Citation Nr: 21027180
Decision Date: 05/04/21	Archive Date: 05/04/21

DOCKET NO. 16-17 070
DATE: May 4, 2021

ORDER

Entitlement to an initial rating in excess of 10 percent for hypothyroidism is denied.

Entitlement to service connection for a left shoulder disability is denied.

Entitlement to service connection for broken right great toe is denied.

Entitlement to service connection for broken right thumb is denied.

Entitlement to service connection for viral arthritis with edema, all joints is denied.

FINDINGS OF FACT

1. The Veteran's hypothyroidism is manifested by the need for continuous medication and mental sluggishness, but not constipation and fatigability.

2. The most probative evidence is against finding that the Veteran's currently diagnosed degenerative arthritis of the left shoulder was incurred in or is related to his service.

3. The most probative evidence is against finding the Veteran has a current disability of the right thumb or right great toe or viral arthritis with edema of all joints.

CONCLUSIONS OF LAW

1. The criteria for an initial rating higher than 10 percent for hypothyroidism have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.119, Diagnostic Code (DC) 7903 (2017, 2018).

2. The criteria for entitlement to service connection for a left shoulder disability have not been met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018).

3. The criteria for entitlement to service connection for broken right great toe have not been met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018).

4. The criteria for entitlement to service connection for broken right thumb have not been met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018).

5. The criteria for entitlement to service connection for viral arthritis with edema, all joints have not been met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from March 1990 to February 2013.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2013 decision by a Department of Veterans Affairs (VA) Regional Office (RO).

1. Entitlement to an initial disability rating in excess of 10 percent for hypothyroidism

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates that rating criteria; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  All reasonable doubt as to the degree of disability is resolved in the Veteran's favor.  38 C.F.R. § 4.3.  

"Staged" ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal, irrespective of whether an initial or established rating.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999) (initial rating); Hart v. Mansfield, 21 Vet. App. 505 (2007) (established rating).

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14.

The Veteran's hypothyroidism has been assigned a 10 percent rating. For the following reasons, the Board finds that the criteria for an initial rating higher than 10 percent are not met.

Hypothyroidism is rated under DC 7903. 38 C.F.R. § 4.119. The criteria for rating hypothyroidism under DC 7903 were amended effective December 10, 2017. 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 his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change.

A 10 percent rating was assigned the Veteran's hypothyroidism under the prior version of DC 7903. Under the prior version of DC 7903, a 10 percent rating is 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, Code 7903 (2017).

The current version of the criteria, effective December 10, 2017, provide 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, DC 7903.

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, DC 7903.

The Veteran underwent a VA examination for his hypothyroidism in February 2016. He reported that his condition began in 1998 with weight gain, muscle aches, mental fogginess, hoarseness, fatigue, and constipation. At the time of the exam the Veteran reported he was only experiencing weight gain and mental sluggishness. He reported that he had been taking Synthroid continuously since 1998. The Veteran denied fatigability, cardiovascular symptoms, constipation, dementia, depression, slowing of thought, mental disturbance, surgery, muscle weakness, sleepiness, cold intolerance, and bradycardia.

The Veteran was next examined in October 2019. He reported that he continued to take Synthroid regularly to manage his hypothyroidism. The Veteran did not have any findings, signs, or symptoms attributable to a thyroid condition. He had a normal physical examination and his hypothyroidism did not impact his ability to work.

The criteria for an initial rating higher than 10 percent for hypothyroidism have not been met under the prior version of DC 7903. The evidence shows that while the Veteran's hypothyroidism has been manifested by mental sluggishness at times, he has not had fatigability or constipation. The evidence also does not show that it is manifested by muscular weakness, mental disturbance, cardiovascular involvement, bradycardia, sleepiness, or cold intolerance. The 10 percent initial rating currently assigned is based on the fact that his hypothyroidism requires continuous medication (Synthroid) for control. Accordingly, the criteria for a rating higher than 10 percent have not been met or more nearly approximated under the prior version of DC 7903.

With regard to the current version of DC 7903, as the Veteran's hypothyroidism was diagnosed many years prior to the date of claim, and has been controlled with medication, a 30 percent is not warranted. Because his hypothyroidism has not been manifested by myxedema, mental disturbance, or other residuals, a rating of 100 percent under DC 7903, or a separate rating under another appropriate diagnostic code based on residuals is not warranted.

Because the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  

Service connection may be granted for any disease initially diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d).

Service connection also may be established on a secondary basis for disability that is proximately due to, or the result of, or being aggravated by a service-connected disability. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) indication the current disability was either (a) caused or (b) is being aggravated by the service-connected disability. See 38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

2. Entitlement to service connection for a left shoulder disability

The Veteran contends that he has a left shoulder disability as a result of his service.  Ultimately though, the most probative evidence is against finding such a connection.

The Veteran underwent a VA examination of his left shoulder in October 2019.  He reported that he began having problems with his left shoulder in 2005.  He stated that he injured himself during a physical training exercise.  He explained that he initially just had left shoulder pain, which worsened over the years with current symptoms including pain and stiffness. The Veteran had decreased range of motion of the left shoulder with pain noted on examination. The examiner diagnosed the Veteran with degenerative arthritis of the left shoulder.  The examiner reviewed the medical evidence of record and cited pertinent treatment and examination records.  The examiner then opined that the Veteran's left shoulder arthritis is less likely than not related to his service.  The examiner explained there were no medical records showing diagnosis or treatment for the left shoulder or any related left shoulder strain while the Veteran was in service.

In Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the Federal Circuit recognized lay evidence as potentially competent to support the presence of a claimed disability, even where not corroborated by contemporaneous medical evidence such as actual treatment records. In other words, the mere absence of evidence does not necessarily equate to unfavorable evidence. There are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). See also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias....").

Given the unfavorable medical nexus opinion, the absence of any equally probative contrary medical opinion with adequate rationale, and the lack of treatment records noting chronic complaints, the preponderance of the evidence is against this claim for service connection for left shoulder disability. Moreover, as the preponderance of the evidence is against this claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

3. Entitlement to service connection for broken right great toe

4. Entitlement to service connection for broken right thumb

5. Entitlement to service connection for viral arthritis with edema, all joints

The Veteran contends that he has current disabilities of his right great toe and right thumb, as well as viral arthritis of all joints with edema as a result of his service.

Significantly, the Board finds that there is no current diagnosis for any of these conditions upon which to predicate a claim for service connection. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (with the absence of proof of a present disability there can be no valid claim). A current disability means a disability shown by competent and credible (i.e., probative) evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997).

At the very least, the evidence must show that, at some point during the appeal period, the Veteran has the disability for which benefits are being claimed. McClain v. Nicholson, 21 Vet. App. 319 (2007) (a claim for service connection may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain on a recent diagnosis even predating the filing of a claim).

Here, the post-service treatment records show no history of residuals or current diagnoses of disabilities of the right great toe, right thumb, or viral arthritis.  See November 2019 VA examinations.

To qualify for entitlement to compensation, a veteran must prove the existence of a disability and one that has resulted from a disease or an injury that occurred during active duty service. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (2001).  Symptoms alone are not a disability for which service connection may be granted. See id.

A more recent Federal Circuit Court case held that a diagnosis is not required to meet the current disability requirement and that pain, alone, can constitute disability if it causes impairment in earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018). This holding does away with the notion, including cited in Sanchez-Benitez, that "pain alone is not disability" in all circumstances, but this concept is still valid in that a Veteran still needs to show disability due to disease or injury in service to get service connection.  

Despite his assertions that he presently has these disabilities, the Veteran has not offered any competent and credible medical evidence supporting his assertions nor has he demonstrated that he has the knowledge, training, or education required to diagnose this type of medical disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998).

The Board therefore finds that service connection for a broken right great toe, broken right thumb, and viral arthritis of all joints with edema is not warranted as there is no current diagnoses of these disabilities or required showing of impairment in earning capacity if equating the symptoms the Veteran claims to experience to the "pain" scenario discussed in Saunders. As the preponderance of the evidence is against these claims, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

 

 

Katherine Kiemle Buckley

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Baronofsky

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.