Citation Nr: 21009418 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 14-10 778 DATE: February 22, 2021 ORDER A rating for hypothyroidism in excess of 10 percent is denied. FINDING OF FACT The weight of the evidence fails to show that the Veteran’s hypothyroidism has manifested with any symptoms beyond requiring continuous control with thyroid-stimulating hormone supplement medications. CONCLUSION OF LAW The criteria for rating hypothyroidism in excess of 10 percent have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.119, DC 7903. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty from August 1996 to May 2000. In an April 2012 rating decision, the Regional Office (RO) granted a 10 percent rating. The Veteran appealed. In July 2017, he testified via a Board’s video conference hearing, a transcript of which is of record. At the hearing, the Veteran raised an issue of clear and unmistakable error in prior adjudications, to include the effective date of service connection and initially assigned noncompensable rating. Following the December 2017 and December 2018 Board’s remands, the RO issued an August 2020 rating decision identifying the clear and unmistakable errors, effectuating the grant of service connection for hypothyroidism and assigning an initial rating at 10 percent from May 20, 2000, the day after discharge. In September 2020, the Board advised the Veteran that the Veterans Law Judge who held his hearing had retired from the Board and offered him a second hearing with another judge. The Board further advised the Veteran that, absent a positive response within 30 days, the Board would assume that the Veteran wanted to proceed without a hearing. The record is devoid of any response. Accordingly, the Board will decide the case based on the evidence of record. In now seeking a rating for hypothyroidism in excess of 10 percent from May 2000, the Veteran maintains that his weight gain, fatigue, mental sluggishness, and constipation warrant a rating in excess of 10 percent for his hypothyroidism. For example, as reflected in his January 2013 Notice of Disagreement, the Veteran states that he has been suffering from many symptoms due to hypothyroidism, including his considerable weight gain, and has been on continuous medications for control of his thyroid function ever since active duty. As further reflected in his substantive appeal (VA Form 9 received in March 2014), the Veteran reiterates that his hypothyroidism caused his substantial weight gain, which required a very painful gastric bypass surgery, while he also experienced muscular weakness caused by his service-connected back strain secondary to his hypothyroidism, as well as mental sluggishness. In his September 2020 correspondence, the Veteran further reiterates the presence of the symptoms such as fatigue, significant weight gain, constipation, and mental sluggishness, all listed as the rating criteria for hypothyroidism. The Veteran then notes that, for example, his service-connected PTSD does not cause mental sluggishness, his constipation is not considered under a rating for his service-connected irritable bowel syndrome, or his joint pain is not factored into a rating for service-connected back disability. As such, the Veteran believes that considerations of these symptoms in rating his hypothyroidism would not violate a rule against pyramiding. The Veteran emphasized that at his hearing he pointed out that his hypothyroidism caused significant weight gain. With that, he expresses his strong feelings that his hypothyroidism has been drastically under-evaluated all along and concludes that he should be granted a 60 percent rating. In his October 2020 correspondence, the Veteran states that his hypothyroidism meets the rating criteria for at least 30 percent from May 2000. Upon reviewing the Veteran’s contentions in context of all evidence of record and viewed in light of pertinent laws, the Board has found that rating hypothyroidism in excess of 10 percent is not warranted in this case at any time. The Veteran’s hypothyroidism is currently rated at 10 percent under Diagnostic Code (DC) 7903 listed in the schedule for rating disabilities of endocrine system. See 38 C.F.R. § 4.119, DC 7903 (2016). Of note here, during the pendency of this appeal, the rating criteria for hypothyroidism listed under DC 7903 were amended, effective December 10, 2017. In cases, like this, where the laws are amended during the pendency of the appeal, whichever rating criteria would be more favorable to the Veteran is applied to the factual circumstances of the case. But, absent a clearly expressed legislators’ intent to the contrary, even if the amended rating criteria are more favorable, the new rating criteria may be applied only for the period beginning the effective date of the amendments. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As such, the Veteran is entitled to an application of the rating criteria that are most favorable to his claim, except that any award based on the amended regulation may not be effectuated prior December 10, 2017. The most recent rating criteria, effective December 10, 2017, provides only for the initial ratings that may be assigned for a six-month period following the diagnosis. Thereafter, hypothyroidism is rated based on any residuals under the appropriate diagnostic code(s) corresponding to the effected anatomical system(s) (e.g., eye, digestive, and mental disorders). See 38 C.F.R. § 4.119, Code 7903 (2020). Upon considering that the Veteran was first diagnosed with hypothyroidism in 1997, by the time he separated from service in 2000, more than six months had elapsed. As such, under the amended criteria, the Veteran’s hypothyroidism may be rated only based on its residual effects. A June 2018 VA examination report reflects a medical opinion that the only residual effect of the Veteran’s hypothyroidism is an impaired hormone secretion function, which is and has been within the normal limits with control of hormonal substitution therapy. The residuals requiring control of hypothyroidism with medications are not among the amended criteria. It follows that rating hypothyroidism under the amended criteria would not yield a compensable rating in this case. This much is conceded by the Veteran in his September 2020 correspondence stating that the new rating schedule has nothing to do with his case. Under the version of DC 7903 in effect at the time the Veteran’s claim was received, a 10 percent is assigned for hypothyroidism with fatigability or for continuous medications required for control of thyroid function. See 38 C.F.R. § 4.119, DC 7903 (2016). The next higher rating at 30 percent is assigned for hypothyroidism causing fatigability, constipation, and mental sluggishness. Id. Of particular note here, the regulation unequivocally requires showing the causation rather than merely showing the presence of the listed symptoms. Id. A 60 percent rating is assigned for hypothyroidism causing muscular weakness, mental disturbance, and weight gain. A total rating is assigned 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. At the outset, the Board notes the Veteran’s firm belief expressed at his July 2017 hearing and reiterated in his September 2020 correspondence that his massive weight gain, serious constipation, obvious mental sluggishness, excessive fatigue, and widespread joint and muscle aching, were all caused by his hypothyroidism. In his September 2020 correspondence, while acknowledging a June 2018 examiner’s medical opinion that his reported symptomatology was attributable to causes other than his hypothyroidism, the Veteran stresses that at his July 2017 Board hearing, he pointed out that his hypothyroidism was responsible for his substantial weight gain. The Board does not doubt the sincerity of the Veteran’s statements, whether given orally under oath or submitted in-writing, and does recognize that he is competent to report the symptomatology he perceives. However, in applying the rating criteria to the Veteran’s circumstances, the Board may not simply accept as true facts his statements attributing his symptomatology to hypothyroidism. Absent any suggestion that the Veteran has specialized training, knowledge, or experience in rendering medical opinions, he is said not to possess the requisite expertise to competently discuss etiologies of medically complex disabilities. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). This is particularly true in this case involving a medically complex relationship between endocrinal, mental, digestive, neurological, and musculoskeletal disabilities. As such, the Veteran’s opinion alone is insufficient to causally link his reported symptomatology to his hypothyroidism, while the regulation unequivocally requires showing the causation rather than a mere presence of the symptoms listed under the rating criteria for hypothyroidism. Particularly in rating disabilities, the regulations further require a medical examination in every case. See 38 C.F.R. § 4.1. This is why the Board ultimately must rely on the expertise of medical examiners. To that end, upon carefully considering the Veteran’s contentions and reported symptoms, the Board specifically asked in its December 2017 remand order the examiner to determine whether the Veteran’s hypothyroidism manifested as fatigability, constipation (that is distinct from service-connected irritable bowel syndrome), mental sluggishness or mental disturbance (that is distinct from the psychiatric symptoms associated with his service-connected PTSD), and/or muscular weakness. A June 2018 VA examination report reflects an unequivocal medical opinion that the Veteran’s thyroid function levels with continuous medications have not dropped below the normal levels. By implication, his thyroid function with continuous hormonal supplement would be completely asymptomatic. As such, the examiner concludes, any symptomatology observed and reported by the Veteran stems from other etiologies. This medical opinion is consistent with the June 2003, January 2011, February 2014 VA examinations, as well as the Veteran’s VA treatment records. For example, the 2014 report reflects an examiner’s opinion that, while the Veteran’s reported being repeatedly told by his managing physicians that his obesity was related to his hypothyroidism, the opinion that hypothyroidism is a causative factor for obesity is a “corporate opinion” largely based on a “shaky good” literature. At that time, the examiner noted no past surgeries, and no current clinical signs or symptoms of hypothyroidism, apart from an impaired thyroid function requiring continuous medications. This report is aligned with the June 2003 and January 2011 VA examination reports and is further consistent with the Veteran’s VA treatment records showing the normal levels of thyroid function controlled with medications. In 2018, the examiner had the most comprehensive review of the Veteran’s claims file, to include his service and post-service treatment records, past examinations and opinions, and in-person examination. Based on the comprehensive data, the examiner unequivocally opines that the Veteran does not exhibit any clinical signs or symptoms attributable to his hypothyroidism. The examiner has noted that some psychiatric symptoms such as depression and anxiety well may stem from different etiologies but such symptoms overlap and often may be impossible to attribute to a particular etiology. Here, the Board notes that the psychiatric symptomatology, regardless of specific diagnosis, is comprehensively rated under the General Formula for Rating Mental Disorders. See 38 C.F.R. § 4.130. Otherwise, given the Veteran’s thyroid-stimulating hormone levels shown within the normal limits, his hypothyroidism is asymptomatic. By implication, apart from his depression and anxiety that conceivably may be related to his hypothyroidism but already covered under his comprehensive rating for a mental disorder at 70 percent, none of the other symptoms reported by the Veteran may be attributed to his hypothyroidism. The Veteran has not submitted any competent evidence to the contrary, which may have placed into doubt the examiner’s expertise, the soundness of the rationale offered in support of the rendered conclusion, or the veracity of the conclusion that the Veteran’s hypothyroidism is and has been asymptomatic under management with medications. As discussed, the Veteran has not been shown to possess the requisite medical expertise to provide an opinion on a complex medical question such as determining the root cause of certain physical conditions. As such, in considering the Veteran’s belief that his weight gain, constipation, mental sluggishness, and joint and muscle aches are cause by his hypothyroidism, against the competing medical opinions of record, the Board finds the medical evidence to be most probative in this case. By implication of the former finding, the Board further finds that the Veteran’s hypothyroidism has not been shown to have manifested beyond requiring control with medications. This squarely meets the criteria at 10 percent, but not higher. Ultimately, absent any symptoms shown by the medical evidence to have been caused by hypothyroidism, a rating for hypothyroidism in excess of 10 percent, be it under pre- or post-amended regulations, is not warranted. In reaching this conclusion, the Board has considered that every increased rating claim implies that the Veteran is seeking the maximum possible rating, to include a total disability based on individual unemployability (TDIU) rating which is a part and parcel of every such claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Of particular note here is a January 2011 VA examiner’s opinion that, although the Veteran’s hypothyroidism is long-standing, this condition is under fair control with current management and is the cause of only a minimal degree of any actual functional impairment or limitation of his ability to perform normal activities of daily living. This opinion fails to suggest, let alone showing, that the Veteran may be unable to obtain or maintain suitable employment on account of any limitation imposed by his hypothyroidism. See 38 C.F.R. §§ 3.340(a)(1), 4.16(a). Moreover, the Veteran has been in receipt of a TDIU rating from August 20, 2016, the day after he discontinued his employment. The Veteran has not appealed that rating action. As such, the Board has found that a TIDU rating should be neither revisited nor considered any further here. No other material issues have been expressly raised by the Veteran or reasonably raised by the evidence of record. Of final note, the Board acknowledges the Veteran’s report of being homeless, facing financial hardship, and asking for help with getting him off the streets. Unfortunately, the Board may not grant any benefits based on hardships, apart from handling his claim as expeditiously as practicable, as has been done in this case. Even if the Board were to grant the benefits sought here, such a grant would not necessarily result in any additional benefits. The Veteran is comprehensively covered under his current TDIU rating, to include the aggregate effects of his individually rated mental, digestive, neurological, musculoskeletal, and endocrinal disabilities. This rating yields the maximum monetary benefits permissible under the law on a schedular basis. In addition to the monetary benefits, a TDIU rating entitles the Veteran to an aray of other VA benefits, to include educational, vocational, counseling, group life insurance, full medical and dental treatment coverage, access to the VA and AAFES facilities, and homeless veterans program. The Veteran is encouraged to contact his local VA office to explore these benefits, and further consult the official VA website or general VA help line for the full list of all available benefits as well as the list of the VA-accredited veterans’ services organizations assisting the veterans free of charge. Meanwhile, absent any legal basis for a grant of the benefits sought here, a rating for hypothyroidism in excess of 10 percent is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alex Bardin, 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.