Citation Nr: 0718087 Decision Date: 06/15/07 Archive Date: 06/26/07 DOCKET NO. 05-10 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for hypothyroidism. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. B. Weiss, Counsel INTRODUCTION The veteran served on active duty from June 1994 to October 2002. This matter comes to the Board of Veterans' Appeals on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, that denied the issue on appeal. FINDINGS OF FACT 1. All reasonable development and notification necessary for the disposition of the issue adjudicated by this decision has been completed. 2. The evidence pertinent to the relationship between the veteran's current hypothyroidism and service is in equipoise. CONCLUSION OF LAW The veteran's hypothyroidism was incurred in the veteran's active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations set forth certain notice and assistance provisions. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). After reviewing the claims folder, the Board finds that the appellant has been notified of the applicable laws and regulations which set forth the criteria for entitlement to VA benefits. Specifically, the discussion in a June 2004 VCAA letter issued prior to the rating decision on appeal informed the appellant of the information and evidence necessary to warrant entitlement to the benefit sought. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). All reasonable development and notification necessary for the disposition of the issue adjudicated by this decision has been completed. Under the circumstances of this particular case, no further action is necessary to assist the appellant. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). A disorder will be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumption period, and that the veteran still has the same disorder. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). A determination as to whether medical evidence is needed to demonstrate that a veteran presently has the same condition he or she had in service or during a presumption period, or whether lay evidence will suffice, depends on the nature of the veteran's present condition (e.g., whether the veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). If the disorder is not chronic, it will still be service connected if the disorder is observed in service or an applicable presumptive period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present disorder to that symptomatology. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Again, whether medical evidence or lay evidence is sufficient to relate the current disorder to the in-service symptomatology depends on the nature of the disorder in question. Savage, 10 Vet. App. at 497. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this case, service medical records show, in pertinent part, that in May 2002, a TSH (thyroid stimulating hormone) sensitive laboratory study was ordered for the veteran, but no results of that study are on file. In July 2002, the veteran gave a history of having no thyroid trouble. Examination at that time revealed an evaluation of a normal endocrine system. The veteran filed a predischarge claim which did not include a claim regarding his thyroid. VA examination in conjunction with that claim showed that TSH was high on laboratory study in July 2002. The thyroid was not enlarged. VA laboratory studies conducted in December 2003 showed that TSH was again high. A VA progress note dated in December 2003 showed that the veteran was started on Synthroid and that repeat thyroid studies were to be conducted in 8-10 weeks. In a statement dated in February 2002, the veteran stated that he had elevated bloodwork for hypothyroidism and was on medication for that condition. He added that he had a history of a goiter but it went away. A VA Comprehensive Provider examination in April 2004 revealed the veteran's history of having developed hypothyroidism since May 2003 and being on Synthroid. Impressions at that time included an impression of hypothyroidism. It was noted that lab results were pending, and that the veteran did not want to make the drive to the Ann Arbor VA facility, so he would seek private endocrinological consultation locally and have the consultation sent to the VA. A VA respiratory disease examination in June 2004 resulted in part in a comment by the examiner that the veteran's tiredness at the end of the workday may be a consequence of his hypothyroidism, under treatment. It was noted that current treatment might be inadequate, and that TSH in April 2004 had been elevated, indicating persistent mild hypothyroidism. As noted, service connection for hypothyroidism was denied by a rating decision in September 2004. The Board has considered all of the evidence for and against the claim. As evidence in favor of the claim, the first evidence of elevated TSH was shown during service in July 2002, in conjunction with the veteran's claim at discharge. While no diagnosis as such was rendered at that time, this laboratory finding was repeated in December 2003. At that time, the veteran started to receive treatment. Continued symptomatology and treatment was shown by the VA examinations in April and June 2004, respectively. See 38 C.F.R. § 3.303(b), (d); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). As evidence against the claim, the Board notes that according to his own history given in April 2004, the veteran developed hypothyroidism sometime since May 2003. Secondly, no current disability, in the sense of impairment of earning capacity, is shown to result from the diagnosed hypothyroidism. See Brammer v. Derwinski, supra. And, the veteran has not provided the VA with records of his private treatment or the release necessary for the VA to obtain records of that treatment, as the RO requested in a letter to the veteran dated in June 2004. However, having taken into account all of these facts and circumstances, especially considering that the veteran requires treatment for his hypothyroidism, the Board finds that the evidence is evenly balanced. Where all of the evidence for and against the claim is evenly balanced, the evidence is in equipoise and the claim must be granted. 38 U.S.C.A. § 5107. ORDER Service connection is granted for hypothyroidism. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs