Veterans Claims Help

Contributor and reader Brian from the easterly reaches of our great state of Washington, also called the “other Washington”, asks me to bloviate on hypothyroidism à la Agent L’orange. Of course, there are other ways you can develop hypothyroidism and I’m currently doing one for reader and current client Calvin. He had the misfortune of undergoing a year of Interferon treatment to “cure” Hepatitis C. It was successful inasmuch as he no longer has Hep C. The downside is the long list of secondary conditions caused by the Interferon therapy to include arthralgias., occasional nausea, Hypothyroidism– status post hyperthyroidism with enucleation surgery to remove the thyroid, Diabetes Mellitus type II, PN etc. etc. etc.

The short thirty six-year history of  Agent Orange in the judicial news stems not from a Veterans Court (CAVC) decision but the 9th Circuit Court of Appeals sitting in San Francisco in 1987- two years before its (CAVC’s) inception . Say what you will about them, pro or con, but, like a broken clock, the 9th gets it right some of the time. Like the recent holding throwing out California’s background checks for ammunition. In this case, Beverly Nehmer and nine other Veteran’s wives or surviving spouses sued the VA to comply with the 9th Fed Circus class action lawsuit over what AO does to you and won a huge victory for all of us Vietnam Vets and their surviving spouses. Even I am a Nehmer-class member and have hypothyroidism at 30%.

They’ve been adding to the AO list ever since 1989. 2001 saw VA add DM II. 2010 saw IHD, Parkie’s and hairy b-cell leukemia, and in 2021 they added hypothyroidism, bladder cancer and Parkinsonism (a different diagnosis of Parkie-like symptoms).  Unfortunately, they’re also handing out 0% ratings for it  (hypothyroidism) with no c&p exams. To them, it’s a nothing burger like hypertension. Unless your blowing a continuous 210/180 on the BP meter, you get a 0%.  I’ve found, if you bring your prescription bottle of Levothyroxine in and are wearing a heavy sweatshirt in July, that they award 30% as a default setting.

Let me give you an example of the retro capabilities of  Nehmer law. I got a client back in 2020 named Harry. He augered in last August but I got him everything and the DIC for his wife. He came down with something in 1998  that appeared to waddle like Parkie’s, quack like Parkie’s and for all the world exhibited all of the plumage of Parkie’s. His civvie doctors were all over the map about the diagnosis from restless leg syndrome to some kind of residuals of a cerebrovascular accident. In 2002, he filed for Parkie’s and VA told him to piss off-politely, of course. TY4YS. Next?

He came back in 2010 after Parkie’s was added to the Nehmer list and after a 2-year battle, got his service connection. He came to me for SMC R mostly. But, under §3.816(c), I also got him a 60% rating back to his 2002 filing for it. But, if it were for hypertension due to AO under the PACT Act, if you had filed for hypertension back in 2002 and lost, and you won service connection in 2025, you cannot avail yourselves of the Nehmer retroactivity clause in §3.816.  Your absolute earliest effective date, absent a previous CUE, will be the date of claim. Period. Now let’s talk about what you -Johnny Vietnam Vet- can get for your hypothyroidism as a VA rating.

If you look at the top of my widgets above, you’ll see 38USC/38CFR LINKS.  If you go to 38CFRs and click on Part 4, Schedule for rating Disabilities, §4.119 Schedule of Ratings-endocrine system shows hypothyroidism under DC 7903. To qualify for 100%, you’ll need:

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))

Let’s parse this in Veteranspeak. Any time you see an ‘and’, it means you need all the ingredients to get the 100%. We call that conjunctive as in you need everything listed to win. If you see the word ‘or’, then any subset mentioned is the only requirement. We call that dysjunctive. Here, to qualify for 1oo%, you’ll need not just myxedema (well-diagnosed with some of the symptoms mentioned like cold intolerance or cardiovascular shit etc.) but also mental disturbance. Again, mental disturbance can include at least one of the symptoms listed such as slowing of thought and depression. You might have dementia or you may not. But you will need, at the very least, slowing of thought and depression diagnosed.

So, you see the parameters for 100%. It’s what I’d call a multifactorial requirement much like DM II. If you have it (DM II) and can manage to steer clear of McDonald’s™ most of the time, you get 10%. If you can’t avoid McDonald’s and use Metformin or have to shoot up Insulin at least once per day, you get to 20%. If you need to be supervised on your diet (like getting your jaw wired shut), have your activities regulated and are using Insulin, you get to 40%. Etc. etc. etc. to 100%. Each increase in rating is due to a higher level of complication of the index disease and progressive medical intervention. So too, hypothyroidism.  Just kidding about wiring the jaw, guys. But that is not the end of the matter. Look at Note (1).

After six months, just like a heart attack, or as the regulation says, “crisis stabilization“, VA is going to call you in for a new c&p exam to measure what you still have wrong after massive infusions of Levothyroxine-also called Cytomel®. If your eyes are still bugged out, they have a rating for that. If you are having major digestive issues like GERD or mild Crohn’s/ulcerative colitis read as Irritable Bowel Syndrome, or the mental disorders mentioned above, they’re supposed to rate on those at that time. VA always seems to disremember the 6-month review unless you’re getting 100%. If they gave you a 0%, you’ll have to ask for your 6 month check up most times.

VA is required to rate each and every one of these remaining conditions based on the residual symptoms separately under the §4.25(b) guidance. Sadly, you will probably have to be your own advocate to get any meaningful traction. Most c&p clinicians don’t have a clue what hypothyroidism does to you other than to look for a scar and give you 0% under DC 7802. To most of these FNP wannabe doctors, Myxedema probably brings to mind an iced Hispanic cocktail involving a shit ton of Tequila and coconut rum and a bar full of 6’2″ buff NFL dudes with six-pack abs. Well, that or the medical condition known as the ‘illness for which there is no sympathy’ the next morning (hangover).

So, moving on, the only other possibility offered under DC 7903 is a potential 30% compensation-wise. This is important to note because VA is almost monolithic about handing out 0% ratings when you win. Uh-oh. There is no 0% rating offered on 7903. VA is guaranteed to always fall back on §4.31 and say

§ 4.31 Zero percent evaluations.

In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.

But then again, look at Note (2). Even the 30% rating has this requirement for a follow-up c&p to re rate you…

Note (2): This evaluation shall continue for six months after initial diagnosis [of 30%]. Thereafter, rate residuals of disease or medical treatment under the most appropriate diagnostic code(s) under the appropriate body system (e.g., eye, digestive, mental disorders).

So, the logical interpretation of this is twofold. If… if you have a diagnosed mental condition that encompasses any of the terms dementia/slowing of thought/ depression… AND you also have a diagnosed cold intolerance  with a touch of weird, quasi-serious cardiovascular symptoms- post-thyroidectomy or not-then, by definition, you have a diagnosis of myxedema. And, if so, it follows that you are entitled to 100%… unless you get better as mentioned in the above “crisis stabilization” protocol. For the record, to me crisis stabilization would be a thyroidectomy or the radioactive poison isotope route to nuke it. Either way, you’re going from hyper to hypo permanently. But if you never get the Cytomel, you’re gonna be 100%… or way worse.

So, being the Veteran’s advocate that I am, let’s drag out an old CAVC decision I’m fond of. Remember Jones v. Shinseki, 26 Vet.App. 56, 63 (2012)?

The Court held that the veteran is entitled to a rating based upon his unmedicated condition – that is, the higher disability evaluation – if the effects of medication are not explicitly mentioned under the applicable diagnostic code of the rating schedule  condition.

The Secretary has demonstrated in other DCs that he is aware of how to include the effect of medication as a factor to be considered when rating a particular disability. See, e.g., 38 C.F.R. § 4.71a, DC 5025 (2012) (10% rating for fibromyalgia requires symptoms “[t]hat require continuous medication for control”); 38 C.F.R. § 4.97, DC 6602 (2012) (rating criteria for bronchial asthma). The Secretary’s failure to include the effects of medication as a criterion to be considered under DC 7312 while including such effects as criteria under other DCs must therefore be read as a deliberate choice.

Nowhere in the four corners of DC 7903 can I find the word ‘medication’. “Crisis stabilization” is so broad a term that it could encompass Tuesday night 1900 Hrs Kumbaya meetings with fellow PTSD/MDD Vets down at the local Vets Center in town.  You all get together and help stabilize Bob who’s going off the deep end again ’cause his pet tarantula died. Perhaps it could it be said that if you had a brain fog (slowing of thought) condition secondary to hypothyroidism that was impervious to treatment and ratable at 70% wouldn’t that mean you have not yet reached their defined plateau of crisis stabilization? Or put another way, what percentage of rating is normally commensurate when you finally achieve crisis stabilization? To VA, that will always be 0% from where I sit in the cheap seats. But boy howdy you could drive a three-trailer semi through that definition with plenty of side clearance. Regardless of whatever crisis stabilization entails, the absence of the word Cytomel or levothyroxine is fatal to the diagnostic code. No Cytomel = no stabilization…ever.

So, having disassembled this rating code to its components, you can see the potential for a higher rating percentage for hypothyroidism building off its separate components identified in the regulation is easily attainable. VA heart disability ratings are now predicated on METS measurements- not LVEF. Major depressive disorders are arrived at by psychological c&p exams (§4.130) by folks that have more OCDs than you do. Arthralgias and muscular weaknesses are rated under §4.71a. Think of it like baking cookies- you need ingredients (read symptoms) to get the ratings percentages. A doctor has to say it. You can’t just say you have it.

In the real world of PACT, if you set foot in Viet Nam (not stepped foot in Vietnam), you are entitled to any of the Nehmer diseases listed in §3.309(e)-assuming you are diagnosed with them, of course. But, if you suffer any of the most recent additions to the AO such as hypertension or Monoclonal Gammopathy with Undetermined Significance (MGUS), you do not get the Nehmer consideration.

I’ve advocated for years to get Thailand and Laos added to the AO presumptive list. A guy stationed at Tan Son Nhut would be granted presumptive and they never got near AO because it was forbidden by President Ky to spray around Saigon back then. Jez, even he realized this stuff was lethal. But we hosed the shit out of the perimeters of every base, operating location, Firebase and LZ for a clear line of fire in Thailand and Laos-usually with Orange, Blue or White-or combinations of them. Getting these Vets in under the PACT Act is an insult but I’ll take it. As my buddy Wes says “Half a watermelon beats the pants off a whole grape any day.”

In reality, some of the nastiest flavors of AO like Pink, Purple and Green, and even the nuclear-strength version (1.5-2.0 parts AO to 1.0 parts petroleum distillate) we called Super Orange were sprayed in Eastern Laos along the HCM Trail all the way down to the Parrot’s Beak area of the HCM trail in Cambodia as late as 1968. Sure, vegetation will eventually return- and has- but the soil, like pretty much all of the Indochinese delta- is that nasty, sticky red clay and the induration rate for dioxin thereabouts is measured in centuries-not months or years.

One day, they’ll clear  the Trail and build roads and rice patties. Just imagine how much unexploded ordnance must be in there. And a toilet, too. Bummer.