Citation Nr: 18154006 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 15-17 411 DATE: November 28, 2018 ORDER The application to reopen a previously denied claim for service connection for peptic ulcer disease is denied. Entitlement to an initial rating of 100 percent for posttraumatic stress disorder (PTSD) is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s) from April 29, 2010, to December 21, 2011, is granted, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. FINDINGS OF FACT 1. In an November 1999 rating decision, the RO denied entitlement to service connection for peptic ulcer disease. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. Evidence received since the November 1999 rating decision is either cumulative or redundant and, by itself or in connection with evidence previously assembled, does not relate to an unestablished fact or raise a reasonable possibility of substantiating the claim of entitlement to service connection for peptic ulcer disease. 3. The symptoms and overall impairment caused by the Veteran’s psychiatric disability more nearly approximated total occupational and social impairment. 4. From April 29, 2010, to December 21, 2011, the Veteran has a service-connected disability rated as total and additional service-connected disabilities ratable at 60 percent or more. CONCLUSIONS OF LAW 1. The November 1999 rating decision that denied the claim of entitlement to service connection for peptic ulcer disease is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. The additional evidence received since the November 1999 decision is not new and material, and the claim of service connection for peptic ulcer disease is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for an initial rating of 100 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.130, DC 9411. 4. From April 29, 2010, to December 21, 2011, the criteria for SMC pursuant to 38 U.S.C. § 1114 (s) have been met. 38 U.S.C. § 1114 (s). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1991 to April 1992, including service in the Southwest Asia theater of operations during the Persian Gulf War. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In his May 2015 substantive appeal (via VA Form 9), the Veteran requested a video conference hearing with a Veterans Law Judge. In September 2018, the Veteran, via his representative, canceled his request for a hearing. As such, the Veteran’s hearing is deemed withdrawn. See 38 C.F.R. § 20.704 (e). 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for peptic ulcer disease Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision-makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the 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). As noted above, in a November 1999 rating decision, the RO denied service connection for peptic ulcer disease because there was no evidence that his pre-existing peptic ulcer disease permanently worsened as a result of service. The Veteran did not appeal that decision, nor did he submit new and material evidence within the remaining appeal period. Accordingly, the November 1999 rating decision is final. See 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The Veteran’s claim for service connection for peptic ulcer disease was denied because there was no evidence that the Veteran’s pre-existing peptic ulcer disease permanently worsened as a result of service. To reopen the claim, there would have to be new evidence that related to the basis for the prior denial or the new evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The relevant evidence of record at the time of the November 1999 rating decision included the Veteran’s service treatment records (STRs), which documented peptic ulcers at enlistment and continuous treatment for peptic ulcers during service and at separation; post-service VA treatment records documenting continuous treatment for peptic ulcer disease; a July 1994 VA examination with a diagnosis of chronic ulcer disease; and statements from the Veteran’s friends and family that did not address gastrointestinal issues. Relevant evidence received more than one year since the November 1999 rating decision includes VA treatment records reflecting continuous treatment for peptic ulcer disease. The Board finds that the evidence added to the claims file since the November 1999 rating decision fails to demonstrate, suggest, or raise a reasonable possibility that the Veteran’s pre-existing peptic ulcer disease permanently worsened as a result of service. Indeed, while the VA treatment records reflecting that the Veteran continues to have peptic ulcer disease are new in that they were not of record at the time of the last final decision, they are cumulative and duplicative of the evidence that was previously considered by the Board, as they document the Veteran’s continuous symptoms of peptic ulcers. Notably, the newly received records do not contain any indication or suggestion that the Veteran’s pre-existing peptic ulcers were permanently worsened by service. As a result, the newly received records are not considered material and sufficient to reopen the previously denied claim and the Secretary’s duty to assist by providing a new medical examination or opinion regarding peptic ulcers is not triggered. See Shade, 24 Vet. App. at 120. In sum, even when considering the newly submitted evidence together with the previous evidence of record, the evidence does not raise a reasonable possibility of substantiating the Veteran’s claim of service connection for peptic ulcers, to include either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. As new and material evidence has not been received sufficient to reopen the previously denied claim of service connection for peptic ulcers disease, the criteria for reopening the claim have not been met. The benefit of the doubt doctrine is not for application because the threshold burden of submitting new and material evidence has not been met. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If two ratings are potentially applicable, the higher rating 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath, 1 Vet. App. at 589. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to an initial disability rating of 100 percent for PTSD The Veteran contends that his service-connected PTSD warrants an initial disability rating higher than 70 percent under 38 C.F.R. § 4.130, DC 9411. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign a rating 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. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely based on social impairment. 38 C.F.R. § 4.126(b). Under the General Rating Formula, a 70 percent disability rating is warranted when there is 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. 38 C.F.R. § 4.130, DC 9411. A 100 percent disability rating is warranted when there is 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; and memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the veteran’s symptoms, but it must also make findings as to how those symptoms impact the veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Post-service VA treatment records in April 2010 document complaints of increased irritability and that the Veteran distanced himself from people. He was experiencing a resurgence of nightmares, and he was avoiding more and isolating from his family. He was well dressed, cooperative, making eye contact, his affect was tightly constricted, his mood was more irritable and dysphoric, his speech was goal-directed and relevant, and his thought process was logical and coherent. He was oriented four times, and he denied thoughts of death or suicide. A May 2011 VA examination report reflects that the Veteran was married but had a poor relationship with his adult children. He had no friends, and did not engage in any activities and leisure pursuits. He denied suicide attempts, but stated that he experienced occasional passive suicidal ideation and engaged in a lot of violence with homicidal ideation. He denied any current suicidal or homicidal ideation. He related better to “military people,” and he did not like crowds. He was clean, neatly groomed, and casually dressed; his speech was unremarkable; he was cooperative and relaxed; and his mood ranged from angered to appropriated. His attention was intact, he was oriented, his thought process and content were unremarkable, and his memory was normal. His impulse control was good because the Veteran avoided interacting with others in an effort to avoid conflict. He experienced difficulty falling and staying asleep, irritability or outbursts of anger, markedly diminished interest or participation in significant activities, detachment or estrangement from others, and recurrent distressing dreams. In addition, he had persistent auditory and visual hallucinations. In December 2011, the Veteran reported that his attitude was worsening; and he experienced a lack of interest in things, poor concentration, low self-esteem, and loss of focus. He could not relate or converse with people and would rather be alone, and he could not stand being in a crowd. He lacked interest in everything, he had no motivation, he had flashbacks, and his nightmares were increasing. He reported he saw shadows during the day, and that his depression and anxiety were worse. A VA examination report in December 2011 reflects that the Veteran was married and with two adult children. He reported that he attacked and strangled a young woman three months ago, but she did not press charges. He reported that he had become actively homicidal within the last 60 days and deliberately remained away from people to avoid confrontation. He stated that his triggers were raised voices and shouting, so he kept to himself. He had markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, restricted range of affect, difficulty falling or staying asleep, irritability or outbursts of anger, hypervigilance, exaggerated startle response, depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, flattened affect, impaired judgment, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and impaired impulse control. He experienced social interactive frustration, problems with authority, and aggression. VA treatment records in August 2012 document that he was getting angry “for little things,” he was losing his patience more often, and he had nightmares and could not go back to sleep afterwards. He stated that two weeks ago he tried to choke a friend of his daughter and threw her on the sofa after she tried to intervene in a fight he was having with his wife. He stated that he stayed away from people just to avoid bad situations where he would react poorly. In October 2013, the Veteran reported that he woke up in the middle of the night angry, and that he did not take his medication every day because he had trouble remembering to take it. As previously noted, the Veteran has a 70 percent initial disability rating. For the following reasons, a disability rating of 100 percent for PTSD is warranted for the entirety of the appeal. The evidence shows that the Veteran was actively homicidal and he isolated and avoided people to prevent confrontation. He had persistent visual hallucinations and saw shadows, anxiety, panic attacks that occurred weekly or less often, flashbacks, and nightmares. He experienced irritability or outbursts of anger, suicidal ideations, and attacked someone in September 2011 and August 2012. He had difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and markedly diminished interest in activities. While the evidence documents that he was married, he had a poor relationship with his children and no friends. He also experienced exaggerated startle responses, depressed mood, suspiciousness, chronic sleep impairment, flattened affect, impaired judgment, and disturbances of mood. In addition, in October 2013, he reported that he was experiencing memory problems. Thus, the evidence reflects that, for the entirety of the appeal period, the Veteran exhibited symptoms of such type, severity, and frequency as to more closely approximate a disability rating of 100 percent for his service-connected PTSD. The above determinations are based on consideration of the applicable provisions of VA’s rating schedule. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to this claim. See Doucette, 28 Vet. App. at 369-70. 3. Entitlement to SMC pursuant to 38 U.S.C. § 1114 (s) from April 29, 2010, to December 21, 2011. Pursuant to 38 U.S.C. § 1114 (s), when a Veteran has a service connected disability rated as total and has additional service connected disability independently ratable at 60 percent or more, he is entitled to SMC. 38 U.S.C. § 1114 (s)(1). In the decision above, the Board has granted an initial 100 percent rating for PTSD from April 29, 2010. The evidence reflects that from April 29, 2010, to December 21, 2011, the Veteran’s service-connected lumbar spine disability, radiculopathy of the bilateral lower extremities, tinnitus, and bilateral hearing loss are independently ratable at 60 percent or more. However, from December 22, 2011, the Veteran’s service-connected disabilities other than PTSD are independently ratable at 30 percent. As the Veteran meets the statutory criteria from April 29, 2010, to December 21, 2011, entitlement to SMC under 38 U.S.C. § 1114(s) is warranted during those dates. The Board notes that the April 2015 rating decision granting a total disability rating based on individual unemployability (TDIU) was based primarily on the Veteran’s PTSD, and there is no evidence that any other disability could be the basis for a TDIU. Consequently, the holdings of Buie v. Shinseki, 24 Vet. App. 242 (2010) and Bradley v. Peake, 22 Vet. App. 280 (2008), providing for determining SMC under 38 U.S.C. § 1114(s) by combining disabilities in a manner most helpful to establishing entitlement to this benefit, are not for application. REASONS FOR REMAND 1. Entitlement to service connection for IBS is remanded. The Veteran contends that he has IBS that is related to service, to include his service in Southwest Asia. Service connection is warranted for Persian Gulf veterans such as the Veteran who are diagnosed medically unexplained chronic multisymptom illnesses including functional gastrointestinal disorders such as IBS. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. A May 2011 VA examination report documents that the Veteran started having stomach pain around 1983 and was hospitalized. He had an esophagogastroduodenoscopy (EGD) and was diagnosed with ulcers and treated with oral medications for gastritis and ulcer disease. He had multiple EGDs over the years and continued to be treated for gastritis and ulcers. He reported that his bowel symptoms started in the 1990s after he returned from Saudi Arabia. He had diarrhea as two stools per day, both formed stool and liquid, and while he did not have incontinence he experienced urgency. He had his first colonoscopy in 2006 secondary to a bloody stool, which was normal. He also described abdominal pain associated with his bowel movements, which was different from his pain associated with his gastritis. The VA examiner noted that most of his gastrointestinal treatment had been centered around his gastritis and ulcer, and found that the Veteran had no history of or signs or symptoms of IBS. The Board finds the May 2011 VA examination inadequate and internally inconsistent. The Veteran described having diarrhea twice a day, both normal and loose consistency, and associated abdominal pain and urgency with his bowel movement. He stated that he only started to experience bowel problems after serving in Southwest Asia, and that prior to that he only experienced gastrointestinal problems associated with his ulcers and gastritis. The VA examiner did not address these statements in the opinion. As such, a remand is required for a VA opinion to address the nature and etiology of the Veteran’s gastrointestinal disorder. See Barr v. Nicholson, 21 Vet. App. 30 (2007) (holding that once VA undertakes the effort to provide an examination or obtain medical opinion, it must ensure that one is provided or obtained that is adequate for the determination being made). The matter is REMANDED for the following action: 1. Request an opinion from an appropriate physician to address the nature and etiology of the Veteran’s IBS. The entire claims file, including a copy of this remand, must be provided to and reviewed by the physician. The VA physician should indicate whether the Veteran’s symptoms warrant a diagnosis of a functional gastrointestinal disorder to include IBS. If not, the physician should indicate whether the disability is it is at least as likely as not (50 percent probability or more) that the disability is related service, to include service in Southwest Asia. The physician must provide a detailed rationale for any opinion expressed, citing to the relevant facts in the claims file as well as any relevant medical literature. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel