Citation Nr: 0812748 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 06-01 077 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a chronic skin disorder to the hands, arms, and legs. 2. Entitlement to a rating in excess of 10 percent prior to October 2, 2005, for Grave's disease, status post radioactive iodine of the thyroid gland, and in excess of a 30 percent rating after October 3, 2006. ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a veteran who served on active duty from August 1978 to August 1987, from September 1998 to August 1999, from November 2001 to May 2004, and from October 2005 to October 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA), which, among other things, established service connection for Grave's disease effective from May 16, 2004, and denied entitlement to service connection for an allergic rash. The Board notes that the veteran subsequently perfected her appeal as to these determinations, but that she was also called back to active duty from October 3, 2005, to October 2, 2006. VA regulations provide that compensation is to be discontinued during any period in which the veteran received active service pay and that compensation is authorized at the degree of disability found when the award is resumed. 38 C.F.R. § 3.654 (2007). FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issues on appeal was obtained. 2. The evidence demonstrates a skin disorder to the hands, arms, and legs was manifest during active service and has required continued treatment since active service. 3. Prior to a period of active service beginning on October 3, 2005, Grave's disease was manifested by no more than fatigability with continuous medication required for control; and after service separation on October 2, 2006, Grave's disease is manifested by no more than fatigability, constipation, and mental sluggishness. CONCLUSIONS OF LAW 1. A chronic skin disorder to the hands, arms, and legs was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 3.303 (2007). 2. The criteria for a rating in excess of 10 percent prior to October 2, 2005, for Grave's disease, status post radioactive iodine of the thyroid gland, and in excess of a 30 percent rating after October 3, 2006, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 4.119, Diagnostic Codes 7900, 7903 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (hereinafter "the Court") have been fulfilled by information provided to the veteran by correspondence dated in January 2005. That letter notified the veteran of VA's responsibilities in obtaining information to assist in completing her claims, identified the veteran's duties in obtaining information and evidence to substantiate her claims, and requested that she send in any evidence in her possession that would support her claims. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in March 2006. The Board further finds that in statements provided in her December 2005 VA Form 9, the veteran has demonstrated actual knowledge of all relevant VA laws and regulations. See Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). The notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to these matters have been requested or obtained. Further attempts to obtain additional evidence would be futile. The Board finds the available medical evidence is sufficient for adequate determinations. There has been substantial compliance with all pertinent VA law and regulations and to move forward with these claims would not cause any prejudice to the appellant. Service Connection Claim Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2007). Based upon the evidence of record, the Board finds that a skin disorder to the hands, arms, and legs was manifest during active service and has required continued treatment since active service. Service medical records show the veteran was treated for a rash over the body in November 1980. The diagnosis was urticaria. In February 1983, she was treated for cystic acne of the cheeks. In January 1984, she was treated for multiple cysts on the neck. In March 1985, a dermatology consultation was requested to evaluate chronic crusting lesions on the neck. In April 1985, she was evaluated for acne on the neck. Kenalog spray was prescribed. In June 1986, it was noted that the veteran needed a refill of Kenalog spray. In February 1993, she was treated for cystic acne A September 2003 report noted an area of thickened plaque to the dorsum right hand. The diagnosis was eczema versus lichen planus. Records dated in December 2003 show the veteran complained of intermittent itching to the body for one and a half years. A January 2004 examination revealed lichenified, hyperpigmented areas to the legs and hands. The diagnoses included xerosis, irritant dermatitis, and pruritis. Service department pharmacy records show the veteran was prescribed lotions and creams in January 2004, April 2004, and November 2004 with instructions including application to the hands and legs. Service department outpatient treatment records dated through November 2006 note an ongoing prescription for Topicort, a topical corticosteroid. On VA examination in February 2005 the veteran complained of intermittent episodes of dark spots and itching to the body. She stated she used topical medication to control the disorder. The examiner noted there was no evidence of a rash and a diagnosis could not be provided. Similar findings were noted upon VA examination in October 2006. Although recent VA examinations revealed no objective evidence of a skin disorder, the Board finds the veteran's statements and service department pharmacy records are persuasive that a skin disorder manifest during active service to the hands, arms, and legs is chronic. The evidence shows the veteran has been using topical medications for her skin disorder over an apparently sustained period of time. There is no indication that the disorder has resolved or that continued medication to control the disorder is no longer required. Therefore, the Board finds that entitlement to service connection for a chronic skin disorder to the hands, arms, and legs is warranted. Increased Rating Claim Pertinent Laws and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155(West 2002); 38 C.F.R. § 4.1 (2007). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). Upon award of service connection, separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). It is the responsibility of the rating specialist to interpret reports of examination in the 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 present. 38 C.F.R. § 4.2 (2007). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service- connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2007). When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7 (2007). The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2007). 7900 Hyperthyroidism Rating Thyroid enlargement, tachycardia (more than 100 beats per minute), eye involvement, muscular weakness, loss of weight, and sympathetic nervous system, cardiovascular, or gastrointestinal symptoms 100 Emotional instability, tachycardia, fatigability, and increased pulse pressure or blood pressure 60 Tachycardia, tremor, and increased pulse pressure or blood pressure 30 Tachycardia, which may be intermittent, and tremor, or; continuous medication required for control 10 Note 1: If disease of the heart is the predominant finding, evaluate as hyperthyroid heart disease (DC 7008) if doing so would result in a higher evaluation than using the criteria above. Note 2: If ophthalmopathy is the sole finding, evaluate as field vision, impairment of (DC 6080); diplopia (DC 6090); or impairment of central visual acuity (DC 6061-6079). 7903 Hypothyroidism Rating Cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness 100 Muscular weakness, mental disturbance, and weight gain 60 Fatigability, constipation, and mental sluggishness 30 Fatigability, or; continuous medication required for control 10 38 C.F.R. § 4.119, Diagnostic Codes 7900, 7903 (2007). Factual Background and Analysis Service medical records show that upon examination in May 2002 the veteran weighed 149 pounds (lbs) and her distant vision was correctable to 20/15, right, and 20/20, left. A blood pressure reading of 110/71 was provided. The examiner noted the veteran was under evaluation for Grave's disease. Records show a diagnosis of Grave's disease was provided in August 2002 and that the veteran underwent radioactive iodine ablation therapy in October 2002. An April 2004 report noted a review of systems was negative for malaise, fatigue, significant/unexpected weight gain/loss, depression, anxiety, change in vision, blurriness, or chest pain. On VA examination in February 2005 the veteran complained of heart palpitations since 2002 with associated dizziness, shortness of breath, and fatigue. She stated these symptoms flared-up approximately twice per day and lasted about 20 minutes. She also complained of intermittent slowness of thought, emotional instability, and depression. She denied angina, fainting, heart problems, or rheumatic heart disease. It was noted that she previously had symptoms of tremors, depression, difficulty breathing, emotional instability, and fatigability which were treated by ablation of the thyroid gland followed by Synthroid replacement. The examiner noted the veteran weighed 168 lbs. Blood pressure readings of 120/90, sitting, 120/60, standing, and 120/80, supine, were reported. Eye, heart, abdominal, and mental status examinations were normal. The examiner noted there was no pathology to render a diagnosis of heart palpitations and that the veteran's Grave's disease had been treated by ablation. It was noted she was on thyroid replacement therapy. An ear, nose, and throat examination report, in essence, noted a diagnosis for the veteran's complaints of dizziness and light-headedness could not be provided, but that her ears and hearing were normal. In her December 2005 substantive appeal the veteran reported her Grave's disease symptoms had not completely resolved. She stated she experienced mental sluggishness, sleepiness, hand tremors, fatigability, weight gain, hair loss, and constipation. Service department treatment records dated in January 2006 noted the veteran weighed 172 lbs. Her blood pressure was 108/60. She complained of a two year history of fatigue, sleep disturbance, slight tremor, hot flashes, and mental sluggishness. She stated these symptoms had increased over the past several months. The examiner noted that her symptoms were likely perimenopausal, but that she was on a lower than expected dose of Synthroid for her weight and may be experiencing a decline in residual gland function. An August 2006 report noted a diagnosis of obstructive sleep apnea. It was also noted that there was no history of coronary artery disease, congestive heart failure, hypertension, or depression. On VA examination in October 2006 the veteran complained of continued fatigue, sleepiness, tremors, slow thought, and depression. She also complained of occasional heart palpations and hair loss. The examiner noted that she was taking Synthroid and that the veteran had no functional impairment as a result of this disorder. It was noted that the veteran weighed 163 lbs. Blood pressure readings of 130/80, sitting, 128/80, standing, and 120/70, supine, were reported. Her general appearance was normal and there was no sign of malaise. An examination of the eyes revealed no sign of hyperthyroidism on the left or right. There was no lid retraction, lid lag, or exophthalmus. Neck, heart, and abdominal examinations were normal. There was no hand tremor. The examiner stated there was no objective evidence of chronic fatigue or hair loss. The diagnoses included Grave's disease, status post radioactive iodine thyroid gland, which required daily Synthroid to maintain thyroid function. VA treatment records dated in January 2007 show the veteran denied chest pains, palpitations, gastrointestinal pain, nausea, vomiting, diarrhea, melena, depression, and anxiety. The veteran's weight was 160 lbs and a blood pressure reading of 120/69 was provided. The diagnoses included hypothyroid, renew Synthroid, and sleep apnea. Based upon the evidence of record, the Board finds that the veteran's service-connected Grave's disease, status post radioactive iodine of the thyroid gland, prior to a period of active service on October 2, 2005, was manifested by no more than fatigability with continuous medication required for control. There is no objective evidence of cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance, bradycardia, sleepiness, weight gain, constipation, or mental sluggishness as a result of this disability. A January 2006 service department treatment report noted the veteran's symptoms were likely perimenopausal. An August 2006 service department report also provided a diagnosis of obstructive sleep apnea. The findings of the February 2005 VA examiner are persuasive as to the level of disability at that point in time. Therefore, a rating in excess of 10 percent prior to October 2, 2005, is not warranted. The evidence demonstrates that since October 3, 2006, the veteran's disability has been manifested by no more than fatigability, constipation, and mental sluggishness. There is no objective evidence of emotional instability, tachycardia, fatigability, and increased pulse pressure or blood pressure, nor is there evidence of muscular weakness, mental disturbance, and weight gain; as a result of this disability. The October 2006 VA examiner's opinion that there was no functional impairment as a result of this disorder is considered to be persuasive. The examiner further noted that there was no sign of malaise or hyperthyroidism and that examinations of the neck, heart, and abdominal were normal. There was no hand tremor and no objective evidence of chronic fatigue or hair loss. VA treatment records in January 2007 also show the veteran denied experiencing symptoms of palpitations, gastrointestinal pain, or depression. Therefore, a rating in excess of 30 percent after October 3, 2006, is not warranted. The Board also finds there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to this service-connected disorder, that would take the veteran's case outside the norm so as to warrant an extraschedular rating. There is no probative evidence demonstrating a marked interference with employment. In fact, the October 2006 VA examiner found no functional impairment as a result of this disorder. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the veteran's claim. ORDER Entitlement to service connection for a chronic skin disorder to the hands, arms, and legs is granted. Entitlement to a rating in excess of 10 percent prior to October 3, 2006, for Grave's disease, status post radioactive iodine of the thyroid gland, and in excess of a 30 percent rating after October 3, 2006, is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs