Citation Nr: 21029644 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 13-30 868 DATE: May 14, 2021 ORDER The claim for an initial disability rating in excess of 10 percent for hypothyroidism is denied. REMANDED The claim for service connection for a left hip disability is remanded. The claim for service connection for obstructive sleep apnea is remanded. FINDING OF FACT The Veteran's hypothyroidism has required continuous medication for control, but has not been manifested by fatigability, constipation, or mental sluggishness, or by myxedema, mental disturbance, or other residuals. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for hypothyroidism are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.119, Diagnostic Code 7903 (2016, 2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1998 to July 2001. The issues regarding the left hip and sleep apnea were remanded by the Board in January 2019 for addition development. Each of the above listed issues were remanded by the Board in November 2020 for additional development and have been returned now following substantial compliance regarding the left hip and hypothyroidism issues. The sleep apnea issue is addressed in the remand section below. 1. Entitlement to an initial disability rating in excess of 10 percent for hypothyroidism The Veteran's hypothyroidism is currently evaluated as 10 percent disabling, under 38 C.F.R. § 4.119, Diagnostic Code 7903, for hypothyroidism. Hypothyroidism is rated under Diagnostic Code 7903. 38 C.F.R. § 4.119. The criteria for rating hypothyroidism under Diagnostic Code 7903 were amended effective December 10, 2017. 82 Fed. Reg. 50802 (November 2, 2017). The Board observes that Diagnostic Code 7903 was amended, effective December 10, 2017, (see Fed. Reg., 82 FR 50802 (November 2, 2017)); however, this appeal for a higher initial rating arose out of an award of service connection that became effective as of August 13, 2015. The amendments to the regulations at issue in the present case cannot be construed to have retroactive effect unless their language requires this result. Kuzma v. Principi, 341 F.3d 1327, 1328-1329 (2003) (citing Landgraf v. USI Film Prods., 511 U.S. 244 (1994)). Here, there is no such language in the amendments, and as such, the Board will continue to apply the former rating criteria as cited below prior to November 10, 2017. Thereafter, the Board will consider both versions of the regulation in order to determine which results in more favorable findings for the Veteran. Id. A 10 percent rating was assigned the Veteran's hypothyroidism under the prior version of Diagnostic Code 7903, which provided a 10 percent rating for hypothyroidism manifested by fatigability, or when 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 (2016). 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, Code 7903 (2017). 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. The Veteran was diagnosed with hypothyroidism after her pregnancy in 2001. She has been treated with medication ever since. The Veteran received VA examinations in September 2018, November 2019, and January 2021. Each VA examiner found that there are no symptoms related to her thyroid condition. Similarly, VA treatment records do not demonstrate the presence of fatigability, mental sluggishness, and constipation or myxedema, mental disturbance, or other residuals. Indeed, there is no evidence of complaints, diagnosis, or treatment for constipation or fatigability or mental sluggishness that have been attributed to hypothyroidism. VA treatment records do not show complications or symptoms attributed to hypothyroidism. Finally, the Veteran did not provide any lay statements during this period attesting to her thyroid condition symptomatology. Accordingly, there is no basis upon which to award an initial rating higher than 10 percent under Diagnostic Code 7903. The claim is, therefore, denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a left hip disability 2. The claim for service connection for obstructive sleep apnea is remanded. The VA opinions provided regarding proximate service connection are inadequate. Regarding the left hip disability and whether it was caused or aggravated by a service-connected disability. However, the examiner focused solely on whether the service-connected back disability was proximately related although the Veteran is contending that his service-connected bilateral lower extremity radiculopathy and cervical spine disabilities also contribute to his left hip disability. In addition, the examiner concluded that his back disability did not cause the left hip disability as there was no evidence of an abnormal gait and that his left hip was not aggravated beyond the natural progression because the back disability onset pre-dated the left hip disability onset. The examiner did not provide any explanation as to why the lack of an abnormal gait, alone, demonstrates a lack of a proximate connection between the lumbar and left hip disabilities. The examiner also did not consider a proximate connection with any other service-connected disability besides the lumbar spine disability. Finally, the examiner's rationale regarding aggravation of the left hip disability by the lumbar spine disability is not dispositive of the question on appeal. In fact, the fact that the lumbar spine disability predated the left hip disability would most likely tend to weight in the Veteran's favor when considering whether the back disability caused or aggravated the left hip disability. Regarding a direct or proximate connection between the Veteran's service-connected disabilities and her obstructive sleep apnea, the examiner failed to provide an opinion or rationale as to whether any of the service-connected disabilities caused or aggravated the sleep apnea beyond its natural progression. Also, within this issue is the question of whether the Veteran's service-connected hypothyroidism, mental health disability, or orthopedic disabilities caused the Veteran's significant weight gain, which the examiner stated is the true cause of her sleep apnea. To this end, the Board again notes that the Veteran is reporting that several of her service-connected disabilities led to her weight gain, in large part because they inhibited her ability to exercise. Moreover, the Board notes that weight gain can in fact be a symptom caused by or associated with hypothyroidism. Upon remand, the necessary opinions regarding the above listed issues must be obtained. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for her claimed left hip disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the left hip disability at least as likely as not proximately due to any service-connected disability, to include the lumbar spine, right and left lower extremity radiculopathy, cervical spine disability, or obesity caused by a service-connected disability? Is the left hip disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by any service-connected disability or obesity caused by a service-connected disability? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of her injury onset and symptoms as well as her post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of her current disability, this should be noted. Stated another way, do the Veteran's reports about her symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 2. Schedule the Veteran for a VA examination for her diagnosed obstructive sleep apnea. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is obstructive sleep apnea at least as likely as not proximately due to any service-connected disability, to include the lumbar spine, right and left lower extremity radiculopathy, cervical spine disability, or obesity caused by a service-connected disability? Is obstructive sleep apnea at least as likely as not aggravated, i.e., worsened beyond its natural progression, by any service-connected disability or obesity caused by a service-connected disability? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of her injury onset and symptoms as well as her post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of her current disability, this should be noted. Stated another way, do the Veteran's reports about her symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. B., 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.