Citation Nr: 1803638 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 15-18 029 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating in excess of 30 percent for irritable bowel syndrome (IBS), to include extraschedular consideration. 2. Entitlement to an increased rating in excess of 30 percent for chronic bronchitis. 3. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for headaches, and if so, whether service connection is warranted. 4. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for vision problems (blindness), and if so, whether service connection is warranted. 5. Entitlement to an earlier effective date than April 13, 2012, for a total disability rating based on individual unemployability (TDIU). 6. Entitlement to an earlier effective date than April 13, 2012, for eligibility to Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: Harry J. Binder, Attorney ATTORNEY FOR THE BOARD Zi-Heng Zhu INTRODUCTION The Veteran served on active duty from October 1990 to November 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions from September 2013 and April 2015 of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. 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) (2012). The issues of entitlement to an increased rating for IBS and chronic bronchitis, service connection for a vision disability, and earlier effective dates for TDIU and DEA are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed final July 2009 rating decision denied service connection for a vision disability, and declined to reopen the Veteran's claim for service connection for headaches. 2. Evidence received since the July 2009 rating decision is considered new and material to the claims for service connection for headache and a vision disability. 3. The evidence of record demonstrates that the Veteran's headaches are associated with the Veteran's service-connected psychiatric disorder (PTSD). CONCLUSIONS OF LAW 1. New and material evidence has been received since the July 2009 rating decision to reopen a claim for service connection for headaches. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 2. New and material evidence has been received since the July 2009 rating decision to reopen a claim for service connection for a vision disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. Resolving all benefit of the doubt in favor of the Veteran, the criteria for entitlement to service connection for headaches has been met. 38 U.S.C. §§ 1101, 1110, 1112(a), 1131, 1154(b); 38 C.F.R. §§3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. §§ 7104, 7105 (2012). However, 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 (2012). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2017). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In determining whether that threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Headaches A July 2009 rating decision denied reopening the Veteran's claim for service connection for headaches. Prior to this decision, the Veteran's claim for headaches was previously denied in April 1993 and July 2005. After the July 2009 rating decision denied reopening his claim, the Veteran did not file a timely appeal and that decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). Since the last denial, the new evidence submitted by the Veteran includes letters from family and friends, VA treatment records, and statements from the Veteran. While such evidence is considered new, none of the evidence reveals any previously unestablished facts that could potentially substantiate the Veteran's claim; in other words, none of the submitted evidence spoke to the etiology of his headaches. However, the Board notes that during the appeals period, the Veteran was service-connected with posttraumatic stress disorder (PTSD), a condition previously denied by the VA. The Board find that such grant of a psychiatric condition such as PTSD, constitutes as a new and material development in the Veteran's claim, as there is evidence of record that associates the Veteran's headaches with his previously diagnosed, albeit non-service-connected psychiatric disability. Consequently, as the service connection of PTSD raises the potential for etiologically connecting the Veteran's headaches to a service-connected disability, such evidence is sufficient to reopen the claim and the claim is reopened. 38 C.F.R. § 3.156 (2017). Blindness (Vision Disability) With regards to the Veteran's claim for a vision disability, the Board notes that the Veteran was also last denied service connection for his claim in a July 2009 rating decision. After the July 2009 rating decision, the Veteran did not file a timely appeal and that rating decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). Since the last denial, the new evidence submitted by the Veteran includes letters from family and friends, VA treatment records, and statements from the Veteran. Among these claims, the Board notes that the Veteran has asserted that his blindness relates to his exposure to toxic paint chemicals while in active service. Exposure to such chemicals is confirmed by personnel records, and is therefore established by the record. To this end, the Board notes that the Veteran was never afforded an examination with regards to the nature and etiology of his claimed vision disability. The Veteran's previous substantive denials only noted that no such in-service incident or injury was noted during service, and as such, no etiological nexus could be drawn to service. This new theory of entitlement, stemming from the Veteran's confirmed exposure to harmful chemicals during service, constitutes as both new and material evidence, albeit lay, as it has not been raised previously, and does have a potential to substantiate his claim. In determining this claim the Board is cognizant that the Veteran, as a lay person, is not competent to speak to such complex medical matters such as the etiology of his vision disability. Layno v. Brown, 6 Vet. App. 465 (1994). In this respect, the Veteran has not been shown to possess the appropriate medical education, training, or experience to competently speak to such matters. However, the Board finds that the evidence to reopen a previously final decision need not rise to the level of actually substantiating the claim itself, as such requirement would render such exercise of reopening a claim obsolete. Instead, such evidence only needs to rise to the potential of substantiating a claim, a substantially lower level of evidentiary distinction that the Board finds is achieved here by the lay evidence and assertions by the Veteran of record. Shade v. Shinseki, 24 Vet. App. 110 (2010). As such, the Board finds that such evidence is sufficient to reopen the claim and the claim is reopened. 38 C.F.R. § 3.156 (2017). Service Connection - Generally Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Thus, in order to prevail on the issue of service connection, there must be evidence of: a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. §3.303(a). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. §3.310 (a) (2017). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused by or proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Here, the Board notes that the evidence of record demonstrates that the Veteran's claimed and diagnosed chronic headaches, to include migraines, are associated, or are secondary to, his currently service-connected PTSD. As a preliminary matter, the Board notes that the Veteran has been afforded two separate VA examinations to assess the nature and etiology of his claimed chronic headaches in October 1998 and December 2011. In both examinations, the Veteran was diagnosed with chronic headaches, described as stress headaches in the October 1998 examination and migraines in the December 2011 VA examination report. Therefore, a current diagnosed disability has been established. In the October 1998 examination report, the VA examiner found that the Veteran's headaches, described as stress headaches, were not only chronic but related to the stress of his active service, to include resulting psychiatric conditions from service. To this end, the examiner, after a review of the Veteran's medical history, service treatment records, and in-person examinations, explicitly concluded that the Veteran's headaches were associated with his psychiatric condition, to include depression and anxiety. The Board notes that since that examination, which was conducted only a few years after his active service, the Veteran has been properly diagnosed with PTSD, and subsequently service-connected for such a condition. In this regard, the Board finds that the October 1998 opinion to, in essence, demonstrate that the Veteran's headaches are caused by, or at least associated with, his now service-connected condition. Psychiatric examinations conducted after the Veteran's initial denial of his headaches claim demonstrate that the Veteran's PTSD is manifested by symptoms such as depression and chronic anxiety. As such Board finds that the evidence does warrant service connection on a secondary basis, as there is competent medical evidence etiologically relating to the Veteran's claimed headaches to a service-connected condition. Therefore, service-connected must be granted. The Board has also reviewed subsequent development of the Veteran's claim for his headaches, to include his subsequent December 2011 VA examination. To this end, the Board notes that the December 2011 examination failed to provide any opinion or conclusion with regards to the etiology of the Veteran's headaches, and only spoke to the nature of his condition. Similarly, the Board has also considered the Veteran's own lay statements on his claimed condition, to include his claim that such was related to chemical exposure during service. To this end, the Board notes that the Veteran is not competent to speak to such complex medical issues such as the etiology of his chronic headaches. Layno v. Brown, 6 Vet. App. 465 (1994). Just as the Veteran, as a lay person, is not competent to positively correlate any medical condition and his active service, he is similarly not able to provide competent medical opinions regarding etiology that would un-substantiate a medical opinion; the pendulum swings both ways. As such, the Board finds that the October 1998 positive opinion to be of high probative value, which, when applied to the current claim would substantiate the Veteran's claim for service connection. As there is no evidence to the contrary, the Board finds that service connection is warranted, and the claim must be granted. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence is in favor of the claim for service connection for headaches, as secondary to his PTSD, and the claim must be granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The application to reopen a claim of entitlement to service connection for headaches is granted. The application to reopen a claim of entitlement to service connection for a vision disability is granted. Entitlement to service connection for headaches is granted. REMAND The Veteran is seeking an increase in his disability ratings for his service-connected IBS and bronchitis, presently at 30 percent for both conditions. The Veteran contends that the current record itself does not reflect his current condition. The Board notes that the Veteran was last afforded a VA examination that specifically assessed the nature and severity of his IBS and bronchitis in December 2011, more than six years ago. Since that examination, the Veteran has asserted that his conditions have progressively worsened, and that his current ratings no longer contemplate the severity his conditions. To this end, the Board does also note that post-service VA medical/treatment records until 2011 are of record, with no contemporaneous treatment records since that time. While the Board does recognizes that the mere passage of time is insufficient to require a new VA examination, the Court has held that where a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately determine the current state of the disability, the VA must provide a new examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007), See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Here, considering that the last VA examinations were more than six years ago, and the Veteran has reported worsening symptoms of these disabilities, the Board finds that new and contemporaneous VA examinations must be afforded to the Veteran for the VA to substantially fulfill its duty to the Veteran. With regards to the Veteran's claim for service connection for a vision disability, the Board finds that the Veteran has never been afforded an examination to determine the nature and etiology of his claimed condition, especially as it relates to his chemical paint exposure during active duty. To this end, the Board notes chemical exposure has been confirmed by the record, and the Veteran does have a current disability of a vision disability, also diagnosed as being legally blind. In statements from the Veteran, he describes in-service exposure to include getting chemicals in his eyes as they were not provided with proper safety equipment and protection. Based on the foregoing, the Board finds that the VA's duty to provide the Veteran with a VA examination to ascertain the nature and etiology of his vision disability, as it relates to his active service, to include chemical exposure, has been triggered. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Consequently, the Board must remand the claim for further development to include a VA examination. Updated VA treatment records should also be associated with the claims file. 38 U.S.C. § 5103A (c) (2012). Finally, the Board notes that the Veteran's claims for an earlier effective date for a TDIU and eligibility to Dependents' Educational Assistance, are inextricably intertwined with the claims of increased rating for IBS and bronchitis, and the rating of his newly service-connected headaches, granted herein. The determinations for the ratings for these disabilities could potentially affect the issue of whether the Veteran was unemployable due to his service-connected disabilities, and/or when he meets the schedular criteria for a TDIU. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Therefore, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claims on appeal pending the adjudication of the inextricably intertwined claims. Harris v. Derwinski, 1 Vet. App. 180. 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 and associate with the claims file the Veteran's updated VA treatment records from 2011 to the present. If the Veteran has received private treatment, he should be afforded an appropriate opportunity to submit those records. All efforts to obtain this evidence should be documented in the claims file. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his vision disability. All necessary studies should be performed, and the claims folder shall be made available for the examiner for review prior to the examination. The Veteran's lay history of symptomatology should also be recorded and considered. After review of the claims file and examination of the Veteran, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed vision disability is etiologically related to his military service, to include consideration of the Veteran's exposure to harmful chemicals during active service. The examiner should address and/or reconcile any opinion or conclusion with other medical opinions of record, to specifically include addressing an August 2012 private opinion submitted by the Veteran. A complete rationale for all opinions is requested. 3. Schedule the Veteran for a VA examination at such time and place, and in such manner, as is the best reasonably possible to determine the severity of his service-connected IBS. All necessary tests and studies should be performed. The entire claims file must be made available to and reviewed by the examiner in conjunction with the examination, and a complete rationale must be provided for any opinion rendered. 4. Schedule the Veteran for a VA examination at such time and place, and in such manner, as is the best reasonably possible to determine the severity of his service-connected chronic bronchitis. The entire claims file must be made available to and reviewed by the examiner in conjunction with the examination, and a complete rationale must be provided for any opinion rendered. All necessary testing must be accomplished, to include pulmonary function tests (PFTs) with pre-bronchodilator and post-bronchodilator FEV-1, FEV-1/FVC, and DLCO (SB) results; if the examiner determines that post-bronchodilator testing should not be done, he or she should clearly state why this is the case. The examiner should also consider the conflicting opinions of record and clearly state which PFT result most accurately reflects the Veteran's level of respiratory disability, including whether it is appropriate to utilize different PFT results for rating purposes throughout the appeal period. 5. After the above development and any other development deemed necessary has been completed, the claims must be re-adjudicated. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case, and allow an appropriate opportunity to respond thereto before returning the matter to the Board, if otherwise in order. 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 (2012). ______________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs