Citation Nr: 18147031 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-34 001 DATE: November 2, 2018 ORDER Entitlement to an initial rating in excess of 10 percent for hypothyroidism is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's hypothyroidism has been manifested by fatigability and has required continuous medication for control, but has not been manifested by constipation or mental sluggishness. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for hypothyroidism have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code 7903. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 2008 to January 2014. The Veteran was previously represented by a private attorney who withdrew from representation of the Veteran in April 2018. In September 2018, the Board sent the Veteran a letter asking if she wanted to appoint a new representative. The Veteran did not submit a VA Form 21-22 to appoint a new representative and is therefore currently unrepresented. In an April 2018 letter, the Veteran’s former representative indicated that a withdrawal of the claim for an increased rating for hypothyroidism was requested. Because the April 2018 letter did not include a written withdrawal from the Veteran, the Board sent her a letter in September 2018 asking that she clarify her intentions with respect to withdrawal the appeal. The Board's letter informed the Veteran that if she did not respond within 30 days, the Board would assume she did not want to withdraw her appeal. The Veteran has not responded, so the Board will proceed with adjudication of the claim. Entitlement to an initial rating in excess of 10 percent for hypothyroidism Disability evaluations (ratings) are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for the disability is disputed, separate or "staged" evaluations may be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2008). In other cases, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In both claims for an increased rating on an original claim and an increased rating for an established disability, only the specific criteria of the Diagnostic Code are to be considered. Massey v. Brown, 7 Vet. App. 204, 208 (1994). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. An April 2014 rating decision granted service connection for hypothyroidism and assigned a 10 percent rating from January 2014. The Veteran's hypothyroidism has been evaluated under 38 C.F.R. § 4.119, Code 7903. Under that diagnostic code, a 10 percent rating is warranted for fatigability, or; where continuous medication is 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. 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. Service treatment records reflect diagnoses of hypothyroidism, which was treated with Synthroid. The Veteran had a VA examination in August 2015. The Veteran reported treatment with Synthroid. The Veteran reported that her thyroid medication had been increased. There were no other changes. There was no indication of tachycardia, palpitations, or atrial fibrillation. The Veteran’s symptoms included fatigability, sleepiness, and cold intolerance. The examination indicated that the Veteran did not have symptoms of constipation, mental sluggishness, or weight gain attributable to hypothyroidism. The examiner indicated that the Veteran’s thyroid condition did not affect her ability to work. VA treatment records reflect a diagnosis of hypothyroidism on Synthroid. VA treatment records dated in March 2015 reflect that the Veteran participated in the MOVE program with a reduction of her weight. A November 2016 VA outpatient record shows that the Veteran reported that she gained some weight. A physician recommended labs and participation in the MOVE program. The evidence indicates that the Veteran's hypothyroidism has been manifested by fatigue, sleepiness, and cold intolerance and requires continuous medication. The evidence does not show evidence of constipation and mental sluggishness due to hypothyroidism. The Veteran complained of some weight gain during the appeal period, but did not have muscular weakness or mental disturbance due to hypothyroidism. Accordingly, the Board finds that the Veteran's symptomatology does not more nearly approximate the criteria for an initial rating in excess of 10 percent. 38 C.F.R. § 4.119, Diagnostic Code 7903. The benefit of the doubt rule has been considered in reaching this decision. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Catherine Cykowski