Citation Nr: 18154163 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-37 698 DATE: November 29, 2018 ORDER Whether VA has received new and material evidence to reopen a claim of service connection for a left ankle disorder is dismissed. Whether VA has received new and material evidence to reopen a claim of service connection for a tuberculosis is denied. Entitlement to service connection for hypertension is denied. Entitlement to a 50 percent rating for a headache disorder from January 16, 2018 is granted. Entitlement to a rating greater than 70 percent for posttraumatic stress disorder (PTSD) from March 1, 2013 to July 20, 2017 is denied. Entitlement to a 100 percent rating for PTSD is granted from July 21, 2017. An effective date earlier than March 1, 2013 for the grant of service connection for a left hip disorder based on adduction is denied. An effective date earlier than March 1, 2013 for the grant of service connection for bilateral hearing loss is denied. An effective date earlier than March 1, 2013 for the grant of service connection for a scar resulting from temporomandibular joint (TMJ) disorder is denied. An effective date earlier than March 1, 2013 for the grant of service connection for scars of the left lower extremity is denied. An effective date earlier than March 1, 2013 for the grant of service connection for irritable bowel syndrome is denied. An effective date earlier than March 1, 2013 for the grant of service connection for a headache disorder is denied. An effective date earlier than March 1, 2013 for the grant of service connection for PTSD is denied. An effective date earlier than March 1, 2013 for the grant of service connection for TMJ disorder is denied. REMANDED An effective date earlier than March 1, 2013 for the grant of service connection for a left hip disorder based on extension is remanded. An effective date earlier than March 1, 2013 for the grant of service connection for a left hip disorder based on flexion is remanded. An effective date earlier than June 3, 1995 for the grant of service connection for a low back disorder is remanded. An effective date earlier than June 3, 1995 for the grant of service connection for a cervical disorder is remanded. An effective date earlier than June 3, 1995 for the grant of service connection for a left knee disorder is remanded. An effective date earlier than June 3, 1995 for the grant of service connection for a right ankle disorder is remanded. Entitlement to a compensable rating for a scar resulting from TMJ disorder is remanded. Entitlement to a compensable rating for scars of the left lower extremity is remanded. Entitlement to a rating greater than 10 percent for a right ankle disorder is remanded. Entitlement to a rating greater than 10 percent for a low back disorder is remanded. Entitlement to a rating greater than 10 percent for a cervical disorder is remanded. Entitlement to a rating greater than 20 percent for irritable bowel syndrome is remanded. Entitlement to a rating greater than 10 percent for a left hip disorder based on extension is remanded. Entitlement to a rating greater than 10 percent for a left hip disorder based on flexion is remanded. Entitlement to a rating greater than 10 percent for a left hip disorder based on adduction is remanded. Entitlement to a rating greater than 20 percent for a left knee disorder is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to a compensable rating for a headache disorder from March 1, 2013 to January 15, 2018 is remanded. Entitlement to a rating greater than 20 percent for TMJ disorder is remanded. FINDINGS OF FACT 1. The Veteran did not file a Notice of Disagreement (NOD) for the issue of whether VA has received new and material evidence to reopen a claim of service connection for a left ankle disorder. 2. VA denied the Veteran's claim for service connection for tuberculosis in March 1996. The Veteran did not appeal this denial or submit new and material evidence within a year of the rating decision, so the rating decision became final. 3. The Veteran claimed service connection for tuberculosis in March 2013. He did not submit evidence which, by itself or when considered with previous evidence of record, raises a reasonable possibility of substantiating the tuberculosis claim. 4. No medical provider has diagnosed the Veteran with hypertension. 5. From January 16, 2018, the Veteran’s headaches were very frequent, completely prostrating, prolonged, and productive of severe economic inadaptability. 6. From March 1, 2013 to July 20, 2017, the Veteran had close relationships with him wife and children. Therefore, his PTSD did not cause total social impairment. 7. From July 21, 2017, the Veteran's PTSD caused total social and occupational impairment. 8. VA received the Veteran's application for service connection for the left hip disorder based on adduction; bilateral hearing loss; scar resulting from TMJ disorder; scars of the left lower extremity; irritable bowel syndrome; headache disorder; PTSD; and TMJ disorder on March 1, 2013. CONCLUSIONS OF LAW 1. The issue of whether VA has received new and material evidence to reopen a claim of entitlement to service connection for a left ankle disorder is dismissed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.100, 20.200, 20.300, 20.302. 2. The criteria for reopening the tuberculosis claim have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102. 4. From January 16, 2018, the criteria for a rating of 50 percent for headaches have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.124a, Diagnostic Code 8100. 5. From March 1, 2013 to July 20, 2017, the criteria for entitlement to a rating greater than 70 percent for PTSD have not been approximated. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. 6. From July 21, 2017, the criteria for entitlement to a 100 percent rating for PTSD have been approximated. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. 7. The criteria for an effective date earlier than March 1, 2013 for the grants of service connection for the left hip disorder based on adduction; bilateral hearing loss; scar resulting from TMJ disorder; scars of the left lower extremity; irritable bowel syndrome; headache disorder; PTSD; and TMJ disorder are not met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, and 5110; 38 C.F.R. §§ 3.156, 3.158, 3.160 and 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1976 to June 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of April 2014 and November 2015 of the Department of Veterans Affairs. VA granted the Veteran a total disability based upon individual unemployability effective February 16, 2014. Issue 1: Whether VA has received new and material evidence to reopen a claim of service connection for a left ankle disorder The Board must have jurisdiction to review the denial of a claim. To have jurisdiction, the Veteran must submit a written Notice of Disagreement (NOD) within one year of notification of VA’s denial of the claim to initiate an appeal. The Veteran claimed service connection for a left ankle disorder in March 2013. VA denied the claim in April 2014 because the Veteran did not submit new and material evidence for this claim. The Veteran submitted an NOD in March 2015, but he did not list this issue on his NOD. Notwithstanding this, VA treated the depression issue as if it was on appeal by including it in the July 2016 SOC. VA erred. It is clear from the NOD that the Veteran elected not to appeal this issue. Accordingly, the Board must dismiss the claim. 38 U.S.C. § 7105(d); 38 C.F.R. § 20.101(d). Issue 2: Whether VA has received new and material evidence to reopen a claim of service connection for a tuberculosis The last final denial of this claim was in March 1996. The Veteran did not appeal that rating decision, and he did not submit new and material evidence within a year of the rating decision. Therefore, this decision became final. Accordingly, VA must determine whether new and material evidence has been submitted since that time to reopen this claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996) (indicating VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of a claim). The March 1996 rating decision denied the claim because there was no evidence of a current disability. When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The U.S. Court of Appeals for Veterans Claims interprets the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Unfortunately, the Veteran has submitted no evidence that he has been diagnosed with tuberculosis since March 1996. The Board recognizes the threshold for reopening a claim is low, but it is a threshold nonetheless, and the evidence that the Veteran has added since March 1996 does not reach that threshold. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Accordingly, the Board finds that the Veteran has not presented new and material evidence to reopen his previously denied claim for service connection for tuberculosis. Issue 3: Entitlement to service connection for hypertension. The U.S. Court of Appeals for the Federal Circuit has held that a three-element test must be satisfied to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the “nexus” requirement). Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). The April 2014 VA decision which denied service connection states that "VA treatment records show treatment for hypertension." The undersigned has reviewed the VA treatment records in the file but has identified no such records. Indeed, multiple entries expressly state that the Veteran does not have any pulmonary or cardiac disorder. Because there is no evidence the Veteran has hypertension, he fails the first prong of service connection – current disability. Therefore, the Board must deny his claim. Issue 4: Entitlement to a 50 percent rating for a headache disorder from January 16, 2018. Issue 5: Entitlement to a rating greater than 70 percent for posttraumatic stress disorder (PTSD) from March 1, 2013 to July 20, 2017. Issue 6: Entitlement to a rating greater than 70 percent for PTSD from July 21, 2017. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Headache Disorder Headaches are evaluated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a 10 percent disability evaluation is warranted for characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent disability rating is assigned for migraine headaches with characteristic prostrating attacks occurring an average of once a month over the last several months. A 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In determining whether the Veteran experiences the type and frequency of prostrating attacks of migraine headaches necessary for a higher rating under Diagnostic Code 8100, the Board observes that the rating criteria do not define “prostrating,” nor has the U.S. Court of Appeals for Veterans Claims. See Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack.) By way of reference, the Board notes that according to WEBSTER’S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, “prostration” is defined as “utter physical exhaustion or helplessness.” A similar definition is found in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which “prostration” is defined as “extreme exhaustion or powerlessness.” The rating criteria also do not define “severe economic inadaptability.” However, nothing in Diagnostic Code 8100 requires the claimant to be completely unable to work to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440 (2004). VA examined the Veteran for multiple disabilities on January 16, 2018. Under 38 C.F.R. § 20.1304(c), any pertinent evidence that is submitted to the Board, including evidence obtained and added to the file by VA, must be referred to VA for initial review unless this right is waived by the appellant or representative in writing or on the record during a hearing. Additionally, under 38 U.S.C. § 7105(e)(1), for substantive appeals received on or after February 2, 2013, a waiver of AOJ review is not required for new pertinent evidence that is submitted by the appellant or representative, and the Board may proceed with adjudication and consideration of the new evidence in the first instance. VA has not interpreted this automatic waiver to apply, as here, to evidence the appellant did not submit. Because VA examined the Veteran prior to the date VA certified the appeal, January 16, 2018 and January 22, 2018, respectively, remand for a Supplemental Statement of the Case is appropriate for most of the Veteran's increased rating claims. However, remand is not warranted for the headache claim because the Board can grant a full allowance for the benefit sought. The VA examiner in January 2018 found that the Veteran's headaches were very frequent, completely prostrating, prolonged, and productive of severe economic inadaptability. Therefore, the Veteran meets the criteria for a 50 percent rating – the maximum available – from the date of the examination. PTSD VA has rated the Veteran’s PTSD as 70 percent disabling. A 70 percent evaluation is assigned when a veteran’s psychiatric disability causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent rating is assigned when a veteran’s psychiatric disability causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s psychiatric symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. VA examined the Veteran for compensation purposes in September 2015 and July 2017. Because VA has rated the Veteran as 70 percent disabled during the pendency of the claim, the undersigned only needs to consider if he merits the next highest rating – 100 percent. The Veteran's level of social impairment deteriorated between the two examinations and is dispositive. In 2015, the examiner noted the Veteran "is married and reports a normal marriage. He has four children and reports that his relationship with his daughters is good and he is not that close to his son." By 2017, the examiner found the Veteran had total social impairment. Given these reports, the undersigned finds that the Veteran was not totally socially impaired from March 1, 2013 to July 20, 2017, and he thus does not merit a 100 percent rating for that period. However, as of July 21, 2017, the date of the VA examination, he was both totally socially and occupationally impaired, thus warranting a 100 percent rating. Issue 7: An effective date earlier than March 1, 2013 for the grant of service connection for a left hip disorder based on adduction. Issue 8: An effective date earlier than March 1, 2013 for the grant of service connection for bilateral hearing loss. Issue 9: An effective date earlier than March 1, 2013 for the grant of service connection for a scar resulting from TMJ disorder. Issue 10: An effective date earlier than March 1, 2013 for the grant of service connection for scars of the left lower extremity. Issue 11: An effective date earlier than March 1, 2013 for the grant of service connection for irritable bowel syndrome. Issue 12: An effective date earlier than March 1, 2013 for the grant of service connection for a headache disorder. Issue 13: An effective date earlier than March 1, 2013 for the grant of service connection for PTSD. Issue 14: An effective date earlier than March 1, 2013 for the grant of service connection for TMJ disorder. Effective Dates Request for an earlier effective date is a downstream issue from the grant of the benefit sought. Once service connection is granted and a Notice of Disagreement is filed, the notice requirements of 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what “evidence [is] necessary to establish a more favorable decision with respect to downstream elements.” Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The provisions for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of the award of an evaluation based on an original claim, a claim reopened after a final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (2017). Under VA laws and regulations, a specific claim in the form prescribed by the VA must be filed for benefits to be paid or furnished to any individual under laws administered by the VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The Veteran contends that VA should grant effective dates earlier than March 1, 2013 for his left hip disorder based on adduction; bilateral hearing loss; scar resulting from TMJ disorder; scars of the left lower extremity; irritable bowel syndrome; headache disorder; PTSD; and TMJ disorder. However, neither the Veteran nor his former attorney has explained why. Indeed, neither has offered any evidence or argument. The Veteran claimed service connection for these conditions in an application VA received on March 1, 2013. VA granted service connection for these conditions, and it assigned an effective date of March 1, 2013 for all of them. The Board has reviewed VA's assignment of the effective dates, and it finds VA complied with 38 C.F.R. § 3.400. As neither the Veteran nor his former attorney have explained how VA erred, the Board denies earlier effective dates these conditions. REASONS FOR REMAND Remand is warranted for three reasons. First, the Veteran submitted a Notice of Disagreement (NOD) in March 2015. On this NOD, the Veteran appealed the effective dates of the grants of service for his hip disorder based on flexion and extension. Additionally, he appealed effective dates for his low back disorder; cervical disorder; left knee disorder; and right ankle disorder. As VA service connected the low back disorder; cervical disorder; left knee disorder; and right ankle disorder effective June 3, 1995, and the decisions concerning these issues in the April 2014 rating decision on appeal denied increased ratings for each issue, it is unclear what earlier effective dates the Veteran is seeking. However, the undersigned has presumed he is seeking them regarding his grants of service connection because – at least in theory – could confer a benefit. As such, the undersigned has styled the issues above accordingly. Remand is needed for VA to issue a Statement of the Case for these unprocessed appeals. Second, VA examined the Veteran for multiple disabilities on January 16, 2018. Under 38 C.F.R. § 20.1304(c), any pertinent evidence that is submitted to the Board, including evidence obtained and added to the file by VA, must be referred to VA for initial review unless this right is waived by the appellant or representative in writing or on the record during a hearing. Additionally, under 38 U.S.C. § 7105(e)(1), for substantive appeals received on or after February 2, 2013, a waiver of VA review is not required for new pertinent evidence that is submitted by the appellant or representative, and the Board may proceed with adjudication and consideration of the new evidence in the first instance. VA has not interpreted this automatic waiver to apply, as here, to evidence the appellant did not submit. Because VA examined the Veteran prior to the date VA certified the appeal, January 16, 2018 and January 22, 2018, respectively, remand for a Supplemental Statement of the Case is appropriate. Third, a document dated April 18, 2014 and designated as "photographs" in the Veteran’s claims file is blank. These photographs, presumably taken as part of the Veteran’s VA examination that day, would assist the Board in rating his two scar claims. Remand is necessary to attempt to obtain this document. The matters are REMANDED for the following action: 1. Issue a Statement of the Case for the 6 effective date issues cited in the Remand section above. (Continued on the next page) 2. Attempt to obtain the photographs of the Veteran's scars taken at his April 18, 2014 VA examination and upload into his claims file. If the photographs cannot be obtained, determine if a new VA examination for scars is warranted. 3. Issue a Supplemental Statement of the Case for 13 increased rating claims cited in the Remand section above. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Sopko, Counsel
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