Citation Nr: 1801811 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 16-26 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 3. Entitlement to a compensable rating for hypertension. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD I. Umo, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from July 1980 to June 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from October 2015 and January 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACTS 1. Service connection for an acquired psychiatric disorder, to include adjustment disorder with depressed mood, to include as secondary to service-connected disability was denied in a March 2015 Board decision. 2. Evidence associated with the claims file since the March 2015 Board decision is cumulative or redundant and does not raise a reasonable possibility of substantiating the claim denied in the March 2015 Board decision. 3. The Veteran's service-connected disabilities, without regard to age or other disabilities, do not preclude him from obtaining and maintaining substantially gainful employment. 4. Affording the Veteran the benefit of the doubt, his hypertension most closely approximates to the 10 percent disability rating criteria. CONCLUSIONS OF LAW 1. The March 2015 Board decision that denied entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with depressed mood, to include as secondary to service-connected disability is final. 38 U.S.C. § 7103 (West 2014); 38 C.F.R. §§ 20.1100 (2016). 2. New and material evidence has not been received since the Board's March 2015 decision that denied a claim for service connection for an acquired psychiatric disorder and the claim for service connection for an acquired psychiatric disorder is not reopened. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016). 3. The criteria for an award of TDIU are not met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2016). 4. The criteria for a 10 percent disability rating, but no more, for hypertension have been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, DC 7101 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify & Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A and 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The duty to notify has been met. See the July 2011 VCAA letter. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances ... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran ...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The duty to assist has been met. The record reflects that all available records pertinent to the claim have been obtained to the extent possible. The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Veteran was provided with an adequate examination for the hypertension claim. The examiner had access to and reviewed the claims file and also examined the Veteran. Pertinent findings from the examination were included in the examination report which are sufficient to accurately adjudicate this increased rating claim. VA is not required to obtain a medical opinion for a claimant seeking to reopen a previously and finally disallowed claim prior to a determination that new and material evidence has been received. See Paralyzed Veteran's of Am. V. Sec'y of Veterans Affairs, 345 F.3d 1334 (Fed. Circ. 2003). Thus, any question as to the adequacy of a VA examination is moot prior to reopening of the claim with regard to the psychiatric claim. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Accordingly, the Board will address the merits of the claims. II. Decision Generally, a claim that has been denied in a final unappealed RO decision or an unappealed Board decision may not be reopened and allowed. 38 U.S.C. § 7105(c) (West 2014). An exception to that rule is that if new and material evidence is presented or secured with respect to a claim, which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (West 2014). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether new and material evidence has been submitted is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). However, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the March 2015 Board decision, which denied service connection for an acquired psychiatric disorder, the evidence of record consisted of the Veteran's service-treatment records, service personnel records, private treatment records, Social Security Administration (SSA) records, VA examinations, and the Veteran's lay statements. In the March 2015 decision, the Board noted that the Veteran's service treatment records (STRs) reflected that in January 1990, he was evaluated at a mental health clinic after a reduction in rank and disciplinary action. He presented with migraines, headaches, anxiety, and preoccupation. He was later diagnosed with adjustment disorder with depressed mood; and personality disorder, not otherwise specified (NOS), with self-defeating and narcissistic traits. The Veteran was disturbed with his new command, and claimed he could not deal with the people onboard the ship and asked not to be sent back. Past psychiatric history was denied. During his separation examination, the Veteran was noted to have "depression related to shipboard experience." In July 2009, the Veteran's private physician opined that he had depression and adjustment disorder affecting his physical condition. In September 2009, SSA determined that the Veteran had severe impairments from HIV, diabetes mellitus, COPD, hypertension, gout, chronic renal failure, adjustment disorder, and depression, which caused more than minimal functional limitations and determined that he was disabled. In June 2011, the Veteran underwent a VA examination, where he denied experiencing emotional problems prior to entering the military. After discussing the Veteran's family history and military record, the examiner opined that the Veteran's experience of depression appeared to be related to his health problems and to being rejected by his daughter and siblings. The diagnosis was anxiety disorder with depressed mood. The VA examiner commented that although the Veteran was diagnosed with adjustment disorder while in the military, it was related to a specific situation and symptoms resolved afterwards. The Veteran's diagnosis at the time of the present examination was an adjustment disorder with depressed mood secondary to his health problems as well as the rejection he had experienced from his family. During VA treatment in March 2012, the Veteran reported feeling "down" because his family was "gossiping" about his HIV diagnosis. In a May 2012 addendum, the June 2011 VA examiner indicated that the Veteran's adjustment disorder with depressed mood was not caused by his service-connected disabilities. A September 2012 VA general medical examiner commented that the Veteran had situational depression/anxiety, noting that his medical and financial problems caused a level of depression. During VA treatment in May 2013, the Veteran reported some psychological ailments because of his HIV. At a July 2013 Board hearing, the Veteran described his shock at receiving a non-judicial punishment (NJP) while he was on active duty. In an August 2013 letter, K.L. stated that she had been seeing the Veteran since April 2013, and after limited discussions, she noted that he reported struggling to adjust to the military culture and to cope with military-related stressors and situations. Therefore, she opined that it was at least as likely as not that his adjustment disorder was directly related to his military service. In a September 2013 letter, Dr. N.V. wrote that she had diagnosed the Veteran with adjustment disorder in 2009. She opined that his condition was as likely as not related to his military service. On VA mental disorders examination in November 2013, the Axis I diagnosis was adjustment disorder with mixed anxiety and depressed mood. The examiner noted that the Veteran was hospitalized and diagnosed with adjustment disorder with depressed mood in service and, subsequent to the discharge, he did not seek psychiatric care or take psychotropic medications. The November 2013 VA examiner opined that the Veteran's current adjustment disorder was not caused by his military service, explaining that, by definition, an adjustment disorder involves emotional or behavioral symptoms that are in response to identifiable stressors and requires that once the stressor has terminated, the symptoms do not persist for more than an additional six months. He noted that the stressors encountered at the time of the Veteran's discharge had not persisted since 1990 and his current adjustment disorder was due to health conditions that were not present at the time of his discharge from the military. The examiner opined that the statements by outside providers stating that the current psychiatric disorder was at least as likely as not caused by military service, did not appear to apply the DSM IV TR and did not appear to have had access to the Veteran's military records. The Board found that the Veteran has a current diagnosis, therefore, the crucial inquiry is whether the Veteran's current psychiatric disorder was caused by or otherwise related to his military service or other service-connected disability. As discussed above, the Board reviewed all the evidence relevant to the Veteran's claim and concluded that the preponderance of the evidence indicated that his current diagnosis was not related or caused by his military service. See March 2015 Board Decision. The Veteran was notified of the denial and his appeal rights in that Board decision; he began an appeal but did not prosecute it and it was dismissed. Thus, it is final. See 38 U.S.C. § 7103; 38 C.F.R. § 20.1100 (2016). The Board has reviewed the evidence of record which was received subsequent to the March 2015 Board decision and finds that the Veteran has not submitted new and material evidence necessary to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. As discussed in the March 2015 Board decision, the crucial element was whether the Veteran's current diagnosis was related or caused by his military service. Therefore, nexus evidence would be material to the Veteran's claim. Since the March 2015 Board decision, however, there has not been pertinent evidence associated with the record to substantiate the Veteran's claim. The Veteran provided a nexus opinion from his private medical doctor, but the information was duplicative of the records already on file. See e.g., November 2015 Private Treatment Record and September 2013 Private Treatment Record. Likewise, a December 2015 letter from staff therapist K.L. failed to provide nexus evidence that would assist the Veteran in substantiating his claim. The Veteran also provided lay statements but those statements were duplicative. Additionally, clinical records have been associated with the claims file since the March 2015 decision. The additional records do not contain any evidence that the Veteran's current psychiatric disorder is related or caused by his military service. The United States Court of Appeals for Veterans Claims (Court) has held that additional evidence, which consists of records of post-service treatment that do not indicate in any way that a condition is service-connected, is not new and material. Cox v. Brown, 5 Vet. App. 95, 99 (1993). Based on a review of the record, the Board finds that the evidence received subsequent to the March 2015 Board decision is not new and does not address whether the Veteran's current diagnosis is related to or caused by his active military service. Since the evidence does not meet the definition of material evidence, it does not satisfy the low threshold for reopening a claim. See Shade, supra. As new and material evidence has not been received, the petition to reopen the claim for service connection for an acquired psychiatric disorder is denied. TDIU In order to establish service connection for a total rating based upon individual unemployability due to service-connected disability (TDIU), there must be an impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither non-service-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4. Vet. App. 361, 363 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). At this time, service connection is in effect for hypertensive heart disease rated as 60 percent disabling, tinnitus rated as 10 percent disabling, and bilateral hearing loss at 0 percent, and hypertension that the Board grants in this decision at 10 percent disabling. The combined ratings for the Veteran's service-connected pursuant to 38 C.F.R. § 4.25, is 60 percent disabling. The Veteran's service-connected disabilities do not meet the schedular rating for TDIU, therefore, the primary inquiry is whether the Veteran is unable to obtain and maintain substantially gainful employment under 38 C.F.R. § 4.16(b). The Veteran was found disabled by the Social Security Administration in 2009. The bases for that determination were diagnoses of HIV, diabetes mellitus, chronic obstructive pulmonary disease, hypertension, gout, chronic renal failure, adjustment disorder and depression. The Veteran filed his claim for TDIU in November 2015. In his November 2015 TDIU, the Veteran claimed that he last worked in August 2015 but had to leave his employment because of his disabilities. However, the Veteran did not indicate which service-connected disabilities caused him to leave his job. In the same TDIU application, the Veteran reported that he applied for a senior accountant position in October 2015. To date, there has been no indication if the Veteran received the position. The Board notes, however, that the sole fact that a veteran is unemployed or has difficulty finding employment is not enough, since a high rating in itself is recognition that an impairment makes it difficult to obtain and maintain employment. The question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In the November 2016 C&P examination, the examiner indicated that the Veteran's hypertension impacted his ability to work due to the fact that he is easily fatigued, although he reported only missing one week of work time in the last twelve months. In the Veteran's clinical records from 2017, it is indicated that he has sporadic shortness of breath and an attack of his gout. He also had CAD and underwent heart surgery. In the Veteran's motion to advance his claim, his cardiologist D.P., stated that it is best for the Veteran to be on disability due to his severe CAD. See May 2017 Cardiology Consult. The cardiologist added that with all other co-morbid conditions, it is amazing that the Veteran is still alive. However, based on recent clinical records from September 2017, the Veteran's blood pressure was under control with medication. Also in September 2017, the Veteran reported that he had been feeling good. His complaints of chest tightness are occurring much less, although there are random moments of mild discomfort. He lives on the third floor and uses the stairs to get to his apartment with no chest pain shortness of breath with this amount of physical activity. Even with the cardiologist's opinion, the preponderance of the evidence is against a finding that his service-connected disabilities, alone, preclude the Veteran from obtaining and maintaining sedentary forms of substantially gainful employment. The Veteran was not unemployable as a result of only his service-connected disabilities. In rendering this decision, the Board notes that consideration cannot be given to his age or to the impairment caused by nonservice-connected disabilities. Although the Veteran is considered to be disabled by the SSA, the SSA determined that the Veteran was unemployable due to the nonservice-connected disabilities of HIV, diabetes mellitus, COPD, gout, chronic renal failure, and adjustment disorder and depression, in addition to the service-connected disability of hypertension. SSA decisions are not binding on VA determinations as to employability. The Veteran has received multiple VA examinations in connection with his service-connected disorders; none except one, indicated that the Veteran is precluded from obtaining and maintaining limited forms of substantially gainful employment solely due to service-connected disabilities. Even more, in the November 2016 C&P examination, the examiner noted that the Veteran would be impacted in his ability to work because he is easily fatigued. However, even this opinion does not suggest that the Veteran is precluded from all forms of substantially gainful employment, specifically sedentary work. There is no indication that the Veteran's service connected disabilities, when considered together, render the Veteran unemployable. As the preponderance of the evidence is against finding that the Veteran was unemployable solely as the result of his service-connected disabilities, a total disability rating based on individual unemployability, is not warranted. In making these determinations, the Board has considered the provisions of 38 U.S.C § 5107, but there is not such a state of approximate balance of the positive and negative evidence to otherwise warrant a favorable decision. Hypertension In July 2015, VA received the Veteran's claim for an increased rating for his service-connected hypertension. The Veteran is currently rated at zero percent. DC 7101 provides ratings for hypertensive vascular disease (hypertension and isolated systolic hypertension). Hypertensive vascular disease with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control, is rated 10 percent disabling. Hypertensive vascular disease with diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more, is rated as 20 percent disabling. Hypertensive vascular disease with diastolic pressure predominantly 120 or more is rated 40 percent disabling. Hypertensive vascular disease with diastolic pressure predominantly 130 or more is rated 60 percent disabling. Note (1) to DC 7101 provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. Note (2) provides that hypertension that is due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, is to be rated as part of the condition causing it rather than by a separate rating. Note (3) provides that hypertension is to be rated separately from hypertensive heart disease and other types of heart disorders. 38 C.F.R. § 4.104. The Board finds that the Veteran's hypertension closely approximates to a 10 percent disability evaluation based on the evidence of record. Specifically, in his November 2015 notice of disagreement, the Veteran reported that he requires continuous medication for control of his hypertension. He indicated that he has been using Lisinopril and Amlodipine Besylate since 2001, and added that without those medications, his diastolic pressure is predominantly in the range of 100 to 118. To support the Veteran's contentions, in a November 2016 C&P examination, the VA examiner indicated that the Veteran has been on daily medication since 2001. The examiner listed Lisinopril, Metoprolol, and Amlodipine as the medications used to control the Veteran's hypertension. Moreover, the Veteran's average blood pressure reading during the examination was 143/102. However, during an August 2015 hypertension DBQ, the Veteran's blood pressure was 138/80, 142/84, and 136/78. The examiner did report that the Veteran's hypertension condition is active and noted that the Veteran was on medication to control his hypertension. As discussed above, hypertensive vascular disease with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control, is rated 10 percent disabling. In this instance, it is clear that the Veteran requires continuous medication for control, but there is a relative equal balance of positive and negative evidence on whether he has a history of diastolic pressure predominantly 100 or more. Additionally, the Board notes that in adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan, 451 F.3d at 1331. The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences. For example, he is competent to report the medications he takes, or that he experiences certain symptoms, such as being told that he has high blood pressure, and he is credible in this regard. See, e.g., Layno, 6 Vet. App. at 465. Therefore, the Veteran's lay testimony regarding his average blood pressure without medication and the medications he is prescribed is considered competent and credible and is given substantial probative weight. Therefore, as there is an approximate balance of positive and negative evidence regarding an issue material to the determination of the matter, the Board gives the benefit of the doubt to the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As such, giving the Veteran the benefit of the doubt, the Veteran's hypertension most closely approximates to a 10 percent disability rating for hypertension under 38 C.F.R. § 4.104, DC 7101. ORDER The petition to reopen the claim of entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to a TDIU is denied. Entitlement to a 10 percent rating for the service connected hypertension is granted subject to the laws and regulations governing monetary awards. ____________________________________________ G. A. Wasik Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs