Citation Nr: 18143863 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-29 711 DATE: October 22, 2018 ORDER Whether new and material evidence has been received to reopen a claim for entitlement to service connection for residuals of a dental injury is granted. Entitlement to an increased rating of 100 percent for Persistent Depressive Disorder is granted. REMANDED Entitlement to service connection for a lung condition, to include as due to asbestos exposure is remanded. Entitlement to service connection for residuals of a dental injury is remanded. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The claim for service connection for residuals of a dental injury was previously denied in a May2004 rating decision, the Veteran did not appeal the decision. 2. Some of the evidence submitted subsequent to the May 2004 rating decision is not cumulative or redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for entitlement to service connection for residuals of a dental injury. 3. The Veteran's service-connected persistent depressive disorder has been manifested by depressed mood, chronic sleep impairment, flattened affect, disturbances in mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, anhedonia suicidal ideation, and neglect of personal appearance and hygiene throughout the entire claims period. CONCLUSIONS OF LAW 1. The unappealed May 2004 rating decision which denied service connection for residuals of a dental injury is final. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156 (a), 3.104(a), 20.302, 20.1103. 2. Evidence received since the May 2004 RO decision that denied entitlement to service connection for residuals of a dental injury is new and material; the claim is reopened. 38 U.S.C. § 1154 (a), 5108, 7105; 38 C.F.R. § 3.156, 20.302, 20.1103. 3. The criteria for an initial increased disability rating of 100 percent, for persistent depressive disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.321, 4.25, 4.130, Diagnostic Code 9433.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1987 until March 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from the May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for residuals of a dental injury In general, RO decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.200. 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, the Secretary shall reopen the claim and review the former disposition of the claim. The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). "New" evidence is existing evidence not previously submitted to agency decision makers. "Material" evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the appellant in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). Historically, the Veteran's claim for entitlement to service connection was originally denied by the RO in May 2004. The Veteran did not appeal the May 2004 decision and it became final. The Veteran requested that his claim be reopened and was subsequently denied in a May 2013 RO decision. Evidence of record at time of last final denial At the time of the May 2004 RO denial, the evidence of record consisted of the Veteran's DD 214, STRs, medical records, and the Veteran's lay statements. Evidence of record since the last final denial The evidence received since the last final denial includes additional treatment medical records in regard to the Veteran's claimed condition. Old and new evidence of record considered as a whole The Board finds that some of the additional evidence raises a possibility of substantiating the Veteran's service connection claims. In this regard, the Board is mindful of the low threshold for reopening a previously denied claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The additional medical treatment records were not within the claims file at the time of the May 2004 RO decision. The additional treatment records go to the basis of the Veteran's service connection claim. Thus, the Board finds the medical records and Veteran's statements in support of the claims obtained after the May 2004 RO decision to be new and material. Accordingly, the Board concludes that evidence has been received which is new and material, and the claim for service connection for residuals of a dental injury, is reopened. 2. Entitlement to an increased rating in excess of 30 percent for Persistent Depressive Disorder Rating Disabilities in General Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).   Criteria for Persistent Depressive Disorder (DC 9433) In a May 2013 decision, the Veteran's persistent depressive disorder rating was continued at 10 percent disabling. Subsequently, an April 2016 rating decision increased the Veteran's persistent depressive disorder evaluation from 10 percent to 30 percent, effective March 7, 2011, date of the claim. The Veteran contends that he is entitled to an increased disability rating in excess of 30 percent for his persistent depressive disorder. The Veteran's service-connected persistent depressive disorder disability has been rated under Diagnostic Code 9433. 38 C.F.R. § 4.130. The following ratings are available under Diagnostic Code 9433: A 10 percent disability evaluation is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational task only during periods of significant stress, or; symptoms controlled by continuous medication. 38 C.F.R. § 4.130. A 30 percent disability evaluation is warranted for occupational and social impairment with 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, recent events). Id. A 50 percent disability evaluation is assigned under the general rating formula for mental disorders where the evidence shows occupational and social impairment 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 in short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned for 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for 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. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). In order to be assigned a particular rating, a Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The key element for a rating under the General Formula for Mental Disorders is the degree of social and occupational impairment caused by those symptoms. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In December 2011, the Veteran was provided a VA examination. The examination report noted the Veteran with depressed mood, suspiciousness, and inability to establish and maintain effective relationships. The examiner concluded the Veteran's psychiatric symptoms cause occupational and social impairment due to mild or transient which decrease work efficiency and ability to perform occupational task only during periods of significant stress, or; symptoms controlled by continuous medication. A March 2015 VA examination noted the Veteran with depressed mood, chronic sleep impairment, flattened affect, disturbances in mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, and neglect of personal appearance and hygiene. The examiner concluded the Veteran's psychiatric symptoms cause total occupational and social impairment. An October 2015 VA examination noted the Veteran with depressed mood, feelings of worthlessness, low self-esteem, low motivation, sleep impairment, and anhedonia. The examiner concluded the Veteran's psychiatric symptoms cause occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational task only during periods of significant stress, or; symptoms controlled by continuous medication. Here, the Board finds that an increased disability rating of 100 percent for persistent depressive disorder is warranted. The medical evidence reflects the Veteran with depressed mood, chronic sleep impairment, flattened affect, disturbances in mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, and neglect of personal appearance and hygiene resulting in a total occupational and social impairment. REASONS FOR REMAND 1. Entitlement to service connection for residuals of a dental injury Having reopened the Veteran's claim for service connection, the Board must now determine whether the reopened claims for service connection may be granted on the merits, de novo. The Board notes that the Veteran was not provided a VA medical opinion in regard to his claimed residual on a dental injury. VA's duty to assist requires it to provide an adequate medical examination and/or obtain a medical opinion if the evidence is not sufficient to decide the claim. However; in order for the duty to assist to be triggered, the following must be present: (A) competent lay or medical evidence of a current disability, persistent, or recurrent symptoms of a disability, (B) evidence establishing the Veteran suffered an event, injury, or disease or symptoms of a disease, and (C) evidence indicating that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. 38 C.F.R. § 3.159 (c)(4)(i). The Board finds that the requirements have been met in order to trigger the VA's duty to assist for the reasons stated below. In this case, without adequate medical examinations and medical opinion regarding to the Veteran's claimed condition, the Board finds the current evidence to be insufficient to decide the claim. Therefore, VA medical examinations and medical opinions are required by VA's duty to assist the Veteran in developing evidence to substantiate his claim to service connection. 2. Entitlement to service connection for a lung condition, to include as due to asbestos exposure is remanded. Regarding asbestos-related claims, there is no specific statutory guidance and the Secretary has not promulgated any regulations. VA has issued a circular on asbestos-related diseases, however. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos- related information as M21-1, Part VI. The Court has held that VA must analyze an appellant's claim of service connection for asbestosis or asbestos-related disabilities using the administrative protocols found in the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C, essentially acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). With respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the claim of entitlement to service connection for a lung condition, the Veteran claims that his respiratory conditions are caused by in-service exposure to asbestos. Firstly, the Board concedes that the Veteran had some exposure to asbestos during his active Navy service. The Veteran had active naval service from June 1987 until March 1989; with some service taking place aboard a naval ship (USS Lexington). Thus, the Veteran must be afforded a VA examination to determine if any current respiratory disability is caused by in-service asbestos exposure. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 3. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) is remanded. The Board has considered the question of whether the Veteran would be prejudiced by considering the appeal for TDIU while remanding the other issue on appeal. Specifically, the Board questions whether the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As the outcome of the claims being remanded could have a significant impact on the Veteran's appeal for entitlement to TDIU, the Board finds these matters inextricably intertwined. The Board also notes that an undecided issue "inextricably intertwined" with an issue certified for appeal must be adjudicated prior to appellate review. Thus, the issue for entitlement to TDIU must be remanded. The matters are REMANDED for the following action: 1. Request the appellant to identify all medical providers (VA and private) from whom he has received treatment for his claimed conditions; complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for the identified treatment records. After obtaining completed VA Forms 21-4142, the AOJ should attempt to obtain all identified pertinent medical records and associate them with the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's claimed residuals of a dental injury. The examiner must opine whether it is at least as likely as not that the Veteran has any residuals of a dental injury related to an in-service injury, event, or disease, including trauma. 3. Schedule the Veteran for a VA respiratory examination by a Pulmonologist. The claims file and a copy of this remand must be provided to the examiner. The examiner must indicate receipt and review of these documents in any report generated. For any respiratory illness present, the physician is requested to provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's respiratory condition is related to, or aggravated by, his military service, including inservice exposure to asbestos. Provide supporting rationale, with specific references to the record, for the opinions provided; moreover, if the examiner finds that the inquiries cannot be answered without resorting to speculation, then it must be explained why it would be speculative to respond. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brandon A. Williams, Counsel