Citation Nr: 1827683 Decision Date: 05/02/18 Archive Date: 05/14/18 DOCKET NO. 18-16 956 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an earlier effective date prior to October 19, 2012 for a grant of service connection for multinodular thyroid and Hashimoto's thyroiditis. 2. Entitlement to an earlier effective date prior to October 19, 2012 for a grant of service connection for pseudophakia, status-post posterior subcapsular cataract removal. 3. Entitlement to a compensable rating for multinodular thyroid and Hashimoto's thyroiditis. 4. Entitlement to a compensable rating for pseudophakia, status-post posterior subcapsular cataract removal. REPRESENTATION Appellant represented by: Raza S. Mahmood, Attorney ATTORNEY FOR THE BOARD Paul J. Bametzreider, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1943 to August 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. 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). FINDINGS OF FACT 1. In an August 2010 decision, the Board denied entitlement to service connection for multinodular thyroid and Hashimoto's thyroiditis. The Veteran did not appeal that determination. 2. In an August 2010 decision, the Board denied entitlement to service connection for pseudophakia, status-post posterior subcapsular cataract removal. The Veteran did not appeal that determination. 3. There is no communication or document in the claims file prior to October 19, 2012 that can be construed as a request to reopen the claim of entitlement to service connection for multinodular thyroid and Hashimoto's thyroiditis. 4. There is no communication or document in the claims file prior to October 19, 2012 that can be construed as a request to reopen the claim of entitlement to service connection for pseudophakia, status-post posterior subcapsular cataract removal. 5. The Veteran's service-connected multinodular thyroid and Hashimoto's thyroiditis has not been manifested by fatigability, constipation, mental sluggishness, muscular weakness, mental disturbance, weight gain, cold intolerance, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 heart beats per minute), or sleepiness, and has not required continuous medication for control. 6. The Veteran's pseudophakia, status-post posterior subcapsular cataract removal has not been manifested by corrected distance visual acuity less than 20/40 in either eye. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than October 19, 2012, for the grant of service connection for multinodular thyroid and Hashimoto's thyroiditis have not been met. 38 U.S.C. §§ 5107, 5108, 5110 (2012); 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400 (2017). 2. The criteria for an effective date earlier than October 19, 2012, for the grant of service connection for pseudophakia, status-post posterior subcapsular cataract removal have not been met. 38 U.S.C. §§ 5107, 5108, 5110 (2012); 38 C.F.R. §§ 3.102, 3.155, 3.400 (2017). 3. The criteria for an initial compensable disability rating for hypothyroidism have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.119, Diagnostic Code (DC) 7903 (2017). 4. The criteria for an initial compensable disability rating for pseudophakia, status-post posterior subcapsular cataract removal have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.71a, 4.75, 4.76, 4.79, 4.84a, DCs 6027, 6066, 6080, 6081, 6090, 6091 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Earlier effective dates The Veteran asserts that he is entitled to an effective date prior to October 19, 2012 for the grants of service connection for multinodular thyroid and Hashimoto's thyroiditis and pseudophakia, status-post posterior subcapsular cataract removal. Specifically, he asserts that the effective date should be the date of his initial claim for service connection for those conditions. The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. The provisions of 38 C.F.R. § 3.400 (b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within one year after separation from service. A "claim" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1 (p). "Date of receipt" of a claim, information, or evidence means the date on which a claim, information, or evidence was received by VA. See 38 C.F.R. § 3.1 (r). Any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim. See 38 C.F.R. § 3.155 (b) (2017). The service connection claims at issue relating to multinodular thyroid and Hashimoto's thyroiditis and pseudophakia, status-post posterior subcapsular cataract removal were each denied by a Board decision prior to the current effective date. The Veteran did not appeal the relevant Board decision to the United States Court of Appeals for Veterans Claims (Court), so it is final. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. Consequently, the effective date of the grants of entitlement to service connection for multinodular thyroid and Hashimoto's thyroiditis and pseudophakia, status-post posterior subcapsular cataract removal will be no earlier than the date a request to reopen those claims was received, subsequent to the final Board decision. 38 C.F.R. § 3.400 (q)(2), (r). The Board finds that VA did not receive an application to reopen claims for service connection for multinodular thyroid and Hashimoto's thyroiditis and pseudophakia, status-post posterior subcapsular cataract removal between the August 2010 Board decision and October 19, 2012. Moreover, the Veteran and his representative have not identified any such claim. There is no document of record that can be construed as an informal or formal claim for service connection for multinodular thyroid and Hashimoto's thyroiditis and pseudophakia, status-post posterior subcapsular cataract removal prior to the receipt of the October 19, 2012 claim. The Board notes that the effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See LaLonde v. West, 12 Vet. App. 377, 382-383 (1999). The Board is precluded by law from assigning an effective date prior to October 19, 2012, for the grants of service connection for multinodular thyroid and Hashimoto's thyroiditis, and pseudophakia, status-post posterior subcapsular cataract removal. Accordingly, the preponderance of the evidence is against the claim for an effective date prior to prior to October 19, 2012 for the awards of service connection for such disabilities. As such, the claim for an earlier effective date must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased rating for multinodular thyroid and Hashimoto's thyroiditis The Veteran contends that his service-connected multinodular thyroid and Hashimoto's thyroiditis warrants a compensable rating. A noncompensable initial evaluation was assigned effective October 19, 2012, and the Veteran appealed from that initial rating. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation 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. The Veteran's multinodular thyroid and Hashimoto's thyroiditis has been rated under 38 C.F.R. § 4.119, DC 7903. Under DC 7903, a 10 percent disability rating is warranted for fatigability or where continuous medication is required for control. A 30 percent disability rating is warranted for fatigability, constipation, and mental sluggishness. A 60 percent disability rating is warranted for muscular weakness, mental disturbance, and weight gain. A 100 percent disability rating is warranted for cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 heart beats per minute), and sleepiness. At an August 2017 VA thyroid examination, the examiner reported that the Veteran had not undergone any treatment for his thyroid condition. No symptoms were reported to be attributable to hypothyroidism or hyperthyroidism, and there was no functional impairment associated with the thyroid condition. The Veteran has argued that his thyroid condition produces fatigue, and that a new VA examination is necessary to address whether his fatigue is related to the thyroid disorder. July 2016 through September 2016 private treatment records and numerous VA treatment records do support that the Veteran has suffered from fatigue. This symptom has generally been attributed to causes other than a thyroid disorder, such as poor sleep. See, e.g., December 2013 VA treatment record. Other relevant symptoms reported by the treatment records include cold intolerance and anxiety. See December 2015 VA treatment record. However, the evidence of record shows that such symptoms are not attributable to the Veteran's thyroid disorder. In this regard, the August 2017 VA examiner specifically indicated that the Veteran's thyroid disorder was not productive of any symptoms or functional impairment. The Board finds that examination report to be adequate as it reflects a complete review of the record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008). While the Veteran is competent to describe certain observed and experienced symptomatology such as fatigue when made in support of a claim of entitlement to a higher rating, Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); his lay statements are not entitled to more weight than the objective findings rendered by trained medical professionals. See 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). While the Board has considered the Veteran's contentions, he is not competent to establish, on the basis of his own lay assertions, that his symptoms of fatigue, cold intolerance or anxiety are attributable to his thyroid disorder, or that his disability warrants a specific rating. Therefore the Board finds that the report of the August 2017 VA examiner is the most probative evidence of record as to this issue. Based on the foregoing, the weight of the evidence is against finding that the Veteran's multinodular thyroid and Hashimoto's thyroiditis were manifested by fatigability, constipation, mental sluggishness, muscular weakness, mental disturbance, weight gain, cold intolerance, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 heart beats per minute), or sleepiness, or that such disorders have required continuous medication for control. Therefore, the claim for a higher rating must be denied. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased rating for pseudophakia, status-post posterior subcapsular cataract removal The Veteran contends that his service-connected pseudophakia, status-post posterior subcapsular cataract removal warrants a compensable rating. A noncompensable initial evaluation was assigned effective October 19, 2012, and the Veteran appealed from that initial rating. Under DC 6027, preoperative cataracts and postoperative cataracts with a replacement lens (pseudophakia) are evaluated based on visual impairment; postoperative cataracts without a replacement lens are evaluated based on aphakia. 38 C.F.R. § 4.79. In this case, the Veteran's cataracts are postoperative with replacement lenses and his disability will be evaluated based on visual impairment. Evaluation of visual impairment is to be rated based on the consideration of three factors: (1) impairment of visual acuity (excluding developmental errors of refraction), (2) visual fields, and (3) eye muscle function. 38 C.F.R. § 4.75. However, examinations of visual fields or muscle function will be conducted only when there is a medical indication of disease or injury that may be associated with visual field defect or impaired muscle function. Impairment of visual acuity is determined based on the best corrected distance vision obtainable. 38 C.F.R. § 4.76 (a)(b). Under DC 6066, a noncompensable rating is assigned when corrected visual acuity is 20/40 or better in each eye. 38 C.F.R. 4.79. A 10 percent rating is assigned for impairment of central visual acuity in the following situations: (1) when the corrected visual acuity is 20/50 in one eye and 20/40 in the other eye; (2) when vision in both eyes is correctable to 20/50; (3) when vision in one eye is correctable to 20/70 and vision in the other eye is correctable to 20/40; or (4) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/40. 38 C.F.R. § 4.79, DC 6066. At a September 2017 VA eye examination, the Veteran was reported to exhibit 20/40 corrected distance vision or better in both eyes. There was no reported contraction or loss of visual field or impairment of muscle function. The VA treatment records also contain numerous measurements of the Veteran's visual acuity. However, such records do not indicate that his corrected distance vision was worse than 20/40 in either eye. This medical evidence preponderates against finding that the Veteran's corrected distance vision was worse than 20/40 in either eye. The Veteran's representative has argued that the disability should be assessed based on uncorrected vision. As previously noted, 38 C.F.R. § 4.76 (a)(b) expressly stipulates that visual acuity will be measured based on corrected distance vision. Therefore, the law does not provide for an increased rating based on the Veteran's uncorrected vision. The representative also argues that the Veteran's vision is corrected with an inorganic device which is analogous to a prosthetic device as contemplated under 38 C.F.R. § 4.71a pertaining to disabilities of the musculoskeletal system. However, the Veteran's pseudophakia is expressly contemplated by 38 C.F.R. § 4.79 which provides that the disability will be evaluated based on visual impairment. Therefore, no higher rating is warranted based on analogy to a disability of the musculoskeletal system. The Board has considered whether a higher rating may be assigned based on impairment of visual fields or muscle function, but finds that the probative evidence does not support a finding of visual field loss or impaired muscle function. Therefore, those DCs pertaining to visual field loss are not for application. See 38 C.F.R. § 4.79, DCs 6080, 6081, 6090, 6091. Given the foregoing, the evidence of record preponderates against finding that the Veteran's pseudophakia, status-post posterior subcapsular cataract removal has been manifested by corrected distance visual acuity less than 20/40 in either eye. Therefore, the claim for a higher rating must be denied. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to an effective date prior to October 19, 2012 for the grant of service connection for multinodular thyroid and hashimoto's thyroiditis is denied. Entitlement to an effective date prior to October 19, 2012 for the grant of service connection for pseudophakia, status-post posterior subcapsular cataract removal is denied. Entitlement to a compensable rating for multinodular thyroid and hashimoto's thyroiditis is denied. Entitlement to a compensable rating for pseudophakia, status-post posterior subcapsular cataract removal is denied. ____________________________________________ J. Schulman Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs