Citation Nr: 22044845 Decision Date: 08/08/22 Archive Date: 08/08/22 DOCKET NO. 17-12 119 DATE: August 8, 2022 ORDER New and material evidence having been received, the appeal to reopen a claim for entitlement to service connection for hypothyroidism/Hashimoto's thyroiditis is granted. Entitlement to service connection for hypothyroidism/Hashimoto's thyroiditis is denied. FINDINGS OF FACT 1. A March 1970 rating decision denied the issues of entitlement to service connection for a thyroid condition; the Veteran did not appeal the decision and no new and material evidence was associated with the claims file within a year of notification of the decision. 2. Evidence received since the March 1970 rating decision that denied service connection for a thyroid condition relates to an unestablished fact and raises a reasonable possibility of substantiating the claim. 3. The most probative evidence of record does not establish the Veteran's hypothyroidism/Hashimoto's thyroiditis is etiologically related to his active duty service. CONCLUSIONS OF LAW 1. A March 1970 rating decision, which denied service connection for a thyroid condition, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The criteria to reopen the previously denied claim of entitlement to service connection for a thyroid condition have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 20.1105. 3. The criteria for entitlement to service connection for hypothyroidism/Hashimoto's thyroiditis have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to October 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at an October 2021 Board hearing. A transcript of the hearing is of record. At the October 2021 hearing, the undersigned Veterans Law Judge granted the Veteran a 90-day extension of time to submit additional evidence. The 90-day extension has expired and additional evidence was received. As such, the Board will proceed with adjudication of the pending claims. The Board acknowledges that additional VA treatment records have been associated with the claims file since the RO issued a February 2017 Statement of the Case; however, a waiver is not necessary, nor is a remand for initial consideration of the evidence by the RO, as the additional VA treatment records are cumulative and/or duplicative of the prior evidence of record. See 38 C.F.R. § 20.1304(c). Additionally, the Veteran, through his representative, waived RO review at the October 2021 hearing. Finally, a waiver of RO review is not required for new pertinent evidence that is submitted by the appellant or representative. New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Kightly v. Brown, 6 Vet. App. 200, 204 (1994). The Board is under a statutory obligation to conduct a de novo review of a new and material issue. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The requirement for the submission of new and material evidence is a jurisdictional prerequisite for a claimant to obtain review of a previously denied and final decision. 38 U.S.C. §§ 5108, 7404(b). New evidence is existing evidence not previously received by agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Even where the RO determines that new and material evidence has not been received to reopen a claim, or that an entirely new claim has been received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. See Jackson, 265 F.3d at 1370. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, the law should be interpreted to enable reopening of a claim, rather than to preclude it. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a thyroid disability. By way of background, the Veteran initially sought service connection for a thyroid condition in November 1969. See November 1969 VA Form 21-526. In a March 1970 rating decision, the RO denied the Veteran's claim to entitlement to service connection for a thyroid condition based on a finding that the Veteran did not have a diagnosis of a thyroid disability at that time. The Veteran did not file a notice of disagreement and no new and material evidence was received within in a year of notification of the decision. Therefore, the March 1970 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103; see Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). In October 2012, the Veteran submitted a claim for entitlement to service connection for Hashimoto's disease. Relevant evidence associated with the claims file since the March 1970 rating decision includes a March 2013 VA examination, the Veteran's lay statements, including October 2021 hearing testimony, and an October 2021 private medical opinion. Specifically, the March 2013 VA examiner noted the Veteran was diagnosed with hypothyroidism and Hashimoto's thyroiditis in 2008. See March 2013 VA examination. The Board finds the March 2013 VA examination new and material as it relates to an unestablished fact, evidence of a current diagnosis, necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). Accordingly, the Board finds new and material evidence has been received to reopen the Veteran's claim to entitlement to service connection for a thyroid condition. Entitlement to service connection for hypothyroidism/Hashimoto's thyroiditis. The Veteran seeks service connection for a thyroid disability, initially claimed as Hashimoto's disease. See October 2012 VA Form 21-526. Specifically, the Veteran testified that he had an unusually hard thyroid before his separation from service. See October 2021 hearing transcript. The Veteran also testified that he had been smoking for many years and that there was a correlation between cigarette smoking and thyroid disease. Id. Generally, 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; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct-incurrence basis for a disability, there must be (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). As an initial matter, the Board notes that direct service connection may be granted only when a disability or cause of death was incurred or aggravated in the line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. See 38 U.S.C. § 501; 38 C.F.R. § 3.301. Secondary service connection may be found for drug and alcohol abuse if such abuse is found to be secondary to a service-connected disability. Compensation may be awarded only "where there is clear medical evidence establishing that alcohol or drug abuse is caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." See Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). In this case, a secondary service connection finding for the Veteran's thyroid disabilities would not be warranted as the Veteran is not service connected for a disorder that is related to his cigarette use. Additionally, the Veteran testified that he began smoking prior to service and does not contend that he has a service-connected disability related to his cigarette use. See October 2021 hearing transcript. Moreover, the Veteran, nor his representative, provide any clear medical evidence demonstrating the Veteran's cigarette use was caused by a service-connected disability and not due to willful wrongdoing. With regard to the first element of service connection, a current disability, the evidence of record demonstrates the Veteran is diagnosed with hypothyroidism and Hashimoto's thyroiditis. See May 2008 and March 2009 VA treatment records; March 2013 VA examination. As such, the Board finds the first element of service connection has been met. Shedden, 381 F.3d at 1167. With regard to the second element of service connection, the Veteran's service treatment records (STRs) demonstrate the Veteran was noted to have a normal sized thyroid but that it had a very firm consistency at the time of his separation. See October 1969 STRs. The Veteran had a radioisotope consultation that confirmed the Veteran had a normal sized thyroid and determined the Veteran did not have any symptoms of thyroid disease; radioactive iodine uptake in 24 hours was within normal limits; the thyroid scan revealed a normal appearing gland; there were no discernable thyroid abnormalities; and no significant disability at the time of separation from service. Id. The Board notes the consultant indicated the Veteran's condition probably existed prior to military and was residual of previous thyroiditis; however, the evidence of record does not demonstrate the Veteran had any previous conditions related to his thyroid prior to entering active duty; there were no defects noted on his August 1965 enlistment examination; and the Veteran testified that he did not have any issues with his thyroid prior to service. See August 1965 STRs; October 2021 hearing transcript. Therefore, the Veteran is presumed to have been in sound condition at the time of his enlistment to active duty service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). As such, the remaining question before the Board is whether the Veteran's hypothyroidism/Hashimoto's thyroiditis is at least as likely as not etiologically related to his active duty service. The Veteran was afforded a VA examination in March 2013. The VA examiner noted the Veteran was found to have a firm thyroid gland on physical examination at the time of separation from the military. See March 2013 VA examination. As noted, the VA examiner determined the Veteran was diagnosed with Hashimoto's thyroiditis and hypothyroidism in 2008. Id. The VA examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Id. As rationale, the VA examiner noted the Veteran had a normal thyroid scan and normal radioactive iodine uptake scan at the time of separation from service and was not diagnosed with a thyroid condition. Id. The VA examiner noted the Veteran was diagnosed with Hashimoto's thyroiditis 40 years later and there was no evidence of a chronic thyroid condition in the 40 years since separation from the military. Id. The Veteran also submitted an October 2021 private medical opinion. The private physician opined that the Veteran's hypothyroidism/Hashimoto's disease were not caused by, or the result of the firm thyroid found on the Veteran's separation examination. Id. The private physician noted the Veteran was found to have a normal thyroid, no disease by radioactive iodine uptake, and there were no thyroid abnormalities at separation. Id. The Board acknowledges the Veteran is competent to identify readily observable symptomology and to describe experiencing such symptomology since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, to the extent that the Veteran asserts that his current thyroid disabilities are related to his active service, the Board notes that he has not been shown to have the medical training necessary to be deemed competent to provide an opinion as to the etiology of his thyroid disabilities, including hypothyroidism and Hashimoto's disease. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). This is because the etiology of his thyroid disabilities are a complex medical matter requiring specialized medical training. Id. Consequently, the Board gives more probative weight to the opinions of the March 2013 VA examiner and October 2021 private physician than to the Veteran's statements. See Nieves-Rodriguez, 22 Vet. App. at 302. Additionally, neither the Veteran, nor his representative, have provided any other evidence that the Veteran's thyroid disabilities are due to, or the result of, his active duty service. None of the Veteran's VA or private treatment records demonstrate the Veteran's thyroid disabilities are etiologically related to his active duty service. Moreover, there is no competent evidence to the contrary. Therefore, the most competent and probative evidence of record demonstrates that the Veteran's thyroid disabilities were not caused by, or otherwise etiologically related to his active duty service. For these reasons, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for the Veteran's thyroid disabilities is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (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). Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Carlin 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.