Citation Nr: 20054584 Decision Date: 08/18/20 Archive Date: 08/18/20 DOCKET NO. 12-14 537 DATE: August 18, 2020 ORDER Entitlement to a 30 percent rating for hypothyroidism, to include on an extraschedular basis, is granted subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating greater than 10 percent for recurrent urinary tract infections (UTI), to include on an extraschedular basis, is denied. Entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b), to include as based on the collective impact of all service-connected disabilities is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran’s service-connected hypothyroidism did not manifest in cold intolerance, muscular weakness, mental disturbance, cardiovascular involvement, bradycardia (less than 60 beats per minute), and/or myxedema. 2. The preponderance of the evidence shows that the Veteran’s service-connected recurrent UTI did not manifest in renal dysfunction where albumin is constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7101; or UTI manifested by recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year) and/or requiring continuous intensive management. 3. The schedular rating criteria adequately contemplate the Veteran’s hypothyroidism. 4. The schedular rating criteria adequately contemplate the Veteran’s recurrent UTI. 5. There is no exceptional or unusual feature associated with the collective impact of the Veteran’s service-connected disabilities so as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating, but no greater, for hypothyroidism have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.21, 4.119, Diagnostic Code (DC) 7903. 2. The criteria for a rating greater than 10 percent for recurrent UTI have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.115b, DC 7599-7504. 3. The criteria for a rating greater than 60 percent for hypothyroidism on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321 (b), 4.1, 4.3, 4.7, 4.20, 4.113, 4.114, DC 7903. 4. The criteria for a rating greater than 10 percent for recurrent UTI on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321 (b), 4.1, 4.3, 4.7, 4.20, 4.113, 4.114, DC 7599-7504. 5. Application of the extraschedular rating provisions based on the collective impact of all service-connected disabilities is not warranted. 38 C.F.R. § 3.321 (b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1996 to June 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2012, the Veteran testified at a Board hearing conducted by a Veterans Law Judge no longer employed by the Board. However, a transcript of that hearing is of record. In October 2015, the Veteran was notified that she could request a new hearing with another Board member, but that if she did not respond within 30 days, the Board would assume that she does not desire another hearing. No request for a new hearing has been received; therefore, the Board may proceed with the case. In December 2014, the Board issued a decision denying entitlement to a higher rating for both issues on appeal. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2015 Order, pursuant to a Joint Motion for Remand by the VA and the Veteran, the Court vacated and remanded the Board’s decision for compliance with the directives in the Joint Motion. The Veteran’s representative submitted additional arguments in October 2015. The Board remanded these issues in December 2017 to obtain a retrospective medical opinion and refer the Veteran’s file to the Director of Compensation. There has been substantial compliance with the December 2017 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). These matters are properly before the Board for adjudication. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § § 4.10. 1. Entitlement to an increased disability rating for hypothyroidism. The Veteran contends that her symptoms more closely approximate a disability rating of 100 percent. The Veteran has been assigned a 10 percent disability rating for her hypothyroidism from June 25, 2001 under 38 C.F.R. § 4.119, DC 7903. The criteria were amended effective December 10, 2017. 82 Fed. Reg. 50802 (November 2, 2017). Under that prior version, a 10 percent evaluation is assigned where there is fatigability or the required use of continuous medication for control of symptoms. A 30 percent evaluation is warranted for fatigability, constipation, and mental sluggishness. A 60 percent evaluation is warranted for muscular weakness, mental disturbance, and weight gain. The maximum, 100 percent disability rating, is warranted for hypothyroidism with cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. Id. The current version of the criteria, effective December 10, 2017, provide that 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)), but only for a period of six months after an examiner has determined that the condition has stabilized. Thereafter, the residual effects of hypothyroidism are to be rated under the appropriate diagnostic code(s) within the appropriate body system(s) (e.g., eye, digestive, and mental disorders). 38 C.F.R. § 4.119, DC 7903. Also, under the current criteria, hypothyroidism without myxedema warrants a 30 percent rating for six months after initial diagnosis. Thereafter, residuals of the disease, to include eye conditions, or medical treatment, are rated under the most appropriate diagnostic code(s) under the appropriate body system (e.g., eye, digestive, mental disorders). 38 C.F.R. § 4.119, DC 7903. Where the rating criteria are amended during an appeal, the Board considers both the former and the current schedular criteria and, should an increased rating be warranted under revised criteria, that award may not be made effective before the effective date of the change. The rating criteria for Diagnostic Code 7903 are not conjunctive, cumulative, or successive. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Accordingly, “a veteran could potentially establish all of the criteria required for either a 30% or 60% disability rating, without establishing any of the criteria for a lesser disability rating.” Id. (emphasis omitted). The Veteran underwent a VA examination in September 2011. The examiner found that the Veteran took Synthroid 112 mcg, daily and described she described fatiguability, cold intolerance, and weight gain (i.e. 20 lbs. within four years). The Veteran denied sleepiness, tremors, emotional instability, depression, slowing of thought, poor memory, difficulty breathing, and difficulty swallowing. She did not have any heart or gastrointestinal complications resulting from hypothyroidism. The Veteran reported that her disability did not cause any overall functional impairment. The examiner indicated that the thyroid condition did not result in any sequela. A February 2016 VA examiner’s report indicated that the Veteran’s hypothyroidism manifested with constipation, continuous medication and cold intolerance. The examiner found no evidence of thyroid enlargement or tumors related to her thyroid condition. The Veteran reported she worked full-time and coped with her job requirements. She also reported she walked three miles, daily, and walked during breaks at work. VA requested a medical opinion in June 2016 in order to determine whether the Veteran’s Wolf-Parkinson-White (WPW) syndrome was caused by or associated with her service-connected hypothyroidism. After a search of current medical literature, the examiner opined that WFW syndrome was not caused or aggravated by hypothyroidism. The examiner also stated that hypothyroidism is not noted to be a risk factor for WPW syndrome. A July 2018 VA examiner reviewed the Veteran’s private and VA medical records, examination reports, lay statements, and conducted an in-person examination. The examiner found that the Veteran did not show any signs of symptoms attributable to hypothyroidism. The Veteran’s disability was treated with Synthroid in 2018, however, the examiner found no evidence of residual endocrine dysfunction, tumors or neoplasms, or symptoms attributable to a parathyroid condition. A reflex examination revealed bilateral hyperactive biceps, triceps, and brachioradialis reflexes, without clonous. The Veteran’s knees and ankles showed hypoactive reflexes. The examiner noted the Veteran’s thyroid condition did not impact her ability to work. The examiner indicated that the level of severity of the hypothyroidism was controlled, indicated by normal blood levels. A September 2019 examiner was asked to discuss whether the Veteran had fatigability, sleepiness, constipation, mental sluggishness and disturbance, muscular weakness, weight gain, cold intolerance, or a cardiovascular disability related to her disability. The examiner stated that the identified symptoms are subjective symptoms; therefore, the Veteran’s complaints cannot be assessed objectively. The examiner explained that symptoms are less likely related to hypothyroidism because lab tests show normal T3 and T4 levels on the day of the examination. The examiner also noted there was no objective evidence of current cardiovascular abnormalities. The Board finds that the Veteran is entitled to a 30 percent disability rating, but no greater, for hypothyroidism. The Veteran symptoms manifested as constipation. Medical records dated February 2015, June 2015, October 2015, January 2016 show the Veteran reported fatigue, depression, and difficulty sleeping. Current private treatment records note the Veteran denied depression and suicidal ideation, however, she reported fatigue, waking up frequently, feeling “on edge,” foggy thinking, moderate stress-levels, and night sweats. With regard to weight gain, the Veteran gained a total of approximately 40 pounds from September 2011 to January 2019. However, the Board notes that VA examiners have not attributed mental disturbance, muscular weakness, or her weight gain to her hypothyroidism; but instead had indicated that she has no symptomatology due to her hypothyroidism, with the exception of the constipation and cold intolerance indicated in the February 2016 VA examination. Consideration has been given to the Veteran’s September 2011 and February 2016 history of experiencing cold intolerance. That history is not supported by the record. To the contrary, the Veteran’s VA and private treatment records reveal the Veteran denied cold intolerance to physicians when she was seen in January 2015, November 2015, October 2018, and January 2019. This contemporaneous evidence has greater probative value than history as reported by the claimant. Curry v. Brown, 7 Vet. App. 59, 68 (1994). Indeed, as addressed by the Court in Rucker v. Brown, 10 Vet. App. 67, 73 (1997), statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. See also Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Furthermore, the Veteran routinely sought follow-up care for hypothyroidism and the weight of the evidence shows that she did not report cold intolerance to physicians between September 2011 and February 2016. The evidence simply does not support finding that hypothyroidism manifested as cold intolerance. The Board finds that the preponderance of the evidence is against a finding that the Veteran’s condition merits a 60 or 100 percent rating for hypothyroidism under the former or current rating criteria. VA and private treatment providers consistently noted no cardiovascular illnesses, including brachycardia, throughout the period on appeal. Although medical records show that the Veteran suffers from WPW syndrome, a VA examiner reviewed the claims file and current medical evidence and stated that there is no evidence that WPW syndrome is connected to hypothyroidism in anyway. The examiner found that hypothyroidism is not a known risk factor for WPW and determined that the WPW was not caused nor aggravated by hypothyroidism. As to the updated Diagnostic Code, the medical evidence is silent regarding myxedema, as contemplated by the criteria for a 100 percent evaluation. Further, as there is no evidence of myxedema, it follows that there was no crisis following which an examining physician would need to determine that there has been stabilization, warranting an increased 100 percent rating, for a period of six months after an examiner has determined the condition to be stabilized. At no point have any residuals warranted rating under the appropriate body system and subsequent diagnostic code(s) within the appropriate body systems (e.g., eye, digestive, and mental disorders) such that an increased 100 percent rating is not warranted under the updated Diagnostic Code 7903. Based upon a review of the relevant medical record, the Board finds the preponderance of the evidence weighs against an award of a 60 or a 100 percent disability rating. Rather, the evidence more nearly approximates a rating of 30 percent. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. 2. Entitlement to a rating in excess of 10 percent for recurrent UTI. The Veteran’s service-connected recurrent UTI is currently evaluated as 10 percent disabling under 38 C.F.R. § 4.115b, DC 7599-7504. See 38 C.F.R. § 4.115b, DC 7599-7504. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. DC 7599 is used to identify unlisted genitourinary disabilities not specifically listed in the VA Rating Schedule. See 38 C.F.R. §§ 4.20, 4.27 DC 7504 provides that chronic polynephritis will be rated as renal dysfunction or urinary tract infection (UTI), whichever is predominant. Pursuant to the ratings for renal dysfunction, the next highest rating, a 30 percent rating, is assigned for renal dysfunction where albumin is constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7101. Disability ratings of 60 percent, 80 percent, and 100 percent are also available with the showing of increasing symptomatology. Under 38 C.F.R. § 4.115a, the next highest disability rating for UTIs, a maximum 30 percent rating, is assigned for urinary tract infections manifested by recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year) and/or requiring continuous intensive management. Urinary tract infections manifested by poor renal function are to be rated as renal dysfunction. See 38 C.F.R. § 4.115a. The preponderance of the evidence indicates that the Veteran’s UTI does not meet the threshold required for a rating greater than 10 percent under DC 7504. The Veteran was treated for UTIs in January 2011, September 2011, and November 2012. In February 2016 she reported to a VA examiner that she did not have a UTI in the past year. The examiner there found no evidence of current UTI which was supported by urine analysis. A July 2018 VA examiner noted that the Veteran’s recurrent UTI has improved in the past two years and her condition was inactive. Regarding renal dysfunction, the medical and lay evidence does not demonstrate any renal dysfunctions. The September 2011, February 2016, and July 2018 VA examiners specifically found no evidence of renal dysfunction. Specifically, the 2011 VA examiner stated the urinalysis is absent of microalbuminuria, sugar, red blood cells, hyaline casts, and granular casts. Furthermore, the preponderance of the evidence does not support a history of diagnosed hypertension at any point throughout the period on appeal. There are no competent opinions to the contrary. Consideration has been given to the Veteran’s September 2011 history of monthly recurrent UTI. However, even if this contention is afforded probative weight, even though it is countered by the objective evidence of record, the Board finds that such does not constitute recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year) and/or requiring continuous intensive management. When specifically considering service-connected recurrent UTI, the Board finds that the weight of the evidence is against the finding that an initial disability rating in excess of 10 percent is warranted. The claim is denied accordingly. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 3. Extraschedular Consideration. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321 (b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In accordance with Thun v. Peake, 22 Vet. App. 111 (2008), there is a sequential three-step analysis to determine whether a case should be referred for extraschedular consideration. (1) The Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. (2) If the schedular evaluation does not contemplate the Veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant’s disability picture is exceptional with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular criteria. (3) If the disability picture is exceptional, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The Board in a December 2015 remand referred this matter to Director of VA’s Compensation Service for extraschedular consideration consistent with 38 C.F.R. § 3.321. The Board noted that, in Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), the Federal Circuit determined that extraschedular consideration required consideration of the “collective impact” of a veteran’s service-connected disabilities in assessing the disability picture, and whether it rendered the schedular criteria inadequate such that referral to the Director of the VA Compensation Service for extraschedular consideration is warranted. Given the Veteran’s reported time missed from work associated with the combined effect of medications, problems stabilizing thyroid function, the need for frequent adjustment of thyroid medications, the Board found the Veteran’s overall disability picture demonstrates an exceptional circumstance where the evaluation of the individual conditions in and of themselves fails to capture the impairment caused by of all his service-connected disabilities in combination. As such, the Board found the Veteran’s increased rating claim for recurrent UTI and hypothyroidism should be referred to the Director of the VA Compensation Service for extraschedular consideration to determine whether the Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions. The opinions of the Director, Compensation Service were obtained in June 2017, October 2019, and December 2019. The Director reviewed the claims file and the request to determine whether the Veteran is entitled to a higher level of compensation for hypothyroidism and recurrent UTI, to include the collective impact of the Veterans service connected disabilities on an extra-schedular basis pursuant to the provisions of 38 C.F.R. § 3.321(b). The Director considered the Veteran’s contentions, claims file, and evidence of record. The Director opined that an extraschedular rating for the Veteran’s service-connected disabilities, to include based on collective impact, was not warranted. The issues were returned to the Board for adjudication. The Board has compared the level of severity and symptomatology of the Veteran’s hypothyroidism with the established criteria found in both the former and current rating schedule. As explained below, the Board finds that the schedular criteria adequately contemplate all of the symptoms attributable to hypothyroidism and extraschedular consideration is not warranted in this particular case. 38 C.F.R. § 3.321 (b)(1); Thun, supra. Under the prior version of DC 7903, a 10 percent evaluation is assigned where there is fatigability or the required use of continuous medication for control of symptoms; 30 percent is warranted for fatigability, constipation, and mental sluggishness; and the currently assigned 60 percent rating for hypothyroidism under DC 7903 contemplates muscular weakness, mental disturbance, and weight gain. In this case, the Veteran’s hypothyroidism symptoms consist of constipation. A 2019 VA examiner opined that the Veteran’s symptoms were less likely related to hypothyroidism because she exhibited nor T3 and T4 levels. Additionally, the examiner found no evidence of cardiovascular abnormality during the examination. The Board has considered the Veteran’s assertion she experienced cold intolerance due to hypothyroidism. However, as discussed above, the Board determined these reports were not representative of the Veteran’s symptoms and appear to have been made in the self-interest of obtaining benefits as shown by the contemporaneous medical evidence of record. The Board finds the Veteran’s assertion her disability resulted in decreased earning capacity less persuasive due to the general nature of weight loss and the conflicting medical evidence. 38 C.F.R. § 4.1; Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (Board may weigh evidence based upon plausibility and consistency with additional evidence). Turning to Veteran’s claim for recurrent UTI, the Board finds the schedular criteria adequately contemplate all of the symptoms attributable to her disability and extraschedular consideration is not warranted in this particular case. 38 C.F.R. § 3.321 (b)(1); Thun, supra. Under DC 7504, the currently assigned 10 percent rating for UTI requires long-term drug therapy, 1-2 hospitalizations per year, and/or intermittent intensive management. The Veteran’s disability could also be granted a rating under renal dysfunction, however as discussed above, the record does not support a history of renal dysfunction, to include hypertension, constant or recurring albumin with hyaline and granular casts or red blood cells; or transient or slight edema. In this case, the Veteran does not manifest symptoms of recurrent UTI. The Veteran was treated for UTIs in January 2011, September 2011, and November 2012. She reported to a February 2016 VA examiner that she did not have a UTI in the past year. Based on the Veteran’s admissions, her disability greatly improved, and she has not suffered from recurrent UTI in years. 38 C.F.R. § 3.321(b)(2) provides for compensation on an extra-schedular basis for Veterans with service-connected disabilities, which presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The September 2011 VA examiner found that the Veteran reported fatigue, weight gain, and missing one day of work each week in order to seek treatment for a recurrent UTI infection. During her February 2016 examination, the Veteran reported she is able to work full-time as the Director at a health clinic and cope with her job requirements. She also stated she walked three miles a day and took walks during her breaks at work. Importantly, the Veteran reported she is fully alert, oriented, and meets her job requirements satisfactorily. The July 2018 VA examiner noted that the Veteran’s service-connected disabilities did not impact her ability to function at work. Specifically, the examiner found no current diagnosis of UTI and her hypothyroid disability was well-controlled. (Continued on the next page)   The Board finds the fact that VA examinations related to the Veterans service-connected conditions show no evidence she reported any debilitating or marked interference with employment episodes due to her hypothyroidism and or recurrent UTI to be more persuasive than her complaints in this claim. The opinion of the Director is also considered evidence against marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The opinion is consistent with the documented record and also addresses the collective impact consistent with Johnson. The Board finds the Director’s opinion combined with the general lack of reports episodes causing marked interference with employment in the treatment record to outweigh the Veteran’s assertions on this matter. In addition, other than the Veteran’s reported monthly doctor visits, there is no evidence of frequent periods of hospitalization and/or continuous intensive management due to recurrent UTI disability, as discussed above. Therefore, the Board finds that the evidence is against a finding the Veteran’s hypothyroidism and recurrent UTI cause average impairment of earning capacity beyond the ratings currently in effect and an extraschedular rating is not warranted. The preponderance of the evidence is against the claim. 38 C.F.R. § 3.102. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mohammad Mahmoudi, 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.