Citation Nr: 21026214 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 07-05 800 DATE: April 30, 2021 ORDER Entitlement to a disability rating of 60 percent for hypothyroidism is granted. REMANDED Entitlement to a disability rating in excess of 60 percent for hypothyroidism is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT At all times relevant to the appeal, the Veteran’s hypothyroidism has been manifested by fatigability, decreased energy, decreased motivation, emotional imbalance/instability, sleepiness, depression, mental sluggishness, muscular weakness, and mental disturbance. CONCLUSION OF LAW The criteria for a disability rating of 60 percent, and no higher, for hypothyroidism have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7903. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1978 to October 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2005 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In June 2017, the Veteran Veteran’s SSA records were obtained and raise the issue of whether he was unemployable due to his service-connected disabilities. The Board takes jurisdiction of the issue of entitlement to a TDIU because it is part and parcel to the increased rating claim on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In a November 2009 decision, the Board denied a rating in excess of 10 percent for hypothyroidism. The Veteran appealed the Board’s November 2009 decision to the United States Court of Appeals for Veterans Claims (Court), which in a May 2011 order, granted the parties’ Joint Motion for Partial Remand (JMPR), vacating the portion of the Board’s November 2009 decision pertaining to an increased rating for hypothyroidism and remanding the claim for compliance with the terms of the JMPR. In compliance with the Court’s order, the Board remanded this matter in November 2011, February 2016 and in June 2017 for additional development. 1. Entitlement to a disability rating in excess of 10 percent for hypothyroidism The Veteran contends that his symptoms of service-connected hypothyroidism warrant a disability rating in excess of 10 percent. At all times relevant to the appeal, the Veteran’s hypothyroidism has been rated under Diagnostic Code 7903. The criteria for Diagnostic Code 7903 were amended during the pendency of the appeal. The effective date of the amended criteria is December 10, 2017. When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. However, the amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; and, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. Under the prior rating criteria within Diagnostic Code 7903, in effect before December 10, 2017, a 10 percent rating was assigned for hypothyroidism with fatigability, or when continuous medication was required for control. A 30 percent rating was assigned when hypothyroidism caused fatigability, constipation, and mental sluggishness. A 60 percent rating was assigned when hypothyroidism caused muscular weakness, mental disturbance, and weight gain. A 100 percent rating was assigned for hypothyroidism with 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. The current version of the criteria, effective December 10, 2017, provides 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. As the evidence of record does not reflect that the Veteran has myxedema, he is not entitled to a higher initial disability rating under the new rating criteria; therefore, the Board will address whether a higher disability rating is warranted under the prior rating criteria. The Veteran was afforded a VA thyroid and parathyroid diseases examination in October 2006. The Veteran reported having easy fatigability, decreased energy, and decreased motivation, but denied heat/cold intolerance and constipation. He further reported intermittent, mild fecal incontinence. The Veteran then reported not taking his levothyroxine on a regular basis due to homelessness. The examiner opined that there is no evidence of any worsening of the Veteran's condition and stated that as long as he is able to take his medication on a regular basis, there is no expected worsening of his condition. The Veteran was afforded a VA contract examination in March 2008. The Veteran reported fatigability, emotional instability, sleepiness, depression, and weight loss of 20 pounds in 1 year, though he stated that he cannot afford to buy food. He denied cold/heat intolerance. He further reported bowel incontinence. It was noted that he has been treated with levothyroxine since 1991. The Veteran was afforded a VA thyroid and parathyroid examination in December 2012. A diagnosis of hypothyroidism was noted. Continuous medication for control was noted, as was psychiatric treatment. It was then noted that the Veteran reported feeling older than he is. Fatigability, muscular weakness, frequent bowel movements and weight loss were noted, as was mental disturbance. An addendum was obtained in July 2013 to clarify which symptoms pertain to the Veteran's hypothyroidism. The VA examiner opined that the claimed condition was less likely than not incurred in service, noting that, based on the November 2006 examination, there is no evidence of any worsening of the Veteran's condition. The examiner then found that based on the opinion of the 2008 examiner, it is less likely than not that the symptoms of emotional instability and fatigability are related to his hypothyroidism, noting that hypothyroidism does not cause diarrhea. The examiner then opined that it is less likely than not that whatever unspecified symptoms he reported in 2012 are associated with his hypothyroidism due to the ameliorating effects of his medication, further noting that lab results show his thyroid functioning is within normal limits. The Veteran was afforded a VA thyroid and parathyroid conditions examination in July 2016. A diagnosis of hypothyroidism was noted, as was hypothyroid endocrine dysfunction, though with no current attributable findings, signs, or symptoms. The examiner then noted that based on all available records since 2004, the Veteran has not had a diagnosis of hyperthyroidism, hyperparathyroidism or hypoparathyroidism and that his complaints of bowel movement abnormalities, muscular weakness, mental disturbance, and weight changes would have occurred during the time period before his Graves’ disease including hyperthyroidism, was treated or if/when the Veteran does not adhere to the daily thyroid medication regimen. A VA medical opinion was obtained in May 2019. The examiner reviewed the record, including the prior VA examinations, and opined that the Veteran does not have an additional thyroid disorder. It was then noted that the Veteran's TSH has been elevated at times as a result of failure to take sufficient levothyroxine, which is an issue of management, and not an issue of the degree of hypothyroidism. Regarding the 2012 examination, it was noted that the provider marked fatigability, weight loss, frequent bowel movements, muscular weakness, and mental disturbance as symptoms attributable to hyperthyroidism. It was noted that the rest of the report is consistent with hypothyroidism and that symptoms of hyperthyroidism and hypothyroidism can be alike in presentation. The examiner then stated that it is likely the Veteran had these symptoms secondary to his hypothyroid diagnosis. The VA examiner then opined that there is no new disability observed in the current exam, the 2012 exam or in the records reviewed. The examiner then noted that the "records consistently state" the Veteran had Graves in 1979 that was treated by radioactive iodine and ablation and has since been treated with medication for hypothyroidism. The VA examiner further opined that the variations in the Veteran's TSH, T3 and T4 levels are typical of long-term management of hypothyroidism and do not reflect a fundamental worsening of his hypothyroidism or emergence of another thyroid-related disorder. The VA examiner then opined that the Veteran's fatigability, decreased energy, decreased motivation, emotional imbalance/instability, sleepiness, depression, mental sluggishness, muscular weakness, and mental disturbance are likely due to his hypothyroidism. After consideration of the lay and medical evidence of record, the Board finds that, at all times relevant to the appeal, the Veteran’s hypothyroidism has been manifest by fatigability, decreased energy, decreased motivation, emotional imbalance/instability, sleepiness, depression, mental sluggishness, muscular weakness, and mental disturbance, and thus meets the criteria for a 60 percent rating, but no higher, under Diagnostic Code 7903. The Board notes that the while the Veteran experiences some degree of mental disturbance, he has not presented with cardiovascular involvement, bradycardia, or heat or cold intolerance, and as such, the overall record shows that the Veteran's symptoms more closely approximate the 60 percent rating. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 60 percent for hypothyroidism is remanded. In February 2016, the Board remanded this matter, directing the RO to afford the Veteran an endocrinology examination to determine the current severity of his hypothyroidism. The Board specifically advised the examiner that all prior VA examinations regarding hypothyroidism had been found to be inadequate. A VA medical opinion was obtained in May 2019 in which the examiner heavily relied on the prior VA examinations, provided opinions without rationale, did not comment on the functional impact of the Veteran’s hypothyroid condition, and made no reference to any current effects. In fact, the Board notes that there is no documentation that the Veteran was ever contacted to be present at an examination. A Board remand confers upon an appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271; D'Aries v. Peak, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). When VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Based on the above, this matter is remanded to provide the Veteran a VA examination. 2. Entitlement to a TDIU. Finally, because a decision on the remanded issue of an increased rating for hypothyroidism could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined, and a remand is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hypothyroidism. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner should comment on the Veteran’s complaints of bowel movement abnormalities, muscular weakness, mental disturbance, and weight changes. The examiner is asked to comment on the functional impact of the Veteran’s symptoms, to include impact on his ability to work. 2. Give the Veteran an opportunity to clarify his work history and submit a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in addition to any additional evidence that is relevant with regard to the claim for a TDIU. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.