Citation Nr: 22016149 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 14-25 992 DATE: March 25, 2022 THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for hyperthyroidism. 3. Entitlement to service connection for hypothyroidism. ORDER Entitlement to service connection for hyperthyroidism is denied. Entitlement to service connection for hypothyroidism is denied. REMANDED Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. The convincing weight of the evidence is against a finding that the Veteran's thyroid disability was incurred in or aggravated by his military service. 2. The convincing weight of the evidence is against a finding that the Veteran's thyroid disability was incurred in or aggravated by his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hyperthyroidism have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for hypothyroidism have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1978 to September 1982. This matter is before the Board of Veterans Appeals (Board) on appeal from September 2013 and August 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in March 2018. A copy of the hearing transcript has been associated with the claims file. In June 2018, the Board remanded these claims in order to afford the Veteran new VA examinations for his claimed conditions, as well as to obtain outstanding VA treatment records from Miami, Brower Clinic in Florida, and East Orange for the period from 1986 to 1990. Theses matters, along with the issues of entitlement to service connection for a right shoulder disability, a neck disability, a left knee disability, and sleep apnea were last before the Board in February 2021 at which time they were remanded for further development. In a subsequent December 2021 rating decision, the RO granted the claims for service connection for a right shoulder disability, a neck disability, a left knee disability, and sleep apnea. Therefore, those issues are no longer before the Board. The Board notes in passing that in June 2021, the Veteran revoked a Power of Attorney of Texas Veterans Commission, his previously authorized representative. The Veteran did not subsequently appoint a new representative, and as such, the Board will proceed with the review of the appeal on that basis. With regards to the issues of entitlement to service connection for hyperthyroidism and hypothyroidism, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance with remand directives is required). 1. Entitlement to service connection for hyperthyroidism is denied. 2. Entitlement to service connection for hypothyroidism is denied. Service connection may be established 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. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). The Veteran testified and reported a diagnosis of hyperthyroidism from between 1985 and 1986. The Veteran and his representative testified that VA denied service connection based upon a single indication of a normal range of THS. They asserted that there were some manifestations in 1986, a few years removed from discharge, and that this is related to what the Veteran experienced a few years prior to this in service. The Veteran testified that he was in the active reserves following active duty, from 1986 to 1990, and additional VA treatment records would help substantiate his claim. He testified that he is currently on medication to control his thyroid condition. In its June 2018 decision, the Board remanded the matter in order to obtain these potentially outstanding records and to schedule the Veteran for a new VA examination to determine the nature and etiology of his claimed thyroid conditions. The Veteran was afforded such an examination in October 2018. The examiner explained that the Veteran was first diagnosed with hyperthyroidism in 1986 and was treated with Tapazole and Inderal. Thereafter, he was found to have hypothyroidism and was started on treatment with Synthroid. The Veteran was noted to currently be treated with levothyroxine. The Veteran complained of fatigue, but his weight was found to be stable, and he denied heard involvement, palpitations, syncope, or visual changes. He was found to have no findings, signs or symptoms attributable to a hyperthyroid condition, but did have findings attributable to a hypothyroid condition. In September 2020, the Veteran again indicated that there were outstanding private treatment records at JFK Medical Center from January 1983 to December 1995, however, the Veteran did not properly sign the general release form, but instead had his representative sign said document. Therefore, the private treatment records were not obtained. In its February 2021 decision, the Board found that the Veteran should receive an additional opportunity to submit a proper Authorization to Disclose Information to the Department of Veterans Affairs form. The Veteran, through his representative, also identified potentially outstanding service treatment records during his time as an active reservist from 1985 to 1990. In its February 2021 decision, the Board found that it was not clear if these treatment records were associated with the claims file, therefore remanded so that VA make an attempt to locate any relevant and potentially outstanding service records. See 38 C.F.R. § 3.159 (c) (2). The Board directed that the RO should notify the Veteran that his STRs are unavailable and allow the Veteran an opportunity to provide missing STRs. Upon remand, the RO made such attempts to obtain such records and notified the Veteran that some of his STRs were unavailable and allowed him an opportunity to submit any in his possession. Therefore, the Board finds that its remand directives have been complied with. Additionally, in its February 2021 decision, the Board found that upon remand the Veteran should be afforded an addendum opinion for his claimed thyroid conditions. At the November 2021 VA thyroid examination, the examiner recorded the diagnosis of hypothyroidism and hyperthyroidism. The Veteran had was currently taking levothyroxine for his thyroid conditions and had thyroid endocrine dysfunction. The examiner noted date of diagnosis for hyperthyroidism and hypothyroidism of 1986 and 2008, respectively. The examiner recorded the Veteran's complaints of fatigue, but found that he denied cold intolerance, bowel movement changes, heart conditions, or any neurologic and psychiatric complications. In the incredibly detailed, associated medical opinion, the examiner opined that it was not at least as likely as not that the Veteran's thyroid conditions were related to or incurred in active service. The examiner explained that the Veteran's STRs were negative for diagnoses or treatment for thyroid conditions. The examiner stated that there was no evidence of weight changes, EKG abnormalities, or cardiac arrhythmias associated with thyroid disease. While the examiner acknowledged that the Veteran had tremors, these were noted to preexist military service and that they were unrelated to the Veteran's thyroid conditions as confirmed by a neurology evaluation. The examiner cited scholarly sources. With regards to the Veteran's hypothyroidism, the examiner explained that this diagnosis was many years after the hyperthyroidism and that he only began receiving treatment for such condition in 2008. The examiner stated the Veteran's separation examination was negative for complaints or concerns of a thyroid disability. The Board acknowledges that the Veteran believes that his thyroid condition is related to service. To the extent that the Veteran has linked his diagnosed thyroid conditions to his active military service, he is not competent to render such an opinion. While the Veteran is competent to provide evidence of symptoms or report a contemporaneous diagnosis provided by a physician, he is not competent to diagnose a thyroid condition such as hyperthyroidism or hypothyroidism or opine as to the etiology of his currently diagnosed disabilities. 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Diagnosing a thyroid condition and providing an opinion as to the etiology is a complex medical question requiring knowledge of symptoms and interpretation of diagnostic tests and pathology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the persuasive weight of the evidence is against the Veteran's claims and as the benefit of the doubt rule does not apply, entitlement to service connection for hypothyroidism and hyperthyroidism is denied. 38 C.F.R. §§ 3.303. REASONS FOR REMAND Entitlement to service connection for a low back disability is remanded. In addition to obtaining the records noted in the above section, in the Board directed the RO to schedule the Veteran for a VA examination to determine the nature and etiology of any low back disability in its June 2018 decision. The Veteran was afforded such a VA examination in November 2018, which at one point in the report recorded no low back diagnosis, and at another point indicated there was evidence of "a moderate amount of DJD in much of [the Veteran's] lower bac k, possible DDD is also seen." In an October 2019 addendum opinion, the examiner did not offer a clear, coherent response to the question of whether the Veteran's low disability was at least as likely as not incurred in or otherwise related to service. After noting a review of only VBMS, the examiner wrote: "His low back pain came and went in the service. No doubt his DDD could have started in the service, but my eval did not find it to be significant as he took on a warehouse job which would have been hard on his back and he would not have stayed with it for over 20y had his back been bad from his time in the service to start with. When seen his back ROM was painless." In its February 2021 decision, Board found that the opinion was inadequate for determining the etiology of the Veteran's low back disability as it was not based on a review of the Veteran's complete claims file. However, while the Board included this finding in the analysis section of the February 2021 decision, due to error on the part of the Board, instruction requesting a new VA examination with opinion was not included in the remand directives. Upon remand, the Veteran was afforded a new VA examination for his claimed back disability in January 2022. The VA examiner recorded a diagnosis of degenerative arthritis of the spine. The examiner opined that the Veteran's lumbar spine disability was not at least as likely as not secondary to or aggravated by his service-connected neck disability. In support of this opinion, the examiner stated that the two disabilities were not medically related and that the Veteran's gait was not grossly abnormal. No other rationale was provided and no opinion as to the direct theory of service connection was included. Therefore, a new VA addendum opinion is necessary to determine the etiology of the Veteran's low back disability. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006); See Stegall, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Return the claims file to the January 2022 examiner, or an appropriate substitute, for the purposes of providing an addendum opinion as to the etiology of the Veteran's low back disability. A new examination is not required, however, if the examiner finds that one is necessary in order to address the following, one must be provided. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The VA examiner should also opine whether the Veteran's low back disability is proximately due to, the result of, or aggravated by the Veteran's neck disability. After completing the above, and any other necessary development, the claim remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, Associate 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.