Citation Nr: 0002893 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 98-14 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for low thyroid with weight gain and fatigue (diagnosed as idiopathic hypothyroidism), claimed as due to undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The veteran served on active duty from June to July 1985, and from November 1990 to June 1991. This appeal arises from an August 1997 rating decision of the Department of Veterans Affairs (VA), North Little Rock, Arkansas, regional office (RO). FINDINGS OF FACT 1. The veteran's thyroid disorder, with weight gain and fatigue, is shown to be due to a known clinical diagnosis. 2. There is no competent evidence of record to establish the presence of idiopathic hypothyroidism during service or for several years following the veteran's separation from his most recent period of active duty. CONCLUSION OF LAW The claim for service connection for low thyroid with weight gain and fatigue due to undiagnosed illness is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION "[A] person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Cambino v. Gober, 10 Vet. App. 507 (1997); Anderson v. Brown, 9 Vet. App. 542. 545 (1996). A well grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a)]." Murphy v. Derwinski, 1 Vet. App. 79, 81 (1990). In Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992), the United States Court of Veterans Appeals (Court) held that a claim must be accompanied by supportive evidence and that such evidence "must 'justify a belief by a fair and impartial individual' that the claim is plausible." Establishing service connection under 38 U.S.C.A. § 1110 generally requires medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1996), aff'd per curiam 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir. 1997), cert. denied, 66 U.S.L.W. 3799 (June 22, 1998) (expressly adopting the definition of well-grounded claim set forth in Caluza, supra). Alternatively, the third Caluza element can be satisfied under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495 (1997). The Board notes that when an appellant presents a claim for VA benefits and provides sufficient support for the claim, VA has a duty to assist the appellant "in developing the facts pertinent to the claim." 38 U.S.C.A. § 5107(a); Allday v. Brown, 7 Vet. App. 517, 526 (1995); Littke v. Derwinski, 1 Vet. App. 90, 91-92 (1990); Murphy, 1 Vet. App. at 81-82. (once a claimant submits a plausible claim, i.e., one which is meritorious on its own or capable of substantiation, the Secretary is obligated to assist in the developing of facts pertinent to the claim); see also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). For service connection to be granted, it is required that the facts, as shown by the evidence, establish that a particular injury or disease resulting in chronic disability was incurred in service, or, if pre-existing service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Furthermore, with chronic disease shown as such in service 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. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, etc., in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, etc., first shown as a clear-cut clinical entity, at some later date. Idem. 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." Id. (emphasis added) Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id; See Savage v. Gober, 10 Vet. App. 488, 495 (1997). 38 C.F.R. § 3.317 provides for compensation for certain disabilities due to undiagnosed illnesses. Specifically: (a) (1) Except as provided in paragraph (c) of this section, VA shall pay compensation in accordance with chapter 11 of title 38, United States Code, to a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of this section, provided that such disability: (i) became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not (FR Update 11/02/94) later than December 31, 2001; and (ii) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. (2) For purposes of this section, "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. (3) For purposes of this section, disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6- month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. (4) A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. (5) A disability referred to in this section shall be considered service connected for purposes of all laws of the United States. (b) For the purposes of paragraph (a)(1) of this section, signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: (1) fatigue (2) signs or symptoms involving skin (3) headache (4) muscle pain (5) joint pain (6) neurologic signs or symptoms (7) neuropsychological signs or symptoms (8) signs or symptoms involving the respiratory system (upper or lower) (9) sleep disturbances (10) gastrointestinal signs or symptoms (11) cardiovascular signs or symptoms (12) abnormal weight loss (13) menstrual disorders. (c) Compensation shall not be paid under this section: (1) if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. (d) For purposes of this section: (1) the term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. (2) the Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. In addition, service connection may be awarded on a direct incurrence basis under 38 C.F.R. § 3.303(d) regardless of the availability of service connection under a presumption of service connection. See Combee v. Brown, 34 F3d 1039, 1043 (Fed. Cir. 1994). In adjudicating the appellant's claim for service connection for a disability due to undiagnosed illness, the Board has considered the guidance provided by the VA General Counsel in VAOPGCPREC 4-99, regarding the requirements for a well grounded claim under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. In this precedent opinion, the General Counsel concluded that the necessary elements of a claim for benefits under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 may be identified as follows: (1) proof of active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) proof of one of more signs or symptoms of undiagnosed illness; (3) proof of objective indications of chronic disability of 10 percent of more during the specified presumptive period; and (4) proof that the chronic disability is the result of undiagnosed illness. Applying this guidance to the case at hand, the Board concedes that the appellant served on active duty in the Southwest Asia theater of operations during the Persian Gulf War. The record documents that he had three months and 24 days of foreign service and that he served in Southwest Asia from January to May 1991. However, once beyond this initial consideration, the Board's attention turns to the medical nature of the claim at issue. In this regard, the Board finds that the claim for service connection for low thyroid with weight gain and fatigue is excluded by application of the regulation in light of the diagnoses, beginning in July 1994, of hypothyroidism. The VA examination in November 1995 showed idiopathic hypothyroidism, currently euthyroid with treatment. 38 C.F.R. § 3.317(a)(1)(ii) provides that the disability by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. The record provides no evidence of a thyroid disorder during service, or of any treatment for weight gain or fatigue until approximately three years after separation from the most recent period of active duty, such as to provide for consideration of the provisions for service connection on a direct incurrence basis. See e.g. Combee v. Brown, 34 F3d 1039, 1043 (Fed. Cir. 1994). The Board has carefully considered the appellant's statements and testimony with respect to his claim; however, through these statements alone, he cannot meet the burden imposed by section 5107(a) merely by presenting lay beliefs as to his current diagnosis and their relationship to service because his current diagnosis and their relationship to any causative factor or other disability are medical conclusions and lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, lay assertions of medical etiology or diagnosis cannot constitute evidence to render a claim well grounded under section 5107(a). Although where claims are not well grounded VA does not have a statutory duty to assist a claimant in developing facts pertinent to his claims, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the Department of Veterans Affairs has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). In this case, the appellant has not put VA on notice of the existence of any additional evidence that, if submitted, could make his claim well grounded. Accordingly, the Board concludes that VA did not fail to meet its obligations under 38 U.S.C.A. § 5103(a). ORDER The appeal is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals