Citation Nr: 22050892 Decision Date: 09/07/22 Archive Date: 09/07/22 DOCKET NO. 14-28 466 DATE: September 7, 2022 ORDER A rating in excess of 10 percent for hypothyroidism is denied. 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 a 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 (DC) 7903. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1988 to December 1988 and February 2003 to February 2004. This appeal to the Board of Veterans Appeals (Board) arose from a May 2011 rating decision. In April 2015, the Veteran testified during a Board hearing. A transcript of the hearing is of record. Further, the Veteran was notified in January 2021 the Veterans Law Judge who conducted the hearing was no longer with the Board and informed him that he could request a new hearing. He did not respond to the letter; thus, in accordance with the terms of the letter, the Board will assume he does not want another hearing. 38 U.S.C. § 7107(c); 38 C.F.R. §§ 19.3(b), 20.707. In June 2018, January 2020, and February 2021, the Board remanded the case for further development by the originating agency. A rating in excess of 10 percent for hypothyroidism is denied. The Veteran seeks an increased rating for his hypothyroidism. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Initially, the Board notes this appeal for a higher rating arose out of a claim received on August 27, 2010. VA amended the criteria for rating endocrine disorders effective from December 10, 2017. These new regulations apply to all applications for benefits received by VA or that are pending before the Agency of Original Jurisdiction (AOJ) on or after December 10, 2017. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. The Veteran's service-connected hypothyroidism is currently rated as 10-percent disabling under DC 7903. 38 C.F.R. § 4.119. DC 7903 provides the rating criteria for hypothyroidism. Prior to December 10, 2017, DC 7903 provides a 10-percent rating for hypothyroidism with fatigability, or continuous medication required for control. Id. A 30-percent rating is assigned for hypothyroidism with fatigability, constipation, and mental sluggishness. Id. A 60-percent rating is assigned for hypothyroidism with muscular weakness, mental disturbance, and weight gain. Id. A 100-percent rating is for hypothyroidism with cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. Id. Since December 10, 2017, DC 7903 provides a 100-percent rating 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)). Note 1 provides 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 DC(s) within the appropriate body system(s) (e.g., eye, digestive, and mental disorders). A 30-percent rating is assigned for hypothyroidism without myxedema. Note 2 provides this evaluation shall continue for six months after initial diagnosis. Thereafter, rate residuals of disease or medical treatment under the most appropriate DC(s) under the appropriate body system (e.g., eye, digestive, mental disorders). Note 3 provides 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 DC(s) in § 4.79, Schedule of Ratings Eye (such as diplopia (DC 6090) or impairment of central visual acuity (DCs 6061-6066)). The U.S. Court of Appeals for Veterans Claims (Court) has addressed the specific application of the rating criteria for DC 7903 and found all the symptoms listed for a particular disability rating were not required to be demonstrated 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 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. Turning to the record of evidence, the Veteran received a VA examination in December 2010. The examiner noted the Veteran used medication daily to treat his thyroid condition. He reported having experienced heat intolerance and weight gain. The course since onset was noted to be stable with a good treatment response. A history of hypertension and sleep apnea were noted. General symptoms were found to include heat intolerance. Decreased vision and weight gain were also noted. His weight was noted to be 285 pounds, and it was found he had lost less than 10 percent compared to a baseline. On examination, thyroid size was noted to be normal. No evidence of congestive heart failure or pulmonary hypertension was found. Heart rhythm was regular. No abnormal breathing sounds were observed. No signs of anemia were found. The Veteran's skin appeared normal. No gastrointestinal abnormalities were found. No eye abnormalities were observed. Hair findings were normal. The examiner did not find any neurologic or psychiatric abnormalities. Muscle strength was normal. Deep tendon strength was normal. Reflexes were normal. No signs of tetany, myxedema, an increased intra-cranial pressure, or other signs of thyroid disease were found. An examination report is of record from June 2019. The examiner notes the Veteran takes medication regularly for his thyroid condition. The Veteran reported persistent intermittent cold intolerance and denied any residual or current eye problems due to his thyroid condition. No findings, signs, or symptoms attributable to a thyroid condition, a hyperthyroid condition, thyroid enlargement, thyroiditis, a parathyroid condition, or a hyperparathyroid condition were found. A hypothyroid condition was noted in the form of myxedema or cold intolerance. Mental disturbance was not found. Reflexes were normal. No functional impacts were found. On examination, the Veteran's eyes were found to be normal with no exophthalmos. The neck was noted to be normal with no palpable thyroid enlargement or nodules. The Veteran's pulse was found to be regular, and his blood pressure was read at 131/86. Reflexes were normal. No functional impacts were found. In an March 2020 examination report, a VA examiner notes the Veteran reported his thyroid condition has been stable, and he has continued with the same medical treatment. No findings, signs, or symptoms attributable to a thyroid condition, a hyperthyroid condition, thyroid enlargement, a hypothyroid condition, thyroiditis, a parathyroid condition, or a hyperparathyroid condition were found. On examination, the Veteran's eyes were found to be normal with no exophthalmos. The neck was noted to be normal with no palpable thyroid enlargement or nodules. The Veteran's pulse was found to be regular, and his blood pressure was read at 119/78. Reflexes were normal. No functional impacts were found. A May 2021 examination report is of record. The Veteran reported he continues taking levothyroxine for his tyroid condition. He reported his thyroid condition remained stable and noted no complains related to his thyroid condition. Residual endocrine dysfunction following treatment for thyroid or parathyroid condition was noted. Thyroid enlargement, a hypothyroid condition, nor thyroiditis was found. On examination, the Veteran's eyes were found to be normal with no exophthalmos. The neck was noted to be normal with no palpable thyroid enlargement or nodules. The Veteran's pulse was found to be regular, and his blood pressure was read at 135/89. Reflexes were normal. No functional impacts were found. The examiner commented that they found no evidence of myxedema or residuals. They further stated the Veteran is euthyroid, with normal results of his thyroid function tests and that they Veteran had no complaints related to his thyroid condition. The most recent VA examination is from August 2021. The Veteran reported mild muscle weakness and exophthalmos related to thyroid disease, which the examiner noted improved with medications. The examiner stated the Veteran did not report any muscle injury related to his thyroid disease. The examiner did not find any: fatigability; constipation; mental or psychological symptoms; muscular weakness; cold intolerance; cardiovascular involvement, to include but not limited to hypotension, bradycardia, and pericardial effusion; fatigue; or other residuals. Furthermore, the examination report notes the Veteran takes medication every morning for his thyroid condition. Thyroid enlargement nor thyroiditis was found. A parathyroid condition nor hyperparathyroidism was not found. On examination, bilateral exophthalmos was noted. The neck was found to be normal. The Veteran's pulse was regular, and his blood pressure reading was at 130/90. Reflexes were normal. No functional impacts were found. In an August 2021 addendum opinion, the examiner noted no muscle injury was found on examination nor was there evidence of a thyroid-related muscle injury. Based on a review of the Veteran's medical records, the examiner found the Veteran's bilateral shoulder condition was noted to be due to arthritis, repetitive movement, and trauma. The examiner also noted there was no indication in the medical literature that hypothyroidism is a cause of either shoulder impingement syndrome or rotator cuff pathology. Another addendum opinion from August 2021 is of record. In this opinion, the examiner addresses the Veteran's reported muscle weakness. The examiner states there is no evidence of a muscle injury, only subjectively reported muscle weakness. As such, the examiner concluded since mild muscle weakness reported by the Veteran can be viewed as a generalized symptom of hypothyroidism, it is not sufficient to warrant a stand-alone and separate diagnosis. Based on a careful review of the available subjective and clinical evidence, the Board finds the evidence does not support a higher 30-percent evaluation for hypothyroidism under either the previous or amended rating criteria for endocrine disorders. Under pre-December 10, 2017, DC 7903, and throughout the appeal period, the evidence did not more closely approximate fatigability, constipation, and mental sluggishness. Regarding this, the December 2010 VA examiner did not find any gastrointestinal, neurologic, or psychiatric abnormalities. Despite the Veteran's reports of weight gain at the December 2010 VA examination, the Veteran's weight was noted to be at 285 pounds, and it was stated he had lost less than 10 percent compared to his baseline weight. Furthermore, primary care notes show no findings of weight gain, constipation, or neuropsychiatric findings. See, e.g., CAPRI records received in February 2019 (showing negative findings for August 2016 through December 2018); see, also, e.g., CAPRI records received in June 2014 (showing negative findings for August 2009 through February 2014). If comparing his December 2010 VA examination to his primary care notes from August 2016 through December 2018, the Veteran's weight has been within a 10-percent gain or loss, and most recent vitals from October 2021 note an actual weight loss in comparison. Further, the August 2021 VA examiner also did not find fatigability, constipation, or mental or psychological symptoms. Nor did the evidence suggest 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, DC 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 DCs under the appropriate body system. In this case, the evidence does not show the Veteran had any residuals of his hypothyroidism for which he is not already receiving separate ratings. The Board acknowledges the December 2010 VA examination report noting heat intolerance and the June 2019 VA examination report noting the Veteran reported persistent intermittent cold intolerance; however, the record is absent for the other symptoms associated with a 100-percent rating, such as muscular weakness, mental disturbances, or bradycardia. 38 C.F.R. § 4.7 provides where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. Here, although he has reported a symptom associated with a 100-percent rating, the Board finds his disability picture more nearly approximates the rating for a 10-percent evaluation under the old or new DC, as there is no evidence of muscular weakness, mental disturbances, or bradycardia. As noted below, the Veteran is already receiving separate ratings for an eye and heart disability associated with his service-connected hypothyroidism. Thus, overall, the Board finds throughout the period on appeal, there is no basis upon which to award a higher evaluation for hypothyroidism under either the previous or amended rating criteria for endocrine disorders. The Board finds the Veteran competent and credible to assert he experiences symptoms of fatigability. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, as a layperson without the appropriate medical expertise or training, he is simply not competent to diagnose symptoms as specific residuals or consequences of hypothyroidism. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board acknowledges the Veteran's reported vision problems and that he reported having been diagnosed with bilateral exophthalmos related to thyroid disease. See August 2021 Thyroid and Parathyroid Conditions Disability Benefits Questionnaire. However, the Board observes separate ratings are in effect for bilateral exophthalmus associated with his hypothyroidism in addition to a heart condition associated with his hypothyroidism and sleep apnea associated with hypothyroidism. See August 2020 Codesheet. The Board further notes the issues of whether the Veteran's high blood pressure is secondary to his thyroid condition was raised by the June 2018 Board remand. However, in November 2019, the AOJ granted service connection for high blood pressure. He is also receiving a separate rating for a heart disability associated with his service-connected hypothyroidism. Id. As such, the Board finds additional separate ratings are unwarranted. In conclusion, the Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for hypothyroidism. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021). Finally, neither the Veteran nor his representative has raised any issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (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). S. M. WATKINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buck Denton 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.