Citation Nr: 0813800	
Decision Date: 04/25/08    Archive Date: 05/01/08

DOCKET NO.  99-21 960A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to an initial compensable rating for 
hypothyroidism.

2.  Entitlement to service connection for a lung disability, 
including asthma, as secondary to a left deviated nasal 
septum.


REPRESENTATION

Appellant represented by:	John Stevens Berry, Attorney 
at Law


ATTORNEY FOR THE BOARD

David A. Brenningmeyer, Counsel




INTRODUCTION

The veteran served on active duty from October 1964 to June 
1970.

In April 1999, the RO disallowed service connection for a 
lung disability, including asthma, due to in-service exposure 
to herbicides and/or second-hand smoke.  The veteran appealed 
to the Board of Veterans' Appeals (Board).  In March 2001, 
the Board remanded the claims to the RO for additional 
development.  The case was returned to the Board, and the 
Board denied the claims in October 2002.

The veteran appealed the Board's October 2002 decision to the 
United States Court of Appeals for Veterans Claims (Court).  
In March 2003, the parties to the appeal filed a joint motion 
asking the Court to vacate the Board's decision and remand 
the matter to the Board for readjudication, taking into 
further consideration the provisions of the Veterans Claims 
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 
2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 
5106, 5107, 5126 (West 2002 & Supp. 2007)).  The Court 
granted the motion later that same month.

In November 2003, the Board remanded the claims for 
additional development.  The case was returned to the Board, 
and the Board disallowed the claim for service connection for 
a lung disability, including asthma, in October 2004.  The 
Board found that the competent and probative evidence failed 
to establish a link between the veteran's lung disease 
process and any incident of active duty, including exposure 
to herbicides and/or second-hand smoke.  The claim for 
service connection for hypothyroidism was remanded for 
additional development.

The veteran appealed the Board's October 2004 decision to the 
Court.  In May 2006, while that appeal was pending, the RO 
granted service connection for hypothyroidism, evaluated as 
zero percent (noncompensably) disabling.  Thereafter, the 
veteran perfected a timely appeal with respect to the 
assigned rating.  See 38 C.F.R. §§ 20.200, 20.201, 20.202, 
20.302.  That matter was certified to the Board, and the 
Board remanded the matter for additional development in 
February 2007.

In March 2007, the Court issued a memorandum decision 
vacating the Board's October 2004 decision "to the extent 
that it failed to adjudicate the [veteran's] theory of 
entitlement to service connection for his lung disability as 
a result of his service-connected deviated nasal septum," 
and remanding that matter for further adjudication.  The 
Board's decision was otherwise affirmed.  Subsequently, in 
August 2007, the RO recertified to the Board the matter of 
the veteran's entitlement to an initial compensable rating 
for hypothyroidism.  The issues currently presented for 
review are as set forth above, on the title page.

The Board's present decision is limited to the matter of the 
veteran's entitlement to an initial compensable rating for 
hypothyroidism.  For the reasons set forth below, the matter 
of his entitlement to service connection for a lung 
disability as secondary to a left deviated nasal septum is 
being REMANDED for additional development.


FINDING OF FACT

The veteran's hypothyroidism is in remission; he does not 
have any symptoms associated with the condition, and 
continuous medication is not required for its control.


CONCLUSION OF LAW

The criteria for an initial compensable rating for 
hypothyroidism have not been met.  38 U.S.C.A. §§ 1155, 5103, 
5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.321, 
4.1, 4.3, 4.7, 4.119, Diagnostic Code 7903 (2007).




REASONS AND BASES FOR FINDING AND CONCLUSION

The veteran contends, in essence, that the noncompensable 
rating currently assigned for hypothyroidism does not 
adequately reflect the severity of his disability.  He says 
that he suffers from daily fatigability.

I.  Preliminary Matters

On November 9, 2000, the President signed the VCAA into law.  
The VCAA imposes obligations on VA in terms of its duty to 
notify and assist claimants.

A.  The Duty to Notify

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his 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) (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).  Pelegrini v. 
Principi, 18 Vet. App. 112, 121 (2004).
 
The Court has held that the VCAA notice requirements apply 
generally to all five elements of a service connection claim; 
namely, (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.  Dingess v. Nicholson, 19 Vet. App. 473 
(2006).  Ordinarily, notice with respect to each of these 
elements must be provided to the claimant prior to the 
initial unfavorable decision by the agency of original 
jurisdiction.  Id.

In the present case, the Board finds that VA has satisfied 
its duty to notify.  By way of VCAA notice letters sent to 
the veteran in May 2001, November 2001, February 2004, 
November 2004, March 2006, and July 2006, the RO informed the 
veteran of the information and evidence required to 
substantiate his claim.  He was notified of his and VA's 
respective duties for obtaining the information and evidence, 
and he was asked to send any pertinent evidence in his 
possession.  He was also informed of the manner in which 
ratings and effective dates are assigned for awards of 
disability benefits.  Although the required notice was not 
provided until after the veteran's claim was initially 
adjudicated, the claim was subsequently re-adjudicated in a 
June 2007 supplemental statement of the case (SSOC), thereby 
correcting any defect in the timing of the notice.  See, 
e.g., Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  
No further corrective action is necessary.

B.  The Duty to Assist

The VCAA also requires VA to make reasonable efforts to help 
a claimant obtain evidence necessary to substantiate his 
claim.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. 
§ 3.159(c), (d) (2007).  This "duty to assist" contemplates 
that VA will help a claimant obtain records relevant to his 
claim, whether or not the records are in Federal custody, and 
that VA will provide a medical examination and/or opinion 
when necessary to make a decision on a claim.  38 U.S.C.A. 
§ 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007).

In the present case, the Board finds that the duty to assist 
has been fulfilled.  The veteran has been examined on two 
occasions in an effort to assess the severity of his 
disorder.  His service medical records have been obtained, as 
have records of VA and private treatment, and he has not 
identified and/or provided releases for any other evidence 
that needs to be procured.  No further development action is 
required.

II.  The Merits of the Veteran's Claim

Disability evaluations are determined by the application of a 
schedule of ratings, which is in turn based on the average 
impairment of earning capacity caused by a given disability.  
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007).  
Separate diagnostic codes identify the evaluations to be 
assigned to the various disabilities.

If 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 (2007).

Hypothyroidism is evaluated under the criteria set forth at 
38 C.F.R. § 4.119, Diagnostic Code 7903 (2007).  A 10 percent 
rating is warranted if the condition is manifested by 
fatigability or if continuous medication is required for 
control.  A 30 percent rating is warranted if the condition 
is manifested by fatigability, constipation, and mental 
sluggishness.  A 60 percent rating is warranted if the 
condition is manifested by muscular weakness, mental 
disturbance (dementia, slowing of thought, depression), and 
weight gain.  The highest available rating, 100 percent, is 
warranted if the condition is manifested by cold intolerance, 
muscular weakness, cardiovascular involvement, mental 
disturbance, bradycardia, and sleepiness.  Id.

In the present case, the record shows that the veteran was 
diagnosed with hypothyroidism during service in 1965.  
Treatment was initiated with medication.  The medication was 
discontinued within a few years, however, and has never been 
resumed.

The veteran's TSH (thyroid stimulating hormone) level was 
noted to be within normal limits when tested during a period 
of VA hospitalization in March 1991.  On VA testing in April 
2002, his "Free T4" (thyroxine) level was described as 
"very slightly low" (0.68). (According to a VA clinical 
laboratory report of record, dated in March 2005, the 
"reference range" for Free T4 is 0.7 to 1.9 ng/dL.)  His 
TSH level was found to be normal, however, and he denied 
fatigability at that time.  On subsequent VA examinations in 
February 2005 and June 2007, his Free T4 and TSH levels were 
both found to be normal.  Based on the results of current and 
past testing, examination of the veteran, and review of the 
claims file, VA examiners in February 2005 and June 2007 
collectively opined, in effect, that the veteran's 
hypothyroidism apparently went into spontaneous remission 
after a brief period of treatment during service; that he has 
maintained normal thyroid function since that time, with no 
treatment required; that he currently appears to be 
euthyroid; and that he does not appear to have any symptoms, 
including fatigability, that can be specifically attributed 
to hypothyroidism.

Based on a review of the relevant evidence in this case, and 
the applicable laws and regulations, the Board finds that the 
preponderance of the evidence is against the veteran's claim 
for an initial compensable rating for hypothyroidism.  The 
veteran believes that he suffers from fatigability due to 
hypothyroidism.  However, there is nothing in the record to 
show that he has the necessary training or expertise to offer 
a competent opinion with respect to the etiology of his 
fatigue.  As a result, his opinion in that regard cannot be 
accorded any probative weight.  See, e.g., Espiritu v. 
Derwinski, 2 Vet. App. 492, 494-95 (1992) (a lay person is 
not competent to offer evidence that requires medical 
knowledge).  As noted above, the competent (medical) evidence 
indicates that that he does not have any symptoms, including 
fatigability, that can be associated with hypothyroidism.  
Consequently, and because the evidence also shows that 
continuous medication is not required for control of the 
condition, it is the Board's conclusion that the greater 
weight of the evidence is against the assignment of a 
compensable evaluation under Diagnostic Code 7903.

In arriving at this conclusion, the Board has specifically 
considered whether the veteran is entitled to a "staged 
rating."  See Fenderson v. West, 12 Vet. App. 119, 125-26 
(1999).  It is the Board's conclusion, however, that the 
veteran's hypothyroidism has never been more than 
noncompensably disabling since the time that the underlying 
claim for service connection was filed.  A "staged rating" 
is not warranted.

To accord justice in an exceptional case where the schedular 
standards are found to be inadequate, the RO is authorized to 
refer a case to the Under Secretary for Benefits or the 
Director of the Compensation and Pension Service for 
assignment of an extraschedular evaluation commensurate with 
the average earning capacity impairment due exclusively to 
the service-connected disability.  38 C.F.R. § 3.321(b)(1) 
(2007).  The criterion for such an award is a finding that 
the case presents an exceptional or unusual disability 
picture with such related factors as marked interference with 
employment or frequent periods of hospitalization as to 
render impractical application of regular schedular 
standards.

The Board has considered whether the veteran's claim should 
be referred for consideration of an extraschedular 
evaluation, and has concluded that no such referral is 
warranted.  The record does not show that he has been 
hospitalized for problems with his hypothyroidism, and there 
is nothing in the record to suggest that his disability 
picture is so exceptional or unusual as to render impractical 
the application of the regular schedular standards.


ORDER

The claim for an initial compensable rating for 
hypothyroidism is denied.


REMAND

Under the law, service connection is warranted on a 
"secondary" basis where the evidence of record shows that a 
chronic disability or disorder has been caused or aggravated 
by an already service-connected disability.  38 U.S.C.A. 
§ 1110 (West 2002); 38 C.F.R. § 3.310 (2007); 38 C.F.R. 
§ 3.310 (2006); Allen v. Brown, 7 Vet. App. 439 (1995).

As noted above, the Board has been directed to adjudicate the 
matter of the veteran's entitlement to service connection for 
a lung disability as secondary to his service-connected left 
deviated nasal septum.  See Introduction, supra.  Thus far, 
he has not been provided a VCAA notice letter addressing the 
matter of secondary service connection.  Nor has he been 
afforded an examination to determine whether there is a 
medical relationship between his currently shown lung 
disability and the disability of his nasal septum.  A remand 
is required.  38 C.F.R. § 19.9 (2007).

For the reasons stated, this case is REMANDED for the 
following actions:

1.  Send a VCAA notice letter to the veteran 
and his representative pertaining to the 
matter of the veteran's entitlement to 
service connection for a lung disability, 
including asthma, as secondary to his 
service-connected left deviated nasal septum.  
Among other things, the letter should contain 
notice of the information and evidence 
necessary to substantiate a claim for 
secondary service connection.  The veteran 
and his representative should be given a 
reasonable opportunity to respond to the 
notice, and any additional information or 
evidence received should be associated with 
the claims file.

2.  Ask the veteran to identify, and provide 
appropriate releases for (where necessary), 
any care providers who may possess new or 
additional evidence pertinent to the matter 
remaining on appeal.  If the veteran provides 
adequate identifying information, and the 
necessary release(s), assist him in obtaining 
the records identified, following the 
procedures set forth in 38 C.F.R. § 3.159.  
The evidence obtained, if any, should be 
associated with the claims file.

3.  After the foregoing development has been 
completed, arrange to have the veteran 
scheduled for an examination of his 
respiratory system.  After reviewing the 
claims file, examining the veteran, and 
conducting any testing deemed necessary, the 
examiner should offer an opinion as to 
whether it is at least as likely as not 
(i.e., whether it is 50 percent or more 
probable) that the veteran has a disability 
of the lung (including asthma) that is due 
to, or has been chronically or permanently 
worsened by, his service-connected left 
deviated nasal septum.  A complete rationale 
should be provided.

4.  Thereafter, take adjudicatory action on 
the matter of the veteran's entitlement to 
service connection for a lung disability, 
including asthma, as secondary to his 
service-connected left deviated nasal septum.  
If the benefit sought remains denied, furnish 
an SSOC to the veteran and his 
representative.  The SSOC should contain, 
among other things, a citation to, and 
summary of, the former and current versions 
of 38 C.F.R. § 3.310.  See Claims Based on 
Aggravation of a Nonservice-Connected 
Disability, 71 Fed. Reg. 52,744 (Sept. 7, 
2006) (now codified at 38 C.F.R. § 3.310) 
(2007).

After the veteran and his representative have been given an 
opportunity to respond to the SSOC, the claims file should be 
returned to this Board for further appellate review.  No 
action is required by the veteran until he receives further 
notice, but he may furnish additional evidence and argument 
while the case is in remand status.  Kutscherousky v. West, 
12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 
109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 
(1992).  The purposes of this remand are to procure 
clarifying data and to comply with governing adjudicative 
procedures.  The Board intimates no opinion, either legal or 
factual, as to the ultimate disposition of this appeal.

The remanded matter must be afforded expeditious treatment.  
The law requires that all claims that are remanded by the 
Board or by the Court 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).



______________________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs