Citation Nr: 20068942 Decision Date: 10/26/20 Archive Date: 10/26/20 DOCKET NO. 15-04 300 DATE: October 26, 2020 ORDER Entitlement to an initial rating of 30 percent for hypothyroidism prior to December 10, 2017 is granted. Entitlement to a rating in excess of 30 percent for hypothyroidism is denied. REMANDED Entitlement to a separate evaluation for cold and numbness of the hands and feet is remanded. FINDING OF FACT The Veteran’s hypothyroidism requires continuous medication and is manifested by fatigability and constipation. CONCLUSIONS OF LAW 1. The criteria for a rating of 30 percent prior to December 10, 2017 for service-connected hypothyroidism have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, DC 7903. 2. The criteria for a rating in excess of 30 percent for service-connected hypothyroidism has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, DC 7903. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1988 to April 1994. In September 2019, the Board remanded the case for further development, which has not been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 1. Hypothyroidism The Veteran filed a claim on June 8, 2011 for hypothyroidism. A July 2012 rating decision granted service connection at rating of 10 percent effective the date of claim and an August 2020 rating decision increased the rating to 30 percent effective December 10, 2017. The Veteran has perfected an appeal with the disability evaluations assigned. The Veteran's hypothyroidism is rated under Diagnostic Code 7903. Under the current version of Diagnostic Code 7903, effective December 10, 2017, a 100 percent rating is assigned for 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)) for a period of six months after an examiner has determined the condition is stabilized. Note (1) appending the 100 percent criteria states that 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). A 30 percent rating is assigned for hypothyroidism without myxedema. Note (2) appending the 30 percent criteria states that this evaluation shall continue for six months after initial diagnosis. Thereafter, rate residuals of disease or medical treatment under the most appropriate diagnostic code(s) under the appropriate body system (e.g., eye, digestive, mental disorders). Note (3) states that if eye involvement, such as exophthalmos, corneal ulcer, blurred vision, or diplopia, is also present due to thyroid disease, also separately evaluate under the appropriate diagnostic code(s) in §4.79, Schedule of Ratings Eye (such as diplopia (DC 6090) or impairment of central visual acuity (DCs 6061-6066)). See 38 C.F.R. § 4.119, Diagnostic Code 7903. According to 38 C.F.R. § 4.31 in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. See 38 C.F.R. § 4.31. The prior version of DC 7903 provided a 10 percent rating for hypothyroidism where it is manifested by fatigability or where continuous medication is required for control. A 30 percent rating was warranted for fatigability, constipation, and mental sluggishness. A 60 percent rating was warranted for muscular weakness, mental disturbance, and weight gain. A 100 percent rating was warranted for 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, DC 7903. The Court has addressed the specific application of the rating criteria for DC 7903 and found that all 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 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 DC 7903 are not successive. Tatum, 23 Vet. App. at 155. A claimant could potentially establish all 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. The Veteran underwent a VA examination in March 2012 and reported a history of hypothyroidism requiring continuous treatment of Synthroid daily. The examiner reported no radioactive iodine treatment or surgery, and no residual endocrine dysfunction. The Veteran displayed symptoms of hypothyroidism consisting of general fatigue and lack of stamina, slight weight gain (approximately five pounds), and sensation of numbness and cold in hands and feet. The physical examination revealed normal eyes and neck, a regular pulse and normal reflexes. The Veteran did not have any benign or malignant neoplasms or metastases, and laboratory tests revealed TSH at 0.02, T4 at 13.3, and T3 at 69. The examiner concluded that hypothyroidism does not result in functional limitations that affect the ability to work. In December 2019 the Veteran attended another VA examination and reported that her hands and feet get numb during cold temperatures and continuing treatment of Synthroid. The examiner reported that she has not undergone radioactive iodine treatment or have any residual endocrine dysfunction. The Veteran displayed neurological symptoms attributable to a thyroid condition but there were no current findings, signs or symptoms related to hypothyroidism. Physical examination revealed normal eyes and neck, regular pulse and normal reflexes. The Veteran did not have any benign or malignant neoplasms or metastases, and laboratory tests revealed TSH at 3.24. The examiner concluded that hypothyroidism does not result in functional limitations that affect the ability to work. Additionally, the VA examiner opined that the cold and numbness of the hands and feet are more likely than not distinct and separate from hypothyroidism as these symptoms have remained unabated despite the Veteran being therapeutic with TSH levels and having no signs of hypothyroidism. Review of the medical records reveals continuous treatment of hypothyroidism and complaints of difficulty with weight loss, constipation and chronic numbness and coldness of her hands and feet. The Board notes that numbness and coldness of the hands and feet were previously attributed to hypothyroidism, but her symptoms did not improve with thyroid treatment and are found to be separate and distinct from hypothyroidism. The Veteran’s hypothyroidism was rated at 10 percent effective June 8, 2011 through December 9, 2017 for fatigability and the need for continuous medication. In order to warrant a higher rating under the prior criteria for DC 7903, the evidence must establish fatigability, constipation, and mental sluggishness for a 30 percent rating or muscular weakness, mental disturbance, and weight gain for a 60 percent rating. The medical evidence reveals the need for continuous medication, general fatigue and lack of stamina, constipation and slight weight gain (approximately five pounds). As such, the Board finds that an increased rating is warranted as the Veteran’s hypothyroidism is manifested by fatigability and constipation, which is the criteria contemplated by a 30 percent rating. The assignment of a 60 percent rating is not warranted as the evidence reveals no muscular weakness or mental disturbance and only mild weight gain. While the 60 percent rating criteria contemplates weight gain, at the March 2012 VA examination the Veteran’s baseline weight was 235 pounds with a current weight of 240 attributed to hypothyroidism. Thus, the Board finds that when considering the overall frequency and severity of the symptoms, a slight weight gain of only five pounds is insufficient to warrant an increased rating to 60 percent. As of December 10, 2017, the Veteran’s hypothyroidism is rated at 30 percent under the new criteria for hypothyroidism without myxedema. For an evaluation of 100 percent under the new criteria, hypothyroidism must manifest 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)) for a period of six months after an examiner has determined the condition is stabilized. Throughout the period on appeal, the medical evidence of record is silent as to myxedema; the evidence does not establish symptoms of cold intolerance due to hypothyroidism, muscular weakness, cardiovascular involvement or mental disturbance. As such, the preponderance of the evidence is against finding an increased rating in excess of 30 percent for hypothyroidism. REASONS FOR REMAND 1. Entitlement to a separate evaluation for cold and numbness of the hands and feet In September 2019 the Board remanded the case to obtain an opinion as to whether the symptoms of cold and numbness of the hands and feet are attributable to a distinct diagnosis other than hypothyroidism and if so, whether the distinct disability is etiologically related to service. The VA examiner concluded that the symptoms are distinct and separate from hypothyroidism but an opinion as to whether the cold and numbness of the hands and feet are etiologically related to service was not provided. As such, a remand is necessary to determine the nature and etiology of cold and numbness of the hands. The matters are REMANDED for the following action: 1. Acquire updated VA and/or private treatment records. If such records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran’s claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s cold and numbness in the hands and feet is related to her active service or is caused by or aggravated by military service. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner is to still consider the nature and etiology of the Veteran’s cold and numbness of the hands and feet even if a distinct diagnosis is unavailable. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) In all opinions rendered, the examiner is advised that the Veteran is competent to report her symptoms of cold and numbness in her hands and feet from in-service to the present. The examiner must specifically consider and discuss the Veteran's lay statements regarding her continuity of symptomology since service and the opinion and rationale should reflect such consideration. If there is a medical basis to doubt the history provided by the Veteran, the examiner should so indicate and provide a fully reasoned explanation for that finding. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Finally, readjudicate the appeal. If the benefits sought on appeal remains denied, issue a supplemental statement of the case and return the case to the Board. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Prinsen 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.