Citation Nr: 18142823 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-01 939 DATE: October 16, 2018 ORDER The petition to reopen the previously denied claim of service connection for a bilateral hip disorder is denied. An effective date earlier than December 28, 2015 for the award of service connection for atherosclerotic cardiovascular disease is denied. An effective date earlier than December 28, 2015, for the award of service connection for carotid stenosis is denied. An effective date earlier than December 28, 2015, for the award of service connection for scars associated with atherosclerotic coronary disease is denied. An effective date earlier than December 28, 2015, for the award of service connection for a subarachnoid hemorrhage is denied. A total disability rating based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. In an August 2010 rating decision, the RO denied the claim of service connection for a bilateral hip disorder on the basis that it was not manifest in service and it was not related to service (i.e.in-service and nexus requirements were not met). The Veteran did not timely appeal this decision nor did he submit new and material evidence within the one-year period. 2. Evidence received since the August 2010 decision shows only that the Veteran’s bilateral hip disorder worsened and relates only to the already established fact that a current disability is present. 3. The Veteran’s claim of service connection for atherosclerotic cardiovascular disease was received by VA on December 28, 2015. 4. The Veteran’s claim of service connection for carotid stenosis was received by VA on December 28, 2015. 5. The Veteran’s claim of service connection for scars associated with atherosclerotic cardiovascular disease and carotid stenosis was received by VA on December 28, 2015. 6. The Veteran’s claim of service connection for a subarachnoid hemorrhage was received by VA on December 28, 2015. 7. The Veteran is unable to secure and maintain substantially gainful employment by reason of service-connected disabilities. CONCLUSIONS OF LAW 1. The August 2010 rating decision that denied service connection for a bilateral hip disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. 2. Evidence received since the August 2010 rating decision is cumulative of the evidence already of record and the criteria for reopening the claim of service connection for a bilateral hip disorder have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.156(a). 3. The criteria for an effective date earlier than December 28, 2015, for the award of service connection for atherosclerotic cardiovascular disease have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. §§ 3.102, 3.400. 4. The criteria for an effective date earlier than December 28, 2015, for the award of service connection for carotid stenosis have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. §§ 3.102, 3.400. 5. The criteria for an effective date earlier than December 28, 2015, for the award of service connection for scars associated with atherosclerotic cardiovascular disease have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. §§ 3.102, 3.400. 6. The criteria for an effective date earlier than December 28, 2015, for the award of service connection for a subarachnoid hemorrhage have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. §§ 3.102, 3.400. 7. The criteria for TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1984 to August 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2013 and July 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s March 2017 notice of disagreement appealed the evaluation assigned for a subarachnoid hemorrhage (shown incorrectly as “subachroid” hemorrhage in the rating decisions). The Veteran sought a 100 percent evaluation for the disability for six months beginning May 2016. In a rating decision dated in March 2018, the RO granted the requested 100 percent evaluation. The Board acknowledges the holding of the United States Court of Appeals for Veterans Claims (Court) that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not “abrogate the pending appeal.” AB v. Brown, 6 Vet. App. 35, 38 (1993). However, the Court explained that its holding did not mean a claimant may never limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law. AB v. Brown, 6 Vet. App. 35, 39. Here, because the Veteran limited his appeal to the 100 percent, 6-month evaluation, the appeal has been fully satisfied. 1. Whether new and material evidence has been received to reopen the claim of service connection for a bilateral hip disorder. The Veteran was previously denied service connection for a bilateral hip disorder in a rating decision of August 2010. An August 2010 letter notified him of this decision and hot to appeal. VA did not receive an appeal or new and material evidence prior to expiration of the appeal period. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103. 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. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The August 2010 rating decision found that the Veteran had a bilateral hip disorder, but there was no evidence it was related to service or incurred in service. The evidence of record at the time of the August 2010 rating decision included VA treatment records, service treatment records from February 1984 to August 1993, and VA examinations dated in April 2010 and May 2010. The evidence showed current disabilities were present, namely, avascular necrosis and degenerative changes. See February 2010 and March 2010 VA treatment records. Nonetheless, evidence of an in-service incurrence and a link to service was not of record. Since the time of the August 2010 rating decision, additional treatment records have been received that indicate the current disability progressed to the point where surgery was required. Moreover, the Veteran raised for the first time in July 2014 a new theory of entitlement. The Veteran asserted that his hip disorder was due to the improper prescription and management of Prednisone the Veteran took for service-connected and nonservice-connected disorders. The new evidence submitted in the form of VA treatment records show that Prednisone was prescribed for gout, a nonservice-connected disorder. It does not show Prednisone was prescribed for service-connected disorders. After a review of the evidence, the Board finds that reopening is not warranted. Here, the new evidence is either not competent evidence, or it is duplicative. Moreover, the assertion of a new theory of entitlement does not amount to a different claim. Specifically, the new treatment records merely discuss the progression of the bilateral hip disorders – suspected avascular necrosis and mild degenerative findings – that had previously been established. Thus, additional evidence in this regard is redundant and cumulative. Even the Veteran’s statement that he had to have surgery and that he could not work, while new, merely shows the severity of the current disorder. It does not indicate a link to service or an incurrence in service. Service treatment records are shown to have been submitted in July 2014, however, the Board finds this receipt date to be in error based upon the notation in the August 2010 rating decision that service treatment records were in evidence. The Veteran’s statements that his hip disorder is due to the improper administration of Prednisone treatment is not competent evidence. Even though the Veteran is competent to provide opinions on some medical issues, the particular issue of whether the prescription of Prednisone was improper and caused his bilateral hip necrosis falls outside the realm of his common knowledge. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Determining the standard of care for prescribing medications requires a high degree of medical training and experience that the Veteran has not been shown to have. As a result, his lay opinions are not competent evidence. These statements simply serve as the claim for benefits. As noted above, an application to reopen a claim based on a new theory of entitlement is not a new claim, but constitutes an application to reopen the previously denied claim, Ashford v. Brown, 10 Vet. App. 120 (1997), and a final denial on one theory is a final denial on all theories. Moreover, the assertion of a different theory of causation is not considered a new claim but considered a claim to reopen because the new theory has the same factual basis, or the same disease or injury. See Boggs v. Peake, 520 F.3d 1330 (Fed. Circ. 2008); Roebuck v. Nicholson, 20 Vet. App. 307 (2006) (multiple theories of entitlement for the same disability constitute the same claim). In this case, the same disease or injury was present in the claim denied by the August 2010 rating decision and the current claim. To the extent that the Veteran believes compensation is warranted based on additional disability due to VA treatment under 38 U.S.C. § 1151, he is advised that all claims for benefits must be submitted on required forms. Effective on March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now requires that claims be made on specific claim form prescribed by the Secretary and available online or at the local Regional Office. This provision effectively removed informal claims from VA’s processes. 2. Entitlement to an effective date earlier than December 28, 2015 for the award of service connection for atherosclerotic cardiovascular disease. 3. Entitlement to an effective date earlier than December 28, 2015, for the award of service connection for carotid stenosis. 4. Entitlement to an effective date earlier than December 28, 2015, for the award of service connection for scars associated with atherosclerotic cardiovascular disease. 5. Entitlement to an effective date earlier than December 28, 2015, for the award of service connection for a subarachnoid hemorrhage Issues 2-5 above, relating to the Veteran’s claim of entitlement to earlier effective dates, are discussed together in the analysis below. The Veteran seeks effective dates earlier than December 28, 2015, for the award of service connection for atherosclerotic cardiovascular disease, carotid stenosis, subarachnoid hemorrhage, and scars related thereto. The Veteran’s agent contends that the claims are within the scope of the appeal for a higher evaluation for hypertension, and therefore, the medical evidence received in relation to subarachnoid hemorrhage and carotid stenosis should be considered intertwined and part of the then-pending appeal of the evaluation of hypertension, which was submitted prior to March 24, 2015. See March 2017 notice of disagreement citing M21-1,I.5.B.2.f. Furthermore, the agent asserts that because the Veteran sought medical treatment prior to March 24, 2015, and he had an appeal pending for an increased evaluation for hypertension, the treatment should be accepted as establishing a claim based on VA medical treatment. For this proposition, the agent cited M21-1,III.ii.2.B.4.f. Generally, the effective date for the grant of service connection based on an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5100(b)(1); 38 C.F.R. § 3.400(b). Effective dates assigned as part of the initial award of service connection, i.e. “initial evaluations,” are considered to belong in this latter category. Because the Veteran’s discharge from service was in August 1993, the effective date can be no earlier than the date of the claim. “[E]ntitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition.” DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011) (citing to the rule of 38 U.S.C. § 5110(a) that the effective date shall be fixed in accordance with “facts found”). Regulations defining a “claim” were revised, effective March 24, 2015. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. Prior regulations held that a claim was a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). Effective for claims filed on or after March 24, 2015, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). Turning to the evidence of record, in May 2008, the Veteran filed a claim of service connection for a heart attack secondary to service-connected hypertension. The claim was denied in an October 2008 rating decision. The Veteran did not submit new and material evidence nor did he appeal the decision prior to expiration of the appeal period. Furthermore, new, relevant service department records were not associated with the claims file. Therefore, the May 2008 rating decision became final. In September 2012, VA received the Veteran’s claim for increase for service connected hypertension. A September 2013 rating decision denied the claim. The Veteran appealed the decision in November 2013. While the increased rating claim for hypertension was on appeal, in July 2015 and November 2015, VA treatment records were associated with the record showing treatment for heart disorders, carotid artery disorders, and a reference to “TIA’s” and mini-strokes, which is now known to be the subarachnoid hemorrhage. Some of the treatment occurred in November 2013. In September 2015, the Veteran’s agent submitted a letter stating that hypertension has gotten worse since the Veteran’s last VA examination, and that he suffered a stroke in January 2015. The agent requested adjudication of the stroke “as a secondary condition to [the Veteran’s] appealed hypertension.” In November 2015, VA noted in the claims file that the September 9, 2015 letter from the Veteran’s agent should be considered a request for an application to file a claim of service connection for a stroke secondary to hypertension. The Veteran submitted a December 2015 VA Form 21-526EZ, Fully Developed Claim for Compensation, relating to his carotid stenosis, subarachnoid hemorrhage, atherosclerotic cardiovascular disease and the associated scars. In a July 2016 rating decision, the Regional Office granted service connection for the atherosclerotic cardiovascular disease, carotid stenosis, subarachnoid hemorrhage, and scars related thereto effective from December 28, 2015. In March 2017, VA received the Veteran’s notice of disagreement as to the assigned effective dates and the 100 percent award for 6 months for the subarachnoid hemorrhage. Turning the Veteran’s first argument that, because the atherosclerotic cardiovascular disease, carotid stenosis, subarachnoid hemorrhage are related to hypertension, they should be considered within the scope of the increased rating claim for hypertension, the Board finds this argument to be wholly without merit. To find in favor of the Veteran in this matter would be tantamount to eliminating the secondary service connection regulations. Here, the claim raised is nothing more than a claim of service connection on a secondary basis and the agent’s wording in the September 2015 correspondence supports this interpretation. Therefore, the regulations pertaining to establishing an effective date for service connection apply. The disorders of carotid stenosis, subarachnoid hemorrhage, and scars related thereto, had not previously been claimed prior December 2015. The application to reopen the claim of heart disease, or a new claim for atherosclerotic cardiovascular disease was not received prior to December 28, 2015. Therefore, an effective date prior to December 28, 2015, is not warranted. The Veteran’s agent argues that the hypertension increased-rating claim should be broadened to include the diseases it has been found to have caused. The Board notes that the widely-cited case with respect to broadening the scope of a claim, Clemons v. Shinseki, 23 Vet. App. 1 (2009), applies to broadening a claim for service connection. It does not apply to broadening a claim for an increased evaluation, as the Veteran’s agent would have VA do here. The disorders subject to these claims for earlier effective dates are conditions distinctly separate from hypertension dealing with separate anatomies. Moreover, the description of a claim of increase for “hypertension” does not reasonably encompass the claimed disorders. As stated above, a claim of secondary service connection is the appropriate vehicle for such a claim, as acknowledged by the Veteran’s agent in his September 2015 correspondence. The Board has considered the agent’s assertion that the medical records should be treated as an informal claim of service connection under the previously existing regulations. Although the previous provisions of 38 C.F.R. § 3.157 allow for a report of examination or hospitalization by VA to be accepted as an informal claim for benefits (without any indication of intent to apply for benefits) in certain instances, these provisions were limited to instances where the veteran is applying for an increased rating once service connection or pension has already been established, or when a claim for compensation was previously disallowed for the reasons that the service-connected disability was noncompensable, none of which apply in this case. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). In addition, the mere mention of a medical record alone cannot be construed as a claim for service connection. See MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (Because the condition disclosed in veteran’s medical records had not previously been claimed, or determined to be service connected, such records did not satisfy the regulatory requirements of an informal claim). See also, 38 C.F.R. § 3.157(b)(1). The Board finds that such medical records in this case also do not satisfy the regulatory requirements of an informal claim. There is no basis for the award of an effective date prior to December 28, 2015 for the awards of service connection. Accordingly, the claims are denied. There is no doubt to resolve.38 U.S.C. § 5107(b). TDIU 6. Entitlement to TDIU. The Board concludes that the criteria for schedular TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.16, 4.18, 4.19. Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Individual unemployability must be determined without regard to any non-service connected disabilities or the veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, the Veteran is service-connected for: cervical radiculopathy of the right upper extremity, evaluated as 40 percent disabling; degenerative disc disease of the lumbar spine, evaluated as 30 percent disabling; an unspecified depressive disorder, evaluated as 30 percent disabling; degenerative disc disease of the cervical spine, evaluated as 20 percent disabling; cervical radiculopathy of the left upper extremity, evaluated as 20 percent disabling; hypertension, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; lumbar radiculopathy of the right lower extremity, evaluated as 10 percent disabling; lumbar radiculopathy of the left lower extremity, evaluated at 10 percent disabling; residuals of a subarachnoid hemorrhage, evaluated as 10 percent disabling; and bilateral hearing loss, acne, residuals of carotid stenosis, and scars, all noncompensably evaluated. The disabilities result in a combined evaluation of 90 percent. The disabilities have met the numeric requirements for a schedular evaluation. Next, the Board determines whether the Veteran is in fact unemployable by reason of service-connected disabilities. The Veteran is shown to have completed four years of college. For six to eight years, he worked in a sophisticated job as an instructor/writer in defense technology for Raytheon and General Dynamics. The job required a security clearance, and the Veteran made $84,000 per year. The job involved classroom instruction regarding military aircraft systems. Prior to that, the Veteran worked as a military intelligence officer for the U.S. Army and Army Reserves. From 1994 to 2004, he owned a chain of restaurants. Thus, the Veteran has significant analytical skills and experience and maintained a security clearance. He medically retired from employment with Raytheon in 2012, at least in part, due to nonservice-connected avascular necrosis of the hips. His job duties at Raytheon required him to perform repetitive, heavy lifting, standing for prolonged periods of time, and fueling of the military vehicle. At General Dynamics, he was required to stand and move around the classroom while lecturing, demonstrating and assisting students for up to seven hours per day. See May 2008 statement from employer. In addition, he was required to lead his students in outdoor map reading exercises, which necessitated he walk a mile or more lasting several hours. Id. The employer noted that the Veteran had increasingly been unable to fulfill his instructional duties while calling in sick due to his medical conditions. Increased absenteeism was causing strain on the business. Id. Nonetheless, after employment with General Dynamics, the Veteran worked for Raytheon. The Veteran has significant work experience and skills that have given the Board a great deal of pause regarding his claim of unemployability. The Board has considered jobs that would be less paying, less physically demanding, and perhaps not in the Veteran’s field. The Board has considered technical writer jobs, for which the Veteran might be able to telecommute or work with widely available orthopedic accommodations, such as a “sit-stand” desk. Moreover, given his relatively high compensation, he could conceivably work less than full-time and still sustain substantially gainful employment. Ultimately though, when giving the benefit of the doubt to the Veteran, the combination of chronic pain, decreased memory, a report that the act of typing increases pain in his neck, and reports of frequently missing work due to pain, prevent the Board from finding that he is not unemployable. (Continued on the next page)   Accordingly, resolving all doubt in the Veteran’s favor, the TDIU claim is granted. 38 U.S.C. § 5107(b). C.A. SKOW Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Rocktashel, Counsel