Citation Nr: 21015108 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 10-18 856 DATE: March 16, 2021 ORDER Service connection for hypertension is granted. Service connection for a thyroid disorder, to include as secondary to the service-connected larynx disability or as a result of exposure to environmental hazards during Gulf War service is denied. Service connection for lupus, claimed as due to exposure to environmental hazards/chemical agents in the Gulf War, to include as due to an undiagnosed illness is denied. REMANDED Entitlement to service connection for diabetes mellitus, claimed as due to exposure to environmental hazards/chemical agents in the Gulf War or as secondary to the now service-connected hypertension disability is remanded. Entitlement to service connection for joint pain, claimed as due to exposure to environmental hazards/chemical agents in the Gulf War, is remanded. FINDINGS OF FACT 1. The most probative evidence shows that the Veteran’s hypertension was present within one year of service separation. 2. The Veteran served in the Southwest Asia Theater of operations. 3. The weight of the evidence is against a finding that the Veteran’s currently diagnosed thyroid disorder either began during, or was otherwise caused by, his military service, to include exposure to environmental hazards/chemical agents in the Gulf War. The Veteran’s hypothyroidism is not caused or aggravated by the service-connected residuals of a larynx injury. 4. The weight of the evidence is against a finding that the Veteran has a diagnosed lupus disability. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for hypothyroidism, to include as secondary to the service-connected larynx disability or as secondary to exposure to environmental hazards during Gulf War service, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 3. The criteria for service connection for lupus, to include as secondary to the service-connected larynx disability or as secondary to exposure to environmental hazards during Gulf War service, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 1987 to May 1987, from December 1987 to November 1991 (including service in Southwest Asia (SWA) in September 1990 to March 1991), from October 1993 to October 1997, and from December 2002 to July 2003 (SWA service-Kuwait). These matters are before the Board of Veterans’ Appeals (Board) on appeal of a rating decision in March 2010 of a Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In August 2010, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The issues on appeal were previously remanded by the Board in February 2012, August 2017, and February 2020 to the Agency of Original Jurisdiction (AOJ) for additional development. Service Connection Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. Certain chronic diseases are subject to presumptive service connection if the disease manifests to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a); 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303 (a). In addition, service connection may also be warranted for a Persian Gulf Veteran who (1) exhibits objective indications; (2) of a qualifying chronic disability; (3) that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War, to a degree of 10 percent or more not later than December 31, 2021 and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317; see also Gutierrez v. Principi, 19 Vet. App. 1 (2004). The term “qualifying chronic disability” means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; or (B) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal disorders). 38 C.F.R. § 3.317 (a)(2)(i). Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headaches, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317 (b). In addition to certain chronic disabilities from undiagnosed illness, service connection may also be given for medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs and symptoms, as well as for any diagnosed illness that the VA Secretary determines by regulation warrants a presumption of service connection. 38 C.F.R. § 3.317 (a)(2)(i)(B). Here, the Veteran’s service records show he served in Southwest Asia during the Persian Gulf War. Accordingly, the Veteran is a Persian Gulf Veteran and the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 may apply if the Veteran is found to have a qualifying chronic disability. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hypertension Service connection may be granted presumptively for hypertension if evidence shows that it manifested to a degree of 10 percent or more within one year of separation from service. 38 U.S.C. §§ 1110, 1112(a)(1), 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). A 10 percent rating is available for hypertension when there is 1) diastolic pressure predominantly 100 or more, or 2) systolic pressure predominantly 160 or more, or 3) a history of diastolic pressure predominantly 100 or more and requiring continuous medical for control. See 38 C.F.R. § 4.104, Diagnostic Code 7101. The Veteran was discharged from his last period of active duty service in July 2003, following his deployment in Kuwait. In June 2004, the Veteran was afforded a VA general medical examination, within one year of service discharge. At that time, the Veteran was found to have blood pressure readings of 130/100, 130/110, and 130/108. The VA examiner diagnosed the Veteran with “likely hypertension.” Upon review of the evidence of record, the Board finds that the Veteran was diagnosed with hypertension, a chronic disease, within one year of service separation. Further, the post-service VA treatment records show that the Veteran’s was already taking blood pressure medication as of 2006, which suggests that a confirmed diagnosis of hypertension was rendered prior to this date. See November 2006 VA treatment note; see also June 2017 VA hypertension examination report (noting that average blood pressure was 149/106). Accordingly, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s hypertension manifested to a degree of 10 percent or more within one year of separation from service. As such, presumptive service connection for hypertension is granted. Thyroid Disorder The Veteran contends that his thyroid condition is either due to chemical exposure during active duty service, or is secondary to his service-connected larynx disability (crushed larynx). The Veteran specifically asserts that he tested positively for a thyroid condition during service and that he has been symptomatic for this condition since that time. Post-service VA treatment records have diagnosed the Veteran’s thyroid disorder as hypothyroidism. Because his symptoms are explained, the associated disability is not “undiagnosed” or “medically unexplained” within the meaning of 38 C.F.R. § 3.317 (a). The Veteran’s hypothyroidism is not subject to presumptive service connection under the provisions applicable to veterans of the Persian Gulf War. Therefore, to establish service connection, the evidence must establish the Veteran’s current hypothyroidism was incurred in service or was otherwise caused by his active service or as secondary to a service-connected disability. The Board concludes that, while the Veteran has a current diagnosis of hypothyroidism, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of hypothyroidism began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records are absent for any complaints or diagnoses of a thyroid disorder. A 1997 Report of Medical History shows that the Veteran’s checked “NO” as to having “thyroid trouble.” The remaining service records do not show any indication of a thyroid condition. Post-service medical records include a June 2004 VA general medical examination report, conducted approximately one year following the Veteran’s discharge from his last period of active duty service. At that time, no thyroid disorder was noted, and the Veteran was found to have no thyromegaly (i. e., abnormally enlarged thyroid gland). Instead, the first evidence of a thyroid disorder is found in a May 2007 VA treatment record where the Veteran generally asserted that he had been diagnosed once with hypothyroidism. Laboratory findings confirmed a diagnosis of hypothyroidism in 2014. See June 2017 VA thyroid examination report. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the veteran’s entire medical history in determining if service-connection is warranted, including a lengthy period of absence of complaints). Although the Veteran maintains that he was diagnosed with a thyroid disorder in service, the Board finds that the evidence weight against the Veteran’s assertions. As noted above, service records do not confirm any treatment or diagnosis pertaining to a thyroid disorder. Further, the Veteran filed other claims for service connection in 2004 and 2005, but did not mention a thyroid disorder at those times. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that he is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran’s inaction regarding a claim for a thyroid disorder, when viewed in the context of his action regarding his other claims for compensation, may reasonably be interpreted as indicative of a lack of symptomatology at the time he filed the other claims. The evidence also includes a Gulf War VA examination and medical opinion obtained in June 2017. At that time, the examiner indicated that the Veteran had a history of hypothyroidism with positive thyroid antibodies. It was then opined that the Veteran’s hypothyroidism was not related to service, to include his service in Southwest Asia. In this regard, the examiner explained that the Veteran’s thyroid condition was diagnosed years following service in Southwest Asia. Further, medical research did not show any indication that hypothyroidism could be caused by any exposure during Gulf War service. Another VA medical opinion was obtained in April 2019. At that time, the examiner opined that the Veteran’s thyroid condition was not related to service, to include any exposure experienced by the Veteran during service in the Gulf War. In this regard, the examiner stated that the Veteran’s thyroid disorder was diagnosed years after service. Further, the relevant medical literature did not show that hypothyroidism was caused by environment or chemical hazards of military service in the Southwest theater of operations during the Persian Gulf War. A review of the Veteran’s service records also showed no incident in service that could be causally associated with the subsequent development of hypothyroidism. In April 2020, VA obtained a medical opinion regarding the etiology of the Veteran’s thyroid disorder. The 2020 VA examiner reviewed and agreed with the previously submitted VA medical opinion in 2019. Further, the April 2020 VA examiner opined that the Veteran’s thyroid disorder was not related to any in-service disease, event, or injury, to include exposure to environmental/chemical hazards while serving in the Southwest theater of operations during the Persian Gulf War and/or related to his in-service larynx injury. In this regard, the examiner indicated that a physical injury to the thyroid (or larynx area) would not cause or aggravate an autoimmune response to the thyroid, and certainly not 5 years after service. The examiner acknowledged that a traumatic injury to the larynx may induce a transient, self-resolving thyroid condition, but not a chronic autoimmune condition (Hashimoto’s disease), which was the Veteran’s distinct diagnosed condition. Upon review of the record, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran’s hypothyroidism was incurred in service, was secondary to his larynx disability, or was due to exposure to environmental hazards during Gulf War service. The Veteran has not provided any evidence, other than his general lay statements, which support a finding that his hypothyroidism is related to service or to a service-connected disability. The VA opinions of records, when taken together, are highly probative in reaching its finding that service connection as secondary to hypothyroidism is not warranted. The examiners’ opinions were based on an accurate medical history and provided explanations that contained clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As a lay person, the Veteran’s statements are not competent evidence sufficient to establish the etiology of his hypothyroidism. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Thyroid disorders are medically complex disease processes because of their multiple possible etiologies. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Veteran is not shown to possess the requisite medical training to provide a competent etiology opinion regarding his condition. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lupus The Veteran maintains that he has lupus as a result of his Gulf War service. Upon review of all the evidence of record, lay and medical, the Board finds that the Veteran has not been diagnosed with lupus. In this regard, service treatment records are negative for any diagnoses or treatment for lupus. Post-service VA treatment records include a July 2009 rheumatology consult note. At that time, the Veteran was noted to have questionable lupus erythematosus. The Veteran was found to have a history of photosensitivity and alopecia with a non-specific skin rash. The VA physician noted that they would question the positive ANA test (antinuclear antibody). The VA physician further indicated that there seemed to be “no significant history for systemic lupus,” but given the Veteran’s symptoms, a workup for any autoimmune disorder was ordered. In a follow-up August 2009 VA rheumatology note, and following laboratory testing, the Veteran was found to have borderline elevated lupus anticogulant at a level of 1.5 (normal range is from 1.2 to 2.8). The Veteran was scheduled for a repeat lupus anticoagulant testing in the next 12 weeks with lupus anticoagulant. In an October 2009 VA primary care note, it was indicated that the Veteran had undergone anticoagulants testing, which were initially read as positive, but subsequently found to be negative. A November 2009 private treatment record from the Syracuse Orthopedic Specialists indicated that the Veteran had been diagnosed with lupus by “numerous blood tests.” However, this appears to have been based on the Veteran’s own reports as no additional information was provided. In an August 2010 VA rheumatology note, and following additional testing, it was noted that the Veteran did “not meet criteria for lupus or any other connective tissue disease of autoimmune process.” In a March 2011 treatment note, it was further indicated that a “repeat lupus anticoagulant panel was negative.” Similarly, a May 2011 VA rheumatology note found that “there is no evidence of systemic lupus erythematosus, vasculitis.” The Veteran was afforded a Gulf War VA examination in June 2017. At that time, the examiner indicated that the Veteran was “NOT diagnosed with lupus” per the medical evidence of record. Following a review of the medical evidence discussed above, an April 2019 VA medical opinion indicated that “the conclusion by Rheumatology clinic is that there is no diagnosis of lupus.” The 2019 VA examiner stated that the Veteran had been seen multiple times by the VA rheumatology clinic and had extensive rheumatological lab testing, which ultimately ruled out the diagnosis of lupus. Accordingly, the 2019 VA examiner found hat the Veteran did not have a diagnosis of lupus. For these reasons, and upon review of all the evidence of record, both lay and medical, the Board finds that the Veteran does not have a currently diagnosed lupus disability. As noted above, in the absence of proof of a present disability there can be no valid claim. Because the preponderance of the evidence is against the claim for service connection, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Diabetes Mellitus The Board finds that further clarification is needed as to whether the Veteran carries a diagnosis of diabetes. VA treatment records in 2006 show that the Veteran had “no documented history of diabetes.” 2009 VA treatment notes indicate that the Veteran had a past medical history of type II diabetes without complications; however, it is unclear whether the diagnosis was made based on actual laboratory findings. Private treatment records dated in 2009 from the Syracuse Orthopedic Specialist show that the Veteran denied any past history of diabetes. In a March 2009 VA treatment record, the Veteran was assessed with diabetes mellitus and it was indicated that his last Hgb A1c was 6.7 percent. See October 2017 VA medical opinion (noting that in order to diagnose type II diabetes the American Diabetes Association requires A1C needs to be above 6.5%). The Board notes that none of the VA examinations of record have addressed the Veteran’s Hgb A1c of 6.7 percent found in 2009. Further, in an October 2019 VA primary care note, the Veteran reported that he was “concerned that his diabetes may be getting out of whack because of his dizziness.” A September 2019 VA treatment record further indicated that the Veteran was “diabetic.” As such, the Board finds that clarification is needed as to whether the Veteran carries a diagnosis of diabetes mellitus. As noted above, the criteria to establish service connection requires the presence of a current disability. See Shedden, 381 F.3d 1163. The Board further notes that, in an April 2019 VA medical opinion, the examiner specifically indicated that the Veteran had known risk factors for type II diabetes, including “hypertension.” As the Board has granted service connection for hypertension herein, a medical opinion regarding whether diabetes (if diagnosed) is secondary ot he Veteran’s now service-connected hypertension disability should be obtained. Joint Pain During the August 2010 Board hearing, the Veteran reported joint pain to his hips, back, neck, and shoulder. VA treatment records show complaints of diffused pain over his hands, wrists, ankles, and shoulders. The Veteran is currently service-connected for a right hip disability, right sacroiliac back sprain, and degenerative joint disease of the left hip. As such, the Veteran’s complaints of pain as it pertains to these joints has already been compensated. As it pertains to the Veteran’s other joints (hands, wrists, ankles, and shoulders), the Board finds that a clarifying VA examination and medical opinion is needed for several reason. First, the Board finds the May 2018 and April 2019 VA medical opinions to be inadequate. In this regard, the May 2018 VA examiner noted that there was no evidence of any complains of neck, shoulder, knee, or hand pain in service. However, a November 1997 Report of Medical History shows that the Veteran checked “YES” as to having “swollen or painful joints.” The Veteran specifically reported having foot, ankle, back, and neck pain. The 2018 and 2019 VA examiners did not address the exact nature and etiology of all of the Veteran’s reported joint pain. On remand, the Veteran should be afforded a VA examination in order to clarify which of his joints are symptomatic (excluding joints for which service connection has already been awarded). Then, for each joint, the examiner should indicate whether the Veteran has a specific diagnosis and whether it was first manifested in service or otherwise related to service. If no specific diagnosis is provided for the Veteran’s joint(s), an opinion is required as to whether it is as due to an undiagnosed illness. The matters are REMANDED for the following actions: 1. Obtain all VA treatment records since June 2020 to the present and associate them with the electronic claims file. Ensure that the Board can view all records associated with the record. 2. Then, schedule the Veteran for a VA examination by an appropriate examiner to determine the nature, extent and etiology of the Veteran’s diabetes. The electronic claims file must be made available to the individual designated to provide the opinion. The examiner is then asked to address the following: (a.) Indicate whether the Veteran has diabetes mellitus. Appropriate laboratory testing should be performed, if deemed warranted. (b.) If a diagnosis of diabetes is confirmed, state whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diabetes is either caused or aggravated by his service-connected hypertension disability. *The examiner is advised that secondary service connection does not require “permanent” worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition’s natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). (c.) A complete rationale for any opinion expressed should be included in the examination. 3. Schedule the Veteran for a VA examination by an appropriate examiner to determine the nature, extent and etiology of the Veteran’s claimed joint pain. The electronic claims file must be made available to the individual designated to provide the opinion. The examiner is then asked to address the following: (a.) Ask the Veteran to specify which joints are symptomatic—i. e., painful, swollen, etc. (b.) Then, identify ALL diagnoses related to the Veteran’s claimed joint pain. The examiner need not address the Veteran’s right and left hip or back pain as service connection for these disabilities has already been awarded. (c.) For each verified diagnosis, state whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed joint disorder was incurred in service or is otherwise related to service. **The examiner must address the November 1997 Report of Medical History indicating that the Veteran’s checked “YES” as to having “swollen or painful joints.” The Veteran specifically reported having foot, ankle, back, and neck pain. (d.) If the Veteran’s joint pain does not have a specific diagnosis, then the examiner should state whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s joint(s) disorder is an undiagnosed illness or chronic multi-symptom illness due to his service in the Gulf War. (e.) A complete rationale for any opinion expressed should be included in the examination. 4. Then, readjudicate the claims on appeal. K. OSBORNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.