Citation Nr: 22034849 Decision Date: 06/15/22 Archive Date: 06/15/22 DOCKET NO. 10-22 639A DATE: June 15, 2022 ORDER Entitlement to a disability rating in excess of 10 percent for hypothyroidism for the period prior to December 10, 2017 is denied. Entitlement to a disability rating in excess of 30 percent for hypothyroidism for the period from December 10, 2017 is denied. Entitlement to an effective date of January 23, 2008 for the grant of a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is granted. FINDINGS OF FACT 1. For the period prior to December 10, 2017, the Veteran's hypothyroidism disability was controlled with continuous medication and was not productive of fatigability, constipation, mental sluggishness, or more severe symptoms. 2. For the period from December 10, 2017, the Veteran's hypothyroidism was controlled by continuous medication and was negative for myxedema. 3. For the period prior to June 17, 2010, the evidence is in approximate balance as to whether the Veteran was unable to maintain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for hypothyroidism for the period prior to December 10, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.119, Diagnostic Code (DC) 7903. 2. The criteria for entitlement to a disability rating in excess of 30 percent for hypothyroidism for the period from December 10, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.119, DC 7903. 3. The criteria for entitlement to an effective date prior to June 17, 2010 for the grant of TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 5110, 38 C.F.R. §§ 3.340, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1981 to February 1982, from May 2002 to November 2002, from February 2003 to August 2004, and from October 2006 to May 2008. He had additional service in the Army National Guard. The case is on appeal from November 2010, March 2018, October 2018, and January 2022 rating decisions. The Veteran's claims were denied by the Board in April 2020, when it denied service connection for sleep apnea and for an increased rating for hypothyroidism, and additionally addressed claims for increased ratings and earlier effective dates for right and left lower extremity radiculopathy, mood disorder, and surgical scar of the torso. The Board also remanded claims for service connection for a bilateral eye disability, hearing loss, and reduction of compensation benefits due to military drill pay. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In March 2021, the parties entered into a joint motion for partial remand (JMPR), which the Court granted in a March 2021 Order. By Court Order, the portion of the Board's April 2020 decision denying service connection for OSA and an increased rating for hypothyroidism was vacated. It was also determined that the Board erred by failing to take jurisdiction over the issue of an earlier effective date for a TDIU rating, as the issue was already in appellate status. Harper v. Wilkie, 30 Vet. App. 356, 361 (2018). The case was remanded back to the Board for further consideration consistent with the terms of the JMPR. In December 2021, the Board remanded the Veteran's claims for an earlier effective date for the grant of TDIU, increased ratings for hypothyroidism, and service connection for sleep apnea. In a March 2022 rating decision, the RO granted the Veteran's claim for service connection for sleep apnea. The Veteran has not indicated disagreement with the rating or effective date assigned by the RO; therefore, this decision represents a complete grant of the benefits sought on appeal. Accordingly, the Board will not consider this issue further in this decision. In this case, the Board notes that the claim for TDIU arises from the Veteran's July 2008 claim for service connection for multiple disabilities. After service connection was granted for multiple disabilities, including hearing loss, the Veteran filed a February 2009 Notice of Disagreement (NOD) regarding the ratings assigned, and the current claim for TDIU arose from those claims for increased ratings. The Veteran appealed the ratings assigned for their service-connected disabilities to the Board, and, in a November 2016 decision, the Board remanded the issue of entitlement to TDIU. The RO granted TDIU, effective May 31, 2018, while the issue was in appellate status. In the March 2021 Joint Motion for Remand (JMR), the parties' agreed that the Board erred in failing to take jurisdiction of the TDIU claim. Accordingly, the Board finds that the current claim for an earlier effective date for TDIU dates to the July 2008 claim. The Veteran also has an appeal before the Board for service connection for an eye condition and reduction of drill pay, along with a third appeal concerning overpayment. These appeals concern issues requiring special expertise and will be considered in separate Board decisions. Increased Rating The Veteran asserts that his thyroid disability is more severe than is reflected by his staged ratings. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. The Veteran has been service-connected for hypothyroidism since May 11, 2008, and his service-connected thyroid condition has been evaluated under the specifically designated provisions for hypothyroidism at DC 7903 throughout the appeal period. See 38 C.F.R. § 4.119, DC 7903; May 2022 codesheet. The Veteran filed a claim for increase for his hypothyroidism in August 2018, which began the period of appellate review currently before the Board, to include consideration of the one-year look back period prior to the filing of that claim. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). While the claim was on appeal, the Veteran was awarded 30 percent from December 10, 2017. As this did not represent a full grant of the benefit sought, the increased rating claim now before the Board includes reviewing evidence for a rating in excess of 10 percent from August 13, 2017 to December 10, 2017, and in excess of 30 percent thereafter. Prior to November 2017, Diagnostic Code 7903 provided for a 10 percent rating for hypothyroidism manifested by fatigability, or where continuous medication was 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. See 38 C.F.R. § 4.119, DC 7903 (as in effect prior to December 10, 2017). In November 2017, the rating criteria at DC 7903 were revised effective December 10, 2017. 82 Fed. Reg. 50, 806 (Nov. 2, 2017). Because this revision occurred during the pendency of the Veteran's claim, whichever version is most favorable to her must be applied. However, the revised version can only be applied as of its effective date. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 7-2003; Kuzma v. Principi, 341 F.3d 1327, 1328-1329 (Fed. Cir. 2003). Under the current provisions at Diagnostic Code 7903, hypothyroidism without myxedema warrants a 30 percent rating for six months after initial diagnosis. Thereafter, residuals of the disease, to include eye conditions, or medical treatment, 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. 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)), but only for a period of six months after an examiner has determined that the condition has stabilized. Thereafter, the residual effects of hypothyroidism are to 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, DC 7903. As is apparent, a 10 percent rating is not available under the new criteria; however, no reduction shall be made unless actual improvement is shown, and not merely based on a change in criteria. 38 C.F.R. § 3.951. Turning to the evidence of record, during a prior VA examination for thyroid conditions in December 2012, the condition was "currently active," exhibiting symptoms of intolerance of cold weather described as swelling of hands and feet, along with fatigability, sleepiness, depression, slowing of thought, poor memory, and difficulty swallowing. The Veteran was found to require continuous treatment of Synthroid two times per day to control the condition. The Board finds no explicit evidence that his thyroid condition resulted in fatigability, constipation, mental sluggishness, or more severe symptoms during the period from August 13, 2017 to December 10, 2017. From December 10, 2017 onward, the Board finds no evidence that his hypothyroidism resulted in myxedema, muscular weakness, and weight gain. Mental disturbance was present, but the Board notes that the Veteran's mental condition is separately service-connected and rated under DC 9345. See March 2022 codesheet. During the Veteran's September 2018 VA examination for thyroid conditions, the Veteran was positive for hypothyroidism and took Synthroid daily for his condition. He reported feeling anxious, tired, daytime somnolence and fatigue. He was not undergoing radioactive iodine treatment or any other treatment for his thyroid condition. Likewise, he did not have any endocrine dysfunction associated with his hypothyroidism. The examiner indicated that there were no findings, signs, or symptoms of the Veteran's hypothyroidism. There was no evidence of myxedema, but the Veteran's depression was linked to his hypothyroidism. On physical examination, the Veteran's eyes, neck, pulse, blood pressure, and reflexes were normal. Likewise, there was no evidence of tumors or cancer. During the February 2022 VA examination for thyroid conditions, the Veteran was positive for hypothyroidism and required continuous medication to control his condition. He denied experienced fatigue, increased sensitivity to cold, constipation, dry skin, hair loss, hoarseness, impaired memory or difficulty breathing. There was no indication that he was positive for myxedema. The Veteran's VA treatment records are negative for evidence of myxedema and indicate generally normal TSH levels. See, e.g., January and February 2020 VA treatment record. The Veteran has consistently asserted that his hypothyroidism is more severe than is reflected by his staged evaluations. While the Veteran is competent to observe his hypothyroidism symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his hypothyroidism symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). For the period prior to December 10, 2017, the Board finds that the evidence of record is persuasively against finding that his hypothyroidism resulted in fatigability, constipation, mental sluggishness, or more severe symptoms. While his 2012 VA examination indicate more severe symptoms, this examination occurred several years before the period on appeal. His VA treatment records during the appeal period indicate that his symptoms were controlled by continuous medication. The Veteran has not asserted experiencing symptoms commensurate with a higher rating during period. Accordingly, for the period from August 13, 2017 to December 10, 2017, the claim for a disability rating in excess of 10 percent for hypothyroidism is denied. For the period from December 10, 2017 onward, the Board finds that the evidence of record is persuasively against finding that his hypothyroidism resulted in myxedema. Additionally, VA treatment records are negative for symptoms such as muscular weakness, cold intolerance, and cardiovascular involvement. As such, an increased 60 percent rating is not warranted under the former criteria for Diagnostic Code 7903. Under the current criteria, the probative evidence does not show cold intolerance, muscular weakness, cardiovascular involvement, or mental disturbance. Thus, he does not meet the symptomatology for a 100 percent rating. Accordingly, the claim for a disability rating in excess of 30 percent for hypothyroidism for the period from December 10, 2017 onward is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence is persuasively against the Veteran's claims, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, aside from the TDIU claim below. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). TDIU The Veteran asserts that his service-connected disabilities prevented him from securing or following a substantially gainful occupation during the period prior to June 17, 2010. The Veteran has been granted TDIU effective June 17, 2010. See March 2022 codesheet. TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Even when the criteria under 38 C.F.R. § 4.16(a) are not met, entitlement to TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). VA will refer to the Director of the Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The Board has already referred this claim to the Director, who responded in April 2022, and can now adjudicate the claim for extraschedular TDIU. Prior to June 17, 2010, the Veteran had a 40 percent combined evaluation from May 11, 2008 to June 9, 2009, and a 50 percent combined evaluation from June 9, 2009 to June 17, 2010. See March 2022 codesheet. During this period, his back disability was rated as 10 percent disabling from May 11, 2008 to August 9, 2010; his hypothyroidism was rated as 10 percent disabling from May 1, 2008 to December 10, 2017; his right leg radiculopathy was rated as 20 percent disabling from May 11, 2008 to December 18, 2012; his left leg radiculopathy was rated as 20 percent disabling from June 9, 2009 to May 31, 2018; and he had noncompensable evaluations for hearing loss and arterial hypertension. Id. As discussed above, the Board finds that this claim for TDIU dates to the Veteran's January 23, 2008 claim. In a June 2010 buddy lay statement, a former employer of the Veteran stated that they were forced to fire the Veteran due to his physical and mental disabilities. The decision was solely due to his back disability and depression, as they prevented him from performing the duties of his job. During a July 2010 VA general examination, the Veteran reported that he was unemployed due to his medical conditions. The VA examiner noted that his conditions resulted in decreased mobility, chronic pain, and problems with lifting and carrying objects. In a September 2010 statement in support of his claim, the Veteran asserted that he had not been able to find a substantially gainful occupation due to his service-connected conditions. His only vocational experience was in physical trades, and his physical disabilities prevented him from performing those jobs. He lacked the qualifications, education, or experience to perform jobs that did not require manual labor. In an August 2010 TDIU application, the Veteran indicated that he worked full-time for decades until May 2008, when he became unable to work due to his service-connected disabilities. In a September 2015 vocational assessment by a certified vocational evaluator, the author found that the Veteran's service-connected disabilities precluded him from securing or following any substantially gainful occupation, including a sedentary position. However, this assessment took into consideration disabilities and ratings that went into effect after the period currently in consideration. Social Security Administration (SSA) records reflect that he was granted disability from July 2009 onward. See November 2010 SSA records. In a January 2019 TDIU application, the Veteran indicated that he was last able to work full-time in June 2009, and he had become too disabled to work from June 15, 2009 onward. The Veteran did not indicate how long he was able to work full-time prior to June 2009. In a March 2022 VA memorandum, VA recommended granting TDIU on an extraschedular basis. Conversely, in April 2022, the VA Director of Compensation Services denied the Veteran's claim for an extraschedular TDIU. The Board finds that the evidence of record is at least in approximate balance as to whether the Veteran's service-connected disabilities prevented him from securing or following a substantially gainful occupation prior to June 17, 2010. The Veteran has indicated that he did not have the education, training, or experience to perform non-manual labor, and his physical disabilities during this period would have interfered significantly with physical labor. The September 2015 vocational evaluator indicated that the Veteran could not work due to his service-connected disabilities, although they considered disabilities that were not service connected during the period on appeal. Additionally, the Board notes the March 2022 VA memorandum recommending granting an extraschedular TDIU. There is also evidence indicating that the Veteran may have been able to perform sedentary work. Additionally, the Board notes that the Veteran's January 2019 TDIU application indicates he worked full-time for some period of time till June 2009. Nonetheless, it is unclear how long that period of work lasted or whether it was sustainable. Based on these facts, the Board finds the evidence is at least in approximate balance in favor of the Veteran's claim. Accordingly, an effective date of January 23, 2008 is assigned for the extraschedular grant of TDIU. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.