Citation Nr: 21010943 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 16-62 577 DATE: February 26, 2021 ORDER Service connection for a thyroid disorder is denied. Service connection for hypertension is denied. FINDINGS OF FACT 1. The Veteran had active service in Southwest Asia theater of operations during the Persian Gulf War. 2. The Veteran’s thyroid disorder, diagnosed as hypothyroidism, and hypertension are diagnosable chronic multi-symptom illnesses with a partially explained pathophysiology and etiology. 3. Hypothyroidism is not shown to be causally or etiologically related to any disease, injury, or incident during service, to include occupational or environmental exposures coincident with service in Southwest Asia. 4. Hypertension is not shown to be causally or etiologically related to any disease, injury, or incident during service, to include occupational or environmental exposures coincident with service in Southwest Asia, did not manifest to a compensable degree within one year of discharge from active duty, and is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a thyroid disorder have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1117, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1987 to March 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in September 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge, and a transcript of the hearing is of record. In January 2020, the Board remanded the case for additional development and it now returns for further appellate review. 1. Entitlement to service connection for a thyroid disorder, to include as due to occupational or environmental exposures coincident with service in Southwest Asia. 2. Entitlement to service connection for hypertension, to include as due to occupational or environmental exposures coincident with service in Southwest Asia and/or as secondary to a thyroid disorder. Service connection may be granted 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(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as cardiovascular-renal disease, to include hypertension, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disability due to a qualifying chronic disability of a veteran who served in the Southwest Asia Theater of operations during the Persian Gulf War provided that such disability became manifest during either active service in the Southwest Asia Theater of Operations during the Persian Gulf War or to a degree of 10 percent or more, under the appropriate diagnostic code of 38 C.F.R. § Part 4, not later than December 31, 2021, and by history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). In the instant case, the record reflects that the Veteran served in Southwest Asia from December 1990 to May 1991 during the Persian Gulf War and, therefore, such laws and regulations are applicable to his claims. A chronic qualifying disability means a chronic disability resulting from an (A) undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317 (a)(2)(i). For the purposes of this section the term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). “Objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: (1) fatigue, (2) unexplained rashes or other dermatological signs or symptoms, (3) headache, (4) muscle pain, (5) joint pain, (6) neurological signs and symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the upper or lower respiratory system, (9) sleep disturbances, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, and (13) menstrual disorders. 38 C.F.R. § 3.317(b). With claims based on undiagnosed illnesses, the veteran is not required to provide competent evidence linking a current disability to an event during service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). There must be no affirmative evidence that relates the undiagnosed illness to a cause other than being in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(c). If signs or symptoms have been attributed to a known clinical diagnosis in the particular veteran’s case being considered, service connection may not be provided under the specific provisions pertaining to Persian Gulf Veterans. VAOPGCPREC 8-98 at paras. 4-5 (Aug. 3, 1998). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). The Veteran contends that his thyroid disorder and hypertension manifested in service, or within one year of his separation from service, or are otherwise related to his in-service exposure to environmental hazards coincident with his service in Southwest Asia, to include burning oil fields and burn pits, and/or as a result of his duties as a petroleum specialist, which included exposure to lead and diesel fuels, petroleum lubricants, and hydraulic fluid. He further alleges that his hypertension is caused or aggravated by his thyroid disorder. As an initial matter, the record reflects that the Veteran is currently diagnosed with hypothyroidism, with elevated thyroid levels first detected in October 2003 and an official diagnosis of hypothyroidism first recorded in February 2004, and hypertension, which was initially detected in January 2001 with a diagnosis of borderline hypertension recorded in March 2000, as reflected in VA treatment records. In this regard, the Board notes that, while the Veteran reported that he was diagnosed with hypothyroidism and hypertension in 1993, such is contradicted by the contemporaneous VA treatment records. Specifically, a July 1995 Persian Gulf War examination revealed no complaints, treatment, or diagnosis referable to a thyroid disorder or hypertension. Further, in March 2000, a VA treatment record reflects that the Veteran denied fatigue, weight loss or gain, a thyroid problem, and hypertension. At such time, borderline hypertension was noted. In January 2001, a diagnosis of essential hypertension was rendered. Additionally, elevated thyroid levels were first detected in October 2003 and an official diagnosis of hypothyroidism first recorded in February 2004. Thus, the Board finds the Veteran’s report of a diagnosis of hypothyroidism and/or hypertension in 1993 is not credible and afforded no probative weight. Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (notwithstanding the declarant’s intent to speak the truth, statement may lack credibility because of faulty memory). The Board also observes that, as reflected by August 2015 and July 2020 VA examinations, the Veteran’s hypothyroidism and hypertension are diagnosable chronic multi-symptom illnesses with a partially explained pathophysiology and etiology. Thus, the provisions governing presumptive service connection for a qualifying chronic disability of a veteran who served in the Southwest Asia Theater of operations during the Persian Gulf War are inapplicable. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Furthermore, upon a review of the Veteran’s service treatment records, such are negative for any complaints, treatment, or diagnosis referable to a thyroid disorder or hypertension. In this regard, as will be explained further herein, there is no indication of a thyroid disorder during service, to include as related to the Veteran’s reports of a sore throat and difficulty swallowing, and recent weight loss or gain, in March 1992. Moreover, he had no documented elevated blood pressure readings or during service. In this regard, his in-service blood pressure readings were not sufficiently elevated to be indicative of hypertension as defined by VA, i.e., diastolic pressure readings of 90mm or greater or systolic readings of 160mm or greater. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Specifically, the highest diastolic pressure reading recorded during service was 82 and the highest systolic pressure reading was 138, as reflected at the Veteran’s March 1992 separation examination. Furthermore, his sole blood pressure reading recorded in the year following his discharge from service (as noted in an October 1992 reservist examination report) was 140/78, similarly failing to demonstrate an indication of hypertension within the year after his separation from service. Nonetheless, as his military occupational specialty is listed as petroleum supply specialist and his service in Southwest Asia is documented, the Board finds that he was exposed to the foregoing occupational and environmental hazards coincident with such aspects of his service. However, as the Veteran is a lay person with no known or reported clinical expertise, his own assertions regarding causation cannot serve to substantiate his claims. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues). As such, his assertions as to the etiology of his claimed disorders are afforded no probative weight, and competent medical evidence is required to address such aspect of his claims. However, the only such medical opinions of record exploring the Veteran’s theories of service connection also fail to suggest a nexus to service. In this regard, while the Board previously determined that VA opinions obtained in July 2015 failed to address whether the Veteran’s hypertension and hypothyroidism are directly related to his military service or provide a rationale as to why such disorders are not related to his in-service exposure to environmental hazards coincident with his service in Southwest Asia, the Board remanded the case in January 2020 in order to obtain addendum opinions addressing such matters. In July 2020, a VA examiner, a physician, interviewed the Veteran, reviewed the record, and conducted a physician examination, and opined that his hypothyroidism and hypertension were less likely than not incurred in or caused by his military service, to include his occupational and environmental exposures therein. In regard to the former disorder, she found that such was not evident during service. The examiner noted the Veteran’s report of a sore throat and difficulty swallowing, and recent weight loss or gain, in March 1992, which he alleged was due to an undiagnosed thyroid disorder, but found that such symptoms were also accompanied by pressure in the ear, fever, and chills and were assessed as tonsillitis, which was treated with antibiotics. Furthermore, upon the Veteran’s separation examination later that same month, no thyroid disorder was noted and he denied experiencing thyroid trouble. Similarly, a 1995 examination was negative for hypothyroidism. Rather, the record reflected that such disorder was initially diagnosed in 2003. The examiner found that the Veteran’s hypothyroidism is likely related to an autoimmune condition and, due to the timing of the onset of such disorder, it is less likely related to exposure to occupational hazards, to include lead and diesel fuels, petroleum lubricants, and hydraulic fluid, and/or exposure to environmental hazards coincident with his service in Southwest Asia, to include burning oil fields and burn pits. Likewise, the VA examiner found that hypertension was not evident during service. In this regard, she noted the blood pressure reading of 138/82 recorded at the Veteran’s March 1992 separation examination was not diagnostic for hypertension and he denied experiencing high or low blood pressure. Furthermore, such disorder was not noted on examination in 1995. Rather, he was noted to have elevated blood pressure readings in March 2000 and was diagnosed with borderline hypertension at such time, with a diagnosis of essential hypertension rendered in January 2001. The examiner further indicated that, while the exact etiology of essential hypertension is unknown, the Veteran’s history of smoking up to two packs a day from 1986 to 2002 is a risk factor for the development of such disorder, and genetics may play a role as his father was diagnosed with coronary artery disease in his 70s. She ultimately found that, due to the timing of the onset of such disorder, it is less likely related to his in-service blood pressure reading of 138/82 in March 1992; exposure to occupational hazards, to include lead and diesel fuels, petroleum lubricants, and hydraulic fluid; and/or exposure to environmental hazards coincident with his service in Southwest Asia, to include burning oil fields and burn pits. The Board affords great probative weight to the July 2020 VA examiner’s opinions as such considered all of the pertinent evidence of record, to include the statements of the Veteran and relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Notably, there is no medical opinion to the contrary. Furthermore, to the extent that the Veteran has claimed service connection for hypertension as secondary to his hypothyroidism, service connection for the latter disorder is denied herein. Therefore, the Board finds that under the law, the Veteran lacks legal grounds to establish entitlement to service connection for hypertension as secondary to such disorder. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Therefore, based on the foregoing, the Board finds that hypothyroidism and hypertension are not shown to be causally or etiologically related to any disease, injury, or incident during service, to include occupational or environmental exposures coincident with service in Southwest Asia, and hypertension did not manifest to a compensable degree within one year of discharge from active duty and is not caused or aggravated by a service-connected disability. Thus, service connection for such disorders is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claims. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Northcutt, 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.