Citation Nr: 21077194 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 13-29 209 DATE: December 28, 2021 REMANDED Entitlement to higher ratings for mental and psychological symptoms affected by hypothyroid endocrine dysfunction, evaluated as 10 percent from September 1, 2007, 30 percent from March 21, 2019,100 percent from May 10, 2019 and 70 percent from November 1, 2021. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1975 to August 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. This appeal has been before the Board previously. To assist with this matter, the Board will provide a brief, historical summary. In September 2017, the Board remanded the issues on appeal for additional development. Additionally, in June 2018 the Board remanded the issue of an increased rating for hypothyroidism for an updated VA examination to determine which symptoms are attributable to his thyroid disorder, and additional relevant VA examinations to determine the nature and severity of any associated symptoms. Moreover, the Board remanded the issue of a TDIU as inextricably intertwined with the claim for an increased rating for hypothyroidism. Subsequently, after an August 2021 supplemental statement of the case considered the record, this matter was returned to the Board for appellate consideration. Furthermore, a June 2019 rating decision granted an increased rating of 100 percent for hypothyroidism, effective May 10, 2019. A May 2020 rating decision stated that it found clear and unmistakable error (CUE) and proposed a reduction of the rating. Subsequently, a July 2021 rating decision staged downward the Veteran's rating from 100 percent to 70 percent, effective November 1, 2021. Although an increased rating was granted, the issue remains in appellate status as the maximum schedular rating had not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). 1. A rating in excess of 10 percent for hypothyroidism prior to March 21, 2019, and in excess of 30 percent prior to May 10, 2019, and in excess of 70 percent from November 1, 2021. The Veteran contends higher ratings for his service-connected hypothyroidism disability. Specifically, the Veteran contends that he experiences fatigability due to loss of muscle mass, constipation, and mental sluggishness. See 5/4/2018 VA 21-4838. A history of how the Veteran's hypothyroidism has been rated will be useful and discussed next. Prior to the Board's 2018 remand and during this appeal period, the RO rated the Veteran's iatrogenic hypothyroidism (previously evaluated as Grave's disease) via diagnostic code (DC)7900. Then, a March 2019 changed the rating to be hypothyroidism (previously evaluated as iatrogenic hypothyroidism) to be rated via DC 7903-7900. Subsequently, a June 2019 rating decision change the evaluation to mental and psychological symptoms affected by hypothyroidism endocrine dysfunction via DC 7903. Finally, a July 2021 rating decision kept the same classification (mental and psychological symptoms affected by hypothyroidism endocrine dysfunction), but altered the DC to 7903-9435. The Veteran's hypothyroid endocrine dysfunction results in mental and psychological symptoms. Currently, as noted in the previous paragraph, the RO has rated his impairment via a hyphenated DC, 7903-9435. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. Additionally, the rating criteria for DC 7903 have been amended during the appeal period as noted in the June 2018 in this matter. Indeed, effective December 10, 2017, the rating criteria for evaluating thyroid disorders were changed. See 38 C.F.R. § 4.119; 82 Fed. Reg. 50,802 (Nov. 2, 2017). Under the DC in effect prior to December 10, 2017 time, a 30 percent rating was assigned for hypothyroidism with "[f]atigability, constipation, and mental sluggishness," and a 60 percent rating was assigned for hypothyroidism with "[m]uscular weakness, mental disturbance, and weight gain." See 38 C.F.R. § 4.119, DC 7903 (2017). Under the current version of DC 7903, a 100 percent rating is warranted for "[h]ypothyroidism manifesting as myxedema (cold intolerance, muscular weakness, cardiovascular involvement . . . and mental disturbance (including, but not limited to dementia, slowing of thought and depression))." 38 C.F.R. § 4.119 (2020). A 30% rating is warranted for hypothyroidism without myxedema. Id. The 2017 amendments added several Notes, to include Note (2) to the amended hypothyroidism criteria. Note (2) states: 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). The Board finds Note (2) to be instructive as the hypothyroidism is to be rated on the residuals via the most appropriate diagnostic code or codes. The record does not reflect that the RO considered whether a 30 percent rating is warrant plus additional compensation via a separate rating for related mental health symptomatology under 38 C.F.R. § 4.130. To assist with this inquiry, the Board finds that a remand is necessary to obtain a medical opinion as to whether a separate rating for psychological symptoms is warranted over the period on appeal (exclusive of the 100 percent rating from May 10, 2019 to October 31, 2021). To ensure full due process, the RO should adjudicate the possible of a separate rating throughout the period on appeal in the first instance after associate the request opinion with the claims file. 2. TDIU. With respect to a TDIU, since a decision on the remanded issue of entitlement to an increased rating for hypothyroidism could significantly impact a decision on the issue of entitlement to a TDIU, the Board finds that these matters are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact' upon another and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources the two claims are inextricably intertwined). Therefore, the adjudication of TDIU is deferred. These matters are REMANDED for the following actions: 1. Obtain any and all of the Veteran's outstanding VA treatment records. Document all requests for information as well as responses in the claims file. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. Return the claims file to the examiner who authored the July 2021 VA addendum opinion. A copy of this remand request should also be provided. After review of the claims file, the reviewing clinician should provide a retrospective medical opinion regarding whether a separate rating for psychological symptoms is warranted over the period on appeal (claim filed in January 2012). In this regard, please assess the severity of the Veteran's psychiatric symptoms as residuals of the disease or complications to the Veteran's hypothyroidism disability. Please thoroughly explain your answer, to include, as appropriate, referencing relevant facts/medical reports in the claims file and citing any medical literature (if medical literature is referenced, please provide a copy or full citation to the text). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., 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.