Citation Nr: 1322126	
Decision Date: 07/10/13    Archive Date: 07/18/13

DOCKET NO.  09-15 293	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to an increased disability rating in excess of 10 percent for the period from December 27, 2007, to October 23, 2011, for hyperthyroidism (Graves' disease).

2. Entitlement to an increased disability rating in excess of 60 percent for the period from October 24, 2011, onward for hyperthyroidism (Graves' disease).


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A.E.H. Gibson, Associate Counsel


INTRODUCTION

The Veteran had active duty service from March 1976 to March 1980 and from January 1981 to December 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision, the RO denied the Veteran's claim for an increased disability rating for hyperthyroidism, which was rated as 10 percent disabling at that time. 

The Board remanded the claim for additional development in September 2011 and October 2012. In May 2013, the Appeals Management Center (AMC) assigned a rating of 60 percent for the period from October 24, 2011, the date of the Veteran's VA examination. The Veteran has not indicated satisfaction with this disability evaluation, thus his appeal is still pending. See AB v. Brown, 6 Vet.App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). 

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a personal hearing at the Waco RO. A transcript of the proceedings has been associated with the Veteran's claims file.

A review of the Virtual VA paperless claims processing systems reveals additional medical records pertinent to the present appeal. The Veteran was apprised of receipt and consideration of these records in a May 2013 Supplemental Statement of the Case.

FINDING OF FACT

The Veteran's hyperthyroidism (Graves' disease) is manifested by fatigability, eye involvement, cardiovascular symptoms, the need for continuous medication, weakness, nervousness, emotional instability, intermittent tachycardia, and tremors.


CONCLUSION OF LAW

The criteria for an evaluation of 60 percent but not more for hyperthyroidism from June 1, 2007, onward, have been approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102 , 4.3, 4.7, 4.119, Diagnostic Codes 7900, 7903 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a) (West 2002). The Federal Circuit held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); but see Waters v. Shinseki, 601 F.3d 1274 at 1278 (Fed. Cir. 2010) ("VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to"). Citing to its previous decisions in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated in Davidson that it has previously and explicitly rejected the view that competent medical evidence is always required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. See id. at 1316. 

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465 (1994). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

The standard of proof to be applied in decisions on compensation claims is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 
See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet.App. 518 (1996).


Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

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. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA 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. 38 C.F.R. § 3.159(b)(1). 

In a claim for an increased evaluation, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). 

The record reflects the RO provided the Veteran with the notice required under the VCAA and Vazquez-Flores by letter mailed May 13, 2008. The duty to notify has been satisfied.

VA also has a duty to assist in the development of the claim. This duty includes assisting in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A VA examination and opinion shall be provided when there is "an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service," but there is "insufficient competent medical evidence on file for the Secretary to make a decision on the claim." See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 

The RO has obtained the Veteran's STRs and post-service VA treatment records. The Veteran has not identified any additional records that he wished the RO to obtain. Further, VA examinations were conducted in July 2007, June 2008, August 2008, October 2011, June 2012, and July 2012. The Board finds these examination reports are adequate because the appropriate evaluations were conducted following review of both the record and the Veteran's relevant symptomatology. 

The RO/AMC complied with the Board's September 2011 and October 2012 remand directives. Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). The RO/AMC obtained treatment records and a medical opinion, scheduled the appropriate VA examination, and readjudicated the claim as necessary.

All necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of this claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

At the hearing, the Veteran through his representative agreed that the only issue under consideration was entitlement to an increased rating for hypertension. The VLJ noted that the representative had explained the manner in which disability ratings are determined and how claims such as the Veteran's were substantiated and evaluated. The VLJ and the Veteran engaged in an appropriate colloquy as to substantiation of the claim, and the VLJ advised the Veteran of the possibility that he may have to report for a new VA medical examination. Any errors under the Court's ruling in Bryant v. Shinseki, 23 Vet. App. 488 (2010) were not prejudicial to the Veteran. Through the hearing, the VA medical examinations, and the statements of the case, the Veteran and his representative were both continually apprised of what evidence would substantiate the claim and advised of how VA rated the claim.  

Increased Disability Evaluation Claim

The Board has carefully reviewed the evidence, and finds that the severity of the Veteran's service-connected disorder more nearly approximates findings consistent with a 60 percent evaluation beginning June 2007. The claim will therefore be granted to that extent. 

Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2012). The percentage ratings contained in the 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 the residual conditions in civil occupations. 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.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet.App. 282 (1991).

Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet.App. 55, 58 (1994). The relevant time from under consideration is from one year prior to the date of receipt of the claim, that is, from December 2006 onward. 38 C.F.R. § 3.400(o)(2). Consistent with the facts found, the rating may be higher or lower for periods of the time under review on appeal, that is, the rating may be "staged." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran's rating for the period under consideration is staged by the RO. 

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 (2012). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). 

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155 ). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230   (1993).

The Veteran's hyperthyroidism is currently rated by analogy as 60 percent disabling under Diagnostic Code (DC) 7999-7900. Pursuant to 38 C.F.R. § 4.119, DC 7900, a 10 percent evaluation is warranted where the evidence shows tachycardia, which may be intermittent, and tremor; or, continuous medication required for control. A 30 percent evaluation is warranted where the evidence shows tachycardia, tremor, and increased pulse pressure or blood pressure. A 60 percent evaluation is warranted where the evidence shows emotional instability, tachycardia, fatigability, and increased pulse pressure or blood pressure. A 100 percent rating is warranted when the evidence shows thyroid enlargement, tachycardia, eye involvement, muscular weakness, loss of weight, and sympathetic nervous system, cardiovascular, or gastrointestinal symptoms. 38 C.F.R. § 4.119, DC 7900. This rating criteria is not successive, that is, the higher ratings are not cumulative. Rather, the symptoms vary such that it is possible for a claimant to establish all the symptoms for a higher rating without meeting the criteria for a lower rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009).

On June 1, 2007, the Veteran complained of fatigue and of gastrointestinal upset over the previous three days. His physician assessed hypothyroidism that was presenting as hyperthyroidism, and his symptoms included fatigue, elevated heart rate, loose stools, insomnia, gastrointestinal upset, and sweating. 

On June 11, 2007, the Veteran returned for a follow up examination. He denied shortness of breath and abdominal pain. His breathing appeared unlabored, and his heart was noted to have regular rate and rhythm, with no murmurs, rubs, or gallops. His abdomen was soft, non-tender, and non-distended. His prescription for Synthroid was reinstated.

However, in July 2007 the Veteran complained of feeling fatigued every day, and of difficulty sleeping. He felt restless. He denied chills or fever, but said he occasionally had night sweats. He denied chest pain and other heart irregularities or palpitations. He sometimes had shortness of breath upon exertion. His weight was noted to be stable. He was diagnosed with hyperthyroidism or Graves' disease treated with radioactive iodine, now hypothyroidism currently on Synthroid.

In November 2007, the Veteran reported an eight pound weight loss.  

At the June 2008 VA thyroid examination, it was noted that the Veteran was diagnosed with Graves' disease in 1981, and had been taking thyroid supplements since that time. He was sensitive to light, but did not complain of blurred vision or diplopia. He had headaches once a day. He did not complain of nausea or vomiting and denied a rapid heartbeat. He said he felt weak, tired, and fatigued almost every day, but that it did not prevent him from working. He did not have thyromegaly. He was diagnosed with Graves' disease, status post radioactive iodine treatment, now with hypothyroidism, which was controlled with Synthroid.

In June 2008, the Veteran was noted to have gained six or seven pounds, and his blood pressure was elevated. He reported increased shortness of breath upon exertion, and was prescribed medication to control his blood pressure for the first time. 

In July 2009 and April 2010, the Veteran's hypertension was controlled through medication and diet. His thyroid was within normal limits. His lungs were clear to auscultation, his heart was beating at a regular rhythm and rate with no murmurs, rubs, or gallops. His abdomen was soft with positive bowel sounds.

In December 2010 and June 2011, the Veteran's heart was beating at a regular rhythm and rate, and he did not have any murmurs, rubs, or gallops. His abdomen was soft with positive bowel sounds. Examination of his neck revealed his thyroid was not enlarged.

At the October 2011 VA thyroid examination, the Veteran was diagnosed with hyperthyroidism, with a history of radioactive iodine-131 treatment in 1985 for Graves' disease. He was required to take continuous medication (Synthroid) to control his thyroid condition. His hyperthyroid symptoms included intermittent tachycardia of more than 100 beats per minute; palpitations; tremor; fatigability; eye involvement (exophthalmos); increased sweating; flushing; and, heat intolerance. He did not have thyroid enlargement, muscular weakness, or weight loss. His pulse was regular. The VA examiner found the Veteran had hypothyroid endocrine dysfunction, with symptoms attributable to hypothyroidism, including fatigability, constipation, sleepiness, and cold intolerance. 

At the June 2012, VA eye examination, the Veteran was diagnosed with Graves' disease and suspected glaucoma. He was noted to have moderate exophthalmos that had been stable for years. He had dry eyes in the morning and used over-the-counter Visine. His vision was 20/40 or better in both eyes, near and distance. Internally, his eyes were normal. The examiner opined that the exophthalmos would not affect his ability to work.

At a July 2, 2012, VA examination for headaches, the Veteran's heart was without murmurs, gallops, or runs, and he did not have an enlarged thyroid.

In a February 2, 2013, supplemental opinion to the October 2011 VA thyroid examination, the VA examiner said that a common residual of Graves' disease status post radioactive iodine therapy is hypothyroidism requiring a thyroid supplement, which the Veteran was taking. He opined that hypothyroidism was related to the Veteran's Graves' disease.

The Veteran asserts that his symptoms include tachycardia, tremor, and increased pulse or blood pressure since the date of his initial service connection for hyperthyroidism. At his hearing, he additionally testified to daily weakness and fatigability. He complained of nervousness, forgetfulness, and emotional instability. He is frequently constipated. The Veteran is competent to report symptoms that are not medical in nature. Barr v. Nicholson, 21 Vet. App. 303 (2007). He has not been shown to have the medical training or expertise to competently identify increased pulse or blood pressure. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). 

In the May 2013 rating decision, the AMC increased the Veteran's disability rating from 10 percent disabling to 60 percent disabling, effective October 24, 2011, based on evidence of his fatigability, cardiovascular symptoms, eye involvement, need for continuous medication, intermittent tachycardia, and tremor. Of the symptoms the AMC listed in support of its decision, the evidence shows the Veteran has had fatigability, eye involvement, and cardiovascular symptoms, including elevated heart rate and hypertension, since June 2007. He has also continuously been on medication since that time. 

Prior to October 24, 2011, in addition to the symptoms listed directly above, he showed weakness, nervousness, emotional instability, some weight gain and some weight loss, episodes of feeling tired, and gastrointestinal symptoms. The gastrointestinal symptoms cleared in less than two weeks, and the evidence shows they did not return; thus, the Board is not placing any probative weight on the brief presence of this symptom. 

However, the Veteran's description of "feeling tired" is substantially the same as fatigability, which has been a prominent symptom. The Veteran's weight loss of eight pounds in November 2007  appears to have been temporary as it was counteracted by a six or seven pound weight gain in June 2008. 

Although the Veteran's disorder did not continually show the severity which warrants a 60 percent rating, it appears to both increase and decrease. Prior to October 24, 2011, his disability  manifested by fatigability, eye involvement, cardiovascular symptoms, the need for continuous medication, weakness, nervousness, and various descriptions of emotional instability. In resolving all reasonable doubt in his favor, the Board finds his disability picture more nearly approximates the criteria required for a 60 percent rating. 38 C.F.R. § 4.7. See also Tatum v. Shinseki, 23 Vet. App. 152 (2009). 

Thus, a rating of 60 percent is warranted from June 1, 2007, the earliest evidence under consideration that discusses the Veteran's symptoms. The next inquiry is whether he is entitled to a 100 percent disability rating at any time under consideration. The Board does not find the evidence supports a 100 percent rating. The Veteran has not had thyroid enlargement, and his tachycardia has been identified as intermittent. No evidence of a clinically significant weight loss has been presented. 

The Veteran has also shown symptoms attributable to hypothyroidism, which the October 2011 VA examiner explained was a common residual of radioactive iodine treatment, and which he attributed to the Veteran's service-connected hyperthyroidism. Thus, the Board considered whether a higher rating could be warranted under the rating code pertaining to hypothyroidism, DC 7903.

Under DC 7903, a 10 percent rating is warranted where the evidence shows fatigability; or, continuous medication required for control. A 30 percent rating is warranted when the evidence shows fatigability, constipation, and mental sluggishness. A 60 percent rating is warranted when the evidence shows muscular weakness, mental disturbance, and weight gain. A 100 percent rating is warranted when the evidence shows cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia, and sleepiness. 38 C.F.R. § 4.119, DC 7903.

The Board does not find that a 100 percent rating is warranted under DC 7903. Although the Veteran has shown cold intolerance, muscular weakness, cardiovascular involvement, and sleepiness, he has not shown bradycardia or mental disturbance. The Veteran testified that he "might" have a memory problem but he did not aver that it was attributable to thyroid. Further, his memory deficiency has not been shown to rise to the level of dementia or slowing of thought. He continues to work. The evidence does not support a finding that the Veteran's disability picture approximates a rating of 100 percent. Rather, the level of his thyroid disability is compatible with a 60 percent rating.

The Veteran is not entitled to a separate disability rating under DC 7903, as doing so would amount to pyramiding, that is, duplicate compensation for identical symptoms, which is not permitted. 38 C.F.R. § 4.14. The critical element in determining whether to assign a separate disability rating is whether any of the symptomatology is duplicative of or overlapping with symptomatology that is already rated. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Here, the majority of the Veteran's symptoms overlap, and out of his hypothyroidism symptoms, only constipation, sleepiness, and intolerance to cold are not found in the rating criteria applicable to hyperthyroidism. It would not be possible to assign a rating to these three symptoms without duplicating compensation, because the Schedule contemplates that these symptoms are accompanied by additional symptoms, which have already been rated. 

Additionally, he has been awarded a 60 percent disability rating after resolving all reasonable doubt in his favor. In doing so, the Board considered all of his symptoms, including those attributable to hypothyroidism. The Board finds his overall impairment is compatible with such a rating.

The Board has also considered whether the issue should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). See Barringer v. Peake, 22 Vet. App. 242 (2008). However, the record does not reflect that the manifestations of the disability are in excess of those contemplated by the assigned ratings. The Court has held that, "if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required." Thun v. Peake, 22 Vet. App. 111, 115 (2008).  The evidence does not reflect that the Veteran required frequent hospitalization or experienced marked interference with his work, or that he has any symptoms that are left uncompensated. Accordingly, referral for extra-schedular consideration is not in order.

ORDER

A 60 percent disability rating for hyperthyroidism (Graves' disease) from June 1, 2007, to October 23, 2011 is granted.

A disability rating in excess of 60 percent for the period from October 24, 2011, onward for hyperthyroidism (Graves' disease) is denied



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs