Citation Nr: 21022427 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-05 391 DATE: April 15, 2021 ORDER A rating in excess of 20 percent prior to August 1, 2019, for left lower extremity peripheral sensory polyneuropathy with restless leg syndrome (RLS) is denied. A rating in excess of 40 percent from August 1, 2019, for left lower extremity peripheral sensory polyneuropathy with restless leg syndrome (RLS) is denied. A rating in excess of 20 percent prior to August 1, 2019, for right lower extremity peripheral sensory polyneuropathy with RLS is denied A rating in excess of 40 percent from August 1, 2019, for right lower extremity peripheral sensory polyneuropathy with RLS is denied. A rating in excess of 10 percent for hypothyroidism is denied. REMANDED Entitlement to special monthly compensation based on loss of use of the one or both feet due to peripheral sensory polyneuropathy with RLS is remanded. FINDINGS OF FACT 1. Prior to August 1, 2019, the Veteran’s left lower extremity peripheral sensory polyneuropathy with restless leg syndrome is manifest by no more than moderate incomplete paralysis and without marked muscular atrophy. 2. Since August 1, 2019 the Veteran’s left lower extremity peripheral sensory polyneuropathy with restless leg syndrome is manifest by no more than moderately severe, without marked muscular atrophy, and incomplete paralysis. 3. Prior to August 1, 2019, the Veteran’s right lower extremity peripheral sensory polyneuropathy with restless leg syndrome is manifest by no more than moderate incomplete paralysis and without marked muscular atrophy. 4. Since August 1, 2019 the Veteran’s right lower extremity peripheral sensory polyneuropathy with restless leg syndrome is manifest by no more than moderately severe, without marked muscular atrophy, and incomplete paralysis. 5. The Veteran’s hypothyroidism is not more nearly manifested by fatigability, constipation and mental sluggishness; or muscular weakness, mental disturbance, and weight gain; or myxedema and mental disturbance. CONCLUSIONS OF LAW 1. Prior to August 1, 2019, the criteria for a disability rating in excess of 20 percent for left lower extremity peripheral sensory polyneuropathy with RLS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 2. Since August 1, 2019, the criteria for a disability rating in excess of 40 percent for left lower extremity peripheral sensory polyneuropathy with RLS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 3. Prior to August 1, 2019, the criteria for a disability rating in excess of 20 percent for right lower extremity peripheral sensory polyneuropathy with RLS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 4. Since August 1, 2019, the criteria for a disability rating in excess of 40 percent for right lower extremity peripheral sensory polyneuropathy with RLS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 5. The criteria for a rating in excess of 10 percent for hypothyroidism have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7903 (2016), Diagnostic Code 7903 (revised December 10, 2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from May 1979 to March 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran has been in receipt of a 100 percent schedular disability rating from July 31, 2013, due to service-connected disabilities. He also has been in receipt of special monthly compensation (SMC) from April 11, 2018, under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) based on left knee disability rated 100 percent and additional service-connected disabilities independently ratable at 60 percent or more. The Board remanded the issues for development in July 2018 and October 2020. The Board finds that there has been substantial compliance with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating 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. 1. Entitlement to a rating in excess of 20 percent prior to August 1, 2019, for LLE peripheral sensory polyneuropathy with RLS. 2. Entitlement to a rating in excess of 40 percent from August 1, 2019, for LLE peripheral sensory polyneuropathy with RLS. 3. Entitlement to a rating in excess of 20 percent prior to August 1, 2019, for RLE peripheral sensory polyneuropathy with RLS. 4. Entitlement to a rating in excess of 40 percent from August 1, 2019, for RLE peripheral sensory polyneuropathy with RLS. Issues: 1-4: A December 2006 rating decision granted service connection for RLE and LLE peripheral polyneuropathy and assigned a 20 percent rating for each extremity from April 1, 2006, under 38 C.F.R. § 4.124A, Diagnostic Code 8520. In March 2011, VA received a claim for increase. See VA Form 212-526b (March 2011). A September 2011 rating decision denied the claim. See Rating Decision (September 2011). This appeal arises from the Veteran’s disagreement with the September 2011 rating decision. A July 2020 rating decision granted a 40 percent rating for RLE and LLE peripheral polyneuropathy with radiculopathy and restless leg syndrome. See Rating Decision (July 2020). However, as the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim remains in appeal status. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran contends that he is entitled to a higher rating because he has “zero feeling in his knees and toes (bilaterally).” See Correspondence (February 2021). He argues that he is entitled to a higher rating for the entire period on appeal (i.e. argued as earlier effective date for the 40 percent evaluation since March 17, 2011) because he has permanent damage to the nerves in his bilateral lower extremities. He reported that the January 2021 VA examiner was “very concerned about my right leg marked muscular atrophy and foot drop which continues damage to my outer foot from my altered walking on the outside of my foot.” He added that “this is due to the numbness in my right leg.” Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. The Veteran’s bilateral lower extremity peripheral sensory polyneuropathy with restless leg syndrome was assessed during May 2011, August 2019, November 2019, and January 2021 VA examinations. See VA Examination (May, 2011); see also C&P Exam (October 2019); see also C&P Exam (November 2019); see also C&P Exam (January 2021). A. Entitlement to a rating in excess of 20 percent prior to August 1, 2019 for bilateral lower extremity (BLE) peripheral sensory polyneuropathy with RLS. The question for the Board is whether the Veteran’s BLE peripheral neuropathy was more nearly manifested prior to August 1, 2019, by moderately severe incomplete paralysis to warrant 40 percent rating or by severe incomplete paralysis, with marked muscular atrophy, to warrant a 60 percent rating. The Board concludes that the preponderance of the evidence is against finding that Veteran’s BLE peripheral neuropathy was more nearly manifested prior to August 1, 2019, by moderately severe incomplete paralysis or by severe incomplete paralysis, with marked muscular atrophy, to warrant the assignment of a disability rating in excess of 20 percent. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. Prior to August 1, 2019, the more persuasive and probative evidence of record indicates mild incomplete paralysis of the bilateral lower extremities with left calf muscular atrophy (i.e., 2 centimeters). Additionally, while foot drop is noted in the Veteran’s medical records, it is not considered as a result of complete paralysis of the sciatic nerve as contemplated under 38 C.F.R. § 4.125A Diagnostic Code 8520 and does not manifest with functional impairment analogous to amputation. A May 2011 VA examination reflects a diagnosis of bilateral lower extremity peripheral neuropathy, severe sensory motor, and RLS. The Veteran reported that he was employed and had lost time from work (2 weeks in last 12 months) due to his back and knee problems. As to his bilateral lower extremities, the Veteran reported symptoms of: weakness, numbness, pain, paresthesias, and dysesthesias, bilaterally. The examiner noted that EMG of July 2006 showed right common peroneal neuropathy; and that a June 2011 EMG showed severe sensory motor peripheral neuropathy of the lower extremities bilaterally. Physical exam disclosed abnormal gait, described as “somewhat awkward and lumbering, slight limp on left; A little bit of foot drop.” Neurological examination of the legs revealed decreased sensation to pain and light touch on lateral right leg below the knee and into the sole with significantly decreased sensitivity to pain and light touch on the sole of the left foot. The Veteran used an assistive device for ambulation, described as intermittent or occasional—a cane, but noted he was able to walk a quarter mile, and that he used the case about once a week to walk around the house or go up/downstairs. VA treatment records dated prior to August 2019 do not reflect complaints or findings for RLE or LLE nerve impairment that more nearly reflects moderately severe incomplete paralysis or worse impairment of either extremity. In this regard, they do not reflect any clear or specific impairment of motor function, trophic changes, sensory disturbance, loss of reflexes, pain, or muscle atrophy. The Board acknowledges that the Veteran uses an assistive device, which may be due to peripheral neuropathy and/or knee impairment. Notwithstanding, 38 C.F.R. § 4.120 “contemplates any impairment of motor or sensory function that would require the use of an assistive device such as a cane or walker.” Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018). In summary, the lay and medical evidence prior to August 2019 during this appeal period shows (1) hypoactive reflexes bilaterally except that plantar reflexes were normal, (2) motor exam showed decreased sensation to pain and light touch bilaterally, worse on the left -described as significant, and (3) motor exam was normal of the LLE and 4/5 (active movement against some resistance). However, there were no trophic changes of either lower extremity; there was normal muscle tone and no atrophy of either lower extremity; and no imbalance was shown. Regarding pain, the Board fully accepts that the Veteran has pain associated with his RLE and LLE peripheral neuropathy; however, a compensable evaluation is an acknowledgement of such impairment and, here, the Veteran’s 20 percent ratings for each extremity prior to August 1, 2019, contemplate that symptom. Regarding complete paralysis, while the Veteran reports “foot drop” bilaterally, there is no evidence of complete paralysis of the leg where the foot dangles and drops, no active movement possible of muscles below the knee, or flexion of knee weakened or (very rarely) lost. Further, the Veteran reported only occasional use of his cane, which suggests that he does not in fact have complete paralysis of either lower extremity. Both the lay and medical evidence are probative. Neither more nearly reflect the criteria for a higher rating than 20 percent prior to August 1, 2019. Indeed, the Board thus finds that the level of impairment is most analogous to mild incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for RLE and LLE peripheral sensory polyneuropathy with restless leg syndrome prior to August 1, 2019. Accordingly, these claims are denied. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. B. Entitlement to a rating in excess of 40 percent since August 1, 2019 for BLE peripheral sensory polyneuropathy with RLS. The question for the Board is whether the Veteran’s BLE peripheral neuropathy since August 1, 2019, has been more nearly manifested by moderately severe incomplete paralysis or complete paralysis. The Board concludes that the preponderance of the evidence is against finding that Veteran’s BLE peripheral neuropathy was more nearly manifested by severe incomplete paralysis or by severe incomplete paralysis, with marked muscular atrophy, from August 1, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. The competent, credible evidence of record shows that there is not marked muscular atrophy) or complete paralysis of the sciatic nerve. 38 C.F.R. § 4.125A Diagnostic Code 8520. An August 2019 VA peripheral nerve examination shows symptoms of paresthesias and/or dysesthesias, but not constant or intermittent pain or numbness of either lower extremity. Muscle strength was 5/5 bilaterally; reflexes were normal; and sensory exam showed absent sensation for light touch of the lower leg/ankle and foot/toes bilaterally, but no trophic changes. Gait was abnormal, but the Veteran did not use any assistive device as a normal mode of locomotion. Examination showed incomplete, moderately severe paralysis of the sciatic nerve of the BLE. In addition, it showed (1) severe incomplete paralysis of the anterior tibia (deep peroneal) nerve and (2) moderately left and severe right incomplete paralysis of the posterior tibia nerve. As to functional impairment, the exam shows: The effects of the veteran's bilateral lower extremity polyneuropathy are as follows. He has constant pain in his feet, which is a burning type pain, along with tingling and numbness in his lower legs. This causes him to have Restless Leg Syndrome. Also, he has absent sensation in his feet and lower legs, making him susceptible to injury. Lack of sensation also affects his balance while standing and walking, and interferes with taking steps on a ladder or stairway. At times, he experiences foot drop, which causes him to lose balance while walking. He has atrophy in his right calf muscle in comparison to the left, but has overall 5/5 strength in both calf muscles. He would have difficulty performing jobs that required him to be on his feet for more than short periods at a time; he should not climb ladders at work, or be required to climb stairs. He should not work from heights. A January 2021 examination reflect that the Veteran complained of weakness of the right ankle, foot, which occasionally causes him to stumble but generally results in reduced capacity for physical activity. The Veteran reported progressively worsening bilateral lower extremity numbness, right worse than left, but denied he require use of a cane or walker—noting that he is generally able to walk on level surfaces without restrictions. The Veteran complained of chronic RLE, described as painful twitching/restlessness bilateral thighs, calf muscles which occurs mostly at rest, mitigated by walking. He denied bowel and bladder dysfunction. Symptoms were (1) moderate paresthesias and/or dysesthesias and (2) RLE severe numbness and LLE moderate numbness, but not constant or intermittent pain. Muscle strength was 5/5 bilaterally although there was right calf muscle atrophy (noting normal side 42 centimeters (cm) as compared to atrophied side 40 cm.); reflexes were hypoactive in the BLE except that they were absent at the right ankle; and sensory exam showed decreased sensation for light touch of the leg/ankle and foot/toes bilaterally. There were no trophic changes. Gait was abnormal, but the Veteran did not use any assistive device as a normal mode of locomotion. Examination showed (1) BLE mild incomplete paralysis of the sciatic nerve and (2) RLE mild incomplete paralysis of the anterior tibial (deep peroneal) nerve. It noted that there were normal findings for the remaining nerves of the BLE. The examiner found that the additional condition (RLE mild incomplete paralysis of the anterior tibial (deep peroneal) nerve) is directly related to the service-connected back disability. Neither the lay nor the medical evidence supports the assignment of a rating in excess of 40 percent for BLE polyneuropathy, sciatic nerve, as it does not more nearly manifest with severe symptoms to include marked muscular atrophy or complete paralysis of either lower extremity with “no active movement possible of muscle below the knee, flexion of the knee weakened or (very rarely) lost. Specifically, the August 2019 examiner noted bilateral sciatic nerve impairment that is moderately severe. There is no indication that the Veteran manifested with symptoms that most closely resemble severe incomplete paralysis or complete paralysis of his lower extremities. Also, the Veteran’s VA treatment records do not indicate symptoms that are more nearly approximate the criteria for a higher rating. See CAPRI (May 2018). The Veteran was reported to be a “pretty active fellow” and did not evidence any lower extremity peripheral neuropathy symptoms that would indicate a higher rating. The Board has considered all other potentially applicable Diagnostic Codes, but finds no basis to assign a separate compensable rating based on any other potentially applicable Diagnostic Code. The Board acknowledges that the Veteran has been found to have RLE mild incomplete paralysis of the anterior tibial (deep peroneal) nerve. However, it has been characterized as “mild.” As such, the rating schedule provides a noncompensable (0%) rating under 38 C.F.R. § 4.124A, Diagnostic Code 8523. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for RLE and LLE peripheral sensory polyneuropathy with RLS since August 1, 2019. Accordingly, the claims are denied. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 5. Entitlement to a rating in excess of 10 percent for hypothyroidism. A December 2006 rating decision granted service connection for Hasthimoto’s thyroiditis and assigned a 10 percent rating from April 1, 2006, under 38 C.F.R. § 4.119, Diagnostic Code 7903 (2006). In March 2011, VA received a claim for increase. See VA Form 212-526b (March 2011). A September 2011 rating decision denied the claim. See Rating Decision (September 2011). This appeal arises from the Veteran’s disagreement with the September 2011 rating decision. The Veteran contends that he is entitled to an increased rating for his hypothyroidism because his medication dosage has increased, he has gained weight, and that he feels depressed. See NOD (September 2012). The Veteran noted that he has no energy, is always tired, stopped his hobbies due to fatigue and increased weight gain. See Form 9 (December 2014). The Board concludes the preponderance of the evidence is against finding a rating in excess of 10 percent for hypothyroidism. The Veteran’s hypothyroidism is not more nearly manifested by fatigability, constipation and mental sluggishness; or muscular weakness, mental disturbance, and weight gain; or myxedema and mental disturbance. The Veteran’s Hashimoto’s thyroiditis, a form of hypothyroidism, is currently rated at 10 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code 7903. 38 C.F.R. § 4.119 provides rating criteria for service-connected disabilities of the endocrine system; Diagnostic Code 7903 provides specific rating criteria for hypothyroidism. The Board notes that this Diagnostic Code was revised effective December 10, 2017. 82 Fed. Reg. 50802-50806 (November 2, 2017). Because this revision occurred during the pendency of the Veteran’s claim, whichever version is most favorable to him must be applied. However, the new version can only be applied as of its effective date. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 7-2003; Kuzma v. Principi, 341 F.3d 1327, 1328-1329 (Fed. Cir. 2003). The pre-December 2017 version of Diagnostic Code 7903 provides a 10 percent rating for hypothyroidism manifested by fatigability, or continuous medication required for control of symptoms; a 30 percent rating for hypothyroidism manifested by fatigability, constipation and mental sluggishness; a 60 percent rating when the disorder causes muscular weakness, mental disturbance, and weight gain; and a 100 percent rating when the disorder causes 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. It is noted that the Veteran has been separately rated for mental disorder, posttraumatic stress disorder (PTSD), since July 21, 2013. The current Diagnostic Code 7903, effective from December 10, 2017, provides a 30 percent rating for hypothyroidism without myxedema. Note (2) following this section in the Diagnostic Code indicates that this rating is to continue for 6 months after initial diagnosis. Thereafter, residuals of disease or medical treatment are to be rated under the most appropriate Diagnostic Code(s) within the appropriate body system. Id. The maximum 100 percent rating is reserved for manifestations 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 following this section in the Diagnostic Code indicates that this rating is to continue for 6 months beyond the date an examining physician has determined crisis stabilization. Thereafter, residual effects are to be rated under the appropriate Diagnostic Code(s) within the appropriate body system. Id. The Veteran’s VA treatment records indicate an onset of hypothyroidism in 2006. See CAPRI (October 2013). The treatment records noted that the Veteran’s hypothyroidism is ‘controlled.’ The Veteran reported for follow-up encounters for his hypothyroidism and reported the disability was “ok” and that he was on medications. The Veteran’s treatment records indicate him being ‘alert and oriented’ during his treatment encounters. Additionally, the Veteran denied constipation during his treatment encounters. September and October 2019 VA thyroid examinations reflect a diagnosis of Hashimoto’s thyroiditis. The Veteran reported having problems with his weight and described cold intolerance; and he noted use of prescribed medication to control his hypothyroidism. There were no findings, signs, or symptoms attributable to a thyroid condition (e.g.; mental and psychological symptoms, gastrointestinal symptoms, etc.) except that there was mental disturbance described as depression on the September 2019 VA examination. The Veteran reported the functional impact of his condition as low energy, fatigue, and sluggishness reducing his productivity. A January 2021 VA thyroid examination reflects similarly. At this time, the Veteran reported that he takes two medications for control of chronic hypothyroidism. He reported difficulty losing weight, but acknowledged a reduction in physical activity and that he is able to lose weight quickly with keto-diet. He complained of cold intolerance stating that he feels cold even in warm weather. He denied constipation or diarrhea although he stated he has diverticulosis which with certain foods will cause loose stools. There were no findings, signs, or symptoms attributable to a thyroid condition, such as, enlarged thyroid, palpable nodules, or mental disturbance. The Veteran was not found to manifest with any pertinent physical findings, complications, conditions, signs, or symptoms associated with hypothyroidism. Although the Veteran reported cold intolerance, there was no myxedema found upon examination. Here, neither the lay nor the medical evidence supports a rating in excess of 10 percent at any time during the appeal period. In this regard, first, the evidence does not show symptoms of fatigability, constipation and mental sluggishness, as required for a 30 percent rating under the older code; or muscular weakness, mental disturbance, and weight gain, as required for a 60 percent rating under the older code. 38 C.F.R. § 4.119, Diagnostic Code 7903 (2016). Second, although the evidence reflects that there is hypothyroidism without myxedema during the appeal period, a 30 percent rating is not warranted under the current schedular criteria because, as provided in Note (2), this rating is assignable for a 6 months after initial diagnosis only and then, thereafter, the residuals of disease or medical treatment are to be rated under the most appropriate Diagnostic Code(s) within the appropriate body system. Here, the Veteran’s condition was initially diagnosed in 2006 by serology, which was long before the rating criteria were revised and permitted an initial temporary 30 percent rating for hypothyroidism without myxedema. Third, there are no residuals effects of the Veteran’s hypothyroidism ratable under another Diagnostic Code for that bodily system. It is noted that the Veteran is already separately rated for mental disorder at 50 percent, which contemplates depression to the extent there is any. The Board has considered the Veteran’s statements regarding the severity of his fatigability and the resulting decrease in performance of his hobbies; however, his fatigability is expressly contemplated by the current disability rating criteria. Also, to the extent that there is mental sluggishness per the Veteran, he is separately rated for mental disability and the Veteran’s treatment records indicate him being alert during his treatment encounters. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Although the Veteran may believe he meets the criteria for a higher disability rating, the Board finds that his complaints along with the medical findings do not meet the schedular requirements for a higher evaluation during the appeal period, as explained above. The Board has considered whether a higher or separate evaluation may be assigned under any other potentially applicable criteria. However, there is no other basis to award a separate or higher evaluation. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND Entitlement to special monthly compensation (SMC) based on loss of use of the one or both feet due to peripheral sensory polyneuropathy with RLS is remanded. The Veteran contends that an award of SMC based on loss of use of one or both feet due to peripheral sensory polyneuropathy with RLS is warranted. See Correspondence (February 2021). It is well-established that the filing of a formal claim for SMC is not necessary if such is being sought as part and parcel of a pending claim for an increased evaluation, as the former is an ancillary benefit of the latter. See Payne v. Wilkie, 31 Vet. App. 373, 385-91 (2019). Here, to ensure due process of law, the matter is remanded to the originating agency for consideration in the first instance, to include notifying the Veteran of the information and/or evidence required to establish entitlement to that benefit. The matters are REMANDED for the following action: 1. Provide the Veteran with notice of the information and/or evidence required to substantiate his claim for SMC based on loss of use of one or both feet. 2. After conducting any development deemed necessary, adjudicate the claim of entitlement to special monthly compensation (SMC) based on loss of use of the one or both feet due to service-connected disability including bilateral lower extremity peripheral sensory polyneuropathy with RLS. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. A. Macek, 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.