Citation Nr: 1333333 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-32 343A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for hypothyroidism. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from February 1999 to September 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of November 2008 that, inter alia, granted service connection for hypothyroidism, and assigned a 10 percent rating; the Veteran appealed the rating. In a February 2011, the RO granted a higher rating of 30 percent rating for hypothyroidism, effective June 2, 2009. The appeal was remanded by the Board in September 2011. In a decision/remand dated in January 2013, the Board granted a 30 percent rating for hypothyroidism for the period from September 24, 2008, and remanded the issue of entitlement to an evaluation in excess of 30 percent for hypothyroidism for additional development. FINDING OF FACT Hypothyroidism is not shown to result in muscular weakness, cardiovascular involvement, bradycardia, or mental disturbance such as dementia, depression, and slowing thought. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for hypothyroidism, status post Grave's disease, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.119, Diagnostic Code 7903 (2013). (CONTINUED NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist a claimant in substantiating a claim for VA benefits. U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); see 38 C.F.R. § 3.159 (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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. Id.; see Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran's appeal arises from his disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). No additional VCAA notice is required. VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. This duty includes assistance in the procurement of service treatment records and other pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records have been obtained. Identified VA and non-VA records are associated with the claims file as well. Neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. VA examinations were provided in July 2008, April 2010, and January 2012. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the above VA examination reports to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate the Veteran's disability under the applicable rating criteria. The Board notes that the Veteran's last examination is over a year-and-a-half old. The mere passage of time since that examination is not reason enough, alone, to require reexamination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); VAOPGCPREC 11-95 (April 7, 1995). Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's hypothyroidism since his January 2012 examination. The Veteran has not argued the contrary. All necessary notification and development has been accomplished, and therefore appellate review may proceed. No further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the 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). II. Higher Rating for Hypothyroidism Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. Although the disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned. See 38 C.F.R. § 4.2 (2007); Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the disability has undergone varying and distinct levels of severity throughout this time period, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Otherwise, a uniform rating will be assigned. When a question arises as to which of two ratings applies under a particular Diagnostic Code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). The Veteran is in receipt of a 30 percent disability rating for hypothyroidism. Under Diagnostic Code 7903, a 10 percent rating is warranted for fatigability, or; continuous medication required for control. A 30 percent rating is warranted for fatigability, constipation, and mental sluggishness. A 60 percent rating is warranted for muscular weakness, mental disturbance, and weight gain. A 100 percent rating is warranted for cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. August 2007 service treatment records show that the Veteran was diagnosed with hypothyroidism due to his low energy level. A March 2008 service treatment record reflects that the Veteran complained of fatigue, anxiety and mind racing as well as memory impairment, concentration problems, irritability, and symptoms of depression. It was noted that the Veteran had a history of hypothyroidism and was prescribed Levothyroxine .15 milligrams, daily. A July 2008 VA examination report reflects that the Veteran reported an overall fair state of health. He weighed 160 pounds. He was currently taking Levothyroxine 0.15mg, every day. The Veteran stated he was first diagnosed in 2007 and that he feels better on medication, has more energy, less fatigue, and has no unwanted side effects from it. He has no other significant functional limitations from this condition at present. The diagnosis was hypothyroidism, thyroid nodule, solitary. In a June 2009 letter from the Department of the Army medical department, D. J. Black, M.D., F.A.A.F.P., stated that the Veteran has Hashimoto's Thyroiditis which is a chronic lifelong degenerative condition of the thyroid which causes the Veteran to have fatigue, tiredness, irritability, and mental sluggishness. In an August 2009 statement, the Veteran's wife reported that the Veteran used to be a very vibrant husband, father, and soldier who ran, biked, garden and spent hours doing activities with his children. She stated he is now always tired, in pain, has severe mood swings, and can no longer spend the same active time with his children like he used to. His brother also commented that he was much less active and outgoing than he previously had been. An April 2010 VA examination report reflects that the Veteran stated he gets monthly blood tests in addition to treatment with the highest doses of Levothyroxine they can put him on. His energy comes and goes. Weight changes according to medication doses. His weight on examination was 159.3 pounds. He denied significant skin or hair problems. His skin has always been dry. His short term memory is horrible. There is cold intolerance. He denied constipation. Hypothyroidism has caused him to suffer with decreased energy levels and memory loss in the work place and in daily activities. It was noted that the Veteran was on Levothyroxine .2 mcg, daily. Medical records from Fort Benning show the Veteran's regular follow-up for a number of conditions, from January 2009 to December 2012; on average, he was seen about once every 2 months. Muscular weakness, mental disturbance, cardiovascular involvement, or cold tolerance were not demonstrated or endorsed. He is 5'11" tall. His weight fluctuated between 145 (May 2009) and 163 pounds (May 2012) with an approximate average of 158 pounds. During a preoperative evaluation in July 2009, the Veteran's heart rate was 52 and 58. His heart rate had been 63 the previous day. It is also noteworthy that the Veteran explicitly denied having a heart or cardiovascular problems. He denied having any problems with rigorous exercise. During the follow-up after surgery in August 2009, heart range ranged from 59 to 97, and of the 7 heart rates obtained, only the one of 59 was below 60. Outpatient treatment records throughout the period do not show a heart rate below 60; in general, the heart rate was in the 60's or 70's. On one occasion, in April 2009, the heart rate was 126; at that time, his thyroid was also elevated. In general, the Veteran did not have any complaints. In September 2009, he complained of feeling tired. In February 2010, he stopped taking his thyroid medication, and sought treatment after he began feeling bad. Laboratory studies revealed that he was severely hypothyroid, and he was started back on medication. In March 2010, his thyroid level was noted to be almost back to normal. In August 2010 he reported that he was generally feeling good. In March 2011, he complained of low energy and always feeling fatigued. Subsequent records do not show any pertinent complaints, however. On occasion the Veteran was found to be hypothyroid on blood tests, although not to the degree as shown in February 2010, and his thyroid medication was occasionally adjusted. A January 2012 VA examination report reflects that the Veteran was diagnosed with hypothyroidism and was followed at Fort Benning with endocrinology every 6 weeks. He currently takes Synthroid 125 mcg daily, noting that he changed from Levothyroxine .3 because it was not working. He also takes Vitamin D once a day. Symptoms attributed to his hypothyroid condition are fatigability and sleepiness. The examiner noted that prior ultrasounds were consistent with Hashimoto's thyroiditis and that the Veteran was found to have a 5 millimeter right thyroid hyperechoic solid nodule. It was noted that the Veteran's thyroid condition impacted his work as he reported missing at least 24 days due to doctor's appointments and fatigue related to hypothyroidism. A November 2012 note indicates that the Veteran was switching endocrinologists, as his dosage had been increased, and his wife felt it was making him foggy and mean. The doctor did not believe that those symptoms were not due to the Synthroid. Apparently, the Veteran had stopped taking either the extra dosage, or the Synthroid altogether. The evidence does not show symptoms more closely approximating the criteria for a higher rating of 60 percent. He has not exhibited muscular weakness or mental disturbance such as dementia, slowing of thought, or depression. It is true that there is some evidence of weight gain. He weighed as little as 145 pounds and as much as 163 pounds in May 2012, which is an 18 pound differential. His weight has essentially hovered at around 158 pounds, however. No physician has expressed any concern over this weight gain nor related it to his hypothyroidism. Nevertheless, even if the Veteran were found to have weigh gain due to his hypothyroidism, the absence of muscular weakness or mental disturbance shows that less severe condition. The totality of the evidence does not support a rating greater than 30 percent. As discussed above, heart rates of less than 60 were shown on isolated occasions. Such rates were shown in July 2009 just prior to the Veteran's surgery and once thereafter. Such represents bradycardia as it is defined by Diagnostic Code 7903, which would warrant a 100 percent rating. However, notwithstanding the fact that many of the other symptoms needed for a 100 percent rating (muscular weakness, cardiovascular involvement, and mental disturbance were not shown, the Board notes that the Veteran's heart rate was above 60 on the day before his surgery, and that it has consistently remained above 60 since that time. The low heart rates were anomalies and not representative of heart dysfunction. Indeed, bradycardia, or other cardiac abnormality, have not been diagnosed. His heart was actually noted to be normal during the July 2009 pre-surgery evaluation. Put another way, there are no periods of time during which a higher evaluation was warranted, and thus a stated rating is not appropriate. Further, although the Veteran claims a number of absences from work due to his hypothyroidism, the rating schedule provides for higher ratings for hypothyroidism, and all symptoms of the hypothyroid condition have been considered in the 30 percent rating currently in effect. Referral of the case for an extraschedular rating is not appropriate. See 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). An evaluation in excess of 30 percent is not warranted. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. However, the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board acknowledges that the Veteran is competent to report symptoms of his thyroid disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, he is credible in his reports of symptoms and their effect on his activities. His wife and brother possess a similar level of competence and credibility with respect to the symptoms that they are capable of observing. They are not however competent to identify a specific level of disability of his disability according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's service-connected thyroid disability has been provided by VA medical professionals who have examined him. The medical findings directly address the criteria under which this disability is evaluated. The Board finds these records to be the only competent and probative evidence of record, and therefore is accorded greater weight than the Veteran's subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Finally, the Board observes that a claim for a total disability rating based on individual unemployability (TDIU) is generally part of an increased rating claim when that claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Veteran has not asserted, and the record does not otherwise show, that he is unemployable due to service-connected hypothyroidism. On the contrary, the evidence of record shows that the Veteran has been gainfully employed throughout the period on appeal. Therefore, the Board finds that entitlement to TDIU is not part of the increased rating claims currently on appeal. ORDER An evaluation in excess of 30 percent for hypothyroidism is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs