Citation Nr: 21005355 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 17-53 084 DATE: February 1, 2021 ORDER Entitlement to an earlier effective date of August 1, 2016 for the 60 percent rating currently assigned for hypothyroidism under Diagnostic Code 7903 is granted. REMANDED Entitlement to a rating in excess of 60 percent for hypothyroidism is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The impairment resulting from hypothyroidism assessed during a December 2016 VA examination was at least as likely as not present as of August 1, 2016, the date the initial rating was assigned under Diagnostic Code 7903 following the cessation of a 100 percent rating for thyroid cancer. CONCLUSION OF LAW The criteria for an earlier effective date of August 1, 2016 for the 60 percent rating currently assigned for hypothyroidism under Diagnostic Code 7903 have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.3, 4.119. REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision that, in pertinent part, assigned an initial 30 percent rating for hypothyroidism, effective August 1, 2016, following the cessation of a 100 percent rating for thyroid cancer in accordance with the provisions of 38 C.F.R. § 4.119, Diagnostic Code 7914. See Rossiello v. Principi, 3 Vet. App. 430, 432-33 (1992) (holding the discontinuance of a 100 percent rating under a diagnostic code with a temporal element following active malignancy with residuals rated thereafter is not a “rating reduction” as that term is commonly understood but rather an award of separate successive ratings for different conditions). The Board notes the May 2016 rating also assigned a 60 percent rating for hypoparathyroidism and a noncompensable rating for a thyroidectomy scar; however, the Veteran’s November 2016 notice of disagreement explicitly limited the scope of her appeal to the initial rating assigned for hypothyroidism, the issue that was addressed in the September 2017 statement of the case and perfected for appeal by the Veteran’s October 2017 substantive appeal (VA Form 9). The Board acknowledges the Veteran called the Agency of Original Jurisdiction (AOJ) in August 2019 to inquiry about the status of her appeal and requested to expand the scope of her appeal to also include the ratings assigned for hypoparathyroidism and her thyroidectomy scar, but these issues were raised after the appeal period of the May 2016 rating decision expired and were also not submitted on a standardized form required to initiate an appeal; therefore, the Board does not have jurisdiction to address them. The Veteran appeared at a hearing before the undersigned in August 2020. A transcript of the hearing is of record. The Board notes, in September 2017, the AOJ increased the rating assigned for hypothyroidism from 30 percent to 60 percent, effective December 12, 2016, based on the results of a VA examination conducted on that date. The AOJ found the symptoms of hypothyroidism assessed by the December 2016 VA examiner, to include weight gain and mental disturbance, more nearly approximated the 60 percent rating criteria under 38 C.F.R. § 4.119, Diagnostic Code 7903, which also includes a requirement of muscular weakness, when compared with the 30 percent criteria, which contemplate fatigability, constipation, and mental sluggishness. See Tatum v. Shinseki, 23 Vet. App. 152, 155 (2009). Although the AOJ assigned the effective date for the increased rating based on the date of the examination, the Board finds the evidence of record establishes this impairment was at least as likely as not present as of August 1, 2016, the date the initial rating was assigned for hypothyroidism under Diagnostic Code 7903 following the cessation of a 100 percent rating for thyroid cancer. The Board notes the Veteran explicitly reported symptoms of weight gain and mental disturbance in her November 2016 notice of disagreement and provided treatment records to support these contentions that predate the December 2016 VA examination. As a result, the Board finds an earlier effective of August 1, 2016 for the 60 percent rating currently assigned for hypothyroidism under Diagnostic Code 7903 is warranted, and, to that extent, the Veteran’s appeal is granted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 60 percent for hypothyroidism is remanded. During the August 2020 hearing before the undersigned, the Veteran reported she currently receives treatment for her thyroid conditions through a private provider and has not submitted these records. VA’s duty to assist requires reasonable efforts to assist the Veteran in obtaining these records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). Further, the Board notes the rating criteria for hypothyroidism were amended during the appeal period, effective December 10, 2017. See 82 Fed. Reg. 50,802 (November 2, 2017). The Veteran’s previous examination reports do not address the new criteria. A new examination will also provide the opportunity for an examiner to assess the Veteran’s private treatment records in the context of both the old and new rating criteria for hypothyroidism. Thus, the Board finds a new examination is necessary to ensure the final decision on the Veteran’s appeal of the rating assigned for hypothyroidism is fully informed. 2. Entitlement to TDIU is remanded. The Board also finds the Veteran’s testimony during the August 2020 hearing raises the issue of TDIU in the context of her appeal of the rating assigned for hypothyroidism. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Specifically, the Veteran testified she has been unable to hold a job in her career field of instructional design and has had difficult completing retraining for other career fields. Thus, unemployability has been raised by the record requiring adjudication of TDIU as an element of the Veteran’s appeal. The matters are REMANDED for the following action: 1. Make reasonable efforts to assist the Veteran in obtaining any outstanding private treatment records that may be relevant to the issues on appeal. (Continued on the next page)   2. Schedule the Veteran for a new examination to assess the severity of the functional impairment resulting from her service-connected hypothyroidism. The AOJ must ensure this examination addresses the rating criteria in effect both prior to and after the December 2017 amendments to the schedule of rating for the endocrine system. 3. Develop and adjudicate the issue of TDIU as an element of the Veteran’s appeal of the rating assigned for hypothyroidism in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.