Citation Nr: 1804715 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 11-12 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for hypertension. 2. Entitlement to total disability based upon individual unemployability (TDIU), prior to April 19, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Alexander Neff, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from November 1966 to November 1968. His awards and decorations included a: a National Defense Service Medal; a Vietnam Campaign Medal; and a Vietnam Service Medal. The Board sincerely thanks him for his service to his country. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the St Paul, Minnesota, Regional Office (RO) which denied the Veteran's petition to reopen his claim for entitlement to service connection for hypertension, and entitlement to TDIU. TDIU was subsequently granted in a May 2016 rating decision, effective April 19, 2010. The RO considered this a partial grant of the benefit, and issued a supplemental statement of the case which addressed entitlement to TDIU prior to April 19, 2010. In the May 2011 VA Form 9, the Veteran requested to attend a Travel Board hearing. In August 2014, the Veteran's representative advised VA that the Veteran wished to withdraw his request for a hearing. As such, the Veteran's request has been withdrawn. FINDINGS OF FACT 1. An October 2007 rating decision denied service connection for hypertension; the Veteran did not appeal that decision within one year and it became final. 2. Evidence received since the October 2007 denial does not relate to a previously unestablished fact needed to substantiate the underlying claim of service connection for hypertension. 3. Prior to April 19, 2010, the Veteran's sole service-connected disability, posttraumatic stress disorder (PTSD), was not of such severity as to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. New and material evidence has not been received, and the claim for hypertension may not be reopened. 38 U.S.C.A. §§ 5108, 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. Prior to April 19, 2010, the criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Petition to Reopen the Claim for Hypertension A. Legal Criteria: New and Material Evidence In general, RO decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200. An exception to this rule is 38 U.S.C.A. § 5108, which 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. The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material is neither required nor permitted. Id. at 138; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996). "New" evidence is existing evidence not previously submitted to agency decision makers. "Material" evidence is 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 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). In determining whether evidence is new and material, the 'credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the appellant in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (eliminating the concept of a well-grounded claim). B. Factual Background and Analysis The Veteran filed his initial claim for hypertension in September 2006. He was notified by letter dated November 1, 2007, that this claim was denied. He did not appeal this claim within one year, nor was new and material evidence received within that year, and as such the decision became final. The Board notes that the record at the time of the RO's initial denial contained the Veteran's STRs, his military personnel file, and post-service medical records showing a diagnosis of hypertension. The RO found that there was no nexus between this condition and service, that it was not diagnosed within one year of separation, and that it was not a presumptive condition of herbicide agent exposure. Since the October 2007 denial, evidence received includes medical records showing treatment of the Veteran's hypertension, and the September 2012 and March 2013 VA examinations which concluded that the Veteran's hypertension was not related to his service-connected diabetes. Although new evidence has clearly been submitted since the October 2007 denial, none of it, either individually or when considered with previous evidence of record, provides medical evidence indicating that that the Veteran's current hypertension is related to his service or a service-connected disability or was manifested to a compensable degree within a year of service. The Board acknowledges the Veteran's November 2008 claim that his hypertension was the result of herbicide agent exposure. The Board further acknowledges that the Veteran's representative argued in June 2015 and October 2016 that the Veteran should be entitled to service connection for hypertension due to herbicide agent exposure while serving in Vietnam. The Board finds that this theory of entitlement is not new. Notably, in the October 2007 rating decision, the RO considered the Veteran's Vietnam service and his presumed exposure to herbicide agents when rendering the initial denial. As such, these statements cannot be the basis to reopen the Veteran's claim for entitlement to service connection for hypertension. Upon consideration of the above, the Board finds that none of the new evidence is material as it does not relate to an unestablished fact necessary to substantiate the claim, namely, an indication of a relationship between the Veteran's hypertension and service. Consequently, the Board concludes that the additional evidence does not constitute new and material evidence sufficient to reopen the claim of entitlement to service connection for hypertension. As such, the appeal must be denied. II. TDIU A. Legal Criteria Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). A veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A veteran's employment history, his or her educational and vocational attainment, as well as his or her particular disabilities are to be considered in making a determination on unemployability. In order for a veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in light of his service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board has reviewed all of the evidence in the Veteran's VA record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board will summarize the evidence as deemed appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). B. Factual Background and Analysis In July 31, 2009, VA received the Veteran's claim for TDIU due to PTSD, bilateral knee disabilities, diabetes, and neuropathy. In a May 2016 rating decision TDIU was granted, effective April 19, 2010, the earliest date a definitive diagnosis of diabetes was shown in the record. An earlier claim for TDIU was filed in August 28, 2008, and denied in February 2009; however new and material evidence, including records of inpatient treatment in excess of a month for PTSD in 2009 was submitted within a year of the February 2009 decision. Thus, the issue before the Board is whether the evidence shows that the Veteran was entitled to a TDIU between August 28, 2007, (within the year prior to the time he filed his claim for TDIU) and April 19, 2010. During this period on appeal, the Veteran's sole service-connected disability was PTSD, rated as 30 percent disabling prior to October 31, 2008, and 70 percent disabling thereafter. The Veteran's representative argued in October 2016 that the Veteran was consistently assessed with a Global Assessment of Functioning (GAF) score of 45, indicating serious symptoms. This was demonstrated by the Veteran having no friends, and being unable to keep a job. In May 2017, the Veteran's representative argued that the effective date of the Veteran's TDIU should be July 31, 2009, the date when the Veteran's claim was received by VA. Historically, in a September 2006 Social Security Administration (SSA) application for disability benefits, the Veteran reported that he completed training/school for welding in 1980, for automobile paint and body repair in 1983, and nursing in 1986. In a December 2008 employment information sheet, a human resources manager from the Veteran's former employer reported that the Veteran worked from July 1990 to September 2006 as a restorative aide. The reason why the Veteran no longer worked in this position was noted generally as "health reasons." In a background questionnaire self-assessment, received in October 2008, the Veteran reported that he had employment problems, which he explained as "people trying to tell you something they don't know how to do." He indicated that he was "very" violent, had poor communication skills, did not "understand a lot of things," and that he could not get along with anyone. He did not have any friends, and he did not like people. He indicated that he had problems with authority, and was irritable/angry all the time as people would say "stupid things" to him. In the context of nightmares, the Veteran reported that he had the fear of killing someone, or being killed. In the October 2008 PTSD examination, the Veteran reported that he would socialize with friends, and that he would occasionally attend parties and go dancing. He reported a history of physical assaultiveness when provoked, but these were qualified as rare during this time at the examination. He was observed to have moderate to severe PTSD symptoms, and mild memory issues. The Veteran noted that his activities of daily living and psychosocial functioning were limited by his PTSD, which the examiner concurred with. He was given a GAF score of 52. In the January 2009 VA PTSD/TDIU examination, when the Veteran was asked why he stopped working in 2006, he reported that it was due to worsening back problems and the development of a prostate condition. It was observed that, despite having significant PTSD symptoms, the Veteran was not working at this time due to his physical disabilities. Notably, it was reported that the Veteran did not indicate that his PTSD substantially interfered with his occupational functioning. The examiner also noted that the Veteran had moderate social impairment due to his PTSD; however, this was mostly in the context of romantic relationships. It was opined that most of the Veteran's psychological distress had to do with his deteriorating physical health. He was given a GAF score of 51. From February to April 2009, the Veteran attended VA inpatient care for PTSD. During his stay it was noted that he attended group meetings without fail, was cooperative, did not have behavioral problems, and that he "overall [had] done well in the program." In his July 2009 TDIU application, as in his August 2008 application, the Veteran indicated that he had attended four years of high school, and that he had not undertaken any other education or training prior to or since becoming too disabled to work. In a July 2009 VA medical record, the Veteran reported sleep difficulties and interruptions, nightmares, hypervigilance, intrusive memories, flashbacks that occurred mostly at night. He was avoidant of the public and crowds. He often heard his name called out. He had a low mood, was irritable, and experienced impaired memory and concentration. He would have intermittent homicidal thoughts when he was angry, but they were without intent. He reported having panic attacks three to five times a week. He attended weekly Alcoholics Anonymous meetings where he would "talk to a lot of people there," and would sometimes see the attendees outside of the meetings. In an August 2009 VA medical record, the Veteran complained of communication problems, stress, poor memory, irritability, and a bad/short temper. He did not trust others, and experienced depression, nightmares, and sleep difficulties. He persistently re-experienced trauma, which included flashbacks triggered by loud popping noises. He had physical symptoms of anxiety, was hypervigilant, and was easily startled. He reported that he had not worked for three years. He was given a GAF score of 45. In a May 2010 VA medical record, the Veteran complained of worsening hypervigilance and avoidance over the last few weeks. He slept four to five hours a night with multiple disturbances, and he would nap approximately three hours a day. He reported that his energy was low, but sometimes it was "pretty good." He noted that he enjoyed fishing and speaking with other veterans. No suicidal and/or homicidal ideation, or hallucinations, was observed. In the January 2011 VA PTSD/TDIU examination, when the examiner asked the Veteran why he stopped working in 2006, the Veteran reported that it was due to his back. It was noted that the Veteran did not contend that his mental health issues were the cause of his current unemployment. Regarding the issue of entitlement to TDIU, the examiner opined that the Veteran could not be considered unemployable from a mental health standpoint alone. Notably, the Veteran reported that his back problems were the reason he stopped working in 2006, not his mental health issues. The Veteran additionally described himself as conscientious about his job, having good attendance, and having a history of getting along well with patients when he was working. The examiner opened that since the Veteran's PTSD symptoms were in existence for many years, and he was able to be successfully and consistently employed, his PTSD symptoms were "clearly" insufficient in severity to prevent him from gainful employment. Upon consideration of the foregoing, the Board does not find that TDIU is warranted prior to April 19, 2010. The Board notes that the record demonstrates that the Veteran made inconsistent statements regarding his post-service education to VA. Specifically, the Veteran reported to SSA that he attended three secondary education programs; however, he advised VA that he had not undergone any additional training. The law is clear that the Veteran must cooperate in the development of the evidentiary record to its fullest extent, and that his failure to cooperate may precipitate action adverse to the interests of his claims. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 4 (1992); Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). Notably, the duty to assist under VA law is "a two way street." See Wood, 1 Vet. App. at 193 (1991). Thus, the Board finds that the Veteran's failure to provide VA with necessary information and evidence to support his claim has greatly hindered the Board's ability to fully adjudicate his claim as there is a lack of evidence upon which a decision can be rendered. It is clear that VA has done its utmost to develop the evidence with respect to the Veteran's disability. The Board acknowledges that the March 2011 TDIU examination was not conducted within the period on appeal. However, this examination does provide relevant evidence from the Veteran regarding the period under consideration, as well as providing an evaluation of the records related to the Veteran's July 2009 claim. Of major significance, in 2011 the Veteran did not contend that his psychiatric disability was the reason for his current unemployment, or was the reason why he stopped working in 2006. Upon examination of the Veteran, and a review of the record, the March 2011 examiner opinioned that the Veteran's PTSD symptoms were not severe enough to preclude gainful employment. The Board finds this opinion to be highly probative, as it was based upon competent and credible evidence, to include records from the period on appeal. Significantly, the competent and credible evidence does not contract these findings. Accordingly, the Board does not find that a TDIU is warranted during this period on appeal. As such, an earlier effective date for TDIU is also not warranted. The Board acknowledges the Veteran's representative's argument that the Veteran's receipt of a GAF score of 45 is a reason to grant TDIU during the period on appeal. The Board notes that the GAF Scale is used to report a clinician's judgment of the individual's overall level of functioning. The GAF Scale is to be rated with respect only to psychological, social and occupational functioning. See American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders 44 (4th ed. 1994). While not determinative, a GAF score is highly probative as it relates directly to a veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). A GAF score of 41 to 50 is defined as denoting serious symptoms or any serious impairment in social, occupational, or school functioning, but not an inability to secure or follow a substantially gainful occupation. The Board notes that GAF scores are medical evidence that are considered and weighed along with the other evidence of record when determining a veteran's claims. Here, the Board finds that a GAF score of 45 during the period on appeal, does not outweigh the balance of the evidence, notably the March 2011 opinion, which indicates that the Veteran was not unemployable due to his service-connected PTSD during the period in question. Notably, he had a GAF of 55 in 2011. Thus, the Board does not find that a TDIU is warranted during the period in question due to one or more of the Veteran's GAF scores. As such, entitlement to TDIU prior to April 19, 2010, is also not warranted. While it is clear that during the period on appeal the Veteran's PTSD impacted his ability to work, as acknowledged by his rating of 70 percent over most of the period in question, the level of impact was not tantamount to an outright preclusion of what could be considered substantially gainful employment. The rating for the Veteran's PTSD during this period appropriately contemplates his manifested PTSD symptomatology. Thus, his symptoms during the period on appeal did not show that he was in a different position than others with the same condition. Accordingly, the Board finds that during the period on appeal the Veteran's service-connected PTSD did not preclude him from substantially gainful employment consistent with his educational background and occupational experience. As such, entitlement to a TDIU prior to April 19, 2010, is not warranted. ORDER New and material evidence has not been received to reopen the claim for entitlement to service connection for hypertension. The appeal is denied. Entitlement to a TDIU prior to April 19, 2010, is denied. ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs