Citation Nr: 1803171 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 12-24 956 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 10 percent for hypothyroidism. 2. Entitlement to a compensable disability rating for scar, status post thyroidectomy. 3. Entitlement to an initial compensable rating for otitis media of the right ear. 4. Entitlement to an earlier effective date (EED) than March 13, 2009 for the award of service connection for mixed connective tissue disorder (MCTD). ORDER A rating in excess of 10 percent for hypothyroidism is denied. Entitlement to a compensable rating for scar, status post thyroidectomy is denied. Entitlement to an earlier effective date of August 2, 2005, but no earlier, for the grant of service connection for MCTD, is granted, subject to the law and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. While the Veteran has reported symptoms such as forgetfulness, muscle pain, and weight gain, no competent medical evidence of record has linked these symptoms to her service-connected hypothyroidism. The Veteran's hypothyroid disability has not been shown to be manifested by mental sluggishness, muscular weakness, mental disturbance, slowing of thought, cardiovascular involvement, or bradycardia. 2. The Veteran's scar, status post thyroidectomy, is not unstable or painful, 13 centimeters in length or longer, 0.6 centimeters in width or wider, elevated or depressed, or adherent to underlying tissue. 3. On September 28, 2005, the Veteran filed a service connection claim for systemic lupus. 4. The Veteran's September 2005 claim was filed within one year of separation from service. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for hypothyroidism have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.119, Diagnostic Code 7903 (2017). 2. The criteria for a compensable rating for scar, status post thyroidectomy, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.118, Diagnostic Code 7800 (2017). 3. The criteria for an earlier effective date of August 2, 2005, but no earlier, for the grant of service connection MCTD have been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1997 to August 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Montgomery, Alabama. I. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is an approximate 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Under Diagnostic Code 7903, a 10 percent rating is assigned for hypothyroidism with fatigability, or; when continuous medication required for control. A 30 percent rating is assigned when hypothyroidism causes fatigability, constipation, and mental sluggishness. A 60 percent rating is assigned when hypothyroidism causes 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. The Veteran's service-connected thyroid condition is hypothyroidism, which is defined as diminished production of thyroid hormone, leading to clinical manifestations of thyroid insufficiency, including low metabolic rate, tendency to weight gain, somnolence and sometimes myxedema. See Stedman's Medical Dictionary, 27th ed., 2000, at 866). In contrast, "hyperthyroidism" is defined as an abnormality of the thyroid gland in which secretion of thyroid hormone is usually increased. See Stedman's Medical Dictionary, 27th ed., 2000, at 856). During an April 2009 VA thyroid examination, the Veteran complained of constant exhaustion, regardless of how much sleep the night before, and weight gain of 12 pounds in one week. Her weight was recorded as 158.9 pounds. Physical examination noted "weight change: none". She was currently using Synthroid daily as treatment. Physical examination revealed a normal thyroid size. There were no nodules, but the Veteran's neck was tender. There was no indication of pressure on the larynx or trachea or on the esophagus. A sign of the Veteran's thyroid disease was a dull facial expression. The Veteran was diagnosed with euthyroid, which the examiner indicated was in remission. A problem associated with diagnosis was hypothyroidism. A June 2009 private treatment record reflects the Veteran's complaint of some weight gain over the past several months. Specifically, she reported that she gained approximately 20 pounds. A September and October 2009 private treatment record noted "no complaint of fatigue; no change in weight". It was further noted that the Veteran "denied significant weight gain." At an August 2010 Infectious, Immune, and Nutritional Disabilities VA examination, the Veteran's weight was recorded as 165.8 pounds. An October 2010 private treatment record shows that a neck and thyroid examination was symmetrical with no obvious masses. The trachea was midline. There was no enlargement, tenderness, or mass of the thyroid noted, and no adenopathy. As part of her December 2010 notice of disagreement (NOD), the Veteran stated that she has related to VA and private physicians on several occasions that she experiences muscle aches and weakness. She stated that the muscle cramps have been so severe that she has been prescribed several different types of medicine to help with the pain, which the Veteran listed. These medicines include Furosemide, Cymbalta, Etodolac, Cyclobenzaprine, Naproxen, Amitriptyline, Ibuprofen, and Tylenol. On the Veteran's September 2012 VA Form 9, she expressed having mental sluggishness in that if she does not write things down, even the simplest things, she will forget. She further reiterated suffering from horrible muscle aches, pains, and weakness daily and having been prescribed numerous medications. The Veteran was afforded a VA examination in April 2016. The examiner noted that the Veteran had hypothyroid endocrine dysfunction. The examiner further indicated that the Veteran did not currently have any findings, signs, or symptoms attributable to a hyperthyroid, hyperparathyroid, or hypoparathyroid condition. Current findings, signs, or symptoms attributable to the Veteran's hypothyroid condition included constipation and cold intolerance as the Veteran reported that she was "always cold" and had a history of constipation. The examiner did not indicate that the Veteran had any fatigability, cardiovascular symptoms, mental sluggishness, dementia, depression, slowing of thought, mental disturbance, muscular weakness, weight gain, sleepiness, or bradycardia. The Veteran was also not on continuous medication. She did not currently have any symptoms due to pressure on adjacent organs such as the trachea, larynx, or esophagus attributable to a thyroid condition. Physical examination of the eyes, neck, and pulse were all normal. Reflex examination was normal. The Veteran had a scar on her neck related to treatment for her thyroid condition, but it was not unstable or painful, 13 centimeters in length or longer, 0.6 centimeters in width or wider, elevated or depressed, or adherent to underlying tissue. The Veteran did not have any areas of skin of the neck that were hypo- or hyperpigmented, that had abnormal texture, that had missing underlying soft tissue, or that were indurated and inflexible related to thyroid or parathyroid disease or their treatment. The Board has considered the Veteran's self-reported hypothyroidism symptoms. The Veteran has attributed symptoms such as forgetfulness, weight gain, and muscle pains to her hypothyroidism. The Veteran is competent to report these symptoms as they can be detected by the Veteran's own senses and personal observations. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that the Veteran is not competent to link any of these symptoms to hypothyroidism. See 38 C.F.R. § 3.159 (a)(1). 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 fatigue, weakness, cold intolerance, weight gain, constipation, and mental sluggishness, all of which may be affected by different factors, medical conditions, and body systems. As the Veteran lacks the medical training and expertise necessary to provide a complex medical opinion regarding the etiology of particular symptoms, her statements relating symptoms to hypothyroidism are not competent and are afforded no probative weight. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In consideration of the foregoing, the Board finds that the manifestations of the Veteran's hypothyroidism do not meet or more nearly approximate the schedular criteria for a rating of 30 percent or higher under Diagnostic Code 7903. Although the Veteran has claimed to have had weight gain associated with her hypothyroidism, such as her assertion of gaining 12 pounds in one week, the objective evidence of record does not clearly show such weight gain. As noted above, September and October 2009 private treatment records noted "no change in weight" and that the Veteran "denied significant weight gain." In fact, when comparing her recorded weight from the April 2009 thyroid VA examination and the August 2010 Infectious, Immune, and Nutritional Disabilities VA examination, the Veteran's weight appears to have increased by only seven pounds within that time period. Moreover, the April 2016 VA examiner did not indicate that the Veteran had any weight gain. Similarly, with respect to the Veteran's claim of forgetfulness, there is no evidence indicating that a medical provider has attributed the Veteran's assertion of forgetfulness or any other mental disturbance to her hypothyroidism. Indeed, the Veteran explicitly denied experiencing mental disturbance in her September 2012 VA Form 9 and the April 2016 VA examiner did not indicate that the Veteran suffered from mental disturbance. Additionally, the April 2016 VA examiner specifically noted that she did not have any fatigability, cardiovascular symptoms, mental sluggishness, dementia, depression, slowing of thought, mental disturbance, muscular weakness, weight gain, sleepiness, or bradycardia. While the April 2016 VA examiner noted that the Veteran experienced constipation and cold intolerance, the examiner also noted that the Veteran did not experience any of the other symptoms mentioned above to warrant a higher rating. Lastly, the Board acknowledges the Veteran's complaints of muscle weakness and use of prescribed medication that she claims is for muscle pain. However, there is no evidence that any muscular weakness has been attributed to her hypothyroidism by any medical professionals. Again, the April 2016 VA examiner did not indicate that the Veteran had muscular weakness. The record does not contain credible, competent evidence indicating that the complained of symptoms are manifestations of the Veteran's thyroid condition. As such, the competent evidence of record does not demonstrate the symptoms contemplated in the 30 percent disability rating criteria. For these reasons, the Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent for her hypothyroidism. With the weight of the evidence against the assignment of a higher disability rating, the benefit-of-the-doubt rule is not for application. 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Lastly, the Board will consider whether the Veteran is entitled to a compensable disability rating for the neck scar associated with her service-connected thyroid disability. See Esteban v. Brown, 6 Vet. App. 259 (1994). A compensable rating under Diagnostic Code 7800 provides that a skin disorder with one characteristic of disfigurement of the head, face, or neck is rated as 10 percent disabling. Note (1) to Diagnostic 7800 provides that the eight characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118, are: a scar five or more inches (13 or more cm.(centimeters)) in length; a scar at least one-quarter inch (0.6 cm.) wide at widest part; a scar in which the surface contour is elevated or depressed on palpation; a scar that is adherent to underlying tissue; the skin is shown to be hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); there is underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); or the skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). During the April 2016 VA examination, it was observed that the Veteran had a scar on her neck related to treatment for her thyroid condition, but it was not unstable or painful, 13 centimeters in length or longer, 0.6 centimeters in width or wider, elevated or depressed, or adherent to underlying tissue. The Veteran did not have any areas of skin of the neck that were hypo- or hyperpigmented, that had abnormal texture, that had missing underlying soft tissue, or that were indurated and inflexible related to thyroid or parathyroid disease or their treatment. As such, the Veteran's scar does not meet the requisite criteria for a compensable rating pursuant to DC 7800. See 38 C.F.R. § 4.118, Diagnostic Code 7800. II. Earlier Effective Date If the claim for service connection is received within one year after separation from service, the effective date shall be the day following separation from active service. 38 U.S.C.A. § 5110 (b)(1) (West 2014); 38 C.F.R. § 3.400 (b)(2) (2017). The Veteran contends that because she submitted her claim for systemic lupus within one year after her separation from active service, an effective date of the day following her separation from service is warranted for the grant of service connection for the MCTD. See December 2010 NOD and September 2012 VA Form 9. The Board agrees. Upon VA examination in August 2010, the examiner stated that the Veteran's lupus and MCTD were on a spectrum with each other. She did not have both diseases separately. The examiner indicated that some clinicians (or in time with more features of the disease) may call the Veteran's disease by the other name. Importantly, the Veteran has been claiming entitlement to service connection for the same symptoms, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). VA received the Veteran's claim for service connection for systemic lupus in September 2005. The Veteran separated from active service on August 1, 2005. Thus, under law, the earliest possible effective date for the grant of service connection for MCTD is August 2, 2005, the day following separation from active service. An earlier effective date of August 2, 2005, but no earlier, is warranted for the grant of service connection for MCTD. REMAND The Veteran's service-connected right ear otitis media has been rated as noncompensable under the criteria of 38 C.F.R. § 4.87, DC 6201. Chronic nonsuppurative otitis media with effusion (serious otitis media) is rated for hearing impairment under DC 6201. Chronic otitis externa is rated under DC 6210, which provides for a 10 percent evaluation for symptoms of swelling, dry and scaly or serous discharge, and itching requiring frequent and prolonged treatment. Otitis media is evaluated under either Diagnostic Code 6200 or 6201, depending on whether the otitis media is suppurative. As the Veteran's otitis media is nonsuppurative, for the entire period on appeal, it has been assigned a noncompensable (zero percent) rating under Diagnostic Code 6201, the criteria for evaluation of chronic nonsuppurative otitis media with effusion. Under that Diagnostic Code, the severity of the disability is to be rated based on the level of hearing impairment caused by it. 38 C.F.R. § 4.88. The Veteran was last afforded an ear conditions DBQ in April 2016, which did not evaluate the Veteran's hearing impairment. There is no recent private or VA audiological examination of record; only a VA ear disease examination in August 2010, which did not evaluate the Veteran's hearing impairment, and a March 2006 VA audiology examination, which showed she did not have hearing loss for VA purposes. Given that the Veteran's service-connected right ear otitis media is rated under DC 6201, which instructs that the disability be rated by the severity of the hearing impairment, and the most recent hearing evaluation of record was conducted over 11 years ago, the Board finds that a remand is warranted to provide the Veteran with another VA examination to adequately assess the severity of her service-connected right ear otitis media. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination to determine the current severity of her service-connected chronic nonsuppurative otitis media of the right ear. 2. Readjudicate the appeal. If any benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel Department of Veterans Affairs