Citation Nr: 24016455 Decision Date: 04/17/24 Archive Date: 04/17/24 DOCKET NO. 19-26 039 DATE: April 17, 2024 ORDER Entitlement to an initial disability rating in excess of 10 percent for hypothyroidism is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDING OF FACT During the period on appeal, the Veteran's hypothyroidism, at worst, required daily medication for control causing some fatigue and some mental sluggishness, but largely without significant manifestation or functional impairment. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 10 percent for hypothyroidism have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 4.119, Diagnostic Codes (DCs) 7999-7903. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1968 to August 1970, to include service in the Republic of Korea. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2018 and January 2019 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In connection with this appeal, the Veteran testified before the undersigned Veterans Law Judge (VLJ) in September 2022. A copy of the transcript has been associated with the record. In May 2023, the Board remanded the above appeals for further development, and they have now been returned for additional appellate action. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir.2015); Robinson v. Peake, 21?Vet. App.?545, 552 (2008). 1. Entitlement to an initial disability rating in excess of 10 percent for hypothyroidism is denied. Service connection for the Veteran's hypothyroidism was granted at a ten percent disability rate, effective February 18, 2014, in a September 2018 rating decision. Procedurally, a July 2018 rating decision granted service connection for diabetes mellitus, type II (DMII), effective August 24, 2012. In August 2018, the Veteran filed a claim for thyroid dysfunction as a result of his service connected DMII. The September 2018 rating decision then granted service connection for hypothyroidism as secondary to DMII, effective February 18, 2014, the date that entitlement arose, citing the appeal period for the receipt of his DMII claim, as his claim was received within one year. 38 C.F.R. § 4.119, DC 7913. He timely appealed the initial evaluation. Accordingly, the Board will consider entitlement to a disability rating in excess of 10 percent from February 18, 2014, the date that service connection was granted. Hypothyroidism is rated under 38 C.F.R. § 4.119, DC 7903. During the pendency of the appeal, the rating criteria for evaluating hypothyroidism under 38 C.F.R. § 4.119 was amended, effective December 10, 2017. In cases where rating criteria are amended during the appeal, the Board must consider both the former and current schedular criteria. Should an increased rating be warranted under new, revised criteria, the award may not be made effective before the effective date of change. See Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003). If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from the effective date of change. 38 U.S.C. § 5110; Kuzma, 341 F.3d at 1327. Therefore, the Board will consider the Veteran's claim under both the old and new rating criteria, and the criteria that is more favorable will be applied. The prior version of DC 7903 provided a 10 percent rating for hypothyroidism with fatigability, or continuous medication required for control. A 30 percent rating was warranted for hypothyroidism with fatigability, constipation, and mental sluggishness. A 60 percent rating was warranted for hypothyroidism with muscular weakness, mental disturbance, and weight gain. A 100 percent rating was warranted 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. The current version of the criteria, effective December 10, 2017, 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)) for a period of six months after an examiner has determined the condition is stabilized. 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). A 30 percent rating is assigned for hypothyroidism without myxedema for six months after initial diagnosis. Thereafter, residuals of disease or medical treatment are rated under the most appropriate diagnostic code(s) within the appropriate body system (e.g., eye, digestive, mental disorders). The Court of Appeals for Veterans Claims (Court) has addressed the specific application of the rating criteria for DC 7903 and found that 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 meeting 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. Turning to the relevant evidence of record, in February 2014 VA treatment notes, the Veteran was noted to have begun thyroid hormone replacement, with follow up labs ordered. In December 2017 and July 2018, his thyroid was briefly examined and found to have no thyromegaly or other abnormalities. In September 2018, he was afforded a VA examination of his thyroid. His diagnosis of hypothyroidism was confirmed, and he reported that he had been on medication since his diagnosis. He denied receiving radioactive iodine treatment, or any other type of treatment, for control of his thyroid. No thyroidectomy was performed, and he was not found to have any residual endocrine dysfunction. The Veteran did not report, and the examiner did not find, any findings, signs, or symptoms, attributable to a thyroid condition, thyroid enlargement, a parathyroid condition, or thyroiditis. Upon examination, his eyes, neck and pulse were normal. His reflexes were also normal, without tumors, neoplasms, or any other pertinent findings. There were no scars or disfigurement, and no evidence of gastrointestinal issues. Imaging and laboratory studies were performed, returning a TSH of 4.57. The examiner found no functional impact by the Veteran's thyroid condition on his ability to work. A January 2019 VA addendum noted that at the time of the Veteran's diagnosis, he was fatigued and had a fast heart rate, but that he was asymptomatic at the time of examination. In April 2019, a VA treatment note reflected that the Veteran had stopped taking Synthroid three months prior. He still was assessed as having no thyromegaly at that time. Thereafter, the available VA treatment records were silent as to any complaints of thyroid issues or any attributable symptomatology, despite notations of examinations finding no enlargement or other abnormalities. At his September 2022 Board hearing, he testified that he continued to take medication for his hypothyroidism. He reported that it affected his day-to-day life as it made him slightly groggy, dizzy, and in a "stupor" if he did not take his thyroxine. He noted that his condition had worsened since his last VA examination in 2018 and that he felt it difficult to concentrate and that he was sometimes forgetful. He also reported muscle cramps at night, but denied any constipation. When asked if he experienced cold intolerance, he replied that he did not like the cold or hot. He reported that his disorder was "periodically" well-controlled on medication. As a result of his testimony, he was afforded another VA examination in February 2024, and his diagnosis of hypothyroidism was continued. He reported that his disorder was managed with daily medication in the past, but that he had not taken any thyroid medication in the over five years. The examiner noted that his labs from 2023 reflected a normal thyroid, and the Veteran noted that he believed his providers had discontinued medications because his numbers were good. When asked to describe his current symptoms, he noted that he did not think he had any, adding that he did not know what the symptoms were, and that he did lab work every six months. He stated that his providers did not say anything about his thyroid thereafter and once again denied any treatment in the preceding five years. There was no evidence of radioactive iodine treatment, or any other treatment for a thyroid or a parathyroid disorder. There was also no residual endocrine dysfunction following treatment, or any residual signs or symptoms attributable to a thyroid condition. There was no thyroid enlargement or thyroiditis, his eyes and neck were normal, and his pulse and blood pressure were normal. There were no scars or disfigurement and no evidence of gastrointestinal issues. His reflexes were likewise found to be normal, and there was no evidence of neoplasms or metastases. The examiner found no functional impact and noted that the two past instances of bloodwork, in March and September 2023, both returned normal results of 2.9 and 2.8, respectively. The evidence is entirely unclear whether and to what extent the Veteran manages his hypothyroid with daily medication - sometimes indicating he takes daily medication and sometimes (as recently as the 2024 VA examination) indicating he has not taken medication in "five years." Nonetheless, what is consistent in the record is that his hypothyroid condition is overall well-controlled, indicated by his normal lab results throughout the appellate time frame. The Veteran periodically complained of mental sluggishness-type symptoms (described as grogginess or forgetfulness) as well as periodic complaints of fatigue. Overall, the complaints are without consistency and do not more nearly approximate the 30 percent criteria. Indeed, the most recent VA examination indicates the Veteran had no significant residuals, no need of medication, and no functional impact. Based on the foregoing, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's thyroid disability. Throughout the entirety of the appeal period, it does not appear that he has had any significant residuals related to hypothyroidism, to include attributable symptoms. Specifically, all TSH levels were noted to be normal and no treatment or attributable symptomatology was identified. Additionally, there was no clinical evidence of hypothyroidism with or without myxedema during the appeal period. The Board has considered rating the residuals of the condition based on the criteria of DC 7903, Note (2). However, the VA examiner explicitly determined that there were no signs or symptoms attributable to the disability, including musculoskeletal, respiratory, cardiovascular, gastrointestinal, genitourinary, reproductive, neurological, or mental and psychological symptoms; eye involvement. Therefore, evaluating the disability based on residuals does not afford the Veteran any rating advantage. The Board has also considered whether the Veteran's disability is more appropriately and advantageously rated under other diagnostic codes relative to the endocrine system. DC 7902 pertains to thyroid enlargement, nontoxic. Note (1) directs to evaluate symptoms due to pressure on adjacent organs (such as the trachea, larynx, or esophagus) under the appropriate diagnostic code(s) within the appropriate body system. Note (2) directs that if disfigurement of the neck is present due to thyroid disease or enlargement the condition should be separately evaluated under DC 7800 (burn scar(s) of the head, face, or neck; scar(s) of the head, face or neck due to other causes; or other disfigurement of the head, face, or neck). As noted above, the VA examiner specifically determined that there were no respiratory or gastrointestinal symptoms attributable to the Veteran's thyroid disability. As such, rating under Note (1) of DC 7902 is not more advantageous than rating under DC 7903. Additionally, no VA examiner or examining provider has found evidence of thyromegaly, scarring, disfigurement, or an enlarged thyroid gland. As such, there is no reason consider ratings under the diagnostic codes for scarring or disfigurement. In so finding, the Board certainly acknowledges the Veteran's lay statements, provided as testimony at his Board hearing. The Board specifically acknowledges his testimony regarding occasional blurriness of the mind and fatigue; however, it is noteworthy that he also testified that his disorder was largely controlled on medication. In this regard, the Board points to the total absence of such complaints in his VA treatment records, and his denial of any such symptoms at his VA examinations. Specifically, at his 2018 and 2024 VA examinations, he largely denied any symptoms of hypothyroidism, and at the February 2024 VA examination, he specifically stated that he had not even been taking medication for many years as his doctors discontinued use due to improving symptomatology despite his Board testimony. As such, the Board assigns less probative weight to his testimony as it is in strong contrast to the remaining medical evidence of record, to include the Veteran's additional lay statements at examinations and treatment records. Gardin v. Shinseki, 613 F.3d 1374, 1379-80 (Fed. Cir. 2010) (affirming rejection of lay evidence based, in part, on fact that it was inconsistent with the record). Accordingly, a rating in excess of 10 percent for the Veteran's hypothyroidism is not warranted. The Board determines that the Veteran's disability is fully capable of evaluation under the rating schedule. There is no applicable provision that would warrant a higher rating in this case. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. The Veteran contends that he has OSA which is a result of his active-duty service, testifying at his Board hearing that he has experienced OSA since service. Alternatively, he suggests that it is due to his service connected DMII and/or posttraumatic stress disorder (PTSD). In May 2023, the Board remanded the appeal in order to obtain, in relevant part, an updated VA examination with an adequate etiological opinion. Specifically, the Board directed the examiner to provide an etiological opinion which adequately considered the Veteran's lay statements in rendering any opinion. The examiner was also directed to provide an opinion as to secondary service connection. In February 2024, the Veteran was afforded another VA examination. At that time, the examiner opined that it was less likely than not that the Veteran's OSA was due to service. As a rationale, the examiner noted only that records were silent for symptoms or diagnosis of OSA approximate to service, and as such, they were unable to identify chronicity or a nexus. Once again, the Board finds that the February 2024 VA opinion regarding direct service connection is inadequate as it does not comply with the prior Board remand directives. Stegall v. West, 11?Vet. App.?268, 271. Specifically, the examiner failed to consider the Veteran's lay statements which were present in the record noting that he had experienced symptoms of OSA since service, and based his negative opinion only on a lack of finding of treatment in the records following service. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (holding when an examiner fails to address the Veteran's lay evidence, and the Board does not find the veteran not credible, or not competent to offer that lay evidence, a new examination is needed). Accordingly, remand is required to afford the Veteran a new VA examination which addresses his competent lay evidence regarding onset and continuity of symptoms. The Board emphasizes that in remanding the Veteran's claims to obtain a new VA opinion which considers his lay statements, it is mindful of the impact of implicit credibility determinations in remand orders. See Smith v. Wilkie, 32?Vet. App.?332 (2020). The Board notes that it is not required to accept lay evidence that an event occurred merely because of an absence of affirmative documentary evidence proving otherwise. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010). The Board does not, at this time, make any determinations regarding the credibility of any evidence currently of record, to include the evidence described in this remand. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding, private and VA treatment records, and associate them with the claims file. 2. Schedule the Veteran for a VA examination to assess the status and etiology of his OSA. The entire claims file should be made available to, and reviewed by, the examiner. Any indicated studies should be performed. The clinician is then asked to provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced, or nearly equal, if not higher) that the Veteran's OSA began during his active-duty service, began within a year of his separation from service, or was the result of any other incident of his active duty service. The clinician must provide a complete and thorough rationale for any opinions provided, based on their clinical and medical expertise, established medical principles, and references to the evidence of record. The examiner should consider, and address, the Veteran's lay statements, to specifically include his testimony that he has experienced OSA since his separation from service and the February 2019 University of Tennessee sleep study, as well as all other relevant lay and medical evidence of record. If any of the Veteran's lay statements are discounted, specifically including his statements regarding onset and chronology of symptoms, the clinician should provide a rationale for discounting these statements. (Continued on the next page) ? If the clinician is unable to provide any required opinion, they should explain why, and if they cannot provide an opinion without resorting to mere speculation, they should provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the clinician should identify the additional information required. 3. After completion of the above development, and of any other development deemed necessary, readjudicate the Veteran's claim. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yacoub, 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.