Citation Nr: 21024020 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-39 836A DATE: April 21, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for hypothyroidism, from August 1, 2014 to December 17, 2018, is denied. Entitlement to a disability rating of 30 percent, but no higher, for hypothyroidism, from December 17, 2018, is granted. Entitlement to a disability rating in excess of 20 percent for right leg deep vein thrombophlebitis, from August 1, 2014 to December 17, 2019, is denied. REMANDED Entitlement to a disability rating in excess of 20 percent for right leg deep vein thrombophlebitis, from December 17, 2019, is remanded. FINDINGS OF FACT 1. The Veteran's hypothyroidism did not manifest as fatigability, constipation, and mental sluggishness from August 1, 2014 to December 17, 2018. 2. Affording all reasonable doubt in the Veteran’s favor, his hypothyroidism more closely resembles fatigability, constipation, and mental sluggishness from December 17, 2018. 3. The Veteran’s right leg deep vein thrombophlebitis did not manifest as persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration from August 1, 2014 to December 17, 2019. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for hypothyroidism from August 1, 2014 to December 17, 2018, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.119, Diagnostic Code 7903. 2. The criteria for a disability rating of 30 percent, but no higher, for hypothyroidism from December 17, 2018, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.400(O)(2), 4.1, 4.7, 4.119, Diagnostic Code 7903. 3. The criteria for a disability rating in excess of 20 percent for right leg deep vein thrombophlebitis from August 1, 2014 to December 17, 2019, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.104, Diagnostic Code 7121. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1990 to July 2014. This appeal is before the Board of Veterans’ Appeals (Board) from January 2015 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. The Board notes the Veteran’s claims were previously remanded in April 2020 for further development and the Board finds compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating As an initial matter, the Veteran filed his hypothyroidism increased rating claim on August 12, 2014. As will be discussed in more detail below, at the time he filed his claim for an increased rating, that version of the rating criteria provided for disability evaluations of 10, 30, 60, and 100 percent. The Diagnostic Code for hypothyroidism, was amended effective December 10, 2017. The newer and amended version of the Diagnostic Code for hypothyroidism provides only for disability evaluations of 30 and 100 percent. Because the Veteran filed for his increased rating before the amendment date and because the amendment contains no evidence of retroactivity, it is the prior older version of the Diagnostic Code that is initially applicable to the Veteran's claim on appeal. See 38 C.F.R. § 4.119 (2017) (older version of regulation); see also 38 C.F.R. § 4.119 (2019) (current version of the regulation), 82 FR 50802 (amendment discussing comments, establishing effective date, containing no evidence of retroactivity, and not claiming applicability only to post-dating claims); see also Karnas v. Derwinski, 1 Vet. App. 308 (1991) (providing rule that Veteran will benefit from whichever version of regulation is more favorable) and Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (partially overruling Karnas and requiring that retroactive application of new regulation be based on express language to that effect). The Board also notes, the Board is able to apply the old regulation for the entire period on appeal if it grants the Veteran a more favorable rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. The Veteran's service-connected hypothyroidism is currently rated at 10 percent under the previous version of Diagnostic Code 7903. 38 C.F.R. § 4.119 (2017). Under that version of Diagnostic Code 7903, a disability rating of 10 percent is assigned for “Fatigability, or; continuous medication required for control." A 30 percent rating is assigned for “Fatigability, constipation, and mental sluggishness.” A 60 percent rating is assigned for “Muscular weakness, mental disturbance, and weight gain.” Under the current version of Diagnostic Code 7903, a 30 percent rating is assigned 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. 1. Hypothyroidism from August 1, 2014 to December 17, 2018 The Veteran asserts that he should be assigned a rating in excess of 10 percent for his hypothyroidism for the period beginning August 1, 2014 to December 17, 2018. Turning to the evidence of record, a December 2014 VA thyroid and parathyroid conditions examination report included a review of the claims file, a recitation of complaints and medical history, and physical examination results. The report determined he suffered from weight gain attributable to his hypothyroidism and that his eyes were clinically normal with no exophthalmos. In an October 2015 VA treatment record the Veteran denied experiencing constipation and in a November 2016 VA record he denied experiencing chills. A December 2016 VA thyroid and parathyroid conditions examination report included a review of the claims file, a recitation of complaints and medical history, and physical examination results. The examiner noted the Veteran was diagnosed with hyperthyroidism “around 2006,” experienced symptoms of hyperthyroidism, and was prescribed Synthroid. The examiner noted: “[His] TSH was consistent with the hypothyroidism. He was complaining of gaining weight, fatigue, and cold intolerance.” The report also noted the following symptoms: cold intolerance, weight gain, and feeling tired. The following is noted in the remarks section: “He has progression of the service-connected hypothyroidism and recurrent level of the severity is moderate.” In a January 2018 private treatment record he denied experiencing chills. A March 2018 VA thyroid and parathyroid conditions examination report included a review of the claims file, a recitation of complaints and medical history, and physical examination results. The examiner noted the Veteran was diagnosed with hypothyroidism in 2006. The medical history section noted he experienced “weight gain, fatigue and cold intolerance, attributed to hypothyroidism.” The Veteran stated his symptoms of weight gain, fatigue, and cold intolerance have not changed. The examiner determined the Veteran did not have any findings, signs, or symptoms attributable to a thyroid condition or hypothyroid condition and that his eyes were clinically normal with no exophthalmos. The examiner also determined he had a hypothyroid condition and did not have a hyperthyroid condition. Lastly, the report determined he was negative for myxedema but positive for fatiguability, weight gain, and cold intolerance. After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the preponderance of the evidence is against finding that the Veteran's hypothyroidism warrants a disability rating in excess of 10 percent from August 1, 2014 to December 17, 2018. As an initial matter, the Board acknowledges the apparent typographical errors in the December 2016 and May 2018 VA examination reports. First, the December 2016 VA examination report mistakenly noted a 2006 diagnosis for hyperthyroidism, when the Veteran was in fact diagnosed with hypothyroidism. Furthermore, the examiner attributed the Veteran’s symptoms, which are generally attributable to hypothyroidism, to both hyperthyroidism and hypothyroidism. However, these errors appear to be typographical errors as the examiner noted on the rest of the examination the Veteran’s symptoms were due to hypothyroidism and that his illness was a progression of his previously diagnosed hypothyroidism. Second, while the March 2018 VA examination report in one section noted the Veteran did not have any findings, signs, or symptoms attributable to a thyroid condition or a hypothyroid condition; this appears to have been this a typographical error as the examiner later noted the Veteran had hypothyroidism with such symptoms. Thus, since these errors and did not adversely affect the Veteran in any way; and are thus harmless errors. Under the current version of Diagnostic Code 7903, Note 2 explains, “This evaluation shall continue for six 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.” 38 C.F.R. § 4.119 (2019). Here, the Veteran was diagnosed with hypothyroidism 14 years ago. Thus, due to the extreme length of time between the diagnosis and the present day, he is ineligible to receive a rating under the current version of Diagnostic Code 7903 and his symptoms will be rated under the applicable diagnostic codes. To the extent that the Veteran's fatigue can be analogous to chronic fatigue syndrome, such ratings are not applicable to fatigue associated with other clinical symptoms. 38 C.F.R. § 4.88a. Furthermore, compensable ratings for chronic fatigue syndrome are only available for periods of incapacitation with required bed rest and treatment by a physician. 38 C.F.R. § 4.88b, Diagnostic Code 6354. Here, the evidence contains multiple reports from the Veteran alleging he experiences fatigue; however, there is no indication he was incapacitated with physician required bed rest during the appeal period. Fatigue is also contemplated under Diagnostic Code 5025 for fibromyalgia. See 38 C.F.R. § 4.71a. However, the evidence of record is also devoid of any evidence he has been diagnosed with or received treatment for fibromyalgia. The Board therefore finds that a separate evaluation for fatigue is not warranted. Note 2 of Diagnostic Code 7903 also suggests rating under other body systems such as “eye, digestive, mental disorders.” However, the evidence of record does not indicate he received treatment for, or voiced complaints related to digestive issues. Moreover, the December 2014 and 2016 and March 2018 VA examinations all determined his eyes were clinically normal. Lastly, the evidence of record does not indicate he received treatment for any issues related to mental disorders, other than the above-mentioned fatigability, or any issues related to his eyes. The Board finds no other applicable diagnostic codes that would afford the Veteran a higher disability rating. The Veteran may be eligible to receive an increased rating under the previous version of Diagnostic Code 7903. To meet the requirements of a 30 percent disability rating under Diagnostic Code 7903, the Veteran’s symptoms must manifest as, “Fatigability, constipation, and mental sluggishness.” 38 C.F.R. § 4.119 (2017). Here, although the VA examinations of record indicate he experienced fatigability, the evidence of record does not contain any indication he has voiced complaints related to, or received treatment for constipation or mental sluggishness. Indeed, during this period he has repeatedly denied experiencing constipation and constipation was not mentioned during his March 2018 VA hypothyroid examination. Absent evidence to the contrary, the evidence of record reflects the Veteran’s hypothyroidism more closely resembles the 10 percent disability rating criteria during this appeal period. Thus, the evidence of record does not support the assignment of an evaluation in excess of 10 percent for the Veteran's hypothyroidism from August 1, 2014 to December 17, 2018. To the extent that any higher level of compensation is sought from August 1, 2014 to December 17, 2018 the preponderance of the evidence is against the claim. Hence the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, the Veteran's claim for a disability rating in excess of 10 percent for his hypothyroidism from August 1, 2014 to December 17, 2018 is denied. 2. Hypothyroidism from December 17, 2018 For this time period, the relevant evidence begins with a May 2019 private treatment record the indicates he subjectively reported that “he still gets fatigued, always feels cold and his weight is very hard to lose.” A September 2019 private treatment record indicated he, “has some persistent symptoms of struggles with being overweight, energy level, and cold intolerance, but has learned to live with them.” During his December 2019 Board hearing he reiterated that he experiences cold intolerance, weight gain, fatigability, sleepiness, and mental sluggishness. He also alleged that he has struggled with constipation for “a couple of years.” In January 2020, the Veteran’s coworker submitted a statement supporting the Veteran’s contentions of mental sluggishness, specifically that he has “observed [him] having moments of losing his place within the lesson plan, momentarily being lost in thought and needing to take a moment to regroup his thought process, and at times not remembering vital information.” In February 2020, the Veteran received a VA examination that determined his hemorrhoids were related to constipation caused by his service-connected hypothyroidism. Specifically, it was noted, “Hemorrhoids can develop from increased pressure in the lower rectum due to related to the constipation related to the hypothyroidism.” After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the Veteran’s hypothyroidism more closely resembles the criteria of a 30 percent disability rating, but no higher, from December 17, 2018. As stated previously, the Veteran is ineligible to be rated under the current version of Diagnostic Code 7903 because it has been 14 years since his hypothyroidism was diagnosed. See 38 C.F.R. § 4.119 (2019). Thus, his symptoms will be rated under the applicable diagnostic codes. To the extent his fatigue can be analogous to chronic fatigue syndrome, such ratings are not applicable to fatigue associated with other clinical symptoms. 38 C.F.R. § 4.88a. Furthermore, compensable ratings for chronic fatigue syndrome are only available for periods of incapacitation with required bed rest and treatment by a physician. 38 C.F.R. § 4.88b, Diagnostic Code 6354. Here, the evidence contains multiple reports from the Veteran alleging he experiences fatigue; however, there is no indication he was incapacitated with physician required bed rest during the appeal period. Fatigue is also contemplated under Diagnostic Code 5025 for fibromyalgia. See 38 C.F.R. § 4.71a. However, the evidence of record is also devoid of any evidence he has been diagnosed with or received treatment for fibromyalgia. The Board therefore finds that a separate evaluation for fatigue is not warranted. Constipation could be rated under Diagnostic Code 7319 for Irritable Colon Syndrome. A 10 percent disability rating is warranted for, “Moderate; frequent episodes of bowel disturbance with abdominal distress.” 38 C.F.R. § 4.114. Constipation could also be rated under Diagnostic Code 7321 for Amebiasis, a 10 percent evaluation is warranted for, “Mild gastrointestinal disturbances, lower abdominal cramps, nausea, gaseous distention, [and] chronic constipation interrupted by diarrhea.” 38 C.F.R. § 4.114. Here, the evidence of record only contains one isolated October 2019 record of treatment for abdominal pain; however, there is no indication it was related to his hypothyroidism. Moreover, the Veteran did not voice any complaints related to continued abdominal pain after words, indicating the October 2019 treatment to be acute and transitory. Lastly, the evidence of record indicates he never received treatment for, or voiced complaints related to any issues involving frequent episodes of bowel disturbance, lower abdominal cramps, nausea, or gaseous distention. Additionally, the Veteran is currently receiving compensation under Diagnostic Code 7336 for hemorrhoids due to constipation caused by his hypothyroidism. As such, the Board finds a separate evaluation for abdominal distress or disturbances and constipation is not warranted. Note 2 of Diagnostic Code 7903 also suggests rating under other body systems such as “eye, [and] mental disorders.” See 38 C.F.R. § 4.119 (2019). However, the evidence of record indicates he never received treatment for any issues related to mental disorders, other than the previously mentioned fatigability, or issues related to his eyes. The Veteran also complained of cold intolerance and weight gain due to his hypothyroidism; however, the Board finds no other applicable Diagnostic Codes that would afford the Veteran a higher disability rating. The Veteran may be eligible to receive an increased rating under the previous version of Diagnostic Code 7903. To meet the requirements of a 30 percent disability rating under the previous version of Diagnostic Code 7903, the Veteran’s symptoms must manifest as, “Fatigability, constipation, and mental sluggishness.” 38 C.F.R. § 4.119 (2017). Here, during his December 2019 Board hearing he testified to experiencing fatigue and mental sluggishness and a coworker corroborated witnessing these symptoms in a January 2020 letter. As to constipation, in February 2020 the Veteran was awarded service connection for hemorrhoids caused by constipation as a result of his hypothyroidism with a December 17, 2019 effective date. Furthermore, during his December 2019 Board hearing, he alleged that he has experienced constipation for “a couple of years.” Moreover, the Board finds the Veteran competent to report the symptoms of constipation and has no reason to doubt his credibility. Indeed, it is reasonable to assume his constipation must have existed prior to the onset of the hemorrhoids, which was service-connected as a result of the constipation for an effective date of December 17, 2019. As to when the Veteran’s constipation began, the Board notes that his March 2018 VA hypothyroid examination report did not note any issues with constipation, indicating symptoms of constipation began afterward. As such, the Board will grant all benefit of the doubt to the Veteran and find that his hypothyroidism manifested constipation along with fatiguability and mental sluggishness one year prior to his effective date of entitlement for hemorrhoids, on December 17, 2018. See 38 C.F.R. § 3.400(o)(2) (as the earliest date to which it is factually ascertainable based on all the evidence that an increase in disability occurred up to year prior to the claim for increase, which in this case is by analogy to the hearing date as the first time constipation was specifically claimed). In summary, the evidence of record and VA regulations support the finding that the Veteran’s hypothyroidism warrants a 30 percent rating, but no higher, from December 17, 2018. To the extent that any higher level of compensation is sought from December 17, 2018, the preponderance of the evidence is against the claim. Hence the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, the Veteran’s claim for a disability rating of 30 percent, but no higher, from December 17, 2018 for hypothyroidism, is granted. 3. Right Leg Deep Vein Thrombophlebitis from August 1, 2014 to December 17, 2019 The Veteran has been assigned a 20 percent rating for his service-connected post phlebitic syndrome right femoral vein disability throughout the appeal period under Diagnostic Code 7121. 38 C.F.R. § 4.104. Under Diagnostic Code 7121, a 20 percent rating is warranted for persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. A 40 percent rating is warranted for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent rating is warranted for persistent edema or subcutaneous indurations, stasis pigmentation or eczema, and persistent ulceration. A maximum 100 percent rating is warranted for massive board-like edema with constant pain at rest. 38 C.F.R. § 4.104. A Note to Diagnostic Code 7121 directs that these evaluations are for involvement of a single extremity; if more than one extremity is involved, each extremity is evaluated separately and combined under § 4.25. 38 C.F.R. § 4.104. Here, the evidence of record illustrates that the Veteran's right lower extremity is the sole extremity affected by his post phlebitic syndrome right femoral vein disability. Turning to the evidence of record, VA treatment records from December 2014 indicate he received treatment for right leg pain. A coinciding x-ray revealed, “mild diffuse soft tissue swelling” with “vascular calcification.” In December 2014 the Veteran underwent a VA artery and vein conditions examination report which included a review of the claims file, a recitation of complaints and medical history, and physical examination results. The report noted he experienced persistent stasis pigmentation. In the remarks section, the examiner noted the following: He currently has a dramatic soft tissue hematoma of 9 days duration in the upper anterior medial tibial area 10x7 cm with associated expected additional edema of the right lower extremity from the hematoma about the ankle and foot. VA treatment records from October and November 2015 indicate he received treatment for right leg swelling described as “notable pitting edema.” In September 2016 VA records indicate he was negative for edema. In November 2016, VA records indicate he switched medications to treat his deep vein thrombophlebitis. In December 2016 the Veteran underwent a VA artery and vein conditions examination report which included a review of the claims file, a recitation of complaints and medical history, and physical examination results. The report determined he had aching and fatigue in his leg after prolonged standing and walking and he has right leg persistent edema that is incompletely relieved by elevation. The report noted the following physical findings: He has swelling of the right leg in comparison to the left leg. Circumference on midcalf of the left leg is 41.5cm and the right leg is 45cm. So, he has right leg deep venous thrombosis he has visible small varicose not tortuous veins on the anterior and posterior aspect of the right leg. A VA record from June 2017 indicates a review of systems revealed he was negative for edema. After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the preponderance of the evidence is against finding the Veteran’s right leg deep vein thrombophlebitis warrants a disability rating in excess of 20 percent from August 1, 2014 to December 17, 2019. As previously stated, a 40 percent rating is warranted for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. 38 C.F.R. § 4.104. Here, the Board acknowledges the December 2016 VA examination determined he suffered from persistent edema. However, the evidence of record does not indicate he has suffered from stasis pigmentation or eczema of the right leg. Indeed, the evidence of record does not contain any competent or credible medical evidence the Veteran’s right leg deep vein thrombophlebitis manifested at a 40 percent rating from August 1, 2014 to December 17, 2019. As such, the preponderance of the evidence is against finding the Veteran’s right leg deep vein thrombophlebitis warrants a disability rating in excess of 20 percent from August 1, 2014 to December 17, 2019. To the extent that any higher level of compensation is sought from August 1, 2014 to December 17, 2019, the preponderance of the evidence is against the claim. Hence the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, the Veteran’s claim for a disability rating in excess of 20 percent, from August 1, 2014 to December 17, 2019 for right leg deep vein thrombophlebitis is denied. REASONS FOR REMAND 4. Right Leg Deep Vein Thrombophlebitis from December 17, 2019 During the Veteran’s December 2019 Board hearing he testified that his right leg is “permanently bigger” than my left leg and a doctor told him his right leg “will always be bigger.” He also stated, “the front part of the shin is permanently black and blue” and that a doctor told him “this will never go back.” Lastly, he stated that he experienced a “flaking skin like enzyme on my [leg]” requiring a lotion treatment. After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds there is insufficient competent evidence for the Board to render a decision. The VA has a duty to assist the Veteran obtain relevant records to support his claim. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (finding that VA’s duty to assist specifically includes requesting information from other Federal departments); see also 38 C.F.R. § 3.159(c)(2). Here, the VA has not fully satisfied its duty to seek relevant records for this Veteran. Specifically, during his Board hearing he stated a doctor told him his right leg “will always be bigger” than his left leg and that discoloring of his shin “will never go back.” However, the evidence of record does not include any medical record, private or VA, indicating that such a statement or diagnosis exists. Moreover, the Veteran also alleged that his right leg experiences a “flaking skin like enzyme” requiring lotion treatment; however, once again, the evidence of record is devoid of any medical record, private or VA, indicating complaints for, or treatment related to such a condition. As such, the Board finds the VA has not fully satisfied its duty to seek relevant medical records for this Veteran and finds that a remand for medical records and, if necessary, a VA examination, is warranted to ensure a complete record upon which to decide the claim on appeal. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. This matter is remanded for the following actions: 1. Acquire any outstanding VA treatment records and associate them with the claims file. 2. Send to the Veteran the forms necessary to authorize VA to obtain, on the Veteran's behalf, any outstanding private medical records. VA then shall make reasonable attempts to obtain those records. Such attempts must be documented in the claims file. If, after reasonable attempts have been made, these records cannot be obtained, then notify the Veteran as such in accordance with 38 C.F.R. § 3.159(e). 3. After the above development is completed, and if the RO deems it necessary, schedule the Veteran to undergo a VA examination with an appropriate clinician to determine the current severity of the Veteran’s right leg deep vein thrombophlebitis disability. The examiner should provide a full description of any present disability and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. 4. After the above is completed, readjudicate the Veteran’s claim. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.