Citation Nr: 0838083 Decision Date: 11/04/08 Archive Date: 11/10/08 DOCKET NO. 04-15 635 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an increased rating for service-connected hypothyroidism, total thyroidectomy, currently evaluated as 30 percent disabling. REPRESENTATION Veteran represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The veteran had active service from January 1990 to April 1990, and from September 1990 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in February 2004 of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board initially decided this claim in July 2005. The veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In April 2008, the Court remanded this matter to the Board, which, in July 2008, remanded the matter again for further development. In its April 2008 decision, the Court directed the Board to further assess the veteran's claim for increase here by addressing in more detail the issue of whether a higher rating is due for the veteran's service-connected hypothyroidism, total thyroidectomy. FINDINGS OF FACT 1. The medical evidence of record demonstrates that the veteran's service-connected hypothyroidism, total thyroidectomy, is productive of muscular weakness, mental disturbance, and weight gain. 2. The medical evidence of record indicates that the veteran's service-connected hypothyroidism, total thyroidectomy, is not productive of cardio vascular involvement or bradycardia. CONCLUSION OF LAW The criteria for a 60 percent rating, for the veteran's service-connected hypothyroidism, total thyroidectomy, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7903 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA service connected the veteran for hypothyroidism, total thyroidectomy, in December 1994. A 10 percent rating was assigned, effective September 27, 1994. This rating was later increased to 30 percent in a December 2002 Board decision. In August 2003, the veteran claimed entitlement to an increased rating for his service-connected hypothyroidism, total thyroidectomy. In the February 2004 rating decision on appeal, the RO denied the veteran's claim. Disability evaluations are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. See 38 U.S.C.A. § 5107(b). Thyroid disorders are addressed under Diagnostic Code (DC) 7903 of 38 C.F.R. § 4.119. This provision provides for 10, 30, 60, and 100 percent evaluations. As the veteran has been rated as 30 percent disabled for his disorder, the Board will only address those applicable provisions that provide for a higher evaluation - i.e., the criteria for 60 and 100 percent evaluations. A 60 percent rating is warranted under DC 7903 where the evidence shows muscular weakness, mental disturbance, and weight gain. A 100 percent rating is warranted under DC 7903 where the evidence shows muscular weakness, cold intolerance, mental disturbance (dementia, slowing of thought, depression), sleepiness, cardio vascular involvement, and bradycardia (less than 60 beats per minute). See 38 C.F.R. § 4.119, DC 7903. The Board has again reviewed the evidence of record addressing the veteran's thyroid disorder. This evidence consists of statements from the veteran, VA treatment records, and VA compensation examination reports. Based on this evidence, the Board finds a 60 percent disability evaluation warranted here. The veteran has consistently maintained since his claim for increase that he experiences muscle weakness, mental disturbance, and weight gain. See 38 C.F.R. § 4.119, DC 7903. He made these assertions in his claim for increase, in his notice of disagreement, and in a statement of record attached to his VA Form I-9 substantive appeal. See Routen v. Brown, 10 Vet.App 183 (1997) (an appellant is capable of providing evidence of symptomatology); Layno v. Brown, 6 Vet.App. 465 (1994) (appellant's personal knowledge can be considered as evidence). Certain medical evidence of record counters the veteran's statements. A September 2003 VA treatment record noted a negative depression screen. A September 2003 VA compensation examination report found the veteran with good muscle strength, despite his complaints to the contrary. And an April 2005 VA treatment record noted a negative depression screen. Most of the medical evidence of record, however, supports the veteran's claims to experiencing muscle weakness, mental disturbance, and weight gain. VA treatment records dated since the veteran's claim for increase repeatedly note the veteran's complaints of weakness. The September 2003 VA examiner noted the veteran's complaints of tiredness, weight gain, and mental disturbance (irritability). And September 2008 VA compensation examination reports - one addressing the veteran's psychiatric date, the other addressing his thyroid - find depression, muscle weakness, and weight gain as a result of the veteran's thyroid disorder. See 38 C.F.R. § 4.119, DC 7903. Hence, the evidence of record - found in the veteran's lay statements and in VA medical records and reports - does not preponderate against the veteran's claim to increase with regard to a 60 percent evaluation. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (to deny a claim on its merits, the evidence must preponderate against the claim). The evidence of record does preponderate against the assignment of a 100 percent evaluation here, however. First, the veteran's complaints do not match the criteria noted for a 100 percent evaluation here. See 38 C.F.R. § 4.119, DC 7903. Indeed, in his April 2004 substantive appeal, he clearly argues not for the assignment of a 100 percent evaluation, but for the assignment of a 60 percent evaluation, due to his symptoms that are consistent with the criteria for a 60 percent evaluation - i.e., depression, weight gain, and muscle weakness. Id. Secondly, no medical evidence of record indicates that the veteran experiences cardiovascular difficulties or bradycardia as a result of his thyroid disorder. Rather, the evidence, to include the September 2003 and September 2008 VA compensation examination reports addressing the thyroid, found no cardiovascular disorders and noted a pulse above 60 (76 beats per minute in September 2003 and 74 beats per minute in September 2008). See 38 C.F.R. § 4.119, DC 7903. In sum, this medical evidence shows that the veteran has experienced muscle weakness, mental disturbance, and weight gain. But the evidence also shows that the veteran has not experienced cardiovascular problems or bradycardia as a result of his thyroid disorder. See 38 C.F.R. 4.119, DC 7903. As such, the record supports an increased rating to 60 percent for the thyroid disorder. But the preponderance of the evidence is against the assignment of a 100 percent evaluation here. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds an extraschedular rating unwarranted here. Application of the regular schedular standards is found practicable in this matter. Hence the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) for assignment of an extraschedular evaluation. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a 60 percent rating, for the veteran's service-connected hypothyroidism, total thyroidectomy, is granted, subject to the regulations governing the payment of monetary awards. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs