Citation Nr: 0813629	
Decision Date: 04/24/08    Archive Date: 05/01/08

DOCKET NO.  95-20 175	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, 
Georgia


THE ISSUES

1.  Entitlement to an increased rating for hypothyroidism 
secondary to radiation therapy, currently rated as 10 percent 
disabling.

2.  Entitlement to an increased rating for weakness of the 
left upper extremity secondary to surgery and radiation 
therapy, currently rated as 20 percent disabling.

3.  Entitlement to extra-schedular consideration for weakness 
of the left upper extremity secondary to surgery and 
radiation therapy.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans 
Services


ATTORNEY FOR THE BOARD

J. Smith, Associate Counsel
INTRODUCTION

The veteran served on active duty from May 1979 to March 
1983.
        
The veteran's claim comes before the Board of Veterans' 
Appeals (Board) on appeal from a May 1994 rating decision of 
the Department of Veterans Affairs' (VA) Regional Office (RO) 
in Atlanta, Georgia, that denied the benefits sought on 
appeal.  

The issue of an increased rating for 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

1.  The veteran is currently in receipt of the maximum 
benefit allowable for paralysis of the long thoracic nerve in 
her left arm, and the disability is not manifested by 
ankylosis of the scapulohumeral articulation, motion of the 
arm limited to 25 degrees from the side, or impairment of the 
humerus, a severe muscle injury, or paralysis of other 
nerves.

2.  This case presents such an exceptional or unusual 
disability picture as to render impractical the application 
of the regular schedular standards.


CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 20 percent for 
weakness of the left upper extremity secondary to surgery and 
radiation therapy are not met. 38 U.S.C.A. § 1155 (West 
2002); 38 C.F.R. §§ 4.71a, 4.73, 4.124a, Diagnostic Codes 
5200-5202, 5301-5309, 8599-8519 (2007).  

2.  The severity of the veteran's weakness of the left upper 
extremity secondary to surgery and radiation therapy warrants 
referring this case to the Under Secretary for Benefits or 
the Director of Compensation and Pension Service for 
consideration of an extra-schedular rating.  38 U.S.C.A. § 
7104; 38 C.F.R. §§ 3.321(b)(1), 4.16(b).


REASONS AND BASES FOR FINDING AND CONCLUSION

Disability evaluations are determined by the application of a 
schedule of ratings which is based on the average impairment 
of earning capacity in civil occupations.  See 38 U.S.C.A. 
§ 1155.  Separate diagnostic codes identify the various 
disabilities.  The assignment of a particular diagnostic code 
is dependent on the facts of a particular case.  See Butts v. 
Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may 
be more appropriate than another based on such factors as an 
individual's relevant medical history, the current diagnosis, 
and demonstrated symptomatology.  In reviewing the claim for 
a higher rating, the Board must consider which diagnostic 
code or codes are most appropriate for application in the 
veteran's case and provide an explanation for the conclusion.  
See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).  

At the outset the Board notes that the veteran was awarded 
service connection for her left arm condition and awarded a 
10 percent evaluation in a June 1988 rating decision.  She 
was advised of her appellate rights in July 1988, did not 
appeal, and the decision became final. In February 1994 the 
veteran sought an increase for this disability.  While the 
veteran's entire history is reviewed when making a disability 
determination, 38 C.F.R. § 4.1, where service connection has 
already been established and an increase in the disability 
rating is at issue, it is a present level of disability that 
is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 
(1994).  The Board notes that a January 2004 rating decision 
increased the evaluation for this disability to 20 percent, 
effective from the date of her February 1994 claim.  
Accordingly, at issue presently is whether the veteran is 
entitled to a rating in excess of 20 percent for her left arm 
weakness.

The veteran has been rated for this disability under 
diagnostic code (DC) 8519 for paralysis of the long thoracic 
nerve.  Under this code, a rating of 30 percent is warranted 
only where there is complete paralysis of the nerve in the 
major extremity.  A rating of 20 percent is the maximum 
rating allowable under the code for a minor extremity.  The 
medical record, including July 1997 and October 2003 VA 
examinations, as well as the veteran's medical records at 
entry into service, show that the veteran is right handed.  
As such, the veteran is currently receiving the highest 
possible rating allowed under DC 8519.

In light of this, the Board must consider other diagnostic 
codes to determine whether the veteran may be entitled to a 
higher rating.  The Board will examine musculoskeletal codes 
pertaining to the upper arm, codes pertaining to muscle 
injuries, and other codes of the peripheral nerves.

 Taking the musculoskeletal codes first, diagnostic codes 
5200-5203 pertain to the shoulder and arm.  DC 5200 provides 
ratings based on ankylosis of the scapulohumeral 
articulation, where the scapula and humerus move as one 
piece.  This condition is not raised anywhere in the medical 
evidence.  DC 5201 provides for a 30 percent rating where 
motion of the arm is limited to 25 degrees from the side.  
The evidence does not support this.  The motion described in 
this diagnostic code is reflected in measurements of forward 
elevation (flexion) and abduction, so these are the only 
measurements that will be discussed.  See 38 C.F.R. § 4.71, 
Plate I.  At a September 2007 VA examination, the range of 
motion of the shoulder was 180 degrees in both abduction and 
forward flexion.  A VA treatment note from June 2007 stated 
the veteran was unable to raise her left arm above her 
shoulder, but this only means she had less than 90 degrees of 
motion.  See id.  The note does not support that she had less 
than 25 degrees of motion.  At a VA examination of October 
2003, she demonstrated forward flexion of the left shoulder 
to 45 degrees.  In December 2001 it was found the veteran 
could not raise her left arm above her head, but again, this 
does not support her inability to raise her arm more than 25 
degrees.  In an August 1998 private medical report she had a 
"full range of motion of all extremities."  At a VA 
examination in July 1997 she demonstrated left shoulder 
abduction to 90 degrees.  For these reasons, a higher rating 
is not warranted under DC 5201.  DC 5202 provides ratings 
based on impairment of the humerus, but this is not raised by 
the medical evidence.  X-rays taken in July 2004, for 
example, did not show abnormalities in this regard.  DC 5203 
is not applicable because it does not provide ratings in 
excess of 20 percent.   

As such, the veteran cannot be afforded a higher rating for 
her left upper extremity disability based on the relevant 
musculoskeletal codes.  The Board has considered all 
applicable statutory and regulatory provisions to include 38 
C.F.R. §§ 4.40 and 4.59 as well as the holding in DeLuca v. 
Brown, 8 Vet. App. 202 (1995), regarding functional 
impairment attributable to pain, particularly in light of the 
fact that the appellant contends her disability is 
essentially manifested by pain.  However, the September 2007 
VA examiner found no pain on motion.  The May 2007 VA 
examiner found there was no additional limitation of motion 
due to pain, fatigue, weakness, or lack of endurance 
following repetitive use.  The October 2003 VA examiner found 
the veteran could not forward flex her shoulder beyond 45 
degrees due to pain.  The July 1997 VA examiner found the 
veteran could not demonstrate abduction past 90 degrees 
without severe pain.  Despite this, there is no objective 
evidence that movement of the veteran's arm from her side is 
limited to 25 degrees and the recent September and May 2007 
examination findings are probative.  Accordingly, a higher 
rating due to functional loss and pain cannot be assigned.
As for the codes pertaining to muscle injuries, diagnostic 
codes 5301-5309 provide ratings for muscle injuries to the 
shoulder girdle and arm.  In order to warrant a rating in 
excess of 20 percent for the non-dominant extremity under any 
of these diagnostic codes, the evidence must support a 
"severe" muscle injury.  The Board notes that on July 3, 
1997, during the pendency of this appeal, diagnostic code 
series 5300 was revised, but the prior version of the ratings 
also required a "severe" muscle injury to warrant a rating 
in excess of 20 percent for the non-dominant extremity.
Under the old version of the rating criteria, a "severe" 
muscle injury was defined as follows: Type of injury: Through 
and through or deep penetrating wound due to high velocity 
missile, or large or multiple low velocity missiles, or 
explosive effect of high velocity missile, or shattering bone 
fracture with extensive debridement or prolonged infection 
and sloughing of soft parts, intermuscular binding and 
cicatrization. History and complaint: As under moderately 
severe (paragraph (c) of this section), in aggravated form. 
Objective findings: Extensive ragged, depressed, and adherent 
scars of skin so situated as to indicate wide damage to 
muscle groups in track of missile. X-ray may show minute 
multiple scattered foreign bodies indicating spread of 
intermuscular trauma and explosive effect of missile. 
Palpation shows moderate or extensive loss of deep fascia or 
of muscle substance. Soft or flabby muscles in wound area. 
Muscles do not swell and harden normally in contraction. 
Tests of strength or endurance compared with the sound side 
or of coordinated movements show positive evidence of severe 
impairment of function. In electrical tests, reaction of 
degeneration is not present but a diminished excitability to 
faradic current compared with the sound side may be present. 
Visible or measured atrophy may or may not be present. 
Adaptive contraction of opposing group of muscles, if 
present, indicates severity. Adhesion of scar to one of the 
long bones, scapula, pelvic bones, sacrum or vertebrae, with 
epithelial sealing over the bone without true skin covering, 
in an area where bone is normally protected by muscle, 
indicates the severe type. Atrophy of muscle groups not 
included in the track of the missile, particularly of the 
trapezius and serratus in wounds in the shoulder girdle 
(traumatic muscular dystrophy), and induration and atrophy of 
an entire muscle following simple piercing by a projectile 
(progressive sclerosing myositis), may be included in the 
severe group if there is sufficient evidence of severe 
disability.
Under the current version of the regulations, a "severe" 
muscle injury is defined as follows: (i) Type of injury. 
Through and through or deep penetrating wound due to high- 
velocity missile, or large or multiple low velocity missiles, 
or with shattering bone fracture or open comminuted fracture 
with extensive debridement, prolonged infection, or sloughing 
of soft parts, intermuscular binding and scarring. (ii) 
History and complaint. Service department record or other 
evidence showing hospitalization for a prolonged period for 
treatment of wound. Record of consistent complaint of 
cardinal signs and symptoms of muscle disability as defined 
in paragraph (c) of this section, worse than those shown for 
moderately severe muscle injuries, and, if present, evidence 
of inability to keep up with work requirements. (iii) 
Objective findings. Ragged, depressed and adherent scars 
indicating wide damage to muscle groups in missile track. 
Palpation shows loss of deep fascia or muscle substance, or 
soft flabby muscles in wound area. Muscles swell and harden 
abnormally in contraction. Tests of strength, endurance, or 
coordinated movements compared with the corresponding muscles 
of the uninjured side indicate severe impairment of function. 
If present, the following are also signs of severe muscle 
disability: (A) X-ray evidence of minute multiple scattered 
foreign bodies indicating intermuscular trauma and explosive 
effect of the missile. (B) Adhesion of scar to one of the 
long bones, scapula, pelvic bones, sacrum or vertebrae, with 
epithelial sealing over the bone rather than true skin 
covering in an area where bone is normally protected by 
muscle. (C) Diminished muscle excitability to pulsed 
electrical current in electrodiagnostic tests. (D) Visible or 
measurable atrophy. (E) Adaptive contraction of an opposing 
group of muscles. (F) Atrophy of muscle groups not in the 
track of the missile, particularly of the trapezius and 
serratus in wounds of the shoulder girdle. (G) Induration or 
atrophy of an entire muscle following simple piercing by a 
projectile.
The evidence here does not support a finding of a "severe" 
muscle injury under either the current or prior version of 
the rating schedule.  The September 2007 VA examiner noted 
there was no objective evidence of weakness.  The veteran was 
able to demonstrate normal strength, equal to that on the 
opposite side.  Her functional impairment was described as 
"mild."  The May 2007 VA examiner found, "[i]n all muscles 
groups of the left upper extremity, she demonstrates 
intermittent and brief normal strength compared to the 
opposite side with cogwheeling."  The October 2003 VA 
examiner found there is no atrophy in either her upper arm, 
forearm, hand, or fingers.  The July 1997 VA examiner also 
found no atrophy of the upper left arm.  While the 
examination revealed decreased motor strength, the Board does 
not find it rises to the level of a "severe" injury.  
Suprascapular strength was 3/5 on the left with 5/5 on the 
right, deltoid strength was 3+/5 on the left with 4-/5 on the 
right, biceps were 4/5 on the left with 4+/5 to 5/5 on the 
right, triceps were 3+/5 on the left and 5/5 on the right.  A 
separate July 1997 VA examiner found that overall she had 4-
5/5 muscle strength and that there was no atrophy in the left 
upper extremity as compared to the right.  The further 
symptomatology described in the regulations above, including 
that pertaining to foreign bodies in the muscle and scarring, 
is not part of the veteran's disability as her left arm 
weakness is the result of cancer surgery and radiation.  
Based on all of this evidence, the Board does not find that 
an increased rating is warranted under the muscle injury 
codes.  
As for other codes of the peripheral nerves, the Board finds 
the medical evidence does not support an increased rating in 
this regard either.  In fact, there is no objective evidence 
of any paralyzed nerve anywhere in the medical record.  By 
contrast, in the recent September 2007 VA examination of the 
peripheral nerves the examiner found "[t]here is no 
paralysis, only an alleged tremor, which has not been 
observed, as well as alleged weakness, which was not 
appreciated."  The same physician examined the veteran in 
May 2007 and found no tremor then either.  In an October 2003 
VA examination of the peripheral nerves the examiner found 
normal sensation throughout the upper extremity.  A July 1997 
examiner found the veteran "could have" a central nerve 
injury but made no specific finding of one or of any 
paralysis.  The medical record contains evidence of nerve 
problems, to include radiculopathy of the cervical spine, 
noted for example, in the May 2007 report, but there is no 
evidence of  nerve paralysis in the medical evidence.
For all of these reasons, an increased rating for the 
weakness of the veteran's left upper extremity secondary to 
surgery and radiation therapy must be denied.
Extra-Schedular Consideration
It is generally provided that the rating schedule will 
represent, as far as can practicably be determined, the 
average impairment in earning capacity in civil occupations 
resulting from a service-connected disability.  38 C.F.R. § 
3.321(a).  In the exceptional case, however, where the 
schedular evaluations are found to be inadequate, the Under 
Secretary for Benefits or the Director, Compensation and 
Pension Service, upon field station submission, is authorized 
to approve on the basis of the criteria set forth in this 
paragraph an extraschedular evaluation commensurate with the 
average earning capacity impairment due exclusively to the 
service-connected disability or disabilities.  38 C.F.R. § 
3.321(b)(1).  The governing norm in these exceptional cases 
is:  a finding that the case presents such an exceptional or 
unusual disability picture with such related factors as 
marked interference with employment or frequent periods of 
hospitalization as to render impractical the application of 
the regular schedular standards.  Id.
	
It is, however, improper for the Board to address, in the 
first instance, the issue of extraschedular ratings (See 
Bagwell v. Brown, 9 Vet. App. 157, 158 (1996); Floyd v. 
Brown, 9 Vet. App. 88, 94 (1996)).  The Court has held that, 
where the Board has purported to grant an extra-schedular 
rating, the claim must be sent by the Board to those 
"officials who possess the delegated authority to assign 
such a rating in the first instance."  Floyd v. Brown, 9 
Vet. App. at 95.

In the November 2007 supplemental statement of the case, the 
RO found that the evidence did not establish such exceptional 
factors or circumstances associated with the veteran's 
disablement as to warrant the referral for extraschedular 
consideration.  The RO did not forward the case to the Under 
Secretary for Benefits or to the Director of Compensation and 
Pension Service for consideration of the assignment of an 
extraschedular rating.  The Board disagrees with this 
determination. 

The veteran's left arm weakness presents both a medically and 
legally complicated issue.  As described in detail above, the 
schedular requirements for an increased rating are not met.  
However, the July 1997 VA examiner found, "I would describe 
this as a severe disability and [sic] unable to do any work 
with that side."  The veteran has reported throughout the 
record that her left arm disability significantly interferes 
and/or interferes with her ability to work.  She told the 
October 2003 examiner, for example, that she is only able to 
answer phones and cannot do any other office activities 
because of her left arm.  She reported that she is unable to 
type with the left arm or button shirts.  She reported to the 
July 1997 examiner that she cannot really use the arm, other 
than to "sort of push things or sort of cradle things."  A 
February 1998 oncologist stated that the weakness in the 
veteran's left arm is unlikely to improve and may worsen over 
time.   Significantly, he also stated the veteran's weakness 
has "left her unable to perform her normal secretarial 
duties and has caused her significant pain as she made a 
valiant effort to continue to work with her disability," 
adding that she will have to find work "which does not 
require use of her left arm."  He described the arm as 
"non-functional."  The Board finds that the sum of this 
evidence is deserving of a referral to the under Secretary 
for Benefits or to the Director of Compensation and Pension 
Service for consideration of the assignment of an 
extraschedular rating. 



Notice and Assistance

Under applicable law, VA has a 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 or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  Proper notice from VA 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; (3) that the claimant is expected to provide; and 
(4) must ask the claimant to provide any evidence in her or 
his possession that pertains to the claim in accordance with 
38 C.F.R. § 3.159(b)(1).  This notice must be provided prior 
to an initial unfavorable decision on a claim by the agency 
of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. 
App. 112 (2004).  

The Board finds that the content requirements of a duty to 
assist notice have been fully satisfied.  See 38 U.S.C.A. § 
5103(a); 38 C.F.R. § 3.159(b).  Letters from the RO dated in 
January 2004, July 2004, and February 2007 provided the 
veteran with an explanation of the type of evidence necessary 
to substantiate her claim, as well as an explanation of what 
evidence was to be provided by her and what evidence the VA 
would attempt to obtain on her behalf.  The letter of 
February 2007 provided the appellant with information 
concerning the evaluation and effective date that could be 
assigned should her claim be granted, pursuant to Dingess v. 
Nicholson, 19 Vet. App. 473 (2006).  VA has no outstanding 
duty to inform the veteran that any additional information or 
evidence is needed.



The veteran's initial duty-to-assist letter was not provided 
before the adjudication of her claim.  However, after she was 
provided the letters she was given a full opportunity to 
submit evidence, and her claim was subsequently 
readjudicated.  She has not claimed any prejudice as a result 
of the timing of the letters, and the Board finds no basis to 
conclude that any prejudice occurred.  Any notice defect in 
this case was harmless error.  The content of the aggregated 
notices, including the notice letters subsequently issued, 
fully complied with the requirements of 38 U.S.C.A. § 5103(a) 
and 38 C.F.R. § 3.159(b).  After VA provided this notice, the 
veteran communicated on multiple occasions with VA, without 
informing it of pertinent evidence.  The veteran has been 
provided with every opportunity to submit evidence and 
argument in support of her claim, and to respond to VA 
notices.  For all of these reasons, the Board concludes that 
the appeal may be adjudicated without a remand for further 
notification.  

In addition, the Board calls attention to the Court's recent 
decision in Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. 
App. January 30, 2008).  In Vazquez-Flores, the Court found 
that, at a minimum, adequate VCAA notice requires that VA 
notify the claimant that, to substantiate such a claim: (1) 
the claimant must provide, or ask VA to obtain, medical or 
lay evidence demonstrating a worsening or increase in 
severity of the disability and the effect that worsening has 
on the claimant's employment and daily life; (2) if the 
diagnostic code under which the claimant is rated contains 
criteria necessary for entitlement to a higher disability 
rating that would not be satisfied by the claimant 
demonstrating a noticeable worsening or increase in severity 
of the disability and the effect of that worsening has on the 
claimant's employment and daily life (such as a specific 
measurement or test result), the Secretary must provide at 
least general notice of that requirement to the claimant; (3) 
the claimant must be notified that, should an increase in 
disability be found, a disability rating will be determined 
by applying relevant Diagnostic Codes, which typically 
provide for a range in severity of a particular disability 
from noncompensable to as much as 100 percent (depending on 
the disability involved), based on the nature of the symptoms 
of the condition for which disability compensation is being 
sought, their severity and duration, and their impact upon 
employment and daily life; and (4) the notice must also 
provide examples of the types of medical and lay evidence 
that the claimant may submit (or ask the Secretary to obtain) 
that are relevant to establishing entitlement to increased 
compensation-e.g., competent lay statements describing 
symptoms, medical and hospitalization records, medical 
statements, employer statements, job application rejections, 
and any other evidence showing an increase in the disability 
or exceptional circumstances relating to the disability.  

In this case, the Board is cognizant that the VCAA letters do 
not contain the level of specificity set forth in Vazquez-
Flores.  However, the Board does not find that any such 
procedural defect constitutes prejudicial error in this case 
because of evidence of actual knowledge on the part of the 
veteran and other documentation in the claims file reflecting 
such notification that a reasonable person could be expected 
to understand what was needed to substantiate the claim.  See 
Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). 

As to the first element of Vazquez-Flores, the July 2004 
notice letter advises the veteran that to substantiate her 
claim, she must provide, or ask the Secretary to obtain, 
medical or lay evidence demonstrating a worsening or increase 
in severity of the disability.  In addition, the Board calls 
attention to the veteran's multiple letters describing  the 
general impact of her left arm disability on her daily life.  
These statements with specific examples indicate an awareness 
on the part of the veteran that information about such 
effects is necessary to substantiate a claim for a higher 
evaluation.  The Court in Vazquez-Flores held that actual 
knowledge is established by statements or actions by the 
claimant or the claimant's representative that demonstrates 
an awareness of what was necessary to substantiate his or her 
claim." Id., slip op. at 12, citing Dalton v. Nicholson, 21 
Vet. App. 23, 30-31 (2007).  This showing of actual knowledge 
satisfies the first requirement of Vazquez-Flores.

As for the second element, the Board does not view the 
disorder at issue to be covered by the second requirement of 
Vazquez-Flores, because the veteran is already in receipt of 
the maximum evaluation available under the assigned 
diagnostic code.  As such, no further analysis in this regard 
is necessary
        
As for the third element, the February 2007 notice letter 
contains discussion pursuant to Dingess v. Nicholson, 19 Vet. 
App. 473 (2006), specifically informing the veteran that her 
disability may be rated from 0 percent to 100 percent, and 
that the rating is based on the nature and symptoms of the 
condition, the severity and duration of the symptoms, and the 
impact of the condition and symptoms on employment.  This 
directly satisfies the third notification element of Vazquez-
Flores.

As to the fourth element, the February 2007 and July 2004 
letters inform the veteran that VA will help her in obtaining 
records relevant to his claim not held by a federal agency, 
including records from state or local governments, private 
doctors or hospitals, or current or former employers.  
Moreover, the veteran has submitted private medical records 
in support of her claim.  As such, the February 2007 and July 
2004 letters and the veteran's submissions satisfy the fourth 
notification element of Vazquez-Flores. 

VA also has a duty to assist the veteran in the development 
of the claim.  This duty includes assisting the veteran in 
the procurement of service medical records and pertinent 
treatment records and providing an examination when 
necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

Here, the Board finds that all relevant facts have been 
properly developed, and that all evidence necessary for 
equitable resolution of the issue has been obtained.  Her 
post service treatment records have been obtained.  She has 
been afforded the opportunity for a hearing.  The Board does 
not have notice of any additional relevant evidence which is 
available but has not been obtained.  She has been afforded 
VA examinations in July 1997, October 2003, August 2004, May 
2007, and September 2007.  For the foregoing reasons, the 
Board concludes that all reasonable efforts were made by the 
VA to obtain evidence necessary to substantiate the veteran's 
claim.  Therefore, no further assistance to the veteran with 
the development of evidence is required.  




ORDER

An evaluation in excess of 20 percent for weakness of the 
left upper extremity secondary to surgery and radiation 
therapy is denied.

Since, however, the veteran's disability warrants referral to 
the Under Secretary for Benefits or the Director of 
Compensation and Pension Service for consideration of the 
assignment of an extraschedular rating, the appeal is granted 
to this extent.


REMAND

With regard to the veteran's claim for an increased rating 
for hypothyroidism, the Board calls attention to the Court's 
recent decision in Vazquez-Flores v. Peake, Vazquez-Flores v. 
Peake, 22 Vet. App. 37 (2008).  In Vazquez-Flores, the Court 
found that, at a minimum, adequate VCAA notice requires that 
VA notify the claimant that, to substantiate such a claim: 
(1) the claimant must provide, or ask VA to obtain, medical 
or lay evidence demonstrating a worsening or increase in 
severity of the disability and the effect that worsening has 
on the claimant's employment and daily life; (2) if the 
diagnostic code under which the claimant is rated contains 
criteria necessary for entitlement to a higher disability 
rating that would not be satisfied by the claimant 
demonstrating a noticeable worsening or increase in severity 
of the disability and the effect of that worsening has on the 
claimant's employment and daily life (such as a specific 
measurement or test result), the Secretary must provide at 
least general notice of that requirement to the claimant; (3) 
the claimant must be notified that, should an increase in 
disability be found, a disability rating will be determined 
by applying relevant Diagnostic Codes, which typically 
provide for a range in severity of a particular disability 
from noncompensable to as much as 100 percent (depending on 
the disability involved), based on the nature of the symptoms 
of the condition for which disability compensation is being 
sought, their severity and duration, and their impact upon 
employment and daily life; and (4) the notice must also 
provide examples of the types of medical and lay evidence 
that the claimant may submit (or ask the Secretary to obtain) 
that are relevant to establishing entitlement to increased 
compensation-e.g., competent lay statements describing 
symptoms, medical and hospitalization records, medical 
statements, employer statements, job application rejections, 
and any other evidence showing an increase in the disability 
or exceptional circumstances relating to the disability.  

In this case, the Board finds that the January 2004, July 
2004, and February 2007 VCAA letters do not contain the level 
of specificity set forth in Vazquez-Flores, and that a remand 
in this regard is required.  In particular, the veteran is 
rated under a diagnostic code that would not be satisfied by 
simply demonstrating a worsening of the condition under the 
version of the rating schedule in existence at the time the 
veteran filed her claim.  Moreover, the veteran has never 
been advised of this regulation change in any prior 
communication from VA.  The veteran's hypothyroidism is rated 
under diagnostic code (DC) 7903, which was amended on June 6, 
1996 when the schedule of ratings pertaining to the endocrine 
system was changed.  Under the prior version of DC 7903 the 
following was necessary in order to establish an increased 
rating: 30 percent - moderately severe; sluggish mentality 
and other indications of myxedema, decreased levels of 
circulating thyroid hormones (T sub4 and/or T sub3 by 
specific assays); 60 percent - severe; the symptoms under 
"pronounced" somewhat less marked, decreased levels of 
circulating thyroid hormones (T sub4 and/or T sub3 by 
specific assays); 100 percent - pronounced; with a long 
history and slow pulse, decreased levels of circulating 
thyroid hormones (T sub4 and/or T sub3 by specific assays), 
sluggish mentality, sleepiness, and slow return of reflexes.

To satisfy the mandates of Vazquez-Flores, the veteran must 
be advised of the specific criteria necessary to establish an 
increased rating under both the current and prior version of 
DC 7903.  

Additionally, in light of the action taken hereinabove with 
regard to the veteran's left upper extremity claim, the Board 
is REMANDING this case for the following:



1.  With regard to her hypothyroid claim, 
provide the veteran with proper notice of 
the information or evidence needed to 
establish an increased rating claim 
pursuant to Vazquez-Flores v. Peake, 22 
Vet. App. 37 (2008) as follows:
        (i). notify the veteran that she 
must provide, or 
ask VA to obtain, medical or lay 
evidence demonstrating a worsening 
or increase in severity of the 
disability and the effect that 
worsening has on the claimant's 
employment and daily life
        (ii). provide the veteran with the 
rating criteria 
for DC 7903 under both the current 
version of the rating schedule as 
well as the version in effect prior 
to June 6, 1996 regulation change 
(iii).  notify the veteran that 
should an increase in disability be 
found, a disability rating will be 
determined by applying relevant 
diagnostic codes; and
(iv).  provide the veteran with 
examples of the types of medical and 
lay evidence that the claimant may 
submit (or ask VA to obtain) that 
are relevant to establishing 
entitlement to increased 
compensation.  

2.  Refer the veteran's left upper 
extremity claim to the Under Secretary 
for Benefits or to the Director of 
Compensation and Pension Service for 
consideration of an extraschedular rating 
for the veteran's service-connected 
weakness of the left upper extremity 
secondary to surgery and radiation 
therapy pursuant to the provisions of 38 
C.F.R. §§ 3.321(b)(1) and 4.16(b).  

After all of the above action has been completed and the 
veteran has been given adequate time to respond to the 
corrected notice and assistance letter, readjudicate her 
claim.  If the claim remains denied, issue to the veteran a 
supplemental statement of the case, and afford the 
appropriate 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. 2007).



______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs