Citation Nr: 0306140 Decision Date: 03/31/03 Archive Date: 04/08/03 DOCKET NO. 95-09 439 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a rating in excess of 10 percent for a thyroid disorder from January 20, 1994. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher J. Gearin, Counsel INTRODUCTION The veteran has verified active military service extending from July 1959 to July 1961, July 1975 to July 1979, and from May 1985 to April 1993. His active service includes several periods of active duty for training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1994 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In May 1997, a hearing was held before Bettina S. Callaway, who is making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). In May 1999, the Board denied the veteran's claim for an initial compensable rating for a thyroid disorder, prior to January 20, 1994. In the same action, the Board remanded the issue listed on the title page of this decision for additional development, which has now returned for appellate decision. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable decision of the veteran's appeal has been obtained by the RO. 2. Subjective complaints include fatigue, lethargy, and cold intolerance. 3. The veteran has required continuous medication for a thyroid disorder but he has remained euthyroid throughout the initial evaluation period with no significant symptoms due to his thyroid disorder. CONCLUSION OF LAW The schedular criteria for a rating greater than 10 percent for a thyroid disorder have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.119, Diagnostic Codes 7900, 7903 (1995); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Codes 7900, 7903 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 As an initial matter, it is observed that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA or filed before the date of enactment and not yet final as of that date. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); see Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991); cf. Dyment v. Principi, 287 F.3d. 1377 (Fed. Cir. 2002) (holding that only section 4 of the VCAA, amending 38 U.S.C. § 5107, was intended to have retroactive effect). The final rule implementing the VCAA was published on August 29, 2001. 66 Fed. Reg. 45,620, et seq. (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). These regulations, likewise, apply to any claim for benefits received by VA on or after November 9, 2000, as well as to any claim filed before that date but not decided by the VA as of that date, with the exception of certain provisions relating to attempts to reopen claims, not pertinent here. In this case, the Board considers that VA's duties under the VCAA have been fulfilled to the extent possible. Among other things, the VCAA provides that VA must notify the veteran of evidence and information necessary to substantiate his claim and inform him whether he or VA bears the burden of producing or obtaining that evidence or information. 38 U.S.C.A. § 5103(a) (West 2002); 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.159(b)); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this regard, the veteran was notified of the information necessary to substantiate his claim, by means of the discussions in the May 1999 Board Remand, a letter sent to the veteran in March 2001, and the January 2003 supplemental statement of the case, which specifically addressed the contents of the VCAA in the context of the veteran's claim. The RO explained its decision with respect to the issue, and invited the veteran to identify records that could be obtained to support his claim. Under these circumstances, VA has no outstanding duty to inform the veteran that any additional information or evidence is needed. Further, it is observed that VA attempted to inform the veteran of the information and evidence he was to provide to VA and the information and evidence VA would attempt to obtain on his behalf. In the letter dated in March 2001 and the January 2003 supplemental statement of the case, the RO asked the veteran to identify records relevant to his claim. The March 2001 letter and the January 2003 supplemental statement of the case explicitly set out the various provisions of the VCAA, including what records VA would obtain, and what was the responsibility of the veteran. The VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 66 Fed. Reg. 45,620, 45,630-31 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.159(c), (d)). Here, the RO obtained the records of the veteran's treatment at VA. The veteran was also examined for VA purposes in connection with this claim, and pertinent medical opinions were obtained addressing the specific question at issue in this appeal. There appears to be no other development left to accomplish, and under the foregoing circumstances, the Board considers the requirements of the VCAA to have been met. II. Factual background On January 20, 1994, a therapy dose of radioactive iodine was administered orally. On January 28, 1994, an examiner diagnosed hyperthyroidism and concluded that elevation of blood sugar was probably due to hyperthyroidism. VA outpatient treatment reports show that the veteran complained of easy fatigability and increased nervousness in February 1994. It was also noted that the veteran appeared euthymic. An April 1994 record shows treatment for hypertension and hyperthyroidism. His pulse was 76. In May, a notation shows that he was currently being prescribed T4 for thyroid disease, which he had started in April. He complained of feeling sluggish and gaining 40 pounds since January. He had no constipation and no temperature intolerance. His medication was increased and the notation was made that the veteran was "clinically quite hypothyroid." In July, his weight had stabilized but he still felt tired although with some increased energy. He was still noted to be hypothyroid and his Synthroid dose was increased. In November record notes that the veteran developed hypothyroidism after radioactive iodine treatment for his Grave's disease in January 1994. In March 1995, the veteran's pulse was 104. In April it was 104 and 98. In May, he was noted to be doing fine "with no symptoms of hypo or hyperthyroidism." His pulse was 98. Later that month, he complained of fatigue. In June he was tested at a sleep clinic and found to have borderline sleep apnea. In October 1995, the veteran reported that he was doing well, although he stated that he would like to have more energy. He was assessed as clinically euthyroid. Later in October he complained of feeling "rundown" stating that he was sleepy during the day. Otherwise he was stable. In December his hypertension was stable, on medication, and he was continuing with thyroid medication. His pulse was 87. In January 1996, the veteran underwent surgery to remove the uvula to treat obstructive sleep apnea. In March, records show that he was currently on thyroid replacement medication. He complained of feeling sluggish. This thyroid medication was increased and his pulse was 91. In July, he continued to complain of being tired. In August 1996, his pulse was 98. In September, records show treatment for hypothyroidism and hypertension. His pulse was 89 and he complained of being forgetful. In October 1996, he was still complaining of feeling sluggish, the assessment was euthyroid on Synthroid and his medication was reduced. In November 1996, he was assessed with questionable dementia. In February 1997, a progress note shows that the veteran was on thyroid replacement medication and had no specific complaints. His appetite and weight had increased. His thyroid was slightly palpable. He was assessed as clinically euthyroid, but his thyroid stimulating hormone (TSH) remained low despite a decrease in his dose of Synthroid since his last visit. He still complained of fatigue and his Synthroid was decreased. His pulse was 93. In May 1997, he noticed no change in his symptoms since his dose was decreased in February 1997. His energy was still decreased, weight unchanged, and his appetite good. He slept good and denied heat or cold intolerance, tremor, diaphoreses, or bowel irregularity. On physical examination, tremor was positive, his thyroid was not palpable and his pulse was 84 and regular, down from 93 just before the examination. The examiner noted that clinically he appeared mildly hypothyroid but the laboratory results were "OK." In July, the veteran continued to have sleep apnea syndrome. In December 1997, he complained that he was feeling "run down." He denied insomnia, heat intolerance, weight loss, bowel changes or appetite changes. His pulse was 83. The veteran testified before the undersigned in May 1997 at the RO. The veteran complained of fatigue and tremors. He essentially maintained that a rating in excess of 10 percent was warranted for his thyroid disorder. In February 1998, the veteran's pulse was 101 while being treated for trauma to the elbow. In March, a progress note shows no complaints, no constipation, palpitations, coronary pain, or shortness of breath. His fatigue had improved and he had no heat or cold intolerance. He continued on Synthroid medication and his pulse was 91. According to a June 2000 VA examination report, the examiner reviewed the veteran's claims files. The examiner noted by history that the veteran's thyroid disorder began in November 1993 when the veteran was examined at discharge. The veteran was found to have hyperthyroidism. A radionuclide scan of the thyroid indicated an elevated 24-hour radial uptake; iodine intake was elevated to 37 percent. At that time, the veteran reported that his symptoms were asymptomatic. In January 1994, a nuclear medicine thyroid ablation with radioactive iodine was performed. Subsequently, the VA endocrine unit treated the veteran for adjustment of his thyroid supplementation. Since then, the veteran had been treated with thyroid replacement hormone. The veteran reported that VA had had difficulty regulated his thyroid hormone. As a result, he would wake up in the morning feeling tired. He taught psychology and management at a local college. During the day, he would feel low energy and tired. He denied any loss of memory, chest pain, nausea, and vomiting; although he did complain of cold intolerance. His weight had been stable, although he described a difficulty losing weight. He denied any symptoms secondary to pressure, dysphasia or change. No difficulty swallowing, nausea, or vomiting. His treatment included radioactive iodine in 194 times one and also he had received Synthroid supplementation as mentioned before that time. The examiner reviewed the veteran's medication profile. The profile included Levothyroxin .2 milligrams per day, Beclomethasone oral and nasal inhaler, Guaifenesin. Medical providers gave the veteran a Prednisone dose pack when he had seen orthopedics for his hip pain. His diabetic medicine was discontinued. The physical examination revealed that no tremor was detected and there was no sign of edema. Examination of the neck revealed no residual surgical scar. The examiner noted no lymphadenopathy, thyromegaly, or bruits. The lungs were clear to auscultation. Abdominal examination was benign. The last thyroid test revealed a TSH of 5.83 that was mildly elevated, free T4 0.8, thyroxin 7.4. Review of the blood work showed that in October of 1998 his TSH was still elevated at 5.8 although prior to that he had a well- controlled TSH. In 1997, his TSH was running high. The examiner provided the following impression. The veteran had hyperthyroidism/Graves' disease on thyroid supplement replacement. Last TSH had shown hypothyroidism, need for adjustment for the dose was obvious during several blood tests that had been done since the thyroid surgery. The veteran's disease was in remission. The veteran had possible symptoms of hyperthyroidism, which should be confirmed by TSH and thyroid test that had been ordered and was pending. According to a June 2000 VA examination addendum to the foregoing report, the examiner clarified that the veteran did not have any significant abnormality with his thyroid based on the examination results. The last thyroid function test showed a thyroxin of 10.9 and a TSH of 4.10. The veteran was euthyroid and did not have hyper or hypothyroidism. VA examined the veteran again in November 2002. The examiner noted the veteran's medical history, as described previously. Physical examination revealed that there were no tremors in the veteran's hands. Based on the physical and clinical examinations, it was the examiner's impression that the veteran had a history of Graves' disease, status post radioactive iodine ablation with subsequent hypothyroidism, and currently on thyroid hormone replacement. The examiner commented that there had been difficulty adjusting the dose of thyroid replacement. The laboratory results associated with this examination revealed variations in TSH and T4 with some values indicating over treatment and some under treatment. The veteran reported excessive fatigue and cold intolerance, which were suggestive of hypothyroidism. The T3 supplement was recently added and the clinical response had not been provided. The examiner cited to Harrison's Principles of Internal Medicine, which indicated that other abnormal laboratory findings in hypothyroidism include increased creatinine phosphokinase, elevated cholesterol, triglyceridemia, and anemia. It went on to say that except when accompanied by iron deficiency, the anemia and other abnormalities gradually resolve with thyroxine replacement. In regard to his cardiac symptoms, the only symptoms he reported were palpitations, however, these were brief and rare occurring only once or twice a year. No other details were available concerning that issue. In view of the cardiac murmur noted on the exam, an echocardiogram was scheduled. Also, in view of the questionable abnormality on previous electrocardiogram (EKG), exercise tolerance test (ETT) was performed for the possibility of silent ischemia in diabetics and it was negative as above. In regards to cardiac symptoms, the veteran only reported palpitations, which were brief and rare; the examiner found it difficult to comment on them but, with a negative ETT and normal valves on echocardiogram, they might possibly be related to his thyroid condition. III. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4 (2002). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.10 (2002). The higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2002). It should also be noted that the RO granted granted service connection for hypertension at a 10 percent evaluation, effective from May 1, 1993. Therefore, symptoms from hypertension cannot be used to support a higher rating. See 38 C.F.R. § 4.14 (2002). The veteran has appealed the rating decision assigning an initial rating of 10 percent for a thyroid disorder, effective January 20, 1994. 38 C.F.R. § 4.118. The rule from Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.) is not applicable to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Effective June 6, 1998, VA revised the criteria for evaluating disabilities of the endocrine system. 61 Fed. Reg. 46720 - 46731 (1996). The new criteria for evaluating endocrine disabilities are codified at 38 C.F.R. § 4.118 (2002). The veteran is entitled to the application of the version of the regulation that is more favorable to him from the effective date of the new criteria, but only the former criteria are to be applied for the period prior to the effective date of the new criteria. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991); VAOPGCPREC 3-2000 (April 10, 2000), published at 65 Fed. Reg. 33,422 (2000). The RO rated the veteran's Graves' disease by analogy to hyperthyroidism under 38 C.F.R. § 4.119, Diagnostic Code 7900, and hypothyroidism under 38 C.F.R. § 4.119, Diagnostic Code 7903. The Board will also consider 38 C.F.R. § 4.119, Diagnostic Code 7903 for hypothyroidism. Under the criteria for rating hyperthyroidism prior to the revisions made to this criteria in June 1996, a 10 percent disability evaluation required moderate or postoperative with tachycardia that may be intermittent, and tremor. A 30 percent disability evaluation required a moderately severe condition, with the history shown under severe, but with reduced symptoms; or post operative, with tachycardia and increased blood pressure or pulse pressure of moderate degree and tremor. A 60 percent disability evaluation required a severe condition, with marked emotional instability, fatigability, tachycardia and increased pulse pressure or blood pressure, increased levels of circulating thyroid hormones (T4 and/or T3 by specific assay). 38 C.F.R. § 4.119, Diagnostic Code 7900 (1996). The revised criteria for rating hyperthyroidism provide for a 10 percent disability evaluation for hyperthyroidism with tachycardia which may be intermittent, and tremor, or; continuous medication required for control. A 30 percent disability evaluation is required for hyperthyroidism with tachycardia, tremor, and increased pulse pressure or blood pressure. A 60 percent disability evaluation requires emotional instability, tachycardia, fatigability and increased pulse pressure or blood pressure. 38 C.F.R. 4.119, Diagnostic Code 7900 (2002). Under the criteria for rating hypothyroidism prior to the revisions made to these criteria in June 1996, a 10 percent evaluation required moderate hypothyroidism with fatigability. A 30 percent evaluation required moderately severe hypothyroidism with sluggish mentality and other indications of myxedema, decreased levels of circulating thyroid hormones (T4 and/or T3 by specific assays). A 60 percent disability evaluation required severe hypothyroidism, with symptoms under "pronounced" somewhat less marked, decreased levels of circulating thyroid hormones (T4 and/or T3, by specific assays). 38 C.F.R. § 4.119, Diagnostic Code 7903 (1996). The revised criteria provide a 10 percent evaluation for hypothyroidism with fatigability, or; continuous medication required for control. A 30 percent evaluation for hypothyroidism with fatigability, constipation, and mental sluggishness. The next higher, or 60 percent disability evaluation, requires muscular weakness, mental disturbance, and weight gain. 38 C.F.R. § 4.119, Diagnostic Code 7903 (2002). With respect to the former and new criteria, the record reflects that throughout the initial evaluation period, the veteran has taken medication for hyperthyroidism and hypothyroidism. According to the medical history, as described in the November 2002 VA examination report, there has been difficulty adjusting the dose of thyroid replacement. Nevertheless, while the veteran has complained of multiple symptoms that he attributes to his thyroid disorder, he has repeatedly been found to be euthyroid and there is no medical evidence substantiating the presence of any of the symptoms or manifestations required for a 30 percent evaluation under the former or current criteria. Based on the current record, the Board must conclude that an evaluation in excess of 10 percent is not warranted at any time during the initial evaluation period. The Board has also considered whether the case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. The record reflects that the veteran has not required frequent hospitalization for the disability at issue. In addition, the manifestations of the disability are not in excess of those contemplated by the schedular criteria. In sum there is no indication in the record that the average industrial impairment from the disability would be in excess of that contemplated by the assigned evaluation. Therefore, the Board has concluded that referral of the case for extra- schedular consideration is not warranted. ORDER An initial rating in excess of 10 percent for a thyroid disorder is denied. ____________________________________________ BETTINA S. CALLAWAY Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.