Citation Nr: 22018845 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 13-31 507A DATE: March 30, 2022 ORDER The issue of entitlement to service connection for left hip tendinitis is granted. The issue of entitlement to service connection for Graves' disease is granted. The issue of entitlement to service connection for hypothyroidism is granted. REMANDED The issue of entitlement to service connection for a headache disability, to include migraine and/or tension headaches, claimed as migraine condition, is remanded. FINDINGS OF FACT 1. The Veteran's left hip tendinitis began during active service. 2. The Veteran's Graves' disease began during active service. 3. The Veteran's hypothyroidism is proximately due to the service-connected Graves' disease. CONCLUSIONS OF LAW 1. The criteria for service connection for left hip tendinitis are met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2021). 2. The criteria for service connection for Graves' disease are met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2021). 3. The criteria for service connection for hypothyroidism as secondary to service-connected Graves' disease are met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.310 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1984 to September 1987. In addition, at the October 2017 hearing before the undersigned Veterans Law Judge (VLJ), the Veteran indicated she was in the Army Reserves for approximately three years. In October 2017, the Veteran testified under oath at a travel board hearing before the undersigned VLJ. A transcript of the hearing is of record. The issue of entitlement to service connection for a headache disability has been expanded and recharacterized pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). In June 2020, the appeal was remanded for further development. Following the remand, the service connection was granted for, inter alia, the following disabilities: degenerative joint disease (DJD) and degenerative disc disease (DDD) of the lumbar spine, claimed as lower back injury; flexion right hip disability, limitation of right hip, and extension of right hip; and right knee DJD disability, claimed as right knee condition. See Rating decision, August 2021. In addition, service connection was also granted for adjustment disorder with mixed anxiety and depressed mood. See Rating decision, October 2021. As these grants constitute a full grant of the benefits sought, they are no longer before the Board. In December 2021, the Veteran's representative submitted a letter stating that his representation of the Veteran has concluded and that he is "withdrawing as the representative of record." However, after the agency of original jurisdiction (AOJ) has certified an appeal to the Board, "a representative may not withdraw services as a representative in the appeal unless good cause is shown on motion." See 38 C.F.R. § 20.6. As no motion has been submitted showing good cause, the representative's request to withdraw is denied. Service Connection Legal Criteria 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). Service connection may also be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. 1. Entitlement to service connection for left hip tendinitis. The Board finds that the Veteran meets the criteria for service connection. First, the Veteran has a diagnosis of bilateral tendinitis. See VA examination report, May 2021. At the October 2017 travel board hearing, the Veteran indicated that she had symptoms relating to her hips in service and that they did not subside post-service. Following the June 2020 Board remand, the Veteran was granted service connection for the following disabilities pertaining to the right hip: flexion right hip disability, limitation of right hip, and extension of right hip. See Rating decision, August 2021. In granting service connection for the right hip disabilities, the AOJ noted that a nexus was "established that hip pain started while on active duty" and that "clearly her hip pain did not subside after service." Id. The Board notes the following statement from a June 2021 VA opinion: "The vet has bilateral hip problems which developed concurrently." (Emphasis added). Given the Veteran's contentions that her hip symptoms began in service and continued thereafter, combined with the fact that a nexus was established for the right hip on this basis, and that an examiner has opined that the hip problems developed "concurrently," the Board resolves reasonable doubt in her favor and find a nexus is also established for the left hip. The Board acknowledges the other VA opinions of record but affords them little probative weight. The Board addressed the shortcomings of the September 2019 VA opinion in the June 2020 remand and incorporates those findings by reference. The Board also acknowledges a September 2019 VA opinion that states that the Veteran's left hip "was acute only" during her service. However, this opinion does not adequately address the Veteran's lay contentions; accordingly, the Board affords it little probative weight. Similarly, the May 2021 VA opinion, which addresses direct service connection, does not adequately address the Veteran's lay contentions; although the Board notes it does state: "clearly [the Veteran's] hip pain did not subside after service." Finally, the Board acknowledges the June 2021 VA opinions, but these primarily pertain to secondary service connection. Given the above, the Board cannot conclusively disassociate the Veteran's diagnosed tendinitis disability from her service. Resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection have been met. The issue is granted. 2. Entitlement to service connection for Graves' disease. The Board finds that the Veteran meets the criteria for service connection for Graves' disease. First, the Veteran has a diagnosis of Graves' disease. See CAPRI, September 2021; and VA examination report, September 2011. In addition, at the October 2017 travel board hearing, the Veteran described the following symptoms in service: fatigue, jitters, protrusion of the eyes, and dry skin. The Veteran is competent to report on symptoms which are capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). In support of her contentions, a service treatment record, which appears to be from October 1985, notes complaint of chronic fatigue. The May 2021 VA opinion states: "[The Veteran's] graves [sic] disease which would have been overactive thyroid just prior to taking radioactive iodine would include feeling jitters, fatigue, eye protrusion, and dry skin. These are all medically acceptable symptoms for a person with overactive thyroid." Based on these statements, the Board resolves reasonable doubt in favor of the Veteran and finds that her Graves' disease had its onset in service. The Board acknowledges that the May 2021 VA opinion provided a negative statement (i.e., that it is "less likely than not (less than 50 percent probability)" that the claimed disability was "incurred in or caused by the claimed in-service injury, event, or illness."). However, this conclusion appears to contradict the rationale cited by the Board above. Accordingly, the Board resolves reasonable doubt in the Veteran's favor, and finds that the rationale supports a finding of service connection. The Board also acknowledges the VA opinions from September 2019. In the June 2020 remand, the Board addressed the shortcomings of one of these opinions and these findings are incorporated by reference. Regarding the other September 2019 VA opinion, this does not adequately address the Veteran's lay statements; accordingly, the Board affords it little probative weight. The September 2011 VA opinion provided a positive nexus; however, it appears that this opinion was based on a positive diagnosis in 1989, during her reserve service. Nevertheless, based on the statements in the May 2021 VA opinion, the Board resolves reasonable doubt in the Veteran's favor and finds that her current disability had its onset in service. Accordingly, service connection is warranted. The issue is granted. 3. Entitlement to service connection for hypothyroidism, claimed as thyroid condition. In addition, the Board finds that the Veteran meets the criteria for service connection for hypothyroidism on a secondary basis. First, the Veteran has a diagnosed disability. See VA examination report, May 2021. Second, per this decision, the Veteran is now service connected for Graves' disease. Third, according to the September 2011 VA examination report, which notes Graves' disease with radioactive ablation, the Veteran has hypothyroidism "due to treatment." Similarly, the September 2019 VA examination report states that the Veteran's Graves' disease was treated "with radioactive iodine with resultant hypothyroidism." As the Veteran's hypothyroidism is proximately due to the treatment for a service-connected disability, the Board finds that service connection on a secondary basis is warranted. 38 C.F.R. § 3.310. The issue is granted. REASONS FOR REMAND 1. Entitlement to service connection for a headache disability. The Board finds that additional development is needed prior to final adjudication of the remaining issue on appeal. First, the Board finds further clarification is needed regarding the Veteran's periods of active service. In the June 2020 remand, the Board asked for verification of all periods of the Veteran's active duty service, to include ACTDUTRA and INACTDUTRA. Specifically, the Board asked for documentation of all verified periods of service. The Board acknowledges the November 2021 Memorandum regarding "Misdirected Development," but seeks clarification. This Memorandum states, in part: RVSR should review the evidence in the formal documents provided by DFAS, VIS report, DPRIS, and personnel records in VBMS to verify the NEXUS whether any current disabilities and severity that is related to service is left up to the appropriate clinician and rater. It is unclear to the Board how this responds to its request to "verify all periods of active duty service, to include ACTDUTRA and INACTDUTRA." See BVA remand, June 2020 (Remand directive 1). In particular, the Board notes that its request did not pertain to a "nexus." Accordingly, the Board resubmits its request below. In addition, in July 2021, a VA Form 21-4142a was submitted indicating treatment by acupuncturist, C.A., to the present. The Board acknowledges a report of contact with this provider in August 2021, which states that the "the records are already available through the H.S. portal." A May 2021 VA treatment record shows authorization for evaluation and treatment for acupuncture and identifies provider, C.A. A July 2021 VA treatment record appears to indicate acupuncture treatment twice in June 2021 and in July 2021, and that a "C.C. consult has been completed. See scanned document for report." However, the Board does not see that this scanned report appears in the record. To the extent that there are records outstanding, the Board asks that they be associated with the claim file upon remand. Further, the Board finds that a new VA examination and opinion are needed regarding the Veteran's claimed headache disability. First, the Board finds that clarification is needed regarding the Veteran's diagnosis. The May 2021 VA examination report indicates a tension rather than migraine headache condition. However, a September 2021 VA treatment record indicates medication for migraine treatment (Imitrex). The Board acknowledges the May 2021 and June 2021 VA opinions, but it is not clear to the Board which headache disability they address. Even though the May 2021 VA examination report diagnosed a tension headache condition, the opinions do not reference tension headaches. The June 2021 VA opinions do, however, reference migraine headaches. Accordingly, upon remand, after clarification of the Veteran's disability, the Board requests new VA opinions that clearly identify the disabilities they address. The Board notes that the Veteran's representative has asked that secondary service connection be considered, to include whether her claimed headache disability is secondary to her service-connected disabilities, medication regimen, or both. See Correspondence, June 2018. The Board asks that these theories of entitlement be addressed by an examiner. The matter is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issue on appeal. In addition, in July 2021, a VA Form 21-4142a was submitted indicating treatment by acupuncturist, C.A., to the present. The Board acknowledges a report of contact with this provider in August 2021, which states that the "the records are already available through the H.S. portal." A May 2021 VA treatment record shows authorization for evaluation and treatment for acupuncture and identifies provider, C.A. A July 2021 VA treatment record appears to indicate acupuncture treatment twice in June 2021 and in July 2021, and that a "C.C. consult has been completed. See scanned document for report." However, the Board does not see that this scanned report appears in the record. To the extent that there are records outstanding, the Board asks that they be associated with the claim file upon remand. In addition to the above, the Board asks that all periods of active service, to include ACTDUTRA and INACTDUTRA, be verified. Any negative responses should be associated with the file. Specifically include documentation of all verified periods of service. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for a VA examination to clarify the diagnosis of the claimed headache disability and to address the etiology of any diagnosed disability(ies). For each disability diagnosed, the examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it is related to the Veteran's active duty service. The examiner is asked to specifically address the May 2021 VA examination report that indicates a tension rather than migraine headache condition; however, a September 2021 VA treatment record indicates medication for migraine treatment (Imitrex). In addition, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the claimed headache disability is due to or the result of or aggravated (defined as any increase in disability) by the Veteran's service-connected disabilities, medication regimen, or both. The VA examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. 3. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Foster, 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.