Citation Nr: 1007381 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 06-01 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a rating in excess of 10 percent for service- connected hypothyroidism, also characterized as Hashimoto's syndrome. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Helena M. Walker, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1974 to August 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the benefit sought on appeal. Jurisdiction of the claims file was subsequently transferred to the Seattle, Washington, RO. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran's hypothyroidism is manifested by the need for continuous medication, fatigability, constipation, and mental sluggishness. CONCLUSION OF LAW The criteria for a 30 percent rating for hypothyroidism have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7903 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a Veteran of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a Veteran in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters dated in September 2003, June 2007, and May 2008, VA notified the Veteran of the information and evidence needed to substantiate and complete his claim for an increased rating, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letters also generally advised the Veteran to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), was provided in the June 2007 notice. As such, the Board finds that VA met its duty to notify the Veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the United States Court of Appeals for Veterans Claims (Court) held in Pelegrini that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the initial September 2003 notice was given prior to the appealed AOJ decision, dated in April 2004. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence, affording him a physical examination, obtaining a medical opinion as to the severity of his disability, and by affording him the opportunity to give testimony before an RO hearing officer and/or the Board. The Board notes that the Veteran has been scheduled and rescheduled for multiple hearings, including Travel Board hearings, but he failed to appear at the most recently scheduled hearing in October 2009. The Board has not found good cause for his failure to appear and will not reschedule the hearing. It appears that all known and available records relevant to the issue here on appeal have been obtained and are associated with the Veteran's claims file. Thus, the Board finds that VA has done everything reasonably possible to notify and assist the Veteran and that no further action is necessary to meet the requirements of the VCAA. The Veteran contends that his hypothyroidism symptoms are more severely disabling than currently rated. Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, as in this case, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern. See Fenderson v. West, 12 Vet. App. 119 (1999). In Hart v. Mansfield, 21 Vet.App. 505 (2007), however, the Court held that "staged" ratings are appropriate for an increased rating claim in such a case, when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The Veteran's hypothyroidism is currently evaluated as 10 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code 7903. A 10 percent rating is warranted for fatigability or continuous medication required for control. A 30 percent rating is warranted for fatigability, constipation, and mental sluggishness. A 60 percent rating is warranted for muscular weakness, mental disturbance, and weight gain. A 100 percent rating is warranted for cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. By way of background, the Veteran's hypothyroidism was initially service connected in June 1994; it was assigned a 10 percent rating. The Veteran filed his most recent request for an increased rating in September 2003. The Veteran's hypothyroidism has been continuously treated with levothyroxine. In a September 2002 VA treatment record, the Veteran reported losing approximately 47 pounds since his levothyroxine dosage was increased. At that time, he also reported experiencing fatigue and insomnia. A treatment record dated in June 2003 reflects the Veteran's complaints of sensitivity to hot and cold temperatures, weight loss, sleep disturbance, and lack of energy. The Veteran also reported that his thyroid was sore. He was diagnosed as having Hashimoto thyroiditis with hypothyroidism and persistent tenderness, and the Veteran's complaints of lack of energy was "likely multifactorial, but atenolol certainly [could] be a suspect." He was also noted to have a diffuse firm goiter with enlargement in both lobes. The following month, the Veteran was noted to be complaining of constipation. Treatment records reflect ongoing treatment for depressive symptoms and the Veteran has been noted to have responded to questions with long and convoluted stories to make his point. The Veteran underwent a VA examination in November 2003. The Veteran reported weight loss from August 2002 to December 2002, but noted that it had been stable since. He advised that he became constipated and had to use laxatives. He also reported experiencing fatigue all the time and that he tired easily. The fatigue, he noted, increased over the previous year or so. The Veteran also reported painful swallowing and pain in the superoanterior aspect of the left neck, but denied dysphagia. He further related experiencing sensitivity to heat and cold. The Veteran's hypothyroidism diagnosis was continued. In the Veteran's January 2006 substantive appeal, he reported experiencing fatigability, constipation, mental sluggishness, cold intolerance, muscular weakness, and depression. In a January 2006 VA treatment record, the Veteran advised that he could not remember things as well, and brought his wife to appointments to help him. In a January 2007 VA treatment record, the Veteran complained of difficulty thinking as clearly as he used to. He reported becoming more forgetful. In June 2007, the Veteran underwent another VA examination. The Veteran described symptoms including fatigability, emotional instability, depression, slowing of thought, poor memory, difficulty breathing, and difficulty swallowing. He reported heat and cold intolerance. The Veteran's hypothyroidism did not affect his body weight, and he was not found to have any heart or gastrointestinal complications resulting from his thyroid condition. The examiner noted that the Veteran's functional impairment due to hypothyroidism was chronic constipation, fatigability, and decreased physical activity. Diagnostic testing revealed TSH, T3, and T4 levels within normal limits. The examiner found no change in the Veteran's diagnosis, but noted the Veteran had to continue his medication for treatment. Given the evidence as outlined above, the Board finds that the Veteran is entitled to a 30 percent rating for his service-connected hypothyroidism for the entire timeframe in question. The Veteran has consistently reported fatigue and constipation associated with his hypothyroidism, and this is evidenced in the clinical records. Additionally, the Veteran has complained of depression and other mental health complaints, such as slow thought and poor memory. The Board finds that the Veteran's clinically noted symptoms are most analogous to the criteria for a 30 percent rating under Diagnostic Code 7903. As such, a 30 percent rating for service-connected hypothyroidism is awarded. The Board acknowledges that the Veteran has had periods when his symptoms were less severe than currently noted. In an effort to allow for the greatest degree of stability of the disability evaluation as per 38 C.F.R. § 3.344(a), however, the Board finds that the assignment of the more favorable rating as described above should be assigned for the entire period in question. The Veteran is not, however, entitled to a higher rating for his service-connected hypothyroidism. There is no evidence that the Veteran has muscular weakness, mental disturbance, and weight gain that has been clinically shown to be related to his hypothyroidism. In fact, the Veteran's weight has generally remained stable following his 2002 weight loss. Absent these three criteria, the Veteran is not entitled to a rating in excess of 30 percent for his service-connected hypothyroidism. The Board appreciates the statements of the Veteran's representative in his January 2010 brief. He specifically argued that the Veteran's November 2003 VA examination was inadequate because the examiner did not address the rating criteria, nor did he review the treatment records. The Board finds, however, that the two VA examinations afforded to the Veteran are adequate for purposes of determining the present level of disability related to hypothyroidism. Although the November 2003 VA examiner did not address the specific rating criteria for hypothyroidism, he documented the Veteran's complaints related to his hypothyroidism and it does not appear that the examiner was not thorough in his examination. Further, the Board finds no evidence that any failure to review treatment records impacted the VA examiner's findings and report. Additionally, all pertinent treatment records are associated with the Veteran's claims file, and the Veteran has not contended otherwise. As such, the Board has considered all pertinent evidence of record when reaching this decision. The Board has also considered whether staged ratings are appropriate per Hart, but finds that they are not appropriate under these circumstances The Veteran does not assert that he is totally unemployable because of his service-connected hypothyroidism, nor has he identified any specific factors which may be considered to be exceptional or unusual in light of VA's schedule of ratings. The Board has been similarly unsuccessful in locating exceptional factors. Specifically, the Veteran has not required frequent periods of hospitalization for treatment of his hypothyroidism. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a) and 4.1. 38 C.F.R. § 4.1 specifically states, "Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Therefore, because there is no evidence of the Veteran requiring frequent periods of hospitalizations due to his hypothyroidism, the Board finds that the evaluation currently assigned adequately reflects the clinically established impairment experienced by the Veteran. In the absence of requisite factors, the criteria for submission for assignment of an extraschedular rating for this disability pursuant to 38 C.F.R. § 3.321(b)(1) are not satisfied. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Consequently, the Board will not refer this claim to the Director of Compensation and Pension for extraschedular review. ORDER A 30 percent rating for service-connected hypothyroidism is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs