Citation Nr: 21042540 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-23 975 DATE: July 13, 2021 ORDER A rating higher than 30 precent for a thyroid disability is denied. FINDING OF FACT The Veteran's hypothyroidism is not manifested by mental disturbance, muscle weakness and weight gain due to hypothyroidism; he has not been diagnosed with myxedema. CONCLUSION OF LAW The criteria for a rating higher than 30 percent for a thyroid disability are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71(a), 4.119, 4.14, Diagnostic Code (DC) 7903. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1997 to August 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office. An August 2020 Board decision remanded this matter for a new examination and to obtain private treatment records referenced in a March 2020 VA examination. In November 2020, the Veteran was contacted to complete VA Form 21-2142 releases for non-VA medical providers. See Subsequent Development Letter, dated November 10, 2020. To date, he has not returned these releases. Prior to this, VA requested records from St. Peters Recovery Center, Community Care Physicians, and Dr. B. See MAP-D Development Letter, dated April 10, 2013. In May 2013, a second attempt was made to obtain private records related to the Veteran's thyroid treatment. See MAP-D Development Letter, dated May 7, 2013. In May 2021, the Veteran was provided a new VA examination. Therefore, the Board finds that the development is now complete in substantial compliance with remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to an evaluation higher than 30 percent for hypothyroidism. The Veteran contends that his thyroid condition is more disabling than contemplated by his currently assigned 30 percent evaluation. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. Percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated by military service and the residual conditions in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Service-connected disabilities are rated based on specific criteria identified by DCs. 38 C.F.R. § 4.27. These DCs designate percentage ratings based on the average functional impairment of the veteran due to a service-connected disability. 38 C.F.R. §§ 3.321, 4.10. In evaluating the severity of a particular disability, it is essential to consider its history. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where service connection has been established and an increase in rating is at issue, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All potential applicable diagnostic codes, whether raised by a claimant or not, must be considered. See Schafrath, 1 Vet. App. at 593. Furthermore, when it is not possible to separate the effects of a service-connected disability from nonservice-connected conditions, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only if the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report the onset and recurrence of symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Analysis The Veteran's thyroid condition is currently rated under DC 7903, hypothyroidism, and evaluated as 30 percent disabling effective December 20, 2012. See December 2016, Rating Decision. Initially, the Board notes that the Veteran is already receiving a separate disability rating for Major Depressive Disorder (MDD) with Generalized Anxiety Disorder (GAD) and alcohol use disorder. The currently assigned 70 percent rating contemplates symptoms such as depressed mood, disturbances in mood, anxiety, mild memory loss, difficulty in understanding complex commands, and impaired abstract thinking. See March 2020 Rating Decision Narrative, pg. 13. Therefore, the Board will not address these symptoms as they have been clearly attributed to the Veteran's acquired psychiatric disorder, as opposed to his hypothyroidism. Assigning other ratings based on the same symptoms that are already accounted for would result in pyramiding. 38 C.F.R. § 4.14. The Veteran's current evaluation was assigned under the prior version of DC 7903. When the regulation changes during an appeal, a Veteran is entitled to resolution of the claim under the criteria more advantageous. The old criteria can apply to the entire appeal period, but new criteria can only apply as to the effective date of the change. The Board has evaluated the disability under the old criteria both prior to and from December 10, 2017, and under new criteria from December 10, 2017. The prior version of DC 7903 provided a 10 percent rating 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 requires 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). For hypothyroidism without myxedema, a 30 percent rating is assigned for six months after initial diagnosis. Thereafter, residuals of the disease or the medical treatment, to include eye conditions, are rated under the most appropriate DCs 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, and as the Veteran was diagnosed in 2001, and service connected in 2012, his thyroid disability will be rated under the old criteria prior to December 10, 2017; thereafter, his thyroid disorder will be rated under the new rating criteria. The Court of Appeals for Veterans Claims (Court) has addressed the specific application of the rating criteria for Diagnostic Code 7903 and found that all the symptoms listed for a particular disability rating were not required to be shown 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 and resolved based on the evidence of record. The Court also stated that the rating criteria for DC 7903 are not successive. See Tatum, 23 Vet. App. at 155. A claimant could potentially establish all the criteria required for a 30 percent or 60 percent rating without establishing any of the criteria for a lesser disability rating. Id. at 156. Under DC 7903, a 30 percent rating is warranted for fatigability, constipation, and mental sluggishness. A 60 percent disability rating is warranted for muscular weakness, mental disturbance, and weight gain. A 100 percent disability rating is warranted for cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 heart beats per minute), and sleepiness. The same criteria apply for 60 percent ratings under DC 7901. A 2013 VA examination reflects that the Veteran was treated for thyromegaly while in service and was diagnosed with hypothyroidism. See April 2013 Thyroid and Parathyroid Conditions DBQ, pg. 1. The examiner noted the hypothyroidism was stable with continuous treatment with Synthroid. See id. at pg.2. The Veteran had not had a radioactive iodine treatment, surgery, or other type of treatment for his thyroid condition. Id. He did not report that he had problems related to his hypothyroidism and did not have any findings, signs, or symptoms attributable to hyperthyroidism, hypoparathyroidism, or hyperparathyroidism. See id. at pgs. 2-3. On physical examination, his neck exhibited thyroid enlargement. A 2016 VA examination reflects that the Veteran was still being treated for this thyroid disorder which was still managed with Synthroid. See December 2016, VA Examination DBQ, pg. 1. The examiner noted that the Veteran worked at a physical job as a fiberglass boat manufacturer. The Veteran reported that he did not feel energetic, reporting fatigability five of seven days of the week. He also reported symptoms of constipation. See id. at pg. 2. The examiner noted that the Veteran had not received radioactive iodine treatment, surgery, or other type of treatment for his thyroid condition. Id. at pgs. 1-2. The Veteran did not exhibit any findings, signs, or symptoms attributable to hyperthyroidism, hypoparathyroidism, or hyperparathyroidism. See id. at pgs. 2-3. On physical examination, the right side of the Veteran's thyroid was noted to be mildly enlarged and reflexes were hypoactive. See id. A 2019 VA examination reflects that the Veteran was diagnosed with hyperthyroidism, not limited to Graves' disease, in 2017. See June 2019 VA examination, pg. 1. The examiner noted that the Veteran had not received radioactive iodine treatment, surgery, or other type of treatment for his thyroid condition. Id. at pgs. 1-2. He did not exhibit any findings, signs, or symptoms attributable to hyperthyroidism, hypoparathyroidism, or hyperparathyroidism. See id. at pgs. 2-3. His reflexes were noted to be normal. See id. at pg. 3. On physical examination, his thyroid was noted to be normal. See id. The Veteran's Thyroid Stimulating Hormone (TSH) level was noted to be 11.97. See id. at pg.4. He did not report that his thyroid condition impacted his work. Id. A 2020 VA examination reflects that he was diagnosed with hypothyroidism. See March 2020 VA Examination DBQ, pg.1. The examiner noted that the Veteran had no current findings attributable to thyroid, hypothyroid or hyperthyroid conditions. See id. at pgs. 2-3. On physical examination, the Veteran's neck was normal; his reflexes were also normal. See id. at pg. 3. Lab tests in November and August 2019 each indicated a TSH of 1.958 and Free T4 of 0.72, respectively; both of which were within normal limits. See id. However, the examiner did not address the Veteran's lay statements of reported weight gain, chest tightness, hypertension, fatigue, and mood swings. Therefore, the Board remanded the matter for additional VA examination. See August 2020 Board Decision. In 2021, the Veteran was afforded a new examination. The examiner reviewed records from 2001 to the present and noted that the Veteran was diagnosed with hypothyroidism in June 2001 and an enlarged thyroid/goiter in 2008. See May 2021 VA examination DBQ, pg. 2. During the examination, the Veteran reported sluggishness, indecisiveness, difficulty with memory and concentration, stress and anxiety, depression, fluctuations with weight gain, fatigue, and sleepiness. The examiner noted that the Veteran continues to take Synthroid. The examiner noted that the Veteran did not have muscle, respiratory, cardiovascular, gastrointestinal, reproductive, skin, eye, neurological or dental-related findings, signs, or symptoms attributable to a thyroid disorder. See id. at pg. 3. The examiner noted non-toxic findings of thyroid enlargement; no findings, signs, or symptoms attributable to hyperthyroidism, hypoparathyroidism, or hyperparathyroidism were noted. See id. at pgs. 4-5. On physical examination, the Veteran was noted to have an enlarged thyroid nodule, normal eyes, normal pulse, and normal reflexes. See id. at pgs. 5-6. The examiner opined that there is a worsening of the Veteran's symptoms related to mental abilities. However, no new diagnosis has been rendered. See id. at pg. 10. The examiner noted that the Veteran complained of mental or psychological symptoms of sluggishness, difficulty with memory and concentration, anxiety, and depression. See id. at pg. 4. A mental psychological DBQ was completed by the examiner which noted that the Veteran has been diagnosed with MDD and GAD to include alcohol use disorder effective August 13, 2012. See May 2021 Mental Disorders DBQ, pg. 2. The examiner noted that the Veteran's MDD, GAD with alcohol use disorder are evaluated as 70 percent disabling and that there is symptom overlap. Although some symptoms can be distinguished in therapy, and for diagnostic purposes, it is not possible to distinguish the portion of each symptom, uniquely due to MDD versus GAD with alcohol use disorder without resorting to mere speculation because they interact, exacerbate and reinforce each other in complex ways. See id. at pg. 3. The examiner noted that hypothyroidism is known to cause and add to mental health conditions. See id. at pg. 2. The record reflects that the Veteran reported weight gain of forty pounds since service, fatigue, severe mood swings and anxiety. See Correspondence, dated July 9, 2013, at pg. 1. He also stated that he has chest tightness at times but stated that he thinks it is probably related to his asthma. See id. The Veteran also stated that he thinks he has elevated blood pressure. See Correspondence, dated July 9, 2013. The Board finds that the record on appeal does not demonstrate the requisite manifestations for a rating higher than 30 percent. For a 60 percent rating, there must be evidence of muscular weakness, mental disturbance, and weight gain due to hypothyroidism. Nor has he demonstrated myxedema. Further, he has not been diagnosed with hypertension and has not demonstrated muscle weakness. No medical professional attributed a weight gain to a thyroid disorder. See VA Treatment Record, dated August 13, 2001. The Board acknowledges the report of fatigue in the April 2013 VA examination and in lay statements but notes that these have not been attributed to his thyroid disorder. The Veteran has also not been found to have muscular weakness. The Board acknowledges that the Veteran reported a 40-pound weight gain since service but has found no probative evidence of record to indicate it is due to his thyroid disorder. Notably, the Veteran denied fatigue, weight gain or respiratory or cardiovascular symptoms in his examinations after 2013. Finally, neither the lay or medical evidence demonstrate fatigue or mental sluggishness are due to his thyroid disorder. As noted, he is currently rated at 70 percent for symptoms of MDD and GAD. Thus, consideration of these symptoms under his service-connected mental disorders as well as thyroid disorder would result in pyramiding. See Esteban, 6 Vet. App. at 261-62. The Board accepts that the Veteran is competent to report that his disability is worse. Layno, 6 Vet. App. at 469. However, the evidence does not more nearly reflect the criteria required for a higher evaluation at any time during this appeal. 38 C.F.R. § 4.7. Generally, whether a disability meets the schedular criteria for a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Although the Veteran believes he meets the criteria for a higher disability rating, the medical findings do not meet the schedular requirements for an increased evaluation as they do not demonstrate muscular weakness, mental disturbance, and weight gain, required for a 60 percent evaluation. Further, the evidence does not show that he has cardiovascular involvement or bradycardia, which is required for a higher 100 percent rating. To the extent the Veteran believes that his hypothyroidism warrants the assignment of a higher evaluation, the Board finds that he has not demonstrated symptoms required to assign a higher evaluation. The Board has also considered whether a higher or separate rating may be assigned under any other potentially applicable provision but finds that there is no basis to assign a higher or separate evaluation under any other schedular criteria. Also, the Board finds that a staged disability rating is not warranted as the evidence shows no distinct period where the disability exhibited symptoms that would warrant a higher rating from that assigned. See Fenderson, 12 Vet. App. 119 at 126; Hart, 21 Vet. App. at 505. The Board has considered rating his hypothyroidism disability under all appropriate diagnostic codes. However, the medical evidence of record does not demonstrate that, during the period pertinent to this appeal, he has had hyperthyroidism, toxic or nontoxic thyroid adenoma, hyperparathyroidism, hypoparathyroidism, or Cushing's syndrome. 38 C.F.R. § 4.71a, DCs 7900, 7901, 7902, 7904, 7905, and 7907. Accordingly, a rating higher than 30 percent is not warranted for the Veteran's disorder under any of those diagnostic codes. The Board finds that the preponderance of the evidence is against the assignment of a rating higher than 30 percent for hypothyroidism under both the old and new rating criteria. Therefore, the benefit of the doubt is not for application; the claim is denied. 38 U.S.C. § 5107(b). MARTHA R. LUBOCH Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McKenzie, 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.