Citation Nr: A21019147 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 190715-23129 DATE: December 1, 2021 ORDER Entitlement to service connection for hypothyroidism status post radiation for hyperthyroidism is denied. Entitlement to service connection for sinusitis also diagnosed as allergic rhinitis is denied. ISSUE REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran has a diagnosis of hypothyroidism status post radiation for hyperthyroidism during the appeal period. 2. The Veteran has a current diagnosis of sinusitis. 3. The preponderance of the evidence is against a finding that the Veteran's thyroid disability was incurred in or aggravated by his military service. 4. The preponderance of the evidence is against a finding that the Veteran's thyroid disability was incurred in or aggravated by his military service. 5. During active service, the Veteran was treated for symptoms of upper respiratory infection and cold. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypothyroidism status post radiation for hyperthyroidism have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for sinusitis also diagnosed as allergic rhinitis have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1974 to August 1977. 1. Entitlement to service connection for hypothyroidism status post radiation for hyperthyroidism The Veteran contends that he developed a thyroid condition during active service. After a thorough review of the evidence, the Board finds that entitlement to service connection for a thyroid condition is not warranted. The Veteran submitted a new claim for entitlement to service connection for sinusitis with thyroid condition on VA Form 21-526EZ on February 7, 2019. The AOJ subsequently sent the Veteran a notice letter confirming receipt of the claim and that no action was needed at that time. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). The AMA became effective on February 19, 2019. This law creates a new framework for VA's decision review process. On May 13, 2019, the AOJ issued a rating decision denying entitlement to service connection for hypothyroidism status post radiation for hyperthyroidism. Within the rating decision, the AOJ listed a favorable finding of having been diagnosed with hypothyroidism. C.F.R. § 5104A. As the Veteran submitted a claim just before the AMA came into effect, received a rating decision after it came into effect, and then submitted a VA Form 10182 notice of disagreement in response (an AMA standard form), the Board finds that the appeal is in the AMA process. In the Veteran's VA Form 10182, submitted in July 2019, he requested the hearing lane. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal (May 13, 2019) as well as any evidence submitted by the Veteran or his representative at the hearing (March 16, 2021) or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). At the March 2019 VA thyroid examination, the examiner recorded the diagnosis of hypothyroidism status post radiation for hyperthyroidism. The Veteran had radioactive iodine treatment in 2014. The examiner noted the Veteran's lay statements included feeling dehydrated, mood swings, and sweating with a claimed onset date of 2000. In the associated medical opinion, the examiner opined that it was not at least as likely as not that the Veteran's thyroid condition was related to or incurred in active service, to include as due to the reported upper respiratory infection or cold symptoms seen in the service treatment records (STRs), based on a lack of treatment for or complaints of symptoms related to thyroid condition recorded in the contemporaneous STRs. The Veteran and his wife testified at a Board hearing in March 2021. The Veteran stated that he perspired heavily during active service and thinks that was the beginning of this thyroid condition. The Veteran's wife stated that she married the Veteran in 1986 and that the doctors had concerns about a thyroid condition in the Veteran about five to six years prior to the hearing. She stated that she had noticed symptoms like weight gain and loss and sweating. The Board acknowledges that the Veteran believes that his thyroid condition is related to service and contends that he experienced symptoms during service like heavy perspiration that he thinks were related to a thyroid condition. The Board also acknowledges that the Veteran's wife has observed symptoms related to a thyroid condition, and that the two were married in 1986. To the extent that the Veteran or his wife have linked his diagnosed thyroid condition to his active military service, they are not competent to render such an opinion. While the Veteran is competent to provide evidence of symptoms or report a contemporaneous diagnosis provided by a physician, and his wife is competent to report observed symptoms, they would be diagnosing his condition as well as giving an etiology of his currently diagnosed disabilities. 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Diagnosing a thyroid condition and providing an opinion as to the etiology is a complex medical question requiring knowledge of symptoms and interpretation of diagnostic tests and pathology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board notes that the Veteran's evidentiary window ended with the May 2019 rating decision, and that there was an additional 90-day opportunity to submit evidence following the March 16, 2021 Board hearing. Evidence submitted between the May 2019 rating decision and the March 2021 Board hearing is outside the evidentiary window and cannot be considered under the AMA framework. The Veteran may submit a supplemental claim with any new evidence or evidence that was submitted outside the evidentiary window in this appeal, to have the issue of thyroid condition reconsidered for adjudication. The Board finds that a preponderance of the evidence is against the Veteran's claim and as the benefit of the doubt rule does not apply, entitlement to service connection for hypothyroidism status post radiation for hyperthyroidism is denied. 38 C.F.R. §§ 3.303. 2. Entitlement to service connection for sinusitis The Veteran contends that he developed sinus problems during active service, including after gas chamber training, that continue to the present day. After a thorough review of the evidence of record, the Board finds that entitlement to service connection for sinusitis is not warranted. The claim for sinusitis is on the same forms as the claim for thyroid condition. The May 2019 rating decision noted favorable finding of diagnosed condition of sinusitis and a showing of respiratory infection and cold symptoms in service. 38 C.F.R. § 5104A. The Veteran's STRs show upper respiratory infection and cold symptoms during service. The August 1974 and June 1977 medical examinations noted normal sinuses. The Veteran's recent medical treatment records show diagnosed allergic rhinitis and sinusitis. Accordingly, the Veteran meets the first element for entitlement to service connection, a diagnosed condition. At the March 2019 VA sinus examination, the examiner noted a diagnosis of allergic rhinitis for 2019. The Veteran's lay statements included reporting that symptoms began in 1974 and that symptoms related to sinus issues include watery eye, running nose, congestion, fullness in the ear and some sneezing. The Veteran reported he was seen by a doctor in the past while in the military and he was told to use over the counter medications. In the associated medical opinion, the examiner found that it was not at least as likely as not that the Veteran's sinus condition that was more consistent with allergic rhinitis was incurred in or related to active service. The examiner referenced treatment records and gave a rationale of, "04/04/2011 acute maxillary sinusitis shown documented as diagnosis of health record from [Dr. P], 01/08/2013 health record shows acute maxillary sinusitis after complaints of sinus congestion. 05/02/2017 sinusitis documented on health record assessment diagnosis and 03/17 (year not legible) chief complaint cold symptoms, diagnosed with URI (upper respiratory infection) and otitis media right ear. Documented sinus condition is outside of military service. There are no records within service which shows condition began during this time, subjective symptoms on exam are more consistent with allergic rhinitis which also did not begin during military service. Thus, the claimed conditions of sinusitis and rhinitis were less likely than not (less than 50 percent probability) incurred in or caused by the chronic cold like respiratory symptoms during period of active duty service." At the March 2021 Board hearing, the Veteran related that he had sinus issues after participating in gas chamber training and that symptoms had continued since active service, mostly in the springtime. The Board acknowledges that the Veteran believes that his sinus condition is related to service. To the extent that the Veteran has linked his diagnosed allergic rhinitis or sinusitis to his active military service, he is not competent to render such an opinion. While the Veteran is competent to provide evidence of symptoms or report a contemporaneous diagnosis provided by a physician, the Veteran here would be self-diagnosing his condition as well as giving an etiology of his currently diagnosed disabilities. 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Diagnosing a medical condition and providing an opinion as to the etiology is a complex medical question requiring knowledge of the health symptoms and attributes of various sinus related medical conditions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board acknowledges the Veteran's reports that he has had sinus symptoms since active service. The extent of medical treatment records does not show treatment for or complaints for sinus conditions not related to colds or respiratory infection coincident with or within one year of separation from active service and continuing to the present day. As the medical examiner opined that the Veteran's sinus symptoms during active service were not related to a current sinusitis or allergic rhinitis condition, but rather due to colds or upper respiratory infection as designated in the STRs, the preponderance of the competent medical evidence does not favor finding that the Veteran's claimed sinus or allergic rhinitis condition was incurred in or related to active service. The Board finds that a preponderance of the evidence is against the Veteran's claim and as the benefit of the doubt rule does not apply, entitlement to service connection for sinusitis, also diagnosed as allergic rhinitis, is denied. 38 C.F.R. §§ 3.303. REASONS FOR REMAND Entitlement to service connection for obstructive sleep apnea, to include as secondary to sinusitis is remanded. The Veteran contends that he has had sleep apnea symptoms since active service and continuing to the present. The claim for sleep apnea is on the same forms as the claim for thyroid condition. The May 2019 rating decision noted favorable finding of diagnosed condition of sleep apnea and a showing of respiratory infection and cold symptoms in service. 38 C.F.R. § 5104A. The Veteran's STRs show upper respiratory infection and cold symptoms during service. The August 1974 and June 1977 medical examinations do not note sleeping or breathing problems. At the March 2019 VA examination for sleep apnea, the examiner noted that the Veteran had a sleep study in September 2018 where sleep apnea was diagnosed. The Veteran had been using a CPAP for three months at that time and was reporting better sleep. The Veteran reported that previously he had been waking up during the night and gasping for breath as well as snoring loudly. The medical examiner did not issue a medical opinion, presumably because the RO interpreted the Veteran's claim as limited to sleep apnea secondary to sinusitis, and as the RO determined that entitlement to sinusitis was not warranted, it followed that sleep apnea cannot be a secondary condition to a non-service-connected condition. However, upon reading the Veteran's claim form, although he wrote "sleep apnea secondary to sinusitis" as the intended claim, he wrote that the condition began in active service. The Veteran's personnel records also contain Article 15 charges for sleeping on duty. At the March 2021 hearing, the Veteran discussed that he was tired in service and he thought that was related to sleep apnea and to the Article 15 charge. Under the AMA, the Board cannot remand for development to address any new theories of entitlement that were raised after the rating decision on appeal. The RO did not obtain a medical opinion considering sleep apnea as incurred in active service. Under the AMA, the Board may remand for 1) correction of an error on the part of the AOJ to satisfy its duties under 38 U.S.C. § 5103A, if the error occurred prior to the AOJ decision on appeal or 2) for correction of any other error by the AOJ in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802. The Board finds that the Veteran reasonably claimed both a direct and secondary theory of entitlement to service connection for sleep apnea. Accordingly, the RO should have obtained a medical opinion regarding incurrence of sleep apnea during or as a result of active service. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's sleep apnea is at least as likely as not incurred in active service. The Veteran contends that he was tired in active service and received an Article 15 charge for sleeping on duty in 1976. All opinions must include rationale that cites to supporting clinical data and medical principles. The rationale must acknowledge/discuss the significance of all related complaints and findings in service and the supporting lay (and any medical) reports of continuity of complaints since service. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Miller, 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.