Citation Nr: 21012930 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-04 214 DATE: March 8, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for a thyroid disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from December 1973 to December 1977 and from December 1990 to June 1991. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In July 2018, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In November 2018, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. 1. Entitlement to an initial rating in excess of 10 percent for a thyroid disability is remanded. The Veteran is currently assigned a 10 percent disability rating for a thyroid disability, effective October 22, 2010, pursuant to Diagnostic Code 7903. The Veteran's current rating was assigned under a prior version of Diagnostic Code 7903. The criteria for rating hypothyroidism under Diagnostic Code 7903 were amended, effective December 10, 2017. 82 Fed. Reg. 50802 (November 2, 2017). When the applicable regulation changes during an appeal, the Veteran is entitled to resolution of the claim under the criteria which are more advantageous. The old criteria can apply to the entire appeal period, but new criteria can only apply as to the effective date of the change. Here, the Board has rated the disability under the old criteria prior to and from December 10, 2017. The prior version of Diagnostic Code 7903 provided a 10 percent rating for hypothyroidism where it is manifested by fatigability or where 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, Diagnostic Code 7903. All the symptoms listed for rating under Diagnostic Code 7903 for the particular disability rating are not required to be demonstrated in order to establish entitlement to a higher disability rating. Tatum v. Shinseki, 23 Vet. App. 152 (2009). 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 rating criteria for Diagnostic Code 7903 are not successive. 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. 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 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, Diagnostic Code 7903. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim for entitlement to a rating in excess of 10 percent disabling for a thyroid disability. In a January 2021 written brief presentation, the authorized representative asserted that the Veteran should be provided a VA examination to evaluate the service-connected thyroid disability because the most recent examination was inadequate. The Board agrees that further examination is needed. VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In November 2018, the Board remanded this claim to the Agency of Original Jurisdiction for an examination to determine the current nature and severity of the service-connected thyroid disability. The Veteran was provided VA examination in June 2020. The Board finds the June 2020 VA examination to be incomplete for rating purposes as the VA examiner does not appear to have considered the Veteran's contentions regarding the service-connected disability. The examiner stated that Veteran had no finding, signs, or symptoms attributable to a thyroid condition. However, the examiner also noted the Veteran as stating that his “thyroid was out of whack.” The examiner does not appear to have asked the Veteran what signs and symptoms he was experiencing. Additionally, there is medical and lay evidence of record, to include the Veteran’s July 2018 Board hearing testimony, that shows the Veteran complaining of constipation, weight gain, fatigue, forgetfulness, and lack of motivation. A July 2018 written statement from A. Shrestha, M.D., states that physician had treated the service-connected thyroid disability since September 2015, and that the disability fluctuated and was difficult to keep stable. Therefore, the Board finds that the June 2020 VA examiner’s findings to be incomplete, considering the other evidence presented. In addition, the Board finds the June 2020 VA examination to be based on an inaccurate factual premise, and as a result, inadequate for VA purposes. The examiner stated that the Veteran’s date of claim was not prior to December 9, 2017. This is incorrect, as the Veteran’s current appeal stems from an October 22, 2010, claim filing. That is important because the current evaluation was assigned under a prior version of Diagnostic Code 7903. The criteria for rating hypothyroidism under diagnostic code 7903 were amended, effective December 10, 2017. 82 Fed. Reg. 50802 (November 2, 2017). By not noting the proper date of the claim filing, the VA examiner may have failed to consider the proper criteria when evaluating the service-connected disability. Accordingly, the Board again finds the June 2020 VA examination relied, in part, on a factually inaccurate premise. As the June 2020 VA examination has been found to be inadequate, the Board finds that there has not been substantial compliance with the Board’s November 2018 remand.  Consequently, the Board cannot consider the development requested to be substantially accomplished, and the claim must be remanded to complete the requests in the November 2018 Board remand. Stegall v. West, 11 Vet. App. 268 (1998).  The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. § 3.655. The matters are REMANDED for the following action: (Continued on the next page)   1. Contact the Veteran and request that he provide information as to treatment for the claimed thyroid disability, including the names and addresses of all health care providers whose records have not already been provided to VA. On receipt of the requested information and the appropriate releases, contact all identified health care providers and request copies of all available records pertaining to treatment of the Veteran, not already of record. If identified records are not obtained, then notify the Veteran. 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA thyroid examination to ascertain the current nature and severity of the service-connected thyroid disability. The examiner must review the record, including this Remand and the Board’s November 2018 Remand, and should note that review in the report. A rationale for all opinions should be provided. The examiner should opine as to the effects of thyroid disability on the pertinent appropriate body systems. The examiner should describe all symptoms and effects of the service-connected thyroid disability, to include any cardiovascular, neurologic, visual, weight loss, or mental symptoms. Specifically, the examiner should address each symptom that the Veteran contends to be the result of the thyroid disability and should consider the treatment records from Dr. Shrestha. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.