Citation Nr: 1605964 Decision Date: 02/17/16 Archive Date: 03/01/16 DOCKET NO. 08-37 114 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial rating in excess of 10 percent for status post thyroidectomy. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran had active military service from April 1987 to May 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, wherein the RO granted service connection for status post thyroidectomy and assigned a 10 percent evaluation, effective from June 1, 2007. The Veteran disagreed with the assigned evaluation. The instant matter was most recently before the Board in July 2014, at which time it was remanded for the Veteran to be scheduled for an additional VA examination. Upon completion of the requested development, the agency of original jurisdiction (AOJ) issued a November 2014 supplemental statement of the case (SSOC) wherein it denied a rating in excess of 10 percent for the Veteran's thyroid condition. The case was thereafter returned to the Board. Also, on May 14, 2009, the Veteran testified at a Board hearing before a Veterans Law Judge, sitting at the RO. A copy of the transcript of that hearing is of record. In December 2015, the Veteran and her representative were notified that the Veterans Law Judge who conducted the May 2009 hearing was no longer employed at the Board. The Veteran was informed that she could request another hearing before a different Veterans Law Judge and was notified that if she did not respond within 30 days from the date of that letter that the Board would assume she did not desire another hearing and would proceed accordingly. In correspondence received on February 1, 2016, the Veteran stated that she did not wish to appear at another Board hearing. FINDING OF FACT The Veteran's thyroid disorder requires continuous medication for control and is manifested by subjective symptoms of tachycardia, tremors, fatigability, mood swings, and hair loss; objective evidence of tremors, increased pulse or blood pressure, constipation, mental sluggishness, and/or marked muscle spasms attributable to the Veteran's thyroid condition has not been shown. CONCLUSION OF LAW The criteria for an initial compensable rating for the Veteran's service-connected thyroid disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.119, Diagnostic Codes 7900, 7903, 7905 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2014); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that VA's General Counsel has held that VCAA notice is not required for downstream issues. VAOPGCPREC 8-2003. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess, 19 Vet. App. at 490. The rating issue addressed below stems from a disagreement with a downstream element, and as such, no additional notice is required with respect to those claims because the purpose that the notice is intended to serve has been fulfilled with respect to those claims. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Regarding the duty to assist, the Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate the claim decided herein. The evidence obtained or associated with the Veteran's Virtual VA and VBMS files includes her service treatment records (STRs), VA treatment records, private treatment records, VA examination reports, and statements from the Veteran. The Veteran has not alleged that there is any additional outstanding evidence pertinent to her claim decided herein and the Board is also unaware of any such outstanding evidence. The Board also finds that the medical evidence of record is adequate for the Board to rely upon in this case. The Veteran has been provided with multiple VA examinations in connection with her claim of service connection for a thyroid disorder and appeal of the initial rating assigned. Also of record are numerous VA treatment records. The Board is satisfied that the information contained in the VA examination reports, along with that which is contained in the VA and private records, is sufficient for the Board to evaluate the severity of the Veteran's service-connected disability in the context of the rating criteria and throughout the pendency of her claim. II. Analysis Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, "[w]here 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 (2015). In the instant case, the question for consideration is the propriety of the initial evaluation assigned for the Veteran's status post thyroidectomy. Evidence relevant to the issue shows that while still in service, the Veteran was diagnosed with a nontoxic multinodular goiter and eventually underwent a total thyroidectomy in October 2004. The Veteran was afforded a pre-discharge examination in January 2007, at which time she reported residual symptomatology consisting of occasional tachycardia, tremors, leg cramps, occasional diarrhea, and heat intolerance. It was noted that the Veteran's thyroid condition required continuous medication for control, but there was no indication of any resulting functional impairment. Results of laboratory testing revealed a decrease level of TSH, but normal levels of T3 and T4. In October 2007, the Veteran was awarded service connection for status post thyroidectomy, which disability was evaluated on 10 percent disability, effective from June 1, 2007. The 10 percent evaluation was assigned under 38 C.F.R. 2 4.119, Diagnostic Code (DC) 7999-7900, based on evidence showing that the Veteran's condition required continuous medication and was manifested by occasional symptoms of hand tremors, heat intolerance, and tachycardia. The Veteran disagreed with the assigned 10 percent evaluation. The Veteran was afforded a VA examination in March 2008. At that time, her reported symptomatology consisted of heat intolerance, tachycardia, and hypertension, as well as muscle cramps and easy fatigability. She also reported weight fluctuation and frequent changes to her medication dosage. Physical examination was mostly normal, save for some neck tenderness. The Veteran's heartbeat was noted to be regular with no murmur, rub, or gallop and there was no evidence of resting tremor. A diagnosis of postablative hypothyroidism was recorded. The Veteran was again examined in December 2009. At that time, she denied experiencing any neurological, cardiovascular or gastrointestinal symptoms to include constipation, but stated that she continued to have legs cramps, experience heat and cold intolerance, and to fatigue easily. Physical examination was mostly normal, save for a surgical scar. The Veteran's blood pressure was recorded to be 120/68, her pulse was 94, and there was no evidence of tremors. The examiner recorded a diagnosis of hyperthyroidism with surgery, leading to hypothyroidism treated with Synthroid. Another VA examination was conducted in September 2014. At that time, it was indicated that the Veteran had no current findings, signs, or symptoms attributable to a hyperthyroid condition, but did have findings, signs, or symptoms attributable to hypothyroid and hypoparathyroid conditions, to include muscle spasms. Physical examination of the Veteran was normal and her blood pressure was recorded to be 140/76 and her heart rate to be 59. Turning to the applicable diagnostic criteria, as noted above, the Veteran's service-connected post status thyroidectomy has been evaluated during the relevant time period as 10 percent disabling under DC 7999-7900. The Board notes that hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2015). When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the DC number will be "built-up" as follows: the first two digits will be selected from that part of the schedule most closely identifying the part, or system of the body involved, in this case, miscellaneous diseases, and the last two digits will be "99" for all unlisted conditions. Then, the disability is rated by analogy under a DC to a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27 (2015). Under DC 7900, which pertains to the evaluation of hyperthyroidism, a 10 percent rating is assigned for hyperthyroidism with tachycardia, which may be intermittent, and tremor, or; continuous medication is required for control. 38 C.F.R. § 4.119, DC 7900 (2015). Hyperthyroidism with tachycardia, tremor, and increased pulse pressure or blood pressure is rated as 30 percent disabling. Id. Hyperthyroidism with emotional instability, tachycardia, fatigability, and increased pulse pressure or blood pressure is rated as 60 percent disabling. Id. Lastly, hyperthyroidism with thyroid enlargement, tachycardia (more than 100 beats per minute), eye involvement, muscular weakness, loss of weight, and sympathetic nervous system, cardiovascular, or gastrointestinal symptoms, is rated as 100 percent disabling. Id. At the outset, the Board notes that although the Veteran's disability has been rated unde the DC pertaining to hyperthyroidism, it does not appear that she currently suffers from hyperthyroidism. Rather, the evidence indicates hypothyroidism. In any event, the evidence fails to support a rating in excess of 10 percent in accordance with the criteria set forth in DC 7900. This is so because the objective evidence of record does not support a finding that the Veteran's thyroid condition has been productive of tremors and increased pulse pressure or blood pressure. Although the Veteran reported having tremors and high blood pressure, several VA examiners indicated no evidence of tremors, and the Veteran's medical records do not reveal that the Veteran has been diagnosed as having hypertension or that she has been placed on medication for control of her blood pressure. Further, although her blood pressure and pulse pressure recorded at the time of the 2014 VA examination were higher than recorded at the time of the 2009 VA examination, there is no indication that any elevation in blood or pulse pressure was due to the Veteran's thyroid condition. Accordingly, the Board finds no basis upon which to assign a rating in excess of 10 percent in accordance with the criteria set forth in DC 7900. In this regard, the Board also finds no basis upon which to rate the Veteran's disability as hyperthyroid heart disease or as impairment of field vision, diplopia, or impairment of central visual acuity. See 38 C.F.R. § 4.119, DC 7900, Notes (1) and (2). The Board has also considered whether a rating in excess of 10 percent may be assigned under any other potentially applicable DC, but finds that it may not. Specifically, the Board has considered whether higher ratings may be warranted under DCs 7903 and 7905 as the evidence suggests that the Veteran has findings, signs, or symptoms attributable to hypothyroid and hypoparathyroid conditions. Under DC 7903, a 10 percent rating is assigned for hypothyroidism with fatigability, or where continuous medication is required for control. 38 C.F.R. § 4.119, DC 7903 (2015). A 30 percent rating is assigned for hypothyroidism with fatigability, constipation, and mental sluggishness. Id. Hypothyroidism with muscular weakness, mental disturbance, and weight gain is rated as 60 percent disabling. Id. Lastly, hypothyroidism with cold intolerance; muscular weakness; cardiovascular involvement; mental disturbance, to include dementia, slowing of thought, depression, bradycardia (less than 60 beats per minute), and sleepiness is rated as 100 percent disabling. Id. Under DC 7905, hyperparathyroidism requiring continuous medication for control warrants a 10 percent rating. 38 C.F.R. § 4.119, DC 7905 (2015). Hypoparathyroidism with marked neuromuscular excitability, or; paresthesias (of arms, legs, or circumoral area) plus either cataract or evidence of increased intracranial pressure warrants a 60 percent ratings. Id. Lastly, a 100 percent rating is warranted for hypoparathyroidism with marked neuromuscular excitability (such as convulsions, muscular spasms (tetany), or laryngeal stridor) plus either cataract or evidence of increased intracranial pressure (such as papilledema). Id. A review of the evidence of record fails to support a rating in excess of 10 percent under DC 7903 or DC 7905. First, there is no indication that the Veteran experiences constipation, mental sluggishness, and/or mental disturbance as a result of her thyroid condition, which is required for a higher rating under DC 7903. Further, although the 2014 VA examiner indicated muscle spasms under findings, signs, or symptoms attributable to hypoparathyroid conditions, to the extent that that is factually accurate, there is no evidence of record to support a finding that any such spasms as "marked" in severity. Accordingly, the Board cannot conclude that the Veteran is entitled to a rating in excess of 10 percent under any other potentially applicable DC. Regarding the issue entitlement to an initial rating in excess of 10 percent for the Veteran's thyroid condition, the Board notes that "[r]atings shall be based as far as practicable, upon the average impairments of earning capacity." 38 C.F.R. § 3.321(b)(1) (2015). However, "[t]o accord justice . . . to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." Id. As determined by the Court, whether referral for extraschedular consideration is warranted involves a three-part test. Thun v. Peake, 22 Vet. App. 111, 114-16 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed.Cir.2009); see Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) (clarifying that, although the Court in Thun identified three "steps," they are, in fact, necessary "elements" of an extraschedular rating). First, it must be determined whether the evidence "presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Thun, 22 Vet. App. at 114. If so, it must be determined whether the claimant's exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. at 116. If the previous inquiries are answered in the affirmative, the matter must be referred for extraschedular consideration. Id. Here, the Veteran has indicated that she experiences hair loss, which she attributes to her thyroid condition. The Board acknowledges that such symptom is not contemplated specifically by the applicable diagnostic criteria and thus a question is raised as to whether the available schedular evaluations for the service-connected thyroid disability in adequate. Regardless, however, of whether the Veteran indeed experiences symptoms attributable to her thyroid disability that would take her case outside the norm, the evidence fails to demonstrate marked interference with employment, frequent periods of hospitalization, or other related factors resulting from the Veteran's disability. Although the Veteran reported during her 2009 hearing that her disability had the effect of, at times, slowing her down at work, she did not allege having to take any time off from her work due to her disability. The medical evidence of record similarly does not demonstrate occupational impairment related to the Veteran's tyroid condition and there is no indication of any hospitalizations. Accordingly, the Board finds that the criteria for referral for extraschedular consideration have not been met. See Thun, supra. Further, the Veteran has not argued, nor does the evidence so suggest, that the aggregate effects of all service-connected disabilities, requires referral to the Director, Compensation Service, for consideration of the assignment of an extra-schedular rating based on the combined effect of the Veteran's service-connected disabilities, individually or in combination. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Lastly, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that the issue of entitlement to a total rating based upon individual unemployability due to service connected disability is part of an increased rating claim when that issue is raised by the record. As it appears from the record that the Veteran is working and there is no "cogent evidence of unemployability," the Board finds that this issue has not been raised as part of the claim currently before it. See Comer v. Peake, 552 F .3d 1362, 1366 (Fed.Cir.2009); Rice, supra. ORDER Entitlement to an initial rating in excess of 10 percent for status post thyroidectomy is denied ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs