Citation Nr: 22013176 Decision Date: 03/08/22 Archive Date: 03/08/22 DOCKET NO. 19-26 946 DATE: March 8, 2022 ORDER Entitlement to service connection for a thyroid disorder is granted. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for hypertension is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the Veteran's thyroid disorder incurred in service or is etiologically related to active duty service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for thyroid disorder has been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service with the United States Coast Guard from February 1968 to June 1990, after which he retired. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including the evidence pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr v. Nicholson, 21. Vet. App. 303 (2007). The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Entitlement to service connection for a thyroid disorder is granted. Resolving reasonable doubt in the Veteran's favor the Board finds that the Veteran's thyroid disorder was incurred in service or is etiologically related to active duty service. In the present case, the Veteran served honorably from February 1968 to June 1990, after which he retired. He reported that he had some symptoms during service that were reasonably related to his thyroid disorder. He believes that his thyroid condition began in service. First, the Veteran has a current disability. He was diagnosed with a mix of Grave's disease, and Hashimoto's disease. The Veteran had elevated thyroid levels, but he also had inflammation in his thyroid commonly seen in Hashimoto's disease. See CAPRI received December 2015. In October 2000, a VA provider stated that the Veteran likely had a mix of Hashimoto's and Grave's disease, which the doctor noted might allow the condition to remit spontaneously at undetermined times, but eventually would result in hypothyroidism. Id. The doctor recommended an ablation of the Veteran's thyroid. After the ablation procedure, the Veteran was treated with ongoing replacement medication for the needed thyroid hormones. Id. Records generally show that the Veteran has been taking levothyroxine or Synthroid, for his thyroid since a short time after his ablation. Therefore, the evidence supports that the Veteran meets the first prong of the direct service connection test, in that he has a current disability. Next, the Veteran had an in-service event, injury, or disease. In particular, in April 1990, the Veteran had problems with his hair and was diagnosed with alopecia areata. The service treatment records noted that he had a "thyroid profile" but there is no evidence that he had testing of the thyroid stimulating hormone (TSH) during service. See Medical Treatment-Government Facility received October 2019. The medical report also stated that the Veteran had a possible metabolic disorder. This treatment occurred close to his separation from service. Id. While there is limited testing from service, the Veteran has consistently reported his symptoms in service and his records support his lay statements. Therefore, the Board finds that the Veteran had an in-service event, injury, or disease. Lastly, the Board considered whether there was a link between the Veteran's current disability and his in-service event, injury, or disease. The Board notes that the July 2019 VA medical opinion did not support a link between the Veteran's thyroid disorder and his service; however, this opinion was inadequate. For example, in July 2019, the VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in service injury, event, or illness. The examiner stated alopecia can be a symptom of a variety of medical conditions and not necessarily a thyroid condition. See C&P Examination received July 2019. While it is relevant that alopecia can be a symptom of a variety of medical conditions, alopecia is also an autoimmune condition that can be related to a thyroid condition, a fact that the examiner clearly avoided, but did not deny. Moreover, the examiner failed to provide a detailed discussion of the relevant medical evidence. As such, the Board finds that the July 2019 VA opinion does not provide an adequate rationale. As for other opinions, a treatment provider at the VA made statements in medical treatment records which supports a link between the Veteran's current disability and the Veteran's in-service event, injury, or disease. Specifically, a treatment provider at the VA supported that the Veteran's hair loss condition in service was linked with his current thyroid disorder. In May 2015, the Veteran was seeing his primary care doctor at the VA. In the history of the medical record, the provider noted that the Veteran described hair falling out in patches during service and that they discussed the Veteran's autoimmune thyroid condition. Later in the analysis section of the record the doctor wrote that the Veteran's in-service alopecia areata was likely linked to the Veteran's thyroid diagnosis. See CAPRI received December 2015. The Veteran's primary care provider was a doctor with a specialty in infectious diseases and he had familiarity with the Veteran's medical history. He noted that the Veteran had hyperthyroidism, Graves/Hashimoto's and a thyroid ablation. The primary care doctor provided a reasonably supported opinion. Resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's thyroid condition reasonably incurred during active military service or is etiologically linked to military service. Accordingly, the Veteran's claim for service connection for a thyroid condition is granted. REASONS FOR REMAND 1. Entitlement to service connection for OSA is remanded. While the Board regrets further delay, the claim must be remanded for additional development. When the RO receives evidence prior to certification and transfer of a case to the Board, the RO must furnish the Veteran with a new SSOC reviewing that evidence, unless the additional evidence is duplicative or not relevant to the issue(s) on appeal. See 38 C.F.R. § 19.31(b)(1) and 38 C.F.R. § 19.37(a). There is no legal authority for a Veteran to waive, or the RO (the Agency of Original Jurisdiction) to suspend, this requirement. Id. In this case, an SOC was issued in July 2019. Since that time, prior to the certification to the Board in September 2019, and October 2019, additional relevant evidence was added to the file. The Form 8, certifying the claim to the Board was not issued until the end of October 2019. No SSOC was issued by the RO as to the claim of OSA. Accordingly, this matter must be remanded for consideration of such evidence by the RO. The Board also remands the claim for an opinion as to whether the Veteran's OSA occurred in or is related to his active military service. In particular, the Veteran's medical records reported that his OSA was diagnosed in the 1990s. For example, in August 2009, the Veteran's primary care provider stated that the Veteran had a history of sleep apnea diagnosed in the 1990s with a trial of a CPAP, which the Veteran did not tolerate. The Veteran was reporting ongoing symptoms of waking up gasping for air. See Medical Treatment Record-Non-Government Facility received January 2017. The record also contains lay statements from a fellow service member. The Veteran's bunkmate reported that the Veteran snored loudly in his sleep to the point of waking up his fellow shipmates. See Buddy/ Lay Statement received December 2016. Additionally, the Veteran's wife reported that the Veteran's sleep changed in the 1980s and that the Veteran snored loudly. She stated that the Veteran would wake up like he was choking. See Buddy/ Lay Statement received December 2016. The Veteran also stated that during service he was worried that if he complained of his medical problems he would not get hired by government or civilian companies and that he was worried about tainting his excellent health record. See Correspondence received October 2019. When there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but insufficient competent medical evidence on file for VA to make a decision on the claim, an opinion should be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4)(i). Considering the totality of the evidence, the Board finds that the record contains insufficient competent medical evidence, to decide the claim. Therefore, the VA must provide a competent medical opinion. While the Board regrets additional delay, a remand is necessary in order to decide the claim. 2. Entitlement to service connection for hypertension is remanded. Although further delay is regrettable, a remand is necessary for the following development. The Board remands the claim for an opinion as to whether the Veteran's hypertension is related to service, as the record contains no opinions. The Veteran stated that his service treatment records show that he had elevated blood pressure during service. He suggested that his service treatment records supported that his hypertension either occurred in service or is related to his service. See Form 9 received September 2019 and Medical Treatment Record-Government Facility received October 2019. Even if hypertension was not specifically diagnosed during service, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including the evidence pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). The Board also noted that the Veteran had a long history of treatment with medications for high blood pressure, although it was unclear when the Veteran was first diagnosed with hypertension. Considering the totality of the evidence, the Board finds that the record contains insufficient competent medical evidence, to decide the claim. Therefore, the VA must provide a competent medical opinion. While the Board regrets additional delay, a remand is necessary in order to decide the claim. The matters are REMANDED for the following action: 1. Update all VA treatment records. 2. Schedule the Veteran for a VA examination by a VA medical expert with the appropriate training and expertise to determine the nature and etiology of the Veteran's OSA. A complete copy of the claims file must be made available to the examiner. The examiner must consider the lay reports of observable symptomatology. The examiner must also take a history regarding the symptoms from the Veteran. After a thorough review of the medical and lay evidence of record, the examiner should address the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's OSA had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service? Please consider that the Veteran's bunkmate reported that the Veteran snored loudly in his sleep to the point of waking up his fellow shipmates. See Buddy/ Lay Statement received December 2016. Additionally, the Veteran's wife reported that the Veteran's sleep changed in the 1980s and that the Veteran snored loudly. See Buddy/ Lay Statement received December 2016. (b.) A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. Schedule the Veteran for a VA examination by a VA medical expert with the appropriate training and expertise to determine the nature and etiology of the Veteran's hypertension. A complete copy of the claims file must be made available to the examiner. The examiner must consider the lay reports of observable symptomatology. The examiner must also take a history regarding the symptoms from the Veteran. After a thorough review of the medical and lay evidence of record, the examiner should address the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's hypertension had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service? Please consider and discuss that the Veteran has stated that he had elevated blood pressure in service, which was documented in his service treatment records. (b.) A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. CONTINUED ON NEXT PAGE 4. After completing all indicated development, the Veteran's claim should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is returned to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.