Citation Nr: 19166330 Decision Date: 09/03/19 Archive Date: 09/03/19 DOCKET NO. 11-18 991 DATE: September 3, 2019 ORDER Entitlement to an evaluation in excess of 10 percent for post-ablative hypothyroidism (previously classified as Graves’ disease) prior to February 5, 2013 is denied. Entitlement to a 60 percent evaluation for post-ablative hypothyroidism (previously classified as Graves’ disease) from February 5, 2013 to January 20, 2015 is granted subject to the laws and regulations governing the award of monetary benefits. Entitlement to an evaluation in excess of 10 percent for post-ablative hypothyroidism (previously classified as Graves’ disease) from January 21, 2015 to May 19, 2016 is denied. Entitlement to a 100 percent rating for post-ablative hypothyroidism (previously classified as Graves' Disease) from May 20, 2016 is granted subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Prior to February 5, 2013 the Veteran’s post-ablative hypothyroidism was not manifested by constipation and mental sluggishness. 2. From February 5, 2013 to January 20, 2015, the Veteran’s post-ablative hypothyroidism was manifested by fatigability, weight gain and muscular weakness. 3. From January 21, 2015 to May 19, 2016, the Veteran’s post-ablative hypothyroidism was not manifested by fatigability, constipation and mental sluggishness. 4. Since May 20, 2016 the Veteran’s post-ablative hypothyroidism has been manifested by fatigue, constipation, depression, mental sluggishness, slowed thought, weight gain, cold intolerance, and sleepiness. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for post-ablative hypothyroidism (previously classified as Graves' disease) prior to February 5, 2013 were not met. 38 U.S.C. § § § 1155, 5107; 38 C.F.R. § §§ 4.1, 4.3, 4.7, 4.21, 4.119, Diagnostic Code 7903 (2017). 2. The criteria for a 60 percent evaluation for post-ablative hypothyroidism (previously classified as Graves’ disease) from February 5, 2013 to January 20, 2015 have been met. 38 U.S.C. § § § 1155, 5107; 38 C.F.R. § §§ 4.1, 4.3, 4.7, 4.21, 4.119, Diagnostic Code 7903 (2017). 3. The criteria for an evaluation in excess of 10 percent for post-ablative hypothyroidism (previously classified as Graves’ disease) from January 21, 2015 to May 19, 2016 were not met. 38 U.S.C. § § § 1155, 5107; 38 C.F.R. § §§ 4.1, 4.3, 4.7, 4.21, 4.119, Diagnostic Code 7903 (2017). 4. The criteria for a 100 percent evaluation for post-ablative hypothyroidism (previously classified as Graves’ disease) since May 20, 2016 have been met. 38 U.S.C. § § § 1155, 5107; 38 C.F.R. § §§ 4.1, 4.3, 4.7, 4.21, 4.119, Diagnostic Code 7903 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1978 to August 1999. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a March 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2015, the Veteran testified before the undersigned. The Board remanded the case in February 2016 for further development. Following that development, the Board denied the claims in October 2017. The Veteran appealed. In November 2018, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand. The parties agreed that Diagnostic Code 7903 did not involve successive rating criteria but instead implicated 38 C.F.R. § § 4.7. Under that regulation, where there is a question as to which of two ratings shall be assigned, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating than for the lower rating. See 38 C.F.R. § § 4.7. In the October 2017 decision, the Board pointed out that the issue of entitlement to service connection for exophthalmos secondary to Graves’ disease was raised at a February 2013 VA examination, and that the issue of entitlement to service connection for migraine headaches was raised at the October 2015 hearing. The Board referred those issues to the RO. To date no action has been taken. Hence, those matters are again referred for appropriate action. Increased Rating The Veteran maintains that her thyroid disability is more severe than contemplated by the currently assigned ratings. Her thyroid disability is currently rated under 38 C.F.R. § § 4.119, Diagnostic Code 7903 for hypothyroidism. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § § 1155; 38 C.F.R. § § 4.1. The regulations for rating hypothyroidism were revised during the pendency of the Veteran’s appeal. Where the law or regulations governing a claim are changed while the claim is pending, the version most favorable to the claimant applies from the effective date of the change, while the earlier version of the regulation applies prior to the date of change. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Under the regulation in effect prior to December 17, 2017 Diagnostic Code 7903 provided a 10 percent rating for fatigue or continuous medication required for control of hypothyroidism. A 30 percent rating was provided where there was fatigability, constipation and mental sluggishness. A 60 percent rating required muscular weakness, mental disturbance, and weight gain. A 100 percent rating required 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, Diagnostic Code 7903 (2017). Under the regulation in effect since December 17, 2017, Diagnostic Code 7903 provides a 30 percent rating where there is hypothyroidism without myxedema. This rating is in effect for six months after the initial diagnosis. Thereafter, rate residuals of the disease or medical treatment under the most appropriate diagnostic code(s) under the appropriate body system (e.g., eye, digestive, mental disorders). 38 C.F.R. § § 4.119, Diagnostic Code 7903 (2018). A 100 percent rating is assigned where there is hypothyroidism manifesting as myxedema (cold intolerance, muscular weakness, cardiovascular involvement (including, but not limited to hypotension, bradycardia, and pericardial effusion), and mental disturbance (including, but not limited to dementia, slowing of thought and depression)). This evaluation shall continue for six months beyond the date that an examining physician has determined crisis stabilization. Thereafter, the residual effects of hypothyroidism shall be rated under the appropriate diagnostic code(s) within the appropriate body system(s) (e.g., eye, digestive, and mental disorders). Id. The Board finds that the new regulations are not as favorable as the old regulations. This is primarily because the old regulations allowed for awards of 10 and 60 percent, and because after consideration of alternative rating criteria set forth at 38 C.F.R. § § 4.130 (for mental disorders), and 4.114 (stomach disorders), higher ratings would not be assigned. Hence, the Board will apply the former regulation during the entire appellant period. Reasonable doubt as to which rating to assign is resolved in favor of the claimant. 38 C.F.R. § § 4.3. The evaluation of a disability accounts for competent lay evidence. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that a lay person can be observed and described. 38 C.F.R. § § 3.159(a)(2). The Veteran is competent to describe her symptoms as she has experienced them. 38 C.F.R. § § 3.159(a)(2); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran’s hypothyroidism is currently rated 10 percent disabling prior to May 20, 2016, and 60 percent disabling from May 20, 2016. The Veteran began taking levothyroxine, a thyroid hormone replacement medicine, in 1985 after her thyroid was reduced though radioactive iodine in October 1984 because of hyperthyroidism from Graves’ disease. Her medical records show that   except for a six-month period from November 2010 to May 2011 when she deliberately stopped, and briefly again in February 2013, the Veteran takes the medication every day. Her medical records confirm that she must take the levothyroxine to maintain a proper level of thyroid hormone. At a January 2010 VA thyroid examination, the Veteran reported experiencing fatigability, sleepiness, an inability to sleep more than two and a half hours per night, weight gain, cold intolerance, and occasional skipped heart beats. The Veteran denied gastrointestinal problems, tremors, emotional instability, depression, slowing of thought, poor memory, difficulty breathing, and difficulty swallowing. The examiner noted that the Veteran had to take her medication daily to control her hypothyroidism. The examiner recorded that the Veteran had gained 35 pounds during the prior four years. The examiner confirmed the past diagnosis of Grave’s disease and opined that the disorder did not result in an “overall” functional impairment. The examiner did find that the Veteran’s occupational functioning and daily activities were often affected by fatigue. The Veteran was seen at the Atlanta Medical Center in May 2011 where she reported daily symptoms of hypothyroidism which her health care provider deemed mild. Her symptoms included an intolerance to cold and a decreased appetite. She did not report constipation or mental sluggishness. She was diagnosed with stable hypothyroidism and was kept on her medication. A February 5, 2013 VA examination documented the Veteran’s complaints of fatigability, weight gain and muscular weakness, and eye involvement (exophthalmos). The Veteran did not report constipation, mental sluggishness, cold intolerance, or bradycardia. The examiner noted the Veteran’s need for continuous medication for her thyroid condition. A February 2013 private medical assessment recorded that the Veteran said she was often is too tired to eat dinner after coming home from work.   Private medical records from June and August 2013 note complaints of fatigue and feeling completely exhausted. The appellant denied constipation. A private evaluation in August 2014 found intolerance of cold and weight gain. Private medical records from December 2014 note complaints of mild thyroid problems manifested by exophthalmos, and weight gain. At a private examination on January 21, 2015, the Veteran complained of intolerance to cold. She did not complain of fatigue, generalized weakness, weight gain, dyspnea, coarse hair, heat intolerance, or hair loss. There was no evidence of muscle weakness or mental disturbance. While she was found to require continuous medication to control her thyroid condition, her symptoms were deemed mild. A review of private medical records prepared in January 2015 reveals complaints of daily headaches and cold intolerance. At the October 2015 hearing before the undersigned, the Veteran testified that she had gained weight and was experiencing both fatigability and mental sluggishness. A VA examination was performed on May 20, 2016. The examiner confirmed that the Veteran had hypothyroid endocrine dysfunction as residual following her 1984 treatment with radioactive iodine for Graves’ disease. The examiner recorded the Veteran’s complaints of cold intolerance, fatigability, constipation, depression, sleepiness, cold intolerance and mental sluggishness. The examiner described the Veteran’s heart rate during the examination as normal. The examination report recorded the appellant’s statement that she was starting to withdraw socially. Based on the evidence of record, the Board finds that the preponderance of the evidence is against entitlement to a rating in excess of 10 percent prior to February   5, 2013. In this regard, the January 2010 VA examination showed only one of the three required symptoms for a 30 percent rating, i.e., fatigue. The May 2011 private examination showed none of the required symptoms. There was no evidence of constipation or mental sluggishness. While the appellant also reported sleepiness, weight gain, cold intolerance, and occasional skipped heart beats, and while some of those symptoms are pertinent to ratings higher than 30, at no time did the evidence raise a question as to which of two ratings shall be assigned, that is, at no time did the symptoms more closely align with a rating higher than 10 percent. Hence, as only one of the three elements necessary for a 30 percent rating was shown in January 2010, those findings preponderate against assigning a higher rating. Given that the February 5, 2013 examination noted symptoms of fatigability, weight gain and muscular weakness, and eye involvement (exophthalmos); and given that a 60 percent rating requires muscle weakness, mental disturbance and weight gain, the Board will use the provisions of 38 C.F.R. § § 4.7 to assign a 60 percent rating effective February 5, 2013. There is no evidence, however, showing that most of the symptoms required for a 100 percent rating were shown at the February 5, 2013 examination. Specifically, there was no evidence of cardiovascular involvement, bradycardia or mental disturbance. Accordingly, a rating in excess of 60 percent is not in order. Significantly, the January 21, 2015 examination revealed none of the symptoms required for even a 30 percent rating. That is, while the appellant complained of intolerance to cold. She did not complain of fatigue, constipation, or mental sluggishness. Further, there was no evidence of muscle weakness, any mental disturbance, and she specifically denied weight gain. Hence, she was found to require continuous medication to control her thyroid condition, her symptoms were deemed mild, and they warranted no more than a 10 percent rating even after considering the provisions of 38 C.F.R. § § 4.7. Finally, when examined on May 20, 2016, the claimant reported complaints of cold intolerance, fatigability, constipation, depression, sleepiness, slowing of thought, mental sluggishness, a need for continuous medication, and weight gain. While the appellant’s heart rate was normal, and while there was no evidence of muscle weakness the Board will resolve reasonable doubt and assign a 100 percent rating from this date. In reaching the above decisions the Board considered the doctrine of reasonable doubt, however, except to the extent indicated the preponderance of the evidence is against the claim, and the doctrine is not applicable. 38 U.S.C. § § 5107. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Pitts, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § § 20.1303.