Citation Nr: 21003651 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-35 644A DATE: January 22, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for hypertension is reopened. New and material evidence having been received, the claim of entitlement to service connection for a skin disability is reopened. Entitlement to a total disability rating based on individual unemployability (TDIU) effective from September 15, 2017, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for hypertension, to include as secondary to exposure to herbicide agents and coronary artery disease, is remanded. Entitlement to service connection for a skin disability, to include as secondary to exposure to herbicide agents, is remanded. Entitlement to service connection for a respiratory disability other than allergic rhinitis – to include sinusitis, chronic obstructive pulmonary disease (COPD), and emphysema; and as secondary to exposure to herbicide agents – is remanded. Entitlement to increased disability ratings for coronary artery disease – rated as 10 percent disabling prior ot January 14, 2014; 30 percent disabling from January 14, 2014, to September 14, 2017; and 60 percent disabling from September 15, 2017 – is remanded. Entitlement to initial increased ratings for degenerative arthritis of the right shoulder – rated as 10 percent disabling prior to September 15, 2017, and 20 percent disabling since September 15, 2017 – is remanded. Entitlement to TDIU prior to September 15, 2017, is remanded. REFERRED The issues of whether new and material evidence has been submitted to reopen claims of service connection for a low back disability and posttraumatic stress disorder (PTSD) and service connection for a sleep disorder were raised in November 2016 and August 2016 statements and are referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. FINDINGS OF FACT 1. In an October 2009 rating decision, a Department of Veterans Affairs (VA) regional office (RO) denied a claim of entitlement to service connection for hypertension on the basis that there was no medical nexus evidence relating hypertension to active service. The Veteran was notified of that decision but did not appeal that decision. 2. The VA treatment records pertaining to disabilities other than hypertension, which were received in the one-year period after notice of the October 2009 rating decision, when considered by itself or in connection with evidence previously assembled, does not relate to unestablished facts necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim of service connection for hypertension. 3. The medical treatise information cited by the representative in a January 2021 written argument when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of service connection for hypertension. 4. In an August 2012 rating decision, a VA RO denied a claim of entitlement to service connection for a skin disability on the basis that there was no current disability. The Veteran was notified of that decision but did not appeal that decision. No evidence was received within the one-year appeal period. 5. The VA and private treatment records showing a current skin disability when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of service connection for a skin disability. 6. Since September 15, 2017, the Veteran has been service-connected for coronary artery disease, degenerative arthritis of the right shoulder, bursitis of the left shoulder, and a residual cardiac surgical scar. 7. Since September 15, 2017, the Veteran’s service-connected disabilities have been rated 70 percent disabling with the coronary artery disease being rated 60 percent disabling. 8. The weight of evidence shows that Veteran’s service-connected disabilities have rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience since September 15, 2017. CONCLUSIONS OF LAW 1. The October 2009 rating decision, which denied the Veteran’s claim of entitlement to service connection for hypertension, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.201, 20.302, 20.1103 (2020); 38 C.F.R. § 3.156 (2009). 2. The evidence received since the October 2009 rating decision is new and material, and the claim of entitlement to service connection for hypertension is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 3. The August 2012 rating decision, which denied the Veteran’s claim of entitlement to service connection for a skin disability, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.201, 20.302, 20.1103 (2020); 38 C.F.R. § 3.156 (2012). 4. The evidence received since the August 2012 rating decision is new and material, and the claim of entitlement to service connection for a skin disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 5. The criteria for TDIU since September 15, 2017, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19, 4.25, 4.26 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to July 1968, with service in the Republic of Vietnam, and from October 1968 to August 1985. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of a VA RO. In August 2017, the Veteran and his spouse testified at a hearing held at a VA RO before a decision review officer and a transcript of that hearing has been associated with the electronic claims file. In March 2019, the Veteran testified at a Travel Board hearing held at the RO before the undersigned Veterans Law Judge. The Board was not able to produce a transcript of that hearing because of audio malfunctioning during the testimony. In an October 2020 correspondence, the Board afforded the Veteran another opportunity for a hearing. The Board informed him that if he does not respond within 30 days, the Board will assume that he does not want another hearing. The Veteran did not respond. Thus, no further development with regard to another hearing is necessary. In the July 2015 rating decision, the RO denied service connection for a breathing condition and allergic rhinitis. In December 2015, the Veteran indicated that he was appealing the denials of service connection claims related to Agent Orange. The RO interpreted that notice of disagreement (NOD) as a NOD on the issue of service connection for a breathing condition but not a NOD on the issue of service connection for allergic rhinitis. VA treatment records shows that chest X-rays takin in February 2002 showed COPD and mild emphysematous changes and that in May 2010 sinusitis was diagnosed. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the claim on appeal includes all respiratory disorders except allergic rhinitis. At the decision review officer hearing, the Veteran raised a new theory of entitlement for his respiratory disability – as secondary to asbestos and dust exposure. August 2017 hearing transcript, page 18. As noted in the findings of facts and conclusions of law, the Board is reopening the issue of entitlement to service connection for hypertension. At the decision review officer hearing, the Veteran raised a new theory of entitlement for hypertension – as secondary to coronary artery disease. Id. at page 17. In a May 2016 statement of case, the RO included whether new and material evidence has been submitted to reopen a claim of service connection for a skin disability as an issue on appeal. That issue was adjudicated in the July 2015 rating decision. The RO accepted a July 2016 statement as a broad substantive appeal addressing all issues in the May 2016 statement of the case. The RO, however, did not list the new-and-material issue regarding the skin disability as an issue in a September 2017 supplemental statement of the case. In light of the above, the Board is taking jurisdiction of that issue. On January 14, 2014, the RO received the Veteran’s claim for an increased rating for coronary artery disease. In the July 2015 rating decision, a RO assigned a 30 percent disability rating for coronary artery disease effective January 14, 2014. Prior to January 14, 2014, the heart disease was rated as 10 percent disabling. Pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board must consider 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. As such, the Board will consider his increased rating claim from January 14, 2013 (one year prior to date of claim) to the present. In a September 2017 rating decision, a RO assigned a 60 percent disability rating for coronary artery disease effective September 15, 2017, and a 20 percent disability rating for the right shoulder disability also effective September 15, 2017. As these disability ratings are not the maximum ratings available for coronary artery disease and the right shoulder disability, the claims remain in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). As discussed below, the Board is granting TDIU effective from September 15, 2017, the period that the Veteran was eligible for consideration under 38 C.F.R. § 4.16(a). The issue of entitlement to TDIU prior to September 15, 2017, remains pending and is being remanded. VA’s duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375 (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.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). New and Material Evidence 1. Whether new and material evidence has been submitted to reopen a claim of service connection for hypertension 2. Whether new and material evidence has been submitted to reopen a claim of service connection for a skin disability Governing law and regulations Under 38 C.F.R. § 3.156 (b), “new and material” evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. If VA receives new evidence within the appeal period of a RO decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). Under the law in effect at the time of the October 2009 rating decision, new evidence means existing evidence not previously submitted to VA. 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 and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2009). Analysis In an October 2009 rating decision, a VA RO denied a claim of entitlement to service connection for hypertension on the basis that there was no medical nexus evidence relating hypertension to active service. The Veteran was notified of that decision but did not appeal that decision. Within the one-year appeal period, a RO received VA treatment records. The VA treatment records do not pertain to any treatment of hypertension. Thus, the evidence received within the one-year appeal period, when considered by itself or in connection with evidence previously assembled, did not relate to unestablished facts necessary to substantiate the claim, and did not raise a reasonable possibility of substantiating the claim of service connection for hypertension. In short, the October 2009 rating decision is final as to the denial of service connection for hypertension. As noted above in the findings of fact and conclusions of law, the Board is reopening the claim of entitlement to service connection for hypertension. Similarly, as noted above in the findings of facts and conclusions of law, the Board is reopening the claim of entitlement to service connection for a skin disability. Increased Rating 3. Entitlement to TDIU since September 15, 2017 Governing law and regulations TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation without regard to advancing age as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For a veteran to prevail on a claim for TDIU, the record must reflect some factor, which takes this case outside the norm. The simple fact that a claimant is currently unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993) (A high rating is recognition that the impairment makes it difficult to obtain or keep employment.). Analysis Since September 15, 2017, the Veteran has been service-connected for coronary artery disease, degenerative arthritis of the right shoulder, bursitis of the left shoulder, and a residual cardiac surgical scar. Since September 15, 2017, the Veteran’s service-connected disabilities have been rated 70 percent disabling with the coronary artery disease being rated 60 percent disabling. This rating makes him eligible for consideration under 38 C.F.R. § 4.16(a) since September 15, 2017. In his June 2019 formal TDIU claim, the Veteran noted that his disabilities affected his ability to work full time in February 2001 that he last worked full time in June 1985, and that he became too disabled to work in February 2001. He stated the he last worked as a minister. He reported that he had four years of college and a three-year Master of Divinity degree. He reported that he had no additional education or training since he became too disabled to work. Though the Veteran reported in June 2019 formal TDIU claim that he had approximately $41,000 in earned income in 2017 and in the past 12 months, it appears that the Veteran is reporting income from his military pension and Social Security benefits because he reported the exact same amount of income for both periods. Moreover, while the Veteran reported that his occupation was a minister, he noted in his formal TDIU claim that he had been a volunteer minister from 1993 to 2018. He reported that his last employer was a school system where he worked as substitute teacher from 1994 to 1999. At his September 2017 VA examinations, he reported that he was retired. Thus, the weight of evidence shows that the Veteran has been unemployed since September 15, 2017. A September 2017 VA shoulder examination report reveals that the Veteran is unable to lift more than 15 pounds without it causing pain and fatigue in the right shoulder. The examiner noted that he does not apply weight to the right hand because that would cause pain. A September 2017 VA heart examination report reflects that the Veteran is unable to complete physical activity greater than two to three minutes before that activity causes angina and shortness of breath. Given the limitations caused by the right shoulder disability and coronary artery disease, the weight of evidence shows that Veteran’s service-connected disabilities have rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience since September 15, 2017. Accordingly, entitlement to TDIU since September 15, 2017, is in order. REASONS FOR REMAND The Veteran’s service treatment records show that he was treated for chest pain, upper respiratory infections, nasal congestion, a chest cold, and sinusitis. The Veteran testified that he was exposed to asbestos and dust in the basement of a hospital. August 2017 hearing transcript, page 18. The Veteran’s primary military occupational specialty was laundry and bath specialist. The Veteran is competent to report exposure to asbestos and dust, and the Board finds him credible. A VA examination is necessary to determine whether any current respiratory disability other than allergic rhinitis is related to active service. The Veteran’s service treatment records reveal that he had elevated blood pressure readings. A VA examination is necessary to determine whether the Veteran’s hypertension is related to his elevated blood pressure readings in service as well as in-service exposure to herbicide agents and the service-connected coronary artery disease. The Veteran’s service treatment records show that he was treated for a rash in 1972. VA treatment records reveal that at an August 2016 Agent Orange registry exam, the Veteran reported that he was treated for cysts while in Vietnam. His service treatment records from his period of service in Vietnam are unavailable. A VA examination is required to determine whether a current skin disability is related to active service. In a March 2014 report of general information, the Veteran reported that he was treated for his respiratory and skin disabilities as a military retiree at Moody Air Force Base from 19991 to 1996. In March 2015, that facility stated that his records were retired in 2000. In April 2015, that facility stated that the records were retired to the Air Force STR Processing Center in San Antonio, Texas. The RO did not contact that facility. The RO should attempt to obtain these records. The Veteran has reported treatment from Drs. Ngalame, Ablordeppe, Batchelor, and Ghai for his cardiac disabilities and treatment from Tallahassee Orthopedic Clinic for his right shoulder disability. The RO should obtain records from these and any additional records from the North Florida/South Georgia Veterans Health System for the period from May 2019 to the present. As for the TDIU claim, the RO has not provided the Veteran notice of the information and evidence needed to substantiate and complete this claim, to include notice of what part of that evidence is to be provided by the Veteran, and notice of what part VA will attempt to obtain. Such notice must be provided. 38 U.S.C. §§ 5103, 5103A (2012). The matters are REMANDED for the following action: 1. The RO should provide the Veteran notice of the information and evidence needed to substantiate and complete his claim for TDIU. 2. Ask the Veteran to identify all treatment for his skin disability, hypertension, coronary artery disability, bilateral shoulder disabilities, respiratory disability, and any other disability related to his TDIU claim, and obtain any identified records. Obtain the Veteran’s VA treatment records from the North Florida/South Georgia Veterans Health System for the period from May 2019 to the present. Ask the Veteran to complete a VA Form 21-4142 for Drs. Ngalame, Ablordeppe, Batchelor, and Ghai, and Tallahassee Orthopedic Clinic. Make two requests for the authorized records from Drs. Ngalame, Ablordeppe, Batchelor, and Ghai, and Tallahassee Orthopedic Clinic, unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran’s military retiree records pertaining to treatment for respiratory and skin disabilities at Moody Air Force Base from 19991 to 1996 from the Air Force STR Processing Center in San Antonio, Texas, or other entity that has such records. Document all requests for information as well as all responses in the claims file. 4. After the development in 1 through 3 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current respiratory disability other than allergic rhinitis. For any current respiratory disability other than allergic rhinitis, the examiner must opine whether it is at least as likely as not that the respiratory disability is related to an in-service injury, event, or disease, including in-service herbicide-agent exposure, in-service exposure to dust and asbestos, and treatment for chest pain, upper respiratory infections, nasal congestion, a chest cold, and sinusitis during service. The examiner should be advised that simply stating that COPD, emphysema, and sinusitis are not presumptive disorders under the regulations is not a medical rationale and that the examiner must give a rationale on whether COPD, emphysema, and sinusitis are related to in-service herbicide-agent exposure. 5. After the development in 1 through 3 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of hypertension. The examiner must opine whether it is at least as likely as not that hypertension is related to an in-service injury, event, or disease, including in-service herbicide-agent exposure and the elevated blood pressure readings in service. The examiner should be advised that simply stating that hypertension is not a presumptive disorder under the regulations is not a medical rationale and that the examiner must give a rationale on whether hypertension is related to any verified in-service herbicide-agent exposure. The examiner must opine on whether it is at least as likely as not that hypertension was (1) caused by or (2) aggravated by coronary artery disease. If the examiner finds that hypertension was aggravated by coronary artery disease, then the examiner should quantify the degree of aggravation. 6. After the development in 1 through 3 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current skin disability. The examiner must opine whether it is at least as likely as not that the skin disability is related to an in-service injury, event, or disease, including in-service herbicide-agent exposure and treatment for a rash and cysts during service. The examiner should be advised that simply stating that an epidermal inclusion cyst or another skin disability is not presumptive disorders under the regulations is not a medical rationale and that the examiner must give a rationale on whether an epidermal inclusion cyst or other skin disability is related to in-service herbicide-agent exposure. 7. After the development in 1 through 3 is completed, the RO should undertake any necessary development on the claims for increased ratings for the right shoulder disability and coronary artery disease and TDIU as warranted by any additional evidence of record. 8. After development above has been completed, the RO should readjudicate the Veteran’s claims with consideration of all evidence of record. If any claim remains denied, the Veteran should be issued a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cherry, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.