Citation Nr: 18150544 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-24 192 DATE: November 15, 2018 ORDER The claim for entitlement to service connection for a lower back condition is reopened, and to that limited extent, the claim is granted. The claim for entitlement to service connection for a chest condition is reopened, and to that limited extent, the claim is granted. Entitlement to an initial compensable rating for hyperhidrosis prior to April 18, 2016, is denied. REMANDED Entitlement to an increased rating for depressive disorder with anxiety is remanded. Entitlement to service connection for a lower back condition is remanded. Entitlement to service connection for a chest condition is remanded. Entitlement to a rating in excess of 30 percent for hyperhidrosis from April 18, 2016 is remanded. FINDINGS OF FACT 1. In an unappealed August 2013 decision, the RO denied service connection for lower back condition and chest condition. The Veteran was notified of the decision and of his appellate rights, but he did not submit a notice of disagreement or submit new and material evidence within one year of the issuance of that decision. 2. The evidence received since the August 2013 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claims and raises a reasonable possibility of substantiating the claims for service connection for lower back condition and chest condition. 3. Prior to April 18, 2016, the Veteran’s hyperhidrosis manifested in symptoms that allowed the Veteran to handle paper and tools. CONCLUSIONS OF LAW 1. The August 2013 rating decision, which denied the claim for entitlement to service connection for lower back condition and chest condition, is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.105. 2. The evidence received subsequent to the August 2013 rating decision is new and material, and the issue of service connection for lower back condition and chest condition is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for an initial compensable rating for hyperhidrosis are not met prior to April 18, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.118, Diagnostic Code (DC) 7832. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 2006 to November 2012. Petition to Reopen 1. The petition to reopen the claim for entitlement to service connection for a lower back condition In an unappealed August 2013 decision, the RO denied service connection for a lower back condition because the Veteran’s records did not support a finding of back injury during active service. The Veteran did not timely disagree with that decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.105. In June 2015, the RO received a request from the Veteran which it considered as a claim to reopen the issue of entitlement to service connection for lower back condition, which it denied reopening based on lack of new and material evidence in an October 2015 decision. The Veteran submitted a timely notice of disagreement (NOD) and VA Form 9. In reviewing the October 2015 decision, the Board has determined that a new and material evidence analysis is proper for the lower back condition claim on appeal, as it was clearly adjudicated by the August 2013 decision. See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (when determining whether a new and material evidence analysis is required, the focus of VA’s analysis must be on whether the evidence presented truly amounts to a new claim “based upon distinctly diagnosed diseases or injuries,” or whether it is evidence tending to substantiate an element of the previously adjudicated matter). Regardless of the RO’s actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. 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) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the lower back condition issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing 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 question of whether new and material evidence has been received sufficient to reopen the matter is a threshold question in any case involving a previously denied claim. Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” 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.” Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). That is, a finally decided claim must be reopened where the claimant submits new and material evidence relative to a fact that was unestablished at the time of the prior final decision on the claim. Shade, 24 Vet. App. at 119. For the purpose of reopening a claim, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the final August 2013 rating decision. Specifically, the Veteran’s claim was previously denied for a lack of evidence of injury during service. The Veteran has since submitted a lay statement explaining that he lifted heavy objects and equipment during service in his capacity as an aircraft maintenance worker. This new evidence was neither cumulative nor redundant, as the Veteran had previously submitted a medical opinion indicating that the Veteran’s lower back condition is related to heavy lifting, however the fact that the Veteran’s duties during service included heavy lifting was not considered by the RO; accordingly, these statements correspond to the reason for which the claim for lower back condition was originally denied in August 2013. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds that the additional medical evidence of record constitutes new and material evidence to reopen the claim for entitlement to service connection for lower back condition. In short, this evidence, if presumed credible, relates to an unestablished fact necessary to substantiate the lower back condition, i.e. whether the Veteran’s duties in service are related to his current lower back condition, and raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has been presented to reopen the Veteran’s previously denied lower back condition claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The petition to reopen the claim for entitlement to service connection for a chest condition In an unappealed August 2013 decision, the RO denied service connection for a chest condition because the Veteran’s records did not support a connection with any currently claimed chest condition. The Veteran did not timely disagree with that decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.105. In June 2015, the RO received a request from the Veteran which it considered as a claim to reopen the issue of entitlement to service connection for chest condition, which it denied reopening based on lack of new and material evidence in an October 2015 decision. The Veteran submitted a timely notice of disagreement (NOD) and VA Form 9. In reviewing the October 2015 decision, the Board has determined that a new and material evidence analysis is proper for the chest condition claim on appeal, as it was clearly adjudicated by the August 2013 decision. See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (when determining whether a new and material evidence analysis is required, the focus of VA’s analysis must be on whether the evidence presented truly amounts to a new claim “based upon distinctly diagnosed diseases or injuries,” or whether it is evidence tending to substantiate an element of the previously adjudicated matter). Regardless of the RO’s actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. 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) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the chest condition issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end. Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the final August 2013 rating decision. Specifically, the Veteran’s claim was previously denied for a lack of connection of in-service complaints of chest pain with any current chest condition, or lack of persistent, chronic condition. The Veteran has since submitted a lay statement dated May 2016 explaining that his service-connected hyperhidrosis caused him to undergo surgery in 2012. That surgery is performed by severing nerve endings located in the chest area, and since the surgery, the Veteran states that he has had increasing pain and muscular problems in the chest area where the surgery was performed. A new theory of entitlement alone is not new and material evidence. In addition, a new theory of causation for the same disease or injury that was the subject of a previously denied claim by the Board cannot be the basis to reopen the claim under 38 U.S.C. § 7105(c). However, if the evidence supporting the Veteran’s new theory of causation constitutes new and material evidence, then the VA must reopen the Veteran’s claim under § 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). This new evidence was neither cumulative nor redundant, as this is a new theory of service connection, and the Veteran has provided a lay statement indicating a possible connection with a service-connected disability that was not previously considered, and appears to have only developed more recently as the Veteran’s service-connected hyperhidrosis has increased in severity. In fact, the RO granted the Veteran an increased rating for the Veteran’s service-connected hyperhidrosis in April 2016, which in itself is new and material evidence related to the Veteran’s theory of service connection. Accordingly, these statements and rating decision correspond to the reason for which the claim for chest condition was originally denied in August 2013. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds that the additional medical evidence of record constitutes new and material evidence to reopen the claim for entitlement to service connection for chest condition. In short, this evidence, if presumed credible, relates to an unestablished fact necessary to substantiate the chest condition, i.e. whether the Veteran’s service-connected hyperhidrosis is related to the claimed chest condition, and raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has been presented to reopen the Veteran’s previously denied chest condition claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Increased Rating 3. Entitlement to an initial compensable rating for hyperhidrosis The Veteran is rated at a noncompensable rating for hyperhidrosis from the initial date of service connection, June 4, 2015. The Veteran is rated at the maximum 30 percent under DC 7832 for hyperhidrosis from April 18, 2016. The assignment of the maximum rating for hyperhidrosis since April 2016 is addressed in the remand portion below under extraschedular consideration. Herein, the Board will address only the noncompensable rating prior to April 18, 2016. After a review of the evidence, the Board finds that the Veteran’s service-connected hyperhidrosis does not warrant a compensable rating prior to April 18, 2016. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Hyperhidrosis is rated under DC 7832, which provides a rating of zero percent is available when one is able to handle paper or tools after therapy and a rating of 30 percent is available when one is unable to handle paper or tools because of moisture; and the symptoms are unresponsive to therapy. 38 C.F.R. § 4.118, DC 7832. The Veteran contends that his disabilities warrant higher rating evaluations throughout the appeal period. The Veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). When a question arises as to which of two ratings applies under a particular code, the higher rating 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. Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran was afforded a VA examination in August 2015. The examiner reported that the Veteran was able to handle paper and tools after treatment. According to the examiner’s notes, the Veteran reported that since surgery in 2012, the condition had improved by 90 percent. In his May 2016 statement, the Veteran explained that he had surgery in 2012 to address the hyperhidrosis by severing nerves in the chest area. The Veteran stated that he was informed that the effects of the surgery may not be permanent and that one day the symptoms could return. The Veteran states that the symptoms eventually returned and were recorded in the April 2016 VA examination. The evidence of record shows that prior to April 18, 2016, the Veteran did not meet the criteria for a 30 percent rating because he was not unable to handle paper or tools or unresponsive to treatment for hyperhidrosis. The Board finds that an initial compensable rating for hyperidrosis is not warranted, as the only ratings available are for noncompensable and 30 percent evaluations. Accordingly, the appeal for an increased rating for hyperhidrosis prior to April 18, 2016 must be denied. REASONS FOR REMAND 1. Entitlement to an increased rating for depressive disorder with anxiety is remanded. In the May 2016 statement, the Veteran claims that his psychiatric disorder has worsened, to include as due to the increased severity of the hyperhidrosis disability that was granted an increased disability rating by the RO in April 2016. The Board notes that the psychiatric examination was performed in April 2016, just before the Veteran’s written statement was submitted. However, in reviewing the April 2016 VA examination, the Board finds the examiner’s notations inconsistent, and when viewed with the Veteran’s statement of worsening symptoms, finds that a new VA psychiatric examination is warranted. The examiner noted that the Veteran was generally not any more impaired than as reported during the September 2015 VA examination. However, the examiner then recorded symptoms including difficulty concentrating, remembering details and making decisions, fatigue and decreased energy, feelings of guilt, worthless, and/or helplessness; insomnia, early-morning wakefulness, or excessive sleeping; irritability, restlessness, loss of interest in activities or hobbies once pleasurable, including sex; change in eating habits, persistent sad, anxious, or empty feelings; thoughts of suicide and suicide attempts. The examiner chose the box corresponding to the 10 percent evaluation rating for the Veteran’s depressive disorder and then listed only depressed mood, anxiety, and chronic sleep impairment as related symptoms. VA should provide the Veteran a new VA psychiatric examination to determine the current level of severity of the service-connected depressive disorder. 2. Entitlement to service connection for a lower back disability The Veteran has submitted a statement that during active service he was required to perform duties that included regular lifting of heavy objects. The Veteran’s claims file contains an opinion from a medical doctor dated July 2013 that the Veteran’s spinal bone spurs are a result of heavy lifting. The Veteran should be afforded a VA examination to determine the etiology of the back condition. 3. Entitlement to service connection for a chest disability The Veteran has submitted a statement that his chest pains are related to the 2012 surgery for hyperhidrosis that involved severing nerves in the chest area, and that the surgery site now is painful. The Veteran was awarded an increased rating for service-connected hyperhidrosis due to an increase in symptoms that returned after the surgery in 2012. The Veteran should be afforded a VA examination to determine if the chest pain is secondary to the Veteran’s service-connected hyperhidrosis. 4. Entitlement to an increased rating in excess of 30 percent from April 18, 2016 for hyperhidrosis, to include as on an extraschedular basis, is remanded From April 18, 2016, the Veteran is rated at 30 percent for hyperhidrosis under Diagnostic Code (DC) 7832, the maximum available schedular rating. 38 C.F.R. § 4.119, DC 7832. In the Veteran’s May 2016 statement, he requests an increased rating based on functional loss, explaining that the hyperhidrosis now impacts his ability to work and creates an additional psychological impediment. The Veteran explains that the surgery in 2012 intended to alleviate the hyperhidrosis symptoms was successful for a time, but, as advised by the medical professionals at the time of surgery, the symptoms have returned. Also considered by the Board is whether referral is warranted for a rating outside of the schedule. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the Board is authorized to refer the case to the Chief Benefits Director or the Director, Compensation Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criteria for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). Because the evidence of record indicates symptoms of hyperhidrosis which may be more severe than contemplated by DC 7832 which is based on inability to handle paper or tools and non-responsiveness to therapy, the Board will separately remand the issue of entitlement to an extraschedular evaluation in excess of the maximum allowable schedular rating. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected psychiatric disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected psychiatric disorder alone. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any spinal disability. The examiner must opine: (a.) whether it is at least as likely as not related to an in-service injury, event, or disease, including regular lifting of heavy equipment, and must reference the July 2013 private medical opinion. (b.) whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any chest condition. (a.) The examiner should opine: Secondary service connection – whether it is at least as likely as not (1) proximately due to service-connected disability hyperhidrosis, specifically surgery in 2012, or (2) aggravated beyond its natural progression by service-connected disability. 4. Refer the Veteran’s claim for an increased rating in excess of the maximum 30 percent for hyperhidrosis since April 18, 2016 to VA’s Director of Compensation Service for extraschedular consideration. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Miller, Associate Counsel