Citation Nr: 0817822	
Decision Date: 05/30/08    Archive Date: 06/09/08

DOCKET NO.  06-09 077	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, 
Oklahoma


THE ISSUE

Entitlement to an increased disability rating in excess of 10 
percent for Grave's disease with thyroid ablation and 
secondary hypothyroidism.


REPRESENTATION

Appellant represented by:	Oklahoma Department of 
Veterans Affairs


ATTORNEY FOR THE BOARD

W. Yates, Counsel




INTRODUCTION

The veteran served on active duty from June 1972 to June 
1992.  

This case comes to the Board of Veterans' Appeals (Board) on 
appeal from a June 2005 rating decision by the Department of 
Veterans Affairs (VA) Regional Office (RO) in Muskogee, 
Oklahoma.


FINDINGS OF FACT

The veteran's service-connected Grave's disease with thyroid 
ablation and secondary hypothyroidism is productive of 
fatigability, constipation, and mental sluggishness; there is 
no clinical evidence of muscular weakness or weight gain.


CONCLUSION OF LAW

The criteria for a disability rating of 30 percent for 
Grave's disease with thyroid ablation and secondary 
hypothyroidism have been met.  38 U.S.C.A. §§ 1155, 5107 
(West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7903 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has certain notice and assistance requirements.  See 38 
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 
2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326 (2007).  Upon receipt of a substantially complete 
application for benefits, VA must notify the claimant what 
information or evidence is needed in order to substantiate 
the claim and it must assist the claimant by making 
reasonable efforts to get the evidence needed.  38 U.S.C.A. 
§§ 5103(a), 5103A; 38 C.F.R § 3.159(b); see Quartuccio v. 
Principi, 16 Vet. App. 183, 187 (2002). 

With respect to the veteran's claim herein, VA has met all 
statutory and regulatory notice and duty to assist 
provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 
5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326 (2007).  Specifically, the 
RO's letter to the veteran, dated in April 2005, satisfied 
the duty to notify provisions relating to the veteran's claim 
for an increased rating for his service-connected Grave's 
disease with thyroid ablation and secondary hypothyroidism. 
38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. 
Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006); see also Prickett v. 
Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA 
defect may be cured by the issuance of a fully compliant 
notification letter followed by a re-adjudication of the 
claim).  The RO's April 2005 letter also requested that the 
veteran provide any evidence in his possession that pertained 
to this claim.  38 C.F.R. § 3.159(b)(1).  Further, the 
purpose behind the notice requirement has been satisfied 
because the veteran has been afforded a meaningful 
opportunity to participate effectively in the processing of 
his claims, to include the opportunity to present pertinent 
evidence.  Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 
2007); Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 
2007) (holding that although VCAA notice errors are presumed 
prejudicial, reversal is not required if VA can demonstrate 
that the error did not affect the essential fairness of the 
adjudication).  Moreover, there is no prejudice to the 
veteran because the preponderance of the evidence is against 
an increased disability rating in this matter.  See 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see 
also Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  

In addition, prior to the final re-adjudication of issue the 
issue on appeal, the veteran was notified, via the RO's April 
2005 letter and the March 2006 statement of the case, that he 
must submit, or request that VA obtain, evidence of the 
worsening of his disability to include the effects on 
employment and daily life, the specific requirements to 
obtain a higher rating under the applicable diagnostic code 
applicable throughout the time period, and notice of the 
different types evidence available to demonstrate the above.  
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008); Prickett, 20 
Vet. App. at 376.  

Even if the VCAA notice letters were found not to meet the 
requirements of Vazquez-Flores, thereby creating a 
presumption of prejudice, this presumption has been overcome 
for the reasons discussed below.  In this case, the veteran 
was provided with the requirements of the specific statutes 
used in evaluating his condition in the statement of the 
case.  Accordingly, the veteran can be expected to understand 
what was needed to support his claim.  

Moreover, his statements submitted in support of his claim 
demonstrate his having actual knowledge in understanding that 
he needs to be worse to support his claim.  
In addition, the Board notes that the severity of the 
veteran's condition, including its effect on his employment, 
has been addressed in his multiple VA examinations during the 
course of this appeal.  Further, the veteran submitted a 
statement, dated in April 2007, indicating that he had no 
additional evidence to submit in support of his claim.  Based 
on the above, any notice deficiencies do not affect the 
essential fairness of the adjudication.  Therefore, the 
presumption of prejudice is rebutted.  For this reason, no 
further development is required regarding the duty to notify.

For the reasons addressed above, the Board finds that the 
content requirements of the notice VA is to provide have been 
met.  See Pelegrini v. Principi, 18 Vet. App. 112, 120 
(2004). 

In addition, the duty to assist the appellant has also been 
satisfied in this case.  The RO has obtained the veteran's 
service medical records, VA medical treatment records, and 
his identified private treatment records.  38 U.S.C.A. 
§ 5103A; 38 C.F.R. § 3.159.  The veteran was also provided 
with multiple VA examinations to ascertain the severity of 
his service-connected conditions.  Finally, there is no 
indication in the record that additional evidence relevant to 
the issue being decided herein is available and not part of 
the record.  See Pelegrini v. Principi, 18 Vet. App. 112 
(2004).  

As there is no indication that any failure on the part of VA 
to provide additional notice or assistance reasonably affects 
the outcome of this case, the Board finds that any such 
failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 
537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. 
App. 473 (2006).  


Disability ratings are determined by applying the criteria 
set forth in the VA Schedule for Rating Disabilities (Rating 
Schedule).  38 C.F.R. Part 4 (2007).  The Rating Schedule is 
primarily a guide in the evaluation of disability resulting 
from all types of diseases and injuries encountered as a 
result of or incident to military service.  The ratings are 
intended to compensate, as far as can practicably be 
determined, the average impairment of earning capacity 
resulting from such diseases and injuries and their residual 
conditions in civilian occupations.  See 38 U.S.C.A. § 1155; 
38 C.F.R. § 4.1 (2007).  

In considering the severity of a disability, it is essential 
to trace the medical history of the veteran.  38 C.F.R. §§ 
4.1, 4.2, 4.41 (2007).  Consideration of the whole-recorded 
history is necessary so that a rating may accurately reflect 
the elements of any disability present.  38 C.F.R. § 4.2; 
Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the 
regulations do not give past medical reports precedence over 
current findings, the Board is to consider the veteran's 
medical history in determining the applicability of a higher 
rating for the entire period in which the appeal has been 
pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).  

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 concern.  
Francisco v. Brown, 7 Vet. App. 55 (1994).  Staged ratings 
are, however, appropriate when the factual findings show 
distinct time periods in which a disability exhibits symptoms 
that warrant different ratings.  Hart v. Mansfield, 21 Vet. 
App. 505 (2007).

The veteran's service-connected Grave's disease with thyroid 
ablation and secondary hypothyroidism has been rated by the 
RO under the provisions of Diagnostic Code 7903.  Pursuant to 
Diagnostic Code 7903, used in rating hypothyroidism, a rating 
of 10 percent is warranted where findings show fatigability 
or where continuous medication is required for control.  A 30 
percent rating may be assigned for findings of fatigability, 
constipation, and mental sluggishness.  A 60 percent rating 
is provided for findings of muscular weakness, mental 
disturbance, and weight gain.  A 100 percent rating is 
warranted where the disease is manifested by cold 
intolerance, muscular weakness, cardiovascular involvement, 
mental disturbance (dementia, slowing of thought, 
depression), bradycardia (less than 60 beats per minute), and 
sleepiness.  38 C.F.R. § 4.119, Diagnostic Code 7903.

The veteran has alleged that a variety of symptoms he 
experiences are the result of Grave's disease with thyroid 
ablation and secondary hypothyroidism.  

Based on review of the veteran's claims folders and resolving 
all reasonable doubt in his favor, the Board finds that the 
evidence of record supports the criteria for a 30 percent 
disability rating for Grave's disease with thyroid ablation 
and secondary hypothyroidism.  To demonstrate entitlement to 
a disability rating of 30 percent, the evidence must show 
that the veteran has fatigability, constipation, and mental 
sluggishness due to hypothyroidism.  All of these symptoms 
have been alleged by the veteran and are reasonably supported 
by evidence of record.

Specifically, the VA (QTC Medical Services) examination 
performed in May 2005, diagnosed status post thyroid ablation 
with secondary hypothyroidism.  The report noted that this 
condition produced symptoms of "fatigability, sleepiness, 
depression, difficulty breathing, and swallowing."  The 
report also indicated that the veteran was taking medication 
for treatment of this condition.

The VA (QTC Medical Services) examination, performed in 
February 2006, noted that as a result of this condition, the 
veteran "has suffered fatigability, emotional instability, 
depression, slowing of thought and poor memory."  The report 
also noted that this condition resulted in the functional 
impairment of being easily fatigued.  The diagnosis was 
status post thyroid ablation with residual of hypothyroidism.  
The report further noted that the subjective factor found was 
easy fatigue, and the objective factors were thyroid 
laboratory findings, which have been normal while on 
medication.

In April 2007, a third VA examination for thyroid disease was 
conducted.  The VA examiner noted that the veteran reported 
fatigability and also a depressed mental state.  On 
examination, the examiner noted that the veteran "did not 
seem slow today and the mental status examination was within 
normal limits."  The report also noted the veteran's 
complaints of alternating constipation and diarrhea, with 
constipation being the dominant problem.  

Accordingly, the Board finds there is documented medical 
evidence of fatigability and mental sluggishness during the 
course of this appeal.  Moreover, with regard to the alleged 
symptom of constipation, the Board notes that the veteran is 
competent to testify to the fact that he experiences 
constipation.  Accordingly, the Board finds that a rating of 
30 percent is warranted in this matter.

While the Board has found that the veteran's symptoms exceed 
the criteria for the 10 percent rating and more nearly 
approximate the criteria for the 30 percent rating, they do 
not approach the severity contemplated for the next highest, 
60 percent, rating.  See 38 C.F.R. § 4.7 (2007).  In making 
this determination, the evidence does not show the veteran's 
condition to be manifested by muscular weakness or weight 
gain.  A medical treatment report, dated in December 2004, 
noted that the veteran weighed 255 pounds.  The report of his 
April 2007 VA examination noted that he weighed 246.  Thus, 
no weight gain is shown during the course of this appeal.  In 
addition, there as been no showing that this condition is 
manifested by muscular weakness.  The VA (QTC Medical 
Services) examination, performed in May 2005, revealed no 
findings of generalized muscle weakness or wasting. The 
February 2006 VA (QTC Medical Services) examination noted 
that the condition was in remission, and that his health 
condition between episodes was good.  The report also noted 
that this condition had not had an effect on the veteran's 
body weight, and that the condition had not resulted in any 
time lost from work.  The April 2007 VA examination revealed 
muscle strength that was within normal limits.  

Accordingly, there is a preponderance of the evidence 
persuasively showing that a rating in excess of 30 percent is 
not warranted for the Grave's disease with thyroid ablation 
and secondary hypothyroidism.  38 U.S.C.A. § 5107.

The potential application of various provisions of Title 38 
of the Code of Federal Regulations have also been considered 
but the record does not present such "an exceptional or 
unusual disability picture as to render impractical the 
application of the regular rating schedule standards."  38 
C.F.R. § 3.321(b)(1).  In this regard, the Board finds that 
there has been no showing by the veteran that his service-
connected Grave's disease with thyroid ablation and secondary 
hypothyroidism has resulted in marked interference with 
employment or necessitated frequent periods of 
hospitalization.  Under these circumstances, the Board finds 
that the veteran has not demonstrated marked interference 
with employment so as to render impractical the application 
of the regular rating schedule standards.  In the absence of 
such factors, the Board finds that criteria for submission 
for assignment of an extraschedular rating pursuant to 38 
C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 
Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 
(1995). 


ORDER

An increased disability rating of 30 percent, but not higher, 
for Grave's disease with thyroid ablation and secondary 
hypothyroidism is granted, subject to the law and regulations 
governing the payment of monetary benefits.  



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs