Citation Nr: 21013718 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-48 352 DATE: March 10, 2021 ORDER Entitlement to service connection for bronchitis is dismissed. Entitlement to an initial 30 percent rating for hypothyroid endocrine dysfunction, but no higher, is granted. Entitlement to an initial 10 percent rating, but no higher, for cholecystectomy is granted. REMANDED Entitlement to an increased initial rating for atopic dermatitis is remanded. Entitlement to service connection for rheumatoid arthritis is remanded. FINDINGS OF FACT 1. At the Board hearing in January 2021, the Veteran requested to withdraw the appeal as to service connection for bronchitis. 2. The Veteran’s hypothyroid endocrine dysfunction is manifested by fatigability, constipation and mental sluggishness. The evidence does not show muscular weakness, mental disturbance, or weight gain. 3. The Veteran’s cholecystectomy residuals result in mild symptoms. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue regarding service connection for bronchitis have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for entitlement to an initial 30 percent rating, but no higher, for hypothyroid endocrine dysfunction have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 7903. 3. The criteria for entitlement to an initial 10 percent rating, but no higher, for cholecystectomy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 7318. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1987 to October 1997. In January 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been reviewed. 1. Withdrawal of appeal for service connection for bronchitis Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn in writing or in testimony at a hearing. 38 C.F.R. § 20.204. During the January 2021 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issue of entitlement to service connection for bronchitis. The undersigned clearly identified the withdrawn issue, and the Veteran affirmed that she was requesting a withdrawal as to that appeal. See Hearing Transcript at 1. The appellant's full understanding of the consequences is shown based on the fact that prior to the hearing, the consequences of withdrawal of this claim were fully discussed by the undersigned and the appellant's representative. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities ("Rating Schedule"), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. See 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, 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. See 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. See 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. See 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits as well as the entire history of his disabilities in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 2. Increased rating for hypothyroid endocrine dysfunction An initial 10 percent rating has been assigned for hypothyroid endocrine function. The Veteran contends that a higher initial rating is warranted for hypothyroid endocrine dysfunction. At the Board hearing, the Veteran testified about her thyroid symptoms. She indicated that her thyroid symptoms include fatigue, brain fog, and constipation. A June 2017 written statement reflects her contention that she has had fatigue and sluggishness ever since being diagnosed with a thyroid condition. The Veteran’s thyroid disability is rated under Diagnostic Code (DC) 7903. Under those criteria, a 10 percent rating is assigned for fatigability or continuous medication required for control. A 30 percent rating applies with symptoms of fatigability, constipation, and mental sluggishness. A 60 percent rating applies with muscular weakness, mental disturbance, and weight gain. A 100 percent rating applies for cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. After a review of the evidence, the Board finds that a 30 percent rating is warranted for hypothyroid endocrine dysfunction throughout the rating period. The Veteran had a VA examination in October 2015. The examination noted that the Veteran was diagnosed with a goiter during service in the 1980’s. Through a series of scans, she was diagnosed with a multinodular goiter. She had been maintained on thyroid hormone replacement. The examination indicated that the Veteran did not have any findings, signs, or symptoms attributable to a thyroid condition. The Veteran had a VA examination in July 2017. The examination noted that the Veteran did not have any signs or symptoms attributable to a hypothyroid condition. The VA examinations indicated that the Veteran does not have hypothyroidism symptoms. However, the Board must also consider her lay statements about her symptoms. As noted, the Veteran reported she has brain fog, fatigue, and constipation. She is competent to report those symptoms, and her testimony is credible. Accordingly, the Board finds that the criteria for a 30 percent rating under DC 7903 are met. The criteria for a rating higher than 30 percent are not met, as the evidence does not show that her hypothyroid condition results in muscular weakness, mental disturbance, and weight gain. 3. Increased rating for cholecystectomy A non-compensable rating has been assigned for cholecystectomy based on a finding that the Veteran’s condition is non-symptomatic. The Veteran contends that a higher initial rating is warranted. At the hearing, she testified that her symptoms include indigestion and abdomen and stomach pain. The Veteran testified that her VA examinations noted mild symptoms, which warrant a 10 percent rating. Cholecystectomy is rated under DC 7318. A non-compensable rating is assigned for non-symptomatic removal of the gallbladder, 10 percent for mild symptoms, and 30 percent for severe symptoms. The Veteran had a VA examination in February 2016. The examination noted that her cholecystectomy symptoms consisted of burping, mid-epigastric discomfort to foods, and therefore decreased appetite. She did not have jaundice, right upper quadrant pain, steatorrhea/diarrhea/dumping syndrome, nor recurrent gallstones. The examiner opined that those would be the signs if she was having gallbladder residuals. The Veteran had a VA examination in July 2017. The Veteran reported abdominal pain that started years after the surgery. Her medications included antacid. The examiner characterized the cholecystectomy post-operative residuals as mild. Based on the VA examination in July 2017, the Board finds that a 10 percent rating is warranted for mild cholecystectomy residuals. A higher than 10 percent rating is not warranted, as there are no findings of severe symptoms related to the gallbladder removal. REASONS FOR REMAND 1. Entitlement to an increased rating for atopic dermatitis is remanded. A July 2017 VA examination noted that 0 percent of total body area or exposed areas are affected by atopic dermatitis. At the hearing, the Veteran contended that the VA examination was not conducted during a flare-up of dermatitis. On remand, a new VA examination should be scheduled during a flare-up of the Veteran’s skin condition. 2. Entitlement to service connection for rheumatoid arthritis is remanded. The Veteran contends that rheumatoid arthritis started in service. Specifically, she contends that complaints of joint pain in service were related to rheumatoid arthritis. Service treatment records show that the Veteran was diagnosed with a right ganglion cyst and reported shin splints and leg pain in service. VA treatment records note a history of a diagnosis of rheumatoid arthritis in 1998. The Veteran has not been afforded a VA examination to determine the etiology of rheumatoid arthritis. The case is being remanded for a VA examination and medical opinion. The matters are REMANDED for the following action: 1. Schedule a VA skin examination during a time when the skin disability is symptomatic or flaring up, to ascertain the severity of atopic dermatitis. 2. Schedule a VA examination to ascertain the nature and etiology of rheumatoid arthritis. The examiner must provide an opinion as to whether it is at least as likely as not that rheumatoid arthritis is related to service or initially manifested during service. In offering the opinion, the examiner must address the following evidence: (a) Service treatment records dated in July 1997 reflecting a diagnosis of a right ganglion cyst; (b) Service treatment records dated in June 1997 and May 1996 reflecting right arm and wrist pain; (c) Service treatment records dated in May 1991 reflecting right elbow pain; (d) Service treatment records dated in January 1994 noting a history of leg cramps. The examiner must provide a detailed rationale for the opinion. If any requested opinion cannot be provided without resorting to speculation, the examiner should explain why it is not possible to provide an opinion. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski 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.