to 10 percent disabling, effective June 28, 2012. In a July 2016 rating decision, the RO found clear and unmistakable error in the evaluation of cholecystectomy. The RO severed the evaluation and included the disability in the evaluation of the Veteran’s service-connected Gilbert’s disease. The RO continued the evaluation of Gilbert’s disease with cholecystectomy as 20 percent disabling, effective June 28, 2012. Before proceeding to the merits of the Veteran’s claim, the Board notes that although the RO combined the disability evaluation of Gilbert’s disease with cholecystectomy as though it were a single disability, the disabilities are medically distinct and service connection is in effect for each disability. See Baughman v. Derwinski, 1 Vet. App. 563, 565-66 (1991) (holding that when the RO listed a condition as service-connected on a rating sheet, it effectively granted service connection and service connection remained in effect, despite re-characterization of the disability, unless service connection was severed in accordance with VA regulations). At issue in this appeal is whether separate disability ratings may be awarded for each of these disabilities. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran’s service-connected disability. 38 C.F.R. § 4.14. Although it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 38 C.F.R. § 4.113, Coexisting abdominal conditions, states that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title “Diseases of the Digestive System,” do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in §4.14. 38 C.F.R. § 4.114, Schedule of ratings – digestive system, provides that ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. The Board acknowledges that the Veteran and his representative argue that in his particular case, the assignment of separate ratings under Diagnostic Codes 7318 and 7345 would not amount to impermissible pyramiding, as the disabilities present with distinct manifestations (i.e., symptoms). However, 38 C.F.R. § 4.114 specifically directs that a single rating will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants elevation. Separate compensable evaluations for the enumerated digestive system disabilities of Gilbert’s disease and cholecystectomy under Diagnostic Codes 7345 and 7318, respectively, are precluded by 38 C.F.R. §§ 4.113, 4.114 as they are considered pyramiding. Given the binding nature of the applicable statutory and regulatory provisions recited above and the facts of this case, the Board finds that separate evaluations for Gilbert’s disease and cholecystectomy are not warranted. The Board notes that it is without authority to grant the Veteran’s claim on an equitable basis, and instead is constrained to follow the specific provisions of the law. See 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). As the law is dispositive, the claim must be denied because of the lack of legal entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). REASONS FOR REMAND Further development is required in connection with the claim of service connection for hypothyroidism. Although an October 2012 VA contract examiner, a nurse practitioner, opined that the condition was likely related to “exposure to dangerous chemicals while on active duty,” an earlier August 1990 endocrinology consultation by a doctor and specialist in the field found the condition was most likely Hashimoto’s thyroiditis, and indicated such was not related to the goiter. At the time, the Veteran denied exposure to any chemicals. First, there is a conflict in the etiology statements of record which must be resolved. Second, the 2012 examination is inadequate, as the “rationale” offered is simply a conclusory statement with no reasoning or authority cited. Finally, the specialist was not aware of all relevant allegations. Remand is required. With regard to diverticulitis, the duty to assist requires provision of an examination when there is a current disability, an injury in service, and a possible nexus between them. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran contends that his diverticulitis is due to his in-service exposure to Agent Orange while stationed in the Republic of Vietnam. The Veteran also stated that the symptoms associated with his service-connected hemorrhoids lead to the development of his diverticulitis problems. In his January 2019 VA Form 9, he further directs attention to his in-service complaints of diarrhea. Post-service treatment records document a diagnosis of diverticulitis. The Veteran has presented sufficient evidence to raise the possibility of a nexus regarding his claim of service connection for diverticulitis. Therefore, a VA examination for the Veteran’s claimed diverticulitis is warranted. The matters are REMANDED for the following action: 1. Associate with the claims file updated VA treatment records. 2. Schedule the Veteran for a VA Thyroid and Parathyroid examination. The claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether currently diagnosed hypothyroidism is at least as likely as not caused or aggravated by service, to include exposure to herbicides. The August 1990 and October 2012 opinions must be discussed. A full and complete rationale, to include authorities, is required for all opinions expressed. 3. Schedule the Veteran for a VA gastrointestinal (intestinal) examination for his claimed diverticulitis; the claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether it is at least as likely as not any currently diagnosed diverticular disability, if any, was caused or aggravated by service, to include as due to exposure to Agent Orange, and to include as due to his service-connected disabilities. A full and complete rationale is required for all opinions expressed. 4. Then, readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and then return the matter to the Board, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.A. Ong, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.