Citation Nr: 18141671 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 15-27 151A DATE: October 11, 2018 ORDER The application to reopen the claim of entitlement to service connection for hypertension is denied. The application to reopen the claim of entitlement to service connection for headaches is denied. Entitlement to service connection for a skin disorder of the face is denied. Entitlement to service connection for a skin disorder of the back is denied. Entitlement to an initial evaluation in excess of 10 percent for coronary artery disease, prior to November 4, 2014, is denied. Entitlement to an evaluation of 30 percent for coronary artery disease from November 4, 2014 is granted. Entitlement to an initial evaluation in excess of 30 percent for other specified trauma and stressor-related disorder is denied. FINDINGS OF FACT 1. An August 1985 rating decision denied the Veteran’s claim for service connection for hypertension. The Veteran did not file a notice of disagreement or submit new and material evidence within one year of the denial. 2. Evidence received since the August 1985 rating decision is cumulative and redundant with respect to service connection for hypertension. 3. An August 1985 rating decision denied the Veteran’s claim for service connection for headaches. The Veteran did not file a notice of disagreement or submit new and material evidence within one year of the denial. 4. Evidence received since the August 1985 rating decision is cumulative and redundant with respect to service connection for headaches. 5. A skin disorder of the face was not manifest in service and is not attributable to service. 6. A skin disorder of the back was not manifest in service and is not attributable to service. 7. Prior to November 4, 2014, the Veteran’s coronary artery disease required continuous medication. 8. From November 4, 2014, the Veteran’s coronary artery disease manifested in dyspnea, fatigue, angina and dizziness with a workload of greater than 5 METs but not greater than 7 METs. 9. Other specified trauma and stressor-related disorder is manifested by symptoms such as depressed mood, anxiety and chronic sleep impairment, all resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSIONS OF LAW 1. The August 1985 rating decision that denied service connection for hypertension is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103 (2017). 2. New and material evidence has not been received sufficient to reopen the Veteran’s claim for service connection for hypertension. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The August 1985 rating decision that denied service connection for headaches is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103 (2017). 4. New and material evidence has not been received sufficient to reopen the Veteran’s claim for service connection for headaches. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. A skin disorder of the face was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 6. A skin disorder of the back was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 7. The criteria for an evaluation in excess of 10 percent for coronary artery disease, prior to November 4, 2014, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.104, Diagnostic Code 7005 (2017). 8. From November 4, 2014, the criteria for an evaluation of 30 percent, but not higher, for coronary artery disease have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.104, Diagnostic Code 7005 (2017). 9. The criteria for an initial evaluation in excess of 30 percent for other specified trauma and stressor-related disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to July 1967. The Agent of the appellant does not represent him before the Board. 1. Application to reopen the claim of entitlement to service connection for hypertension 2. Application to reopen the claim of entitlement to service connection for headaches Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). An 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, VA shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration; such 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). The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. In an August 1985 rating decision, the RO denied service connection for hypertension and headaches. The Veteran was notified of this denial but did not appeal nor submit evidence within the one year appeal period. The decision was, therefore, final. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. At the time of the August 1985 rating decision, the RO considered the claim and service medical records, among other evidence. The RO denied the claim on the basis that evidence did not show an in-service incurrence or a nexus between the Veteran’s hypertension or headaches and his active service. Since the August 1985 rating decision, the Veteran submitted a November 2015 application to reopen the service connection claims for hypertension and headaches. The Veteran has not submitted any new evidence with respect to an in-service incurrence or a nexus between service and his hypertension, headaches, or any other relevant disorder. The Veteran has provided nothing beyond bare assertions. The evidence submitted by the Veteran is not new and material. New and material evidence may be neither cumulative nor redundant of the evidence of record at the time of the last final decision. 38 C.F.R. § 3.156 (a). The evidence does not cure a prior evidentiary defect, e.g., evidence of an in-service incurrence or a nexus between the current disability and active service, which was not previously substantiated in the August 1985 rating decision. Rather, the Veteran has provided bare assertions that his hypertension and headaches are related to service. This is cumulative of the prior claim. As a result, the application to reopen the Veteran’s service connection claims for hypertension and headaches must be denied. The August 1985 rating decision considered the Veteran’s claim for headaches only on a direct basis. The Board notes a May 2018 statement from the Veteran indicating that he believes his headaches are secondary to his service-connected neck disorder. However, he has not submitted any evidence supporting this assertion. The mere offering of an alternative theory of entitlement does not constitute new and material evidence sufficient to reopen a claim. Roebuck v. Nicholson, 20 Vet. App. 307 (2006); Bingham v. Principi, 18 Vet. App. 470 (2004), aff’d 421 F.3d 1346 (Fed. Cir. 2005). 3. Entitlement to service connection for a skin disorder of the face 4. Entitlement to service connection for a skin disorder of the back Veterans are entitled to compensation if they develop disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Veteran’s claimed skin disorders are not identified as “chronic” diseases under 38 U.S.C. §1101 and 38 C.F.R. § 3.309 (a). As a result, the provisions of 38 C.F.R. 3.303 (b) are not applicable. While the Veteran has verified service within the Republic of Vietnam, there is no evidence of a skin disease listed under 38 C.F.R. § 3.309(e), specifically chloracne or other acneform disease. The Veteran has provided nothing beyond a bare assertion that his skin disorders of the face and back are related to service. The Board notes that VA treatment records frequently indicate that the Veteran does not have a skin disorder, including a rash. The Board does note, however, that the Veteran is competent to report a rash or other skin disorder of the face and back. A review of service treatment records shows no relevant complaints, objective findings, treatment, diagnosis, or any other manifestations of a skin disorder of the face or back. At the Veteran’s July 1967 separation examination, physical examination revealed normal skin. In an accompanying Report of Medical History, the Veteran specifically denied any skin disease or relevant disorder. To the extent that the Veteran has a skin disorder, the contemporaneous records establish that all of the disorders were first manifest many years after separation. The Board finds the contemporaneous records to be far more probative and credible than any assertion of continuity and treatment. The Board again notes that the Veteran has provided only a bare assertion that these disorders are related to service. The more probative evidence establishes that he did not have the relevant disorders during service. Furthermore, the evidence establishes that the remote onset of these disorders is unrelated to service. The Board finds that the preponderance of the evidence is against the claims and the claims must be denied. The Board recognizes that the Veteran was not afforded VA examinations with respect to these issues. However, no examinations are necessary for the adjudication of these claims. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran’s claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). Here, there is no evidence of record with respect to the existence of an in-service event, injury, or disease or any evidence of an association between the Veteran’s claimed skin disorder and his service. There is clearly sufficient competent medical evidence of record to adjudicate the Veteran’s claims. Even if there were competent evidence of an in-service incurrence, a mere conclusory generalized lay statement that a service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In other words, absent such evidence, the Board finds that it is unnecessary to require the Veteran to report for a VA medical examination or to ask a medical expert to review the record because any examination report or medical opinion could not provide competent evidence of the incurrence of the claimed disability in service. 5. Evaluation in excess of 10 percent for coronary artery disease Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of a veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). As explained below, the Board has determined that a staged rating is appropriate for the Veteran’s coronary artery disease and a uniform evaluation is appropriate for specified trauma and stressor-related disorder. The Veteran’s coronary artery disease (CAD) has an initial 10 percent evaluation under Diagnostic Code 7005, effective May 14, 2012. The Veteran has challenged the evaluation. Diagnostic Code 7005 provides for a 10 percent evaluation for a workload greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. A 30 percent evaluation is warranted for a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent evaluation is warranted for more than one episode of acute congestive heart failure in the past year, or workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for chronic congestive heart failure, or when a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005. A note prior to the Diagnostic Code explains that one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note (2). At a July 2014 VA examination, the Veteran’s CAD was reported to require continuous medication. There was not left ventricular dysfunction with an ejection fraction of 50 percent or less. The Veteran did not experience symptoms with any level of physical activity. There was not cardiac hypertrophy, dilatation or congestive heart failure. A review of VA and private treatment records during this period indicates manifestations consistent with the examination. For the period prior to November 4, 2014, the evidence of record reveals the Veteran required continuous medication for CAD, but there is not evidence of cardiac hypertrophy, dilatation or congestive heart failure, and no evidence of workload testing that reveals symptoms, or left ventricular dysfunction with an ejection fraction below 50 percent. The evidence weighs against a rating in excess of 10 percent prior to November 4, 2014. 6. Entitlement to an evaluation of 30 percent for coronary artery disease from November 4, 2014 The Veteran submitted a June 2015 Disability Benefits Questionnaire (DBQ) completed by his private cardiologist. The DBQ documents a November 4, 2014 Diagnostic Exercise Test findings dyspnea, fatigue, angina and dizziness at 7 METs. There was not congestive heart failure, hypertrophy or dilatation. There was not left ventricular dysfunction with an ejection fraction of 50 percent or less. A review of VA and private treatment records during this period indicates manifestations consistent with the examination. From November 4, 2014, the evidence of record reveals the Veteran’s CAD manifested in dyspnea, fatigue, angina and dizziness with a workload of greater than 5 METs but not greater than 7 METs. As a result, an evaluation of 30 percent is warranted. There is not evidence of cardiac hypertrophy, dilatation, congestive heart failure or left ventricular dysfunction with an ejection fraction of 50 percent or less. As a result, the evidence weighs against an evaluation in excess of 30 percent from November 4, 2014. In making the determination that a staged rating is warranted effective November 4, 2014, the Board notes that from a practical standpoint the Veteran’s CAD likely did not increase in severity on the specific day of diagnostic testing (November 4, 2014). However, there is simply no evidence of the criteria for a 30 percent evaluation prior to this date. Rather, a VA examination in July 2014, four months prior, revealed manifestations that were not consistent with a 30 percent evaluation. Here, based upon facts found, there was a change in the disability and the earliest evidence of the change is November 4. 2014. 7. Entitlement to an initial evaluation in excess of 30 percent for other specified trauma and stressor-related disorder The Veteran’s other specified trauma and stressor-related disorder is assigned an initial 30 percent evaluation under Diagnostic Code 9411, effective May 14, 2013. The Veteran has challenged the evaluation. The Veteran’s trauma and stressor disorder is rated by analogy under Diagnostic Code 9411, which pertains specifically to PTSD. With the exception of eating disorders, all mental disorders are rated under the same criteria in the rating schedule. Therefore, rating under another diagnostic code would not produce a different result. Moreover, the Veteran has not requested that another diagnostic code be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 9411. The criteria for a 30 percent rating are as follows: Occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, and recent events). The criteria for a 50 percent rating are as follows: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating are as follows: Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are as follows: Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, “[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous.” Id. The Court went on to state that the list of examples “provides guidance as to the severity of symptoms contemplated for each rating.” Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the DSM-IV and replace them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The RO originally certified the Veteran’s appeal to the Board in November 2015. As a result, the DSM-5 applies. Thus, the Board will not use previously recorded GAF scores to determine the appropriate evaluation for the Veteran’s other specified trauma and stressor-related disorder. Golden v. Shulkin, No. 16-1208, 2018 Vet. App. LEXIS 202 (Feb. 23, 2018) (“the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies.”) At an August 2014 VA psychiatric examination, the examiner concluded that the Veteran’s psychiatric symptoms manifested in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform tasks only during periods of significant stress. Reported symptoms were depressed mood, anxiety and chronic sleep impairment. The examiner reported a subclinical symptom of irritability, indicating that while the Veteran reported that he was more irritable than usual, it did not appear to reach clinical significance. The Veteran was attentive, cooperative and well-groomed with normal thought process. A review of VA and private treatment records do not reveal psychiatric symptoms inconsistent with the August 2014 VA examination. After a review of the medical and lay evidence of record, an evaluation in excess of 30 percent is not warranted for any period on appeal. The evidence suggests that the Veteran’s symptomatology has more nearly approximated occupational and social impairment associated with a 30 percent disability rating for the entire period on appeal. In other words, the Board finds that the preponderance of the evidence is against an evaluation in excess of 30 percent. Neither the lay nor the medical evidence of record more nearly approximates the frequency, severity, or duration of psychiatric symptoms required for a 50 percent disability evaluation, nor does it demonstrate deficiencies in most areas. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. The Board has considered the VA treatment records, including the VA examination report and lay statements regarding the impact of the Veteran’s other specified trauma and stressor-related disorder on his occupational and social impairment. During the entire period, the Veteran reported depressed mood, anxiety and chronic sleep impairment, among other symptoms. There is no evidence that the Veteran’s psychiatric manifestations have resulted in difficulty maintaining effective work and social relationships. The Veteran explained at his examination that he is not a “socialite,” but does not indicate that this is the result of psychiatric disorder. As a result, to the degree that the Veteran experiences social impairment as a result of his psychiatric disorder, it is accounted for by a 30 percent evaluation. At the time of examination, the Veteran was working 5 to 6 hours per day. He has not since indicated that his psychiatric disorder has resulted in occupational impairment. He “did fairly well interacting with coworkers and supervisors.” There is no evidence of flattened affect, abnormal speech, panic attacks, difficulty in understanding commands, impairment of memory, impaired judgment or abstract thinking, or disturbances of mood and motivation. Furthermore, the objective medical conclusion of the VA examiner with respect to the severity of the Veteran’s occupational and social impairment, while not determinative, is not consistent with occupational and social impairment with reduced reliability and productivity. Thus, the Board finds that the Veteran does not have occupational and social impairment, with reduced reliability and productivity. He does have some impairment, but the greater weight of evidence demonstrates that it is to a degree that is contemplated by the 30 percent evaluation assigned herein. Furthermore, even resolving any reasonable doubt in the Veteran’s favor, the Board finds that he does not meet the requirements for an evaluation greater than the now assigned 30 percent schedular rating. To the extent that the Veteran has any of the criteria for a 50 percent rating, see Mauerhan, 16 Vet. App. at 442, the Board concludes that his overall level of disability does not exceed the criteria for a 30 percent evaluation. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W. R. Stephens, Counsel