Citation Nr: 1329920	
Decision Date: 09/18/13    Archive Date: 09/25/13

DOCKET NO.  10-05 586	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to an initial rating higher than 10 percent for hyperparathyroidism due to parathyroid adenoma, status post excision with residual decalcification of bone and surgical scar.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

A. Larson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1957 to January 1959.

This appeal to the Board of Veteran's Appeals (Board) is from an October 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted the Veteran's claim of entitlement to service connection for hyperparathyroidism due to parathyroid adenoma, status post excision with residual decalcification of bone and surgical scar, and assigned an initial 10 percent rating for this disability retroactively effective from July 25, 2006, the date of receipt of this claim.  In response he appealed for a higher initial rating for this disability.  See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (When a Veteran appeals an initial rating, VA must consider whether to "stage" the rating - meaning assign different ratings at different times since the effective date of the award to compensate him for occasions when the disability has been more severe than at others).

In February 2012, in support of his claim, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board.  This type of hearing is often and more commonly referred to as a Travel Board hearing. 

The Board since has twice remanded the claim for further development, initially in May 2012 and more recently in January 2013.  The additional development included obtaining and associating with the claims file the Veteran's most recent VA hospital and outpatient treatment records and providing him another VA Compensation and Pension examination for a medical opinion regarding the severity of this disability.  The second remand was for an addendum opinion on this determinative issue.


In April 2013, so even since that more recent remand, the Board also obtained a medical expert opinion from the Veterans Health Administration (VHA).  The designee, who is Board-certified in Internal Medicine and the Clinical Director of Compensation and Pension Service at the VA Medical Center (VAMC) in Portland, Oregon, provided this additional opinion in May 2013.  The Board then sent the Veteran a copy of the opinion in June 2013 and gave him and his representative opportunity to submit additional evidence and argument in response to it.  See 38 C.F.R. § 20.903 (2013).  The Veteran responded in July 2013 that he had no further argument and/or evidence to submit.  He therefore asked the Board to proceed with the adjudication of his appeal.  His representative since has submitted a response brief in August 2013.

Please also note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The Veteran's gastrointestinal symptoms and weakness since 2006 are not attributable to his hyperparathyroidism.

2.  He also does not suffer from decalcification of the bones or kidney stones.


CONCLUSION OF LAW

The criteria are not met for an initial rating higher than 10 percent for the hyperparathyroidism.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.119, Diagnostic Code 7904 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Procedural Duties

The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing information and evidence necessary to substantiate a claim.

With respect to VA's notice obligations, because this claim concerns an appeal of an initial rating, the VCAA notice obligations were fully satisfied once service connection was granted.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006) (holding that once a decision awarding service connection and assigning a disability rating and an effective date has been made, the section 5103(a) notice has served its purpose, and its application is no longer required because the claim has been substantiated).

In this circumstance, according to the holding in Goodwin v. Peake, 22 Vet. App. 128 (2008) and other precedent cases, instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability rating and effective date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved, and this occurred in this particular instance.  See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  The RO provided the Veteran this required SOC in December 2009, citing the applicable statutes and regulations governing the assignment of disability ratings and containing discussion of the reasons or bases for not assigning a higher initial rating.  Furthermore, the RO provided the Veteran a Supplemental SOC (SSOC) in March 2013 following the most recent remand and readjudication of the claim.  The Veteran then indicated in a March 2013 letter that he wanted his claim immediately adjudicated by the Board, waiving his right to any further delay.  He also, as already alluded to, gave similar indication in July 2013 in response to the VHA medical expert opinion - reaffirming that he had no further argument and/or evidence to submit so to please proceed with the adjudication of his appeal.

The record does not show, nor does he or his representative otherwise contend, that any notification deficiencies, even if, for the sake of argument, any have occurred, have resulted in prejudice.  See Goodwin v. Peake, 22 Vet. App. 128 (holding that the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements of disability rating and effective date).

To satisfy its duty to assist, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim.  38 U.S.C.A. § 5103A.  This includes assisting the claimant in obtaining necessary medical examinations and opinions.  Id.  In the disability-rating context, so once service connection for the disability has been established, this may include having the Veteran reexamined to reassess the severity of his disability - especially if he alleges a worsening of his disability since it was last rated or examined.  See Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991) (where the record does not adequately reveal the current state of the disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination).  See also Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (holding that, when a Veteran claims that a disability is worse than when originally rated or last examined by VA, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination); Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (VA must consider the history of the disability).  See, too, Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence adequately addressing the level of impairment of the disability since the previous examination).  See, as well, VAOPGCPREC 11-95 (April 7, 1995).

There is no requirement, however, to have the Veteran reexamined merely because of the passage of time since an otherwise adequate examination, so not just as a simple matter of course.  Cf. Palczewski v. Nicholson, 21 Vet. App. 174 (2007).

In this case, the Board concludes that the duty to assist has been met.  The Veteran was provided VA compensation examinations assessing and reassessing the severity of his disability.  A September 2008 examination was when he was still trying to establish his underlying entitlement to service connection for his hyperparathyroidism, so was primarily concerned with the etiology rather than severity of this condition.  There nonetheless were findings regarding the severity of this disability even in the report of that evaluation.  A further VA opinion was solicited in May 2009, with an addendum added in December 2009.  Since establishing his entitlement to service connection for this disability the Veteran has undergone an additional VA compensation examination in July 2012, with a February 2013 addendum, which was focused instead on reassessing the severity of his hyperparathyroidism, therefore was specifically directed at obtaining the information needed to make this necessary determination.  Finally, and most recently, a VHA medical expert opinion was obtained in May 2013 to address the until that time still unresolved issues regarding symptoms the Veteran had exhibited over the years since entitlement and their purported relationship with his service-connected disability.  His entire claims file was reviewed by each of the examiners before they reached their conclusions, and most importantly they provided explanatory rationale supporting their findings.  Neives-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (A medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two.").  This Court in Neives-Rodriguez indicated this is where most of the probative value of the opinion is derived, not just from review of the claims file, although that, too, has significance if evidence in the file might affect the underlying basis of the opinion such as by revealing additional or relevant facts.).

The reports of these VA compensation examinations, especially when considered along with the other relevant evidence in the file, provide the information needed to properly rate the hyperparathyroidism according to the applicable criteria found in 38 C.F.R. § 4.119, Diagnostic Code (DC) 7904.  So additional examination of this disability is not needed.  See 38 C.F.R. § 3.327(a).  And since there is no indication of any relevant evidence still needing to be obtained concerning this claim, the Board is proceeding with its consideration of this claim.

II.  Merits of the Claim

The Veteran's hyperparathyroidism has been rated initially as 10-percent disabling.  He believes he is entitled to a higher initial rating for this disability, so has appealed this rating.

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), which assigns ratings based on average impairment of earning capacity resulting from the service-connected disability.  38 U.S.C.A. § 1155. (West 2002 & Supp. 2012).  When there is a question as to which of two ratings shall be applied, the higher rating 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.  All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 4.3.  

The Veteran's hyperparathyroidism is rated under the General Rating Formula for the Endocrine System - but, specifically, under 38 C.F.R. § 4.119, DC 7904.

Under the General Rating Formula, a 10 percent rating is warranted for hyperthyroidism where there is continuous medication required for control.  A higher 60 percent rating is warranted when there are gastrointestinal symptoms and weakness.  The maximum 100 percent rating is warranted where there is generalized decalcification of bones, kidney stones, gastrointestinal symptoms (nausea, vomiting, anorexia, constipation, weight loss, or peptic ulcer), and weakness.

The Veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, where, as here, the question for consideration is entitlement to a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection is required.  And, to this end, in determining the present level of disability, this may require assigning different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others.  This "staging" of the rating will compensate the Veteran for this variance.  Fenderson, 12 Vet. App. at 125-26.  See also Hart v. Mansfield, 21 Vet. App. 505 (2007) (since extending this practice even to claims that do not involve initial ratings). 

In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by him or by someone else on his behalf, certainly not in exhaustive detail.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The analysis below therefore focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning his claim.  He must not assume the Board has overlooked pieces of evidence that are not explicitly discussed.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).

As cause or justification for assigning a higher rating, the Veteran has asserted that he experiences weakness, fatigue, pain, and stiffness in his joints and ligaments, as well as gastrointestinal issues.  So he maintains that his condition should be rated as at least 60-percent disabling.  


There are numerous VA treatment records dated from July 2006 through 2012 that contain findings of and treatment for gastroesophageal reflux disease (GERD), most recently in March 2012.  The Veteran also described intermittent constipation in October 2010.  A May 2011 note indicates he was requesting his original pain medication instead of Vicodin, as he was experiencing more gastrointestinal symptoms on Vicodin.  He also described some constipation on review of systems during VA treatment in October 2011, but descried his constipation as better in March 2012.  Further, in the December 2012 Informal Hearing Presentation (IHP), his representative argued that the Veteran stated that he continued to have weakness, fatigue, pain, and stiffness of his joints and ligaments, and gastrointestinal issues.  

