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