Citation Nr: 1304553	
Decision Date: 02/07/13    Archive Date: 02/19/13

DOCKET NO.  03-23 463	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to a rating higher than 30 percent rating for hyperthyroidism.  


REPRESENTATION

Appellant represented by:	Arizona Department of Veterans Services


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

P. Childers, Counsel


INTRODUCTION

The Veteran had active service from June 1968 to March 1970.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that denied a claim for an increased rating higher than 10 percent for hyperthyroidism.

In a rating decision in December 2004 the RO increased the rating for the Veteran's service-connected hyperthyroidism from 10 percent to 30 percent effective February 15, 2001.  

In a rating decision in March 2011 the Veteran was granted a total disability rating for compensation based on individual unemployability (TDIU) for a closed period, from August 18, 2003 (the date of a formal claim for individual unemployability), until June 28, 2010, secondary to a heart disability.  The schedular rating for the service-connected heart disability was then increased to 100 percent effective June 28, 2010.

In March 2012 the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in Phoenix, Arizona.  A transcript of the hearing is in the claims file.

In June 2012 the Board remanded the matter for further development, including a new VA examination, which was duly done in June 2012.  No further action to ensure compliance with the Board's remand directives is required.  Stegall v. West, 11 Vet. App. 268 (1998).  


FINDING OF FACT

The Veteran's thyroid has been asymptomatic, and his hyperthyroidism has been in remission, throughout the appeal period.


CONCLUSION OF LAW

The criteria for a rating higher than 30 percent for hyperthyroidism are not met at any time during the appeal period.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.119 including Diagnostic Code 7900 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Before addressing the merits of the Veteran's appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).

In a letter dated in March 2003, the RO notified the Veteran regarding the information and evidence needed to substantiate his claim for an increased rating.  Although the letter was sent after the 2002 rating decision, the Board finds this timing error to be harmless since extensive development was done, and the matter was re-adjudicated, after the 2003 letter.  

The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as prescribed by the facts and circumstances in this case.  The Veteran's service treatment records are in the file, as are post-service treatment records from VA and non-VA medical providers.  The Veteran has also been afforded numerous VA examinations throughout the appeal period with regard to his appeal for an increased rating for hyperthyroidism, and the Board has reviewed this evidence and finds it to be adequate for rating purposes.  See, e.g., Ardison v. Brown, 6 Vet. App. 405, 407 (1994)) (providing, basically, that a medical [examination] is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).  The Veteran also testified regarding his claim for an increased rating before the undersigned Veterans Law Judge in a March 2012 Travel Board hearing.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  

During the 2012 Board hearing the Veteran was ably assisted by an accredited representative from the Disabled American Veterans.  The representative, and the Veterans Law Judge, asked questions to ascertain the severity of the Veteran's service-connected hyperthyroidism disability.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative.  The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for an increased rating.  Additionally, the Veteran has demonstrated actual knowledge of what was needed for the claim to be granted, as evidenced by the questioning pursued by his representative at the hearing.  Neither the representative nor the Veteran have suggested any deficiency in the conduct of the hearing.  Therefore, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).  See also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran).

The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the claim herein addressed on the merits, and has not argued that any error or deficiency in the accomplishment of the duties to notify and assist has prejudiced him in the adjudication of his appeal.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006).

In view of the forgoing, the Board finds that VA has satisfied its duties to notify and assist.  The Board will therefore review the merits of the Veteran's claim, de novo.

Applicable Laws and Regulations

Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  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. §§ 3.321(a), 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 required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  

Evidence and Analysis

In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2009) 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 on appeal.  The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes.  

In a rating decision in January 1971 the RO granted service connection for hyperthyroidism with an evaluation of 10 percent under Diagnostic Code 7900.

In February 2001 the Veteran filed a claim for an increased rating; which the RO denied in a March 2002 rating decision.  The Veteran appealed that decision.

In a rating decision in December 2004 the RO increased the rating for the Veteran's service-connected hyperthyroidism from 10 percent to 30 percent, effective February 15, 2001, based on the Veteran's complaints of constant fatigue and difficulty concentrating.  The Veteran continues to press for a higher rating.

The Veteran's service-connected hyperthyroidism has been rated under Diagnostic Code 7900 throughout the appeal period.  38 C.F.R. § 4.119, Diagnostic Code 7900.  Under Diagnostic Code 7900, a 30 percent rating is warranted where there is tachycardia, tremor, and increased pulse pressure or blood pressure secondary to hyperthyroidism; a 60 percent rating is warranted where there is emotional instability, tachycardia, fatigability, and increased pulse pressure or blood pressure secondary to hyperthyroidism; and a 100 percent rating is warranted where there is thyroid enlargement, tachycardia (more than 100 beats per minute), eye involvement, muscular weakness, loss of weight, and sympathetic nervous system, cardiovascular, or gastrointestinal symptoms secondary to hyperthyroidism.

The evidence of record confirms that the Veteran has had palpitations, fluctuations in his weight, fatigue, and some psychological complaints (difficulty concentrating and depression) throughout the appeal period; however, according to VA examiners in 2001, 2004, and 2012, the Veteran's thyroid, which is controlled by medication, has been of normal size and asymptomatic, and his service-connected hyperthyroidism has been in remission, throughout the appeal period.  In this regard the Board notes that the Veteran was granted service connection, and assigned a 100 percent rating, for heart disease during this appeal period; and notes that the Veteran's cardiovascular complaints and fatigue are compensated under that diagnostic criteria.  In any event, the 2012 VA examiner stresses that the Veteran's thyroid is "totally asymptomatic with no residual disease with no muscular weakness, mental disturbance, weight gain, cold intolerance, cardiovascular residual, [or] bradycardia," and the record contains no evidence to the contrary.  The preponderance of the evidence is accordingly against the claim for a rating higher than 30 percent for service-connected hyperthyroidism at all times during the appeal period; the benefit of the doubt doctrine is in turn not applicable (38 C.F.R. § 4.3); and a staged rating is in turn not warranted (Hart, 21 Vet. App. 505).  

In reaching this conclusion, the Board has considered whether the case should be referred to the Director of VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a).  

In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  

In this case the Veteran's thyroid is completely asymptomatic, and his service-connected hyperthyroidism has been in remission throughout the appeal period.  Moreover, the 2012 VA examiner states that the Veteran is not unemployable secondary to his service-connected hyperthyroidism; and there is no lay or medical evidence of record that refutes this assertion.  The Board accordingly finds that referral of this case for extra-schedular consideration under 38 C.F.R. § 3.321(b) is not warranted.  

Finally, the Court has held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation.  See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009).  

In this case the evidence does not show that the Veteran is unemployable by his service-connected hyperthyroidism.  On the contrary, the Veteran's service-connected hyperthyroidism has been in remission, and his thyroid asymptomatic, throughout the appeal period.  Accordingly, consideration of this disability pursuant to 38 C.F.R. § 4.16 is not warranted.  


ORDER

A rating higher than 30 percent rating for hyperthyroidism is denied.




____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs