Citation Nr: 21026693
Decision Date: 05/03/21	Archive Date: 05/03/21

DOCKET NO. 17-46 469
DATE: May 3, 2021

ORDER

Entitlement to a disability rating of 60 percent, but no higher, for hypothyroidism is granted.

FINDING OF FACT

The Veteran's hypothyroidism is manifested by muscular weakness, mental disturbance, and weight gain. 

CONCLUSION OF LAW

The criteria for a disability evaluation of 60 percent, but no higher, for hypothyroidism have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.119, Diagnostic Code 7903. 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service in the United States Air Force from April 1999 to February 2005.  This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ).  

The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2020.  A transcript of that proceeding is associated with the Veteran's claims file.

I.	Duty to Assist 

The Veteran has not raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

II.	Entitlement to an Increased Rating for Hypothyroidism 

Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The medical, as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10. 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.  Separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings.  Hart v. Mansfield, 21 Vet. App. 505. 

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 

For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date.  Otherwise, the effective date will be the date of receipt of claim.  38 U.S.C. § 5110; 38 C.F.R. § 3.400 (o)(2).  In order for entitlement to an increase in disability compensation to arise, the disability must have increased in severity to a degree warranting an increase in compensation.  See Hazan v. Gober, 10 Vet. App. 511, 519 (1992).  Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires: (1) a determination of the date of the receipt of the claim and (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Hazan, 10 Vet. App. at 521.  

The Veteran's claim for an increased disability rating of hypothyroidism was received on May 2, 2016.   The Veteran has been in receipt of a 10 percent rating under Diagnostic Code 7903 for the entire period on appeal.  

The Board notes that the criteria for rating hypothyroidism have changed during the period covered by this appeal, effective December 10, 2017.  See 82 Fed. Reg. 50802 (November 2, 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.  The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change.  However, 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 her claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. 

Hypothyroidism is rated under 38 C.F.R. § 4.119, Diagnostic Code 7903. Under the prior version of Diagnostic Code 7903, a 10 percent rating was assigned for hypothyroidism manifested by fatigability, or 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.

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). 38 C.F.R. § 4.119, Code 7903 (2018). 

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.

In rating hypothyroidism, the Court stated that the all of the symptoms listed for a particular disability rating are not required to be demonstrated in order to establish entitlement to a higher disability rating. See Tatum v. Shinseki, 23 Vet. App. 152, 155 (2009). The Court noted that symptoms that meet some of the rating criteria should be considered in light of 38 C.F.R. § 4.7 (Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned).  The Court also acknowledged the difficulty in assessing the subjective reporting of symptoms by a claimant.  In particular, the Court recognized that the credibility of a person's assertion of such a personal affliction is a key consideration with regard to a finding that the person does or does not suffer from such affliction. 

Turning to the evidence, the Veteran reported in April 2017 that her hypothyroidism had worsened.  She indicated that she was experiencing mental cloudiness, tiredness, sluggishness, and stomach problems.  She also reported having night sweats and a fluctuating high heart rate.   In September 2017, the Veteran reported that her symptoms persisted, and she indicated that she was also experiencing constipation. 

During a July 2020 hearing, the Veteran reported that her predominant symptoms from hypothyroidism include weight gain, mental sluggishness, and fatigue.  She testified to swinging between high and low points, noting that sometimes she feels jittery with heart palpitations and other times she feels sluggish and tired with mental fog and fatigue.  The Veteran also reported having abdominal pains off and on over the past 18 years, for which she has tried elaborate diets without much relief.  Additionally, the Veteran reported having muscle weakness with muscle pains and cramping due to fatigue.  The Veteran further testified that she has to periodically take time off of work when her symptoms are bad.  

The Board finds that the Veteran's reports of symptoms are credible, as they are consistent with the treating records.  Throughout the relevant period, the Veteran has undergone medication adjustments in an attempt to address her symptoms.  In November 2015, the Veteran began treating with a private physician for her hypothyroidism with complaints of weight gain, fatigue, aching, feeling brittle, and stomach problems.  Laboratory findings at this time were abnormal and her doctor attempted to stabilize her condition by changing her medication.  

However, the Veteran continued to experience difficulties.  For example, she reported in April 2016 that she reduced her medication due to heart palpitations, but she became sluggish and fatigued as a result.  Meanwhile, she was provided a Holter monitor in May 2016 to evaluate her cardiovascular symptoms.  This testing showed that she had tachycardia six percent of the time she wore the monitor and brachycardia seven percent of the time she wore it.  She also had isolated supraventricular premature complexes on three occasions.  

The Veteran was also provided a VA examination in June 2016 to assess the nature and severity of her hypothyroidism.  At this time, she reported that her medication has been adjusted numerous times to try to find the right level and she identified heart palpitations and mental fog as her predominant symptoms.  The examiner noted that the Veteran experiences cardiovascular symptoms, mental sluggishness, and need for continuous medication.  

Treating records reveal that the Veteran expressed a desire to try a different medication in June 2016, but her physician expressed skepticism it would improve her symptoms.  The Veteran did report feeling better when she returned for care in August 2016.  However, subsequent treating records reveal that her medication dosages continued to be adjusted to address her symptoms.  

After a review of all the evidence, the Board finds that the Veteran's service-connected hypothyroidism more nearly approximates the criteria for a 60 percent disability evaluation for the entire rating period on appeal under the prior version of Diagnostic Code 7903.  The record demonstrates that continuous medication is required for the Veteran's hypothyroidism, and even with medication, she continues to experience constipation, fatiguability, mental sluggishness, muscular weakness, mental disturbance, and weight gain.  

While the Veteran has cardiovascular involvement with brachycardia and tachycardia, a higher rating of 100 percent is not warranted.  Under a 100 percent rating, the criteria under both current and prior version of Diagnostic Code 7903 includes symptoms of cold intolerance and mental disturbance (such as dementia, slowing of thought, and depression).  However, there is no indication in the record that the Veteran experiences cold intolerance.  Additionally, there is no evidence that the Veteran's mental disturbances rise to the level of severity contemplated at the 100 percent rating.  In this regard, it is noteworthy that the Veteran testified to being a federal investigator who performs background checks for people getting security clearances.  She also testified that she only takes off work periodically when her symptoms are bad.  Additionally, the Veteran has not been diagnosed with myxedema, thus, under the current rating provisions of Diagnostic Code 7903, she does not qualify for the 100 percent rating.

In sum, the Board finds that a disability rating of 60 percent rating, but no higher, for the entire appeal period is warranted.     

 

GAYLE STROMMEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Beech, 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. 

 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision.  The Board may also choose to remand an issue or issues to the local VA office for additional development.   If the Board did this in your case, then a "Remand" section follows the "Order."  However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision.  The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order."

If you are satisfied with the outcome of your appeal, you do not need to do anything.  Your local VA office will implement the Board's decision.  However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: 

	Appeal to the United States Court of Appeals for Veterans Claims (Court)

	File with the Board a motion for reconsideration of this decision

	File with the Board a motion to vacate this decision 

	File with the Board a motion for revision of this decision based on clear and unmistakable error. 

Although it would not affect this BVA decision, you may choose to also: 

	Reopen your claim at the local VA office by submitting new and material evidence. 

There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office.  Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts.  If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. 

How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court.  If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court.  As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court.  You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time.  Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty.  If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. 

How do I appeal to the United States Court of Appeals for Veterans Claims?  Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims

625 Indiana Avenue, NW, Suite 900

Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court.  You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website.  The Court's facsimile number is (202) 501-5848. 

To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. 

How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal.  It is important that your letter be as specific as possible.  A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice.  If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered.  Issues not clearly identified will not be considered.  Send your letter to: 

Litigation Support Branch

Board of Veterans' Appeals

P.O. Box 27063

Washington, DC 20038

VA FORM

DEC 2016	 4597	Page 1	CONTINUED ON NEXT PAGE

 

Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time.  However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. 

How do I file a motion to vacate?  You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal.  See 38 C.F.R. 20.904.  For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested.  You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence.  Send this motion to the address on the previous page for the Litigation Support Branch, at the Board.  Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time.  However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. 

How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error?  You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE).  Send this motion to the address on the previous page for the Litigation Support Branch, at the Board.  You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once.  You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion.  See discussion on representation below.  Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. 

How do I reopen my claim?  You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim.  However, to be successful in reopening your claim, you must submit new and material evidence to that office.  See 38 C.F.R. 3.156(a). 

Can someone represent me in my appeal?  Yes.  You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you.  An accredited representative of a recognized service organization may represent you free of charge.  VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA.  An accredited representative works for the service organization and knows how to prepare and present claims.  You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/.  You can also choose to be represented by a private attorney or by an "agent."  (An agent is a person who is not a lawyer, but is specially accredited by VA.) 

If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov.  The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants.  You may also request this information by writing directly to the Court.  Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678.

Do I have to pay an attorney or agent to represent me?  An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007.  See 38 U.S.C. 5904; 38 C.F.R. 14.636.  If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision.  See 38 C.F.R. 14.636(c)(2). 

The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court.  VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. 

Fee for VA home and small business loan cases:  An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan.  See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). 

Filing of Fee Agreements:  If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If  the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3).

The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See

38 C.F.R. 14.636(i); 14.637(d).

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