Citation Nr: 1031808 Decision Date: 08/24/10 Archive Date: 09/01/10 DOCKET NO. 06-37 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased rating for hypothyroidism, rated as 10 percent disabling prior to February 4, 2010, and as 30 percent disabling thereafter. ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from October 1976 to June 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied the claim. The Board remanded the claim in September 2008 for additional development and to address due process concerns. More specifically, the Board instructed the RO/Appeals Management Center (AMC) to send the Veteran notice that complied with Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), and to schedule the Veteran for a more contemporaneous VA examination. The actions directed by the Board have been accomplished and the matter returned for appellate review. FINDING OF FACT The Veteran's hypothyroidism is manifested by fatigability, constipation and mental sluggishness. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating for service-connected hypothyroidism for the period prior to February 4, 2010, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code (DC) 7903 (2009). 2. The criteria for a rating in excess of 30 percent for service-connected hypothyroidism have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code (DC) 7903 (2009). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Increased rating Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2009). Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. See generally 38 C.F.R. §§ 4.1, 4.2 (2009). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). When service connection has been in effect for many years, the primary concern for the Board is the current level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Yet, the relevant temporal focus for adjudicating an increased rating claim is on the evidence establishing the state of the disability from the time period one year before the claim was filed until a final decision is issued. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Thus, staged ratings may be assigned if the severity of the disability changes during the relevant rating period. Service connection was originally established for hypothyroidism pursuant to 38 C.F.R. § 4.119, DC 7903 with a 10 percent evaluation effective July 1, 1997. See October 1997 rating decision. The Veteran filed a claim for increased rating that was received on January 3, 2006. She asserted that she was entitled to an increased rating for hypothyroidism because she had had thyroid surgery in October 2005, was diagnosed with papillary cancer, and was undergoing treatment. See December 2005 statement in support of claim. At this juncture, the Board notes that service connection was subsequently established for papillary carcinoma of the thyroid gland in a November 2006 rating decision. A 100 percent evaluation was assigned effective October 20, 2005 and a noncompensable evaluation was assigned from August 1, 2006, pursuant to 38 C.F.R. § 4.119, DC 7914. The Veteran also reports that she is gaining weight, is constantly tired and sleepy, and is always constipated. See October 2006 notice of disagreement; December 2006 VA Form 9. In addition, she asserts that she goes from being constipated to having diarrhea two to three times a week, that she has stomach cramps and constant nausea, that she cannot sleep and is exhausted during the day and has no energy, and that her hair is falling out. See October 2008 VA Form 21-4138. DC 7903 provides the rating criteria for hypothyroidism. Hypothyroidism with fatigability, or; continuous medication required for control, is rated 10 percent disabling. Hypothyroidism with fatigability, constipation, and mental sluggishness is rated 30 percent disabling. Hypothyroidism with muscular weakness, mental disturbance, and weight gain is rated 60 percent disabling. And hypothyroidism with cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness is rated 100 percent disabling. 38 C.F.R. § 4.119. The medical evidence in this case consists of private treatment records and two VA compensation and pension (C&P) examination reports. The private medical records indicate that the Veteran underwent a total thyroidectomy in October 2005 and by December 2005, labs showed her to be euthyroid. See records from Martin Army Community Hospital. A December 2005 record of care revealed that the Veteran's neck was supple and her thyroid gland was absent. See record from Endocrine Consultants, P.C. A March 2006 letter from Dr. S.B. Leichter also reports that the Veteran was euthyroid; that her TSH (thyroid stimulating hormone) was 0.35; that treatment was continuing; and that she would be checked again in four months. The Veteran underwent a VA C&P miscellaneous endocrine diseases examination in February 2006. At that time, her claims folder was not available for review. The Veteran gave a history of thyroid problems for the last 10 years and indicated that she was still taking the medication Levothyroxine. She reported fatigability and headaches in the bilateral temples and frontal areas. The examiner reported that diagnostic and clinical studies revealed that the Veteran's thyroid profile was within normal limits. In pertinent part, the Veteran was diagnosed with status post thyroid surgery for thyroid cancer and hypothyroidism in past, but presently euthyroid. The Veteran underwent a VA C&P thyroid and parathyroid disease examination in February 2010, at which time her claims folder was available and reviewed. She reported that she was being followed by her personal physician at Martin Army Hospital for hypothyroidism, that the condition had gotten progressively worse, and that current treatment was in the form of Levothyroxine. The Veteran also reported symptoms of fatigability, generalized weakness, heat intolerance, insomnia, arthralgia, bone pain, amenorrhea, dry skin, thinning hair, cramps, spasms, weight gain, constipation, and an increased number of bowel movements or diarrhea. She denied neurologic/psychiatric, neck and eye symptoms. In pertinent part, physical examination revealed a gain of less than 10 percent in weight compared to the baseline and an absent or non- palpable thyroid. The VA thyroid examiner reported an absence of evidence of recurrent laryngeal nerve damage and signs of slow speech, depression, apathy, psychosis and/or dementia. Thyroid function test results were included in the examination report. Results of an electrocardiogram (EKG) were interpreted to reveal a normal sinus rhythm, a ventricular rate of 66, and possible left atrial enlargement. The Veteran was diagnosed with hypothyroidism, status post total thyroidectomy, and status post papillary carcinoma of the thyroid gland. The examiner indicated that hypothyroidism was active and results in decreased concentration, decreased mobility, problems with lifting and carrying, lack of stamina, and weakness or fatigue. The examiner also reported that the Veteran was status post thyroidectomy in 2005 with thyroid lab values within normal limits. The examiner noted that the term euthyroid refers to within normal limits thyroid lab values whether or not there is a functioning thyroid gland. As with this Veteran who has a non- functioning thyroid gland, thyroid hormone blood levels are maintained by intake of prescribed oral daily medications. This Veteran, however, despite her present within normal limit lab values of thyroid hormone, still demonstrates typical symptoms of hypothyroidism such as fatigue, weight gain, generalized weakness and thinning hair. The examiner went on to explain that hypothyroid patients can be symptomatic despite within normal thyroid lab values, as some patients may need higher doses or oral thyroid supplemental medications to diminish or relieve hypothyroid symptoms. Increasing the dose of oral thyroid hormone medication would result in decreasing the blood level of TSH (thyroid stimulating hormone). The examiner indicated that the Veteran was presently on one daily dose of oral thyroid hormonal supplemental medication of Levothyroxine; therefore, it is as likely as not that the Veteran has hypothyroid symptoms despite within normal limit lab values. At this juncture, the Board acknowledges the assertions raised by the Veteran regarding her symptomatology, to include constipation, weight gain, tiredness/sleepiness, nausea, lack of energy, and loss of hair; it finds that she is competent to discuss specific symptoms that she experiences and that these contentions are credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). It also has determined, however, that in several medical records from Martin Army Community Hospital, an absence of gastrointestinal symptoms was noted, see e.g., December 2005 and May 2006 health records, and that there were also no gastrointestinal abnormalities noted at the time of the February 2010 VA examination. The evidence of record supports the assignment of a 30 percent rating for hypothyroidism under DC 7903 prior to February 4, 2010. Since the inception of her claim for an increased rating, the Veteran has credibly and competently reported that she has constipation, fatigability and lack of energy, which, given the February 2010 VA examiner's finding of decreased concentration, the Board interprets as mental sluggishness. In addition to the assertions made by the Veteran concerning her symptomatology, the February 2010 VA examiner indicated that hypothyroidism was active, resulting in decreased concentration, decreased mobility, problems with lifting and carrying, lack of stamina, and weakness or fatigue. The examiner also explained that her thyroid lab values were within normal limits, that the term euthyroid refers to within normal limit thyroid lab values whether or not a functioning thyroid gland is present, that the Veteran's thyroid hormone blood levels are maintained by medication, and that despite her normal limit lab values of thyroid hormone, the Veteran still demonstrates typical symptoms of hypothyroidism. Based on the foregoing, the Board finds that the evidence supports the assignment of a 30 percent evaluation for hypothyroidism under DC 7903 for the period prior to February 4, 2010. The evidence does not support the assignment of a rating in excess of 30 percent under DC 7903 at any point during the time frame on appeal. The Board acknowledges that both the subjective and objective evidence indicates that the Veteran has gained weight. The Board also notes the February 2010 VA examiner's report of problems with lifting and carrying and generalized weakness, which could be synonymous with muscular weakness, though it is unclear. Irrespective of the foregoing, the evidence is devoid of any reference to mental disturbance. Rather, the Veteran denied psychiatric symptoms at the time of the February 2010 VA examination and the VA examiner noted the absence of any signs of depression, apathy, psychosis and/or dementia. Therefore, the totality of the evidence does not support the assignment of the next highest (60 percent) rating under DC 7903 for hypothyroidism. See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). The Board has also considered whether a separate rating is warranted for the scar associated with the Veteran's October 2005 total thyroidectomy. See Esteban v. Brown, 6 Vet. App. 259 (1994). In this case, a December 2005 record from Endocrine Consultants, P.C. reported a scar that was "healing well," a July 2006 Martin Army Community Hospital record reports that the surgical scar was well-healed, and during the February 2010 VA examination, the examiner noted a 10 centimeter, linear, but mildly curved, surgical scar at the base of the neck anteriorally without tenderness or swelling. The Board concludes that these findings do not support the assignment of a separate rating for the Veteran's scar as it is not deep causing limited motion in an area that exceeds six square inches (39 square centimeters); is not deep and nonlinear in an area of at least six square inches (39 square centimeters) but less than 12 square inches (77 square centimeters); is not superficial without causing limited motion or superficial and nonlinear in an area of 144 square inches (929 square centimeters) or greater; is not superficial and unstable or painful on examination; and there is no evidence it limits the Veteran's neck function. See 38 C.F.R. § 4.119, DCs 7801-7805 (2009); 73 F.R. 54708 (Sep. 23, 2008). II. Extraschedular consideration The rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2009). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms exhibited by the Veteran's hypothyroidism, to include weight gain, constipation, and fatigability, are contemplated by the rating criteria (i.e., 38 C.F.R. § 4.119, DC 7903), which reasonably describe the Veteran's disability. Therefore, referral for consideration of an extraschedular rating is not warranted. III. Duties to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). 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) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Prior to the issuance of the September 2006 rating decision that is the subject of this appeal, the Veteran was advised of the evidence necessary to substantiate a claim for increased rating and of her and VA's respective duties in obtaining evidence. See February 2006 letter. Accordingly, the duty to notify has been fulfilled. VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). This duty has also been met, as the Veteran's private treatment records have been associated with the claims folder and she was afforded several VA examinations in connection with her claim. The Board acknowledges that the Veteran submitted a VA Form 21-4142 in October 2008 giving her authorization and consent for VA to obtain records from Martin Army Community Hospital dated from June 1997 to the present. The Board also acknowledges that the RO incorrectly requested records through the use of a VA Form 3101, rather than requesting records directly from this facility. Review of the claims folder, however, reveals that records from this facility were previously requested by the RO and received in July 2006. Review further reveals that the RO contacted the Veteran in May 2010 and informed her that treatment records from Martin Army Community Hospital from June 1997 to July 2006 were or record and previously considered, but that records from July 2006 to the present were not. The Veteran indicated that she wished for a decision to be rendered with the current evidence of record as her claim had already been pending too long. See VA Form 21- 0820. The record does not suggest the existence of additional, pertinent evidence that has not been obtained. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the Veteran. ORDER A rating of 30 percent for hypothyroidism is granted for the period prior to February 4, 2010, subject to the laws and regulations governing the payment of monetary benefits. A rating in excess of 30 percent for hypothyroidism is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs