Citation Nr: 1804991 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 13-08 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right lower extremity associated with degenerative joint disease of the lumbosacral spine. 2. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity associated with degenerative joint disease of the lumbosacral spine. 3. Entitlement to a rating in excess of 40 percent for degenerative joint disease of the lumbosacral spine. 4. Whether new and material evidence has been received to reopen a claim for service connection for a lung disorder, to include as due to exposure to Agent Orange. 5. Whether new and material evidence has been received to reopen a claim for service connection for hyperlipidemia. 6. Whether new and material evidence has been received to reopen a claim for service connection for peripheral neuropathy of the upper extremities, to include as due to exposure to Agent Orange. 7. Entitlement to service connection for hypertension, to include as due to exposure to Agent Orange. 8. Entitlement to service connection for a heart disorder including ischemic heart disease, to include as due to exposure to Agent Orange 9. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). 10. Entitlement to a rating in excess of 50 percent for post-traumatic stress disorder (PTSD). 11. Entitlement to the assignment of an effective date earlier than May 3, 2012, for the award of service connection for PTSD. 12. Entitlement to a compensable initial rating for a painful scar associated with basal cell carcinoma of the right ear prior to October 23, 2008, and in excess of 20 percent from that date. 13. Entitlement to a compensable initial rating for a skin disorder manifested by basal cell carcinoma of the right ear prior to June 3, 2008, and in excess of 30 percent from that date. REPRESENTATION Veteran represented by: J. Michael Woods, Attorney-at-Law ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to December 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating action to include that conducted by the above Department of Veterans Affairs (VA) Regional Office (RO). Summarizing the procedural history, while a claim for service connection for basal cell carcinoma was pending before the Board-a claim which was ultimately granted by a December 2013 Board decision-an appeal to the Board had also been perfected with respect to claims for increased compensation for radiculopathy of the right and left lower extremities and degenerative joint disease of the lumbar spine; petitions to reopen claims for service connection for a lung disorder, hyperlipidemia, peripheral neuropathy of the upper extremities, and psychiatric disability; and claims for service connection for a heart disorder and hypertension with the submission of a timely substantive appeal following a March 2013 statement of the case (SOC) addressing these matters. Pursuant to the appeal perfected following the March 2013 SOC, a September 2015 Board decision reopened and remanded the claim for service connection for psychiatric disability. The Board in September 2015 also remanded the other claims addressed in the March 2013 SOC, as well as the additional issue found to be on appeal as a component of the claims for increased ratings on appeal of entitlement to TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). [Although the September 2015 remand characterized the appeal with respect to service connection for a heart disorder to include ischemic heart disease as representing a petition to reopen, in point of fact there is no final rating decision addressing this claim, and the appeal with respect to this matter has been characterized accordingly as listed on the Title Page]. Following development directed by the September 2015 remand, service connection for PTSD was granted by a February 2016 rating decision. A 50 percent rating was assigned for this disability effective from May 3, 2012, and an appeal to the Board with respect to the 50 percent rating assigned for PTSD and the effective date of the grant of service connection for this disability was perfected to the Board following a November 2016 SOC addressing these matters. Finally with respect to the appeal with respect to the compensation assigned for basal cell carcinoma of the right ear, the January 2014 rating decision that implemented the Board's grant of service for connection for such disability assigned a noncompensable rating for this disability under Diagnostic Codes (DCs) 7818-7804 effective from October 24, 2006, and a 20 percent rating effective from October 23, 2008. A July 2014 rating decision assigned a separate 30 percent rating for basal cell carcinoma of the right ear under DCs 7818-7800 effective from July 2, 2014. After a notice of disagreement with respect to the propriety of this rating was submitted on behalf of the Veteran in December 2014, a May 2015 rating decision increased the rating for the disability (characterized therein and subsequent rating decisions as a "painful scar") rated under DCs 7818-7804 to 20 percent effective from July 2, 2014. Thereafter, a February 2016 rating decision assigned an earlier effective date of June 3, 2008, for the 30 percent rating assigned for basal cell carcinoma of the right ear under DCs 7818-7800 and an earlier effective date of October 23, 2008, for the 20 percent rating assigned under DCs 7818-7804. Following a February 2016 SOC addressing the matter of the compensation assigned for the disability attributable to basal cell carcinoma of the right ear issued in conjunction with the February 2016 rating decision, a timely appeal with respect to this matter was filed in March 2016, and the appeal with respect to this matter has been accordingly characterized as set forth in Issues 12 and 13 as listed on the Title Page. See AB v. Brown, 6 Vet. App. 35 (1993). The adjudication of the claims for TDIU and an earlier effective date for the grant of service connection for PTSD is set forth below. The remaining issues on appeal addressed in the REMAND portion of the decision below require additional development or processing and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The service connected disabilities include PTSD, rated as 50 percent disabling; degenerative joint disease of the lumbosacral spine and bilateral radiculopathy of the lower extremities associated therewith; a skin disorder; and residuals of a left thumb fracture; the service connected disabilities combine to be 90 percent disabling. 2. The Veteran reports education through the eighth grade and employment as a truck driver; he has stated that he became too disabled to work in 1989. 3. The Veteran's service connected disabilities have prevented him from securing and following a substantially gainful occupation. 4. A March 2010 rating decision found that new and material evidence had not been received to reopen a clam for service connection for PTSD and the Veteran was notified of this decision, and his appellate rights, by letter at that time; the Veteran did not perfect a timely appeal with respect to the March 2010 finding that new and material evidence had not been received to reopen the claim for service connection for PTSD and no pertinent exception to finality applies. 5. Argument construed by the RO as a request to reopen the claim for service connection for PTSD was received on May 3, 2012. 6. There is no document of record which may be construed as a formal or an informal claim to reopen the March 2010 denial of a request to reopen the claim for service connection for PTSD and the May 3, 2012, claim for that benefit. CONCLUSIONS OF LAW 1. The criteria for TDIU are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.340, 4.16 (2017). 2. The March 2010 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 3. The legal requirements for an effective date prior to May 3, 2012, for the grant of service connection for PTSD have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400(r) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Standard of Review When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. II. TDIU TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service connected disability to bring the combination to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including her employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether Unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is "that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356 (1991) (quoting the VA Adjudication Procedure Manual M21-1, pt. VI, para. 50-55(8) [now para. 7.55b (7)]). It also suggests "a living wage." Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The Court further defined "substantially gainful employment" as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. See Moore, 1 Vet. App. at 358; 38 C.F.R. § 4.16(a) ("marginal employment shall not be considered substantially gainful employment"). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the examiner is not on whether the Veteran is unemployable due to her service-connected disabilities but the functional impairment caused solely by service-connected disabilities. VBA Fast Letter 13-13 (June 17, 2013). Summarizing the pertinent evidence with the above criteria in mind, the service connected disabilities include PTSD, rated as 50 percent disabling; degenerative joint disease of the lumbosacral spine and bilateral radiculopathy of the lower extremities associated therewith; a skin disorder; and residuals of a left thumb fracture. The service connected disabilities combine to be 90 percent disabling. As such, the minimum scheduler criteria for TDIU under 38 C.F.R. § 4.16(a) are met. In a VA Form 21-8940 "Veteran's Application for Increased Compensation Based on Unemployability" submitted in January 2017, the Veteran reported education through the eighth grade and employment as a truck driver. He also stated therein that he became too disabled to work in 1989. The Veteran asserts that employment is precluded by service connected disability, and there is evidentiary support for this assertion. Indeed, in a November 8, 2016 letter, Dr. H.S. noted review of the Veteran's entire claims file, and interview of the Veteran, and determined that "the combination of pain and limitations caused by his service-connected impairments as well as his prescribed treatment prevent him from being able to work full time . . ." Dr. H.S. noted that the Veteran's lumbosacral spine problems in particular impact his ability to work while standing, walking, lifting and carrying and also interfere with sitting. A prior report dated October 11, 2016 from Dr. R.W. specifically assessed the effects of the Veteran's service-connected psychiatric disability, concluding that that the Veteran's PTSD is severe enough to completely disable and preclude the Veteran from sustaining substantial, gainful, employment activity . . . ." Given the Veteran's level of education, his work experience as a truck driver, and the above medical assessments commenting on the functional impact of the Veteran's service-connected physical and mental abilities, the Board finds sufficient evidence to find that the Veteran's service-connected disabilities prevent him from securing and following a substantially gainful occupation. As such, and resolving any remaining doubt in this regard in favor of the Veteran, entitlement to TDIU is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. III. Earlier Effective Date for the Award of Service Connection for PTSD A March 2010 rating decision found that new and material evidence had not been received to reopen a claim for service connection for PTSD. At the time of this decision, the Veteran was notified of such by a letter that also informed him of his appellate rights. No additional pertinent evidence was received within the one-year appeal period following the March 2010 rating decision, and no additional service department records have since been associated with the claims file warranting reconsideration of the claim for service connection for PTSD. Therefore, the March 2010 denial of the request to reopen the claim for service connection for PTSD is final as to the evidence then of record, and the issue may only be reopened based on the receipt of new and material evidence. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). Based on a January 2016 VA psychiatric examination that included new and material evidence in the form of a diagnosis of PTSD related to in-service stressors, the aforementioned February 2016 rating decision granted service connection for PTSD effective from May 3, 2012, the date of receipt of a document construed by the RO as a petition to reopen. The Board has thoroughly reviewed the Veteran's claims file and concludes that notwithstanding his belief that service connection should be granted effective from an earlier date, in light of the evidence of record received between the March 2010 rating decision and receipt of the May 3, 2012, document construed as a petition to reopen, an effective date prior to May 3, 2012, for a grant of service connection for PTSD must be denied. Simply put, an effective date earlier than May 3, 2012, is inconsistent with the rules and regulations concerning effective dates for awards of compensation. In particular, under 38 U.S.C.A. 5110(a); 38 C.F.R.§ 3.400(r), the effective date based on new and material evidence (other than service department records which is not at issue in the instant case) received after the final disallowance of a claim is the date of receipt of the new claim or the date entitlement arose, whichever is later. As such, a finding as to when entitlement to service connection for PTSD arose in this case is unnecessary insofar as, per the applicable regulation, an effective date earlier than May 3, 2012, would not be warranted. Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase, and revised 38 C.F.R. § 3.400(o)(2). These amendments are applicable with respect to claims and appeals filed on or after March 24, 2015, and, therefore, are not applicable in the present case. Id. at 57,686. Under the former regulations, any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a) (2014). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The Board has carefully reviewed the record to determine whether there is any other communication or record between the notice of the March 2010 rating decision and the May 3, 2012, document construed as a petition to reopen which may be interpreted as a claim for benefits under the former regulations. See Servello v. Derwinski, 3 Vet. App. 196 (1992) (the Board must look at any communication that can be interpreted as a claim, formal or informal, for VA benefits). An informal claim was not shown to exist during this time period because no communication was ever filed between those dates indicating an intent to re-apply for service connection for PTSD. In this regard, the documents received during this period do not include statements articulating intent to reopen the claim for service connection for PTSD. An informal claim must identify the benefit sought. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998) (noting that VA "is not required to anticipate a claim for a particular benefit where no intention to raise it was expressed," and citing Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995), for the proposition that VA is not required to do a "prognostication" or "conjure up" issues that were not raised by the appellant, but to review issues reasonably raised by the substantive appeal). The Board adds that these cases make it evident that medical records generally cannot be construed as constituting an informal claim for service connection. They may be an informal claim for an increased disability rating or to reopen a compensation claim originally denied by reason of not being compensable in degree, but that is not the situation here. See 38 C.F.R. § 3.157 (2017). In short, the evidence demonstrates that between notice of the March 2010 rating decision and May 3, 2012, the Veteran did not submit any claim, either formal or informal, to reopen his service-connection claim for PTSD. The Veteran does not contend that he filed an express request to reopen during this period, and the Board has not identified any communication which could be reasonably interpreted as such. In sum, entitlement to an effective date earlier than May 3, 2012, for the grant of service connection for PTSD must be denied. ORDER Entitlement to a TDIU is granted, subject to the laws and regulations governing the payment of VA monetary benefits. Entitlement to the assignment of an effective date earlier than May 3, 2012, for the award of service connection for PTSD is denied. REMAND Subsequent to the November 2016 SOC addressing the matter of the entitlement to an increased rating for PTSD, and the March 2016 supplemental SOC (SSOC), addressing the remaining matters on appeal, pertinent VA clinical records have been associated with the Veteran's claims file-to include VA outpatient treatment reports dated through November 2016 (submitted subsequent to the March 2016 SSOC); March 2017 VA peripheral nerve and spine examinations; and June 2017 VA PTSD and skin examinations. Appellants are entitled to a review of claims denied by VA. 38 U.S.C. § 7104(a) (2012). This review is performed by the Board and must be based on the entire record and upon consideration of all evidence and material of record. Id. Simply put, appellants are entitled to a second look at all evidence and decisions made by VA. There are limited exceptions to this general principle. For example, appellant's can waive review of evidence by the AOJ and allow the Board to issue a decision based in part on evidence that has not been reviewed by the AOJ. See 38 C.F.R. § 20.1304 (2017). This provision, however, applies only to evidence that has been submitted by the appellant or his or her representative. It does not apply to evidence added to the file by VA. In this case, the additional evidence noted above was added to the file by VA since the last Statement of the Case or Supplemental Statement of the Case. Thus, remand is required so that this new evidence can be reviewed in the first instance by the AOJ. With regard to the Veteran's claim for entitlement to service connection for hypertension in particular, the Veteran asserts that he has hypertension that is related to his active service, to include exposure to Agent Orange. In this regard, the Board notes that the Veteran's service personnel records confirm that he served in the Republic of Vietnam during the Vietnam era, and it is therefore presumed that he was exposed to Agent Orange during service. 38 U.S.C. 1116 (2012); 38 C.F.R. §3.307. In addition, his post-service VA treatment records show a current diagnosis of hypertension. Hypertension is specifically excluded as a disease presumed to have resulted from exposure to herbicide agents. See 75 Fed. Reg. 53,202, 53,204 (Aug. 31, 2010). However, a claimant is not precluded from establishing service connection for such with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The National Academy of Sciences' Institute of Medicine's Veterans and Agent Orange: Update 2014 concluded that there was limited or suggestive evidence of an association between herbicide exposure and hypertension. Given this evidence suggesting a possible relationship between exposure to herbicides and hypertension; the Veteran's presumed in-service exposure to herbicides; and the current diagnosis of hypertension, a VA examination that includes an opinion as to whether hypertension is etiologically related to service is necessary to fulfill the duty to assist the Veteran. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine whether the Veteran's hypertension is related to his military service, to include as due to exposure to herbicide agents. The examiner should review the claims file, and all indicated tests and studies should be accomplished. The examiner should provide a response to the following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension had its onset in, or is otherwise related to his military service, to include as due to exposure to herbicides? The examiner is to consider the National Academy of Sciences' Institute of Medicine's Veterans and Agent Orange: Update 2014 and any other pertinent medical data and/or medical literature that may reasonably illuminate the medical analysis in this case. The rationale for the opinion offered should be provided, with consideration of the lay assertions presented by and on behalf of the Veteran. 2. After completion of the above and any other warranted development, the AOJ should re-adjudicate the claims that have been remanded. If a benefit sought in connection with any such claim remains denied, the AOJ should furnish the Veteran and his attorney with an SSOC that reflects consideration of the VA clinical evidence received since the March 2016 SSOC. After they are afforded an opportunity to respond, the case should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ V. Chiappetta Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs