Citation Nr: 0704281 Decision Date: 02/09/07 Archive Date: 02/22/07 DOCKET NO. 02-06 770A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to an evaluation in excess of 60 percent for service-connected hypothyroidism with Schmidt's syndrome. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD J. H. Nilon, Associate Counsel INTRODUCTION The veteran had active service from December 1993 to August 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2002 RO rating decision that increased the rating for service-connected hypothyroidism from 10 to 30 percent. A September 2005 decision by the Board increased the rating to 60 percent and remanded the issue of entitlement to a rating higher than 60 percent to the RO, via the Appeals Management Center (AMC), for further development. Inasmuch as a rating higher than 60 percent for the service- connected hypothyroidism is available, and inasmuch as a claimant is presumed to be maximum available benefit for a given disability, the claim for higher rating for hypothyroidism, as reflected on the title page, remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue on appeal has been accomplished. 2. The veteran's service-connected hypothyroidism is manifested by cold intolerance, muscular weakness, mental disturbance, and sleepiness. 3. The veteran's hypothyroidism is shown to be productive of a disability picture that more nearly approximates the criteria for the next higher (100 percent) rating. CONCLUSION OF LAW The criteria for the assignment of an evaluation of 100 percent for service-connected hypothyroidism are met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 2002 and Supplement 2006); 38 C.F.R. §§ 4.3, 4.7, 4.119 including Diagnostic Code 7903 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the duties imposed by VCAA and its implementing regulations, and in view of the Board's favorable disposition of the veteran's claim, the Board finds that all notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The rating for the veteran's disability has been assigned under 38 C.F.R. § 4.119, Diagnostic Code (DC) 7903. The rating criteria for DC 7903 are as follows. A rating of 60 percent may be assigned for muscular weakness, mental disturbance, and weight gain. A rating of 100 percent may be assigned for cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance, brachycardia (less than 60 beats per minute), and sleepiness. The Board found, in its September 2005 decision, that the veteran's hypothyroidism was manifested by muscle weakness and mental disturbance. The Board remanded the case for VA medical examination to determine whether the other criteria for a 100 percent rating (cold intolerance, sleepiness, cardiovascular involvement, and brachycardia) were shown. The veteran had a VA medical examination in April 2006 during which the examiner noted the veteran as having complicating factors including sleepiness and cold intolerance. However, the examiner noted the veteran's pulse as 77, and made no notation of any cardiovascular disorder. Thus, the veteran is shown to have four of the six symptoms that the rating schedule associates with the higher (100 percent) rating. He is not shown to have brachycardia or a cardiovascular disorder associated with hypothyroidism. The Board notes that in view of the number of atypical situations it is not expected, especially with the more fully developed grades of disabilities, that all cases will show all the findings specified; however, findings sufficiently characterized to identify the disease and the resulting disability, and above all coordination of rating with impairment of function, are expected in all instances. 38 C.F.R. § 4.21. Further, symptoms listed in the rating criteria are simply examples of the type and degree of the symptoms, or their effects, that would justify a particular rating; analysis should not be limited solely to whether the claimant exhibited the symptoms listed in the rating scheme. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Board finds in this situation that the veteran's symptoms more closely approximate the criteria for the higher (100 percent) rating. The Board notes that the VA examiner stated that the veteran had ceased working in July 2005 because of fatigue associated with thyroid disease; the fatigue was such that the veteran was unable to drive for fear of falling asleep behind the wheel. The Board accordingly finds that the criteria for the higher (100 percent) rating for hypothyroidism are met. ORDER An increased rating of 100 percent for the service-connected hypothyroidism is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs