Citation Nr: 20044905 Decision Date: 07/06/20 Archive Date: 07/06/20 DOCKET NO. 09-07 555 DATE: July 6, 2020 ORDER The claim of entitlement to service connection for hypothyroidism, claimed as secondary to service-connected hepatitis, is denied. FINDINGS OF FACT 1. There is no evidence or argument even suggesting that the Veteran’s hypothyroidism had its onset during service, or is otherwise medically related to, his active service. 2. The only competent, probative medical opinions to address the relationship, if any, between hypothyroidism and service-connected hepatitis weigh against the claim. CONCLUSION OF LAW The criteria for service connection for hypothyroidism, claimed as secondary to service-connected hepatitis, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1957 to January 1960, and from July 1964 to August 1967. This appeal to the Board of Veterans’ Appeals (Board) arose from an October 2007 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO), inter alia, declined to reopen the Veteran’s claims for service connection for hypothyroidism and for hepatitis. In November 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in February 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in March 2009. In July 2014, the Veteran and his wife testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. In March 2015, the Board denied the Veteran’s requests to reopen the previously denied claims for service connection for hypothyroidism and hepatitis. The Veteran appealed the March 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2016 Memorandum Decision, the Court vacated the Board’s decision and remanded the matters to the Board for further proceedings consistent with the Memorandum Decision. In January 2017, the Board reopened the claim for service connection for hepatitis, and remanded the de novo service connection claim for that disability, as well as the petition to reopen the claim for service connection for hypothyroidism, for additional evidentiary development. In a July 2017 rating decision, the agency of original jurisdiction (AOJ) granted service connection for hepatitis, and assigned a zero percent (noncompensable) rating, effective March 30, 2007. That action resolved the claim for service connection for hepatitis, and, the Veteran has not appealed either the disability rating or effective date assigned. In August 2017, the Board reopened the Veteran’s claim for service connection for hypothyroidism, and he remanded the de novo service connection claim for that disability to the AOJ for further development. In March 2019, the Board again remanded the claim to the AOJ for additional development. After accomplishing further action, the AOJ continued to deny the claim on appeal (as reflected in the May 2020 supplemental SOC (SSOC), and returned this matter to the Board. This appeal has been advanced on the Board’s docket, pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). Service Connection At the onset, the Board is now satisfied that all notification and development actions needed to fairly resolve the service connection claim has been accomplished. An August 2007 pre-rating letter provided notice of what is needed to substantiate the claim and who was responsible for obtaining what evidence, and the February 2009 SOC and SSOCs dated July 2017, December 2018, and May 2020 set forth the criteria governing service connection. As for the evidentiary record, the record included service treatment records, VA treatment records, reports of VA examinations, and lay statements. Also considered in connection with the claim is the transcript of the Board hearing, along with written statements by the Veteran and his representative, on his behalf. Pursuant to the development requested in the remand, the AOJ obtained outstanding VA records, as well as an addendum opinion in December 2019; the opinion, which includes sufficient additional information needed to resolve the remainingclaim, is of record. Thus, substantial compliance with the prior remand directives has been achieved. Also, although, pursuant to the remand, the Veteran was invited to submit, or identify, pertinent additional records, to include private records, no additional evidence was submitted or identified. Thus, there is no identified evidence for which the Veteran has provided appropriate authorization to obtain, or other existing, relevant evidence outstanding, and neither the Veteran nor his representative has alleged any error or omission in the assistance provided. Hence, the Veteran is not prejudiced by the Board proceeding to a decision on the claim herein decided, , at this juncture. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in or otherwise medically related to service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, probative 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., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be established on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires: (1) competent, probative evidence a current disability; (2) a service-connected disability; and (3) competent, probative evidence that the current disability was either (a) caused or (b) aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The determination as to whether each element of a claim is met is based on an analysis of all relevant evidence of record and evaluation of its competency, credibility and probative value. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) Baldwin v. West, 13 Vet. App. 1, 8 (1999). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Considering the pertinent evidence of record in light of the governing legal authority, the Board finds that service connection for hypothyroidism must be denied. Initially, the Board notes that there is no evidence or argument even suggesting that the Veteran’s hypothyroidism had its onset during service, or is otherwise medically related to, his active duty service. The Veteran’s service treatment records (STRs) are silent for any complaints, findings or diagnosis relevant to the hypothyroidism, and there is no medical evidence whatsoever indicating that the disability had its onset during service or is otherwise medically related to service. Rather, by the Veteran’s own admission, symptoms of the disability did not manifest until well after discharge from the military, and he is only claiming that the disability is secondary to his already service-connected hepatitis. Accordingly, on these facts, the Veteran is not prejudiced by the Board limiting its consideration to secondary service connection, as alleged. Turning to medical evidence of record, the Board notes that the claims file includes various VA treatment records, which document symptoms of and treatment for the Veteran’s hypothyroidism. Thus, medical evidence establishes a current disability. As for the medical nexus requirement, during the August 2014 Board hearing, the Veteran and his wife testified that the Veteran’s treatment for radio isotopes at a VA facility caused his hypothyroidism. In an April 2015 statement, the Veteran stated that in 1969, he was hospitalized for hepatitis C where he was treated with radio isotopes 98 to determine how much damage was done to his liver and that after he was cured from hepatitis, he had to take daily medication for thyroid. The Veteran underwent a VA examination in December 2018. The examiner opined that the Veteran’s hypothyroidism is less likely than not incurred in or caused by service. As rationale for that opinion, the examiner reasoned that the Veteran’s May 1967 examination during service is silent for any problems with his thyroid. The examiner noted that there was no documented evidence of a treatment for radio isotopes. The examiner also reviewed treatment records from 2002 to 2016 and reasoned that the Veteran’s hepatitis did not aggravate his hypothyroid because the Veteran’s thyroid condition remained stable while on medication for hepatitis. The examiner also reasoned that there is little medical literature to suggest a direct, causal, or pathophysiological relationship between hepatitis and hypothyroidism because the two conditions have different etiology and pathology. In March 2019, the Board remanded the service connection claim for further medical opinion, finding that, in considering a secondary relationship based on causation, the prior VA examiner did not consider the Veteran’s statement that he was placed on daily medication for thyroid after being treated for radio isotopes for his hepatitis in 1969. Pursuant to the remand, an addendum opinion was obtained in December 2019. The physician opined that the Veteran’s hypothyroidism is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected hepatitis. The examiner reasoned that hepatitis is an infection caused by the hepatitis virus and hypothyroidism is related to the thyroid gland and that the viral infection causing hepatitis has not known to cause infection of the thyroid gland and does not result in hypothyroidism. The examiner also reasoned that the Veteran’s treatment for hepatitis with radioactive isotope 98 did not cause or result in his hypothyroidism. The examiner explained that, although the treatment records do not document the type of isotope used at the time, the amount of radioactive material used in isotopes for scanning and diagnostic studies is small and does not cause any side effects. The Board notes that multiple negative opinions of record, by VA physicians, were proffered in December 2018 and December 2019. These opinions, read together, support the conclusion that the Veteran’s hypothyroidism was not caused or aggravated by his service-connected hepatitis. In so opining, the opinion providers considered the Veteran’s reports and the medical evidence of record. Furthermore, the opinions were supported by a thorough and detailed discussion of testing results and facts specific to the Veteran, and based on consideration of sound medical principles. As such, the Board accepts these opinions as probative of the medical nexus questions (causation and aggravation). See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In addition to the medical evidence discussed above, the Board has considered the lay assertions of record. However, to whatever extent the Veteran, his wife and/or his representative attempt to establish the existence of a medical relationship between hypothyroidism and service-connected hepatitis, the Board finds that such assertions do not provide persuasive evidence in support of the claim. The medical matter of the etiology of the disability at issue is a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Although lay persons are competent to report symptoms or other matters within their personal knowledge, and to provide opinions on some limited medical matters (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the specific matter of the etiology of hypothyroidism at issue is a complex medical matter that fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer). As none of the above-noted individuals is is shown to be other than a layperson without appropriate training and expertise, none s competent to render a probative (i.e., persuasive) opinion on the medical matter upon which this claim turns. Id. As the lay assertions in this regard have no probative value, the Veteran can neither support his claim, nor counter the competent, probative medical opinion evidence of record on the basis of lay assertions, alone. For all the foregoing reasons, the Board finds that the claim for service connection for hypothyroidism, as secondary to service-connected hepatitis, must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hammad Rasul, 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.