Citation Nr: 21004537 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-31 629 DATE: January 27, 2021 ORDER New and material evidence having not been received, the appeal to reopen a claim for entitlement to service connection for diabetes mellitus, to include as secondary to service-connected hypothyroidism secondary to Grave’s disease, is denied. Entitlement to a disability rating in excess of 30 percent for service-connected hypothyroidism secondary to Grave’s disease is denied. REMANDED Entitlement to a separate disability rating for an eye disability due to service-connected hypothyroidism secondary to Grave’s disease is remanded. FINDINGS OF FACT 1. In a final decision issued in June 2004, the Regional Office (RO) denied service connection for diabetes mellitus; the Veteran initiated an appeal by filing a Notice of Disagreement (NOD), however, he did not submit a substantive appeal following issuance of a June 2005 Statement of the Case (SOC). 2. Evidence associated with the record since the final June 2004 rating decision, and associated June 2005 SOC, does not relate to unestablished facts and does not raise a reasonable possibility of substantiating the claim to entitlement to service connection for diabetes mellitus. 3. The Veteran’s hypothyroidism secondary to Grave’s disease manifested with weight gain, but did not manifest with muscular weakness, mental disturbance, or myxedema. CONCLUSIONS OF LAW 1. A June 2004 rating decision, which denied service connection for diabetes mellitus, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received since the June 2004 rating decision relevant to the claim for entitlement to service connection for diabetes mellitus is not new and material, and the claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 20.1105. 3. The criteria for entitlement to a disability rating in excess of 30 percent for service-connected hypothyroidism secondary to Grave’s disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code (DC) 7903. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1961 to July 1965. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) who has since retired. A transcript of the hearing has been associated with the claims file. The Board notified the Veteran of the VLJ’s retirement with the option for an additional Board hearing in an October 2020 letter. No response was received within 30 days; therefore, the Board is proceeding with adjudicating the claims. The Board last remanded the issues on appeal in April 2019. A review of the record shows substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Whether new and material evidence has been received to reopen a claim for entitlement to service connection for diabetes mellitus. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Kightly v. Brown, 6 Vet. App. 200, 204 (1994). The Board is under a statutory obligation to conduct a de novo review of a new and material issue. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The requirement for the submission of new and material evidence is a jurisdictional prerequisite for a claimant to obtain review of a previously denied and final decision. 38 U.S.C. §§ 5108, 7404(b). New evidence is existing evidence not previously received by agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Even where the RO determines that new and material evidence has not been received to reopen a claim, or that an entirely new claim has been received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d at 1370. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, the law should be interpreted to enable reopening of a claim, rather than to preclude it. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Regardless of the RO’s actions, given the previous unappealed denial of the claims on appeal, the Board has a legal duty to address the question of whether new and material evidence has been received to reopen the claim for service connection. See 38 U.S.C. §§ 5108, 7104. This matter goes to the Board’s jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In this case, the RO, in June 2004, denied the Veteran’s claim for entitlement to service connection for diabetes mellitus, to include as secondary to service-connected hypothyroidism secondary to Grave’s disease, because the evidence failed to demonstrate a link between the Veteran’s current condition and his military service; not related to his service-connected hypothyroidism; and no in-service diagnosis or treatment for diabetes mellitus in service. The Veteran initiated an appeal by filing a NOD, but he did not submit a substantive appeal following the issuance of a June 2005 SOC. As no substantive appeal was filed within 60 days of the SOC and no new and material evidence was received within one year of notice of that denial, the June 2004 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In September 2014, the Veteran filed a claim to reopen the claim for entitlement to service connection for diabetes mellitus, to include as secondary to service-connected hypothyroidism which was denied in a March 2015 rating decision on the basis of no new and material evidence pertinent to the issue having been received. The Veteran’s appeal of this decision forms the basis of the present appeal. As noted, the Board previously remanded the issue in April 2019 in order to obtain updated VA treatment records and private medical treatment records. In a November 2019 Supplemental Statement of the Case (SSOC), the RO reopened the Veteran’s claim and denied the claim on the merits. However, the Board finds no new and material evidence has been received. In that regard, the new evidence associated with the claims file since the June 2004 rating decision includes additional lay statements, including a January 2019 Board Hearing; private medical records received in October 2019; updated VA treatment records through May 2020; March 2015 and November 2019 VA examinations related to his service-connected hypothyroidism; military personnel records received in December 2019; and additional service treatment records received in December 2019. The question for the Board is whether the new evidence also qualifies as material, such that it relates to an unestablished fact necessary to substantiate the Veteran’s claim. As noted, the Veteran testified before a VLJ in January 2019. The Veteran asserted that his diabetes mellitus may be secondary to his service-connected hypothyroidism secondary to Grave’s disease. However, the Veteran’s testimony is duplicative of his prior assertions before the RO in the June 2004 denial. See July 2003 Correspondence. Therefore, the Veteran’s lay statements during his hearing are not material as they are cumulative and redundant and do not relate to an unestablished fact necessary to substantiate the claim for entitlement to service connection for diabetes mellitus. See 38 C.F.R. § 3.156(a). In regard to the private medical records received in October 2019 and updated VA treatment records through May 2020, the Board finds that the records are new as they were not previously submitted. However, the Board finds that the private medical records and updated VA treatment records do not qualify as material, as they do not raise a reasonable possibility of substantiating the Veteran’s claim. See 38 C.F.R. § 3.156(a). Specifically, the private medical records and updated VA treatment records merely continue to demonstrate diagnosis and treatment for diabetes mellitus previously considered by the RO in its June 2004 denial. The private medical records and updated VA treatment records do not provide any link for the Veteran’s diabetes mellitus to his military service or service-connected hypothyroidism. Therefore, the additional private medical records and updated VA treatment records are new, but not material, as they do not address the etiology of the Veteran’s diabetes mellitus, do not indicate any link to his military service, or that his diabetes mellitus is related to his service-connected hypothyroidism. In regard to the March 2015 and November 2019 VA examinations related to the Veteran’s service-connected hypothyroidism, the Board finds the VA examinations are new as they were not previously before the RO for consideration. However, the Board finds the March 2015 and November 2019 VA examinations do not qualify as material, as they do not raise a reasonable possibility of substantiating the Veteran’s claim to service connection for diabetes mellitus. See 38 C.F.R. § 3.156(a). Specifically, neither VA examination indicates any relationship between the Veteran’s diabetes mellitus and his service-connected hypothyroidism. Therefore, the additional VA examinations are new, but not material, as they do not address the etiology of the Veteran’s diabetes mellitus, do not indicate any link to his military service, or that his diabetes mellitus is related to his service-connected hypothyroidism secondary to Grave’s disease. In regard to the military personnel records and additional service treatment records received in December 2019, the Board finds the military personnel records and service treatment records are new as they were not previously before the RO for consideration. However, the Board finds the military personnel records and additional service treatment records do not qualify as material, as they do not raise a reasonable possibility of substantiating the Veteran’s claim to service connection for diabetes mellitus. See 38 C.F.R. § 3.156(a). Specifically, the military personnel records and additional service treatment records do not show that the condition began in or was caused by his military service or related to his service-connected hypothyroidism. Additionally, the Veteran does not contend that his diabetes mellitus, or any symptoms related to his diabetes mellitus, began while on active duty service. Thus, despite the RO’s June 2020 SSOC reopening the Veteran’s claim, the Board finds the new evidence associated with the claims since the June 2004 rating decision, do not raise a reasonable possibility of substantiating the claim for entitlement to service connection for diabetes mellitus. The prior denial is final, and the claim for service connection for diabetes mellitus is not reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Entitlement to a disability rating in excess of 30 percent for service-connected hypothyroidism. The Veteran seeks a disability rating in excess of 30 percent for his service-connected hypothyroidism secondary to Grave’s disease. Specifically, the Veteran testified that his hypothyroidism has increased in severity; has had five to ten pounds of weight gain off and on; has constipation off and on due to his Grave’s disease; eyes sometimes get blurry and has had to get new glasses every year due to vision changes; and gets tired a lot off and on throughout the day. See January 2019 Hearing Transcript. The Veteran’s increased rating claim was received on September 30, 2014. Therefore, the relevant rating period is from September 30, 2013, one year prior to receipt of the claim, through the present. See 38 C.F.R. § 3.400(o)(2). Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The Veteran was initially service connected for hypothyroidism in a November 1965 rating decision and has been evaluated as 30 percent disabling under 38 C.F.R. § 4.119, DC 7903 since May 3, 1993. The Veteran’s current evaluation was assigned under the prior version of DC 7903. When the regulation changes during an appeal, the Veteran is entitled to resolution of the claim under the criteria more advantageous. The old criteria can apply to the entire appeal period, but new criteria can only apply as to the effective date of the change. The Board has evaluated the Veteran’s disability under the old criteria both prior to and from December 10, 2017, and under the new criteria as well from December 10, 2017. The prior version of DC 7903 provided a 30 percent rating was warranted for hypothyroidism that manifested by fatigability, constipation, and mental sluggishness. A 60 percent rating was warranted for muscular weakness, mental disturbance, and weight gain. A 100 percent rating was warranted for cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. 38 C.F.R. § 4.119, DC 7903. The current version of the criteria, effective December 10, 2017, provides that a 30 percent rating is assigned for hypothyroidism without myxedema for six months after initial diagnosis. Thereafter, residuals of the disease or medical treatment, to include eye conditions, are rated under the most appropriate diagnostic codes under the appropriate body system (e.g., eye, digestive, and mental disorders). 38 C.F.R. § 4.119, DC 7903 Note 2. If eye involvement, such as exophthalmos, corneal ulcer, blurred vision, or diplopia, is also present due to thyroid disease, also separately evaluate under the appropriate diagnostic code(s) in § 4.79, Schedule of Ratings Eye (such as diplopia (DC 6090) or impairment of central visual acuity (DCs 6061-6066). Id., at Note 3. A 100 percent rating is assigned for hypothyroidism manifesting as myxedema (cold intolerance, muscular weakness, cardiovascular involvement (including, but not limited to hypotension, bradycardia, and pericardial effusion), and mental disturbance (including, but not limited to dementia, slowing of thought and depression)) for a period of six months after an examiner has determined the condition is stabilized. Thereafter, the residual effects of hypothyroidism are rated under the appropriate diagnostic code(s) within the appropriate body system(s) (e.g., eye, digestive, and mental disorders). 38 C.F.R. § 4.119, DC 7903. After a careful review of all the evidence, both lay and medical, the Board finds that the symptoms associated with the Veteran’s service-connected hypothyroidism more nearly approximates the criteria for a 30 percent rating under the former DC 7903 for the entire period on appeal as currently assigned. In that regard, the Veteran denied symptoms of muscular weakness and mental disturbance. See January 2019 Hearing Transcript. The Veteran’s VA treatment records and private treatment records demonstrate treatment for hypothyroidism; however, they do not show symptoms muscular weakness, mental disturbance, or hypothyroidism manifesting as myxedema. Specifically, a June 2015 private treatment record received in July 2015 indicates the Veteran’s thyroid testing showed that his disease was not stable, and medication was being adjusted; however, does not indicate any symptoms of muscular weakness, weight gain, or mental disturbance, or hypothyroidism manifesting as myxedema. A March 2020 VA treatment record indicates the Veteran’s hypothyroidism was controlled. The Veteran was afforded a VA examination in March 2015. The VA examiner noted the Veteran’s hypothyroid condition manifested in weight gain, dry skin, and dry eyes and required continuous medication for control. See March 2015 VA examination. However, the VA examination did not reveal a diagnosis of hypothyroidism manifesting as myxedema, symptoms of muscular weakness or mental disturbance. Id. Pursuant to the Board’s April 2019 remand, the Veteran was afforded a second VA examination in November 2019. The Veteran reported that he gets tired, and gains and loses weight sometimes. See November 2019 VA examination. The VA examiner did not find any findings, signs, or symptoms attributable to a thyroid condition; no hypothyroid manifesting as myxedema; no symptoms of cold intolerance, muscular weakness, mental disturbance, or cardiovascular involvement; normal eye examination. Id. The VA examiner noted the Veteran’s hypothyroid condition has improved since onset. Id. Based on the evidence of record, the Board finds that the Veteran’s service-connected hypothyroidism does not warrant a disability rating in excess of 30 percent under the old criteria of DC 7903. The medical evidence shows continuous medication to regulate the Veteran’s condition. Though the March 2015 VA examination revealed weight gain, the evidence does not show muscular weakness and mental disturbance as required under the former DC 7903 criteria to warrant the higher rating. Beginning December 10, 2017, the Veteran’s hypothyroidism did not manifest as myxedema. As such, the Veteran’s symptoms associated with hypothyroidism do not meet or approximate the current criteria for a disability rating greater than 30 percent, beginning December 10, 2017. 38 C.F.R. § 4.119, 7903. The Board has considered whether separate ratings are applicable from December 10, 2017 and is addressed below. To the extent that the Veteran contends that his service-connected hypothyroidism was more severe than reflected by the currently assigned 30 percent evaluation under DC 7903, the Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person such as fatigue and on and off weight gain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he is not competent to state that his hypothyroidism is of a severity sufficient to warrant a higher rating under VA’s criteria for rating hypothyroidism because such an opinion requires medical expertise and knowledge that he has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The March 2015 and November 2019 VA examiners indicated review of the Veteran’s claims file and conducted in-person examinations. As such, the Board finds the March 2015 and November 2019 VA examinations adequate and entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Entitlement to a separate disability rating for an eye disability due to service-connected hypothyroidism secondary to Grave’s disease is remanded. As noted, the criteria under DC 7903 was revised effective December 10, 2017. VA has a duty to adjudicate the Veteran’s claim under the revised criteria for the period beginning on the effective date of the new provisions. See DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). The current criteria under 38 C.F.R. § 4.119, DC 7903, Note 3, states that, for hypothyroidism without myxedema, if eye involvement is also present due to thyroid disease then the condition should be separately evaluated under an appropriate DC for the eyes or impairment of central visual acuity (38 C.F.R. § 4.79, DCs 6061 to 6066 or 6090). The Board finds that remand is necessary for additional development. In that regard, the Veteran provided testimony that his eyes sometimes get blurry and he has had to get new glasses every year due to vision changes. See January 2019 Hearing Transcript. The Veteran was most recently provided a VA examination in November 2019. The VA examiner did not indicate any eye involvement due to the Veteran’s thyroid disease. See November 2019 VA examination. However, the Veteran previously underwent a March 2015 VA examination. The March 2015 VA examiner indicated the Veteran had dry eyes and mild exophthalmos upon examination of his eyes. See March 2015 VA examination. Additionally, private treatment records and VA treatment records show the Veteran is provided medication for treatment of dry eyes. See February 2017 private treatment records; September 2019 VA treatment records. The Board notes the Veteran has not been afforded a VA examination regarding any eye disability associated with his service-connected hypothyroidism. In light of the conflicting medical evidence and the Veteran’s lay statements, a VA examination is warranted to assess the nature and severity of any eye involvement due to hypothyroidism so as to determine whether a separate rating is warranted pursuant to 38 C.F.R. § 4.119, DC 7903 from December 10, 2017. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate examiner to determine the nature and etiology of any eye disability associated with the Veteran’s service-connected hypothyroidism secondary to Grave’s disease. The record and a copy of this Remand must be made available to and reviewed by the examiner. The examination must include all testing deemed necessary by the examiner in conjunction with this request. The examiner must specify whether there is any eye involvement with the Veteran’s service-connected hypothyroidism secondary to Grave’s disease. The examiner must consider and address the Veteran’s lay statements at the January 2019 Board hearing stating that he sometimes has blurry eyes and new glasses due to vision changes every year. The examiner must consider and address VA treatment records and private treatment records that demonstrate treatment for dry eyes. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided. 2. After completing the above action, adjudicate the issue of entitlement to a separate disability rating for an eye disability due to service-connected hypothyroidism secondary to Grave’s disease. If the benefit sought is not granted, then the Veteran and his representative should be furnished with an SSOC and afforded an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). M. Miller Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, 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.