Citation Nr: 0811339 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 05-29 987 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for hypothyroidism The issues of entitlement to service connection for gastroesophageal reflux disease and entitlement to an initial evaluation in excess of 30 percent for hepatitis C will be addressed in a separate decision. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from July 1976 to August 1977. This appeal comes to the Board of Veterans' Appeals (Board) from an April 2004 rating action which granted service connection for hypothyroidism, and assigned a 10 percent evaluation for it. A May 2004 Board decision remanded a claim for waiver of recovery of Chapter 31 Subsistence Allowance debt. A July 2007 Committee on Waivers and Compromises granted the waiver. In addition, the Board notes that a September 2005 statement of the case addressed the issue of service connection for hiatal hernia. However, a substantive appeal was not filed. Accordingly, this decision is limited to the issue set forth on the cover page. FINDING OF FACT The veteran's hypothyroidism is manifested by the need for medication and normal thyroid function tests. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for hypothyroidism have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.14, 4.119, Diagnostic Code 7903 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act 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, and 5126 (West 2002) 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) (2006). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, supra. Here, the veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, at 490-91. Thus, because the notice that was provided in January 2004, before service connection was granted, was legally sufficient, VA's duty to notify in this case has been satisfied. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file include VA medical records, and VA examination reports. The veteran advised VA in March 2006 that VA had all of his medical records and had everything needed to substantiate his claim. There is no indication that there is additional evidence to obtain, and there is no additional notice that should be provided as the veteran indicated in his hearing testimony that he only receives treatment by VA. Those records have been obtained and the veteran has been afforded multiple VA examinations. The October 2006 supplemental statement of the case provided the rating criteria for his hypothyroidism, and the VA examinations included the veteran's contentions as to the impact of his disability on employment and daily functioning. Likewise, he provided testimony as to the impact of his hypothyroidism on his functioning. In short, the development of the case provided during the extensive administrative appellate proceedings served to render any extant notice error non- prejudicial. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Moreover, as the Board concludes below that the preponderance of the evidence is against the veteran's claim, any question as to an appropriate evaluation or effective date to be assigned is rendered moot. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Sanders, supra. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file, which includes: his multiple contentions, hearing testimony, VA medical records, and VA examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). As the veteran takes issue with the initial rating assigned when service connection was granted for hypothyroidism, the Board must evaluate the relevant evidence since the effective date of the award; it may assign separate ratings for separate periods of time based on facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). A 100 percent rating is warranted for hypothyroidism when manifested by cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. A 60 percent rating requires muscular weakness, mental disturbance, and weight gain. A 30 percent rating is warranted for fatigability, constipation, and mental sluggishness. A 10 percent rating is warranted when manifested by fatigability, or continuous medication required for control of symptoms. 38 C.F.R. § 4.119, Diagnostic Code 7903. When examined by the VA in January 2004, it was reported that the veteran was found to have elevated TSH in 1999, but that, following treatment, the TSH level normalized. The veteran complained that he always felt tired and that his legs tended to fall asleep. He reported constipation that comes and goes a little, but there was no indication of cold intolerance. An examination revealed that muscle strength was 5/5 in all extremities. The veteran was seen in a VA outpatient treatment clinic in May 2004, and it was reported that laboratory tests that month showed normal thyroid function studies. The April 2006 VA examination revealed that the veteran's thyroid condition was stable on medication. It was noted the veteran complained of memory loss, lack of stamina, weakness and fatigue. However, thyroid function tests in December 2005 were normal, there was no deficit in muscle or deep tendon strength, and no evidence of slow speech or signs of dementia. The examiner diagnosed the veteran as euthyroid. Normal memory was noted on the VA psychiatric examination in March 2005, and such was not objectively tested on the April 2006 thyroid examination. Outpatient treatment records note the veteran's hypothyroidism has been stable since initiation of medication. When seen by his primary care physician, he did not report the same subjective complaints that he reported on the April 2006 examination. In fact, the diagnosis in the treatment records is hypothyroidism, repleted. Moreover, he reported feeling well in June 2006 outpatient reports. In response to his request in October 2006 for a statement to VA vocational rehabilitation that his service connected disabilities have made it impossible for him to work as a truck driver or electrician's helper, his primary care provider advised him that his thyroid was stabilized and his hepatitis C viral load was negligible, and that he needed to talk to the mental health staff if his psychiatric disorder prevented him from engaging in those occupations. The Board finds the objective findings showing normal thyroid functioning studies and the objective findings in the medical evidence of record are entitled to greater probative weight than the veteran's subjective complaints at the time of the examinations, at his hearing, and in correspondence. Moreover, the veteran's subjective complaints are the same as those currently being compensated under his hepatitis C and adjustment disorder conditions. In this regard, the evaluation of the same disability under various diagnoses is to be avoided. Both the use of manifestations not resulting from service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14 (2007) (emphasis added). The Court has held that a claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has held that separate awards may be granted only when "none of the symptomatology for ... [each of the claimed] conditions is duplicative of or overlapping with the symptomatology of the other ... conditions." Esteban v. Brown, 6 Vet. App. 259, 262 (1994) The veteran is in receipt of a 30 percent evaluation for his hepatitis C based on symptoms including fatigue and gastrointestinal disturbance. He is also in receipt of a 30 percent evaluation for adjustment disorder based upon symptoms including sleep impairment, attention and concentration impairment, and depressed mood. The rating for that condition also contemplates memory impairment. In this case, the veteran's subjective complaints are already being compensated for under other service-connected disabilities, and the objective findings essentially show a normally functioning thyroid with the use of medication since the date of service connection. Thus, the Board finds that there is no basis for an evaluation in excess of the 10 percent rating currently assigned for his thyroid disorder. See 38 C.F.R. § 4.14. In reaching this decision, the Board has considered the issue of whether the veteran's service-connected hypothyroidism presented an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2003); Bagwell v. Brown, 9 Vet. App. 337, 338-339 (1996). In this regard, the Board notes that the evidence does not show that the veteran has been hospitalized for the disorder. Moreover, while the veteran has had multiple subjective complaints which he contends interfere with employment, objectively his thyroid is functioning normally with medication. Thus, marked interference has not been shown. This is further supported by the implicit finding of his primary care provider that the condition did not impact him sufficiently to render him in need of vocational rehabilitation services. Therefore, in the absence of exceptional or unusual factors, the Board finds that the criteria for submission for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. ORDER An initial evaluation in excess of 10 percent for hypothyroidism is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs