Citation Nr: 22019466 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 13-04 553 DATE: April 1, 2022 ORDER Entitlement to an initial rating in excess of 10 percent for hypothyroidism is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's hypothyroidism has been controlled with continuous medication and manifested as fatigue and mental sluggishness without constipation or myxedema or any other residual signs or symptoms as detailed in the rating criteria. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for hypothyroidism have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.119, Diagnostic Code 7903 (2016, 2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1997 to January 2011. He was awarded the Combat Action Badge and the Purple Heart medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board denied the instant appeal in an April 2015. The Veteran subsequently appealed the April 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2016 Memorandum Decision, the Court partially vacated the Board's decision and remanded, in relevant part, the issue of entitlement to an increased rating for hypothyroidism. In July 2017, December 2020 and November 2021, the Board remanded this matter for additional development. Specifically, the matter was remanded to obtain an opinion as to the nature and severity of the Veteran's hypothyroidism and to obtain updated VA and private treatment records. Updated VA treatment records have been associated with the file and a February 2021 letter requested that the Veteran complete an appropriate authorization form to allow VA to obtain records on his behalf. VA examinations were conducted in August 2021 and December 2021. The Board therefore finds that there has been substantial compliance with its previous remands. 1. Entitlement to an initial rating in excess of 10 percent for hypothyroidism is denied. The Veteran contends that a higher rating for his hypothyroidism is warranted. Specific argument in support of this appeal has not been submitted. 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 his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's hypothyroidism is currently rated as 10 percent disabling under Diagnostic Code 7903. He filed his initial service connection claim in December 2010, prior to separation from service in January 2011. Diagnostic Code 7903 was amended on December 10, 2017. The Veteran's current 10 percent rating is based on the previous criteria. Under those criteria, a 10 percent rating was warranted for fatigability, or; continuous medication 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 (2016). Under the current version of Diagnostic Code 7903, a 30 percent rating is assigned for hypothyroidism without myxedema. Note (2) appending the 30 percent criteria states that this evaluation shall continue for six months after initial diagnosis. Thereafter, rate residuals of disease or medical treatment under the most appropriate diagnostic code(s) under the appropriate body system (e.g., eye, digestive, mental disorders). Note (3) states that if eye involvement, such as exophthalmos, corneal ulcer, blurred vision, or diplopia, is also present due to thyroid disease, also separately evaluate under the appropriate diagnostic code(s) in §4.79, Schedule of Ratings Eye (such as diplopia (Diagnostic Code 6090) or impairment of central visual acuity (Diagnostic Codes 6061-6066)). 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. Note (1) appending the 100 percent criteria states that this evaluation shall continue for six months beyond the date that an examining physician has determined crisis stabilization. Thereafter, the residual effects of hypothyroidism shall be 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, Diagnostic Code 7903. An October 2010 Medical Evaluation Board Narrative Summary Report indicated the Veteran was sent for endocrinology evaluation after completion of screening labs. Thyroid nuclear medicine studies confirmed Grave's disease and the Veteran opted for radioablation with residual post-treatment diaphoresis, tremors, and anxiety which did not require inpatient management. Tremors, profuse sweating, palpitations, and anxiety symptoms were resolved by his August 2020 visit such that he did not feet further propranolol use was warranted. Further subjective improvement in energy level and fatigues were reported on his October 2010 followup (also likely contribution from CPAP titration). In a December 2010 private treatment note, the Veteran reported he had a history of Grave's disease and type 2 diabetes. He stated he wis feeling healthy except he continues to struggle with weight and has gained an additional 11 pounds. The Veteran reported feeling tired and recent weight gain to inability to exercise. He also reported hot flashes and sleep disturbances, which were improved with continuous positive airway pressure (CPAP). During a December 2010 VA examination, the Veteran reported his problem is stable and his symptoms were also resolved. The Veteran denied fatigue, hair and skin symptoms, muscle symptoms, eye symptoms, neck symptoms and gastrointestinal symptoms, but reported anxiety, heat intolerance, and palpitations. The examiner reported a diagnosis of Grave's disease in remission. The examiner reported no complications of the disease but indicated the effect on usual occupation was increased absenteeism. He had lack of staminal weakness or fatigue, but the problem is in remission. In a February 2011 VA speech pathology note, the examiner noted all cognitive skills on this assessment were within the normal range. In a February 2011 VA traumatic brain injury (TBI) examination, the Veteran reported lifelong mild decreased attention and concentration, severe forgetfulness/decreased memory over the last three to five years, mild slowed thinking, severe fatigue and loss of energy, moderate anxiety since 2005. The Veteran denied constipation. In an August 2012 VA TBI examination, the examiner note that the Veteran has recovered from the TBI and has no functional deficits due to TBI, and, therefore, other issues are responsible for the majority of the Veterans symptoms/difficulties. In an October 2012 statement, the Veteran asserted he has fatigue and mental sluggishness. The Veteran underwent an additional VA examination in December 2013. The examiner noted the Veteran has fatiguability that is not incapacitating. In a December 2010 VA addendum, the examiner noted that this Veteran is service connected for hypothyroidism. He reported he did undergo eradiation with I-131 and he is currently taking Synthroid for hormone replacement for the thyroid. He described only occasional fatigue that is not incapacitating, occasional tremors, no gastrointestinal problems or edema. His weight is steady, and he did not describe visual problems. His last thyroid function studies were done in August 2013 and were noted to be normal, with a normal T4 and TSH level on current medications. Overall condition is stable. In a June 2015 VA progress note, the Veteran reported short-term memory difficulty and forgetfulness. The examiner noted a history of traumatic brain injury without loss of consciousness. In a December 2016 VA progress note, the Veteran complained of episodic memory loss. He stated he is thinking slower than before, and it seems to be slowly progressing. He reported a history of two improvised explosive device (IED) blasts in Iraq in 2005. During a March 2018 VA examination, the Veteran reported fatigue and dry skin to areas on the arms. The examiner noted the Veteran has skin symptoms attributable to a thyroid condition. In a March 2018 VA skin examination, the examiner noted a diagnosis of dermatitis with dry skin, redness to the arms. The dermatitis consisted of less than five percent of the total body area and no exposed areas. In an April 2018 VA opinion, the examiner noted that at separation exam in 2011, the Veteran's weight was 250 pounds. An October 2017 visit showed the Veteran weighing 272 pounds. Additionally, a visit from February 2013 noted Veteran to be experiencing fatigue, weight gain and dry skin. Symptoms of hypothyroidism may include fatigue, weight gain, cold sensitivity, muscle aches and weakness, and mental sluggishness. In July 2018, November 2019, and December 2020 VA progress notes, the Veteran reported his symptoms are well controlled on current dose of levothyroxine and he denied any skin changes, hair changes, mood changes, or weight changes. During an August 2021 VA examination, the Veteran reported that the condition had stayed the same since onset. Current symptoms included fatigue. The examiner noted no signs or symptoms attributable to a thyroid condition. The Veteran stated he has daily fatigue and gets very sleepy at work and has difficulty staying awake. The Veteran has fatigue daily, but denies sluggishness, weakness, and mental disturbance. The examiner noted that the Veteran has mild symptoms of fatigue and cold intolerance associated with hypothyroidism but unrelated to myxedema. The Veteran underwent an additional VA examination December 2021. There was no evidence of any signs or symptoms related to hypothyroidism. There was no evidence of myxedema or mental disturbance. In a December 2021 opinion, the VA examiner noted that considering history related by the Veteran, the current exam findings and medical record review, the examiner opined the Veteran's currently claimed post-service weight gain, fatigability, mental sluggishness, muscular weakness, or mental disturbances are less likely than not symptoms related his hypothyroidism. The examiner explained that weight gain, fatigability, mental sluggishness, weakness, mental disturbances can be symptoms of untreated hypothyroidism. However, the examiner noted that VA medical records showed since starting Synthroid in 2011, the Veteran's thyroid levels have been overall therapeutic and his Synthroid dosage remained stable over time (initial dosage 150mcg, currently on 200 mcg). The examiner noted that the Veteran stated that he has not been experiencing any significant fatigue, mental disturbances, or muscle weakness and that his weight has been stable since gastric bypass surgery in 2021. Therefore, the examiner noted that weight gain, fatigability, mental sluggishness, muscular weakness, or mental disturbances are less likely than not symptoms related his hypothyroidism. After a review of the medical and lay evidence, a rating in excess of 10 percent is not warranted. VA examinations during the period on appeal do not document findings consistent with an evaluation in excess of 10 percent under either the former or the revised rating criteria. As noted in the December 2021 VA opinion, the Veteran responded well to the medication prescribed for his hypothyroid condition, as his thyroid levels have been overall therapeutic and his Synthroid dosage remained stable over time and the Veteran stated that he has not been experiencing any significant fatigue, mental disturbances, or muscle weakness. Specifically, under pre-December 10, 2017 Diagnostic Code 7903, the evidence did not more closely approximate fatigability, constipation, and mental sluggishness. The only symptom suggested to be related to his hypothyroidism is fatigue. At no point has the Veteran reported constipation. Furthermore, although the Veteran has asserted mental sluggishness and the VA treatment records show evidence of complaints of mild memory loss, at no point have these symptoms been associated with the Veteran's hypothyroidism. In fact, the December 2021 VA examiner specifically found the Veteran did not have mental sluggishness associated with his hypothyroidism. The Board recognizes that the August 2021 VA examiner indicated the Veteran has cold intolerance associated with hypothyroidism which is a symptom of a total disability rating; however, the totality of the evidence does not suggest that the Veteran's hypothyroidism symptoms were more closely contemplated by the rating criteria for the higher 60 and 100 percent ratings. Under post-December 10, 2017 Diagnostic Code 7903, the 30 percent rating criteria only applies for six months after initial diagnosis for hypothyroidism without myxedema. Thereafter residuals should be rated for residuals of disease or medical treatment under the most appropriate diagnostic code(s) under the appropriate body system. In this case, the evidence does not show that the Veteran had any residuals of his hypothyroidism or medical treatment. The one symptom that the evidence indicates the Veteran has consistently endorsed is fatigability. However, the 10 percent rating contemplates such fatigue, as well as his prescribed medication. Therefore, a rating in excess of 10 percent is not warranted. The Veteran's belief that he is entitled to a higher rating for his hypothyroidism is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings on the VA examination reports and treatment records that were recorded following physical examinations of the Veteran, than to the Veteran's general belief that he is entitled to a higher rating. The Board acknowledges the statements of the Veteran that his hypothyroidism warrants a higher rating. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the Veteran's statement nor medical evidence demonstrates that the criteria for a higher rating than that assigned have been met. Moreover, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The Board has considered whether a staged rating under Hart v. Mansfield, supra, is appropriate for the Veteran's service-connected hypothyroidism; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning a staged rating for such disability is not warranted. The Veteran and his representative have not raised any other issues, and no other issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Additionally, the Board has considered whether an inferred claim for a total disability based upon individual unemployability (TDIU) has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran reported working full-time at a teen center in a December 2020 VA treatment note. In addition, the Veteran has not alleged, and the record does not suggest, that he is unable to obtain and maintain employment due to his service connected hypothyroidism. As such, the Board finds that a claim for a TDIU is not raised in connection with the instant appeal. See Rice v. Shinseki, supra. (Continued on the next page) In light of the above, the Board finds the evidence is against the assignment of a rating in excess of 10 percent for hypothyroidism, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. M. Donahue Boushehri, 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.