Citation Nr: 1338340 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 05-13 459 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen a claim for service connection for schizophrenia, claimed as a psychiatric disorder. 2. Entitlement to a compensable rating for status-post tonsillectomy. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to October 1974, with subsequent service in the Puerto Rico Army National Guard. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In March 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to provide the Veteran with VCAA notice, obtain additional records, and afford the Veteran a VA medical examination. The action specified in the March 2012 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). (It is noted that service connection for a testicular condition was denied by the Board in March 2012. This claim was previously appealed to the U.S. Court of Appeals for Veterans Claims (Court). The Veteran has not since appealed to the Court.) The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. In an April 1975 rating decision, the RO denied service connection for a nervous disorder; the Veteran appealed. The claim for service connection for a psychiatric disorder was denied in an August 1984 Board decision. A January 2003 Board decision denied a reopened claim for entitlement to service connection for schizophrenia; the Veteran did not appeal. 2. Evidence received since the January 2003 Board decision is not new and material, and the Veteran's claim for schizophrenia, claimed as a psychiatric disorder, is not reopened. 3. The Veteran's status-post tonsillectomy is not productive of hoarseness with inflammation of the vocal cords or mucous membrane. The Veteran's chronic laryngitis is unrelated to his service connected condition. CONCLUSIONS OF LAW 1. The January 2003 Board decision that denied the Veteran's reopened claim for entitlement to service connection for schizophrenia is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156, 20.1103 (2013). 2. New and material evidence has not been received since the January 2003 Board decision and the Veteran's claim for entitlement to service connection for schizophrenia, claimed as a psychiatric disability, is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. The criteria for entitlement to a compensable rating for status-post tonsillectomy have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.31, 4.97, Diagnostic Codes 6599-6516 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence In an April 1975 rating decision, the RO denied service connection for a nervous disorder. In his February 1976 NOD, the Veteran expressed disagreement with the denial of service connection for a nervous disorder. While an SOC was not issued in response to the February1976 NOD, the claim for service connection for a psychiatric disorder was denied in an August 1984 Board decision. Thus, the April 1975 denial of service connection for a nervous disorder was subsumed by the August 1984 Board decision. See 38 C.F.R. § 20.1104 (2013). Moreover, the Board notes that, after reopening the claim for service connection for schizophrenia in a November 2001 decision, the Board denied the claim for service connection for schizophrenia in a January 2003 decision. In June 2008, the Veteran filed his current request to reopen a claim for service connection for a psychiatric disorder. In light of the foregoing final Board decisions, new and material evidence is required to reopen this claim. In regard to the request to reopen the claim for service connection for schizophrenia, claimed as a psychiatric disorder, the Board has also considered the decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008). In that decision, the Federal Circuit held that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury. Rather, the two claims must be considered independently. See Ephraim v. Brown, 82 F. 3d 399 (Fed. Cir. 1996). In this case, the Veteran was previously denied service connection for schizophrenia on the basis that the weight of the clinical evidence of record ruled out a connection between the Veteran's psychiatric symptomatology and service. In June 2008, the Veteran filed a request to reopen his previously denied claim for a psychiatric disorder, and the recent medical evidence continues to reflect a diagnosis of schizophrenia. Accordingly, the Veteran is not seeking service connection for a different diagnosed disease or injury, and new and material evidence is required to reopen the claim. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002 & Supp. 2010). However, 38 U.S.C.A. § 5108 provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Hence, before reaching the issue of whether service connection is warranted, the Board must first determine whether the claim may be reopened. See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). New and material evidence means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2013). The Court has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Rather, the reasons for the final disallowance must be considered in determining whether the newly submitted evidence is material. Id. Such evidence must tend to prove the merits of the claim as to each essential element that was a reason for that last final disallowance of the claim. Id. In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary's duty to assist by providing a medical opinion. The Board denied the appellant's prior claim because the preponderance of the evidence did not support a finding that the Veteran's schizophrenia had onset in service or within one year of service or was caused or aggravated by the Veteran's active military service. Thus, for evidence in this case to be considered new and material, it must show that the Veteran's schizophrenia has onset in service or within one year of service or is related to his active military service. Prior to the January 2003 Board decision that denied the Veteran's reopened claim for entitlement to service connection for schizophrenia, the evidence of record included, in relevant part: service medical records, to include the September 1974 separation examination, which contained no references to treatment for a psychiatric disorder; a March 1975 VA psychiatric examination, which found no mental disease; outpatient treatment beginning in March 1976 for complaints to include insomnia, restlessness, and claimed paranoid ideation; records of VA inpatient psychiatric treatment in December 1980, with the first confirmed diagnosis of schizophrenia of record; records from the Social Security Administration (SSA); clinical reports reflecting treatment for psychiatric symptomatology by private and VA physicians through the 1980s and 1990s, which reflect frequent statements by the Veteran reporting symptomatology in service or shortly after separation from service; January 2000 hearing testimony by the Veteran that that he had difficulty sleeping and controlling his temper during service and that he was treated during service by a psychiatrist; and an April 2002 VA medical opinion that "there is no objective evidence or cause that relates this veteran's NP [neuropsychiatric] condition to his period of active military service." Since the 2003 Board decision, VA outpatient treatment records from 2004 through 2013 have been associated with the Veteran's claims folder. These records show ongoing mental health treatment for schizophrenia, undifferentiated type, and depression, not otherwise specified, but do not relate these conditions to the Veteran's military service. The RO was unsuccessful in obtaining additional service treatment records related to the Veteran's service in the Puerto Rican National Guard. The Veteran's October 1972 induction examination was obtained; however, this document reveals no pertinent abnormalities. It has always been conceded that the Veteran entered service in sound condition, without any preexisting psychiatric disabilities. 38 C.F.R. § 3.156(c). Medical records from the 1982 from Dr. G.G. have been translated from Spanish to English. The Veteran reported that he began experiencing insomnia and anxiety and hearing voices after leaving the military in 1973. He attributed his current psychiatric problems to his military service. However, this is redundant of other statements in the Veteran's VA and private treatment records, as well as to the VA, which were considered by the Board when adjudicating the Veteran's claim in January 2003. In his October 2009 notice of disagreement, the Veteran claimed that his schizophrenia developed during his National Guard service. This claim is similar to the Veteran's past statements reporting onset of his psychiatric problems either in-service or shortly after separation from service. The Board has reviewed all the evidence received since January 2003, and cannot find any competent medical evidence establishing a relationship between the Veteran's claimed psychiatric condition and his military service. As new and material evidence has not been received, the Veteran's prior claim cannot be reopened. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R., Part 4 (2013). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, 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. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2013). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. The Veteran is seeking entitlement to a compensable disability rating for the service connected residuals of his tonsillectomy. In an October 2009 statement, the Veteran asserted that his status-post tonsillectomy was worsening day by day, to the point that he could not have a normal life. For the entire period on appeal, his service connected disability has been rated as non-compensable, by analogy, under Diagnostic Code 6516. Under Diagnostic Code 6516, a 10 percent evaluation is assigned for chronic laryngitis manifested by hoarseness, with inflammation of the vocal cords or mucous membrane. Assignment of a 30 percent evaluation is warranted for chronic laryngitis manifested by hoarseness, with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. 38 U.S.C.A. § 4.97 Diagnostic Code 6516 (2013). The Veteran was afforded a VA examination to evaluate his status-post tonsillectomy in February 2009. At that time, the Veteran complained of recurrent nasal stuffiness. The physician concluded that there were no effects of the condition on the Veteran's occupational functioning and daily activities. The final diagnoses were mild allergic rhinitis and status-post tonsillectomy, excellent results. In July 2013, the Veteran was afforded another VA examination. The Veteran complained of symptoms including phlegm, hoarseness, and throat clearing, as well as nasal obstruction. A laryngeal endoscopy was performed with normal findings. The Veteran was diagnosed with rhinitis and chronic laryngitis. The examiner concluded that the Veteran currently has no functional impairment resulting from his service connected tonsillectomy and that the Veteran's laryngitis is less likely than not related to the Veteran's status-post tonsillectomy. The examiner noted that the Veteran's laryngeal endoscopy was negative for any pathology resulting from the Veteran's tonsillectomy and that there is no evidence in the Veteran's treatment records of a relationship between his current complaints and his tonsillectomy. Regarding the Veteran's complaints of hoarseness, they were described as "sporadic" and "consistent with gastric reflux." The remaining evidence of record does not indicate that the Veteran's status-post tonsillectomy is symptomatic. In reaching this conclusion, the Board has reviewed VA outpatient treatment records, private treatment records, and other records associated with the file. There is no evidence that during the period on appeal, the Veteran has been treated for any symptoms secondary to his tonsillectomy. Accordingly, there is no basis for concluding that the Veteran's impairment is analogous to inflammation of the vocal cords or mucous membrane, as would warrant a 10 percent initial evaluation under Diagnostic Code 6516. The Board has also considered whether a higher rating under any other diagnostic codes found in 38 C.F.R. § 4.97 regarding diseases of the nose and throat is warranted and finds that it is not, as the Veteran's service connected disability is asymptomatic. The Board has considered the Veteran's statements that he is entitled to a higher rating. However, the Board places a higher probative value on the VA examiner's assessment that the Veteran's tonsillectomy has not resulted in any residual symptoms for which compensation could be provided and that the Veteran's chronic laryngitis is unrelated to the Veteran's past tonsillectomy. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. Fenderson v. West, 12 Vet. App. 119 (1999). Finally, the Board has also considered whether the Veteran's disability warrants referral for extraschedular consideration. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2013). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, it does not appear that the Veteran has an "exceptional or unusual" disability; he merely disagrees with the assigned evaluation for his level of impairment. In other words, he does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplated by the schedular criteria. The available schedular evaluations for that service-connected disability are adequate. Therefore, no referral for extraschedular consideration is required and no further analysis is in order. For all the above reasons, entitlement to a compensable disability evaluation for status post tonsillectomy must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). The Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in June 2008, February 2009, and March 2012. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed condition. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). ORDER The Veteran's previously denied claim for service connection for schizophrenia, claimed as a psychiatric disorder, cannot be reopened. Entitlement to a compensable rating for status-post tonsillectomy is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs