09-32 556
09-32 556
| Board of Vet. App. | Feb 2, 2017Background
- Veteran served active duty May 1987–May 2007; service connection for hypothyroidism was granted with a 10% initial rating effective June 1, 2007.
- VA and private treatment records show long‑term Synthroid treatment (generally 200 mcg/day) with largely normal thyroid labs; some intermittent reports of fatigue, constipation, and weight gain.
- Multiple VA C&P examinations (2007, 2014) and private physician letters were in the record; a private physician (Dr. K.) submitted an undated July 2014 letter recounting symptoms during and after service.
- Board and Court proceedings produced several remands directing further development, including evaluation under DC 7903 and consideration of 38 C.F.R. §§ 4.7 and 4.21 and the Tatum decision.
- The Board found the March 2014 VA exam plus private records adequate, gave limited probative weight to Dr. K.’s July 2014 letter (inconsistent with contemporaneous records), and resolved reasonable doubt in favor of the Veteran.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether initial rating for hypothyroidism should exceed 10% (DC 7903) | Veteran: symptoms (fatigue, constipation, weight gain, mental sluggishness, emotional instability) justify >10% and possibly 60%/100% under DC 7903 | VA: evidence shows continuous medication with some fatigability/constipation but not the full constellation for >30%; labs and exams show control on Synthroid | Increased initial rating of 30% granted for entire period from June 1, 2007; no higher rating warranted |
| Whether private physician letter (July 2014) establishes additional symptoms or causation | Veteran/Dr. K.: letter recounts service and post‑service symptoms and links them to Hashimoto’s hypothyroidism | VA: letter is largely secondhand, inconsistent with contemporaneous records, and lacks record review — limited probative value | Letter found of no probative value for higher rating; contemporaneous records control |
| Whether VA satisfied duty to assist (adequacy of VA exams and record development) | Veteran: challenged accuracy/adequacy of some VA exams | VA: obtained multiple exams, private records; March 2014 exam adequate when read with private records | VA satisfied notice and duty to assist; no further development required |
| Whether extraschedular rating or TDIU referral required | Veteran: argued his symptoms warrant higher compensation or unemployability | VA: symptoms are contemplated by DC 7903; no exceptional picture or evidence of unemployability | No extraschedular referral; TDIU not raised or supported |
Key Cases Cited
- Tatum v. Shinseki, 23 Vet. App. 152 (2009) (hypothyroidism criteria under DC 7903 not strictly successive; Board must consider 38 C.F.R. §§ 4.7 and 4.21)
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (standards for adequacy of VA medical examinations)
- Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007) (no VCAA notice required after grant of service connection for downstream issues)
- Thun v. Peake, 22 Vet. App. 111 (2008) (three‑step extraschedular analysis)
- Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014) (extraschedular consideration for combined effects in exceptional cases)
- Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (when lay evidence can establish a diagnosis or support a later diagnosis)
- Reonal v. Brown, 5 Vet. App. 458 (1993) (medical opinion based on inaccurate factual premise has no probative value)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (Board’s reasons and bases requirements)