Citation Nr: A23032905 Decision Date: 11/20/23 Archive Date: 11/20/23 DOCKET NO. 230330-336295 DATE: November 20, 2023 REMANDED Entitlement to a rating in excess of 10 percent for thyroid-related gastrointestinal disease with chronic cholecystitis (thyroid disability) from May 17, 2022 to September 28, 2022, and in excess of 30 percent thereafter is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1952 to February 1954. The Veteran filed an increased rating claim for his residuals of his gallbladder removal in May 2022. In a June 2022 rating decision, a noncompensable rating for cholecystitis (claimed as gallbladder disorder) was continued. The Veteran filed a supplemental claim in July 2022. In an October 2022 rating decision, the Veteran's rating for cholecystitis was increased to 10 percent effective May 17, 2022. Another supplemental claim was filed in November 2022. In a January 2023 rating decision, service connection was granted for thyroid-related gastrointestinal disease. The thyroid-related gastrointestinal disease and cholecystitis were evaluated together, and a 30 percent rating was assigned effective September 29, 2022. The Veteran then filed a VA Form 10182 in March 2023 to appeal to the Board's Hearing Docket. Because the cholecystitis and thyroid ratings were combined in the January 2023 rating decision as the result of a supplemental claim filed within a year of the most recent evaluation of the cholecystitis disability in the October 2022 rating decision, the Board will consider the rating assigned since May 17, 2022. 38 C.F.R. § 3.2500(c) (defining continuous pursuit to include filing a supplemental claim within a year following notice of decision on an initial or supplemental claim). The Veteran testified at an August 2023 Board hearing. Thus, the Board may consider the evidence of record at the time of the January 2023 rating decision on appeal as well as any evidence received at or within 90 days after the Board hearing. 38 C.F.R. §§ 20.300, 20.302. The Board notes that in a November 2022 statement, the Veteran indicated that thyroid residuals, especially having a weak or hoarse voice, interfered with his ability to work. Thus, the Board finds that entitlement to TDIU has been raised as part and parcel of the increased rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A June 2023 statement from the Veteran, a private treatment record submitted in June 2023, and an April 2023 VA examination reports regarding the Veteran's sleep apnea were added to the claims file during a period of time when new evidence was not allowed. As the Board is remanding the claim for a higher rating for the thyroid disability for further development, this additional evidence will be considered by the agency of original jurisdiction (AOJ) in the adjudication of those claims. 1. Entitlement to a rating in excess of 10 percent for a thyroid disability from May 17, 2022 to September 28, 2022, and in excess of 30 percent thereafter The Board finds that a remand is necessary to afford the Veteran additional examinations to assess the severity of his thyroid disability. 38 C.F.R. § 20.802(a) (limiting the Board to remanding for pre-decisional duty to assist errors). At the Board hearing, the Veteran testified that he was seeking higher or additional ratings for residuals of his service-connected thyroid disability, including sleep apnea, difficulty swallowing, depression, fatigue, sleep impairment, dry skin, and dehydration. In a November 2022 statement, the Veteran noted that the surgery could block the airway causing difficulty breathing, difficulty swallowing, a hoarse or weak voice due to nerve damage of the vocal cords, and snoring. The Veteran noted experiencing difficulty sleeping, fatigue, muscle weakness, and diarrhea. In particular, the Veteran noted that a hoarse or weak voice, which affects his ability to talk to clients as a professional salesperson. The Veteran was afforded VA Thyroid and Gastrointestinal Conditions Examinations in November 2022, which addressed symptoms such as constipation and difficulty swallowing. The Veteran also reported fatigue and a continuous positive airway pressure machine for sleep apnea, though these symptoms were not noted as being related to the thyroid disability. There were no signs of muscle weakness noted on examination. However, the examiner did not address the Veteran's reports of having a weak or hoarse voice or difficulty swallowing within the examination report. Thus, the Board finds that a remand is necessary to afford the Veteran a VA examination of additional thyroid residuals, such as having a weak or hoarse voice and difficulty swallowing. However, the Board lacks the necessary information to assess the severity of these claimed residuals. Because evidence was of record prior to the January 2023 rating decision on appeal indicating that these impairments might be related to the Veteran's service-connected thyroid disability, the AOJ should have afforded the Veteran an examination to assess the nature and severity of these disorders. See 38 C.F.R. § 3.159(c)(4). 2. Entitlement to TDIU As noted above, the Veteran claimed in a November 2022 statement that his thyroid disability has affected his ability to work. However, the claims file does not include any information as to the Veteran's employment history. Thus, a remand is necessary to obtain information about the Veteran's work history. 38 C.F.R. § 20.802(a). The matter is REMANDED for the following actions: 1. Ask the Veteran to provide information regarding his educational background and work history by completing a VA Form 21-8940 or other appropriate form. 2. Afford the Veteran VA examinations to assess the nature and severity of his claimed thyroid disability residuals, including difficulty swallowing and difficulty speaking. The examination may be accomplished in person or via video conference, if feasible. The examiner should opine as to whether each of these disorders was caused or aggravated by the Veteran's thyroid disability. A complete rationale should be provided for any opinion rendered. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. George 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.