Citation Nr: 0813487 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 05-19 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an increased rating for hypothyroidism, status post partial thyroidectomy, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for Raynaud's syndrome, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The veteran had active service from July 1949 to August 1952. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. FINDINGS OF FACT 1. Raynaud's syndrome is manifested by daily characteristic attacks. 2. Hypothyroidism is manifested by fatigability and constipation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for Raynaud's syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Code 7117 (2007). 2. The criteria for a 30 percent rating for hypothyroidism have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7903 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The Board also notes that during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. In the present case, the veteran's claim was received in December 2003, after the enactment of the VCAA. A letter dated in January 2004 advised the veteran that she should submit evidence demonstrating that her service- connected disabilities had worsened. She was told that such evidence could be from her physician or from other individuals who were able to describe from their knowledge and personal observations the manner in which the disabilities had become worse. The evidence of record was noted, and the veteran was told how VA would assist her in obtaining further evidence. She was also told what development actions had been taken by VA. A March 2006 letter discussed the manner in which VA determines disability ratings and effective dates. The Board has considered the adequacy of the VCAA notice in light of the recent Court decision in Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008). The March 2006 notice advised the veteran that, in evaluating claims for increase, VA looks at the nature and symptoms of the condition, the severity and duration of the symptoms, and their impact on employment. The letter did not advise the veteran whether the Diagnostic Codes pertinent to the disability contain criteria necessary for entitlement to a higher rating that would not be satisfied by the veteran's demonstration that there was a noticeable worsening or increase in severity of the disability and the effect of that worsening on the veteran's employment and daily life. However, the Board's review of the record demonstrates that the veteran had knowledge of what was necessary to substantiate her claim. In this regard, the Board notes that in a January 2004 statement, the veteran discussed the symptoms of her hypothyroidism and Raynaud's syndrome. A communication received in January 2007 indicated that the veteran's thyroid condition restricted her daily activities. A statement of the case dated in May 2005 provided the criteria for rating the veteran's service- connected disabilities, and was followed by a supplemental statement of the case in December 2006. In essence, the record demonstrates that the veteran was made aware of the evidence necessary to substantiate her claims for increase. The Board therefore finds that the fundamental fairness of the adjudication process is not compromised in this case. With respect to the timing of VCAA notice, the Board finds that any defect was harmless error. Although the notices were provided to the veteran both before and after the initial adjudication, there has been fundamental fairness. The content of the notice provided to the veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Not only has the veteran been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, but the actions taken by VA have essentially cured the error in the timing of notice. Further, the Board finds that 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 claim. Even if there is presumed prejudice, there has been fundamental fairness. As the Federal Circuit Court has stated, it is not required "that VCAA notification must always be contained in a single communication from the VA." Mayfield, supra, 444 F.3d at 1333. With respect to VA's duty to assist, identified treatment records have been obtained and associated with the record. VA examinations have been conducted. Neither the veteran nor her representative has identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2007). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2007). 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. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2007). Hypothyroidism The veteran's hypothyroidism is evaluated pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7903, which provides a 10 percent rating for hypothyroidism manifested by fatigability, or continuous medication required for control of symptoms. A 30 percent rating is warranted for hypothyroidism characterized by fatigability, constipation, and mental sluggishness. On VA examination in January 2004, the examiner noted that the veteran underwent partial thyroidectomy in 1952 for uncontrolled hyperthyroidism. She noted that the veteran was on hormone replacement therapy and that her weight was stable. She denied any hyper- or hypothyroid symptoms. The impression was status post partial thyroidectomy for hyperthyroidism, currently requiring Synthroid. Subsequently in January 2004, the veteran submitted a statement indicating that her medication had been increased. She noted that she had begun to have trouble with constipation, fatigue, and dry skin. A May 2005 medication list indicates that the veteran was prescribed psyllium for regularity. An additional VA examination was carried out in August 2007. The examiner noted that there was no report of fatigability, sleepiness, tremor, emotional instability, slowing of thought, poor memory, difficulty breathing and swallowing, or depression. She noted that the condition did not affect the veteran's body weight. She indicated that there was on gastrointestinal complication. She also noted that there was no side effect from treatment. The diagnosis was hypothyroidism. A VA outpatient treatment note dated in January 2008 indicates that the veteran had persistent constipation, with infrequent stooling despite using medications. A February 2008 note also indicates that the veteran was suffering from constipation. Having carefully reviewed the record, the Board concludes that a 30 percent evaluation is warranted for hypothyroidism. Such an evaluation contemplates fatigability and constipation. The record supports findings showing those symptoms. Accordingly a 30 percent evaluation is for application. However, an evaluation exceeding 30 percent is not warranted. In this regard the Board notes that an evaluation of 60 percent requires findings of muscular weakness, mental disturbance, and weight gain. The evidence demonstrates that the veteran's weight has actually remained constant or decreased during the pendency of this appeal. Moreover, there is no indication of muscular weakness or mental disturbance associated with the veteran's hypothyroidism. Accordingly, the Board finds that a 30 percent evaluation, and no higher, is warranted for this disability. In reaching its conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert. Raynaud's Syndrome Raynaud's phenomenon is characterized by vasospastic attacks that cause the blood vessels to constrict. The condition mainly affects the fingers, toes, ears and nose, and is often triggered by exposure to cold or emotional stress. Raynaud's phenomenon is rated pursuant to 38 C.F.R. § 4.104 diagnostic code 7117. The veteran's Raynaud's syndrome is currently evaluated as 40 percent disabling. Such an evaluation contemplates characteristic attacks occurring at least daily. A higher evaluation requires the presence of two or more digital ulcers and a history of characteristic attacks. Characteristic attacks consist of sequential color changes of the digits of one or more extremities lasting minutes to hours, sometimes with pain and paresthesias, and precipitated by exposure to cold or by emotional upsets. Id., The rating criteria also provide that the evaluation is for the disease as whole, regardless of the number of extremities involved or whether the nose and ears are involved. On VA examination in January 2004, the veteran reported that she was symptomatic when exposed to temperatures in the low 70s. She noted frequent changing color of her fingertips and denied involvement of her feet. Examination of the veteran's hands revealed purplish discoloration of the fingertips with capillary refill of four to five seconds. The veteran also had deformity of her hands consistent with rheumatoid arthritis. The impression was Raynaud's phenomenon involving the hands. A January 2005 VA outpatient record indicates the veteran's report of more trouble with Raynaud's phenomenon. She indicated that she experienced spontaneous attacks while doing nothing and while the house was warm. She reported that her spells lasted 30 to 40 minutes and that her fingers turned white, then red, then blue. She stated that the attacks were painful. An additional VA examination was conducted in August 2007. The veteran reported erythromelalgia occurring as often as five times per day, each episode lasting for two hours. She noted that the attacks occurred during the winter and spring and occasionally in the fall when the weather turned cold. The examiner indicated that there was no functional impairment resulting from the Raynaud's. The diagnosis was Raynaud's phenomenon. Having carefully reviewed the evidence pertaining to this claim, the Board concludes that an evaluation in excess of 40 percent is not warranted. In this regard, the Board notes that the current evaluation contemplates characteristic attacks occurring at least daily. A higher evaluation requires the presence of digital ulcers. The evidence demonstrates that the veteran does not have digital ulcers as the result of her Raynaud's syndrome. Rather, repeated evaluation of her hands has not revealed ulceration. As such, a higher evaluation is not for application. In reaching its conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an evaluation of 30 for hypothyroidism, status post partial thyroidectomy, is granted, subject to the controlling regulations applicable to the payment of monetary benefits. Entitlement to an increased rating for Raynaud's syndrome is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs