Citation Nr: 21020928 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 14-38 421A DATE: April 8, 2021 ORDER Service connection for hypothyroidism is denied. Service connection for hypertension is denied. FINDING OF FACT The Veteran’s hypothyroidism and hypertension clearly and unmistakably existed prior to his second period of active duty and clearly and unmistakably was not aggravated thereby. CONCLUSIONS OF LAW 1. Hypothyroidism was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310. 2. Hypertension was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1976 to August 1979 and June 2008 to June 2009, including foreign service in Iraq. For his meritorious service, the Veteran was awarded (among other decorations) the Iraq Campaign Medal with Campaign Star, the Overseas Service Ribbon, and the Armed Forces Reserve Medal with M Device. These appeals were previously remanded by the Board in November 2018 and November 2020 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). To clarify, the Veteran requested that a videoconference hearing be scheduled on his November 2014 substantive appeal. The requested hearing was scheduled for October 2016. However, the Veterans Appeals Control and Locator System (VACOLS) entry for this appeal stream indicates that the October 2016 hearing was cancelled and a rescheduled hearing was requested. However, the claims file contains no evidence to this effect, including statements from the Veteran or his representative requesting that a hearing be scheduled in this case. Rather, an October 2020 VA memorandum inaccurately states that the Veteran had been sent a letter inviting him to request a hearing in this case, but it was later discovered that a hearing had previously been held. This notation is also incorrect, as the claims file contains no clarification letter, hearing transcript, or other indication that a hearing had been requested or held in this case. Accordingly, it is found that the Veteran’s initial hearing request has been withdrawn, and no subsequent requests to testify were made, to include following the Board’s two prior remands. Thus, the Board may proceed with its review of the matters on appeal. See 38 C.F.R. § 20.704(d). Of note, the Veteran is in receipt of a combined maximum evaluation since March 31, 2017. As such, any future awards of service connection or higher ratings will bear no impact on his compensation payments. Service Connection The Veteran remains in pursuit of service connection for the claimed hypothyroidism and hypertension disorders. As these appeals require similar analyses, they will be addressed simultaneously herein. The Board will also limit its analysis to those theories of entitlement as presented by the record. 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). At the time of a service entrance examination, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; see 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089, 1092 (Fed. Cir. 2004). The presumption of soundness arises in favor of a veteran who claims benefits when a preexisting disability not noted on the report of the entrance examination arises during service. See Crowe v. Brown, 7 Vet. App. 238 (1994). VA’s General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003); see Horn v. Shinseki, 25 Vet. App. 231, 236 (2012). General Counsel has held that the claimant is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong attaches. VAOPGCPREC 3-2003. In other words, the presumption of soundness is a two-prong test with the burden on VA to show in rebuttal: 1) clear and unmistaken evidence that an injury or disease existed before acceptance and enrollment, and 2) clear and unmistakable evidence that the preexisting injury or disease was not aggravated by service. Even if VA rebuts the first prong, the presumption of soundness still attaches and it is presumed that service aggravated the preexisting injury or disease unless VA rebuts the second prong. See VAOPGCPREC 3-2003. VA may find a lack of aggravation under 38 U.S.C. § 1111 if the clear and unmistakable evidence shows that there was no increase in disability during service, or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (citing 38 U.S.C. § 1153 and 38 C.F.R. § 3.306 ); but see Horn v. Shinseki, 25 Vet. App. 231, 238 (2012) (emphasizing that “neither the presumption of aggravation of section 1153 nor the regulation implementing that statutory provision, § 3.306, has any application to an analysis under the aggravation prong of the presumption of soundness in section 1111.”). On review, the Veteran has two distinct periods of active duty: August 1976 to August 1979, and June 2008 to June 2009. Between these two periods of service, he was diagnosed with hypothyroidism (in 2004) and hypertension (in 2006). See generally VA treatment records (noting the identified diagnostic dates); see also VA examinations dated October 2019. There is no evidence to indicate that these disorders otherwise onset during the Veteran’s earlier period of service or are etiologically related thereto. See also VA examinations dated October 2019 (opining that the claimed disorders are not directly related to the Veteran’s first period of service). Rather, in its November 2020 remand, the Board concluded that the claimed disorders clearly and unmistakably preexisted the Veteran’s second period of active duty. The Veteran was initially diagnosed with borderline hypertension in January 2004, essential hypertension in October 2006, and hyperthyroidism in January 2004. As such, the Board must now determine whether it is clear and unmistakable that these disorders were not aggravated by the later period of service. VAOPGCPREC 3-2003. The evidence weighs against such a finding in this case. Rather, a January 2021 VA addendum opinion concludes that the Veteran’s hypothyroidism and hypertension were clearly and unmistakably not aggravated beyond their natural progression by his second period of military service. By way of rationale, the examiner noted that the submitted medical records do not contain documentation of any aggravation of these conditions spanning this period of service, to include during the Veteran’s deployment to Iraq. Specifically, there was no evidence of worsening thyroid levels, increased blood pressure readings, or increased blood pressure symptoms during this time, to include in the Veteran’s repeated post-deployment health assessments. Accompanying the examiner’s rationale is a detailed, multipage overview of the Veteran’s medical history from before his second period of active duty to the present, including diagnostic testing, noted diagnoses, and medication usage. This opinion is probative evidence against the appeals. Notably, the VA examiner offered a definitive nexus opinion with an accompanying rationale, which directly considers the Veteran’s documented medical histories before, during, and after his second period of service. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (holding that the probative value of a medical opinion comes from the “factually accurate, fully articulated, sound reasoning for the conclusion”). There is no indication that the examiner was not fully aware of the Veteran’s past medical history or misstated any relevant fact in formulating this opinion. Moreover, the examiner possesses the requisite expertise to render medical opinions regarding aggravation of the claimed disorders and had sufficient facts and data on which to base her conclusions. Further, there is no evidence which contradicts the VA examiner’s conclusions other than the Veteran’s own assertions. However, he lacks the requisite medical training and expertise to offer a competent opinion on this matter. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As such, the Board finds that the Veteran’s hypothyroidism and hypertension clearly and unmistakably preexisted his second period of military service and were not aggravated thereby. Briefly, the Board has also considered whether the hypertension appeal can succeed on a presumptive basis as due to chronicity. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307, 3.309. However, the record does not establish that this disorder onset within one year of military separation, whether following the Veteran’s first or second period of active duty. See October 2019 VA examination; see generally VA treatment records. Thus, presumptive service connection does not attach to this appeal. The above findings preclude the award of service connection for the claimed disorders. The preponderance of the evidence is against the claims such that the benefit-of-the-doubt rule is not applicable, and the appeals are thus denied. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). J. NICHOLS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.