Citation Nr: 1341291 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 11-01 390 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an increased rating, in excess of 30 percent, for Hashimoto's disease (hypothyroidism). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from November 1979 to February 1992. This matter comes on appeal before the Board of Veterans' Appeals (Board) from June 2007, January 2008, and February 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Board finds that the Veteran submitted a timely July 2007 notice of disagreement to the June 2007 rating decision which granted an increased 30 percent rating for Hashimoto's disease, effective September 18, 2006. Accordingly, the Board finds that the current increased rating period is from September 18, 2006 to present. The Veteran testified at March 2013 Travel Board hearing. The hearing transcript has been associated with the claims file. The Board is granting a higher 60 percent rating for Hashimoto's disease based, in part, on manifestations of depression secondary to Hashimoto's disease. The Veteran is also, currently, in receipt of a separate 30 percent rating for depression secondary to Hashimoto's disease. Based on the Board's grant of an increased rating for Hashimoto's disease in this decision, the separate rating assigned under Diagnostic Code 9434 for depression would constitute impermissible pyramiding, and the Veteran and her representative have acknowledged such, stating during the March 2013 Board hearing that they were not asking for a separate rating for depression, or pyramiding, just seeking the higher rating for Hashimoto's disease. See 38 C.F.R. § 4.14 (2013). In accordance with the Board's decision, the separate rating for depression is to be discontinued at the time the 60 percent rating for Hashimoto's disease is effectuated and this matter is referred to the Agency of Original Jurisdiction for appropriate action. FINDING OF FACT For the entire rating period, Hashimoto's disease is manifested by fatigability, constipation, depression, cold intolerance, and weight gain. CONCLUSION OF LAW For the entire rating period, from September 18, 2006, the criteria for a 60 percent rating for Hashimoto's disease have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.3, 4.7, 4.119, Diagnostic Code 7903 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, 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 RO issued September 2006, March 2007, and July 2007 preadjudicatory notice letters to the Veteran which met the VCAA notice requirements. The Veteran was afforded VA examinations in November 2006 and January 2009 to address Hashimoto's disease. 38 C.F.R. § 3.159(c)(4) (2013). 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). November 2006 and January 2009 VA examinations were performed by medical professionals, were based on a thorough examination of the Veteran, and reported findings pertinent to the rating criteria. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that VA must provide an examination that is adequate for rating purposes). The Board finds that VA examination reports, when considered along with VA treatment records addressing current treatment for Hashimoto's disease, are sufficient for rating purposes. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes VA treatment records, VA examinations, and the Veteran's statements and testimony. The Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of her claim, and to respond to VA notices. The Veteran and representative have not identified any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Disability Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. As the Board will discuss in more detail below, the Board finds that symptoms related to the Veteran's Hashimoto's disease have not changed in severity over the course of the appeal to warrant a staged rating. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while 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, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Hashimoto's disease is rated under Diagnostic Code 7903 (hypothyroidism). Under Diagnostic Code 7903, a 10 percent rating is assigned for hypothyroidism with fatigability, or; continuous medication required for control. A 30 percent rating is assigned for hypothyroidism with fatigability, constipation, and mental sluggishness. A 60 percent rating is assigned for hypothyroidism with muscular weakness, mental disturbance, and weight gain. A 100 percent rating is assigned for hypothyroidism with cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. 38 C.F.R. § 4.119. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14 (2013). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Increased Rating Analysis The Veteran is currently in receipt of a 30 percent rating for Hashimoto's disease, rated under Diagnostic Code 7903. A higher 60 percent rating is assigned under Diagnostic Code for hypothyroidism with evidence of muscular weakness, mental disturbance, and weight gain. 38 C.F.R. § 4.119. The Veteran contends that she has depression secondary to Hashimoto's disease, and while she is currently in receipt of a separate rating for depression under Diagnostic Code 9434, she contends that depression should alternately be considered as mental disturbance, as a part of a higher 60 percent rating under Diagnostic Code 7903. The Veteran has also provided lay statements and testimony identifying symptoms of loss of energy, tiredness, and fatigability; constipation; depression; and weight gain due to Hashimoto's disease. After a review of all the evidence, lay and medical, the Board finds that, for the entire appeal period, Hashimoto's disease has been manifested by fatigability, constipation, depression, cold intolerance, and weight gain, more nearly approximating a 60 percent rating under Diagnostic Code 7903. The Board finds that Hashimoto's disease is appropriately rated under Diagnostic Code 7903. Hashimoto's disease is a type of autoimmune thyroiditis, see DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 534 (30th ed. 2003), and the Veteran's Hashimoto's disease has been manifested by symptoms of hypothyroidism, described under Diagnostic Code 7903. A 60 percent rating is assignable under Diagnostic Code 7903 with evidence of muscular weakness, mental disturbance, and weight gain. 38 C.F.R. § 4.119. The Veteran has identified significant weight gain during the appeal period in lay statements and testimony. The Board finds that her statements are credible and are supported by evidence from the medical record. During a November 2006 VA examination, the Veteran reported gaining over 100 pounds in the past 10 years, and she reported that her weight had been fairly stable until swings in her thyroid levels had begun. An August 2007 lay statement from W.M.B. also indicated that the Veteran had significant weight gain over the past decade. The Veteran provided a November 2009 statement identifying current weight gain of over 30 pounds in the past year. A February 2012 VA treatment report notes an 80 pound weight gain over the past four years. During a March 2013 Board hearing, the Veteran reported gaining 120 pounds from 2008 to 2009. VA treatment records note worsening obesity in June 2010, and an April 2011 VA examination identifies current obesity. Accordingly, the Board finds that the Veteran has current weight gain that may be associated with Hashimoto's disease. The Veteran contends in various lay statements and during a March 2013 Board hearing that service-connected depression, rated under Diagnostic Code 9434, should be alternately rated as part of her Hashimoto's disease under Diagnostic Code 7903. Diagnostic Code 7903 identifies mental disturbance as "dementia, slowing of thought, and depression." 38 C.F.R. § 4.119. The Board finds that the Veteran has mental disturbance, specifically depression, secondary to Hashimoto's disease. During a November 2006 VA examination, the Veteran reported that she was placed on sertraline for depression which developed after her thyroid levels began to swing. A January 2007 VA examination also noted current depression. A November 2007 VA psychiatric examination shows that the Veteran had major depressive disorder secondary to hypothyroidism. A September 2009 VA treatment report also identified a diagnosis of major depressive disorder likely due to hypothyroidism. Accordingly, the Board finds that for the entire rating period, Hashimoto's disease has been manifested by depression. The Board finds that the Veteran does not have muscle weakness secondary to Hashimoto's disease. A November 2006 VA examination shows that the Veteran was able to maintain flexion and extension against resistance with muscle strength stated to be 5/5 in both the upper and lower extremities. A January 2009 VA examination shows that the Veteran had no neurological symptoms present, and muscle strength was stated to be within normal limits. A more recent July 2011 VA orthopedic consult for right ankle strain shows that muscle strength was 5/5 in the right lower extremity. The Veteran has provided lay evidence identifying a perceived loss of relative muscle strength. In a November 2009 statement, the Veteran reported lost strength and muscle tone secondary to a lack of exercise, which she in turn attributed to fatigability. A January 2011 VA treatment report shows that the Veteran reported having muscle weakness in that she had trouble rising from a chair in the last year. While the Board finds that the Veteran is credible in reporting a perceived loss of muscle strength, specific findings related to muscle weakness may not be readily observable by a lay person, and the Board has accorded greater probative weight to the objective findings provided by physical examinations which show that the Veteran had normal muscle strength during both November 2006 and January 2009 VA examinations. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) ("[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . the credibility and weight to be attached to these opinions [are] within the province of the adjudicator."). For these reasons, the Board finds that the weight of the evidence does not establish that the Veteran has muscle weakness due to Hashimoto's disease. Despite the Board's finding of no muscle weakness due to Hashimoto's disease, because the Board does not need to find that all of the symptoms listed in the diagnostic code are present to award a specific evaluation, see Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002), resolving the benefit of the doubt in favor of the Veteran, the Board finds the Veteran's current symptoms of weight gain and depression, when considered in context of the active diagnosis of Hashimoto's disease with additional symptoms of fatigability, constipation, and cold intolerance, more nearly approximates a higher 60 percent rating under Diagnostic Code 7903 for the entire rating period. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Board finds that the Veteran's disability does not more nearly approximate the next higher 100 percent rating under Diagnostic Code 7903. Hashimoto's disease is manifested by symptoms of fatigability, constipation, depression, cold intolerance, and weight gain. A November 2006 VA examiner identified residuals of hypothyroidism as fatigue, insomnia, sensation of cold intolerance, constipation, and weight gain. The VA examiner stated that insomnia and fatigue were most likely due to sleep apnea, but could also be connected to fluctuations in the Veteran's thyroid condition. The Veteran is separately service-connected for sleep apnea. A January 2009 VA examination also identified fatigability and constipation, though the VA examiner stated that there was no cold or heat intolerance. The Veteran has provided additional statements and testimony identifying tiredness and fatigue related to Hashimoto's disease, and identified symptoms of feeling constantly cold during a March 2013 Board hearing. During January 2011 VA endocrinology treatment, the Veteran reported symptoms of tiredness, feeling cold, hair loss with fluctuations in thyroid levels noted to have improved, worsening depression, and constipation. A July 2011 endocrinology note shows that hypothyroidism was stable with noted symptoms of fatigue. The Board finds that the Veteran is competent and credible in identifying symptoms of fatigability, tiredness, constipation, and cold intolerance, and the Board finds that these symptoms are also indicated by medical evidence of record. Accordingly, the Board finds that the Veteran has symptoms of fatigability, constipation, and cold intolerance in addition to depression and weight gain secondary to Hashimoto's disease. A 100 percent rating is assignable under Diagnostic Code 7903 for hypothyroidism with cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance, bradycardia, and sleepiness. 38 C.F.R. § 4.119. While the Veteran has symptoms of cold intolerance and mental disturbance, the Board finds that manifestations of Hashimoto's disease do not more nearly approximate a 100 percent rating under Diagnostic Code 7903. In that regard, mental disturbance in the form of depression has already been considered in assigning the Veteran's 60 percent rating under Diagnostic Code 7903, and symptoms of fatigability, constipation, and mental sluggishness are indicated for lesser 30 percent and 10 percent evaluations. As the Board has discussed above, the Veteran does not have muscular weakness due to Hashimoto's disease. Additionally, there is no cardiovascular involvement, bradycardia, or sleepiness due to Hashimoto's disease. The January 2009 VA examiner stated that the Veteran had no neurologic, cardiovascular, or gastrointestinal symptoms related to Hashimoto's disease. The Veteran has not otherwise been treated for cardiovascular symptoms or bradycardia in relation to Hashimoto's disease. The Board finds that symptoms of fatigability are not analogous to sleepiness in the context of a 100 percent rating under Diagnostic Code 7903 as they are separately identified in the Diagnostic Code. The Veteran testified in March 2013 that she was tired all the time and avoided the gym, stating that she would be exhausted if she were to go to the gym. The Board finds, however, that these descriptions identify symptoms of fatigue versus specific problems with sleepiness. The Board finds that even if reported tiredness were to be considered as credible evidence of sleepiness, the Veteran does not have muscular weakness, cardiovascular involvement, or bradycardia, such that her disability picture more nearly approximates the next higher 100 percent rating under Diagnostic Code 7903. For these reasons, the Board finds that a 100 percent evaluation is not warranted for Hashimoto's Disease under Diagnostic Code 7903 at any time during the rating period. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by a Hashimoto's disease, also diagnosed as hypothyroidism, is contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, including Diagnostic Code 7903 specifically provide for disability ratings based hypothyroidism. In this case, considering the lay and medical evidence, the Veteran's Hashimoto's disease is manifested by fatigability, constipation, depression, cold intolerance, and weight gain. Such symptoms and impairment are part of or similar to symptoms listed under the schedular rating criteria. For these reasons, the Board finds that the schedular rating criteria is adequate to rate the service-connected Hashimoto's Disease, and referral for consideration of an extraschedular evaluation is not warranted. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran, such as significant symptoms of depression, fatigability or tiredness, and weight loss are specifically contemplated by the criteria discussed above. A November 2006 VA examination shows that while the Veteran was unemployed, this was not related to hypothyroidism, and the Veteran was stated to be euthyroid during a January 2009 VA examination. The Board finds that the assigned 60 percent evaluation addressing overall impairment due to Hashimoto's disease, to include related depression, adequately addresses the Veteran's current disability picture. In the absence of exceptional factors associated with the Veteran's disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER For the entire rating period, 60 percent rating, but no more, is granted for Hashimoto's disease subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs