Citation Nr: 21028222 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 18-40 346 DATE: May 10, 2021 ORDER The claim of entitlement to service connection for hypothyroidism is denied. FINDINGS OF FACT 1. Although no hypothyroidism diagnosis or history of thyroid disability was specifically noted at service entry, it is established by clear and unmistakable evidence that the Veteran entered service with a pre-existing hypothyroidism disability. 2. It is established by clear and unmistakable evidence that the Veteran's pre-existing hypothyroidism was not aggravated by service. CONCLUSION OF LAW The criteria for service connection for hypothyroidism have not been met. 38 U.S.C. §§ 1110, 1111, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from September 1961 to July 1965. Historically, this appeal to the Board of Veterans' Appeals (Board) arises from rating decisions in which the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio denied service connection for hypothyroidism. The RO initially denied the claim in July 2016. Following the Veteran's request for reconsideration of the claim in February 2017, in an April 2017 rating decision, the RO continued to deny the service connection claim for hypothyroidism. In May 2019, the Board denied the claim of entitlement to service connection for hypothyroidism. The Veteran subsequently appealed the Board's May 2019 denial to the United States Court of Appeals for Veterans Claims (Court). In a March 2020 order, the Court granted a Joint Motion for Remand (JMR) filed by representatives for the VA Secretary and the Veteran, vacating the Board's decision, and remanding the claim on appeal to the Board for further proceedings consistent with the Joint Motion. In September 2020, the Board remanded this claim for actions consistent with the JMR. The requested development has been completed and the matter is now ready for appellate review. The record contains competent evidence of a diagnosis of hypothyroidism. In this case, the Veteran contends that his hypothyroidism existed prior to service, but was exacerbated by an in-service event. Specifically, the Veteran alleges that his prescribed medication was stopped in service, which caused his hypothyroidism to worsen. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). If a disorder was not "noted" on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that the "increase in disability [was] due to the natural progress of the preexisting condition." 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Wagner, 370 F.3d at 1097. In explaining the meaning of an increase in disability, the Court has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Of note is that the burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops and the claim is denied. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. As hypothyroidism was not specifically noted on the Veteran's September 1961 service enlistment examination report, the Veteran is entitled to a presumption of soundness with respect to hypothyroidism. However, the Board also finds that there is sufficient evidence of record, to include but not limited to the Veteran's own statements, to rebut the presumption. As noted, the Veteran has acknowledged that his hypothyroidism pre-existed service, and service treatment records (STRs) include a note from Dr. J. J., dated September 30, 1961, which reflects the Veteran was being treated with medication for mild hypothyroidism prior to his military service. In January 2018, the Veteran was afforded a VA thyroid/parathyroid examination. During the examination, the Veteran reported that he was diagnosed with hypothyroidism in 1960 following the onset of symptoms. After entering basic training, he went off his hypothyroidism medication for some years. However, the Veteran started experiencing fatigue during service and after separation, he was rediagnosed with hypothyroidism. After reviewing medical records dated in December 2002, August 2003, August 2012, June 2013, and January 2012, the VA examiner opined that the Veteran's hypothyroidism, which clearly and unmistakably existed prior to service, was less likely as not aggravated beyond its natural progression by military service. The examiner also concluded that the Veteran's hypothyroidism was not aggravated by any in-service events or injuries, as there were no records showing such events to have occurred while he was still in service. Furthermore, there were no direct pathophysiological or medical studies that showed hypothyroidism was aggravated by being in military service. In the Joint Motion, the parties agreed that the claim should be remanded for the Board to obtain an adequate medical opinion. Specifically, the parties agreed that in cases where the presumption of soundness applies, the burden falls on VA, not the veteran, to rebut the presumption of soundness by demonstrating by clear and unmistakable evidence that the hypothyroidism was not aggravated by service, citing Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The parties further noted that, while the VA examiner stated that "there are no records showing [the reported] events to [have] occurred," the examiner did not address the October 1961 service treatment record reflecting the directives "tell to stop thyroid [medication] now," and to reevaluate clinically following 6-8 weeks of no thyroid pills, as well as the December 14, 1961, service treatment record noting that the Veteran had a thyroid deficiency. In the September 2020 remand, the Board requested that after review of the claims file, the physician should provide an opinion, consistent with sound medical judgment, as to whether the Veteran's hypothyroidism, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. When addressing the above, the physician was to consider and discuss all pertinent medical and other objective evidence, to include the Veteran's service treatment records, which reflected that the Veteran was directed to stop taking his thyroid medication, that he would be clinically re-evaluated following 6-8 weeks of no thyroid medication, and later noted that he had a thyroid deficiency. The physician was to also consider and discuss all lay assertions, to include competent assertions as to nature, onset, and continuity of symptoms. If lay assertions were discounted, the physician was to clearly so state, and explain why. The requested opinion was obtained in March 2021. Following a review of the file, the examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by any inservice injury, event, or illness. The examiner stated that he had reviewed the Veteran's medical records. He noted the Veteran's statement ''With regard to my most recent submission of a new 21-526EZ (requesting reconsideration), I'd like to make the following statement: With regard to my request for service connection for hypothyroidism, please understand I was diagnosed my Senior year in high school with hypothyroidism and I was started on a low dose of Armor desiccated thyroid medication (which stands for a dried thyroid hormone derived from pigs). Then when I arrived in boot camp and I went to medical for my medicine, I was not offered any testing and I was told that if there was anything wrong with my thyroid, I would not have been allowed to enter into boot camp and then they asked me to leave the room, therefore my hypothryroidism went untreated until after I returned from Da Nang. In late 68 or early 69 I started to be treated for this condition in Belle Center, Ohio by Dr. Roget. At this time my TSH (thyroid stimulating hormone) was 16 and a normal TSH should be in the 2-3 range. Please reference the attached one page progress note where it is noted that I had been taking thyroid medication since 1959-60. I served in the Air Force from 1961 to 1965.'' The examiner indicated that treatment of hypothyroidism was based on the medical knowledge that hypothyroidism progresses whether treated or not. Actually, when treated, the thyroid begins to shut down as soon as thyroid replacement is begun. The mechanism for this is that the pituitary gland directs the production of thyroid hormone. It produces thyroid stimulating hormone [TSH] based on the body's need for thyroid hormone. A normal TSH varies a bit from one lab to another, but a normal level is usually 0.5 to 5. If the thyroid level in the body is too low, the TSH increases to stimulate the thyroid to make more thyroid hormone. When a patient is placed on thyroid hormone, the TSH drops to normal and the thyroid stops trying to make thyroid hormone, and the ability of the thyroid to make hormone ends. It was not making enough when trying due to TSH, and now it stops trying. In this situation, the lack of treatment with thyroid replacement did not cause the thyroid to stop working. Actually, a TSH of 5-10 is mild hypothyroidism and may produce no symptoms. The TSH of 16 still represents mild hypothyroidism and there is no evidence of a deleterious effect of this mild hypothyroidism for this Veteran demonstrated in the medical record. The examiner noted that symptoms of hypothyroidism are not specific for this condition and are often caused by other problems. The TSH measurement is the only accurate way to know if replacement is normal. The examiner stated that there was no damage to this Veteran's thyroid gland by the lack of thyroid medication. The thyroid function was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. He stated that as an endocrinologist with over 40 years of experience treating hypothyroidism and teaching medical students and residents, he was absolutely certain based on the medical literature that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an inservice injury, event, or illness. After reviewing all the evidence, lay and medial, the Board finds that service connection is not warranted for hypothyroidism. Although the record demonstrates that the Veteran entered service on thyroid medication and that his medication was stopped in service, the record does not demonstrate any evidence of aggravation of the pre-existing hypothyroidism. The March 2021 VA examiner, following a thorough review of the record, opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an inservice injury, event, or illness. The Board finds this opinion to be of significant probative value. The examiner based his conclusions upon a thorough review of the file and consideration of the Veteran's documented history and his assertions. The examiner provided detailed rationale for his opinion citing to specific findings in the record to support his opinion as well as citing to medical literature. Given this, and the fact that the examiner's conclusions are consistent with the evidence of record; the Board accepts these conclusions as probative evidence on the questions of pre-existence and in-service aggravation upon which this claim turns. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Finally, regarding the Veteran's own assertions as to in-service aggravation, the Board points out that matters pertaining to medical etiology of a disability to include underlying questions of pre-existence and aggravation of such disability typically are matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Although lay persons are competent to provide opinions on some simple medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), the specific matters under consideration are complex medical matters that fall outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n. 4 (holding that lay persons are not competent to diagnose cancer). As neither the Veteran nor his representative are shown to have the training and expertise to competently opine as to the etiology of current hypothyroidism, specifically in-service aggravation of such a pre-existing disability, the lay assertions in this regard are not competent, and, hence, not probative. (Continued on the next page) For all the forgoing reasons, the Board concludes that the competent, probative evidence of record clearly and unmistakably establishes that the Veteran's hypothyroidism pre-existed service, and that the disorder was not aggravated beyond natural progression during or as a result of service. Accordingly, the claim for service connection for hypothyroidism must be denied. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.