Citation Nr: 18160219 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 16-57 350 DATE: December 26, 2018 ORDER Entitlement to a rating of 100 percent for hypothyroidism, status post (SP) thyroidectomy with residual surgical scar (hereinafter “hypothyroidism”), prior to August 30, 2016, is granted. FINDING OF FACT For the period prior to August 30, 2016, the Veteran’s hypothyroidism was manifested by mental disturbance, muscular weakness, cold intolerance, bradycardia, and sleepiness. CONCLUSION OF LAW The criteria for a rating of 100 percent for hypothyroidism have been met prior to August 30, 2016. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.119, Diagnostic Code 7903 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps (USMC) from September 1978 to March 1994. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. A review of the record shows that in a September 2016 rating decision, the Veteran was assigned a 100 percent rating for his hypothyroidism, effective August 30, 2016. That does not constitute a complete grant of the benefit sought on appeal; however, the Board has limited its consideration accordingly. Increased Rating - Hypothyroidism The Veteran has asserted that he should have a higher rating for his hypothyroidism as his symptoms are worse than those contemplated by the currently assigned rating. The Veteran seeks a rating in excess of 60 percent for hypothyroidism, prior to August 30, 2016. A 100 percent evaluation is currently effective from August 30, 2016, the date of a VA examination report pertaining to the Veteran’s hypothyroidism. As such, this analysis will focus on the period prior to August 30, 2016. The Veteran’s hypothyroidism is evaluated under Diagnostic Code 7903. 38 C.F.R. § 4.119 (2016). The Board observes that Diagnostic Code 7903 was amended, effective December 10, 2017, (see Fed. Reg., 82 FR 50802 (November 2, 2017)). However, the focus of the increased rating claim in the present appeal is prior to August 30, 2016. The amendments to the regulations at issue in the present case cannot be construed to have retroactive effect unless their language requires that result. Kuzma v. Principi, 341 F.3d 1327, 1328-1329 (2003) (citing Landgraf v. USI Film Prods., 511 U.S. 244 (1994)). Here, there is no such language in the amendments, and as such, the Board will continue to apply the former rating criteria. Under 38 C.F.R. § 4.119, Diagnostic Code 7903, a 60 percent rating is warranted for hypothyroidism manifested by muscular weakness, mental disturbance, and weight gain. A 100 percent rating is warranted for hypothyroidism manifested by cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. The United States Court of Appeals for Veterans Claims (Court) has addressed the specific application of the rating criteria for Diagnostic Code 7903. The Court found that all of the symptoms listed for a particular disability rating were not required to be demonstrated in order to establish entitlement to a higher disability rating. See Tatum v. Shinseki, 23 Vet. App. 152, 155 (2009). The Court further noted that symptoms that meet some of the rating criteria should be considered in light of 38 C.F.R. § 4.7 and resolved based on the evidence of record. The Court also stated that the rating criteria for Diagnostic Code 7903 are not successive. Tatum, 23 Vet. App. at 155. A claimant could potentially establish all of the criteria required for a 30 percent or 60 percent rating without establishing any of the criteria for a lesser disability rating. Id. at 156. Turning to the evidence of record, of record is a June 2013 VA treatment record indicating that the Veteran reported it was hard to sleep because of pain and felt tired during the day. He denied having joint or muscle pain, and denied weight loss. The Veteran was afforded a VA examination for his hypothyroidism disability in March 2014. At that time, the Veteran reported fluctuating weight, hair loss, low energy, weakness, memory issues, aches and pains, difficulty swallowing, sharp pain in his ankles, and constant pain in his elbow. The Veteran was noted to take daily medication for his disability. He had a straight, stable, smooth, and symmetric gait. He did not receive radioactive iodine treatment for a thyroid condition. The examiner found the Veteran had the following symptoms: fatigability; fluctuating weight, with stable weight over the previous 2 years; hair loss; low energy; daily weakness; daily memory issues; aches and pains; difficulty swallowing; mental sluggishness; slowing of thought; and muscular weakness. The examiner noted the Veteran’s continuous medication and surgery for the disability. The Veteran had a regular pulse of 84, and blood pressure of 178/94. In his March 2015 Notice of Disagreement (NOD), the Veteran endorsed the following symptoms: cold intolerance, resulting in being constantly cold and wearing long sleeves even during the summer; cardiovascular involvement where the Veteran had an operation to insert a stent into his chest as a result of a heart condition; and bradycardia. A review of the record shows that the Veteran receives treatment at the VA Medical Center and from private providers for various disabilities, to include his hypothyroidism disability. A review of the treatment notes of record does not show that the Veteran has had symptoms of his hypothyroidism disability that are worse than those reported at his VA examinations. After consideration of the lay and medical evidence of record, the Board finds that the Veteran is entitled to a 100 percent rating for hypothyroidism prior to August 30, 2016. Since the inception of the claim, the VA examinations and various lay statements submitted have noted complaints and documentation of cold intolerance and sleepiness. The Veteran subjectively, but competently, reported mental disturbance (mental sluggishness and slowing of thought), as well as daytime fatigue, and bradycardia. Additionally, the March 2014 VA examination reflected low energy, mental disturbances, and muscle weakness that were attributed to the Veteran’s hypothyroidism. Thus, resolving reasonable doubt in the Veteran’s favor, the Veteran’s disability picture, to include the severity, frequency, and duration of his symptoms, and the resulting impairment of cold intolerance, sleepiness, mental disturbance, bradycardia, and muscular weakness, is more consistent with a 100 percent rating. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a rating of 100 percent for hypothyroidism disability is warranted for the period prior to August 30, 2016. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code 7903. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Marian N. Sim, Associate Counsel