Citation Nr: 21012697 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-42 721A DATE: March 5, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for status post thyroid cancer, healed with residual hypothyroidism, is denied. FINDING OF FACT The Veteran's thyroid disorder has been controlled with continuous medication; during the entire appeal period, the probative evidence of record has not shown that the Veteran's thyroid disorder is manifested by symptoms of fatigability, constipation, and mental sluggishness, or that he has any other symptoms or manifestations attributable to thyroid disorder. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 10 percent for status post thyroid cancer, healed with residual hypothyroidism, have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.119, Diagnostic Code 7903. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1983 to January 1995 and August 2003 to October 2010. This case comes before the Board of Veteran's Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The case was previously remanded for further development in July 2019. During the pendency of the appeal, the criteria applicable to the disability at issue were amended, effective December 10, 2017. Prior to that date, the older criteria apply; since then, the version more advantageous to the Veteran applies. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991); VAOPGCPREC 7-2003. References to the Code of Federal Regulations (C.F.R) herein are to the current 2019 edition unless specifically noting an earlier edition. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Veteran's current evaluation was assigned under the prior version of the criteria. The former Diagnostic Code 7903 provided a 10 percent rating for hypothyroidism manifested by fatigability, or continuous medication is required for control. A 30 percent rating was warranted for fatigability, constipation, and mental sluggishness. A 60 percent rating was warranted for muscular weakness, mental disturbance, and weight gain. A 100 percent rating was warranted for cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. 38 C.F.R. § 4.119, Code 7903 (2017). The current version of the criteria, effective December 10, 2017, provide that a 100 percent rating is assigned 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)) for a period of six months after an examiner has determined the condition is stabilized. Thereafter, the residual effects of hypothyroidism are rated under the appropriate diagnostic code(s) within the appropriate body system(s) (e.g., eye, digestive, and mental disorders). For hypothyroidism without myxedema, a 30 percent rating is assigned for six months after initial diagnosis. Thereafter, residuals of disease or medical treatment, to include eye conditions, are rated under the most appropriate diagnostic code(s) under the appropriate body system (e.g., eye, digestive, mental disorders). 38 C.F.R. § 4.119, Code 7903. Even where not specifically provided, a zero percent evaluation is available. 38 C.F.R. § 4.31. The Veteran was initially awarded a 100 percent rating for his thyroid disorder effective November 1, 2010, and then assigned a 10 percent rating effective May 1, 2011. He contends he is entitled to a rating in excess of 10 percent. The Board first notes that no 10 percent rating is available under the new criteria; no reduction shall be made unless actual improvement is shown, and not merely based on a change in criteria. 38 C.F.R. § 3.951. The Board concludes that the preponderance of the evidence is against an evaluation in excess of 10 percent for the thyroid disorder. The evidence reflects that the disorder was controlled with continuous medication; and that during the appeal period, the disorder was not manifested by symptoms of fatigability, constipation, and mental sluggishness. Moreover, the medical evidence does not establish any other symptoms attributable to thyroid disorder that would warrant a higher evaluation. In April 2012, the Veteran was afforded a VA examination for his thyroid disorder. At that examination, the Veteran was noted as having a diagnosis of malignant neoplasm of the thyroid. A diagnosis of hypothyroidism was not noted. Continuous medication was noted as being required for control of the thyroid condition, but not radioactive iodine treatment for a thyroid condition. The Veteran was noted as having had a complete thyroidectomy in October 2010. The Veteran was not noted as having any residual endocrine dysfunction following treatment for the thyroid or parathyroid condition. The Veteran was also not noted as having any findings, signs or symptoms attributable to a hyperthyroid or hypothyroid condition. Specifically, fatigability, constipation and mental sluggishness were not indicated. The Veteran’s physical examination of the eyes and neck were normal, and the reflex examination was all normal. The Veteran was noted as having a scar as a result of his thyroidectomy, but such were not noted as being unstable or painful. Imaging studies were not performed. The Veteran’s TSH levels were tested and the April 2012 levels were .01. The Veteran’s thyroid condition was not noted as impacting his ability to work. The Veteran was afforded another VA examination in September 2017. At that examination a history of thyroidectomy for thyroid cancer was noted. The Veteran reported current symptoms including “tiredness at weird times.” The Veteran reported that at the time his levels were a little off and now they were okay. He reported a history of radioactive iodine treatment for a thyroid condition in 2010. The Veteran was not noted as having any residual endocrine dysfunction following treatment for a thyroid or parathyroid condition. The examiner noted that the Veteran did not have any findings, signs or symptoms attributable to a hyperthyroid or hypothyroid condition. The examiner noted scars of the Veteran’s neck, one of which was unstable or painful, and elevated or depressed. Specifically, he noted the scar of the anterior neck is slightly elevated, flesh colored, well healed and nontender. Imaging studies were not performed and the Veteran’s TSH levels were checked in November 2015 and were .40. The examiner noted the history of thyroidectomy in October 2010. The examiner noted the Veteran’s thyroid disorder did not impact his ability to work. Most recently, in January 2020, the Veteran was afforded another VA examination for his thyroid disorder. At that examination, the examiner diagnosed the Veteran with hypothyroidism, finding that such a diagnosis was made in 2010. The examiner also noted the history of a malignant neoplasm of the thyroid in 2010. The Veteran reported his history of thyroid cancer and thyroidectomy, in addition to his current need to be on continuous medication. The Veteran had not had a recurrence of the cancer and is followed by an Endocrinologist who checks his thyroid function regularly. The Veteran states he was told the studies were normal. The Veteran states he has symptoms of tiredness and feeling of being hot or cold. The examiner indicated that the Veteran did have hypothyroidism, with replacement medication of Levothyroxine dose of 100 mcg daily. The Veteran was not noted as having any residual endocrine dysfunction following treatment for a thyroid or parathyroid condition. The examiner did not note that the Veteran currently had any findings, signs or symptoms attributable to a hyperthyroid or hypothyroid condition. The examiner did not note any scars or other disfigurement of the skin related to the thyroid. Imaging studies were not performed, but the Veteran’s TSH levels were tested and came back at 1.64. The Veteran’s thyroid condition was not noted as impacting his ability to work. VA treatment records indicated that the Veteran continued to take medication (Levothyroxine) for his condition. The sole evidence of hypothyroidism reflected in competent, credible, and probative evidence of record is the use of continuous medication for control. Thyroid therapy and the associated prescription are well documented. Although the Veteran makes passing reference to symptoms included in the rating criteria for higher evaluations, to include tiredness and feeling hot or cold, such are not noted as significant symptoms at his VA examinations or in treatment records. While his lay statements are competent reports of how he is feeling, the Board assigns them little probative weight, in light of his normal TSH levels and overall report of no symptoms or findings due to his thyroid disorder. Under the old criteria effective prior to December 10, 2017, no increased evaluation is warranted. 38 C.F.R. § 4.119, Code 7903 (2017). Similarly, no increased rating is warranted under current criteria. The Veteran is well removed from the initial diagnosis and stabilization of his thyroid cancer and thyroidectomy, and so any evaluation would be based on residual manifestations. 38 C.F.R. § 4.119, Code 7903. As was just discussed, there simply are none. The Veteran takes medication and has no apparent related symptoms according to medical records and examiners. There is no advantage to him in assigning a zero percent evaluation under the amended criteria. 38 C.F.R. § 4.31. Accordingly, this claim for an initial rating in excess of 10 percent for the service- connected thyroid disorder must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). A. ADAMSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nadia Kamal, 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.