Citation Nr: 1824364 Decision Date: 04/23/18 Archive Date: 05/03/18 DOCKET NO. 14-19 792A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for peripheral neuropathy of the left upper extremity and, if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen a claim of service connection for peripheral neuropathy of the right upper extremity and, if so, whether service connection is warranted. 3. Entitlement to a rating in excess of 10 percent for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Breitbach, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from March 1968 to March 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a May 2014 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran's service-connected posttraumatic stress disorder (PTSD) from 50 percent to 70 percent, effective August 25, 2011, the date of the Veteran's claim for increase. Prior to the May 2014 rating decision, the Veteran indicated in his January 2014 conference before a decision review officer that he was limiting his appeal to a 70% rating for PTSD. In addition, the Veteran's representative stated in the March 2018 Informal Hearing Presentation that the appeal for PTSD has been satisfied in full. Thus, the claim for an increased rating for PTSD is not before the Board as the Veteran has unequivocally expressed that the appeal has been satisfied in full. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The May 2014 statement of the case addressed a claim for an increased rating for type II diabetes mellitus. This issue is not before the Board as the Veteran specifically appealed only the bilateral upper extremity and hypertension claims in his VA Form 9, Substantive Appeal. In his June 2014 VA Form 9, Substantive Appeal, the Veteran requested a hearing before the Board via videoconference, but in August 2017, the Veteran asked VA to continue the appeal without holding a hearing. His hearing request is thus considered withdrawn. FINDINGS OF FACT 1. A July 2010 rating decision denied claims for service connection for peripheral neuropathy of the bilateral upper extremities; the Veteran did not appeal the decision and VA was not in actual or constructive receipt of new and material evidence within the one-year appeal period. 2. Evidence received since the July 2010 rating decision is essentially cumulative, does not relate to the bases for the prior denial, and does not raise a reasonable possibility of substantiating the claims of service connection for peripheral neuropathy of the bilateral upper extremities. 3. The Veteran does not have a history of diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. CONCLUSIONS OF LAW 1. The July 2010 rating decision denying service connection for peripheral neuropathy of the bilateral upper extremities is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. Evidence received since the July 2010 rating decision is not new and material, and the criteria for reopening of the claim for entitlement to service connection for peripheral neuropathy of the bilateral upper extremities have therefore not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for a rating in excess of 10 percent for hypertension are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7101 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the Veteran fails to raise them before the Board"). In the March 2018 Informal Hearing Presentation, the Veteran's representative stated that the Veteran last underwent a VA examination to evaluate his peripheral neuropathy of the bilateral upper extremities in 2014, so the Veteran should be afforded a new VA examination to determine if the condition is related to service. For a petition to reopen, the duty to assist by arranging for a VA examination or obtaining a medical opinion does not attach until a previously denied claim is reopened. 38 C.F.R. § 3.159(c)(4)(iii). As the decision herein finds that reopening of the claim is not warranted, VA does not have a duty to provide the Veteran with an examination. The Veteran's representative has not raised any other issues with the duty to assist. Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Criteria and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. New and Material Evidence The claims for service connection for peripheral neuropathy of the bilateral upper extremities were most recently denied in a July 2010 rating decision based on a finding that the Veteran did not submit new and material evidence showing the conditions occurred in or were caused by service. The Veteran did not initiate an appeal of this decision, nor did VA actually or constructively receive any new and material evidence within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.156(b), 20.302, 20.1103. The Veteran's petitions currently before the Board to reopen his claims for peripheral neuropathy of the bilateral upper extremities were received by the RO in August 2011. The RO denied the claims in a November 2011 rating decision based on there being no new and material evidence. Regardless of the RO's determination as to whether new and material evidence has been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claim and to adjudicate the claim de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA 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 is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118 (2010). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512 (1992). Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. The Board finds the Veteran has not submitted new and material evidence since the July 2010 rating decision denying service connection for peripheral neuropathy of the bilateral upper extremities. Relevant evidence since the July 2010 rating decision includes a September 2012 statement from the Veteran's spouse where she stated the Veteran has neuropathy in his hands, arms, and fingers. Additional relevant evidence includes the July 2013 VA examination that the Veteran underwent to evaluate his diabetes mellitus and peripheral neuropathy. The Veteran reported at the examination that he experiences mild intermittent pain bilaterally, mild paresthesias bilaterally, and mild numbness bilaterally. The Veteran had normal strength throughout the upper extremities and normal reflexes. Light touch and position sense testing were both normal in the upper extremities. In March 2014, the RO requested clarification from the VA examiner because the examiner noted how the Veteran had symptoms of mild intermittent pain, numbness, and paresthesias in the bilateral upper extremities but the sensory and motor examinations were normal. The VA examiner stated he did not diagnose the Veteran with bilateral upper extremity peripheral neuropathy because there was no objective evidence to support a diagnosis of peripheral neuropathy of the bilateral upper extremities. The Veteran's spouse's September 2012 statement and the Veteran's statements at the July 2013 VA examination do not relate to an unestablished fact necessary to substantiate the merits of the claims. The Veteran reported at an August 2002 VA examination that he had tingling in his fingers. The Veteran's spouse stated in November 2007 that the Veteran was prescribed Indomethacin in part to treat nerve pain in his hands. The Veteran's spouse also stated in April 2010 and May 2010 that the Veteran experiences numbness and pain in his fingers and toes. Therefore, the Veteran's and the Veteran's spouse's statements regarding the Veteran having tingling, numbness, and pain in the upper extremities are not new and material as the evidence previously indicated the Veteran had those symptoms. Furthermore, the July 2013 VA examination and March 2014 addendum opinion are not material as the VA examiner found the Veteran does not have peripheral neuropathy of the bilateral upper extremities. To prove service connection there must be competent, credible evidence of a current disability. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Therefore, as the July 2013 VA examination and March 2014 addendum show no evidence of current peripheral neuropathy of the bilateral upper extremities, the evidence is not material as the evidence could not reasonably substantiate the Veteran's claims were they to be reopened. There is no new and material evidence, such as a medical opinion linking his reported numbness, tingling, and pain in the upper extremities to his service, which would either relate to the basis for the prior denial or that could reasonably substantiate the claim were the claims to be reopened. The evidence received since the July 2010 rating decision is essentially cumulative of the evidence of record at the time of the July 2010 rating decision. Thus, the evidence, by itself or when considered in conjunction with the evidence previously of record is not new and material. Therefore, reopening of the claims for service connection for peripheral neuropathy of the bilateral upper extremities is not warranted. The benefit-of-the-doubt doctrine is not applicable to applications to reopen a claim unless the threshold burden of submitting new and material evidence has been met. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Increased Rating Claim Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has 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). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (finding that a Veteran is competent to report on that of which he has personal knowledge). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). 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 Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Veteran and his representative generally contend he is entitled to a rating in excess of 10 percent for his service-connected hypertension. See Informal Hearing Presenation, March 2018, page 2. The Veteran is currently rated at 10 percent for hypertension under Diagnostic Code 7101. Under Diagnostic Code 7101, a 10 percent rating is warranted for hypertension if the diastolic pressure is predominantly 100 or more, or systolic pressure is predominantly 160 or more; or minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101. A 20 percent disability rating is warranted when the diastolic pressure is predominantly 110 or more, or the systolic pressure is predominantly 200 or more. Id. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more, with moderately severe symptoms. Id. A 60 percent rating is warranted where diastolic pressure is 130 or more with severe symptoms. Id. Note 1 provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For the purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. Note 2 provides that VA is to evaluate hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, as part of the condition causing it rather than by a separate evaluation. The Board finds that the Veteran's hypertension most nearly approximates the criteria associated with the currently assigned 10 percent rating. The Veteran's blood pressure readings have not predominantly been 110 or more for diastolic pressure or 200 or more for systolic pressure. In fact, an in-depth review of the record illustrates that the Veteran has not had a blood pressure reading at or above the threshold for a 20 percent rating during the appeal period. Blood pressure readings at VA examinations in July 2013 and September 2014 showed diastolic and systolic readings below the levels contemplated by a 20 percent rating. At the July 2013 examination, the Veteran's blood pressure was 122/84, 122/84, and 120/84. At the September 2014 VA examination specifically to evaluate the Veteran's hypertension, the Veteran's blood pressure was 138/86, 132/88, and 134/88. In addition, a review of blood pressure readings in VA treatment records illustrates the Veteran's blood pressure has been below the diastolic pressure and systolic pressure required for a 20 percent rating through the entirety of the appeal period. To illustrate this throughout the appeal period, the Veteran's blood pressure in December 2010 was 115/79, in November 2011 it was 126/84, in September 2012 it was 123/81, and in October 2013 it was 142/90. The previous readings are just samples of readings at different dates during the appeal period, but as is stated above, a detailed review of the record illustrates the Veteran has no readings at the thresholds required for a 20 percent rating. The Board notes the Veteran takes Lisinopril to control his blood pressure and has also taken Hydrochlorothiazide during the appeal period. Cf. Jones v. Shinseki, 26 Vet. App. 56, 61 (2012) (finding that the plain language of Diagnostic Code 7101 contemplates the effects of hypertensive medication). The September 2014 VA examiner noted the functional impact of the Veteran's hypertension is that prior to the Veteran retiring from his job as a hair dresser, he had increasing difficulty with work due to dizziness when his blood pressure was high. However, given that the medical and lay evidence does not show that the Veteran's hypertension fails to respond well to medication and all blood pressure readings are below the thresholds for a 20 percent rating, it is clear that the Veteran's hypertension most nearly approximates the criteria associated with the current 10 percent rating under Diagnostic Code 7101. Regarding whether referral for an extraschedular rating is appropriate, such has not been raised by the claimant or reasonably raised by the record and will not be further discussed herein. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). In sum, the criteria for a rating in excess of 10 percent for hypertension have not been met during the pendency of the appeal. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER The application to reopen a previously denied claim of entitlement to service connection for peripheral neuropathy of the left upper extremity is denied. The application to reopen a previously denied claim of entitlement to service connection for peripheral neuropathy of the right upper extremity is denied. Entitlement to a rating in excess of 10 percent for hypertension is denied. ______________________________________________ M. Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs