Citation Nr: 21077545 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 16-26 882 DATE: December 30, 2021 ORDER From December 10, 2017, entitlement to a disability rating in excess of 20 percent for the Veteran's goiter is denied. FINDING OF FACT From December 10, 2017, the Veteran's goiter disability did not manifest as visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with two or three characteristics of disfigurement. CONCLUSION OF LAW From December 10, 2017, the criteria for a disability rating in excess of 20 percent for the Veteran's goiter disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.655, 4.1, 4.3, 4.7, 4.118, 4.119, Diagnostic Code 7800, Diagnostic Code 7902. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Air Force from July 1993 to July 2013. In July 2019, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for the Veteran to a receive VA examination for her disability. She received a new VA examination in October 2019 that adequately addressed the severity of her disability. In June 2021, the Board granted an initial 20 percent rating for goiter. As discussed in that decision, the initial rating claim prior to December 10, 2017, has been decided and the Veteran's goiter is rated 20 percent for that period. The period from December 10, 2017, through the present was remanded for a new examination to assist in evaluating the severity of the disability for this remaining part of the appeal period. In accordance with the remand directives, a VA examination was scheduled for August 2021, but the Veteran did not RSVP for the examination. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor her representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.20 (2021). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2021). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2021). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's neck goiter is rated under Diagnostic Code 7902, thyroid enlargement. 38 C.F.R. § 4.119. As noted in the Board's June 2021 decision, the rating criteria for evaluating the endocrine system changed effective December 10, 2017. Prior to that date, the maximum schedular rating provided by DC 7902 was 20 percent. Since December 10, 2017, the rating criteria provide: Note (1): Evaluate symptoms due to pressure on adjacent organs (such as the trachea, larynx, or esophagus) under the appropriate diagnostic code(s) within the appropriate body system. Note (2): If disfigurement of the neck is present due to thyroid disease or enlargement, separately evaluate under DC 7800 (burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck). Diagnostic 7800 rates disfigurements of the head, face, or neck. 38 C.F.R. § 4.118. Under this Diagnostic Code, a 10 percent rating is warranted for one characteristic of disfigurement. A 30 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. A 80 percent rating is warranted for With visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. Under Diagnostic Code 7800, the 8 characteristics of disfigurement for purposes of evaluation are scar 5 or more inches (13 or more cm.) in length. scar at least one-quarter inch (0.6 cm.) wide at widest part, surface contour of scar elevated or depressed on palpation., scar adherent to underlying tissue, skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.), skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.), underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.), skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). The Veteran received a VA examination in June 2019 that noted she had a visible goiter on her neck. Her next VA examination was in October 2019. The examiner also noted the goiter on her neck with the following measurements 0.1cm in thickness and right thyroid lobe measures in 2.0 x 1.8 X 6.0 cm and left thyroid is 1.2 x 1.4 x 4.0 cm. As noted above, in accordance with June 2021 Remand directives, the Veteran was scheduled for a new VA examination for her goiter disability in August 2021 to determine the current severity. She failed to RSVP for the scheduled examination. A VA representative left a voice message and reached out to the Veteran in an attempt to schedule the VA examination. Consequently, as the Veteran failed to report for an examination, the claim will be decided based on the evidence of record. See 38 C.F.R. § 3.655. (Continued on the next page) Based on the lay and medical evidence of record, the Veteran is aptly rated at 20 percent for her disability. This is the maximum rating under the pre-December 10, 2017, rating criteria. With respect to the new rating criteria, the evidence does not show symptoms due to pressure on adjacent organs. The evidence of the record fails to show that the Veteran's disability causes visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features or two or three characteristics of disfigurement as required by the 30 percent rating under DC 7800. The most recent VA examination shows that the Veteran had 2 goiters on her neck, but the measurements did not meet the requirements under the characteristics of disfigurement. Therefore, the Board finds that from December 10, 2017, a disability rating in excess of 20 percent is denied. Mike Sobiecki Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Brunot, 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.