Citation Nr: A21017296 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 200226-66903 DATE: October 26, 2021 ORDER New and relevant evidence not having been received, the application to reopen a service connection claim for a lower back disability is denied. New and relevant evidence not having been received, the application to reopen a service connection claim for a bilateral hip disability is denied. Entitlement to service connection for asthma is denied. Entitlement to a compensable rating for female sexual arousal disorder is denied. Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. In a January 2016 rating decision, the Veteran was denied service connection for a low back disability. She did not initiate a timely appeal of this determination, and it became final. 2. New evidence associated with the claims file since the January 2016 rating decision does not tend to prove or disprove a matter at issue in the service connection claim for a low back disability. 3. In a June 2017 Board decision, the Veteran was denied service connection for a bilateral hip disability. She did not initiate a timely appeal of this determination, and it became final. 4. New evidence associated with the claims file since the June 2017 Board decision does not tend to prove or disprove a matter at issue in the service connection claim for a bilateral hip disability. 5. A current diagnosis of asthma was not incurred in service, has not been chronic or continuous since service separation, did not manifest to a compensable degree within a year of service, and is not due to an in-service disease, injury, or other incident of service. 6. A noncompensable rating is the maximum schedular rating for female sexual arousal disorder, and the Veteran is already in receipt of special monthly compensation based on loss of use of a creative organ. 7. The severity, frequency, and duration of the Veteran's PTSD symptoms do not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. New and relevant evidence not having been received, the criteria for readjudication of a service connection claim for a lower back disability have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156, 3.2501. 2. New and relevant evidence not having been received, the criteria for readjudication of a service connection claim for bilateral hip disabilities have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156, 3.2501. 3. The criteria for entitlement to service connection for asthma have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to a compensable rating for female sexual arousal disorder have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.116, Diagnostic Code 7632. 5. The criteria for entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to June 1984, and from May 1986 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In the February 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Additional evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims on appeal, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Subsequent to receipt of the February 2020 VA Form 10182, the Veteran's filed a December 2020 Supplemental Claim on the issue of service connection for asthma, and a Higher Level Review request on the issues of readjudication of service connection claims for disabilities of the bilateral hips and low back. A claimant may either elect to submit a Supplemental Claim, Higher-Level Review, or submit an appeal to the Board, but not elect all review options. See 38 C.F.R. § 3.2500, 3.2501. Such concurrent adjudication is specifically prohibited by 38 C.F.R. § 3.2500(b), which states, "[A] claimant who has filed for review under one of the options available under paragraph (a) of this section may not, while that review is pending final adjudication, file for review under a different available option." Since the Veteran has not submitted a request to withdraw the appeal of these issues before the Board, the Board retains jurisdiction over those issues. 38 C.F.R. §§ 3.2500 (d), 20.205. Finally, the Board notes the Veteran has a pending appeal regarding other issues before VA. That appeal will be the subject of a separate Board action. 1. Whether new and relevant evidence has been received to reopen a service connection claim for a lower back disability The Veteran seeks to reopen her service connection claim for a low back disability. She asserts this disability was initially incurred in service, and service connection is therefore warranted. This claim was previously denied in a January 2016 rating decision, which found that a current low back disability was not incurred in or aggravated by active duty service and service connection was therefore not warranted. Specifically, the RO found no evidence of an in-service disease, injury, or other disability of the low back. The Veteran did not file a timely notice of disagreement regarding this determination, although she did file a timely notice of disagreement regarding other issues addressed by VA in the January 2016 rating decision; thus, the denial of service connection for a low back disability became final. VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156 (d). "Relevant evidence is evidence that tends to prove or disprove a matter in issue." 38 C.F.R. § 3.2501. As the definition of "relevant" does not require that the evidence relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim; "new and relevant" evidence is a lower standard than the "new and material" evidence standard. Based on the additional evidence added to the record since the previous final denial of the Veteran's claims for entitlement to service connection, the Board finds that new and relevant evidence has not been added to the record with respect to the claim of entitlement to service connection for a low back disability. In denying the Veteran's service connection claim in January 2016, VA found that while the record established a post-service disability of the low back, evidence of an in-service disease or injury of the low back or spine had not been presented. The Veteran was provided a copy of this determination and her appellate rights in January 2016, and she did not file a timely appeal as to this issue. Therefore, that decision became final. The evidence associated with the record since the last final decision in January 2016 includes VA and private treatment records and the lay contentions of the Veteran. The medical treatment records show periodic post-service complaints for low back pain. The lay statements from the Veteran repeat her prior contentions that she developed low back pain during active duty service, and this pain has been chronic since that time. She has also repeated her contentions that service connection is warranted for bilateral knee disabilities, and such disabilities resulted in a fall, which injured her low back. To date, the Veteran has not been granted service connection for a disability of either knee. The Board has determined that the submitted evidence does not tend to prove that any current low back disability was incurred in or aggravated by active duty service. Specifically, the Board notes these VA treatment records reflect current diagnoses of low back disabilities; however, there is no indication that any current low back disability was incurred in service. The Veteran's lay assertions of an in-service injury were already of record at the time of the prior final denial, and a current disability was already acknowledged by VA at that time. As this evidence was of record at the time of the January 2016 denial, the additional evidence does not tend to prove the claim. Accordingly, the Board finds that new and relevant evidence has not been received with respect to the Veteran's claim of service connection for a low back disability, and the claim may not be readjudicated. 2. Whether new and relevant evidence has been received to reopen a service connection claim for bilateral hip disability The Veteran seeks to reopen her service connection claim for a disability of the bilateral hips. She asserts this disability was initially incurred in service, and service connection is therefore warranted. This claim was previously denied in a June 2017 Board decision, which found that while the Veteran had a current diagnosis of osteoarthritis of the bilateral hips, such a disability was not incurred in or aggravated by active duty service and service connection was therefore not warranted. Specifically, the Board found no evidence that the Veteran's osteoarthritis was the result of or otherwise related to an in-service disease, injury, or other disability of the hips. The Veteran did not file a timely appeal of this Board decision, and it thus became final. VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156 (d). "Relevant evidence is evidence that tends to prove or disprove a matter in issue." 38 C.F.R. § 3.2501. As the definition of "relevant" does not require that the evidence relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim; "new and relevant" evidence is a lower standard than the "new and material" evidence standard. Based on the additional evidence added to the record since the previous final denial of the Veteran's claims for entitlement to service connection, the Board finds that new and relevant evidence has not been added to the record with respect to the claim of entitlement to service connection for a bilateral hip disability. In denying the Veteran's service connection claim in June 2017, the Board found that while the record established a post-service diagnosis of osteoarthritis and/or degenerative arthritis of the hips, evidence of a nexus between those diagnoses and an in-service disease or injury of either hip had not been presented. The Veteran was provided a copy of this determination and her appellate rights in June 2017, and she did not file a timely appeal as to this issue. Therefore, that Board decision became final. The evidence associated with the record since the last final denial in June 2017 includes VA and private treatment records and the lay contentions of the Veteran. The medical treatment records show periodic complaints for bilateral hip pain post-service. The lay statements from the Veteran repeat her prior contentions that she developed such pain during active duty service, and this has been chronic since that time. She has also repeated her contentions that service connection is warranted for bilateral knee disabilities, and such disabilities resulted in a fall, which injured her hips. To date, the Veteran has not been granted service connection for a disability of either knee. The Board has determined that the submitted evidence does not tend to prove that any current disability of either hip was incurred in or aggravated by active duty service. Specifically, the Board notes these VA treatment records reflect current diagnoses of bilateral hip disabilities; however, there is no indication that any current hip disability was incurred in service. The Veteran's lay assertions of an in-service injury were already of record at the time of the prior final denial, and a current disability was already acknowledged by VA at that time. As this evidence was of record at the time of the June 2017 Board denial, the additional evidence does not tend to prove the claim. Accordingly, the Board finds that new and relevant evidence has not been received with respect to the Veteran's claim of service connection for a bilateral hip disability, and the claim may not be readjudicated. 3. Entitlement to service connection for asthma The Veteran seeks service connection for asthma. She asserts such a disability first manifested in service, and service connection is therefore warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Considering first the service treatment records, these are negative for any diagnosis of or treatment for asthma. On her April 1992 service separation examination, she was without any noted respiratory abnormalities. In the absence of any competent evidence to the contrary, the Board must conclude a current diagnosis of asthma was not incurred in service and has not been chronic or continuous since service separation. Moreover, no competent evidence has been presented that asthma or a similar respiratory disability manifested within a year of service separation. Post-service, the Veteran was not diagnosed with asthma for many years following service. According to a June 2005 clinical notation, the Veteran was without asthma at that time. In September 2008, she was treated for allergies and a dry cough; asthma was not noted or diagnosed. In April 2017, the Veteran was diagnosed with asthma by a private allergy clinic; the examiner did not, however, suggest onset of this disability during any period of service. Thus, the first diagnosis of asthma dates to more than 20 years after the Veteran's last period of active duty service. This lengthy period without complaint or treatment is one piece of evidence that there has not been ongoing symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); see, e.g., Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the Board may consider a lack of notation of a medical condition or symptoms where such notation would normally be expected). Additionally, no VA or private examiner has suggested the Veteran's post-service asthma is due to or otherwise etiologically related to service. In the absence of any evidence to the contrary, the Board must conclude that the Veteran's current diagnosis of asthma had its onset many years after service and is not related to any in-service disease, injury, or other incident of service. The Veteran has alleged she has had asthma since service. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, her statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, respiratory disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to her, and her lay contentions have not subsequently been confirmed by a competent expert. Moreover, in light of the treatment records documenting that asthma was not present in 2005, and was not diagnosed or complained of in 2008, the statements that she has experienced continuous asthma since her separation from service are not credible. In conclusion, the preponderance of the evidence is against the award of service connection for asthma on any basis. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 4. Entitlement to a compensable rating for female sexual arousal disorder The Veteran contends that she is entitled to a compensable rating for female sexual arousal disorder. Her current noncompensable rating is assigned under Diagnostic Code 7632. A noncompensable rating is the only schedular rating available for female sexual arousal disorder. As the Veteran is already in receipt of the maximum schedular rating, entitlement to a higher, compensable rating is not warranted. The Veteran has also not demonstrated that this disability results in any unusual or extraordinary impairment in her occupational or social functioning, such that referral for an extraschedular rating is warranted. The regulations also provide that entitlement to special monthly compensation under 38 C.F.R. § 3.350 should also be considered. In the present case, the Veteran has already been granted special monthly compensation for loss of use of a creative organ. Based on the foregoing, the Board finds that a compensable rating for female sexual arousal disorder is not warranted throughout the period on appeal. Moreover, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Entitlement to a disability rating in excess of 70 percent for PTSD The Veteran seeks a disability rating in excess of 70 percent for her service-connected PTSD. She asserts this disability has increased in severity. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. 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 evidence of record shows that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating, including difficulty adapting to stressful circumstances (including work or a worklike setting), neglect of personal appearance and hygiene, impaired impulse control, suicidal ideations, inability to establish and maintain effective relationships, and obsessional rituals which interfere with routine activities. The record does not include any symptoms associated with a 100 percent rating. She has displayed symptoms that are not listed with a specific rating such as isolation. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptom more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The Veteran reported that she will leave the house for appointments, to shop for groceries, and for other errands but otherwise stays in the house. This is consistent with the assigned 70 percent rating which contemplates disturbances of mood and motivation. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran reported that she would not commit suicide because of her religious beliefs. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas as noted by the March 2019 VA examination report. The VA examination report notes that the Veteran had been divorced in 2017. She maintained contact with several close friends, and attended church on occasion. Occupationally, she worked as a social worker on a full time basis. She reported missing three days of work in the past two months due to anxiety. No legal or behavioral issues were reported, and she denied receiving regular treatment for her PTSD. She denied illegal drug use, but reported occasional alcohol consumption. Regarding her PTSD symptoms, she reported hypervigilance; an exaggerated startle response; poor concentration, memory, and sleep; irritability and anger; anxiety; panic attacks, and; disturbances of motivation and mood. She also reported suicidal ideation but no plan. Some neglect of personal appearance and hygiene was also reported. She denied homicidal ideation or plans. On objective examination, the Veteran was pleasant, engaged, and responsive to the examiner. She was alert and fully-oriented, with logical and linear thought processes. No hallucinations or delusions were evident. She reported frequent hand-washing, but no other compulsive behavior. The examiner found the Veteran competent to manage her own financial affairs. After considering all evidence of record, the Board finds the Veteran's PTSD symptomatology to be consistent with a disability rating of 70 percent and no higher, based on sufficient occupational and social impairment to result in deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board finds the severity, frequency, and duration of the Veteran's symptoms, both listed, and unlisted, more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent (total) rating. See 38 C.F.R. § 4.126. The Veteran's PTSD does not at any time on appeal result in total occupational and social impairment, as would warrant the next higher evaluation of 100 percent. Specifically, as noted above, the evidence shows that, despite the Veteran's various symptoms, she has consistently demonstrated normal speech, normal thought process and content, and intact judgement and insight. The Veteran's thought process has been described as logical and linear and, while she has reported having occasional intrusive thoughts and frequent nightmares, she has consistently denied having delusions, hallucinations, or homicidal ideation, which are indicative of a serious impairment in thinking. She has no recent history of legal difficulties, physical altercations, or inappropriate behavior. Moreover, the Board notes the medical evidence shows she has maintained spatial orientation in all spheres throughout the appeal. The Board again acknowledges that, despite the Veteran's symptoms, she has remained able to perform all activities of daily living, and was employed on a fulltime basis at the time of the March 2019 examination. While the Veteran prefers to stay at home, she continues to maintain contact with some friends and her church, and perform other activities of daily living, such as shopping. Based on the foregoing, the Board finds that the level of impairment caused by the Veteran's symptoms more closely approximates the disability level associated with a 70 percent rating, as the preponderance of the evidence shows that her PTSD has resulted in serious, but not total, occupational and social impairment. The Veteran's continued employment and relationships with some friends document that total occupational and social impairment is not present. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a disability rating in excess of 70 percent. The criteria for a 100 percent are not met at any time during the pendency of this appeal, and the appeal must be denied. As a preponderance of the evidence is against an increased rating, the benefit of the doubt doctrine is not applicable in this appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thomas D. Jones, 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.