Citation Nr: 1715340 Decision Date: 05/08/17 Archive Date: 05/22/17 DOCKET NO. 06-14 247A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an evaluation in excess of 30 percent for Hashimoto's disease with hypothyroidism. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran had active military service from August 1980 to February 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In November 2009, the Veteran and his spouse testified at a travel Board hearing before the undersigned. A transcript of the hearing has been associated with the claims file. In March 2010 the Board remanded the Veteran's appeal for an increased rating for his Hashimoto's disease, and asthma. The Board again remanded the Veteran's appeal for an increased rating for his Hashimoto's disease in November 2011. In May 2013 the Board granted the Veteran an increased rating to 30 percent disabling for his Hashimoto's disease. The Veteran appealed the Board's decision on his increased rating claim for Hashimoto's disease to the United States Court of Appeals for Veterans Claims (Court) and the Board's decision was vacated and remanded following a November 2014 Court Memorandum Decision. The issue was remanded by the Board in July 2015 and again in October 2015. As sufficient efforts were made to obtain VA and private medical records, and the requested medical and mental health examinations and opinions were obtained, the Board finds the directives have been substantially complied with, and the matter again is before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT For the entire rating period, the manifestations of the Veteran's Hashimoto's disease with hypothyroidism have approximated mental disturbance, weight gain, fatigability, mental sluggishness and the requirement of continuous medication. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for a disability rating of 60 percent, but no higher, for Hashimoto's disease with hypothyroidism have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.119, Diagnostic Code 7903 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the Veteran was provided with proper notification in June 2004 and August 2004, prior to the adjudication of his claim in October 2004 rating decision, in which he was informed of what was necessary to substantiate the claim, and what evidence VA and the Veteran were required to provide. In a November 2009 letter, VA provided the Veteran with the notice required under the VCAA and under Dingess. The Board found that the Veteran had not been properly notified and remanded the claim in November 2011 to correct the deficiency. In November 2011 the Veteran was sent an additional notice letter. Although not all the notice was provided prior to the initial adjudication of the claim, the claim was readjudicated in an October 2012 supplemental statement of the case. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Pelegrini, 18 Vet. App. at 122; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006); 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment and service personnel records were previously obtained. Available VA and private treatment records were obtained, as well as Social Security Administration (SSA) records. Moreover, the Veteran underwent VA examinations with opinions, most recently in September 2015 with addendum in January 2016, and mental health examination in December 2015. The reports show that the examiners considered the medical evidence of record and the findings from clinical examination in support of the medical opinions. The Board finds that the VA examination reports and supplemental VA medical opinion are adequate for VA purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate.) Disability Ratings Law 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. In determining the disability rating, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). If two ratings are potentially applicable, 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In rendering a decision on appeal the Board must 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"). 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. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. at 312. The Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Generally, the degree of probative value which may be attributed to a medical professional's opinion accounts such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Additional significant factors include whether the examining medical professional had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions because examiner failed to consider certain relevant information). As stated above, the Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. 49. The Board has reviewed all the evidence, both lay and medical, in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by, or obtained on behalf of, the appellant be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Rating for Hashimoto's disease with hypothyroidism The Veteran's claim for an increased rating for this disability was filed in May 2004. The 30 percent rating on appeal is effective from that date. The disability has been rated analogously to hyperthyroidism under Diagnostic Code 7903 (hyperthyroidism). See 38 C.F.R. § 4.119. 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; and 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. 38 C.F.R. § 4.119, Diagnostic Code 7903. In this case, it is established that the Veteran's Hashimoto's disease with hypothyroidism disorder has been manifested by at least fatigability, weight gain and mental sluggishness, and is reported as controlled by continuous medication. See the reports of July 2007, June 2010, September and December 2015 VA examination reports, the January 2016 addendum opinion and the non-vacated part of the Board's 2013 decision. Whether there is muscular weakness and or mental disturbance linked to the disability on appeal will now be addressed. The Court in 2014 took notice of the fact that the Board found that the Veteran experienced muscular weakness and mental disturbance but could not find they were convincingly linked to his Hashimoto's disease with hypothyroidism. As to the issue of mental disturbance, a December 2015 VA mental disorders examination includes the opinion of an examining psychologist who reviewed the entire record. He opined that the Veteran's current medical problems in combination, which specifically include hyperthyroidism, have exacerbated his depression. However, the examiner felt it would be speculative to delineate the respective contribution of each condition to his depressed mood. The Board finds this opinion to be entitled to considerable probative weight as it considered the entire record, was rendered by a neutral professional and is not inconsistent with the documented record. Based on this opinion, viewed in the context of the entire record, the Board concludes that depression cannot be disassociated from the Veteran's hyperthyroidism. Therefore, mental disturbance is a manifestation of the disability on appeal. The Board finds further that this depression has been present throughout the appeal period, as it was noted in the SSA materials that pre-date the claim. Considering the now-established presence of mental disturbance, in combination with the other established manifestations, the Board finds that a 60 percent rating is more nearly approximated than a 30 percent rating for this disability. Nonetheless, the Board finds that the criteria for a 100 percent rating have not been met or approximated at any time relevant to this appeal. In this regard, a January 2016 addendum opinion from the VA physician who reviewed the record and examined the Veteran in September 2015 is wholly against the claim. The examiner specifically opined as follows: It is opinion of this examiner that veteran's fatigability, constipation, muscular weakness, weight gain, cold intolerance, cardiovascular involvement, bradycardia, are less likely than not related to hypothyroidism. Rationale is that veteran's hypothyroidism is well controlled by his current medication. His thyroid recent function tests are reported within normal range. Review of medical records indicate that in addition to hypothyroidism veteran also has other medical conditions including obesity, uncontrolled diabetes, hypogonadism, sleep apnea, and cerebral atrophy. It is opinion of this examiner that veterans symptoms are more likely related to medical conditions other than hypothyroidism. Please note that an opinion regarding mental condition is not provided [a]s it is given by a neuro psych specialist. The Board finds that the preponderance of the evidence is against a finding that the criteria for a 100 percent rating are met or approximated. The opinion of the VA physician in January 2016 is uncontroverted evidence against a 100 percent rating, as it delineates that none of the criteria are present due to his service-connected hyperthyroidism. It is accorded considerable probative weight as it is from a neutral professional who reviewed the record to include the Veteran's assertions, and is not inconsistent with the documented record. The Veteran's and his wife's assertions inasmuch as they are germane to the presence of cardiovascular involvement or bradycardia, characteristics of a 100 percent rating, are not entitled to any probative weight as they lack the medical expertise to opine as to the presence of such medical conditions. Neither the Veteran nor the Veteran's wife is competent to link any of these symptoms to hypothyroidism. See 38 C.F.R. § 3.159 (a)(1); Clyburn v. West, 12 Vet. App. 296, 301 (1999) Moreover, the examiner's opinion that any cold intolerance and muscular weakness are due to conditions other than hyperthyroid is more probative than the lay assertions, as again this is a matter requiring medical expertise and the Veteran's assertions were considered in the formation of this medical opinion. In this case, attributing symptoms to a complex disease such as hypothyroidism requires detailed understanding of the thyroid gland and endocrine system, experience in identifying hypothyroidism symptoms, and the ability to identify and differentiate potential causes for symptoms such as constipation, hair loss, muscular aching and weakness, weight gain, slowing of thought, and emotional instability, all of which may be affected by different factors and body systems. As neither the Veteran nor the Veteran's wife have been shown to have such medical knowledge, experience, or ability, their statements relating symptoms such as constipation, hair loss, muscular aching and weakness, weight gain, slowing of thought, and emotional instability to hypothyroidism are not afforded probative weight. The Board has considered rating the Veteran's service-connected Hashimoto's disease with hypothyroidism disability under all appropriate diagnostic codes. However, the medical evidence of record does not demonstrate that, during the period pertinent to this appeal, the Veteran has ever had hyperthyroidism, toxic or nontoxic adenoma of the thyroid gland, hyperparathyroidism, hypoparathyroidism, or Cushing's syndrome. 38 C.F.R. § 4.71a, Diagnostic Codes 7900, 7901, 7902, 7904, 7905, and 7907. Accordingly, a rating in excess of 60 percent is not warranted for the Veteran's disorder under any of those diagnostic codes. This issue has also been reviewed with consideration of whether staged ratings would be warranted. While there may have been occasional fluctuations of the Veteran's hypothyroid symptoms, the evidence shows no distinct periods of time during which the hypothyroid symptoms have varied to such an extent that a rating in excess of 60 percent would be warranted under any diagnostic code. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.344 (2016). Extraschedular Consideration The Board has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b)(1) (2016); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. Turning to the first step of the extraschedular analysis, the Board finds that all the symptomatology and impairment caused by the service-connected Hashimoto's disease with hypothyroidism disability are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. As stated above, the Veteran's Hashimoto's disease with hypothyroidism is controlled by continuous medication as to the medical manifestations, but also contributes to depressive thoughts. The 10 percent rating under Diagnostic Code 7903 specifically considers hypothyroidism that requires continuous medication for control and manifests fatigability, the 30 percent rating specifically considers hypothyroidism that manifests fatigability and mental sluggishness, and the 60 percent rating considers mental disturbance (noted in the 100 percent criteria to include depression) and weight gain; therefore, the Board finds that manifestations of the Veteran's disability are fully contemplated in the increased 60 percent rating under Diagnostic Code 7903. For these reasons, the Board finds that the schedular criteria are not inadequate to rate the Veteran's Hashimoto's disease with hypothyroidism, and referral for consideration of extraschedular rating is not necessary. Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the rating of the individual conditions fails to capture all the service-connected disabilities experienced; however, in case, the Veteran has not asserted, and the evidence of record does not suggest, any such combined effect of multiple service-connected disabilities to create such an exceptional circumstance. For these reasons, the Board finds that the schedular rating criteria are adequate to rate the service-connected Hashimoto's disease with hypothyroidism, and referral for consideration of extraschedular rating is not required. 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 (2016). In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effects on daily life. In the absence of exceptional factors associated with the Hashimoto's disease with hypothyroidism, 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 A disability rating of 60 percent, and no higher, for Hashimoto's disease with hypothyroidism, is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ L. BAKKE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs