Citation Nr: 1805650	
Decision Date: 01/29/18    Archive Date: 02/07/18

DOCKET NO.  14-35 707	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newington, Connecticut


THE ISSUE

Entitlement to an initial disability rating in excess of 10 percent for Hashimoto's disease (hypothyroidism) prior to March 25, 2015, to a rating in excess of 30 percent prior to August 18, 2015. 

REPRESENTATION

Veteran represented by:	Massachusetts Department of Veterans Services


WITNESSES AT HEARING ON APPEAL

The Veteran, his wife, and his son


ATTORNEY FOR THE BOARD

S. M. Stedman, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1953 to March 1955.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 201 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newington, Connecticut which awarded service connection for Hashimoto's disease and assigned an initial 10 percent rating, effective January 28, 2012.  During the pendency of this appeal, this rating was increased to 30 percent, effective Mach 25, 2015, and then increased to 100 percent, effective August 18, 2015.  As the 30 percent increase does not represent a full grant of benefits sought on appeal as concerning this issue, the claim for an increased disability rating for Hashimoto's disease prior to August 18, 2015 remains pending before the Board.  See A.B. v. Brown, 6 Vet. App., 35, 39 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise).

Following an August 2015 remand, the Veteran, his wife, and his son testified at an October 2016 hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the claims file.

In February 2017, the Board remanded this matter for further development.  That development having been completed, this matter has returned to the Board for further appellate review.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).




FINDING OF FACT

Throughout the entire appellate period prior to August 18, 2015, the Veteran's Hashimoto's disease has been manifest by muscular weakness, mental disturbance, and weight gain.


CONCLUSION OF LAW

Prior to August 18, 2015, the criteria for entitlement to an initial rating of 60 percent, but not higher, for Hashimoto's disease have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.119 Diagnostic Code 7903 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Increased Ratings

VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities.  See 38 U.S.C. § 1155 (2012); 38 C.F.R., Part IV (2017).  Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment.  38 C.F.R. § 4.10.  The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability.  Id.  

The Schedule assigns Diagnostic Codes to individual disabilities.  Diagnostic Codes provide rating criteria specific to a particular disability.  If two Diagnostic Codes are applicable to the same disability, the Diagnostic Code that allows for the higher disability rating applies.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant.  38 C.F.R. § 4.3.  The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different Diagnostic Codes-a practice known as pyramiding-is prohibited.  Id.; see 38 C.F.R. § 4.14.

Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent they are sufficient to warrant changes in the evaluations assignable under the applicable rating criteria.  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).  As is the case here, in initial-rating cases, where the appeal stems from a rating decision granting service connection with respect to the initial evaluation assigned the disability at issue, VA assess the level of disability from the effective date of service connection.  Fenderson v. West, 12 Vet. App. 119, 125 (1999); 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017).

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant).  When the evidence supports the claim or is in relative equipoise, the claim will be granted.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2015).  If the preponderance of the evidence weighs against the claim, it must be denied.  See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

In this case, the Veteran's Hashimoto's disease is rated as 10 percent disabling prior to March 25, 2015, 30 percent disabling prior to August 18, 2015, and as 100 percent disabling thereafter under Diagnostic Code 7999-7903.  See November 2017 Rating Decision.  See also 38 C.F.R. § 4.119.  See, too 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the 


evaluation assigned; the additional code is shown after the hyphen).  Diagnostic Code 7203 refers to hypothyroidism.  38 C.F.R. § 4.119.  Diagnostic Code 7999 refers to an unlisted disability of the endocrine system.

Under Diagnostic Code 7903 (hypothyroidism), a 100 percent rating requires symptoms of cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness.  A 60 percent rating requires symptoms of muscular weakness, mental disturbance, and weight gain.  A 30 percent rating requires symptoms of fatigability, constipation, and mental sluggishness.  A 10 percent rating requires symptoms of fatigability, or; continuous medication required for control.  Id.

It is important to note that the rating criteria for Diagnostic Code 7903 are not conjunctive, cumulative, or successive.  See Tatum v. Shinseki, 23 Vet. App. 152 (2009).  A claimant need not exhibit every specific symptom associated with the criteria to substantiate a higher evaluation under Diagnostic Code 7903.  The rating should be assigned in accordance with the criteria more nearly approximated by the disability picture.  See 38 C.F.R. § 4.7.  

It is also important to note that the Schedule provides no guidance as to the intended difference between the "slowing of thought" characteristic of a 100 percent rating and the "mental sluggishness" characteristic of a 30 percent rating.  The Board observes that the rating schedule provides a variety of symptoms at each rating level, and the existence of any single symptom listed under a certain rating level is not alone sufficient to substantiate that rating.  Consistent with 38 C.F.R. § 4.7, the Board must balance the symptomatology present at all rating levels to arrive at the most appropriate rating.

An April 2012 treatment record from Southbury Primary Care showed that the Veteran reported no change in his hypothyroidism.  He was currently asymptomatic.  He denied any constipation and he was not fatigued.  He weighed 232 pounds and his heart rate was 76.

On VA examination in February 2013, it was noted that the Veteran was taking medication for his thyroid.  He was euthyroid on medication.

In a March 2013 letter, Dr. Ott of Southbury Primary Care stated that he had been treating the Veteran for his chronic medical issues and in the past few years he had at times complained of fatigue, constipation, and sluggishness.

On VA examination in January 2014, the Veteran reported that over the years he had some fatigue and constipation and that his gerontologist said it could be due to his hypothyroidism.  He reported that overall he had been very stable on synthroid over the last few years.  His heart rate was 68.  The VA examiner reviewed the March 2013 letter from Dr. Ott, but noted that the Veteran's TSH was well within the normal limits arguing against his condition being symptomatic.  Furthermore, the VA examiner noted that the Veteran was 83 years old with other medical comorbidities, and that fatigue and constipation can be caused by a large number of other conditions, including many medications that the Veteran was currently taking such as propranolol, tramadol, simvastatin, citalopram and hydrocodone. Given that TSH level is normal, the examiner concluded that it was less likely as not that the Veteran's current symptoms were related to hypothyroidism.

Treatment records from Vascular Surgery dated from March 2013 to October 2014 noted that the Veteran denied fatigue, weakness, and abnormal weight gain.  

Additional treatment records from Southbury Primary care dated from February 2012 to October 2012 show that the Veteran denied experiencing fatigue.  See Treatment records dated February 8, April 24, and October 18, 2012.  In November 2012, he complained of fatigue and depression, but the then again denied fatigue in December 2012 and March 2013.  See Treatment records dated November 16 and December 14, 2012, and March 27, 2013.  In April 2013, he complained of weakness, fatigue, and recent weight gain.  See Treatment record dated April 3, 2013.  In June 2013, he reported fatigue and a 20 pound weight gain during the past year.  See Treatment record dated June 11, 2013.  In February 2014, the Veteran reported fatigue which had been going on for a while.  Associated symptoms included poor sleep, anxiety and depression, but no impaired concentration, no irritability, no recent weight gain, no change in bowel
habits, no irregular heartbeat, no weakness, and no heat or cold intolerance.  It was noted that the Veteran was being seen for follow-up of hypothyroidism and that he was currently asymptomatic.  See Treatment record dated February 7, 2014.  In August 2014, it was noted that the Veteran continued to have issues with fatigue.  See Treatment record dated August 29, 2014.  In December 2014, it was noted that the Veteran was being seen for follow-up of anemia.  The listed symptoms of anemia included fatigue, but no weakness and no palpitations.  

The treatment records from Southbury Primary Care dated from February 2012 to August 2014 repeatedly recorded findings of no muscle weakness.  In September 2014, it was noted that the Veteran had generalized muscle weakness.  See Treatment record dated September 25, 2014.  From February 2012 to August 2014, the Veteran's weight and heart rate were recorded as follows:  238 pounds and 74 beats per minute in February 2012; 232 pounds and 76 beats per minute in April 2012; 245 pounds and 64 beats per minute in October 2012; 248 pounds and 74 beats per minute in November 2012; 248 pounds and 78 beats per minute in December 2012; 248 pounds and 80 beats per minute in April 2013; 251 pounds and 70 beats per minute in June 2013; 240 pounds and 72 beats per minute in July 2013; 242 pounds and 86 beats per minute in May 2014; 247 pounds and 88 beats per minute and 249 pounds and 80 beats per minute in June 2014; 238, 243, 240, and 245 pounds and 88 and 84 beats per minute in August 2014.

The treatment records from Southbury Primary Care show that the Veteran was taking Senna for afternoon constipation beginning in April 2012.  See Treatment record, dated April 24, 2012.  He was prescribed Cymbalta for depression in November 2012.  See Treatment record, dated November 16, 2012.  In conjunction with his treatment for depression in December 2012, it was noted that he had insomnia.  See Treatment record, dated December 14, 2012.  



A February 10, 2014 record from Danbury Hospital stated that it looked as though the Veteran was on too much thyroid medication.  It was very slightly off, and he would ne rechecked in six weeks.  On March 19, 2014, it was noted that his thyroid medication would be reduced from 175 to 150 a day.

In February 2015, the Veteran provided literature indicating that Dr. David Derry, a renowned physician in Canada, found that the TSH lab result was thoroughly unrelated to how patients feel.  

On VA examination in March 2015, it was noted that the Veteran endorsed continued fatigue and constipation symptoms.  His heart rate was 68.  

An August 2015 e-mail from a private physician, Dr. Trock, MD, opined that the Veteran's symptomatology of muscular weakness, fatigability, sleepiness, depression, constipation, and cold intolerance were likely related to his hypothyroidism.  See August 2015 E-mail Correspondence.  The Veteran's treatment records from Dr. Trock, dated in 2014, are of record.  These records show that he treated the Veteran for giant cell arteritis.  

An August 2015 letter from a different private physician, Dr. Ott, stated that he had been one of the Veteran's doctors over the preceding few years.  See August 2015 Southbury Geriatric Letter.  Dr. Ott stated that the Veteran's hypothyroidism has a history of manifesting in fatigability, weakness, depression, constipation, cardiovascular involvement, cold intolerance, and mental dullness.  Id.

An October 2016 letter from a private physician, Dr. Marquis, stated that the physician has treated the Veteran for over 20 years.  See October 2016 Beth Israel Deaconess Healthcare Letter.  Dr. Marquis further stated that hypothyroidism can cause intermittent and persistent fatigue, weight gain, and constipation.  Id.

In October 2016, the Veteran testified to experiencing several symptoms of hypothyroidism, including sleepiness, cold intolerance, constipation, muscle aches and tenderness, weight gain, and depression.  See October 2016 Hearing Transcript.

On VA examination in June 2017, the Veteran reported that depression treatment started approximately five years ago with citalopram, that he had increased fatigue and worsening constipation since 2015, that he had muscular weakness in the past one to two years, that his weight had increased from 244 to 258 pounds over the past two years, and that he had tiredness/fatigue and felt like he wanted to sleep all the time.  

Upon review of the evidence, prior to August 18, 2015, the Veteran's hypothyroidism was not manifested by symptoms of cold intolerance, cardiovascular involvement, or bradycardia.  While Dr. Trock and Dr. Ott stated in August 2015 that the Veteran's symptoms of cold intolerance and cardiovascular involvement were related to his hypothyroidism, the Veteran's private treatment records dated prior to August 2015 reveal no complaints or findings of cold intolerance or cardiovascular involvement.  The Board finds these contemporaneous treatment records to be probative.  Thus, the Board finds that the preponderance of the evidence is against entitlement to a 100 percent rating for the Veteran's hypothyroidism at any time prior to August 18, 2015.

With respect to the criteria for a 60 percent rating, the Veteran complained of and was prescribed medication for depression in November 2012.  In April 2013, he complained of weakness and recent weight gain.  In June 2013, he reported fatigue and a 20 pound weight gain during the past year.  In September 2014, it was noted that the Veteran had generalized muscle weakness.  Upon review of the evidence, the Veteran's weight is shown to have increased from 238 pounds in February 2012 to as high as 249 pounds in June 2014.  As such, the Board finds that the evidence supports a finding of muscular weakness, mental disturbance, and weight gain prior to August 18, 2015.  Accordingly, the criteria for a 60 percent rating are met for the entire appellate period prior to August 18, 2015.  



In sum, the Board finds that prior to August 18, 2015, the criteria for a 60 percent disability rating, but not higher, are more nearly approximated by this disability picture under Diagnostic Code 7903.  38 C.F.R. § 4.119.


ORDER

Entitlement to an initial disability rating of 60 percent for hypothyroidism is granted, subject to the laws and regulations governing payment of benefits.



____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs