Citation Nr: 20051828 Decision Date: 08/05/20 Archive Date: 08/05/20 DOCKET NO. 06-20 518 DATE: August 5, 2020 ORDER Service connection for residuals of a parathyroid tumor removal is denied. The application to reopen the previously denied claim of service connection for osteoporosis, to include as secondary to residuals of parathyroid tumor removal is denied. FINDINGS OF FACT 1. The Veteran’s residuals of a parathyroid tumor removal was not shown as chronic in service and 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 or disease. 2. Evidence received since the final May 2011 Board decision denying service connection for osteoporosis, to include as secondary to residuals of parathyroid tumor removal, includes information that was not previously considered, but which does not relate to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a parathyroid tumor removal are not met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The evidence received since the May 2011 Board decision is not new and material and, therefore, insufficient to reopen the claim of service connection for osteoporosis, to include as secondary to residuals of parathyroid tumor removal. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1984 to July 1987. These issues were previously before the Board. In June 2018, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Following evidentiary development, the VA Appeals Management Center (AMC) continued the previous denials in a supplemental statement of the case (SSOC) issued in May 2020. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for a 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). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen’s disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was “noted” during service; (2) post-service continuity of symptoms; and (3) medical, or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of the chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed.” Id. at 1336; 38 C.F.R. § 3.303(b). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. Id.; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). “It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran.” Gilbert, 1 Vet. App. at 54. 1. Service connection for residuals of a parathyroid tumor removal The Veteran contends that he has had symptoms of parathyroid tumor since service, specifically in January 1987 when his calcium serum score was above 10. After considering the evidence of record, the Board concludes that the most probative evidence establishes that the Veteran’s residuals of a parathyroid tumor removal is not causally related to his active service. As an initial matter, the Board finds that the Regional Office (RO) substantially complied with the remand directives and no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the Board directed the RO to obtain the Veteran’s federal records from the Social Security Administration (SSA) and/or the Office of Personnel Management for FERS disability benefits, and then to schedule the Veteran for a VA examination to determine the nature and etiology of any residuals of a parathyroid tumor removal. The RO contacted the U.S. Office of Personnel Management for FERS Disability Benefits in February 2019 and obtained medical records from the SSA in February 2019. The Veteran was also afforded a VA examination in April 2019 to determine the nature and etiology of any residuals of a parathyroid tumor removal, complying with the remand directives. Turning to the issue at hand, in a March 2020 addendum opinion, the April 2019 VA examiner reviewed the Veteran’s file, to include the private December 2016 private opinion. The examiner opined that the Veteran’s disability was less likely than not incurred in or caused by the claimed in-service injury or disease. The examiner opined that hypercalcemia is defined as a serum calcium level of greater than 10.5 mg/dl or greater than 2.5 mmol/L, citing medical literature published in October 2018. In addition, the examiner cited the Veteran’s normal renal function at the time of discharge as well as his normal bone density score in 2007 as more evidence of the Veteran not having indications or symptoms of a parathyroid condition. The examiner also meticulously listed all pertinent evidence reviewed. When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The United States Court of Appeals for Veterans Claims (Court) has held that claims file review, as it pertains to obtaining an overview of a claimant’s medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further, a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. “It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A medical opinion, however, based on an inaccurate factual premise is not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. See Miller v. West, 11 Vet. App. 345, 348 (1998); see also Leshore v. Brown, 8 Vet. App. 409 (1995). The findings of the April 2019 VA examiner were thoroughly explained and fully supported by the evidence of record. The VA medical opinion was based on a review of the record, including the lay statements and medical evidence submitted by the Veteran, and thoughtful analysis of the Veteran’s entire history. The examiner also discussed contrary medical opinion submitted by the Veteran. Given the evidence of record, the examiner concluded that it was less likely than not that the Veteran’s residuals of parathyroid tumor removal were related to the Veteran’s service. For these reasons, the Board places significant weight on the findings of the April 2019 VA examiner. See Nieves-Rodriguez, 22 Vet. App. at 295. The Board finds that the competent medical evidence demonstrating the absence of nexus between the disability and the Veteran’s military service outweighs the evidence suggestive of nexus. Although the December 2016 private practitioner opined that “it is possible that [the Veteran] had parathyroid dysregulation going back to the 1980s,” the private practitioner stated that he was unable to confirm it, and did not opine whether it was at least as likely as not that the Veteran had parathyroid dysregulation, only stating that “it was possible.” In other words, the December 2016 private practitioner agreed with the April 2019 VA examiner, as he did not find calcium serum level of 10.3 mg/dl, measured in November 1986, high enough to be a sign of parathyroid dysregulation. More importantly, the private examiner stated that the Veteran had “progressive elevation of serum calcium documented all the way back to 2005” when the evidence of record shows that the Veteran’s serum calcium level dropped in January 1987, to 9.8 mg/dl. He also does not discuss the normal bone density score in 2007 or other indicators discussed by the April 2019 VA examiner. Thus, the Board finds that the December 2016 private practitioner’s opinion of it being “possible” that the Veteran had parathyroid dysregulation dating back to the 1980s to be not only less probative but inadequate as it relied on inaccurate facts. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In June 2018, the Veteran submitted a copy of an email exchange with a private practitioner who offered her opinion based on a document sent by the Veteran. The private practitioner did not examine the Veteran in-person and opined that it was “very uncommon” for a person to have a 10.3 serum calcium level and not have parathyroid adenoma based on the Veteran’s report of his medical history. But the practitioner added that “familial hypercalcemia or young age, high dose Vit D3 supplements but in all of these the PTH is normal,” listing the uncommon cases. As with the December 2016 private practitioner, the June 2018 private practitioner opined that “it is possible” that the Veteran’s parathyroid adenoma was present in the 1980s and the symptoms the Veteran listed in an enclosed document is related to parathyroid adenoma. There was no discussion of the other measurements taken during the Veteran’s service in the 1980s, specifically the January 1987 measurement showing calcium serum level of 9.8 mg/dl, significantly less than 10.3 mg/dl measured in November 2016, nor normal bone density score as recently as in 2007. Thus, the Board finds the June 2018 medical opinion to be less probative. In July 2018, the Veteran submitted a transcript from a local news station where his surgeon stated that calcium levels above 10 is “almost always a problem” His surgeon did not address the facts that are specific to the Veteran’s case. Thus, although he stated a generic relationship with at least plausible causality, he did not address the facts that are specific to the Veteran’s case. As such, the Board finds that the July 2018 transcript has little probative value. In April 2019, the Veteran submitted a “chronological order of health events.” It is unclear from the records if this document is identical to the documents the Veteran sent to private practitioners for their opinion. In pertinent part, the document erroneously stated that the Veteran’s serum calcium level went from “9.8 to 10.3” between 1984 to 1987. As discussed above, the Veteran’s service treatment records show the opposite, with the Veteran’s serum calcium level being measured at 10.3 in November 1986 and then 9.8 in January 1987. The medical history also does not include other relevant evidence such as his normal renal findings during service and normal bone density readings discussed by the April 2019 VA examiner. Thus, the most probative evidence of record shows that the Veteran’s parathyroid tumor did not manifest itself to a degree of 10 percent or more within one year from the date of separation from service, and that it was not caused by service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Therefore, the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. The preponderance of the evidence is against the Veteran’s claim, and as such entitlement to service connection for residuals of a parathyroid tumor removal is denied. 2. Whether new and material evidence has been received to reopen a claim of service connection for osteoporosis, to include as secondary to residuals of parathyroid tumor removal In June 2018, the Board found that the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for osteoporosis was inextricably intertwined with the claim for service connection for residuals of a parathyroid tumor removal. Having found that the Veteran’s residuals of parathyroid tumor removal is not connected to the Veteran’s service in the previous section of this decision, the remaining issue is whether new and material evidence has been received to reopen a claim of direct service connection for osteoporosis. In May 2011, the Board denied the issue of service connection for osteoporosis. The Board’s decision was final when issued. See 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100(a) (a Board decision is final on the date stamped on the face of the decision). The Veteran was notified of the decision in a May 2011 letter. The Veteran submitted a new claim that was again denied by the RO in August 2013. In June 2015, the Board remanded the issue of whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for osteoporosis, claimed as osteomalacia, as the Veteran asserted his right to be heard at a Travel Board hearing. At a January 2017 hearing, the Veteran testified that he was receiving Social Security disability for his bone disease, and that his parathyroid tumor caused the bone issues in service. In February 2018, the RO issued an SSOC denying the claim of service connection for osteoporosis. After reviewing evidence submitted since the May 2011 final decision, the RO found that the evidence received since was not material to raise a reasonable possibility of substantiating the claim. Specifically, the RO found that none of the evidence submitted by the Veteran indicated that osteoporosis was due to military service. Evidence specifically discussed include various treatment records from May 1995 to September 2012, from October 2007, from September 2009 to March 2017, from October 2013 to February 2018, from February 2015 to September 2015, from December 2016, and from June 2017. After the Board’s June 2018 remand, the RO issued an SSOC in May 2020 continuing the denial to reopen the claim of service connection for osteoporosis secondary to the parathyroid tumor removal. In addition to evidence considered in the February 2018 SSOC, the RO considered evidence associated with the Veteran’s record submitted since, including evidence related to his claim of service connection for residuals of parathyroid tumor removal. In order to determine whether new and material evidence has been received and the claim may be reopened, the Board has reviewed the entire record, with attention to the additional evidence received since the final May 2011 decision. After reviewing the record, the Board finds that the additional evidence received is not new and material within the meaning of 38 C.F.R. § 3.156 for the claim. Specifically, evidence submitted since the May 2011 decision does not suggest a connection between the Veteran’s osteoporosis and his service. All of the evidence submitted since May 2011 pertain to the previously discussed issue of service connection for residuals of parathyroid tumor removal and do not suggest direct service connection for osteoporosis. Consequently, the Board finds that new and material evidence has not been received and that the claim of service connection for osteoporosis is not reopened. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claims, the doctrine is not for application. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. 49. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yun 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.