Citation Nr: 1031877 Decision Date: 08/25/10 Archive Date: 09/01/10 DOCKET NO. 08-22 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial disability evaluation in excess of 10 percent for service-connected Hodgkin's disease with associated hypothyroidism and infertility prior to November 5, 2009, and in excess of 30 percent since November 5, 2009. WITNESS AT HEARING ON APPEAL Appellant/Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Associate Counsel INTRODUCTION The Veteran had active service from July 1992 to July 1993. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Montgomery, Alabama, in which service connection for Hodgkin's disease was granted and a noncompensable rating was assigned effective July 7, 2005. In a May 2008 rating decision, the noncompensable rating was continued for Hodgkin's disease and the Veteran's infertility was recognized as part of that disability; additionally, service connection was granted for hypothyroidism associated with Hodgkin's disease and a separate 10 percent rating was assigned for that aspect of the disability effective July 7, 2005. In a March 2010 rating decision, a 30 percent rating was assigned for hypothyroidism associated with Hodgkin's disease effective November 5, 2009. Consequently, the issue on appeal is as phrased on the title page of this decision as the Veteran appeals the assignment of ratings for all aspects of Hodgkin's disease. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran provided testimony at a June 2010 hearing before the Board. A transcript of the proceeding is of record and has been reviewed. The record raises the issue of entitlement to service connection for right ankle injury. See June 2010 hearing transcript. This issue was not developed or certified for appeal. As such, the Board REFERS the issue of entitlement to service connection for right ankle injury to the RO for appropriate action. FINDING OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran's Hodgkin's disease with associated hypothyroidism is manifest by the need for continuous medication, fatigability, constipation, mental sluggishness, muscular weakness, cold intolerance, mental disturbance, and sleepiness as of July 7, 2005. CONCLUSION OF LAW Criteria for a 100 percent rating for Hodgkin's disease with infertility and hypothyroidism have been met since July 7, 2005. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.16, 4.119, Diagnostic Code (DC) 7903 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision. Any error in the failure to provide notice involving the downstream elements of rating and effective date is harmless at this time, and can be corrected by the RO following the Board's decision. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran maintains that she is entitled to an initial disability rating greater than 30 percent for her service- connected Hodgkin's disease with hypothyroidism. She credibly testified before the Board that she experiences muscle weakness in both arms, is tired all the time, sweats, is constipated, has a very dry mouth most of the time and experienced quite a bit of anxiety. The Veteran stated that she did not work because of the various symptoms she experiences as a result of Hodgkin's disease notwithstanding her desire to be part of the work force. 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. 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. Consideration must also be given to a longitudinal picture of the veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's disability is currently rated as 30 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code 7903, for hypothyroidism and 0 percent disabling under 38 C.F.R. § 4.117, Diagnostic Code 7709, for Hodgkin's disease with infertility. Diagnostic Code 7709 allows for a rating of 100 percent during the active disease and treatment and directs that the residuals of the disease be rated separately after that time period. Diagnostic Code 7903 allows for the assignment of a 10 percent rating when there is evidence of hypothyroidism with fatigability or continuous medication required for control; a 30 percent rating for hypothyroidism with fatigability, constipation, and mental sluggishness; a 60 percent rating for hypothyroidism with muscular weakness, mental disturbance, and weight gain; and, a 100 percent rating is assigned when there is evidence of hypothyroidism with cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. The Veteran underwent VA examination in July 2006 and related being diagnosed with Hodgkin's disease in 1992 with radiation for the disease in 1993. The Veteran further indicated that she had experienced thyroid problems, specifically, hypothyroidism since radiation treatment; that the prescribed thyroid replacement medication made her sick; and, that she had been feeling very tired and fatigued ever since that time. Upon examination and review of the claims file, the examiner diagnosed the Veteran as having a history of hypothyroidism after radiation treatment, with the use of Synthroid, and fatigue. In a November 2007 statement, the Veteran reported feeling depressed and anxious, explaining that she experienced these feelings due to her disability. Contemporaneous VA outpatient treatment records demonstrate that the Veteran provided a history of depression which had been getting worse in the past six months. The Veteran is currently prescribed medication for anxiety. VA outpatient treatment records dated in March 2008 to April 2008 demonstrate that the Veteran sought treatment for hypothyroidism associated with Hodgkin's disease. A March 2008 record shows that she was seen in the endocrinology clinic due to abnormal thyroid tests. The Veteran provided a history of depression, weight gain of 35 pounds in the past four months, and continued fatigue and dry mouth. She was continued on Synthroid for treatment of her hypothyroidism. In her July 2008 notice of disagreement, the Veteran reported that her current thyroid medication, Synthroid, did not properly regulate her blood levels, as in addition to weight gain, she experienced fatigue and mental sluggishness. The Veteran further reported that she experienced constipation. A July 2008 VA outpatient treatment record demonstrates that the Veteran sought treatment for hyperthyroidism, indicating that she experienced depression, constipation, difficulty sleeping, and cold intolerance. A January 2009 VA outpatient treatment record demonstrates that the Veteran reported that she experienced constipation, fatigue, cold intolerance, and a weight gain of approximately 20 pounds. July 2009 VA outpatient treatment records show that the Veteran seeks treatment for hypothyroidism and continues to take Levothyroxine for her disability. In November 2009, the Veteran underwent a second VA examination and related experiencing constipation, sluggishness, myalgias, and arthralgias. She further reported anxiety, decreased concentration, mental sluggishness, watery eyes, dry skin, brittle hair, tenderness of the neck, generalized weakness, and fatigability. The Veteran reported having a poor response to medications, noting that in her belief her symptoms were getting progressively worse. On examination, the Veteran was found to have some weight loss compared to baseline, her skin and hair were dry, and her thyroid size was normal without nodules. There were signs of depression. The diagnosis of hypothyroidism associated with Hodgkin's disease was confirmed. In June 2010, the Veteran testified that she experienced constant fatigue, muscle weakness of both arms, sleepiness, hair loss, constipation, sweating, dry mouth, and anxiety. She stated that she felt handicapped most of the time and revealed her genuine anguish in not being able to participate in the work force or bear children. The Veteran was observed to be very fragile and had difficulty managing her emotions. It is important to note at this juncture that it is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 4.3. Given the evidence as outlined above, the Board finds that criteria for a 100 percent rating under Diagnostic Code 7903 have been met for the entire period in question. As such, the Veteran is entitled to a 100 percent rating for Hodgkin's disease with associated hypothyroidism as of July 7, 2005, as there has been a consistent showing of muscular weakness, mental disturbance and fatigue as part of her disability. The Veteran has consistently reported fatigue and constipation associated with hypothyroidism and there is objective evidence of her weight fluctuating, cold intolerance, sleepiness, and muscular weakness. Additionally, the Veteran has complained of depression and anxiety, which is demonstrated by the clinical record. Thus, when resolving all doubt in the Veteran's favor, the Board finds that the Veteran's clinically noted symptoms are most analogous to the criteria for a 100 percent rating under DC 7903. Consequently, a 100 percent rating for Hodgkin's disease with hypothyroidism is granted for the entire period in question. The Board acknowledges that the Veteran has had periods when her 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. There is no evidence to support staged ratings. ORDER A 100 percent evaluation for Hodgkin's disease with hypothyroidism and infertility is granted as of July 7, 2005, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ Kristi Barlow Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs