Citation Nr: 21012068 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-09 700 DATE: March 3, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for hypothyroidism is denied. FINDING OF FACT Throughout the appeal period, the evidence more closely approximates hypothyroidism with fatigability or continuous medication required for control. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 10 percent for hypothyroidism have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.119, Diagnostic Codes 7900-7903. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from October 1986 to April 1993. The Veteran died in November 2019. The appellant is the Veteran’s surviving child. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied a higher than 10 percent rating for a thyroid condition. The Veteran testified before the undersigned Veterans Law Judge at a November 2018 videoconference hearing. A transcript of this hearing is of record. In April 2019, the Board, in pertinent part, remanded the issue on appeal for additional development. As the actions specified in the remand have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). In an October 2020 rating decision, the RO effectuated the April 2019 Board decision granting a 50 percent evaluation for combined tension/migraine headaches, effective February 8, 2010, and granting a temporary total evaluation based on surgical or other treatment necessitating convalescence following right first great toe cheilectomy, effective May 23, 2017; granted service connection for neck spinal fusion and assigned a 20 percent evaluation, effective February 8, 2010, assigned a 100 percent evaluation based on surgical or other treatment necessitating convalescence following neck spinal fusion, effective October 7, 2016, and assigned a 20 percent evaluation from February 1, 2017; granted service connection for left and right upper extremity radiculopathy and assigned each a 20 percent evaluation, effective September 15, 2019; granted service connection for scars times two and assigned a noncompensable evaluation, effective October 7, 2016; granted service connection for scar and assigned a noncompensable evaluation, effective May 23, 2017; granted service connection for hyperparathyroidism and assigned a noncompensable evaluation, effective September 15, 2019; granted a total disability evaluation based on individual unemployability due to service-connected disabilities, effective August 10, 2013; and granted basic eligibility to Dependents’ Educational Assistance under 38 U.S.C. Chapter 35 from August 10, 2013. These issues had been on appeal or arose from the claims on appeal. As these issues have been resolved by a full grant of benefits, and the appellant has not submitted any documents indicating that she is not satisfied with the decision, the Board finds that these issues are no longer part of the current appeal. See 38 C.F.R. § 19.26(d). Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. The appellant has not 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). Higher Evaluation 1. Entitlement to an evaluation in excess of 10 percent for hypothyroidism The appellant contends that the Veteran’s hypothyroidism was worse than her current evaluation reflects. At the Veteran’s November 2018 Board hearing, she testified that the complications of her thyroid condition had worsened over the past few years. She described having hair loss, fatigue, joint pain, slow energy, anxiety level “through the roof,” and being quick tempered. She said that she was treated with Synthroid for her thyroid condition. In other statements, the Veteran indicated that she experienced high calcium levels, fatigue, bone pain, and muscle soreness. See June 2018 statement. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The Veteran's hypothyroidism has been currently evaluated as 10 percent disabling, effective April 20, 1993, under 38 C.F.R. § 4.119, Diagnostic Codes 7900-7903. 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. 38 C.F.R. § 4.27. The Board notes that VA amended the criteria for rating endocrine disorders effective from December 10, 2017. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after December 10, 2017. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to December 10, 2017, Diagnostic Code 7900 provides the rating criteria for hyperthyroidism. A 10 percent rating is warranted for hyperthyroidism with tachycardia (more than 100 beats per minute), which may be intermittent, and tremor, or; continuous medication required for control. A 30 percent rating is assigned for hyperthyroidism with tachycardia (more than 100 beats per minute), tremor, and increased pulse pressure or blood pressure. A 60 percent rating is assigned for hyperthyroidism with emotional instability, tachycardia (more than 100 beats per minute), fatigability, and increased pulse pressure or blood pressure. A 100 percent rating is assigned for hyperthyroidism with thyroid enlargement, tachycardia (more than 100 beats per minute), eye involvement, muscular weakness, loss of weight, and sympathetic nervous system, cardiovascular, or gastrointestinal symptoms. Note 1 provides that if disease of the heart is predominant finding, evaluate as hyperthyroid heart disease (Diagnostic Code 7008) if doing so would result in a higher evaluation than using the criteria above. Note 2 provides that if ophthalmopathy is the sole finding, evaluate as field vision, impairment of (Diagnostic Code 6080); diplopia (Diagnostic Code 6090); or impairment of central visual acuity (Diagnostic Codes 6061-6079). Since December 10, 2017, Diagnostic Code7900 provides the rating criteria for hyperthyroidism, including, but not limited to, Graves’ disease. A single 30 percent rating is assigned for six months after the initial diagnosis. Thereafter, rate residuals of disease or complications of medical treatment within the appropriate diagnostic code(s) within the appropriate body system. If hyperthyroid cardiovascular or cardiac disease is present, separately evaluate under Diagnostic Code 7008 (hyperthyroid heart disease). 38 C.F.R. § 4.119, Diagnostic Code 7900, Note 1. Separately evaluate eye involvement occurring as a manifestation of Graves’ Disease as diplopia (Diagnostic Code 6090); impairment of central visual acuity (Diagnostic Codes 6061-6066); or under the most appropriate DCs in § 4.79. 38 C.F.R. § 4.119, Diagnostic Code 7900, Note 2. Diagnostic Code 7903 provides the rating criteria for hypothyroidism. Prior to December 10, 2017, Diagnostic Code 7903 provides a 10 percent rating for hypothyroidism with fatigability, or continuous medication required for control. A 30 percent rating is assigned for hypothyroidism with fatigability, constipation, and mental sluggishness. A 60 percent rating is assigned for hypothyroidism with muscular weakness, mental disturbance, and weight gain. A 100 percent rating is 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. Since December 10, 2017, Diagnostic Code 7903 provides a 100 percent rating 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)). Note 1 provides that this evaluation shall continue for six months beyond the date that an examining physician has determined crisis stabilization. Thereafter, the residual effects of hypothyroidism shall be rated under the appropriate diagnostic code(s) within the appropriate body system(s) (e.g., eye, digestive, and mental disorders). A 30 percent rating is assigned for hypothyroidism without myxedema. Note 2 provides that 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). Note 3 provides that if eye involvement, such as exophthalmos, corneal ulcer, blurred vision, or diplopia, is also present due to thyroid disease, also separately evaluate under the appropriate diagnostic code(s) in § 4.79, Schedule of Ratings—Eye (such as diplopia (Diagnostic Code 6090) or impairment of central visual acuity (Diagnostic Codes 6061-6066)). The U.S. Court of Appeals for Veterans Claims (Court) has addressed the specific application of the rating criteria for Diagnostic Code 7903 and found that all the symptoms listed for a particular disability rating were not required to be demonstrated in order to establish entitlement to a higher disability rating. See Tatum v. Shinseki, 23 Vet. App. 152, 155 (2009). The Court noted that symptoms that meet some of the rating criteria should be considered in light of 38 C.F.R. § 4.7 and resolved based on the evidence of record. The Court also stated that the rating criteria for Diagnostic Code 7903 are not successive. Tatum, 23 Vet. App. at 155. A claimant could potentially establish all the criteria required for a 30 percent or 60 percent rating without establishing any of the criteria for a lesser disability rating. Id. at 156. At a March 2011 VA examination, the Veteran reported having symptoms of cold intolerance, insomnia, nervousness, thinning hair, and cramps. She said that her hair loss began three months ago. She took thyroid hormone replacement therapy daily. Upon objective evaluation, the VA examiner found that the Veteran had renal functions within acceptable values. The right side of her anterior thyroid appeared larger than the left side. The Veteran was diagnosed with hypothyroidism in remission. Complications of hypothyroidism were identified as hair loss and fatigue. At a February 2013 private clinic visit, the Veteran reported having symptoms of fatigue, excessive night sweats, cold and heat intolerance, sleep disturbance, and anxiety. She continued to treat her thyroid condition with Synthroid. At a September 2015 VA examination, the Veteran reported having abnormal weight loss and alopecia. The VA examiner noted that the Veteran had signs and symptoms attributable to hypothyroid condition, including slowing of thought, weight loss, nervousness, difficulty sleeping, sweating at night, and palpitations. A 2015 thyroid ultrasound revealed thyroid nodules bilaterally. A November 2016 private treatment record documents that the Veteran had parathyroid adenoma, hyperparathyroidism, acquired hypothyroidism, and a thyroid nodule. An April 2017 laboratory test reveals that the Veteran had mildly elevated parathyroid and calcium levels. The Veteran submitted a February 2018 Thyroid Conditions Disability Benefits Questionnaire, which was prepared by her private treating physician. The private treating physician found that the Veteran had an incidental finding of hypercalcemia, which was consistent with hyperparathyroidism. The Veteran required continuous medication for control of her hypothyroidism. She underwent a parathyroidectomy in January 2018. The private treatment physician found that the Veteran had hypothyroid endocrine dysfunction following treatment, but no findings, signs or symptoms attributable to hypothyroidism was identified. At a September 2019 VA examination, the Veteran reported having palpitations, night sweats, and anxiety. The Veteran continued to treat her thyroid condition with Synthroid. Thyroid endocrine dysfunction was noted. No findings, signs, and symptoms were found to be attributable to a thyroid condition. Upon objective evaluation, the Veteran had normal eyes and neck, a regular pulse, a normal blood pressure, and normal reflexes. The VA examiner clarified that hypothyroidism, not hyperthyroidism, was the correct diagnosis. In an October 2020 VA opinion, the VA examiner reviewed relevant medical literature concerning the known symptoms of hypothyroidism. The VA examiner concluded that the Veteran’s cold intolerance, thinning hair, and fatigue were symptoms of hypothyroidism. Based on a careful review of all the subjective and clinical evidence, the Board finds that the preponderance of the evidence does not support a higher 30 percent evaluation for hypothyroidism under either the previous or amended rating criteria for endocrine disorders. Under pre-December 10, 2017 Diagnostic Code 7900, and throughout the appeal period, the Veteran’s hypothyroidism did not manifest tachycardia, tremor and increase pulse or pressure. Under post-December 10, 2017 Diagnostic Code 7900, the 30 percent rating criteria only applies for six months after initial diagnosis of hyperthyroidism. According to the September 2019 VA examiner, the Veteran did not have a diagnosis for hyperthyroidism. Under pre-December 10, 2017 Diagnostic Code 7903, and throughout the appeal period, the evidence did not more closely approximate fatigability, constipation, and mental sluggishness. Nor did the evidence suggest that the Veteran’s hypothyroidism symptoms were more closely contemplated by the rating criteria for the higher 60 and 100 percent ratings. Under post-December 10, 2017 Diagnostic Code 7903, the 30 percent rating criteria only applies for six months after initial diagnosis for hypothyroidism without myxedema. Thereafter residuals should be rated for residuals of disease or medical treatment under the most appropriate diagnostic code(s) under the appropriate body system. In this case, the evidence does not show that the Veteran had any residuals of her hypothyroidism or medical treatment. Overall, the Board finds that throughout the appeal, there is no basis upon which to award a higher 30 percent evaluation for hypothyroidism under either the previous or amended rating criteria for endocrine disorders. Accordingly, the Veteran’s hypothyroidism is no more than 10 percent disabling. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s higher than 10 percent evaluation claim for hypothyroidism. Therefore, the benefit-of-the-doubt rule does not apply, and the higher evaluation claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Journet Shaw, 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.