Citation Nr: 1232238 Decision Date: 09/19/12 Archive Date: 09/24/12 DOCKET NO. 09-23 147A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to hypothyroidism. 2. Entitlement to an initial disability rating in excess of 30 percent for hypothyroidism secondary to Grave's disease. ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran had active service from February 1972 to November 1992. These claims come before the Board of Veterans' Appeals (Board) on appeal of a October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, that, in pertinent part, granted entitlement to service connection for Graves disease at a 10 percent disability rating, as of the date of claim, and denied entitlement to service connection for sleep apnea. In an August 2009 rating decision, the RO determined that clear and unmistakable error had been found in the initial evaluation of 10 percent for Graves disease, and found that a 30 percent disability rating for hypothyroidism as secondary to Graves disease was warranted for the entire appeals period. In June 2009, the RO deferred a rating decision with regard to the issue of entitlement to service connection for sleep apnea, as secondary to service-connected hypothyroidism, and in a May 2010 rating decision, the RO again denied entitlement to service connection for sleep apnea. The issue of entitlement to service connection for sleep apnea, to include as secondary to hypothyroidism is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The Veteran's hypothyroidism secondary to Grave's disease is manifested by fatigability, constipation, mental sluggishness, some muscular weakness, and weight gain, but there is no evidence of associated mental disturbance. CONCLUSION OF LAW The criteria for entitlement to an evaluation of 60 percent, but no higher, for hypothyroidism secondary to Grave's disease have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.119, Diagnostic Codes 7900, 7903 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). This appeal for a higher initial rating arises from disagreement with the initial rating assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to 'downstream' questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as initial rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of such error in this case. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This 'duty to assist' contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained the Veteran's service treatment records and all of the identified post-service VA treatment records and private medical records. The Veteran has not contended that there is any additional relevant evidence to be obtained. The Veteran was provided with a VA examination in May 2008. While she has not been provided with a VA examination for her service-connected hypothyroidism since that time, she has not provided any statements that her hypothyroidism has worsened since her last examination. The mere passage of time between the last examination and the Board's review does not automatically render the examination inadequate; there must be evidence of a change in the condition or allegation of worsening of the condition. Palczewski v. Nicholson, 21 Vet.App. 174, 182 (2007). The examination report, along with the additional treatment records and lay statements in evidence, provide enough information regarding the symptoms of the Veteran's service-connected hypothyroidism for the Board to appropriately adjudicate the claim. Initial disability rating - hypothyroidism secondary to Grave's disease Disability evaluations are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be 'staged.' Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). 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. See 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will; however, be expected in all instances. 38 C.F.R. § 4.21. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is service-connected for hypothyroidism, as secondary to Graves' disease at a 30 percent evaluation under 38 C.F.R. § 4.119, Diagnostic Codes 7900-7903, effective November 9, 2007. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (2011). The hyphenated diagnostic code in this case indicates that hyperthyroidism, under Diagnostic Code 7900, is the service-connected disorder, and hypothyroidism, under Diagnostic Code 7903, was a residual condition. As discussed above, the Veteran's hypothyroidism is evaluated as 30 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code 7900-7903, the codes for rating hyperthyroidism and hypothyroidism. Under Diagnostic Code 7900, a 10 percent rating is warranted when there is tachycardia (more than 100 beats per minute), which may be intermittent, and tremor, or when continuous medication is required for control. A 30 percent rating requires tachycardia, tremor, and increased pulse pressure or blood pressure. A 60 percent rating requires emotional instability, tachycardia, fatigability, and increased pulse pressure or blood pressure. A 100 percent rating requires thyroid enlargement, tachycardia, eye involvement, muscular weakness, loss of weight, and sympathetic nervous system, cardiovascular, or gastrointestinal symptoms. 38 C.F.R. § 4.119, Diagnostic Code 7900. Under Diagnostic Code 7903, a 10 percent rating is warranted for hypothyroidism with fatigability, or; when continuous medication is required for control. Hypothyroidism with fatigability, constipation, and mental sluggishness is rated as 30 percent disabling. Hypothyroidism with muscular weakness, mental disturbance, and weight gain is rated 60 percent disabling. Hypothyroidism with cold intolerance; muscular weakness; cardiovascular involvement; mental disturbance, to include dementia, slowing of thought, depression, bradycardia (less than 60 beats per minute), and sleepiness is rated as 100 percent disabling. 38 C.F.R. § 4.119, Diagnostic Code 7903. The Board finds that the Veteran's hypothyroidism warrants the next-higher 60 percent disability rating under Diagnostic Code 7903. The Veteran has had some weight gain over the appeals period, apparently attributable to her service-connected hypothyroidism. A June 2009 Cumulative Vitals/Measurements Report reflect a weight gain of nine pounds over the appeals period. In addition, at her May 2008 examination, the Veteran reported a 20 percent weight gain compared to baseline. In addition, the Veteran reported muscle weakness at her May 2008 examination, and was noted to have strength of 4/5 in her legs and arms. On the basis of this evidence, a 60 percent evaluation is deemed warranted. A higher evaluation of 100 percent is not supported by the record, however, as there is no evidence of mental disturbance due to the hypothyroidism. While at her examination she endorsed forgetfulness, the Board notes that such a symptom is contemplated in her current 60 percent disability rating, which includes mental sluggishness in the criteria. At her examination, the examiner noted that there was no evidence of slow speech, depression, apathy, psychosis or dementia. VA medical records do not reflect a diagnosis of a mental disorder, and the Veteran has been screened for depression and has indicated that she is not depressed. As such, since the Veteran does not have mental disturbance due to her service-connected hypothyroidism, a rating in excess of 60 percent is not warranted under Diagnostic Code 7903. The Board also finds that the Veteran's service-connected hypothyroidism does not meet the criteria for a higher disability rating under Diagnostic Code 7900. Indeed, there is no evidence of tachycardia. On examination, the Veteran's pulse was 65 beats per minute. The June 2009 Cumulative Vitals/Measurements Report, which reflected the Veteran's vital signs throughout the appeals period, did not show a pulse of over 100 beats per minute. Furthermore, there is no showing of loss of weight (the opposite is true) or involvement of the sympathetic nervous system. Regarding eye involvement, the May 2008 examination does reflect proptosis and periorbital edema. However, viewing the record as a whole, such findings do not equate to a disability picture worthy of a 100 percent rating. In so finding, the Board notes that the heart and cardiovascular system were normal on examination in May 2008 and there were no gastrointestinal abnormalities. Both cardiovascular and gastrointestinal problems, if present, would tend to support the higher rating. Their absence is further evidence that a higher evaluation under Diagnostic Code 7900 is not warranted. The Board has considered rating the Veteran's hypothyroidism under other diagnostic codes in order to provide him with the most beneficial rating. However, the Veteran's symptoms of his hypothyroidism are most appropriately rated under Diagnostic Codes 7900 and 7903. In addition, the Board notes that there is no evidence of toxic adenoma of the thyroid gland, hyperparathyroidism, or hypoparathyroidism. 38 C.F.R. § 4.119, Diagnostic Codes 7901, 7904, 7905 (2011). Extraschedular considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2011). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 3.321. The Board finds no reason to refer this case to the Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b). The symptoms associated with the Veteran's hypothyroidism secondary to Graves disease are contemplated by the rating criteria set out in Diagnostic Codes 7900 and 7903. 38 C.F.R. § 4.119, Diagnostic Codes. Thus, the evidence does not support referring this case for an extraschedular evaluation. TDIU The Court has held that entitlement to a total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2011). The issue of TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The issue does not arise in the context of an increased rating claim when there is no allegation or evidence of unemployability. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). In this case there has been no allegation or evidence of unemployability. At her May 2008 and 2009 VA examinations, the Veteran reported that she is employed as an administrative supervisor and that she works full time. Accordingly, the question of entitlement to TDIU has not been raised. ORDER An initial disability rating in excess of 60 percent for hypothyroidism secondary to Grave's disease is granted, subject to governing criteria applicable to the payment of monetary benefits. REMAND The Board finds that additional development is necessary for the Veteran's claim for entitlement to service connection for sleep apnea, as secondary to hypothyroidism. It is unclear from the record as to whether the Veteran has a diagnosis of sleep apnea. In a November 2007 VA medical record, the Veteran reported that she had two previous sleep studies that were negative for sleep apnea. The Veteran submitted an April 2008 private sleep study reflecting an impression of obstructive sleep apnea. In May 2009, the Veteran was provided with a VA examination to determine whether she had sleep apnea secondary to her service-connected hypothyroidism. The examiner provided the impression of obstructive sleep apnea. She concluded that she could not resolve the issue without resorting to mere speculation. She found that the cause of the Veteran's obstructive sleep apnea was most likely multifactorial in nature. A VA medical record from later in May 2009 reflects the examiner's opinion that the Veteran did not actually have sleep apnea. This examiner noted that he had reviewed the Veteran's sleep studies from June 2004 and 2006 and found that they did not reflect a diagnosis of sleep apnea. It was noted that the Veteran underwent a titration study "presumably for sleep apnea," but that the diagnosis had not been confirmed. An addendum opinion to the May 2009 VA examination was obtained in November 2009. The examiner opined that the Veteran had not received a diagnosis of obstructive sleep apnea. He noted that a VA sleep medicine note from October 2009 indicated that there was no sleep apnea present. However, the VA medical records in the claims file from October 2009 show that the Veteran was provided with additional equipment for her CPAP machine, and do not reflect a negative opinion with regard to a diagnosis of obstructive sleep apnea. As an initial matter, the reports of her sleep studies from 2004 and 2006, and the titration study performed on the Veteran, presumably to assess whether she had obstructive sleep apnea, are not in the claims file and are not located on VA's online records, system, Virtual VA. On remand, these records should be obtained. 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon at 83. A Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon at 83. While the May 2009 VA medical record reflect that the Veteran did not have a diagnosis of obstructive sleep apnea, VA medical records from October 2009 through November 2011 reveal a diagnosis of sleep apnea, and that the Veteran was using a CPAP mask. In addition, the VA examiner who provided the addendum to the May 2009 VA opinion did not discuss the evidence in the claims file showing a diagnosis of obstructive sleep apnea. Finally, the Veteran has submitted a private medical record showing an impression of obstructive sleep apnea. In this case, the Board finds that a VA examination is necessary to determine whether the Veteran has a current diagnosis of sleep apnea, as the record is unclear. Accordingly, the case is REMANDED for the following action: 1. Obtain all records of treatment related to the Veteran's sleep disorder. In particular, the sleep studies from June 2004 and 2006 and the titration study performed since that time should be associated with the claims file. 2. Schedule the Veteran for a VA examination to determine the correct diagnosis and etiology of the Veteran's sleep disorder. All indicated tests and studies should be conducted. The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine first as to whether the Veteran, at any time from June 2008 to the present, has a diagnosis of obstructive sleep apnea, and, to the extent possible, reconcile the conflicting opinions of record. The examiner should then provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any diagnosed sleep disorder has been either caused by the Veteran's service-connected hypothyroidism. If answered in the negative, then the examiner should further opine whether it is at least as likely as not that any diagnosed sleep disorder has been aggravated (made permanently worse beyond the progression of the disease) due to the service-connected hypothyroidism. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. 3. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs