BVA9505244 DOCKET NO. 89-15 751 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hypothyroidism on a non-radiation basis. 2. Entitlement to service connection for thyroid polyps. 3. Entitlement to service connection for nonmalignant thyroid nodular disease. REPRESENTATION Appellant represented by: Colorado Department of Social Services ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran served on active duty from July 1945 to October 1947 and from September 1950 to September 1951. This matter came to the Board of Veterans' Appeals (Board) on appeal from a November 1987 rating decision of the Department of Veterans Affairs (VA) Regional Office in Denver, Colorado. Review of the veteran's claims files shows that in a statement received at the RO in February 1994 the veteran indicated that he is attempting to reopen his claim of entitlement to service connection for skin cancer due to exposure to ionizing radiation. The issue of whether the veteran has submitted new and material evidence to reopen his claim is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has nonmalignant thyroid nodular disease caused by his exposure to ionizing radiation aboard the USS Bowditch which participated in Operation CROSSROADS. In addition, the veteran states that he is aware that under VA regulations thyroid polyps and hypothyroidism are not considered radiogenic diseases and argues that the diagnosis of these disorders shows that he has had a long-standing pattern of thyroid problems. He argues that he had symptoms of hypothyroidism during and immediately after service. He points out that the medical symptoms of hypothyroidism are excessive weight gain, anemia, chronic constipation with hemorrhoids and diverticulosis, all of which he has. He emphasizes that medical records show that during and after service he experienced excessive weight gain and attendant health problems. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has not been submitted to reopen the previously denied claim of entitlement to service connection for hypothyroidism on a non-radiation basis. It is the further decision of the Board that the veteran's claims for service connection for thyroid polyps and nonmalignant thyroid nodular disease are not well grounded. FINDINGS OF FACT 1. The Board denied service connection for hypothyroidism on a non-radiation basis in October 1983. 2. Evidence added to the record since that time includes that which is duplicative or cumulative of evidence previously of record; the new evidence added to the record is not sufficiently relevant and probative, when viewed in the context of the evidence previously of record, to establish a reasonable possibility of an outcome different from the prior denial of the claim. 3. The claim of entitlement to service connection for thyroid polyps is not plausible. 4. The claim of entitlement to service connection for nonmalignant thyroid nodular disease is not plausible. CONCLUSIONS OF LAW 1. Evidence received since the October 1983 Board decision denying entitlement to service connection for hypothyroidism on a non-radiation basis is not new and material, and the claim for service connection for hypothyroidism on a non-radiation basis is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). 2. The claim for service connection for thyroid polyps is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The claim for service connection for nonmalignant thyroid nodular disease is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In an October 1983 decision, the Board denied service connection for multiple disabilities including hypothyroidism on the basis that it was not incurred in service and was not due to radiation exposure in service. In a March 1991 decision the Board again denied service connection for hypothyroidism as a residual of radiation exposure. In his attempt to reopen the previously denied claim for service connection for hypothyroidism the veteran has argued that symptoms of hypothyroidism, particularly excessive weight gain were present in service and in the years shortly after service. In adjudicating this aspect of the veteran's claim, the issue is whether new and material evidence has been submitted to reopen the claim denied by the Board in its October 1993 decision. Evidence of record in October 1983 when the Board denied service connection for hypothyroidism on a non-radiation basis included the veteran's service medical records, private medical records showing the veteran was diagnosed as having bulbar polio in 1954, the report of a November 1954 VA examination, private outpatient records and hospital summaries dated in the 1960s and 1970s showing treatment for various disabilities. The record included a June 1970 letter from Herbert J. Smith, D.O., to the veteran. Dr. Smith stated that when last checked the veteran was anemic and had both hypothyroidism and a low back problem due to his polio. In addition, the record included copies of VA medical records dated in the early 1980s related to treatment and evaluation of multiple disabilities; hypothyroidism was not mentioned in any of those records. At the time of the October 1983 Board decision, the veteran's claims file also included information and correspondence concerning radiation dose estimates for participants in Operation CROSSROADS and the health effects of exposure to ionizing radiation. The veteran testified at a May 1983 hearing before the Board. The veteran's claim for service connection for hypothyroidism on a non-radiation basis, denied by the Board in October 1983, could be reopened if new and material evidence were presented. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence that is not merely cumulative of other evidence in the record at the time the claim was denied on the merits. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); see Glynn v. Brown, 6 Vet.App. 523, 528-29 (1994). Material evidence is sufficiently relevant and probative of the issue at hand to establish a reasonable possibility that the outcome would be different when the new evidence is considered in light of all the evidence. Id. Further, for the purpose of determining whether a claim should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet.App. 510, 513 (1992). Evidence added to the record since the October 1983 Board decision includes copies of some of the veteran's service medical records which are duplicates of evidence already in the file. Also, duplicates of nearly all of the postservice medical records on file in October 1983 have been added to the record. Duplicates of documents previously of record are clearly not new. Additional copies of Dr. Smith's June 1970 letter have been added to the record, and likewise are not new. A form not of record in October 1983 is Physician's Statement in Connection with Application for Total Disability Retirement for the Civil Service Retirement System, completed by Dr. Smith and dated in June 1970. On that form Dr. Smith reported diagnoses including anemia and severe hypothyroidism; he stated he had last seen the veteran in May 1969. This information is cumulative of that reported by Dr. Smith in his June 1970 letter and adds nothing new to the record. In addition to duplicates of medical reports and reports related to radiation dose estimates, the veteran has submitted numerous medical reports and records that do not mention the thyroid or hypothyroidism. He has also submitted additional documents concerning radiation dose estimates and the relationship between radiation exposure and certain disabilities. Although new, none of this evidence is relevant to the issue at hand as it neither shows that the veteran has hypothyroidism nor does it relate any hypothyroidism to the veteran's service. Other evidence added to the record includes the report of an April 1982 VA Nuclear Test Personnel Review examination. Under past medical history, it was reported that the veteran said he had hypothyroidism and that it was related to radiation exposure. The examiner reported that the thyroid was palpated and found to be without nodules and was negative for nodes. The report of thyroid history and physical examination, performed by a VA nuclear medicine physician approximately a week later, shows that under "Symptoms" the veteran reported heat intolerance, excess sweating and chronic constipation. Under "Signs" the physician reported all signs were negative, and the veteran's heart rate was 82. Under "Palpation" the physician reported that thyroid consistency, mobility and size were normal; there was no tenderness, and there were no thyroid nodules. The impression following an April 1982 VA I-131 Uptake and Thyroid Study was normal uptake and normal thyroid images. A May 1982 VA outpatient progress note, also added to the record, shows that the veteran was seen for followup of nuclear testing and was advised that all test reports were normal. In a February 1985 letter, Carl J. Johnson, M.D., M.PH., reviewed the veteran's service assignments and potential exposure to ionizing radiation during and after Operation CROSSROADS. In recounting the veteran's medical history Dr. Johnson made the statement "He experienced a very rapid gain of weight from 150 pounds to 228 pounds in nine years (1947-1956), and on one occasion was diagnosed as having hypothyroidism." He then discussed chromosome studies which the veteran had had and in his final paragraph stated that he believed that various conditions including hypothyroidism were related to the veteran's exposure to ionizing radiation while a crew member on the USS Bowditch as part of Operation CROSSROADS and afterwards. The veteran has argued excessive weight gain during and following service was indicative of the presence of hypothyroidism in service. The veteran in effect argues that this medical conclusion is supported by Dr. Johnson's February 1985 letter. Also added to the record was a January 1989 VA outpatient progress note where, on examination of the neck, the physician noted the neck was supple with increased thyroid; it was also noted that the examination was negative for cervical nodes. Diagnoses related to the complete examination were hypertension, asthma and chronic sinusitis. A July 1990 VA history and physical examination report, related to hospital admission for coronary bypass surgery, shows that when reporting his past medical history the veteran said he had thyroid nodules present. Examination of the head, eyes, ears, nose and throat was negative for nodes. Medical history reported on the nursing perioperative assessment and care plan included thyroid nodule. The veteran has also submitted a May 1991 memorandum from a VA physician in which the physician stated that in reviewing the veteran's past medical records it was noted that he had been diagnosed with thyroid nodular disease. The physician further stated that considering the veteran's course, this diagnosis was very likely thyroid nodular disease, nonmalignant. In a January 1994 memorandum from a VA Clinic Director, C&P Unit, to a staff endocrinologist, the Clinic Director stated that the May 1991 memorandum was from the VA physician who was the veteran's primary care provider. The Clinic Director reported that he had spoken with the physician regarding the memorandum, and the physician related that he was not treating or actively following the veteran for any thyroid problems. He stated that as best he could currently remember, he believed the veteran had him review some outside studies related to thyroid nodules. The Clinic Director reported that in any case he, the Clinic Director, could find no recent medical evidence showing the veteran had thyroid nodules. He further stated that the only scan the veteran had had at that medical center was normal, as was his examination, in 1982. In a February 1994 memorandum to the VA Clinic Director, the VA staff endocrinologist, who is also an associate professor at the University of Colorado Health Sciences Center, stated that she had been asked to see the veteran concerning whether he has thyroid disease, "hypothyroidism," or thyroid nodular disease. The physician noted that the veteran had copies of old records, Dr. Smith's 1970 letter and the VA physician's May 1991 memorandum, suggesting these diagnoses. The endocrinologist stated that physical examination was significant for a normal size thyroid without nodules or bruits. The veteran had no vitiligo; eyebrows and reflexes were normal. Thyroid function test results were within normal ranges, and thyroid antibodies were negative. The physician stated that these studies excluded hypothyroidism or tendency to Hashimoto's thyroiditis. She concluded that the clinical examination and laboratory data excluded any thyroid disease in the veteran. The VA medical reports and memoranda just described, that is those dated in 1982, 1989, 1990, 1991 and 1994, are new in that none was off record in October 1983 and they include information and statements not previously of record. Although arguably relevant and probative of the issue of service connection for hypothyroidism on a non-radiation basis, in that they include some mention of thyroid disability including hypothyroidism, albeit by history reported by the veteran, they cannot be regarded as material to reopen the claim. This is so because when viewed in the context of all the evidence, both new and old, there is no reasonable possibility that the new evidence would change the outcome of the October 1983 Board decision. The new evidence, particularly the results of the April 1982 and February 1994 VA examinations, tends to defeat rather than support the veteran's claim, specifically finding that the veteran's thyroid was normal. The January 1989 notation of increased thyroid size is not of sufficient probative value to raise a reasonable possibility of changing the outcome because it includes no diagnosis of thyroid disability, particularly hypothyroidism, and in no way relates any thyroid disability, particularly hypothyroidism, to service or the first post-service year. See 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). The veteran in effect argues that by mentioning his weight gain and later diagnosis of hypothyroidism in the same sentence Dr. Johnson's letter supports his own conclusion that weight gain shows the presence of hypothyroidism in service. That conclusion, drawn by the veteran, employs an inference requiring medical knowledge, and lay persons are not competent to offer medical opinions. See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Dr. Johnson's statement in and of itself, though new, is not material to reopen the claim because, though it does mention the veteran's weight gain and later diagnosis of hypothyroidism in the same sentence, it does not state the relationship, if any, between the two, and is therefore not sufficiently probative of the issue of whether hypothyroidism was present in service, in the first postservice year, or related to service to raise a reasonable possibility of changing the previous outcome particularly in light of later evidence, such as diagnostic studies excluding the presence of hypothyroidism. Having determined that new and material evidence has not been submitted to reopen the claim for service connection for hypothyroidism on a non-radiation basis, the remaining issues before the Board are entitlement to service connection for thyroid polyps and entitlement to service connection for nonmalignant thyroid nodular disease. With respect to these issues, the threshold question to be answered is whether the veteran has presented evidence of well-grounded claims, that is, claims which are plausible and meritorious on their own or capable of substantiation. If not, his appeal on these claims must fail 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). The United States Court of Veterans Appeals (Court) has stated repeatedly that 38 U.S.C.A. § 5107(a) unequivocally places an initial burden on a claimant to produce evidence that his claim is well grounded. See Grivois v. Brown, 6 Vet.App. 136 (1994); Grottveit v. Brown, 5 Vet.App. 91, 92 (1993); Tirpak v. Derwinski, 2 Vet.App. 609, 610-11 (1992). The Court has stated that the quality and quantity of evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit at 92-93. Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Id. Further, in order for a claim to be considered plausible, and therefore well grounded, there must be evidence of both a current disability and evidence of relationship between that disability and an injury or disease incurred in service or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992); Cuevas v. Principi, 3 Vet.App. 542, 548 (1992). With respect to the issue of entitlement to service connection for thyroid polyps, there is no current evidence, or any evidence, of thyroid polyps other than the veteran's statements that he was diagnosed as having thyroid polyps at the VA Nuclear Test Personnel Review examination in 1982. Review of the report of that examination, outlined earlier, shows that no thyroid abnormalities were found on clinical examination, and the impression following an I-131 Uptake and Thyroid Study was normal uptake and normal thyroid images. Further, at the February 1994 VA examination, the endocrinologist specifically stated that the clinical examination and laboratory data excluded any thyroid disease in the veteran. In the absence of medical evidence of thyroid polyps, that aspect of the claim is not plausible. The evidence does show that on several occasions the veteran gave a history of thyroid nodules, and in a May 1991 memorandum the veteran's VA primary care physician stated that in reviewing the veteran's past medical records it was noted that he had been diagnosed with thyroid nodular disease. The physician further stated that considering the veteran's course, this diagnosis was very likely thyroid nodular disease, nonmalignant. Viewed alone, this memorandum might be sufficient to make the veteran's claim well-grounded. However, in January 1994 a VA Clinic Director reported that he had spoken with the VA physician who wrote the memorandum, and the primary care physician reported that he was not treating or following the veteran for any thyroid problems. Further, the VA Clinic Director reported that his review of the record revealed no recent evidence showing the veteran had thyroid nodules. Finally, and most importantly, at a February 1994 VA examination, the physician stated that the physical examination was significant for a normal size thyroid without nodules or bruits and that laboratory studies excluded any thyroid disease in the veteran. Thus, in the absence of evidence that the veteran currently has nonmalignant thyroid nodular disease, the claim for service connection for that disability is not plausible, and therefore is not well grounded. Because the claims for service connection for thyroid polyps and nonmalignant thyroid nodular disease are not well grounded, the veteran cannot invoke VA's duty to assist in the development of the claims. See 38 U.S.C.A. § 5107(a); Grottveit, 5 Vet.App. at 93; Rabideau, 2 Vet.App. at 144. The Board acknowledges that unlike the RO, which decided both these claims on the merits and with consideration of 38 C.F.R. § 3.311b [now 38 C.F.R. § 3.311 (1994)] as directed by the Board in its March 1991 remand, the Board has decided these claims not on the merits but on the basis of whether they are well grounded. However, the veteran has not been prejudiced by the Board's decisions. This is because in assuming that the claims were well grounded, the RO accorded the veteran greater consideration that the claims in fact warranted under the circumstances. Bernard v. Brown, 4 Vet.App. 384, 392- 94 (1993). To remand this case to the RO for consideration of the issue of whether the veteran's claims are well grounded would be pointless and, in light of the law cited above, would not result in a determination favorable to the veteran. VA O.G.C. Prec. Op. 16-92, 57 Fed. Reg. 49,747 (1992). ORDER New and material evidence not having been submitted, the veteran's claim of entitlement to service connection for hypothyroidism on a non-radiation basis is not reopened. Evidence of a well-grounded claim not having been submitted, the claim for service connection for thyroid polyps is dismissed. Evidence of a well-grounded claim not having been submitted, the claim for service connection for nonmalignant thyroid nodular disease is dismissed. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.