Citation Nr: 1318196 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-11 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for high blood pressure/hypertension. 2. Entitlement to service connection for intermittent dizzy spells and blackouts. 3. Entitlement to an initial rating higher than 10 percent for hypothyroidism. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied, in pertinent part, service connection for high blood pressure; dry mouth and difficulty swallowing; and dizzy spells and blackouts; and that granted service connection for hypothyroidism with an assigned rating of 10 percent. In a rating decision dated in February 2012, the RO granted service connection for xerostomia with symptoms of dysphagia and odynophagia (claimed as dry mouth and difficulty swallowing foods). As the benefit sought, namely, service connection for dry mouth and difficulty swallowing, has been granted, that issue is no longer on appeal. The issue of entitlement to service connection for high blood pressure/hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The Veteran's intermittent dizzy spells and blackouts are already service connected as symptoms of his coronary artery disease status post coronary artery bypass graft disability. 2. The Veteran's hypothyroidism disability has not been productive of mental sluggishness at any time during the appeal period. CONCLUSIONS OF LAW 1. There being no justiciable case or controversy, the Veteran's claim of service connection for intermittent dizzy spells and blackouts is dismissed. 38 U.S.C.A. § 7105 (West 2002). 2. The criteria for a rating in excess of 10 percent for hypothyroidism have not been met at any time during the appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.3, 4.119, Diagnostic Code 7903 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify the Veteran of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). However, in cases in which service connection has been granted and an appeal is taken with regard to the assigned initial disability rating and/or effective date, the Court has held that additional VCAA notice is not required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. 473, 490-491; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In this case the notice requirements were accomplished in a letter sent October 2006. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). Additionally, all relevant facts have been properly developed, and all evidence necessary for equitable resolution of the appeals have been obtained. The Veteran's service treatment records and VA treatment records have been obtained. In addition, he has been provided with multiple VA examinations and was afforded an opportunity to give testimony before the Board. He has not indicated there are any additional records that VA should seek to obtain regarding the issues being resolved in this decision. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. II. Service connection, Intermittent Dizzy Spells and Blackouts In August 2002 this Vietnam veteran underwent coronary artery bypass graft, and in October 2002 he filed a claim for service connection for open heart surgery. That claim was denied in August 2003. In August 2006 the Veteran filed a claim for service connection for intermittent dizzy spells and blackouts; and in May 2010 he was accorded a VA heart examination. During the examination he complained of lightheadedness and dizziness. He also admitted to blackouts prior to insertion of a pacemaker in 2008. The examiner stated that the Veteran's complaints were secondary to his heart disease. In a rating decision in February 2011, the RO granted service connection for coronary artery disease status post coronary artery bypass graft x 2 as a presumptive disorder under 38 C.F.R. § 3.309(e), effective from October 31, 2002; the date of the Veteran's first claim. The Veteran's complaints of dizziness and blackouts (syncope) were expressly acknowledged by the RO to be symptoms of his heart disability; and this disability has been rated based on these symptoms. Inasmuch as the RO acknowledged that the Veteran's coronary artery disability includes objective findings and subjective symptoms of dizziness and blackouts/syncope and has rated the Veteran accordingly, service connection for intermittent dizzy spells and blackouts has, in effect, been granted. Thus, the Veteran's claim of entitlement to service connection for intermittent dizzy spells and blackouts is moot as the benefit sought on appeal, i.e., service connection, is already in effect. See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991) (holding that when the RO listed a condition as service-connected on a rating sheet, it effectively granted service connection). Accordingly, the appeal on this issue is dismissed. III. Increased rating, hypothyroidism In a rating decision in August 2007 the RO granted service connection for hypothyroidism with a rating of 10 percent effective August 1, 2006. The Veteran has appealed the assigned rating. 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). Under the hypothyroidism provisions of Diagnostic Code 7903, a 30 percent evaluation is assigned for fatigability, constipation, and mental sluggishness. 38 C.F.R. § 4.119, Diagnostic Code 7903. A 60 percent evaluation is warranted for muscular weakness, mental disturbance, and weight gain. Id. A 100 percent rating is assigned for cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute) and sleepiness. Id. 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). Facts VA medical records relate complaints of fatigue. In a letter in March 2009, the Veteran's VA physician of six years advised that the Veteran was diagnosed with squamous cell carcinoma of the piriform sinus in December of 2003 and had undergone chemotherapy and radiation, which had in turn caused the Veteran's hypothyroidism. She stated that in addition to needing to take daily thyroid medication, the Veteran had reported some difficulties with constipation, mental sluggishness, fatigue, weight gain, dry mouth, difficulty swallowing. She also noted that the Veteran had complained of some mild muscle weakness in his legs since his cancer diagnosis, but said there was no objective evidence of focal muscle weakness on examination. She added that the Veteran's complaints were likely related to his cancer treatment. On VA hypothyroidism examination in June 2011 the Veteran reported that he was always fatigued, and complained of dry skin and hair. Physical examination found the thyroid to be of normal size. In an opinion dated in April 2012, the examiner noted that the Veteran's medical history included diagnoses of psychosis and/or schizophrenia due to methamphetamine use in 1996; that the Veteran had stopped his prescribed medication because it made him "feel weird;" and that the Veteran had dropped out of his mental health treatment in October 1997, stating that he had decided to use alcohol instead for the voices and would drink beer until he was so numb he did not care about the voices. The examiner remarked that this alone was sufficient to induce "mental sluggishness," and pointed out that this was years prior to the onset of the Veteran's hypothyroidism. He next commented on the conclusions made by the Veteran's VA physician in her letter of March 2009, stating that he saw no consistent evidence of constipations in medical records, and objecting that the Veteran's fatigue and sluggishness symptoms could not be due to his hypothyroidism because his TSH levels in March 2009 were normal. He further stated that, overall, the Veteran had only a few TSH values above 10 from 2004 to 2011; and added that mild TSH elevations under 10 do not cause clinical symptomatology. He then reiterated his position that the Veteran's mental sluggishness was due to his antipsychotic medication regimen combined with his ongoing alcohol abuse and cannabis use. Analysis The Board has reviewed all of the evidence in the Veteran's claims file and electronic Virtual VA 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 below focuses specifically on the elements needed to substantiate the claim, and the evidence that the record shows, or fails to show, with respect to the 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). For the reasons that follow, the Board finds that the preponderance of the evidence is against the claim. Although medical records admittedly do not reflect complaints of constipation, the Board nonetheless accepts the longtime treating VA physician's assertion that the Veteran complained to her of constipation. Additionally, medical records include numerous complaints of fatigue dating from the diagnosis of hypothyroidism and coinciding with the Veteran's chemotherapy and radiation treatments; and the Board finds that the medical evidence of record is in conflict as to whether the Veteran's fatigability and constipation are, at least in part, secondary to his service-connected hypothyroidism disability. Therefore, and pursuant to 38 C.F.R. § 4.3, the Board finds in the Veteran's favor as regards these two requirements for a schedular rating of 30 percent. See Mittleider v. West, 11 Vet. App. 181 (1998) (providing that if an examiner is unable to medically distinguish the extent of impairment attributable to the service-connected disability, the benefit-of-the-doubt doctrine directs that all such impairment be attributed to the service-connected disability). However, as regards the "mental sluggishness" requirement for an increased rating, the Board finds that the evidence is against the claim. Although the Veteran's longtime VA physician stated, in her 2009 letter, that the Veteran had admitted to some mental sluggishness, a careful reading of the letter indicates that she attributed the Veteran's mental sluggishness to his cancer/cancer treatment. Indeed, in a May 2012 letter, the only symptom that she identified as secondary to the Veteran's hypothyroidism was fatigue leading to poor stamina, which she said was caused by his hypothyroidism medication. Moreover, the 2012 VA examiner flatly refutes the notion that the Veteran's mental sluggishness is due to hypothyroidism, and points out that the Veteran was already experiencing what could be termed "mental sluggishness" years before the onset of his hypothyroidism based on the Veteran's report that he "would drink beer until he was so numb he did not care about the voices [in his head]." See, e.g., November 14, 2003, VA treatment record advising "schizophrenia-still hears voices, but is coping with them without medication . . .." The examiner then determined that the Veteran's current mental sluggishness was secondary to his antipsychotic medication regimen combined with his ongoing alcohol abuse and cannabis use, and noted that VA treatment records show that the Veteran uses a bowl or two of cannabis and a few beers a day. The Board finds this opinion, which was based on careful review of the Veteran's past medical history and claims file, and which included a very detailed rationale for the conclusions made, to be not only plausible, but persuasive. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). To the extent that the Veteran suggests that his mental sluggishness is due to his hypothyroidism disability, as a lay person he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, and as pointed out by the VA examiner, the Veteran's suffered from mental sluggishness years before the onset of his hypothyroidism, secondary to his mental health diseases and his daily alcohol and cannibas use; and the Board has already found this evidence to be persuasive. The Board therefore finds the opinion of the VA examiner to be significantly more probative than the Veteran's lay assertion as to the etiology of his mental sluggishness. See Evans v. West, 12 Vet. App. 22, 30 (1998) (providing that it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same). The criteria for a rating higher than 10 percent for hypothyroidism are therefore not met, and a staged rating is in turn not warranted (Hart, 21 Vet. App. 505). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Board is mindful that in an initial rating claim, a claim for TDIU [total disability rating for compensation based on individual unemployability] is part of an increased rating claim when such claim is raised by the record (Rice v. Shinseki, 22 Vet. App. 447 (2009)). However, this Veteran has also already been granted individual unemployability, so that issue is not for consideration. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provides for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. ORDER The claim of entitlement to service connection for intermittent dizzy spells and blackouts is dismissed as moot. An initial rating higher than 10 percent for hypothyroidism disability is denied. REMAND In addition to the foregoing, the Veteran seeks service connection for blood pressure problems. In June 2007 the RO requested an examination and opinion on "service connection for blood pressure secondary to service-connected conditions," and on VA examination in July 2007 the examiner stated that the issue before him was whether hypertension was secondary to radiation therapy for laryngeal cancer. See also October 2006 VCAA letter to Veteran. The examiner then averred that he had reviewed the claims file but found no evidence of hypertension or significantly elevated blood pressure readings; and in the ensuing August 2007 rating decision the RO denied the Veteran's claim for blood pressure problems on the grounds that the medical evidence of record failed to show that the disability had been clinically diagnosed. However, VA treatment records associated with the claims file in August 2007 (and thereafter) advise of hypertension since 2003, so the July 2007 examiner was clearly not fully informed. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (holding that the examiner "must consider the records of prior medical examinations and treatment in order to assure a fully informed examination"). See also McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (holding that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative). Indeed, a June 2011 VA examiner did in fact note that the Veteran's history was positive for hypertension. Unfortunately, an opinion as to a nexus to service or service connected disability was not provided. As the present VA examination evidence is inadequate for a decision in this matter, and as the possibility exists that the Veteran's hypertension may be related to his service-connected laryngeal cancer disability, the Board finds that a VA examination is warranted for an opinion in this matter. See Schroeder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000) (holding that VA has an obligation to investigate all theories of entitlement). On remand relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Associate, with the claims file, VA treatment records dating from May 2011 from the Portland, Oregon VAMC. Also, ask the Veteran to provide the names and addresses of any other medical care providers who have treated him for his blood pressure problems that have not already been obtained. Any identified records should be sought. 2. After the above has been completed, schedule the Veteran for a VA examination regarding the claim of service connection for hypertension. The claims file must be made available to, and reviewed by, the examiner in conjunction with the examination. Following a review of the claims file, to include service and post-service medical records, the examiner is requested to state whether it is at least as likely as not that the Veteran's hypertension was (a) incurred in-service or is related to some incident of service; or (b) was caused by the Veteran's laryngeal cancer, including the cancer treatment regime; or (c) increased in severity beyond its natural progression as a result of any service connected disability, (which consists of coronary artery disease, major depressive disorder, tinnitus, hypothyroidism, xerostomia; bilateral hearing loss; and laryngeal carcinoma). The phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A complete rationale for all opinions must be provided. If an opinion cannot be rendered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere conjecture, the examiner should clearly and specifically so state in the examination report, and explain why that is so. 3. After completion of all of the above and any other development deemed necessary, re-adjudicate the claim. If the benefit sought remains denied, provide the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs