Citation Nr: 1802346 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-23 884 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a respiratory disorder, to include chronic bronchitis. 2. Whether new and material evidence has been received to reopen a claim of service connection for an acquired psychiatric disability, to include depression, including as due to service-connected hypertension. 3. Entitlement to an initial rating greater than 60 percent for chronic kidney disease. 4. Entitlement to a disability rating greater than 30 percent for coronary artery disease. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from July 1973 to July 1975 and from May 1979 to November 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted, in pertinent part, the Veteran's claim of service connection for chronic kidney disease, assigning a 60 percent rating effective November 24, 2010, denied a claim for a disability rating greater than 30 percent for coronary artery disease, and essentially reopened a previously denied service connection claim for a respiratory disorder, to include chronic bronchitis (which the RO characterized as chronic bronchitis (chest x-ray negative) (now claimed as trouble breathing and fatigue)) and denied this claim on the merits. The Veteran disagreed with this decision in May 2013. He perfected a timely appeal in May 2016. This matter also is on appeal from an August 2012 rating decision in which the RO denied, in pertinent part, the Veteran's claim of entitlement to a TDIU. The Veteran disagreed with this decision in in May 2013. He perfected a timely appeal in May 2016. This matter finally is on appeal from a July 2013 rating decision in which the RO essentially reopened a previously denied claim of service connection for an acquired psychiatric disability, to include depression, including as due to service-connected hypertension (which the RO characterized as depression associated with hypertension now claimed as depression and paranoid schizophrenia), and denied this claim on the merits. The Veteran disagreed with this decision in June 2014. He perfected a timely appeal in May 2016. The Board observes that, in May 1991, it denied, in pertinent part, the Veteran's claim of service connection for a respiratory disorder, to include chronic bronchitis (which was characterized as chronic bronchitis). This decision was not appealed and it became final. See 38 U.S.C. § 7104 (West 2012). The Board next observes that, in a May 2010 rating decision, the RO denied, in pertinent part, the Veteran's claim of service connection for an acquired psychiatric disability, to include depression, including as due to service-connected hypertension (which the RO characterized as depression). This decision also was not appealed and became final. See 38 U.S.C. § 7105 (West 2012). The Veteran further did not submit any relevant evidence or argument within 1 year of the May 2010 rating decision which would render it non-final for VA adjudication purposes. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156 (b)). The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issues of whether new and material evidence has been received to reopen claims of service connection for a respiratory disorder, to include chronic bronchitis, and for an acquired psychiatric disability, to include depression, including as due to service-connected hypertension, are as stated on the title page. The Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. As is explained below in greater detail, the issues of entitlement to an initial rating greater than 60 percent for chronic kidney disease, entitlement to a disability rating greater than 30 percent for coronary artery disease, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. In a decision dated on May 2, 1991, the Board denied, in pertinent part, the Veteran's claim of service connection for a respiratory disorder, to include chronic bronchitis (which was characterized as chronic bronchitis); this decision was not appealed and became final. 2. The evidence received since the May 1991 Board decision is either cumulative or redundant of evidence previously submitted in support of the Veteran's claim of service connection for a respiratory disorder, to include chronic bronchitis, and does not relate to an unestablished fact necessary to substantiate this claim. 3. In a rating decision dated on May 13, 2010, and issued to the Veteran on May 14, 2010, the AOJ denied, in pertinent part, a claim of service connection for an acquired psychiatric disability, to include depression, including as due to service-connected hypertension (which was characterized as depression); this decision was not appealed and became final. 4. The evidence received since the May 2010 rating decision is either cumulative or redundant of evidence previously submitted in support of the Veteran's claim of service connection for an acquired psychiatric disability, to include depression, including as due to service-connected hypertension, and does not relate to an unestablished fact necessary to substantiate this claim. CONCLUSIONS OF LAW 1. The May 1991 Board decision, which denied the Veteran's claim of service connection for chronic bronchitis, is final. 38 U.S.C. §§ 7104, 7266 (West 2012); 38 C.F.R. § 20.1100 (2017). 2. Evidence received since the May 1991 Board decision in support of the claim of service connection for a respiratory disorder, to include chronic bronchitis, is not new and material; thus, this claim is not reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 3. The May 2010 rating decision, which denied the Veteran's claim of service connection for depression, is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. § 20.302 (2017). 4. Evidence received since the May 2010 AOJ decision in support of the claim of service connection for an acquired psychiatric disability, to include depression, including as due to service-connected hypertension, is not new and material; thus, this claim is not reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In May 1991, the Board denied, in pertinent part, the Veteran's claim of service connection for a respiratory disorder, to include chronic bronchitis (which was characterized as chronic bronchitis). In May 2010, the AOJ denied, in pertinent part, the Veteran's claim of service connection for an acquired psychiatric disability, to include depression, including as due to service-connected hypertension (which was characterized as depression). 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.160(d), 20.302, 20.1103. The Veteran did not initiate an appeal of either the May 1991 Board decision or the May 2010 rating decision and they became final. He also did not submit any statements relevant to the service connection claim for an acquired psychiatric disability, to include depression, including as due to service-connected hypertension, within 1 year of the May 2010 rating decision which would render it non-final for VA purposes under 38 C.F.R. § 3.156(b). See Buie, 24 Vet. App. at 251-52. The claims of service connection for a respiratory disorder, to include chronic bronchitis, and for an acquired psychiatric disability, to include depression, including as due to service-connected hypertension, may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran filed an application to reopen his previously denied service connection claim for a respiratory disorder, to include chronic bronchitis, in statements on a VA Form 21-4138 which was dated on November 10, 2010, and date-stamped as received by the AOJ on November 24, 2010. He also filed an application to reopen his previously denied service connection claim for an acquired psychiatric disability, to include depression, including as due to service-connected hypertension, in a letter dated on October 19, 2012, and received by the AOJ that same day. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the Veteran's application to reopen a claim of service connection for a respiratory disorder, to include chronic bronchitis, the evidence before VA at the time of the prior final Board decision in May 1991 consisted of the Veteran's service treatment records, post-service VA and private treatment records, and lay statements. The Board essentially found that, although the Veteran had been diagnosed as having chronic bronchitis following a January 1990 VA examination, none of this evidence related the Veteran's current chronic bronchitis to active service or any incident of service. Thus, the claim was denied. With respect to the Veteran's application to reopen a claim of service connection for an acquired psychiatric disability, to include depression, including as due to service-connected hypertension, the evidence before VA at the time of the prior final AOJ decision in May 2010 consisted of his service treatment records, post-service VA and private treatment records, and lay statements. The AOJ essentially found that, although the Veteran had been diagnosed as having an acquired psychiatric disability, none of this evidence demonstrated an etiological link between a current acquired psychiatric disability, to include depression, and active service or any incident of service, including as due to service-connected hypertension. Thus, the claim was denied. The newly received evidence includes additional VA and private outpatient treatment records and additional lay statements. Despite the Veteran's assertions to the contrary, none of the newly received evidence shows that he experiences any current disability due to his claimed respiratory disorder, to include chronic bronchitis, which is related to active service or any incident of service. Similarly, despite the Veteran's assertions to the contrary, none of the newly received evidence shows that any current acquired psychiatric disability, to include depression, is related to active service or any incident of service, including as due to service-connected hypertension. In other words, the newly received medical evidence and the Veteran's statements are cumulative and redundant of evidence previously considered by VA. The Board observes in this regard that, in Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that the phrase "raises a reasonable possibility of substantiating the claim" found in the post-VCAA version of 38 C.F.R. § 3.156(a) must be viewed as "enabling" reopening of a previously denied claim rather than "precluding" it. In this case, however, there is no reasonable possibility that the newly received evidence would enable rather than preclude reopening either of the Veteran's previously denied service connection claims. Unlike in Shade, there is no evidence in this case - either previously considered in the May 1991 Board decision or received since that decision became final - which demonstrates that the Veteran experiences any current disability due to his claimed respiratory disorder, to include chronic bronchitis, which is attributable to active service or any incident of service. There also is no evidence in this case - either previously considered in the May 2010 rating decision or received since that decision became final - which demonstrates that any current acquired psychiatric disability, to include depression, is related to active service or any incident of service, including as due to service-connected hypertension. Thus, the analysis of new and material evidence claims that the Court discussed in Shade is not applicable to the Veteran's request to reopen his previously denied service connection claims for a respiratory disorder, to include chronic bronchitis, and for an acquired psychiatric disability, to include depression, including as due to service-connected hypertension. In summary, as new and material evidence has not been received, the previously denied claims of service connection for a respiratory disorder, to include chronic bronchitis, and for an acquired psychiatric disability, to include depression, including as due to service-connected hypertension, are not reopened. ORDER As new and material evidence has not been received, the previously denied claim of service connection for a respiratory disorder, to include chronic bronchitis, is not reopened. As new and material evidence has not been received, the previously denied claim of service connection for an acquired psychiatric disability, to include depression, including as due to service-connected hypertension, is not reopened. REMAND The Veteran essentially contends that his service-connected chronic kidney disease and service-connected coronary artery disease are more disabling than currently (or initially) evaluated. He also contends that his service-connected disabilities, alone or in combination, preclude his employability, entitling him to a TDIU. Having reviewed the record evidence, the Board finds that additional development is required before the underlying claims can be adjudicated on the merits. The record evidence shows that the Veteran was examined most recently for his service-connected chronic kidney disease in April 2011 and for his service-connected coronary artery disease in June 2012. The record evidence also shows that the Veteran receives ongoing VA outpatient treatment for both of these disabilities. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); but see Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (finding "mere passage of time" does not render old examination inadequate). Given the Veteran's contentions, and given the length of time which has elapsed since his most recent VA examinations, the Board finds that, on remand, he should be scheduled for updated VA examinations to determine the current nature and severity of his service-connected chronic kidney disease and his service-connected coronary artery disease. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. With respect to the Veteran's TDIU claim, the Board notes that adjudication of the other claims being remanded to the AOJ likely will impact adjudication of the TDIU claim. Thus, the Board finds that these claims are inextricably intertwined and adjudication of the TDIU claim must be deferred. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The AOJ also should attempt to obtain the Veteran's updated treatment records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all VA and private treatment records which have not been obtained already. 2. Schedule the Veteran for an updated examination to determine the current nature and severity of his service-connected chronic kidney disease. The examiner is asked to discuss the functional impact of this service-connected disability on his employability. 3. Schedule the Veteran for an updated examination to determine the current nature and severity of his service-connected coronary artery disease. The examiner is asked to discuss the functional impact of this service-connected disability on his employability. 4. Readjudicate the appeal. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). ______________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs