Citation Nr: 21064927 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 20-19 576 DATE: October 22, 2021 ORDER New and material evidence not having been submitted, the request to reopen a claim of entitlement to service connection for post-operative pneumothorax, with removal of multiple cysts is denied. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities for the appeal period prior to February 12, 2019 s denied. Entitlement to a TDIU on a schedular basis, during the period from February 12, 2019 to March 4, 2021 is granted. Entitlement to a TDIU from March 4, 2021 is moot. FINDINGS OF FACT 1. In an unappealed rating decision of September 2013, the RO denied the Veteran's petition to reopen his claim of entitlement to service connection for post-operative pneumothorax, with removal of multiple cysts; this claim had been previously denied in a March 1983 rating decision, in a January 2004 and in a June 2007 rating decision. 2. The evidence received since the September 2013 rating decision does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim of service connection for post-operative pneumothorax, with removal of multiple cysts. 3. For the appeal period prior to February 12, 2019, the Veteran's service connected disabilities did not prevent him from obtaining and maintaining gainful employment. 4. For the appeal period from February 12, 2019 to March 4, 2021, the Veteran was unable to secure or follow substantially gainful employment as a result of his service-connected disabilities. 5. For the appeal period beginning on March 4, 2021, the Veteran had a 100 percent combined schedular rating and entitlement to a TDIU is moot. CONCLUSIONS OF LAW 1. The September 2013 rating decision that denied the petition to reopen the Veteran's claim of entitlement to service connection for post-operative pneumothorax, with removal of multiple cysts is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening a claim of entitlement to service connection for post-operative pneumothorax with removal of multiple cysts have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to a TDIU for the appeal period prior to February 12, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 4. The criteria for entitlement to a TDIU for the appeal period from February 12, 2019 to March 4, 2021 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 5. The claim for TDIU is rendered moot by the assignment of a 100 percent schedular rating for the appeal period beginning on March 4, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1973 to January 1976. The Veteran died in April 2021. The appellant is his surviving spouse and has been substituted in this appeal. This matter comes before the Board of Veterans Appeals (Board) on appeal from a December 2018 rating decision issued by the Department of Veterans Affairs Regional Office (RO). New and Material Evidence As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). A rating decision becomes final when it has not been appealed within the prescribed time period and when no additional material evidence was received within a year of the decision; the decision is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In order to reopen a claim, there must be added to the record "new and material evidence." 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 neither be cumulative or 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. The law provides that new and material evidence necessary to reopen previously and finally disallowed claims must be secured or presented since the time that the claims were finally disallowed on any basis, not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 38 C.F.R. § 3.156(a), which defines new and material evidence, requires that evidence raise a reasonable possibility of substantiating the claim in order to be considered "new and material," and defines material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. The Court of Appeals for Veterans Claims (Court) has held that 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 is new and material evidence, 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 Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When all the evidence is assembled, the Secretary is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for post-operative pneumothorax, with removal of multiple cysts, claimed as lung/breathing problems The Veteran initially filed a claim for service connection for a lung condition in November 1981. At that time, the record included the Veteran's service treatment records which showed that he had a four day history of coughing and one episode of blood-tinged sputum in March 1975; decreased breath sounds were noted, but a chest x-ray was reported to be normal. At separation in September 1975, clinical evaluation of the lungs was normal. Also considered were private treatment reports, which indicate that the Veteran was admitted to the hospital in August 1979 for evaluation and treatment of spontaneous pneumothorax on the right; it was noted that he had had a sudden onset of right chest pain with shortness of breath. A chest X-ray revealed a small right pleural effusion and there may also be some pneumonia or atelectasis at the right base; the diagnosis was small pneumothorax on the right. The Veteran subsequently underwent a right thoracotomy with excision of the cyst. In a November 1982 VA examination report, the Veteran complained of sharp pains in his right lung mostly but occasionally in his left; he was not currently receiving any treatment. Examination revealed a well healed anterior thoracotomy scar with a tube scar of the right anterolateral chest. The lungs were mobile and there was no cough or expectoration. Breath sounds and fremitus were normal and there were no rhonchi, rales, friction, rub, dullness, cyanosis, clubbing or shortness of breath noted. The pertinent diagnosis was collapse of the right lung, times two, by history, and postoperative multiple cysts, right lung, by history. In a March 1983 rating decision, the RO denied service connection for a lung condition as the condition was not incurred in or aggravated by service. In March 1983, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection was received until October 2003, when VA received a petition to reopen his claim for entitlement to service connection for a lung condition. Therefore, the March 1983 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of the appeal period stemming from March 1983 rating decision. See also Long v. Wilkie, 33 Vet. App. 167 (2020); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The Veteran sought to reopen his claim of entitlement to service connection for cysts on the right lung. Submitted in support of the claim were private treatment records and a statement from the Veteran's wife. A January 2004 rating decision denied the petition to reopen the claim for service connection for post-operative pneumothorax of the right lung as new and material evidence had not been submitted and that there is no objective evidence of record which establishes a chronic condition incurred in or aggravated by service or that shows continuity of treatment since the date of discharge. In February 2004, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection was received until January 2007, when VA received a petition to reopen his claim for entitlement to service connection for a lung condition. Therefore, the January 2004 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of the appeal period stemming from January 2004 rating decision. See also Long v. Wilkie, supra; Bond v. Shinseki, supra; Roebuck v. Nicholson, supra; Muehl v. West, supra. In a statement in support of claim (VA Form 21-4138), dated in January 2007, the Veteran requested that his claim for service connection for a lung condition be reopened. The Veteran reported that his lungs collapsed twice in 1979; as a result, he was discharged from the National Guard in November 1979. The Veteran indicated that he has recently developed emphysema as a result of the lung condition. Submitted in support of the claim were military personnel records, which included a copy of the Veteran's discharge from the South Carolina Military department Adjutant general noted that he was discharged due to an unspecified physical disability on December 1, 1979. Also submitted in support of the claim were VA progress notes dated from February 2000 to June 2007; these records show that the Veteran received clinical evaluation for complaints of chest pain; he was diagnosed with chronic obstructive pulmonary disease (COPD). Among the record is the report of a chest X-ray dated in July 2006, which showed minimal to moderate pleural thickening and right base infiltrates. There was also minimal to moderate perihilar fibrosis. It was noted that the Veteran reported having smoked one pack of cigarettes per day for 38 years. An October 2006 physical examination report noted an assessment of COPD/emphysema/chronic bronchitis. A June 2007 rating decision denied the petition to reopen by finding that no new and material evidence to connect the Veteran's lung conditions to service was received. In June 2007, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection was received until July 2012, when VA received a petition to reopen his claim for entitlement to service connection for a lung condition. Therefore, the June 2007 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of the appeal period stemming from June 2007 rating decision. See also Long v. Wilkie, supra; Bond v. Shinseki, supra; Roebuck v. Nicholson, supra; Muehl v. West, supra. Moreover, no additional relevant service records (warranting reconsideration of the claim) have been received at any time after the issuance of the June 2007 rating decision. See 38 C.F.R. § 3.156(c). The Veteran sought to reopen his claim of entitlement to service connection for a lung condition (VA Form 21-4138) in July 2012. Submitted in support of the claim were private treatment records, VA treatment records and September 2013 VA examinations. A September 2013 rating decision found that the evidence submitted in connection with the current claim does not constitute new and material evidence because it was previously submitted and considered in the prior rating decision. In September 2013, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection was received until October 2018, when VA received a petition to reopen his claim for entitlement to service connection for a lung condition. Therefore, the September 2013 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of the appeal period stemming from September 2013 rating decision. See also Long v. Wilkie, supra; Bond v. Shinseki, supra; Roebuck v. Nicholson, supra; Muehl v. West, supra. The Veteran's request to reopen his claim for service connection for lung problems (VA Form 21-526b) was received in October 2018. Evidence submitted since the September 2013 rating decision includes VA treatment records and various private treatment records. However, while the additional evidence is new, in that it has not been previously considered by VA; the evidence is not material, in that it does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for post-operative pneumothorax with removal of multiple cysts. In this regard, while the additional evidence of record shows that the Veteran continued to receive clinical attention for residuals of postoperative pneumothorax with removal of multiple cysts as well as COPD with acute bronchitis, none of this evidence suggests a nexus between the Veteran's claimed disability and his service. The additional evidence of record does not indicate that the Veteran's postoperative pneumothorax is related to his active service. The Board acknowledges the Veteran's continued contentions that his postoperative pneumothorax is related to his service. However, the Veteran's contentions are vague and do not adequately explain why he believes his postoperative pneumothorax with removal of multiple cysts is related to his service. Further, though credibility of evidence is assumed when determining whether evidence establishes that claims for service connection should be reopened, competency may not be so assumed. Determining the etiology of a disability such as postoperative pneumothorax with removal of multiple cysts requires specialized medical knowledge or training; lay contentions therefore cannot be seen as competent evidence in this regard, and the Veteran's contentions alone are not sufficient to reopen his claim. Therefore, the Board finds that, though new, the additional evidence received since the prior final denial of service connection is not probative of the issue. Thus, the added evidence is not material. See 38 C.F.R. § 3.156. The Board also notes that additional service records were added to the claims file after the issuance of the initial August 1983 rating decision. Specifically, service personnel records including a Report of Separation and Record of Service as well as a November 1979 notice indicating that the Veteran had been discharged from the Army National Guard and reserve of the Army were received by VA in January 2007. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. The Board notes that the additional service personnel records that had been added to the record since the August 1983 and/or January 2004 rating decisions are not relevant as they do not relate to a claimed in-service event, injury or disease. As such, 38 C.F.R. § 3.156(c) is inapplicable in the instant case and the August 1983 and/or January 2004 rating decisions need not be reconsidered. As such, the Board finds that new and material evidence sufficient to reopen the Veteran's claim of service connection for residuals of postoperative pneumothorax with removal of multiple cysts has not been submitted. Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit-of-the-doubt doctrine does not apply and the petition to reopen a claim of service connection for residuals of postoperative pneumothorax with removal of multiple cysts is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. Entitlement to a TDIU The Veteran essentially contends that he is unemployable as a result of his service-connected disabilities. The Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) was received in October 2018. He reported having a college education and a life insurance agent certification; he had experience working in sales from 1997 to 2003, part of the time as a manager. The Veteran reported that he became too disabled to work in August 2003 and that he noted that he last worked full time on August 1, 2003. Awards of TDIU are governed, in part, by 38 C.F.R. § 4.16(a). Under that regulation, total disability ratings for compensation can be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided that, if there is only one such disability, the disability must be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See also 38 C.F.R. §§ 3.340, 3.341. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. For purposes of determining whether a claimant is entitled to a TDIU, marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist, on facts found basis (including but not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Id. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). In this case, the Veteran has been awarded service connected for: a major depressive disorder with a generalized anxiety disorder; neurocognitive disorder and TBI with vertigo, rated as 70 percent, effective February 12, 2019 and as 100 percent, effective March 4, 2021; migraine headaches, rated as 10 percent effective July 2, 2012 and 50 percent, effective May 20, 2020; a seizure disorder, rated as 20 percent, effective July 2, 2012; and residuals of TBI with vertigo, rated as zero percent, effective July 2, 2012 to May 20, 2020. The Veteran's combined rating has been 20 percent from July 2, 2012, 80 percent from February 12, 2019 and 100 percent from March 4, 2021. Therefore, the Veteran has met the schedular criteria for a TDIU since May 20, 2020. 38 C.F.R. § 4.16(a). The Board notes that it granted an increased rating to 70 percent for major depressive disorder with a generalized anxiety disorder in a September 29, 2021 decision; however, this decision has not yet been implemented by the Agency of Original Jurisdiction (AOJ). For the appeal period prior to February 12, 2019, the Veteran does not meet the schedular criteria for TDIU as he does not have a single service-connected disability rated at 60 percent or more, or more than one service-connected disability as service connection was only in effect for migraine headaches, a seizure disorder and residuals of a TBI during this appeal period. However, the Board will consider whether a TDIU on an extraschedular basis is warranted. Moreover, these service connected disabilities did not result in functional impairments that preclude obtaining and maintaining employment. A June 2017 VA treatment note indicates that the Veteran had chronic daily headaches that responded extremely well to Botox, that he had been migraine free for five months and that he did not have seizures. A November 2018 VA treatment note indicates that the Veteran would like to resume his Botox injections for his migraine headaches. Therefore, a TDIU is not warranted for the appeal period prior to February 12, 2019. For the appeal period from February 12, 2019 to March 4, 2021, the Veteran meets the schedular criteria for TDIU. Moreover, the Board finds that the functional limitations imposed by the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment. In this regard, following a TBI VA examination in May 2020, the examiner reported a diagnosis of TBI. The examiner noted that the Veteran had similar symptoms that overlap with mental health diagnosis that cannot be differentiated without resorting to pure speculation. The examiner further noted that his TBI caused mild cognitive impairment, memory issues, mood swings, disorientation to date and spatial disorientation (difficulty walking on uneven surfaces). The examiner noted that residual conditions attributable to TBI and their associated expected negative impacts include headache, vertigo, seizures which overlap somewhat to interfere with motor -related tasks, (both fine and gross), concentrating problem solving, task completion productivity on time, driving, reading, computer associated work, climbing, and walking on uneven surfaces. A June 2020 VA mental disorders examination report reflected the Veteran's reports that mood had worsened, with more arguments with his wife; he also reported that he was prone to panic attacks due to his memory difficulties and noted that he had become socially isolated. The examiner noted that the Veteran's psychiatric disorder had resulted in occupational and social impairment with reduced reliability and productivity. In addition, following a May 2020 VA examination for seizure disorders, the examiner indicated that the Veteran's seizure disorder would impact job-related functions susceptible to seizures and their associated negative impacts include motor-related tasks, both fine and gross, concentrating-problem solving, task completion-productivity on time, driving, reading, computer-associated work, climbing, walking on uneven surfaces, etc. In light of the foregoing, the Board finds the evidence to be in relative equipoise in showing that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining gainful employment consistent with his education and occupational experience during the period from February 12, 2019 through March 4, 2021. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"). In resolving reasonable doubt in favor of the Veteran, entitlement to a TDIU rating is warranted. Accordingly, entitlement to TDIU is warranted from February 12, 2019 to March 4, 2021. For the appeal period beginning on March 4, 2021, the Veteran is in receipt of a 100 percent combined rating for his service-connected disabilities. In addition, the Veteran has been awarded special monthly compensation under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) on account of major depressive disorder with generalized anxiety disorder rated as 100 percent and additional service-connected disability of a seizure disorder, migraine headaches independently ratable at 60 percent or more from March 4, 2021. Thus, the Board finds that the issue of TDIU for the appeal period beginning on March 4, 2021 is moot as the Veteran has already been awarded statutory housebound benefits as of that date. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Suzie S. Gaston, 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.