Citation Nr: 18148121 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 15-23 838 DATE: November 6, 2018 ORDER As new and material evidence sufficient to reopen the previously denied claim for service connection for prostate cancer has not been received, the application to reopen this issue is denied. As new and material evidence sufficient to reopen the previously denied claim for service connection for bladder cancer has not been received, the application to reopen this issue is denied. Entitlement to an initial rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. An unappealed March 2006 rating decision denied service connection for prostate cancer; a subsequent unappealed rating decision in November 2007 continued the denial. 2. Evidence received since the November 2007 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for prostate cancer, nor does it raise a reasonable possibility of substantiating the claim. 3. An unappealed March 2006 rating decision denied service connection for bladder cancer. 4. Evidence received since the March 2006 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for bladder cancer, nor does it raise a reasonable possibility of substantiating the claim. 5. The Veteran’s PTSD has been productive of no more than occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The November 2007 rating decision that denied entitlement to service connection for prostate cancer is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has not been received to reopen the claim for service connection for prostate cancer. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The March 2006 rating decision that denied entitlement to service connection for bladder cancer is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence has not been received to reopen the claim for service connection for bladder cancer. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for an initial rating in excess of 50 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to July 1970. The Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA in May 2018. However, the appeal had already been activated at the Board and is therefore no longer eligible for the RAMP program. Accordingly, the Board will undertake appellate review of the case. New and Material Evidence Generally, a claim that has been denied in an unappealed Regional Office (RO) decision or an unappealed Board of Veterans’ Appeals (Board) decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is 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. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision-makers. Material evidence means 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 final 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). The Board has jurisdictional responsibility to determine on its own whether there is new and material evidence to properly reopen a service-connection claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)); see also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996). The submission of “new and material” evidence is a jurisdictional prerequisite to the Board’s review on the merits of a previously-denied claim. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been submitted sufficient to reopen the claim for service connection for prostate cancer. In March 2006, the Regional Office (RO) denied service connection for prostate cancer. The basis for the denial of service connection was that there was no evidence of a diagnosis/treatment for prostate cancer. The Veteran did not appeal that denial, or submit new and material evidence within one year of that decision. Therefore, it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b). The subsequent unappealed rating decision in November 2007 continued the denial, finding that no new and material evidence was provided. The November 2007 rating decision is the most recent final decision regarding the claim for service connection for prostate cancer. In June 2014, the Veteran submitted his current claim for service connection for prostate cancer. See June 2014 Statement in Support of Claim. Such claim has been construed as a request to reopen his previously denied claim for prostate cancer. The pertinent evidence of record at the time of the November 2007 rating decision included the Veteran’s service treatment records (STRs), February 2006 VA examination report, and VA and private treatment records. The evidence received since the November 2007 rating decision includes an October 2014 VA medical opinion and additional VA and private treatment records. This evidence is new because it was not previously associated with the claims file. However, this evidence is not material because it does not relate to an unestablished fact necessary to substantiate the claim on appeal. In relevant part, these records contain information that is merely cumulative of the evidence at the time of the November 2007 rating decision because they do not establish that the Veteran has been diagnosed with prostate cancer/residuals. These records, on the other hand, establish that the Veteran suffers from residuals associated with bladder cancer. See October 2014 VA Medical Opinion. Consequently, the Board finds that new and material evidence has not been received since the November 2007 final rating decision and reopening the claim for service connection for prostate cancer is not warranted. 2. Whether new and material evidence has been submitted sufficient to reopen the claim for service connection for bladder cancer. In the March 2006 rating decision, the RO also denied service connection for bladder cancer. The basis for the denial of service connection was that the available scientific and medical evidence did not show that the condition was incurred in or caused/aggravated by service. Moreover, there was no evidence to support the conclusion that bladder cancer was associated with herbicide agent exposure. The Veteran did not appeal that denial, or submit new and material evidence within one year of that decision. Therefore, it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b). In June 2014, the Veteran submitted his current claim for service connection for bladder cancer. See June 2014 Statement in Support of Claim. Such claim has been construed as a request to reopen his previously denied claim for bladder cancer. The pertinent evidence of record at the time of the March 2006 rating decision included the Veteran’s STRs, February 2006 VA examination report, and VA and private treatment records. The evidence received since the March 2006 rating decision includes an October 2014 VA medical opinion, additional VA and private treatment records, and the Veteran’s June 2014 statement in support of claim. This evidence is new because it was not previously associated with the claims file. However, this evidence is not material because it does not relate to an unestablished fact necessary to substantiate the claim on appeal and does not raise a reasonable possibility of substantiating the claim. Namely, these records continue to show that the Veteran has a diagnosis of bladder cancer but do not otherwise provide competent or credible evidence that his bladder cancer is caused by or related to service, to include exposure to herbicide agents. Consequently, the Board finds that the additional evidence received since the March 2006 rating decision is not material and the claim for service connection for bladder cancer is not reopened. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 3. Entitlement to an initial rating in excess of 50 percent for service-connected PTSD. The Veteran was initially assigned a 30 percent rating at the time of his award of service connection for PTSD. After initiating an appeal of that initial rating, in a January 2015 rating decision, the Veteran’s rating for PTSD was increased from 30 percent to 50 percent, effective June 20, 2014, the date VA received the Veteran’s initial claim. This increase during the appeal did not constitute a full grant of the benefit sought. Thus, the Veteran’s claim for an increased evaluation for PTSD remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran’s PTSD, like all psychiatric disorders, is rated under the General Rating Formula for mental disorders. Under the General Rating Formula, a rating of 50 percent is warranted for a mental disorder that results in 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; and difficulty in establishing and maintaining effective work and social relationships. A rating of 70 percent is warranted for a mental disorder that results in 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); and inability to establish and maintain effective relationships. Importantly, evaluations under § 4.130 are symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. The Board notes however that the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating and are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit-of-the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As noted, the Veteran is currently rated at 50 percent for his service-connected PTSD. Nevertheless, he contends that a higher rating is warranted. As will be discussed more fully below, the Board finds that a higher initial rating is not warranted. In November 2014, the Veteran underwent a VA examination to evaluate his PTSD. The Veteran reported having deficits in social functioning and mental health symptoms that negatively impacted his relationships. These deficits appeared to be related to a pattern of irritability, mood swings, and problems with controlling anger. The Veteran also reported periods of isolation and difficulty in finding pleasure in most activities. The examiner documented symptoms of irritable behavior, hypervigilance, problems with concentration, sleep disturbance, depression, anxiety, mild memory loss, disturbance of motivation and mood, difficulty establishing and maintaining effective work and social relationships. The examiner diagnosed the Veteran with PTSD and found that the Veteran had occupational and social impairment with decrease in work efficiency and intermittent periods of inability to perform occupational tasks. VA treatment records document that the Veteran suffers from anxiety, depression, and sleep problems, and has a quick temper/anger. However, they also show that he has been in a longterm marriage (since 1971), has a strong family support, and is financially stable. After reviewing the foregoing evidence, the Board finds that an initial rating in excess of 50 percent is not warranted for the Veteran’s PTSD, as he has not demonstrated symptomatology reflective of the criteria for a 70 percent rating. Specifically, the Veteran has not been shown to exhibit 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); and inability to establish and maintain effective relationships; or other symptoms approximating the criteria for a 70 percent schedular rating. Moreover, the evidence does not show that the Veteran suffers from symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to a 70 percent disability rating. Mauerhan, 16 Vet. App. at 443. Although the Veteran has demonstrated problems with establishing and maintaining effective work and social relationships, there is no indication that he is unable to establish and maintain effective relationships. As noted in the record, throughout the appeal period, the Veteran has been in a longterm marriage and has strong family support. See May 2018 VA Treatment records. Accordingly, a rating in excess of 50 percent for PTSD is denied. (CONTINUED ON NEXT PAGE) A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel