Citation Nr: 18140868 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-18 120 DATE: October 9, 2018 ORDER New and material evidence not having been received, the claim to reopen service connection for hypertension is denied. New and material evidence not having been received, the claim to reopen service connection for colon polyps is denied. The claim for entitlement to service connection for high cholesterol is denied. The claim for entitlement to an effective date earlier than March 21, 2013 for the award of a 70 percent rating for PTSD and dysthymia is denied. REMANDED The claim for entitlement to a rating in excess of 70 percent for PTSD and dysthymia is remanded. The claim for entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The claims for service connection for hypertension and colon polyps were initially denied in a September 2009 final rating decision. 2. The evidence received since the September 2009 rating decision is cumulative and redundant of other evidence of record and does not raise a reasonable possibility of substantiating the claims. 3. Elevated cholesterol is a laboratory finding and not a disability for VA compensation purposes. 4. The Veteran’s claim for an increased rating for the service-connected PTSD and dysthymia was received by VA on March 21, 2013. 5. It is factually ascertainable that the service-connected PTSD and dysthymia increased in severity to the criteria contemplated by a 70 percent evaluation under Diagnostic Code 9411 on February 26, 2010, more than a year before receipt of the Veteran’s claim on March 21, 2013. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. New and material evidence has not been received to reopen service connection for colon polyps. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for high cholesterol are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 4. The criteria for an effective date earlier than March 21, 2013 for the award of a 70 percent rating for PTSD and dysthymia are not met. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. § 3.400 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1970 to October 1975. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”-the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for hypertension. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for colon polyps. The Veteran first filed a claim for entitlement to service connection for hypertension and colon polyps in July 2009. The claim was denied in a September 2009 rating decision as the record did not establish a link between the Veteran’s claimed disabilities and active service, to include based on exposure to herbicide agents in the Republic of Vietnam. Notice of the rating decision was provided in September 2009 and the Veteran did not appeal the denial of his claims. The September 2009 rating decision is therefore final. 38 U.S.C. §§ 5108, 7103; 38 C.F.R. § 3.156 A claim which has been finally denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 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. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court of Appeals for Veterans Claims (Court) indicated that new and material evidence raises a reasonable possibility of substantiating the claim if, when considered with the old evidence, it at least triggers the duty to assist by providing a medical opinion. The Court further held that 38 C.F.R. § 3.156 (a) “must be read as creating a low threshold,” and that “the phrase ‘raises a reasonable possibility of establishing the claim’ must be viewed as enabling rather than precluding reopening.” Shade at 117. The Court further noted that “[t]he Board’s analysis of the issue of reopening must first be confined to the subject of the existence of new and material evidence alone and must not be an outcome-based decision.” Id. at 121. The evidence received since the September 2009 rating decision includes medical records from the VA Medical Center (VAMC) and statements from the Veteran. This evidence is new as it was not of record at the time of September 2009 rating decision, but it is not material as it does not relate to an unestablished fact necessary to substantiate the claims, does not raise a reasonable possibility of establishing the claims, and in the case of the new lay statements, is cumulative and redundant of the evidence previously before the Board. The new medical records document the Veteran’s use of medication for hypertension and treatment for colon polyps (including a colonoscopy performed in June 2011 with the removal and biopsy of a colon polyp), but do not contain any evidence of a link between these disabilities and active service. The Veteran’s lay statements are also duplicative of evidence already of record in September 2009; in April 2013, the Veteran reported that his high blood pressure began during the 1970s but he had no evidence to corroborate this contention. This statement is redundant of an August 2009 correspondence from the Veteran which was considered in the September 2009 rating decision. The Board has carefully and specifically considered the Court’s decision in Shade, but none of the evidence added to the record raises a reasonable possibility of substantiating the claims or would at least trigger the VA’s duty to assist by providing a medical opinion. The competent evidence does not indicate that the Veteran’s hypertension or colon polyps are etiologically related to active service, and as noted above, the Veteran’s statements are redundant of evidence previously of record. Thus, the Board finds that new and material evidence has not been submitted to allow for reopening of the claims. 3. Entitlement to service connection for high cholesterol. The Veteran contends that service connection is warranted for high cholesterol. He has not identified any impairment associated with this condition. An elevated cholesterol level represents a laboratory finding and is not considered a disability for VA purposes. In language provided in the Federal Register, VA noted that, while Veterans were ‘receiving diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol.... [t]he diagnoses listed are actually laboratory test results, and are not, in and of themselves, disabilities. They are, therefore, not appropriate entities for the rating schedule to address.’ See Schedule for Rating Disabilities; Endocrine System Disabilities, 61 Fed. Reg. 20,440, 20,445 (May 7, 1996). It is also pertinent to note that the term ‘disability,’ as used for VA purposes, refers to a condition resulting in an impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The record establishes a finding of high cholesterol. The Veteran reported having high cholesterol requiring medication in July 2007 at his initial visit to the VAMC. He was also noted to have elevated cholesterol levels during his first evaluation with a VA primary care physician in September 2007. He has received medication to control his cholesterol throughout the claims period. However, there is no indication that the Veteran’s high cholesterol levels have resulted in any actual impairment. Moreover, the record does not reflect that a disability manifested by elevated cholesterol is causally or etiologically related to any disease, injury, or incident in service. Consequently, the Board concludes the Veteran’s claim of service connection for high cholesterol must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (when the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). Accordingly, because the Veteran’s elevated cholesterol readings do not constitute a current disability for which service connection may be granted, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for high cholesterol. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. Earlier Effective Date Claim 4. Entitlement to an effective date earlier than March 21, 2013 for the award of a 70 percent rating for PTSD and dysthymia. This appeal originates from a December 2013 rating decision awarding an increased 70 percent evaluation for service-connected PTSD and dysthymia. The 70 percent evaluation is effective from March 21, 2013, the date the Veteran’s claim for an increased rating was received. The Veteran contends that an earlier effective date is warranted as his disability worsened to the severity contemplated by a 70 percent rating before March 2013. In the case of a claim for an increased rating, if an increase in disability occurred within one year prior to the date of claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998). In making this determination the Board must consider all the evidence, including that received prior to previous final decisions. Hazan v. Gober, 10 Vet. App. 511 (1997). The Board finds that the Veteran’s PTSD and dysthymia increased in severity and manifested the symptoms associated with a 70 percent evaluation under Diagnostic Code 9411 more than one year prior to the date the claim was received by VA. An effective date earlier than March 21, 2013 is therefore not possible for the award of an increased 70 percent rating. Service connection for PTSD and dysthymia was granted in a November 2009 rating decision with an initial 30 percent evaluation assigned effective February 25, 2009. The Veteran’s claim for an increased rating for PTSD was received by VA on March 21, 2013. There is no earlier communication from the Veteran indicating an intent to seek an increased rating for his PTSD; in fact, there is very little correspondence from the Veteran after the November 2009 rating decision. He wrote to VA in October 2010 regarding his nonservice-connected pension, but there is no communication from the Veteran prior to March 2013 that demonstrates an intent to file for increased service-connected benefits. Therefore, for the purposes of determining the correct effective date for the grant of a 70 percent evaluation for PTSD and dysthymia, the date of claim is March 21, 2013. An effective date earlier than March 21, 2013 is only possible in this case if the evidence establishes an increase in disability within one year prior to the date of claim, i.e. during the period between March 21, 2012 and March 21, 2013. Here, the evidence establishes that the Veteran’s disability increased in severity in February 2010, more than one year prior to the date his claim was received. Treatment records from the VAMC show that the Veteran was seen by his primary care physician on February 26, 2010 with complaints of a poor mood, occasional auditory and visual hallucinations and a diagnosis of depression with multiple psychotic features. The Veteran had previously complained of some hallucinations in October 2009, but VA examinations dated in July 2009 and November 2009 indicated psychiatric impairment contemplated by 30 and 50 percent evaluations, respectively. On February 26, 2010, the Veteran’s treating physician recognized multiple psychotic features of his illness and the Veteran reported an increased amount of auditory and visual hallucinations. His symptoms were mostly controlled with medication, but the Board finds that his disability increased to the severity contemplated by a 70 percent rating in February 2010. The Board therefore finds that it is “factually ascertainable” that the Veteran’s PTSD and dysthymia increased in severity in February 2010. This increase occurred more than one year prior to receipt of his claim in March 21, 2013 and this date is the appropriate effective date for the award of a 70 percent evaluation under Diagnostic Code 9411. See 38 C.F.R. § 3.400(o) (if the increase in disability occurred more than one year prior to the claim, the increase is effective the date of claim.). The Veteran is currently in receipt of the earliest possible effective date and there is no legal basis for the assignment of an effective date earlier than March 21, 2013. Therefore, the claim for an earlier effective date is denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 70 percent for PTSD and dysthymia is remanded. 2. Entitlement to a TDIU is remanded. The Board finds that additional development is necessary before a decision may be rendered on the claim for an increased rating for PTSD and the inferred claim of entitlement to a TDIU. Specifically, a VA examination should be provided to determine the current severity of the Veteran’s service-connected PTSD and dysthymia and the agency of original jurisdiction (AOJ) should adjudicate the claim for entitlement to a TDIU. The Veteran’s representative submitted additional evidence and argument in support of the increased rating and TDIU claims in August 2016. This evidence, including a May 2016 private examination and vocational opinion, indicates that the Veteran endorses some of the criteria contemplated by a total schedular rating for PTSD and is unable to maintain substantially gainful employment due to mental health symptoms. As the record contains evidence indicating that the Veteran’s PTSD and dysthymia has worsened since the last VA examination was conducted in May 2013, a new VA examination is required to provide additional information regarding the severity of the service-connected psychiatric disorders. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2016 to the present. 2. Request that the Veteran submit a properly completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD and dysthymia. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms, to include whether the Veteran endorses any of the criteria associated with a total schedular rating. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to the disability, to include the effect of the Veteran’s mental health symptoms on his ability to maintain full-time employment. 4. Then, adjudicate the claim for entitlement to TDIU. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Riley, Counsel