Citation Nr: 22032328 Decision Date: 06/02/22 Archive Date: 06/02/22 DOCKET NO. 19-26 761 DATE: June 2, 2022 ORDER Entitlement to a separate rating of at least 10 percent for cardiovascular disability associated with hypoparathyroidism is granted. REMANDED Entitlement to service connection for dental disability for treatment is remanded. Entitlement to service connection for dental disability for compensation purposes, including a jawline disability, to include as secondary to service-connected disability, to include on an extraschedular basis, is remanded. Entitlement to a rating in excess of 10 percent for cardiovascular disability associated with hypoparathyroidism is remanded. Entitlement to a rating in excess of 10 percent for endocrine disability associated with hypoparathyroidism. INTRODUCTION The Veteran served on active duty in the Marines from August 2012 to April 2014. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a hearing before the undersigned Veterans law Judge. A transcript of this hearing has been associated with the claims file. In March 2021, the Board remanded the above-captioned claims for additional development. After the issuance of a March 2022 supplemental statement of the case, the appeal was remitted to the Board for further appellate review. FINDING OF FACT The Veteran's hypoparathyroidism is manifested by cardiovascular disability of a workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, which is separate and distinct disability from endocrine disability associated with hypoparathyroidism. CONCLUSION OF LAW The criteria for a separate disability rating of at least 10 percent for cardiovascular disability associated with hypoparathyroidism have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Codes 7011. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking entitlement to a rating in excess of 10 percent for service-connected thyroid disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. During a December 2013 VA examination, a VA examiner reviewed the Veteran's service treatment records regarding his thyroid disability. The examiner noted that the Veteran endorsed the in-service onset of cramping in his hands, mouth, eyes, and other body parts during boot camp, which worsened over time. These worsening symptoms were eventually accompanied by anxiety, which prompted a medical evaluation. This evaluation revealed that the Veteran had "critically low calcium levels and elevated phosphate level," both of which were considered to be "consistent with" hypoparathyroidism. An ultrasound showed the presence of a cyst on the Veteran's right thyroid lobe, but no other abnormalities. He was treated with calcitriol and calcium carbonate, which normalized his calcium level. In July 2013, the Veteran underwent thyroid sonography, which demonstrated the presence of an "extra-thyroid, anechoic, circumscribed, avascular cystic lesion." The VA examiner determined that the Veteran is "much less symptomatic now," but that the Veteran required continuous medication. In May 2014, service connection was granted for hypoparathyroidism and a 10 percent rating was assigned thereto under Diagnostic Code 7905, which pertains to hypoparathyroidism. Despite the diagnosis of the disability as hypoparathyroidism, the RO assigned a 10 percent rating for hyperparathyroidism pursuant to Diagnostic Code 7904. According to Diagnostic Code 7904, a 10 percent rating is assigned for symptoms such as fatigue, anorexia, nausea, or constipation that occur despite surgery; or that occur in individuals who are not candidates for surgery but require continuous medication for control. As determined by the December 2013 VA examiner, the Veteran's thyroid disability requires continuous medication. 38 C.F.R. § 4.119, Diagnostic Codes 7904, 7905. Consequently, the Board will not disturb this rating, which contemplates the endocrine disability associated with the Veteran's service-connected thyroid disability. In August 2018, the Veteran submitted a claim of entitlement to an increased rating for his thyroid disability. Pursuant to this claim, the Veteran underwent a VA examination in September 2018. As noted in the March 2021 remand, the Board observed that the VA examiner incorrectly evaluated the Veteran for hypothyroidism instead of hypoparathyroidism. As such, the Board remanded the Veteran's claim in order to provide him with another examination. Pursuant to his August 2018 claim, the Veteran asserted that his thyroid disability was manifested by cardiovascular symptoms. Subsequent to the March 2021 remand, he was scheduled for and underwent a VA examination regarding his heart in June 2021, which resulted in a diagnosis of hypoparathyroidism with long QT syndrome and heart palpations. In a March 2022 rating decision, the RO expanded the definition of the Veteran's service-connected disability as hypoparathyroidism with long QT syndrome and heart palpations. The RO maintained the already assigned 10 percent rating, but used hyphenated diagnostic codes 7905-7011, with the analysis predicated entirely on the cardiovascular component of the disability. Specifically, Diagnostic Code 7011 concerns ventricular arrhythmias. Effective November 14, 2021, VA amended the rating criteria pertaining to the cardiovascular system under 38 C.F.R. § 4.104, to include Diagnostic Code 7011. 86 Fed. Reg. 54089 (Sep. 30, 2021). This amended regulation applies to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after November 14, 2021. Claims pending prior to the effective date will be considered under both the pre- and post-amendment rating criteria, and whichever is more favorable to the Veteran will be applied. However, the Board may not apply the post-amendment rating criteria to a period prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Here, the period on appeal concerns both pre- and post-November 14, 2021, as such, both iterations are applicable as described. According to the pre-November 14, 2021, version of Diagnostic Code 7011, a 10 percent rating is warranted for a workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or continuous medication is required. According to the post-November 14, 2021 version of Diagnostic Code 7011, a 10 percent rating is warranted for a workload of 7.1 METs but not greater than 10 METs resulting in heart failure symptoms. As the pre-November 14, 2021, version of Diagnostic Code 7011 is more favorable to the Veteran, the Board will apply it throughout the appeal period. As discussed above, the 10 percent rating assigned to the Veteran's endocrine symptoms associated with his thyroid disability is predicated on the Veteran not being a surgical candidate and requires continuous medication for control. His cardiovascular symptoms associated with his thyroid disability are separate and distinct, pertaining to the Veteran's workload/METs and resulting symptoms. Indeed, the June 2021 VA examiner specifically determined that the Veteran's METs was greater than 7, but less than 10, resulting in dyspnea, fatigue, and dizziness. As the RO has listed both endocrine and cardiovascular diagnostic codes on the ratings sheet (hyphenated as 7905-7011), it has effectively granted service connection for both endocrine and cardiovascular disability associated with the Veteran's thyroid condition. See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991) (when the RO has listed a condition as service-connected on a rating sheet, it has effectively granted service connection). Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). As the criteria upon which the 10 percent rating under Diagnostic Code 7905 are not duplicative or overlap the criteria for a 10 percent under Diagnostic Code 7011, the Board finds that separate 10 percent ratings are warranted. 38 C.F.R. § 4.14. The Board finds that remanding claims of entitlement to ratings in excess of 10 percent for endocrine and cardiovascular disability associated with the Veteran's thyroid disability is warranted and will be discussed in the remand portion of the decision below. REASONS FOR REMAND In the March 2021 remand, the Board requested that the VA examiner tasked with evaluating the Veteran's thyroid condition be credentialed as an Endocrinologist, if possible. In June 2021, the Veteran underwent the requested VA examination. The examiner was credentialed as an Internist, not an Endocrinologist. The RO did not indicate whether an endocrinologist was not available for the examination. In the June 2021 VA examination report, the Internist indicated that the Veteran's thyroid disability included cardiovascular symptoms, as well as " dental and oral conditions." In February 2022, the Internist provided an addendum opinion that cured several omissions in the June 2021 report and quoted several treatment reports concerning the Veteran's calcium levels. The Veteran was provided a separate VA dental examination in June 2021, which resulted in a negative opinion. In short, the Dentist opined that the hypoparathyroidism "has the potential to effect [sic] tooth formation," and that "oral manifestations of hypoparathyroidism can include enamel hypoplasia, delayed eruption, multiple unerupted teeth, hypoplastic pitting, small crowns, short/blunted roots, and large pulp chambers," none of which was present. The Dentist attributed the Veteran's tooth decay to lack of treatment and high frequency of sugar consumption. Subsequent to the June 2021 examinations, the RO associated additional VA treatment records with the claims file, including a December 2021 ultrasound of the Veteran's thyroid. The impression included a variety of possibilities for the mass on the Veteran's thyroid, which was characterized as a "slightly complex cystic mass" and of "uncertain" etiology. The possible diagnoses were congenital cyst, a branchial apparatus cyst, a cervical thymic remnant cyst, an exophytic cyst, and a cystic parathyroid adenoma. Given the contradicting opinions (Internist versus Dentist), the ongoing uncertainty regarding the nature of the mass on the Veteran's right thyroid, the inherent medical complexity, and the Veteran's symptoms/complaints (muscle cramping, visions, cardiovascular, dental/oral, decreased strength, calcium levels, and others), the Board finds that another remand is warranted. The Board finds that the RO must again attempt to provide the Veteran a VA examination to be conducted by an Endocrinologist, if possible, so that all of the manifestations of the Veteran's thyroid disability can be assessed. Additionally, while the appeal was in remand status, the Veteran submitted a claim of entitlement to service connection for a "jawline" disability, to include as secondary to his service-connected thyroid disability. The Board has modified the Veteran's dental disability claim to reflect this assertion. This claim, as well as the dental treatment claim, are inextricably intertwined with the increased rating claims for his service-connected thyroid disability. Consequently, the Board is also remanding these claims for contemporaneous consideration. The matters are REMANDED for the following action: Provide the Veteran with an examination conducted by an Endocrinologist, if possible. The Veteran's claims file must be made available to the examiner and the examiner must specify in the report that it was contemporaneously review. All pertinent symptomatology and findings must be reported, to include, not limited to, muscle cramping, visions problems, cardiovascular impairment, dental/oral/jawline impairment, decreased strength, and the effects of abnormal calcium levels. Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted, to include, but not limited to, a determination as to whether the Veteran experiences hypoparathyroidism, hyperparathyroidism, hypothyroidism, hyperthyroidism, and/or alternates between any of these disabilities. Moreover, determine whether the Veteran experiences Graves' disease. In addressing the above, consider and discuss the December 2021 ultrasound results. The examiner should then address the following: (a) Identify all manifestations of the diagnosed thyroid disability and assess the severity thereof; (b) Is the diagnosed disability manifested by decreased levels of calcium?; (c) If so, has the decreased calcium levels resulted in bone loss in the Veteran's maxilla and/or mandible resulting in a loss of teeth?; (d) Does the Veteran's thyroid disability contribute to, exacerbate, accelerate, or otherwise worsen or aggravate the Veteran's tooth decay?; (e) Is it at least as likely as not that the Veteran experiences any oral/dental/jaw/jawline disability that is caused or aggravated by his thyroid disability, to include consideration of the prescribed medications? In addressing sub-paragraphs (b), (c), and (d), the examiner must specifically consider and discuss the June 2021 Internist and Dentist opinions. All rendered opinions must be accompanied by a thorough rationale. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sean G. Pflugner, 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.