The Veteran was provided a VA examination in September 2008 to evaluate his hyperparathyroidism, albeit primarily to first determine its etiology, especially in terms of whether it is related or attributable to his military service, i.e., a service-connected disability.  So the primary focus of that examination was on causation rather than severity.  In any event, he described the course of his hyperparathyroidism since onset as progressively worse and stated that his then current treatment included taking calcium.  He gave a history of parathyroidectomy in 2006.  In describing his symptoms, he noted muscle weakness, decreased vision, thinning hair, GERD, fatigability, arthralgia, and bone pain.  On the objective physical examination, there were no gastrointestinal abnormalities observed, and his muscle strength was 5/5 in each of his extremities, so entirely normal.  The examiner commented that there were no residuals of the neoplasm and its treatment.  The diagnosis following examination was hyperparathyroidism or parathyroid adenoma, status post surgical excision.  The status of the disease was described as in remission.  The examiner noted that the hyperparathyroidism resulted in generalized decalcification of bone, but no kidney stones.  


In May 2009, a VA physician reviewed the Veteran's VA medical records and the September 2009 VA examination report and opined that the Veteran's symptoms of multi-joint arthritis and fatigue were not associated with his service-connected hyperthyroidism.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (permitting VA to resultantly not consider these symptoms when rating this disability since they have been disassociated from it).  In providing rationale for this opinion, the physician stated that hyperparathyroidism can cause low bone density, but does not cause arthritis in the joints.  He commented that a VA treatment note indicated the Veteran's joint pains were likely caused by his rheumatoid arthritis.  Regarding the Veteran's fatigue, the VA physician noted that a February 2008 VA treatment note mentioned that the Veteran felt "great" after recuperating from his parathyroid surgery.  He added that the Veteran's calcium and parathyroid hormone levels were normal in March 2009.  Therefore, this commenting physician concluded the Veteran's fatigue must be related to something other than his hyperparathyroidism. 

In a December 2009 addendum, the physician who had provided that May 2009 opinion stated additionally that the Veteran had had a hyperparathyroidectomy in June 2006, was taking calcium supplements, and, according to recent notes, was "feeling great."  The physician noted that the Veteran's calcium in September 2009 was 9.5, which was right in the middle of the normal range.  The physician reiterated that, while hyperparathyroidism can cause osteopenia, it did not cause arthritis, so none of the Veteran's present joint or spine problems were related to the parathyroid.

The May 2012 remand of this claim resulted in the Veteran being sent back for another VA compensation examination because, while the previous opinions had addressed his complaints of joint pain, there was no such medical comment concerning whether his GERD was associated with his service-connected disability.  The examiner therefore was instructed to consider the Veteran's complaints and determine whether he had gastrointestinal symptoms associated with his 
service-connected disability, including GERD and/or nausea, vomiting anorexia, constipation, weight loss, or peptic ulcer.  The examiner was further instructed to determine whether the Veteran had weakness, generalized decalcification of bones, or kidney stones associated with his service-connected hyperparathyroidism.  

The Veteran had this additional VA compensation examination in July 2012 to reevaluate his service-connected disability.  The examiner observed the Veteran's hyperparathyroidism had been followed medically until an adenoma was discovered and removed in 2006.  The examiner stated that, since that time, there had been no recurrence of disease and laboratories had been stable.  The examiner indicated that continuous medication was not required for control of a thyroid or parathyroid condition.  The examiner stated that the Veteran had no residual endocrine dysfunction following his treatment for his parathyroid condition.  The examiner also indicated the Veteran did not currently have any findings, signs, or symptoms attributable to a hyperparathyroid condition.  [The examination worksheet indicates that, if the examiner found the Veteran to have any findings, signs, or symptoms attributable to a hyperparathyroid condition, the examiner was to check all that applied, including weakness, kidney stones, generalized decalcification of bones, nausea, vomiting, constipation, anorexia, peptic ulcer, weight loss, or other.]

Physical examination of the eyes and neck was normal.  Deep tendon reflexes in the upper and lower extremities were hypoactive.  The examiner was asked whether the Veteran had any other pertinent physical findings, complications, conditions, signs, and/or symptoms related to his diagnosed condition; however, he did not respond to this inquiry.  The examiner did comment that the claims file had been reviewed and that there was no residual decalcification of bone by X-ray review.  He added that the Veteran's surgical scar was not painful or tender, nor was it elevated or depressed and there was no underlying adherence.  He concluded by stating that there were no associated disability symptoms.

Following the Board's additional January 2013 remand for supplemental comment, the Veteran's claims file was sent back to the examiner who had performed the July 2012 examination for comment on the Veteran's symptoms from 2006 to 2012, specifically instances of weakness, fatigue, gastrointestinal symptoms, and GERD.  

Further comment was needed to determine if the symptoms were attributable to the Veteran's hyperparathyroidism and, thus, whether a staged rating was appropriate.  The examiner's February 2013 addendum contained one sentence, which stated "[p]atient is asymptomatic, no symptoms of weakness, fatigue, or GI symptoms.  GERD is not caused by hyperparathyroidism."  Because this statement did not provide clarification on the cause of the Veteran's past symptoms, in addition to the Veteran having submitted medical literature in March 2013 suggesting a correlation between GERD and hyperparathyroidism, the claims file was then sent in April 2013 for a VHA medical expert opinion in endocrinology.

The May 2013 VHA medical expert opinion contains a summary of the Veteran's records since 2002.  This included a list of his recorded calcium and parathyroid hormone levels, as well as a summary of his radiology reports, from this time period.  The examiner concluded that the Veteran's symptoms of weakness, gastrointestinal issues, and GERD, all since 2006, were less likely than not attributable to his hyperparathyroidism.  The examiner's reasoning was that, in the years after the Veteran's surgical removal of his parathyroid adenoma in 2006, he had normal levels of parathyroid hormone and calcium, indicating that his hyperparathyroidism was cured by the procedure.  The examiner stated "[i]f the symptoms have persisted years after the parathyroid condition resolved, that would indicate they the (sic) symptoms of GI complaints (including GERD) and weakness were not due to hyperparathyroidism."  The examiner also stated that because the Veteran's strength testing was normal in recent examinations, his complaints of weakness were not substantiated.  

The examiner also commented on the issues of general decalcification of the Veteran's bones and the occurrence of kidney stones.  She concluded that it was less likely than not that the Veteran possessed either of these symptoms, as the results of the one bone mineral density scan in the file form 2002 were normal, the Veteran's X-rays did not contain any findings of osteopenia or osteoporosis, and there was no mention whatsoever of the Veteran ever suffering from kidney stones at any point since entitlement arose.  

In addition to the medical evidence, the Veteran provided testimony during his Travel Board hearing in February 2012.  He described effects he attributed to his hyperparathyroidism, including inability to undertake his once daily 3-mile walk, bowel problems, muscle weakness, poor balance, joint pain, and sleep issues.  He also reported taking medicine for joint pain and his bowel problems.

He also earlier had submitted a letter in February 2009 detailing his pain, sleep issues, and mobility problems.  His daughter also submitted a letter in February 2009 discussing his "constant and excruciating pain," his inability to enjoy his once active lifestyle, his lack of endurance and mobility, and his poor balance.  One of his friends also submitted a letter in February 2009 reiterating the Veteran now has trouble walking, requiring him to use a cane, so he could no longer participate in the activities he used to enjoy doing.  The friend also indicated the Veteran can hardly mow his lawn or shovel snow anymore, cannot sit for long periods of time, needs help getting up from a chair, and is in constant pain.

The Board finds that the overall weight of the evidence does not show the Veteran's hyperparathyroidism has warranted a higher 60 percent or greater rating at any time since the filing of his claim.  The preponderance of the evidence does not show that his gastrointestinal symptoms and weakness since 2006 have been due to his hyperparathyroid condition.  Nor does the evidence show decalcification of bones, kidney stones, gastrointestinal symptoms (including nausea, vomiting, anorexia, constipation, weight loss, or peptic ulcer), and weakness since 2006 on account of his hyperparathyroid condition.

His most recent VA examination in July 2012 with the later addendum, as well as the June 2013 VHA medical expert opinion, are the most probative pieces of evidence regarding both his current condition and associated symptoms since 2006.  The July 2012 examiner indicated the Veteran did not then currently have any findings, signs, or symptoms attributable to a hyperparathyroid condition.  Furthermore, he indicated that the Veteran was not on any medication to control his hyperparathyroidism, which is the criterion contemplated by his existing 10 percent rating.  He concluded the Veteran did not any bone decalcification, and in his addendum specifically determined the Veteran's GERD was not linked to the hyperparathyroidism, so not part and parcel of it.  The author of the May 2013 VHA medical expert opinion thought it less likely than not that any of the Veteran's exhibited symptoms since 2006 were attributable to his hyperparathyroidism, partly because the record showed that his 2006 surgery appeared to have cured his condition.  This opinion specifically contemplated his GERD, joint weakness and pain, and gastrointestinal issues.  It also clarified that he did not appear to suffer from any bone decalcification, according to the myriad of tests he had undergone since 2002.

The Veteran has never had kidney stones.  There is just one mention of "general decalcification of bones" in the report of his 2008 VA examination.  Examinations since then have clarified that he does not have this symptom, and the VHA medical expert opinion reaffirms as much, pointing out that, based on his test results, he did not have decalcification.

In addition to the medical evidence, the Board has considered the Veteran's personal assertions in support of his claim, including his hearing testimony.  He is competent, as a layman, to report on that as to which he has personal knowledge, such as experiencing certain symptoms versus others.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2).  He has consistently stated he suffers from joint pain and weakness and has gastrointestinal issues.  But his mere statements, by themselves, do not warrant a rating higher than 10 percent, especially considering that his rating is based not just on his personal assertions but also with correlation of these assertions in relation to the other relevant evidence in the file, so including the medical evidence that has not necessarily reflected the same extent of disability since his 2006 surgery.

In deciding this claim, the Board is charged with the duty to assess the competency, credibility, and resultant ultimate weight given to evidence.  Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  


Competency of evidence differs from its credibility and ultimate weight in relation to the other relevant evidence.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify).  A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses.  See Layno, 6 Vet. App. 465.  But as a layman, without the appropriate medical training and expertise, he is not further competent to provide a probative (persuasive) opinion on a medical matter, especially the relation of any medical symptoms to post-surgical hyperparathyroidism.  An examiner, including a VA compensation examiner, takes into consideration the Veteran's subjective complaints and the results of the objective medical evaluations in determining the overall severity of his condition.  The ultimate determination as to the appropriate disability rating therefore is multi-factorial, not just predicated on his lay statements and hearing testimony, but on all of the relevant medical and other evidence.  Gonzales, 218 F.3d at 1380-81 (indicating that in the third and final step of the analysis of evidence (determining competency and credibility being the first two), the Board must assess the probative value and weight of the evidence in light of the entire record).  See also Baldwin v. West, 13 Vet. App. 1, 8 (1999).

The Board therefore places more weight on the VA examiner's, as well as the VHA specialist's, opinions concerning the severity of the Veteran's hyperparathyroidism, than on his own and his witnesses' statements and testimony regarding the extent of his symptoms and difficulties.  The medical evidence does not show at least two of the symptoms contemplated by the 100 percent rating and does not show that the symptoms considered by the 60 percent rating and displayed by the Veteran are linked to his hyperparathyroidism.


For these reasons and bases, the Board finds that the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulation.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3 (2013).  Instead, the preponderance of the evidence is against this claim of entitlement to an initial rating higher than 10 percent for the hyperparathyroidism, so this initial-rating claim must be denied.

In reaching this decision, the Board also has considered whether an extraschedular rating is warranted.  Bagwell v. Brown, 9 Vet. App. 157 (1996).  The Board finds that there is no basis for further action on this question, however, as there is no indication of an exceptional disability picture such that the scheduler evaluation for the Veteran's service-connected hyperparathyroidism is inadequate.  38 C.F.R. § 3.321(b)(1).  See also Thun v. Peake, 22 Vet. App. 111, 115 (2008) (defining a three-prong test for determining whether this special consideration is warranted).  His post-surgery hyperparathyroid condition is fully contemplated by the rating criteria found in DC 7904.  Furthermore, there is no objective evidence of record suggesting his service-connected disability markedly interferes with his employment, that is, above and beyond what is contemplated by the schedular rating assigned for this disability, or as an additional example requires frequent hospitalization.  38 C.F.R. §§ 4.1, 4.15.  He is 79 years old and, according to his claims file, has been "retired" from his job as a real estate agent since at least 2002, so since he was 68 years old or thereabouts, and there is no indication his stopping working had anything to do with his hyperparathyroidism.  This also means there is no express or implied allegation of his inability to secure or follow a substantially gainful occupation on account of this service-connected disability to, in turn, warrant considering his derivative entitlement to a total disability rating based on individual unemployability (TDIU).  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  Likewise, most, if not all, of the evaluation and treatment he has received for this disability has been on an outpatient basis, not as an inpatient, much less frequent inpatient.



ORDER

The claim of entitlement to a higher initial rating for the hyperparathyroidism due to parathyroid adenoma, status post excision with residual decalcification of bone and surgical scar, is denied.



____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs