12-15 697
12-15 697
| Board of Vet. App. | May 31, 2017Background
- Veteran served on active duty Aug 1968–May 1969 and filed for service connection for "thyroid" in Jan 2010. RO denied the claim in Jan 2011; Veteran submitted a Dec 2011 statement treated as an NOD.
- VA examinations in Feb 2012 and Sept 2016 evaluated the Veteran's thyroid conditions; diagnoses noted include hyperthyroidism, hypothyroidism, and Hashimoto's thyroiditis. Examiners did not consider possible SSA records when rendering opinions.
- Veteran is service‑connected only for a psychiatric disorder (previously characterized as generalized anxiety disorder with PTSD); he has alleged thyroid, OSA, and diabetes may be secondary to that psychiatric condition.
- Records indicate Veteran had SSA/SSI/SSDI contacts (SSI terminated May 2011; SSDI disallowed pre‑Sep 2013); SSA records were not obtained or considered by the RO in adjudicating the thyroid claim.
- Veteran also submitted a Feb 2015 substantive appeal (construed as NOD) for obstructive sleep apnea and diabetes from a Mar 2014 denial; because it was filed before the new NOD form requirement, the Board found it timely.
- The Board remanded: (1) obtain all SSA/SSI/SSDI records; (2) obtain an addendum VA opinion addressing etiology and secondary/aggravation theories for all thyroid diagnoses, with review of the medical record including SSA records; (3) issue SOC for OSA and diabetes and complete development before return to the Board.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for thyroid disorder (hyperthyroidism, hypothyroidism, Hashimoto's) — primary and secondary to PTSD | Thyroid conditions are related to service and/or caused or aggravated by service‑connected PTSD; private opinions and symptom history support link | RO denied; VA examiners did not find sufficient nexus and did not consider SSA records | Remanded for VA to obtain SSA records and obtain an adequate addendum VA opinion addressing all thyroid diagnoses, service nexus, secondary causation, and aggravation with full rationale |
| Service connection for obstructive sleep apnea (OSA) | OSA is service‑connected or secondary to PTSD; representative filed timely substantive appeal | RO denied in Mar 2014; VA requests SOC and further development | Remanded for AOJ to issue SOC and complete development; appeal preserved if perfected |
| Service connection for diabetes mellitus | Diabetes is service‑connected or secondary to PTSD | RO denied in Mar 2014; VA requests SOC and further development | Remanded for AOJ to issue SOC and complete development; appeal preserved if perfected |
| Duty to obtain SSA records and adequate exam opinions | VA must obtain potentially relevant SSA records and ensure exams consider them; current exams are inadequate | VA had not obtained SSA records or ensured examiners reviewed them | Remanded: VA must obtain SSA records or document unavailability and secure an addendum opinion that reviews the record, addresses all theories, and explains conclusions |
Key Cases Cited
- Browkowski v. Shinseki, 23 Vet. App. 79 (2009) (scope of claim may be satisfied by referring to a body part or symptoms)
- Clemons v. Shinseki, 23 Vet. App. 1 (2009) (scope of a claim principles)
- Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA duty to obtain SSA records when factual notice and relevance exist)
- Baker v. West, 11 Vet. App. 163 (1998) (relevance standard for obtaining non‑VA records)
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA obligation to ensure adequacy of medical examinations it obtains)
- Manlincon v. West, 12 Vet. App. 238 (1999) (requirements when NOD places issues in appellate status requiring SOC)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (right to submit additional evidence/argument after remand)