Citation Nr: 1305042 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 08-23 148A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial rating in excess of 10 percent for the service-connected Hashimoto's hyperthyroidism. ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from April 1983 to May 1986 and from February 1989 to December 2005. This matter initially arose before the Board of Veterans' Appeals (Board) on appeal of a February 2007 rating decision by the RO. In December 2010 and June 2012, the Board remanded the Veteran's claim for additional development. Although the Veteran initially requested a personal hearing with a Veterans Law Judge, he withdrew his hearing request in May 2012. His hearing request is, therefore, considered withdrawn. 38 C.F.R. § 20.704(e) (2012). One issue previously on appeal, entitlement to an increased rating for the service-connected sinusitis, was granted by the Board in a June 2012 decision. The issue, therefore, has been resolved and is no longer in appellate status. FINDING OF FACT The service-connected Hashimoto's hypothyroidism is shown to be manifested by fatigability and to require constant medication. The competent and credible evidence indicates that his complaints of constipation and mental sluggishness are not due to his hypothyroidism. CONCLUSION OF LAW The criteria for the assignment of a rating in excess of 10 percent for the service-connected Hashimoto's hypothyroidism are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.119 including Diagnostic Code 7903 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION After the evidence has been assembled, the Board is responsible for evaluating the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2011). Indeed, in Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Furthermore, the Board notes that it has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issue adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to these claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The law and regulations also require VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. As the February 2007 rating decision granted the Veteran's claim of entitlement to service connection, such claim is now substantiated. His filing of a notice of disagreement as to the initial rating assigned in that determination does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3) (2012). Rather, the Veteran's appeal as to the initial rating assignment here triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. As a consequence, VA is only required to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished here. Specifically, the July 2008 Statement of the Case (SOC), under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic code for rating the Veteran's hypothyroidism, and included a description of the rating formulas for all possible schedular ratings under this diagnostic code. The Veteran was thus informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the initial evaluation that the RO assigned. Therefore, the Board finds that the Veteran has been informed of what was necessary to achieve a higher initial rating for the service-connected disability at issue. VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. In the present appeal, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. In this capacity, the Board remanded the Veteran's claim for additional development in December 2010 and June 2012. Specifically, in December 2010, the Board requested that the Veteran be scheduled for a hearing with a Veterans Law Judge, that the RO gather additional treatment records, to include private medical records from Geisinger Family Practice, and that the RO schedule the Veteran for an additional VA examination. As noted, following the Board's remand, the Veteran withdrew his request for a hearing before a Veterans Law Judge. The record reflects that, while the RO obtained the Veteran's VA treatment records, the Veteran did not submit, or authorize VA to obtain, his private treatment records from Geisinger Family Practice. Finally, the Veteran was afforded a VA examination in June 2011. In June 2012, the Board observed that the Veteran was scheduled for an appointment at a VA endocrinology clinic on June 28, 2011, however, this treatment record had not been associated with the claims folder. As a result, the Board requested that the RO obtain the Veteran's recent VA treatment records. In addition, as a VA treatment record observed that the Veteran's thyroid nodules had been increasing in size, the Board requested that the Veteran be afforded an additional VA examination. The record reflects that the Veteran's VA treatment records, including his June 2011 endocrinology clinic treatment note have been associated with his electronic claims folder. The Veteran was also afforded an additional VA examination in August 2012. Based on this action, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]; see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) [although under Stegall VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required). Further, the record contains the Veteran's service treatment records, VA outpatient medical records and several VA examination reports. The Veteran was provided with VA examinations in November 2006, June 2011 and August 2012. The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate clinical examinations and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and pertinent to the rating criteria. Supporting rationale was also provided for the opinion proffered. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board therefore concludes that the examinations are adequate for rating purposes. See 38 C.F.R. § 4.2 (2012). As will be discussed, the August 2012 VA examiner noted that Veteran's thyroid was functioning normally due to his medication and his complaints, which included tiredness, sleepiness, and muscular weakness, were not coming from his thyroid condition but for reasons which were unknown. While the examiner did not provide an etiology for the Veteran's complaints, the Board is unaware of any VA regulation or case law which provides that an examiner must identify the specific etiology of a claimed disease or disability. Instead, as is the case here, the record indicates that the VA examiner was aware of the Veteran's medical history and rendered an opinion that was supported by reasons and basis that was consistent with the remainder of the evidence of record. His failure to specifically identify the etiology of the Veteran's symptoms does not render the examination, or the opinion contained therein, inadequate. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. While the Veteran initial requested a hearing before a Veterans Law Judge, he withdrew his hearing request in May 2012, as noted previously. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. II. Law and Regulations Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The service-connected hyperthyroidism is currently assigned a 10 percent rating under Diagnostic Code 7903. Diagnostic Code 7903 [hypothyroidism] provides that a 10 percent rating is warranted for fatigability or continuous medication required for control. A 30 percent evaluation is warranted for symptomatology of fatigability, constipation and mental sluggishness. A 60 percent rating is available when there is muscular weakness, mental disturbance, and weight gain. Finally, a 100 percent rating is assigned when there is cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. 38 C.F.R. § 4.119 (2012). Diagnostic Code 7903 is deemed by the Board to be the most appropriate code, primarily because it pertains specifically to the disability at issue (hypothyroidism), but also because it provides specific guidance as to how symptoms of this disability are to be evaluated. The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and the Veteran has not requested that another diagnostic code should be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 7903. III. Analysis In order to warrant a 30 percent disability under Diagnostic Code 7903, the evidence must show that the Veteran's hypothyroidism results in fatigability, constipation and mental sluggishness. During the November 2006 VA examination, the Veteran complained of having chronic fatigue and tiredness despite sleeping for 10 hours a night. While the Veteran was on medication, diagnostic testing (a thyroid panel) revealed that the Veteran's thyroid was functioning normally. A February 2008 VA treatment record noted that the Veteran's thyroid disability has been "fairly stable." It was noted that, when his medication was increased he became hyperthyroid, but he "cut himself down to skipping two doses" which resolved his symptoms. The Veteran's hypothyroidism was described as "stable" in a September 2008 VA treatment record. While it was noted that nodules had appeared on the Veteran's thyroid in December 2008, a biopsy conducted later that month revealed that these nodules were benign. The Veteran was notified in February 2009 that that his thyroid supplement "was high" and he was advised to alter his doses. He was subsequently noted to have an abnormal thyroid ultrasound with a new enlarged nodule. In an April 2009 VA treatment record, it was noted that the Veteran's laboratory studies were "within normal limits" but that he had previously had an abnormal thyroid function test and his medication was increased by a private physician. An endocrinology consultation report from April 2010 noted that the Veteran had been on medication that had been gradually increased and fluctuated. He complained of fatigue and an inability to lose weight. A thyroid panel revealed "mildly elevated" values, and his medication was altered. In a June 2011 VA endocrinology note, the Veteran reported that he had "some sluggishness at times but nothing unusual [and] nothing persistent." It was noted that his daily multivitamin might be interfering with the absorption of his medication or that he might need an increase in medication. He was advised to alter his multivitamin schedule. During the July 2011 VA examination, the Veteran stated that he was tired all the time, could not lose weight, and needed more fiber in his diet to prevent constipation. He also complained of fatigability, heat intolerance, emotional instability, forgetfulness, mental sluggishness and weight gain. The VA examiner noted that his medication had gradually been increased and that his disease had become progressively worse since onset. A thyroid function test was within normal limits. While the examiner noted that complications of hypothyroidism included tiredness, constipation and weight gain, it was noted that the Veteran's hyperthyroidism was in remission and had no impact on his usual occupation or daily activities. The Veteran was afforded a VA examination in August 2012. After a review of the Veteran's claims file and a clinical examination, the VA examiner stated that the symptoms that the Veteran "[was] complaining of, especially generalized weakness and tiredness . . . [were] not related to his hypothyroidism which appear[ed] to be very well controlled with the current medication." It was noted that "he [was] like anybody else who [was] with normal thyroid functions and these symptoms of general weakness and tiredness and so-called sleepiness or muscular weakness [were] not coming from his thyroid condition but for reasons which [were] unknown." In an addendum, the examiner stated that "after reviewing all of [the Veteran's] lab studies, his hypothyroidism, which [was] well controlled with the current [medication] should have no impact on his social and occupational functioning so long as he continue[d] to take his replacement therapy . . . and [got] his blood test monitored periodically." It is well established that the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). In this case, however, the competent evidence of record indicates that the Veteran's complaints, to include fatigue, weakness and mental sluggishness, are not the result of his service-connected hypothyroidism. In fact, despite the Veteran's complaints during the July 2011 VA examination, the examiner noted that the hypothyroidism was in remission. Similarly, the August 2012 VA examiner noted that, through the use of medication, the Veteran's was just "like anybody else who [was] with normal thyroid functions." It was noted that the symptoms he was complaining of were not coming from his thyroid condition but were for reasons that were unknown. There is no dispute that the Veteran is competent to report symptoms such as fatigability, constipation and mental sluggishness because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet.App. 465, 470 (1994). Furthermore, the Board has no reason to doubt the Veteran's subjective complaints and finds such assertions credible. However, to the extent that the Veteran contends that a relationship exists between these symptoms and his hypothyroidism, any such statement offered in support of his claim cannot constitute competent evidence and accepted by the Board. Specifically, the record does not reflect that the Veteran has the necessary training or medical experience to comment on a complicated matter such as the etiology of his symptoms. In essence, the July 2011 and August 2012 VA examiner's indicated that, because of the medication the Veteran was taking, his disease was in remission and therefore any complaints of fatigue, constipation and mental sluggishness were not due to his service-connected hypothyroidism. The Board is cognizant of the April 2010 VA endocrinology consultation note, which reported that the Veteran's thyroid panel was "mildly elevated" and that he was complaining of fatigue. However, fatigability, or continuous medication required for control are contemplated under the currently assigned 10 percent rating. On review of the evidence, the Board notes the Veteran's symptoms fall squarely within the criteria for the currently-assigned 10 percent rating; i.e., fatigability with need for continuous medication. The competent and credible evidence of record indicates that the Veteran's complaints of constipation and mental sluggishness are not the result of his service-connected hypothyroidism. Hence, on this record, the claim for a rating in excess of 10 percent must be denied . IV. Extraschedular Considerations Under Floyd v. Brown, 9 Vet.App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. However, the Board can address the matter of referral of a disability to appropriate VA officials for such consideration. According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet.App. 225, 229 (1993). Under Thun v. Peake, 22 Vet.App, 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, 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 level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's 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 Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected hypothyroidism. The medical evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be rendered impractical. In fact, as discussed, the Veteran's disability has been determined to be in remission. His use of continuous medication to control his hypothyroidism is specifically contemplated under the appropriate ratings criteria. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. The Board therefore has determined that referral of the case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER A disability rating in excess of 10 percent for the service-connected Hashimoto's hypothyroidism is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs