Citation Nr: 0835656	
Decision Date: 10/17/08    Archive Date: 10/27/08

DOCKET NO.  05-37 570	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, 
Virginia


THE ISSUES

1.  Entitlement to an initial disability evaluation in excess 
of 30 percent for hypothyroidism with cognitive dysfunction.

2.  Entitlement to an initial disability evaluation in excess 
of 30 percent for bilateral restless leg syndrome.

3.  Entitlement to an initial disability evaluation in excess 
of 10 percent for right Achilles tendonitis.

4.  Entitlement to an initial disability evaluation in excess 
of 10 percent for left Achilles tendonitis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

W. Preston, Associate Counsel


INTRODUCTION

The veteran served on active duty from November 1975 to July 
2003.

This case comes before the Board of Veterans' Appeals (Board) 
on appeal of a February 2004 decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Roanoke, 
Virginia.

The veteran's February 2005 Notice of Disagreement initiated 
an appeal with regard to the RO's denial of entitlement to 
service connection for septoplasty (claimed as nasal 
surgeries).  An August 2006 rating decision granted 
entitlement to service connection for obstructed nasal 
passages, status post septoplasty with turbinate reductions.  
This constituted a complete grant of the benefit sought and 
further consideration of the matter at this juncture is 
therefore unwarranted.

In the appellant's brief from the veteran's representative 
received in August 2008, it was stated that the veteran was 
waiving his right of review by the agency of original 
jurisdiction of additional pertinent evidence that had been 
submitted to VA.  Remand for such review is therefore 
unnecessary.


FINDINGS OF FACT

1.  The veteran's hypothyroidism with cognitive dysfunction 
is not manifested by muscular weakness, mental disturbance 
(dementia, slowing of thought, depression), and weight gain.  

2.  The veteran is in receipt of the maximum (30 percent) 
disability rating in effect for convulsive tics; there is no 
significant nerve impairment in either leg.   

3.  The limitation of motion of both of the veteran's ankles 
more nearly approximates moderate than marked. 


CONCLUSIONS OF LAW

1.  The veteran's hypothyroidism with cognitive dysfunction 
does not warrant an initial disability rating in excess of 30 
percent.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 
4.119, Diagnostic Code 7903.

2.  The veteran's bilateral restless leg syndrome does not 
warrant an initial disability rating in excess of 30 percent.  
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.20, 
4.124a, Diagnostic Codes 8103, 8521 (2007). 

3.  The veteran's right Achilles tendonitis does not warrant 
an initial disability rating in excess of 10 percent.  38 
U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.14, 
4.40, 4.45, 4.71a, Diagnostic Code 5003, 5024, 5271  (2007).

4.  The veteran's left Achilles tendonitis does not warrant 
an initial disability rating in excess of 10 percent.  38 
U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.14, 
4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5024, 5271 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified 
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 
and Supp. 2007), and the pertinent implementing regulation, 
codified at 38 C.F.R. § 3.159 (2007), provide that VA will 
assist a claimant in obtaining evidence necessary to 
substantiate a claim but is not required to provide 
assistance to a claimant if there is no reasonable 
possibility that such assistance would aid in substantiating 
the claim.  They also require VA to notify the claimant and 
the claimant's representative, if any, of any information, 
and any medical or lay evidence, not previously provided to 
the Secretary that is necessary to substantiate the claim.  
As part of the notice, VA is to specifically inform the 
claimant and the claimant's representative, if any, of which 
portion, if any, of the evidence is to be provided by the 
claimant and which part, if any, VA will attempt to obtain on 
behalf of the claimant.  Although the regulation previously 
required VA to request that the claimant provide any evidence 
in the claimant's possession that pertains to the claim, the 
regulation has been amended to eliminate that requirement for 
claims pending before VA on or after May 30, 2008.  

The Board also notes that the United States Court of Appeals 
for Veterans Claims (Court) has held that the plain language 
of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to 
a claimant pursuant to the VCAA be provided "at the time" 
that, or "immediately after," VA receives a complete or 
substantially complete application for VA-administered 
benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 
(2004).  The Court further held that VA failed to demonstrate 
that, "lack of such a pre-AOJ-decision notice was not 
prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as 
amended by the Veterans Benefits Act of 2002, Pub. L. No.  
107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n 
making the determinations under [section 7261(a)], the Court 
shall . . . take due account of the rule of prejudicial 
error")."  

The timing requirement enunciated in Pelegrini applies 
equally to the initial-disability-rating and effective-date 
elements of a service-connection claim.  Dingess v. 
Nicholson, 19 Vet. App. 473 (2006).

The record reflects that the originating agency provided the 
appellant with the notice required under the VCAA by letters 
mailed in September 2003 and March 2006.  Although complete 
notice was not provided until after the initial adjudication 
of the claims, the Board finds that there is no prejudice to 
the veteran in proceeding with the issuance of a final 
decision.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  
In this regard, the Board notes that following the provision 
of the required notice and based upon all evidence received 
prior to the certification of the appeal, the originating 
agency readjudicated the claims.  There is no indication or 
reason to believe that any ultimate decision of the 
originating agency would have been different had complete 
VCAA notice been provided at an earlier time.

The record also reflects that the veteran's service medical 
records and pertinent post-service treatment records have 
been obtained, and the veteran was afforded appropriate VA 
examinations.  Neither the veteran nor his representative has 
identified any outstanding evidence that could be obtained to 
substantiate any of the claims.  The Board is also unaware of 
any such evidence.  Therefore, the Board is satisfied that VA 
has complied with the duty to assist requirements of the VCAA 
and the pertinent implementing regulation.

In sum, the Board is satisfied that any procedural errors in 
the development and consideration of the claims by the 
originating agency were insignificant and non-prejudicial to 
the veteran.

Accordingly, the Board will address the merits of the 
veteran's claims.

Legal Criteria

Disability evaluations are determined by the application of 
VA's Schedule for Rating Disabilities (Rating Schedule), 38 
C.F.R. Part 4 (2007).  The percentage ratings contained in 
the Rating Schedule represent, as far as can be practicably 
determined, the average impairment in earning capacity 
resulting from diseases and injuries incurred or aggravated 
during military service and their residual conditions in 
civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 
(2007).

Each disability must be considered from the point of view of 
the veteran working or seeking work.  38 C.F.R. § 4.2 (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 
for that rating.  Otherwise, the lower rating will be 
assigned.  38 C.F.R. § 4.7.

It is not expected, especially with the more fully described 
grades of disabilities, that all cases will show all the 
findings specified; findings sufficiently characteristic to 
identify the disease and the disability therefrom are 
sufficient; and above all, a coordination of rating with 
impairment of function will be expected in all cases.  38 
C.F.R. § 4.21 (2007).

Any reasonable doubt regarding a degree of disability will be 
resolved in favor of the veteran.  38 C.F.R. § 4.3 (2007).

The veteran's hypothyroidism is evaluated under Diagnostic 
Code 7903, which provides that a 30 percent disability rating 
is warranted for hypothyroidism manifested by fatigability, 
constipation, and mental sluggishness.  A 60 percent rating 
is warranted under this diagnostic code, if the disability is 
productive of muscular weakness, mental disturbance 
(dementia, slowing of thought, depression), and weight gain.  
A 100 percent rating is warranted when the condition is 
manifested by cold intolerance, muscular weakness, 
cardiovascular involvement, mental disturbance, bradycardia 
(less than 60 beats per minute), and sleepiness.  38 C.F.R. § 
4.119, Diagnostic Code 7903.

When an unlisted condition is encountered it will be 
permissible to rate under a closely related disease or injury 
in which not only the functions affected, but the anatomical 
localization and symptomatology are closely analogous.  
38 C.F.R. § 4.20 (2007).

The veteran's bilateral restless leg syndrome is evaluated 
under Diagnostic Code 8103, which provides that a 30 percent 
disability rating is warranted for severe convulsive tics.  A 
30 percent disability rating is the maximum disability 
evaluation permitted under Diagnostic Code 8103.  38 C.F.R. 
4.124a, Diagnostic Code 8103. 

The veteran's bilateral restless leg syndrome was previously 
evaluated under Diagnostic Code 8521, which provides that 
complete paralysis of the external popliteal nerve warrants a 
40 percent evaluation; with complete paralysis of this nerve, 
there is foot drop with slight droop of the first phalanges 
of all toes; the foot cannot be dorsiflexed; extension of the 
proximal phalanges of the toes is lost; abduction of the foot 
is lost; adduction is weakened; and anesthesia covers the 
entire dorsum of the foot and toes.  Incomplete paralysis of 
this nerve warrants a 30 percent evaluation if it is severe, 
a 20 percent evaluation if it is moderate, or a 10 percent 
evaluation if it is mild.  38 C.F.R. 4.124a, Diagnostic Code 
8521.

Tenosynovitis will be rated on the basis of limitation of the 
affected parts as degenerative arthritis.  38 C.F.R. § 4.71a, 
Diagnostic Code 5024.  

Degenerative arthritis established by X-ray findings will be 
rated on the basis of limitation of motion under the 
appropriate diagnostic code(s) for the specific joint(s) 
involved.  38 C.F.R. § 4.71a, Diagnostic Code 5003.  

A 10 percent rating is warranted for moderate limitation of 
motion of an ankle and a 20 percent rating is warranted for 
marked limitation of motion of an ankle.  38 C.F.R. § 4.71a, 
Diagnostic Code 5271.

Normal ranges of ankle motions are 0 to 20 degrees for 
dorsiflexion and 0 to 45 degrees for plantar flexion.  38 
C.F.R. § 4.71, Plate II (2007).  

In determining the degree of limitation of motion, the 
provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for 
consideration.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).

The basis of disability evaluation is the ability of the body 
as a whole, or of the psyche, or of a system or organ of the 
body to function under the ordinary conditions of daily life, 
including employment.  38 C.F.R. § 4.10.

Disability of the musculoskeletal system is primarily the 
inability, due to damage or infection in parts of the system, 
to perform the normal working movements of the body with 
normal excursion, strength, speed, coordination and 
endurance.  Functional loss may be due to the absence or 
deformity of structures or other pathology, or it may be due 
to pain, supported by adequate pathology and evidenced by the 
visible behavior in undertaking the motion.  Weakness is as 
important as limitation of motion, and a part that becomes 
painful on use must be regarded as seriously disabled.  38 
C.F.R. § 4.40.

With respect to joints, in particular, the factors of 
disability reside in reductions of normal excursion of 
movements in different planes.  Inquiry will be directed to 
more or less than normal movement, weakened movement, excess 
fatigability, incoordination, pain on movement, swelling, 
deformity or atrophy of disuse.  38 C.F.R. § 4.45.

The intent of the Rating Schedule is to recognize actually 
painful, unstable or malaligned joints, due to healed injury, 
as entitled to at least the minimum compensable rating for 
the joint.  38 C.F.R. § 4.59.

The evaluation of the same disability under various diagnoses 
is to be avoided.  38 C.F.R. § 4.14 (2007).  However, § 4.14 
does not preclude the assignment of separate evaluations for 
separate and distinct symptomatology where none of the 
symptomatology justifying an evaluation under one diagnostic 
code is duplicative of or overlapping with the symptomatology 
justifying an evaluation under another diagnostic code.  
Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

Analysis

The veteran seeks higher initial ratings for his 
hypothyroidism with cognitive dysfunction, bilateral restless 
leg syndrome, right Achilles tendonitis, and left Achilles 
tendonitis.

In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2007) 
and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board 
has reviewed all evidence of record pertaining to the history 
of the service-connected disability.  The Board has found 
nothing in the historical record which would lead to the 
conclusion that the current evidence of record is not 
adequate for rating purposes.  Moreover, the Board is of the 
opinion that this case presents no evidentiary considerations 
which would warrant an exposition of remote clinical 
histories and findings pertaining to any of the disabilities.



Hypothyroidism with Cognitive Dysfunction

The February 2004 rating decision on appeal granted 
entitlement to service connection for hypothyroidism and 
assigned a 10 percent disability rating under 38 C.F.R. § 
4.119, Diagnostic Code 7903, effective August 1, 2003.  A 
September 2005 rating decision recharacterized the disability 
as hypothyroidism with cognitive dysfunction and increased 
the veteran's disability evaluation from 10 percent to 30 
percent from August 1, 2003.  That 30 percent evaluation 
remains in effect to this date.

In a statement accompanying the veteran's February 2005 
Notice of Disagreement, he contends that he experiences 
numerous symptoms of hypothyroidism, including cold 
intolerance, hypothermia, daytime lethargy, fatigue, mental 
cloudiness, constipation, weight gain, heat intolerance, 
decreased concentration, decreased libido, slowing of 
thoughts, and loss of memory and concentration.  He reported 
emotional instability and depression on examination in June 
2007.

Pertinent medical evidence includes a September 2003 VA 
examination report and a June 2007 VA examination report.  
Also of record are treatment records from the Walter Reed 
Army Medical Center (WRAMC) in Washington, DC.  These reports 
and records do not contain objective clinical findings to 
substantiate the veteran's claim for a disability rating 
higher than 30 percent under Diagnostic Code 7903.

With respect to the criteria for a 60 percent disability 
rating, as noted above, this rating is warranted under 
Diagnostic Code 7903 if the disability is productive of 
muscular weakness, mental disturbance (dementia, slowing of 
thought, depression), and weight gain.  The September 2005 VA 
examiner noted that the veteran was on Synthoid 0.05 daily 
for hypothyroidism.  No pertinent complaints were voiced.  
The June 2007 VA examination noted the veteran's report of 
weight gain and forgetfulness and mood swings at work.  
However, on examination, the examiner reported that 
generalized muscle weakness was absent; and that muscle 
wasting was absent.  This medical finding that there is no 
muscle weakness is not contradicted by any medical evidence 
of record.  Accordingly, a disability rating in excess of 30 
percent for hypothyroidism with cognitive dysfunction is not 
warranted.

Restless Leg Syndrome

The February 2004 rating decision on appeal granted 
entitlement to service connection for right and left restless 
leg syndrome, and assigned separate 10 percent evaluations 
for right and left restless leg syndrome under 38 C.F.R. § 
4.124a, Diagnostic Code 8521, effective August 1, 2003.

In an October 2007 rating decision, the RO discontinued 
separate 10 percent evaluations for right and left restless 
leg syndrome effective August 1, 2003.  Instead, the RO 
assigned a single 30 percent disability rating for bilateral 
restless leg syndrome under 38 C.F.R. § 4.124a, Diagnostic 
Code 8103 from August 1, 2003.  That 30 percent disability 
rating remains in effect at the present time.

In a statement accompanying the veteran's February 2005 
Notice of Disagreement, he contends that he experiences 
numerous symptoms of bilateral restless leg syndrome, such as 
sleep deprivation and a resulting disorientation during 
normal waking hours; exhaustion, fatigue, and a lack of 
physical energy; and mood, memory, and concentration 
problems.  

Pertinent medical evidence includes reports of September 2003 
VA examination and a June 2007 VA examination.  Also of 
record are treatment records from the Walter Reed Army 
Medical Center (WRAMC) in Washington, DC.  These reports and 
records contain no objective clinical findings to 
substantiate the veteran's claim for a disability rating 
higher than 30 percent under Diagnostic Codes 8521 or 8103.

The September 2003 VA examination report states that the 
veteran's legs were constantly moving throughout the entire 
exam, both laterally and up and down.  Tingling and numbness, 
abnormal sensation, and pain; an uncontrollable urge to move 
and shake; and fatigue and sometimes falling asleep while 
driving were reported by the veteran on examination in June 
2007.  Bilateral restless leg syndrome was diagnosed on both 
examinations.

The Board notes that the 30 percent disability rating in 
effect for the veteran's bilateral restless leg syndrome 
since the effective date of service connection is the maximum 
disability rating permitted under Diagnostic Code 8103.  In 
the Board's opinion, the veteran's restless leg syndrome is 
most closely analogous to the convulsive tic rated under 
Diagnostic Code 8103.  Previously, as noted above, the 
veteran was rated under Diagnostic Code 8521.  The Board 
notes that on VA examination in June 2007 the examiner 
reported that there were no findings of peripheral nerve 
disease.  Accordingly, the Board concludes that the 
disability would not be more appropriately rated under a 
diagnostic code for impairment of a peripheral nerve.

The Board has considered whether there is any other schedular 
basis for granting this claim but has found none.

Right and Left Achilles Tendonitis

The February 2004 rating decision on appeal granted 
entitlement to service connection for status post bilateral 
Achilles tendonitis and assigned a non-compensable disability 
rating from August 1, 2003.

In an October 2007 rating decision, the RO increased the 
veteran's disability evaluation by assigning separate 10 
percent ratings for right and left Achilles tendonitis from 
August 1, 2003.  Those ratings remain in effect at the 
present time.

In a statement accompanying the veteran's February 2005 
Notice of Disagreement, he contends that he experiences 
chronic pain, restricted range of motion, and weakness, and 
that his bilateral Achilles tendonitis has a significantly 
negative impact on his daily life.  At the June 2007 VA 
examination, the veteran complained of weakness, loss of 
strength with ankle flexion, stiffness, swelling, lack of 
endurance beyond 10-20 minutes, and fatigability and 
dislocation.

The pertinent medical evidence consists of reports of a 
September 2003 VA examination and a June 2007 VA examination 
as well as treatment records from the Walter Reed Army 
Medical Center (WRAMC) in Washington, DC.  These reports and 
records contain no objective clinical findings to 
substantiate the veteran's claims for disability ratings 
higher than 10 percent under Diagnostic Code 5271.

The September 2003 VA examination disclosed a healed, two-
inch vertical surgical scar over the Achilles tendon of both 
ankles; and range of motion of the right ankle was to 20 
degrees dorsiflexion and to 45 degrees plantar flexion; on 
the left, range of motion was to 20 degrees dorsiflexion and 
to 45 degrees plantar flexion.  There was a slight thickening 
of the tendons bilaterally but no tenderness.  Chronic 
bilateral Achilles tendonitis was diagnosed.  On VA 
examination in June 2007, the examiner reported that the 
veteran's right and left ankle exam was within normal limits.  
Examination of the ankle showed no deformity.  The examiner 
reported that the right ankle was not in a fixed position.  
Most significantly, the examiner reported that the veteran's 
range of motion of the right ankle was to 15 degrees 
dorsiflexion and 45 degrees plantar flexion; and that the 
range of motion of the left ankle was to 15 degrees 
dosiflexion and 35 degrees plantar flexion.  After repetitive 
use, the examiner reported that the right and left ankles 
showed pain but no fatigue, weakness, lack of endurance or 
incoordination.  No additional limitation of motion due to 
pain was reported.  No mention of any healed scar was made in 
the VA examination report of June 2007.  The diagnosis of 
bilateral Achilles tendonitis remained unchanged.  

Neither of the aforementioned VA examination reports included 
evidence that the limitation of motion of either of the 
veteran's ankles more nearly approximated marked than 
moderate limitation of motion.  This finding based on the 
medical record is not contradicted by any medical evidence of 
record.  The Board has considered whether there is any other 
schedular basis for granting either claim but has found none.  
Accordingly, a schedular disability rating in excess of 10 
percent for either right or left Achilles tendonitis is not 
warranted.  



Other Considerations

Consideration has been given to assigning a staged rating; 
however, at no time during the period in question have any of 
the disabilities on appeal warranted a higher rating.  See 
Fenderson v. West, 12 Vet. App. 119 (1999).

Finally, the Board has considered whether the case should be 
referred for extra-schedular consideration under 38 C.F.R. § 
3.321(b)(1).  The record reflects that the veteran has not 
required frequent hospitalization for any of the disabilities 
and that the manifestations of the disabilities are not in 
excess of those contemplated by the schedular criteria.  In 
sum, there is no indication in the record that the average 
industrial impairment from any of the disabilities would be 
in excess of that contemplated by the assigned rating.  
Therefore, the Board has determined that referral of the 
claims for extra-schedular consideration is not warranted. 



							(CONTINUED ON NEXT PAGE)



ORDER

Entitlement to an initial rating in excess of 30 percent for 
hypothyroidism with cognitive dysfunction is denied.

Entitlement to an initial rating in excess of 30 percent for 
bilateral restless leg syndrome is denied.

Entitlement to an initial rating in excess of 10 percent for 
right Achilles tendonitis is denied.

Entitlement to an initial rating in excess of 10 percent for 
left Achilles tendonitis is denied.


___________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs