Citation Nr: 1510839 Decision Date: 03/16/15 Archive Date: 03/27/15 DOCKET NO. 11-00 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial rating in excess of 10 percent for service-connected hypothyroidism. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Sorathia, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2003 to August 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted entitlement to service connection for hypothyroidism and assigned a 10 percent rating effective August 26, 2009. The Board notes that the October 2009 rating decision also granted service connection for a left knee disorder and a right knee disorder. The Veteran submitted a timely notice of disagreement to the assigned disability ratings. The RO issued a statement of the case and the Veteran did not submit a timely VA Form 9 as to these issues. Moreover, the Veteran specifically stated in January 2015 that he did not wish to pursue an appeal regarding the right knee and left knee. The Veteran provided testimony before the undersigned Veteran's Law Judge in December 2014. A transcript of this hearing has been associated with the electronic claims file. FINDING OF FACT The Veteran's hypothyroidism has been productive of fatigue, constipation, and mental sluggishness; but without muscular weakness, bradycardia, and weight gain specifically associated with hypothyroidism. CONCLUSION OF LAW The criteria for a 30 percent rating for hypothyroidism have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.119, Diagnostic Code 7903 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Assist and Notify The Veteran's claim for a higher rating for his hypothyroidism 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); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate the claim. The Veteran's service treatment records have been associated with the claims file, as well as post service VA treatment records. Moreover, the Veteran submitted a letter from his private physician which summarizes his pertinent symptoms and treatment. The Veteran was notified that he could submit additional evidence and the Board notes that he submitted additional VA treatment records but no additional private treatment records. As such, the Board finds that the sufficient and necessary records have been associated with the claims file in order to adjudicate the claim. The Veteran was afforded an examination in April 2009 while he was still on active duty. This examination report is adequate as the examiner conducted an appropriate evaluation of the Veteran, considered the Veteran's contentions, and noted examination findings as to the severity of the Veteran's disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Although a December 2014 letter from the Veteran's private doctor noted changes in the Veteran's medication, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined in order to warrant a new examination. See 38 C.F.R. § 3.327(a) (2013); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his increased rating claim for hypothyroidism. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ discussed the elements that were lacking to substantiate the claim for benefits, such as symptoms of mental sluggishness. The VLJ identified the issue to the Veteran and the Veteran provided testimony directly related to the pertinent question of whether the Veteran met the criteria for a higher rating. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. Higher Rating Claim Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In higher rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the hypothyroidism provisions of Diagnostic Code 7903, a 10 percent evaluation is assigned for fatigability, or; continuous medication required for control. A 30 percent evaluation is assigned for fatigability, constipation, and mental sluggishness. 38 C.F.R. § 4.119, Diagnostic Code 7903. A 60 percent evaluation is warranted for muscular weakness, mental disturbance, and weight gain. Id. A 100 percent rating is assigned for cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute) and sleepiness. Id. When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Here, the Veteran contends that he is entitled to a 30 percent rating for his hypothyroidism. During the December 2014 Board hearing, he testified that he takes medication for his constipation and that he experiences symptoms of fatigue and mental sluggishness. The Veteran was afforded an examination in April 2009. He was diagnosed with hypothyroidism and it was noted that he reported symptoms of emotional instability, poor memory, sleepiness, depression, slowness of thoughts, and cold intolerance. It was noted that his heart beat was 76 per minute. He was prescribed continuous treatment, to include Synthroid. VA treatment records confirm symptoms of fatigue and constipation. In January 2010, it was noted that the Veteran complained of fatigue and slowness. Although he had normal bowel sounds, he was noted to have constipation. March 2013 VA treatment records also note constipation and fatigue. A December 2014 letter from the Veteran's private physician stated that the Veteran has symptoms of constipation and fatigability. The doctor stated that the constipation is treated with over the counter medication and diet. He also noted that the Veteran's fatigability has not improved with thyroid replacement medication. Additionally, the doctor specifically noted that the Veteran had mental sluggishness. In light of the evidence of record, the Board finds that the Veteran is entitled to a 30 percent rating for his hypothyroidism. The Veteran's symptoms of constipation, fatigue, and mental sluggishness are documented in his medical records. The Board acknowledges that the October 2009 rating decision granted service connection for a psychiatric disorder and traumatic brain injury (TBI) with tension headaches, as well as service connection for hypothyroidism. In the rating decision, the RO noted that the Veteran's memory was mildly impaired and associated this symptom with his psychiatric disorder based on a May 2009 psychiatric examination report. The RO also assigned a noncompensable rating for the Veteran's TBI with tension headaches and specifically relied upon the April 2009 and May 2009 examination reports which stated that the Veteran had no cognitive impairments due to TBI. Regarding hypothyroidism, the RO acknowledged the Veteran's "mental sluggishness" but found that it had considered slowness of thought and memory loss in the assignment of the 30 percent rating for his psychiatric disorder. Thus, the RO stated that it could not consider "mental sluggishness" as a symptom associated with hypothyroidism as this would be pyramiding. However, the Board finds that "mental sluggishness" is a symptom of the Veteran's hypothyroidism and considering it in the assignment of a 30 percent rating for hypothyroidism would not be pyramiding in this context. Initially, the Board notes that the October 2009 rating decision makes no specific finding as to "mental sluggishness" in the assignment of the 30 percent rating for his psychiatric disorder. Moreover, the RO said it considered the Veteran's slowness of thought and memory loss in the assignment of the psychiatric disorder and thus could not consider these symptoms in the context of hypothyroidism. However, the May 2009 psychiatric examination report makes no specific findings as to "mental sluggishness" and the report indicates that the Veteran had no slowness of thought in relation to his psychiatric disorder. Significantly, the Board notes that the April 2009 examination report specifically associates slowness of thought and poor memory to the Veteran's hypothyroidism. The Veteran's private doctor stated that his psychiatric disorder and hypothyroidism can cause cognitive defects and that mental sluggishness was a "broad description." See December 2014 private doctor letter. The doctor specifically opined that the cognitive symptoms should not be grouped together and that it would not be pyramiding in this case to associate the Veteran's mental sluggishness with his hypothyroidism. The Board finds this medical opinion to be highly probative evidence that although the Veteran's psychiatric disorder has some cognitive symptoms, the Veteran's "mental sluggishness" is separate and distinct to his hypothyroidism. As noted above, the Board acknowledges that the Veteran is also service-connected for TBI with tension headaches. However, both the April 2009 and May 2009 examination reports concluded that the Veteran does not have cognitive impairment due to the TBI and therefore there is no issue of pyramiding in regards to the Veteran's TBI symptoms. Thus in light of the April 2009 examination report which specifically associates slowness of thought to hypothyroidism, the May 2009 examination report which indicates that the Veteran did not have slowness of thought in relation to his psychiatric disorder, and the December 2014 medical opinion, the Board finds a 30 percent rating is warranted for hypothyroidism. The Board finds that the Veteran's hypothyroidism does not warrant a rating in excess of 30 percent. At no point during the course of the appeal has the Veteran asserted that his condition is more severe than a 30 percent rating. Although the April 2009 examination report noted cold intolerance, the report of that symptom alone is not sufficient to warrant a higher rating. VA treatment records do not reveal muscular weakness or weight gain associated with hypothyroidism which is required for a 60 percent rating. Cardiovascular involvement and bradycardia (less than 60 beats per minute) associated with hypothyroidism, which is required for a 100 percent rating, is also not evident from the medical evidence. Specifically, the April 2009 examination report noted 76 beats per minute. As such, the preponderance of the evidence is against a rating in excess of 30 percent at any time during the appeal period. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). See also Francisco v. Brown, 7 Vet. App. 55 (1994). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the Veteran's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplates the Veteran's disability. The Board acknowledges the November 2010 VA Form 9 where the Veteran states that his fatigue and mental sluggishness impact his ability to complete his school work. He further stated that these symptoms may impact his ability to work once he is no longer a full-time student. He also stated that his constipation and cold intolerance are a nuisance and impact his quality of life. However, the reported symptoms of fatigue, mental sluggishness, constipation, and cold intolerance are specifically outlined in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's hypothyroidism and referral for consideration of extraschedular rating is not warranted. The Board is mindful that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Board notes that the Veteran was a full-time student at the time of his November 2010 VA Form 9. During the December 2014 Board hearing, the Veteran stated that he was working. As such, there is no evidence of unemployability due to his service-connected disability. TDIU is therefore not raised by the record. ORDER Subject to the law and regulations governing the payment of monetary benefits, entitlement to a 30 percent rating and no more for service-connected hypothyroidism is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs