Citation Nr: 21062200 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 19-05 839A DATE: October 6, 2021 ORDER New and material evidence having not been received, the petition to reopen the claim of service connection for a traumatic brain injury (TBI) is denied. Service connection for tension headaches is granted. Service connection for a respiratory disorder is denied. A total rating for posttraumatic stress disorder (PTSD) with other specified depressive disorder is granted. An effective date of February 28, 2017 for the award of the total rating for PTSD is granted. REMANDED A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a December 2015 rating decision, a VA regional office (RO) denied service connection for a TBI. Although notified of the denial in a December 2015 letter, the Veteran did not initiate an appeal or submit new and material evidence within one year. 2. Evidence associated with the file since December 2015, when considered by itself or in connection with evidence previously assembled, does not relate to unestablished facts necessary to substantiate the claims of entitlement to service connection for a TBI. 3. The Veteran's tension headache disorder is proximately due to his service-connected PTSD. 4. The preponderance of the evidence of record is against finding that the Veteran has had a diagnosis of a respiratory disorder at any time during or approximate to the pendency of the claim. 5. Throughout the entire period on appeal, the severity, frequency, and duration of the Veteran's symptoms more closely approximated to total occupational and social impairment. 6. VA treatment records since February 2017 document the Veteran's complaint of a worsening of his PTSD symptoms. CONCLUSIONS OF LAW 1. The December 2015 rating decision denying service connection for TBI is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104 (a), 20.302 (a), 20.1103. 2. As pertinent evidence was not received since the December 2015 denial that is new and material, the criteria for reopening the claim of service connection for TBI is not met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156. 3. The criteria for service connection for tension headaches have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for a respiratory disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for a total rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 6. The criteria for an effective date of February 28, 2017 for the award of the total rating for PTSD have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2010 to May 2011 and from March to December 2013. Effective February 28, 2017, the Veteran is in receipt of a 100 percent combined schedular rating. These matters come before the Board of Veterans' Appeals (Board) on appeal from April and July 2018 rating decisions issued by the Department of Veterans Affairs Regional Office (RO). New and Material Evidence Generally, a claim that has been denied in an un-appealed Board decision or an un-appealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 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 which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). 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 determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what new and material evidence is, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996); see also Hodge, 155 F.3d at 1363 (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant the claim). 1. Whether new and material evidence has been received to reopen the claim of service connection for a TBI. In a December 2015 rating decision, the RO denied the Veteran's claim of service connection for TBI because the medical evidence did not show that this disability or any related residuals had been clinically diagnosed. Although notified of this decision, the Veteran did not initiate an appeal or submit new and material evidence within one year of the rating decision. The denial is final as to the evidence then of record and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105 (b); see also 38 C.F.R. §§ 3.104, 3.156 (a), 20.302, 20.1103. In February 2018, the Veteran petitioned to reopen the claim. In the April 2018 rating decision, the RO denied the claim. The Veteran filed a timely notice of disagreement, and perfected the appeal following the January 2019 statement of the case. Evidence submitted since the final December 2015 rating decision consists of VA treatment records and examination reports, and the Veteran's statements. Based on the above, new and material evidence has not been received to reopen the claim of service connection for a TBI. VA treatment records and a March 2018 VA examination report does not suggest the Veteran has a diagnosis of TBI or any residuals associated with a possible TBI. By itself or when considered with the evidence previously of record, none of the recently submitted evidence relates to an unestablished fact necessary to substantiate the claim of service connection for a TBI, and do not raise a reasonable possibility of substantiating the claim. Therefore, new and material evidence has not been received to reopen the claim of service connection for a TBI. The requirements to reopen the claim have not been met, and the appeal must be denied. As new and material evidence to reopen the previously denied claim has not been received, the benefit-of-the-doubt doctrine is inapplicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. 2. Service connection for tension headaches The Veteran contends his tension headaches are a continuation of the headaches he experienced during service. In the alternative, the Veteran contends his headaches are due to his service-connected disabilities. A December 2015 VA examination report shows the Veteran has a current diagnosis of a tension headache disorder, and the VA examiner opined that these headaches were most likely due poor sleep and his mental health conditions. Additionally, a June 2018 VA medical opinion notes the Veteran's tension headaches are as likely as not aggravated by his insomnia. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a tension headache disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Service connection for a respiratory disorder The Veteran contends he has a respiratory disorder related to environmental exposures during service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a respiratory related disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Despite treatment from January 2015 to September 2019, VA treatment records do not contain a diagnosis of a respiratory related disorder or symptoms related to a respiratory disorder. VA treatment records reflect the Veteran reported consistently not having a history of asthma, allergies or any other respiratory related disorders or symptoms. While the Veteran believes he has a current diagnosis of respiratory related disorder, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Increased Rating Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider entitlement to "staged" ratings to compensate for times since filing the claim (or even during the year prior) when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). "Pyramiding," that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes through the senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 4. Increased rating for PTSD The Veteran contends his service-connected PTSD is worse than what is contemplated by his current 70 percent rating. The Veteran filed his claim for increased rating on February 28, 2018. Under the General Rating Formula for Mental Disorders, a 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for 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; or memory loss for names of close relatives, own occupation or own name. The U.S. Court of Appeals for the Federal Circuit has noted the "symptom-driven nature" of the General Rating Formula and that "a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. The psychiatric symptoms listed in the above rating criteria are not exclusive but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, if the evidence shows that a veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. VA treatment records from December 2016 note the Veteran reported having regular suicidal ideations and attempted to commit suicide on a few occasions. A May 2017 VA treatment record notes the Veteran experienced suicidal ideations and had past suicide attempts. In January 2018 VA treatment records note the Veteran went to the hospital and reported experiencing thoughts of suicide for a month and that he was "feeling suicidal all day." The Veteran reported that he was homeless and lacked family support. It was noted that the Veteran had previously attempted to commit suicide by prescription pill overdose and currently thought about hanging himself in his hotel room. The Veteran also reported recent auditory and visual hallucinations. At a March 2018 PTSD VA examination, the examiner opined that the Veteran's PTSD manifested with occupational and social impairment with deficiencies in most areas. The Veteran reported he either lived in the woods or travelled throughout the western United States. He reported that he was never married, was not currently dating, and only had one friend at his residential rehabilitation treatment program. It was also noted that the Veteran was not working, and he quit his previous job due to anger issues. The examiner noted symptoms attributable to the Veteran's PTSD included a depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting and suicidal ideation. During the period on appeal, the Veteran's PTSD has been shown to be characterized by total social and occupational impairment. He has had persistent thoughts of suicide coupled with two suicide attempts which caused him to be admitted to a psychiatric facility for inpatient treatment. The Veteran has also reported having auditory and visual hallucinations. Based on the evidence and the severity of the symptoms that were noted by treating physicians, VA examination reports, and the Veteran the Board will resolve reasonable doubt in the Veteran's favor and find that a 100 percent rating is warranted under Diagnostic Code 9411 for the entire period on appeal beginning February 28, 2017. Effective Date Unless otherwise specified, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase is to be fixed in accordance with the facts found but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110 (a), (b); 38 C.F.R. § 3.400. The effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. However, if the claim is received within one year of separation from service, the effective date will be the day following the date of separation from service. 38 C.F.R. § 3.400 (b)(2). The law provides that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred if application is received within one year from such date. 38 U.S.C. § 5110 (b). 5. Effective date for the award for PTSD The Veteran contends that an effective date prior to February 28, 2018, is warranted for the increased rating for his PTSD. The Veteran filed his claim for increased rating for his service-connected PTSD on February 28, 2018. In the April 2018 rating decision, the RO granted a 70 percent rating effective the date of claim. The Veteran's increased rating of 70 percent was assigned as of the date that the Veteran's increased rating claim was received on February 28, 2018. An earlier effective date for this disability is therefore only available if there is a date that is ascertainable during the year preceding the receipt of the Veteran's increased rating claim by which time an increase in the Veteran's disability can be shown to have occurred. Therefore, the Board has turned its attention to the evidence generated or received during the year preceding February 28, 2018. As noted above, beginning as early as December 2016, the Veteran's reported a worsening of PTSD symptoms and treatment records note the Veteran's reports of regular suicidal ideations and attempts. Thus, the earliest date as of which it is ascertainable that an increase in disability had occurred is February 28, 2017. Therefore, an effective date of February 28, 2017, for the award of a total rating for service-connected PTSD is warranted. REASONS FOR REMAND TDIU is remanded. The matter is REMANDED for the following action: 1. BACKGROUND FOR THE ADJUDICATOR: As a result of this action, the Veteran is in receipt of a 100 percent schedular disability rating for his service-connected PTSD for the entire period on appeal. Assignment of a total schedular rating does not automatically render a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) by having an "additional" disability of 60 percent or more ("housebound" rate)). As the Board has granted service connection for tension headaches a remand of the issue of TDIU is required to allow the RO to assign a schedular rating for the Veteran's tension headaches and readjudicate the issue of TDIU. 2. Implement the Board's decision to grant service connection for the Veteran's tension headaches and assign an appropriate rating. 3. After completing the requested actions, and any additional actions deemed warranted, readjudicate the claim of TDIU. If the benefits sought on appeal remain denied, the Veteran must be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDuffie, 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.