Citation Nr: 1736653	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  10-22 870A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Entitlement to a rating in excess of 30 percent for Graves' disease, status post I-131 therapy (hypothyroidism).  

2.  Entitlement to a rating in excess of 10 percent prior to February 2, 2010, and in excess of 30 percent thereafter, for chronic anemia.  

3.  Whether new and material evidence has been received to reopen the claim of entitlement to service connection for headaches, to include as secondary to service-connected chronic anemia.  

4.  Entitlement to service connection for headaches.  

5.  Entitlement to service connection for a disability manifested by constipation.  

6.  Entitlement to service connection for obesity.  



REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J.A. Gelber, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1994 to March 1998.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  

In pertinent part, the June 2009 rating decision denied disability ratings in excess of 10 percent for Graves' disease and chronic anemia; denied service connection for constipation and obesity; and determined that new and material evidence had not been received to reopen the previously denied claim of service connection for headaches.  

In an April 2010 statement of the case (SOC), the RO increased the rating for Graves' disease to 30 percent disabling, effective September 25, 2008, and increased the rating for chronic anemia to 30 percent, effective February 2, 2010.  

In January 2015, the Veteran testified before the undersigned at a videoconference hearing in San Diego, California.  A transcript of that hearing has been associated with the claims file and reviewed. 

This case was previously before the Board in July 2015, at which time it was remanded for further development.  As the requested development has been completed, no further action to ensure compliance with the remand directives is required.  Stegall v. West, 11 Vet. App. 268 (1998).  

In July 2015, the Board remanded the claim of entitlement to an effective date prior to October 24, 2014 for depression, and directed the RO to issue an SOC as to that issue.  An SOC was issued in January 2017, granting the claim for an earlier effective date.  No Form 9 substantive appeal was received within 60 days of the issuance of the SOC; thus, the issue is not before the Board at this time.  


FINDINGS OF FACT

1.  Throughout the rating period on appeal, the weight of the competent and probative evidence is at least in equipoise as to whether hypothyroidism results in muscular weakness, mental disturbance, and weight gain.  

2.  The weight of the competent and probative evidence is against finding hemoglobin of 7gm/100ml or less, with findings such as dyspnea on mild exertion, cardiomegaly, tachycardia, or syncope.  

3.  In an April 2004 rating decision, the Agency of Original Jurisdiction (AOJ) confirmed a prior denial of a claim of service connection for headaches; a notice of disagreement was not filed, and no new and material evidence was received within the appeal period.

4.  Additional evidence received since the April 2004 decision is new, relates to an unestablished fact necessary to substantiate the claim of service connection for headaches, and raises a reasonable possibility of substantiating the claim.  

5.  The weight of the competent and probative evidence is at least in equipoise as to whether the Veteran's headache disorder is caused or has been aggravated by a service-connected disability other than anemia.  

6.  The weight of the competent and probative evidence shows that the Veteran's constipation is a symptom of her service-connected hypothyroidism.  

7.  Obesity is not a disease or injury for purposes of 38 U.S.C.A. § 1110.  


CONCLUSIONS OF LAW

1.  Throughout the rating period on appeal, the criteria for a rating of 60 percent, but no higher, for Graves' disease, status post I-131 therapy, have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.119, Diagnostic Code (DC) 7903 (2016).  

2.  The criteria for a rating of 30 percent, but no higher, have been met for chronic anemia for the entire period on appeal.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.117, DC 7700 (2016).

3.  The April 2004 decision denying the claim of entitlement to service connection for headaches is final.  38 U.S.C.A. § 7105 (West 1996); 38 C.F.R. §§ 3.104, 20.1103 (1998).

4.  New and material evidence has been received since the September 1999 decision to reopen the claim of entitlement to service connection for headaches.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016).  

5.  The criteria for service connection for headaches have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. § 3.303 (2016).  

6.  The criteria for service connection for a disability manifested by constipation have not been met. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 4.14 (2016).  

7.  The criteria for service connection for obesity have not been met. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. § 3.303.  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA met its duty to notify by a letter sent to the Veteran in March 2009, prior to adjudication of her claims.  Thus, no additional notice is required.

Next, VA has a duty to assist the Veteran in the development of her claims.  This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016).  After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

The Veteran's military personnel and treatment records, as well as all available, identified medical records, have been associated with the claims file and considered.  The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims.  

The Veteran was afforded VA examinations in December 2008, January 2009, February 2010, March 2010, December 2013, and February 2017.  

The Veteran was not afforded VA examinations for her claims for constipation or obesity.  However, as those claims are being denied as a matter of law, the duty to assist is not applicable.  See Mason v. Principi, 16 Vet. App. 129 (2002); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (the duty to assist is not applicable when there is extensive factual development that indicates there is no reasonable possibility that any further assistance would aid the claimant in substantiating the claim).  

In the July 2015 remand, the Board directed the AOJ to attempt to obtain relevant private treatment records.  In January 2017, VA sent the Veteran a letter asking her to identify any relevant private treatment records and authorize VA to obtain them; however, the Veteran did not respond to this request.  The Board notes that the duty to assist is not a one-way street; the Veteran has a duty to cooperate with VA and facilitate needed development.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  By attempting to assist the Veteran, the AOJ substantially complied with the remand directives, and a further remand is not required.  See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Stegall, 11 Vet. App. 268.

In light of the foregoing, the Board will proceed to the merits of the appeal.  

II.  Increased Rating

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings.  Id.  Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Rating Schedule.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990).  

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21.

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disorder.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10. 

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder.  38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  

The Veteran is competent to report symptoms and experiences observable by her senses.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).

A.  Hypothyroidism (Graves' disease, status post I-131 therapy)

The Veteran contends that she is entitled to an increased rating for hypothyroidism.  The Veteran has been assigned a 30 percent rating for hypothyroidism under Diagnostic Code 7903.  

Diagnostic Code 7903 allows for a 30 percent rating when the disorder causes fatigability, constipation, and mental sluggishness; a 60 percent rating when the disorder causes muscular weakness, mental disturbance, and weight gain; and a 100 percent rating when the disorder causes cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness.  38 C.F.R. § 4.119, DC 7903.

After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that a rating of 60 percent, but no higher, for hypothyroidism is warranted throughout the rating period on appeal.  

The competent and probative evidence is at least in equipoise as to whether the Veteran's disability picture more closely approximates the criteria for a 60 percent rating under Diagnostic Code 7903.  The evidence demonstrates mental disturbance in the form of depression.  01/15/2015 VBMS, C&P Exam, p. 1.  In fact, the Veteran is currently evaluated for depression as 50 percent disabling based on a finding of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood.  Id. at 3.  The evidence also demonstrates weight gain, resulting in obesity.  10/31/2013 LCM, CAPRI No. 3, p. 2.  

In September 2008, the Veteran reported experiencing muscle weakness.  10/31/2013 LCM, CAPRI No. 3, p. 354.  She again reported feeling weak in January 2009 and June 2009.  01/14/2009 VBMS, VA Exam; 10/31/2013 LCM, CAPRI No. 3, p. 330.  Since February 2010, the Veteran has repeatedly denied experiencing weakness, and physical examinations have revealed normal muscle strength.  See, e.g., id. at 92, 202, 243; 10/07/2015 VBMS, CAPRI, pp. 57-59; 90.  

The Board acknowledges that the evidence weighs against finding muscle weakness as of February 2010; however, taking into consideration that the Veteran's weight gain resulted in obesity and further accounting for the severity of her mental disturbance, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran's disability picture more closely approximates a 60 percent rating under Diagnostic Code 7903.  See 38 C.F.R. § 4.7; Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009) (holding that establishment of all listed criteria is not required to warrant a higher rating under Diagnostic Code 7903).  

The Board acknowledges that to the extent the Veteran is compensated for mental disturbance as part of her disability evaluation for hypothyroidism, she cannot be compensated for the same symptomatology under a separate diagnostic code.  See 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 262.  However, the Board notes that a 60 percent rating for hypothyroidism based on mental disturbance will not necessarily result in a reduction of her disability rating for unspecified depression.  A December 2014 VA examiner opined that the Veteran has posttraumatic stress disorder (PTSD) and unspecified depression, and that it is not possible to differentiate what portion of each symptom is attributable to each diagnosis.  01/15/2015 VBMS, C&P Exam (Psych DBQ), pp. 1-2.  The examiner opined that significant component of the Veteran's depression may be conceptualized as a psychological response to her medical problems of Graves' disease and anemia.  01/15/2015 VBMS, C&P Exam (Medical Opinion DBQ), p. 2.  Thus, the AOJ may determine that separately compensating the Veteran for depressive symptoms is not duplicative of compensation for mental disturbance under Diagnostic Code 7903 for hypothyroidism.  In any event, any reduction in the Veteran's disability rating for depression under Diagnostic Code 9434 will not result in a combined disability rating that is less than it was prior to the Board assigning a 60 percent rating for hypothyroidism.  See 38 C.F.R. § 4.25.  In other words, a 60 percent rating for hypothyroidism results in a combined disability rating equal to or greater than what the Veteran would have otherwise received, even if she is not separately compensated for depression.  See 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 262.  

Having found that a 60 percent evaluation for hypothyroidism is warranted, the Board notes that an evaluation in excess of that amount is not warranted.  Indeed,
the weight of the evidence is against finding cardiovascular involvement or bradycardia symptoms contemplated by the 100 percent rating.  The medical records show normal pulses, heart rate, and rhythm, with the exception of one tachycardic reading in September 2008.  11/12/2008 VBMS, CAPRI No. 1, pp. 25-26.  The record is negative for an indication of cardiovascular involvement.  See, e.g., 02/02/2010 VBMS, VA Exam, p. 3; 12/16/2013 VBMS, C&P Exam, pp. 2-3; 11/10/2014 VBMS, CAPRI, pp. 14-16, 34-35, 58-59, 64-66.  As previously discussed, mental disturbance has been demonstrated by the evidence.  The Veteran is service-connected for sleep apnea; thus, she is currently being compensated for complaints of sleepiness.  The evidence contains subjective complaints of cold intolerance by the Veteran.  12/02/2008 VBMS, VA Exam.  However, as the record is negative for any indication of cardiac involvement or bradycardia, and in fact the Veteran's heart rate readings tend toward tachycardic, the Board finds that the evidence weighs against finding that the Veteran's hypothyroidism more closely approximates the criteria for a 100 percent rating.  

In sum, a 60 percent evaluation, but no higher, is warranted for hypothyroidism..  In reaching this conclusion, all possible applicable diagnostic codes have been considered in compliance with Schafrath, 1 Vet. App. at 593, but the Board finds that the evidence weighs against higher or separate ratings.  

B.  Anemia 

The Veteran has been assigned a 10 percent disability rating prior to February 2, 2010, and a 30 percent rating thereafter, for chronic anemia under Diagnostic Code 7700.  

Under Diagnostic Code 7700, a noncompensable rating is warranted when the anemia is asymptomatic; a 10 percent rating is warranted when hemoglobin is 10gm/100ml or less with symptoms such as weakness, easy fatigability, or headaches; a 30 percent rating is warranted when hemoglobin is 8gm/100ml or less, with symptoms such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath; a 70 percent rating is warranted when hemoglobin is 7gm/100ml or less, with symptoms such as dyspnea on mild exertion, cardiomegaly, tachycardia (100 to 120 beats per minute) or syncope (three episodes in the last six months); and a maximum 100 percent rating is warranted when hemoglobin is 5gm/100ml or less, with symptoms such as high output congestive heart failure or dyspnea at rest.  38 C.F.R. § 4.117, DC 7700.  

After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that a disability rating of 30 percent, but no higher, is warranted for anemia for the entire period on appeal.  

For the period on appeal prior to February 2, 2010, the Veteran's hemoglobin levels were as follows:  7.5gm/100ml (09/11/2008); 11.3gm/100ml (12/02/2008); and 11.7gm/100ml (06/04/2009).  06/12/2009 VBMS, CAPRI, p. 2.  The Board also notes the reading of 6.6gm/100ml on February 2, 2010.  02/19/2010 VBMS, CAPRI, p. 1.  Resolving all doubt in favor the Veteran, the Board finds that the Veteran had a hemoglobin level of 8gm/100ml or less prior to February 2, 2010.  The Veteran reported experiencing weakness, fatigability, headaches, and lightheadedness prior to February 2, 2010.  01/14/2009 VBMS, VA Exam.  Accordingly, the Board finds that the evidence is at least in equipoise as to whether the Veteran had a hemoglobin level of 8gm/100ml or less, with symptoms such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath prior to February 2, 2010.  Thus, a 30 percent rating is warranted for chronic anemia prior to February 2, 2010.  

To warrant a 70 percent rating for anemia, the evidence must show hemoglobin of 7gm/100ml or less, with symptoms such as dyspnea on mild exertion, cardiomegaly, tachycardia, or syncope.  

The evidence shows the following hemoglobin readings since February 2, 2010:  6.5gm/100ml (02/02/2010); 12.4gm/100ml (12/28/2011); 13.6gm/100ml (04/30/2012); 13.2gm/100ml (11/14/2012); 13.5gm/100ml (09/13/2013); 8.1gm/100ml (02/13/2015); 7.8gm/100ml (03/10/2015); 11.5gm/100ml (04/16/2016); 12.5gm/100ml (06/26/2015); 10.9gm/100ml (10/19/2015); 12.1gm/100ml (01/05/2016); and 9.5gm/100ml (12/01/2016).  03/04/2017 LCM, CAPRI, pp. 5-6, 9; 11/10/2014 VBMS, CAPRI, pp. 58-59.  The Board acknowledges the sole hemoglobin reading under 7gm/100ml in February 2010, but finds that it is an outlier, as the 11 readings since have all been above 7gm/100ml, with the majority above 10gm/100ml.  Accordingly, that lone finding is not deemed representative of the disability picture for any portion of the appeal period.  Rather, the Board finds that the weight of the competent and probative evidence is against finding hemoglobin of 7gm/100ml or less during the period on appeal; thus, a 70 percent rating is not warranted.  

Moreover, the evidence does not demonstrate dyspnea with mild exertion, cardiomegaly, tachycardia (100 to 120 beats per minute), or syncope symptoms contemplated by a 70 percent rating during the period on appeal.  Initially, the Board notes that there is no indication of cardiomegaly or syncope in the record.  In September 2008 and January 2009, the Veteran reported dyspnea on exertion; however, she denied experiencing shortness of breath on at least 10 other occassions during the period on appeal.  Although a September 2008 medical record indicates a pulse of 109 beats per minute, the remainder of the heart rate readings in the record are less than 100 beats per minute, including a pulse of 86 beats per minute in October 2008, less than one month after the tachycardic reading.  01/14/2009 VBMS, VA Exam; 02/02/2010 VBMS, VA Exam; 11/12/2008 VBMS, CAPRI No. 1, pp. 16, 25-26.  Accordingly, the Board finds that the competent and probative evidence weighs against finding that the Veteran's symptoms more nearly approximate the criteria for a 70 percent rating for anemia.  

In sum, a 30 percent evaluation for anemia is deemed warranted for the entirety of the rating period on appeal.  At no time is a higher evaluation warranted.  In reaching this conclusion, all possible applicable diagnostic codes have been considered in compliance with Schafrath, 1 Vet. App. at 593, but the Board finds that the evidence weighs against higher or separate ratings.

III.  New and Material Evidence

Generally, a claim which has been denied in a final decision by an AOJ may not thereafter be reopened and allowed.  38 U.S.C.A. § 7105(b).  However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary must reopen the claim and review its former disposition.  38 U.S.C.A. § 5108.

To be considered new, evidence cannot have been previously submitted to agency decision makers, or be cumulative or redundant of evidence of record at the time of the last prior final denial.  To be material, evidence must, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim, and raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  The credibility of the evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 512-13 (1992).  In deciding whether new and material evidence has been submitted, the Board considers evidence submitted since the time that the claim was finally disallowed on any basis.  Evans v. Brown, 9 Vet. App. 273, 285 (1996).  

After reviewing the record, the Board finds that new evidence has been received since the final prior decision, and such evidence is material to the issue of service connection for headaches.  

In September 1999, the AOJ denied service connection for headaches on the basis that there was no current headache disability.  In April 2004, the RO again denied the claim.  The Veteran did not file a notice of disagreement; therefore, the April 2004 decision became final.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103.  Consequently, the Board will consider evidence received since the April 2004 decision.

In March 2010, a VA examiner provided a diagnosis of chronic headache syndrome, and opined that the migrainous component of the Veteran's headaches is in part related to and/or worsened by menses.  03/17/2010 VBMS, VA Exam, p. 3.  The Board finds that this evidence is new and relevant to whether the Veteran has a current disability and whether her headaches are due to a service-connected disability other than anemia.  Therefore, the claim of service connection for headaches is reopened.  See 38 U.S.C.A. § 5108; 38 C.F.R. §3.156(a).

IV.  Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 

As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303.

Alternatively, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or permanently worsened beyond its natural progression (aggravated) by a service-connected disease or injury.  Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc); 38 C.F.R. § 3.310.

As previously noted, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder.  38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 262.

The Veteran is competent to report symptoms and experiences observable by her senses.  See Jandreau, 492 F.3d at 1377; 38 C.F.R. § 3.159(a).

In relevant part, 38 U.S.C.A. § 1154(a) (West 2014) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 57-58.  

A.  Headaches

After review of the record, the Board finds that the criteria for service connection for headaches have been met.

The record contains a diagnosis of chronic headache syndrome, with features suggestive of both muscle tension and migrainous components.  03/17/2010 VBMS, VA Exam, p. 3.  Thus, the Board finds that a current disabiltiy exists.  

In March 2010, a VA examiner opined that based on an in-person examination and his neurologic knowledge, training, and experience, the migrainous component of the Veteran's headaches is in part related to and/or worsened by menses.  The examiner further opined that it is less likely than not that the Veteran's headaches are caused by or a result of her anemia, explaining that the Veteran has significant iron deficiency anemia which appears to be chronic, and when anemia is chronic it is unlikely to produce symptoms such as headache.  03/17/2010 VBMS, VA Exam, p. 3.  

In January 2015, the Veteran testified that her headaches started during active duty when she was diagnosed with Graves' disease, and that they are caused by her low levels of iron in her blood.  01/29/2015 VBMS, Hearing Testimony, p. 9.  While the Veteran is competent to report experiencing headaches and their onset, she is not competent to identify their etiology, as that requires medical expertise.  See Jandreau, 492 F.3d 1377; 38 C.F.R. § 3.159(a).  

In February 2017, a VA examiner opined that the Veteran's headaches are as at least as likely as not proximately due to or the result of her anemia.  In support, the examiner explained that headache is among the most common medical complaints, and medical literature notes that headache is a presenting symptom of iron deficiency anemia.  02/16/2017 VBMS, C&P Exam (Medical Opinion DBQ); 02/16/2017 VBMS, C&P Exam (Headaches DBQ).  

The Board finds the March 2010 and February 2017 examiners' opinion to be competent, credible, and highly probative and deserving of weight, as they are supported by in-person examinations, medical expertise, review of the relevant medical records and medical literature, and sufficient rationales.  

As the VA examiners provided conflicting opinions as to the etiology of the Veteran's headaches, the Board will resolve doubt in favor of the Veteran, and finds that the Veteran's headaches are at least in part due to or aggravated by a service-connected disability other than anemia.  

As previously discussed, the Veteran has been assigned a 30 percent disability rating for anemia, which is warranted when the evidence shows hemoglobin of 8gm/100ml or less, with symptoms such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath.  38 C.F.R. § 4.117, DC 7700.  Thus, the Rating Schedule contemplates that headaches will often be a symptom of anemia.  Accordingly, to the extent the Veteran's headache symptoms are compensated under Diagnostic Code 7700 for anemia, she is precluded from being compensated for the same symptoms under a separate diagnostic code for her headache disorder.  See 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 262.  

B.  Constipation

After review of the record, the Board finds that the criteria for service connection for constipation have not been met.

The record reflects the Veteran's reports of experiencing constipation.  In January 2015, she testified that her constipation had its onset in service when she was diagnosed with Graves' disease.  01/29/2015 VBMS, Hearing Testimony, p. 3.  A December 2008 VA examination indicates constipation as a symptom associated with the Veteran's hypothyroidism.  12/02/2008 VBMS, VA Exam.  In December 2013, a VA examiner noted constipation as a symptom attributable to the Veteran's hypothyroid disorder.  12/16/2013 VBMS, C&P Exam, p. 2.  Constipation cannot be attributed to a separate digestive disorder, as the record does not contain any such diagnosis.  Accordingly, the Board finds that the weight of the competent and probative evidence shows that the Veteran's constipation is a symptom of her already service-connected thyroid disorder.  

Although constipation is not one of the symptoms listed under the 60 percent rating for hypothyroidism, the Rating Schedule contemplates that constipation due to hypothyroidism will be compensated by a 30 percent or higher rating under Diagnostic Code 7903, as it is listed under the 30 percent rating criteria.  Accordingly, the Veteran cannot be separately compensated for constipation under a different diagnostic code, as she is currently being compensated for constipation under Diagnostic Code 7903 for hypothyroidism.  38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 262.  

In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.

C.  Obesity

After review of the record, the Board finds that the criteria for service connection for obesity have not been met.

In January 2017, VA's Office of General Counsel (OGC) issued a precedential opinion concerning service connection based on obesity.  VAOPGCPREC 1-2017 (Jan. 6, 2017); see also 38 U.S.C.A. § 7104(c) (West 2014); 38 C.F.R. § 19.5 (2016) (the Board is bound by OGC opinions).  In general, the opinion concludes that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110  and 1131 and therefore may not be service connected on a direct basis or secondary basis.  The opinion further held that because it occurs over an extended period of time, the onset of obesity cannot qualify as an in-service "event" for the purposes of establishing service connection.  

Thus, while the evidence demonstrates that the Veteran is obese, obesity is not considered a disease or injury for which direct or secondary service connection may be granted.  Accordingly, as obesity or being overweight is not a disability for VA compensation purposes, the claim for service connection for obesity must be denied.  Brammer v. Brown, 3 Vet. App. 223, 225 (1992).  The Board notes that the Veteran's obesity has been considered in determining whether to grant a higher rating for hypothyroidism and, in fact, served, at least in part, as the basis for the Board's decision to grant a 60 percent evaluation under Diagnostic Code 7903.  

In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.


ORDER

A rating of 60 percent, but no higher, for Graves' disease, status post I-131 therapy (hypothyroidism), is granted. 

A rating of 30 percent, but no higher, for chronic anemia is granted throughout the rating period on appeal.  

New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for headaches is granted.

Service connection for headaches is granted. 

Service connection for a disability manifested by constipation is denied.  

Service connection for obesity is denied.  



________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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