Citation Nr: 1207606 Decision Date: 02/29/12 Archive Date: 03/09/12 DOCKET NO. 10-13 626A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased rating for arthritis of the left elbow, currently rated as 10 percent disabling. 2. Entitlement to an increased rating for hypothyroidism, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1975, and from December 1976 to May 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 decision of the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). In his April 2010 substantive appeal, the Veteran requested that he be scheduled for a hearing before a Veterans Law Judge at the RO. However, he thereafter withdrew his request for a hearing in September 2011. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Thyroid The Veteran is rated as 10 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code 7903. Hypothyroidism with fatigability, or; continuous medication required for control, is rated 10-percent disabling; with fatigability, constipation, and mental sluggishness is rated 30-percent disabling; with muscular weakness, mental disturbance, and weight gain is rated 60-percent disabling; with cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness is rated 100-percent disabling. The criteria of the rating levels under this rating code are nonsuccessive in nature. See Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009). In a January 2007 letter, Harold W. McRae, Jr., SDA, LPC, MAC, indicated that the had treated the Veteran for PTSD and depression. He was having problems sleeping, was chronically fatigued, and had other psychiatric symptoms. In March 2007 correspondence, the Veteran indicated that he met the criteria for a 30 percent rating for his thyroid disorder. He stated that he was medicated daily with Levothyroxine and was also taking psychiatric medication. In addition, he used Metamucil for constipation. In August 2007, the Veteran was afforded a VA examination. The Veteran related that he felt fatigued and tired all the time and was seeing a psychiatrist for depression. Examination revealed no thyromegaly or nodules in the area of his thyroid. Laboratory testing revealed mild elevation of TSH (6.07) level which the examiner stated might indicate that replacement therapy might be inadequate. The diagnosis was hypothyroidism. Also, on examination, heart evaluation did not reveal any abnormalities nor was a diagnosis made. The examination indicated that there was no cardiovascular disease. The Veteran's weight at this time was 211 pounds. In April 2009, the Veteran's friend, E.L., a nurse stated that she had known the Veteran for 21 years and had problems with his thyroid. She indicated that he easily tired and had a depressed affect. In January 2007, Dr. McRae again indicated essentially the same information as was contained in his prior letter. December 2008 thyroid testing revealed TSH of 3.45. No explanation other than the reading was provided. March and February 2009 sleep studies yielded a diagnosis of obstructive sleep apnea. Medical records from Martin Army Community Hospital dated 2005-1009 recorded "chest pain" as a problem in the list of disabilities, but all cardiovascular testing was normal. VA outpatient records dated through 2011 noted that the Veteran had hypertension, but no coronary artery disease. Likewise, cardiovascular evaluations performed with the outpatient visits did not reveal any positive findings, other than the hypertension, which is service-connected. In a letter from the Veteran's wife, she indicated that the Veteran had physical and mental health issues. She stated that he exhibited depression and was on a daily dose of Synthroid. A recent June 2011 joints examination indicated that the Veteran's weight was 220 pounds, indicating a 9 pound weight gain since the last VA examination. In reviewing the rating criteria, it appears that the Veteran may have fatigability, constipation, and psychiatric involvement associated with his thyroid disease. It is unclear if his weight gain is also associated with his hypothyroidism, and there is no evaluation of muscular weakness or cold intolerance with regard to his thyroid disease. In addition, recent thyroid testing was not interpreted. In light of the foregoing, a VA examination should be afforded to the Veteran to interpret the December 2008 thyroid test, perform new thyroid tests, and determine the current manifestations of the Veteran's hypothyroidism. Left Elbow In March 2007, the Veteran submitted color photographs of his left elbow which showed that he had a bony prominence. The Veteran indicated that his left elbow appeared deformed. In a letter from the Veteran's wife, she also stated that he had pain in his elbow and a protrusion from his elbow. In August 2007, the Veteran was afforded a VA examination. He related that his left elbow hurt about once per week and he would take over the counter pain medication. The pain would be at an 8-9 out of 10 level on a scale of 1-10 with 10 being worse. He did not complain of weakness or fatigue, but indicated that he had some decreased endurance of the left arm. He also described having restricted movement. Examination revealed that the olecranon process was prominent compared to the right side and there was tenderness present. There were no signs of acute inflammation such as redness or warmth. There was no fluid. Flexion was 25-130 degrees which required a lot of effort to complete with complaints of pain at the end of flexion. Extension was -25 meaning that the Veteran could not bring it from 25 degrees of flexion t the neutral of zero degrees. After repetition, flexion was 20-130 degrees and extension was -20. There was no crepitus of the left elbow. X-rays revealed a large olecranon spur as well as moderate osteophyte formation arising from the distal humerus and coronoid process of the ulna. There was no fracture or joint effusion. The diagnosis was posttraumatic arthritis of the left elbow with deformity of the olecranon process. Thereafter, June 2009 x-rays of the left elbow revealed osteoarthritic changes of the left elbow with multiple spurs and swelling of the olecranon bursa. Thereafter, both VA and private records recorded complaints of left elbow pain. In addition, pain was noted to be radiating to the left shoulder. However, no further range of motion studies were reflected in these records. The Veteran has been assigned a 10 percent rating under Diagnostic Code 5003. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, no added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent evaluation will be assigned with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbation. A 10 percent evaluation will be assigned with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The pertinent diagnostic codes pertaining to the elbow and forearm are Diagnostic Codes 5205-5213. Although the VA examination discussed loss of motion on flexion and extension, there were no findings relative to motion on supination and pronation. Since the Veteran may be rated based on impairment of supination and pronation, he must be afforded another VA examination to fully assess his range of motion of the left elbow/forearm, to include any further impairment due to pain or other factors per DeLuca v. Brown, 8 Vet. App. 202 (1995). Finally, any recent VA treatment records, as well as recent records from Martin Army Community Hospital, should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file copies of all clinical records, which are not already in the claims file, of the Veteran's treatment for his left elbow and hypothyroidism by the VA Central Alabama Healthcare System, dated from March 2010 onward. 2. Obtain and associate with the claims file copies of all clinical records, which are not already in the claims file, of the Veteran's treatment for his left elbow and hypothyroidism by Martin Army Community Hospital, dated from November 2009 onward. 3. Thereafter, schedule the Veteran for a VA thyroid examination. The claims file must be made available to and reviewed by the examiner. Any indicated tests, including thyroid tests, should be accomplished. The examiner should interpret the findings of the December 2008 thyroid tests. The examiner must identify all residuals attributable to the Veteran's service-connected hypothyroidism. Specifically, the examiner should be asked to comment on whether the Veteran has muscular weakness; mental disturbance (dementia, slowing of thought, or depression); weight gain; cold intolerance; cardiovascular involvement; bradycardia; sleepiness; fatigability; and/or constipation as a result of hypothyroidism. The examiner must provide a comprehensive report including complete rationale for all conclusions reached. 4. Schedule the Veteran for a VA orthopedic examination of his left elbow. The claims file must be made available to and reviewed by the examiner. Any indicated tests, including x-rays, should be accomplished. The examiner should identify all residuals attributable to the Veteran's service-connected arthritis of the left elbow. The examiner should specifically address the extent of any nonunion/malunion of the radius, i.e., loss of bone substance, deformity, or bad alignment. The examiner should report range of motion measurements for the left elbow and forearm, including supination, pronation, flexion, and extension. Whether there is any pain, weakened movement, excess fatigability or incoordination on movement should be noted, and whether there is likely to be additional range of motion loss due to any of the following should be addressed: (1) pain on use, including during flare- ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups or on repeated use. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner must provide a comprehensive report including complete rationale for all conclusions reached. 5. Review the medical opinions obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, return the case to the examiner(s) for completion of the inquiry. 6. Finally, readjudicate the claims on appeal in light of all of the evidence of record. If any issue remains denied, the Veteran should be provided with a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2011), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).