Citation Nr: 21073843 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 15-22 814A DATE: December 10, 2021 ORDER Whether new and material evidence was received to reopen the service connection claim for squamous cell carcinoma is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for a sleep disorder is denied. Entitlement to an increased rating of 100 percent for depressive disorder, effective October 13, 2013, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed. FINDINGS OF FACT 1. In a November 2012 rating decision, the Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA) denied the Veteran's claim for service connection for squamous cell carcinoma because the evidence failed to demonstrate an in-service incident, injury or event that caused the condition; the Veteran did not file a notice of disagreement appealing that decision or submit new and material evidence within one year after being notified of that decision. 2. The evidence received since the November 2012 rating decision is cumulative and redundant of the evidence of record at the time of that decision. 3. The competent medical evidence demonstrates that the Veteran's hypertension first manifested decades after his period of service, and the preponderance of the evidence is against a finding that the Veteran's hypertension is attributable to his period of service. 4. The competent medical evidence establishes that the Veteran's current sleep disturbances are symptoms of his service-connected depressive disorder rather than a separate sleep disorder. 5. The severity, frequency, and duration of the Veteran's depressive disorder symptoms more closely approximate total occupational and social impairment, effective October 13, 2013, i.e., for the entire appeal. 6. Effectively since October 13, 2013, the Veteran has been rated as totally disabled due to his service-connected mental disorder; he does not have additional service-connected disability, apart from the mental disorder, which is independently ratable as at least 60-percent disabling. CONCLUSIONS OF LAW 1. The November 2012 rating decision denying service connection for squamous cell carcinoma is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. 2. New and material evidence has not been received, and the claim for service connection for squamous cell carcinoma is not reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.102, 3.156(a). 3. The criteria for entitlement to service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for a sleep disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107; 38 C.F.R. § 3.303. 5. The criteria for a disability rating of 100 percent for depressive disorder are met, effective October 13, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9435. 6. The appeal for a TDIU is moot. 38 U.S.C. § 7105 (d)(5); 38 C.F.R. §§ 20.202, 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1960 to July 1964. This matter comes on appeal before the Board of Veterans' Appeals (Board) from April 2015 and June 2018 rating decisions of an AOJ of VA. By way of procedural background, these matters were previously before the Board in January 2019. The Veteran, through his attorney, timely appealed the January 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Court, pursuant to a joint motion for remand (JMR), found that the Board erred in its January 2019 decision as the Veteran's attorney requested a 90-day extension to submit additional evidence which was not addressed by the Board. See Bryant v. Wilkie, 33 Vet. App. 43 (2020). Additionally, regarding the increased rating claim for the service-connected psychiatric disability, the Board failed to address favorable evidence in a May 2016 Disability Benefits Questionnaire (DBQ). The Board remanded the case for additional development in June 2021. In September 2021, the Veteran's attorney requested 90 days from the date of the letter. Additional evidence was added to the record in October 2021. In October 2021, the Veteran's attorney waived the remainder of the time requested and also waived AOJ consideration of the new evidence. The issues are now again before the Board for further appellate consideration. 1. Whether new and material evidence has been received to reopen the service connection claim for squamous cell carcinoma Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). One exception to the general rule of finality is 38 U.S.C. § 5108, which provides that, if new and material evidence is presented with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. "New evidence means 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 establish 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a November 2012 rating decision, the AOJ denied the claim for service connection for squamous cell carcinoma together with three other claims (service connection for back and short leg syndrome, and increased rating for right ankle disability). In December 2012, the Veteran filed a notice of disagreement appealing only the denials of service connection for back and short leg syndrome and increased rating for right ankle disability. The Veteran did not appeal the denial of his claim for service connection for squamous cell carcinoma nor did he submit new and material evidence within one year after he was notified of the November 2012 rating decision. Thus, with respect to the claim for service connection for squamous cell carcinoma, the November 2012 rating decision is final. See 38 U.S.C. § 7105. The November 2012 rating decision notification letter shows that the Veteran's claim for squamous cell carcinoma was denied because the evidence failed to demonstrate an in-service injury or event and the medical evidence showed it was not diagnosed until years after his separation from service. The evidence at the time of that decision included the Veteran's private treatment records that showed the Veteran's squamous cell carcinoma first manifested in 2010 and a June 2011 private medical statement in which his treating private physician stated that the Veteran served as a lineman in the Air Force, and he had experienced multiple sunburns over the years which contributed to his squamous cell skin cancer. In addition, the record contained the Veteran's DD 214 that showed his Air Force occupational specialty was "36231B", apprentice equipment specialist, and he had taken an "outside wire-antenna system" course. His service treatment records did not show diagnosis of squamous cell carcinoma or treatment for complaints of sunburn. The Veteran sought to reopen his previously denied claim in January 2015. The pertinent additional evidence associated with the claims file since November 2012 includes private treatment records that continue to show history of squamous cell carcinoma and treatment for residuals of squamous cell carcinoma. However, the additional private treatment records do not indicate that the Veteran's squamous cell carcinoma is a result of his period of service or demonstrate evidence of in-service injury. Such evidence is not new and material evidence upon which the claim may be reopened. Cox v. Brown, 5 Vet. App. 95 (1993). The Board notes that the Veteran's service personnel records were associated with the claims file after the November 2012 decision. However, these records only contain cumulative information regarding the Veteran's military occupational specialty or duplicate copies of service personnel records that were previously associated with the claims file. Therefore, the Board finds that 38 C.F.R. § 3.156 (c) does not apply in this case, and new and material evidence is required to reopen the claim. Additional VA treatment records added to the record in July 2020 show that the Veteran had cancer of the ear less than two years ago and had a history of squamous cell carcinoma of the torso, including his chest and back. The diagnosis was varicose vein on the ear, benign, no malignant potential. See July 27, 2020 VA treatment record. Similarly to the above-mentioned treatment records, as this evidence does not relate the Veteran's squamous cell carcinoma to his military service, it is not new and material evidence upon which the claim may be reopened. Cox v. Brown, 5 Vet. App. 95 (1993). As new and material evidence has not been received, the November 2012 rating decision is final, and the appeal is denied. 2. Entitlement to service connection for hypertension The Veteran seeks entitlement to service connection for hypertension. The Veteran has not identified any in-service incident, injury or event which has resulted in his current hypertension. The Board concludes that, while the medical records confirmed that the Veteran has a current diagnosis of hypertension, which is a chronic disease under the appropriate regulations, it did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). A review of the Veteran's service treatment records does not reveal any complaints, findings, treatment, or diagnoses relating to hypertension. The Veteran's blood pressure at his June 1964 separation examination was 120/70 and the Veteran denied any history of high blood pressure on the associated report of medical history. Hypertension was not shown during the Veteran's period of service. See 38 C.F.R. § 3.303 (b). Moreover, post-service medical records do not show evidence of elevated blood pressure reading and diagnosis of hypertension until March 2002, which comes 38 years after his and many years outside of the applicable presumptive period. Accordingly, service connection for hypertension on a presumptive basis as a chronic disease is denied. 38 C.F.R. § 3.307 (a)(3). Additional VA treatment records show continued treatment for hypertension. See, e.g., VA treatment records dated October 19, 2019, June 19, 2020, September 24, 2020, and June 4, 2021. However, none of these records relate the Veteran's hypertension to his military service. While the Veteran is competent to report having experienced symptoms that may be associated with hypertension and when they began, he has not specified when his hypertensive symptoms began, and in any event, he is not competent to provide a diagnosis in this case or determine that any such symptoms were manifestations of hypertension. The issue is medically complex, as it requires the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has not been afforded an examination regarding his hypertension claim, but VA does not have a duty to provide one here as there is no indication that his hypertension may be associated with his service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). There is clear evidence in the file that the Veteran has hypertension, but there is nothing to indicate that his hypertension, which was first diagnosed decades after his discharge, is attributable to service. Accordingly, there is no duty to provide the Veteran with an examination to evaluate the etiology of his hypertension. Without any evidence in support of the Veteran's claim, the Board finds that no medical nexus exists between the Veteran's hypertension and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). As the preponderance of the evidence is against the Veteran's claim of service connection for hypertension, the benefit-of-the-doubt standard of proof does not apply, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for a sleep disorder The Veteran seeks entitlement to service connection for a sleep disorder. He reports that he has sleep disturbances as a result of his period of service. Notably, the Veteran has already been awarded service connection for depressive disorder, which includes consideration of sleep impairment as a symptom under the current assigned evaluation. The resolution claim of entitlement to service connection for a sleep disorder turns on whether the Veteran has a sleep-related condition separate and apart from the symptoms of his already service-connected depressive disorder disability. The Board finds that he does not, and that service connection for a sleep disorder is thus not warranted. There is no competent evidence, nor is it contended, that the Veteran has sleep apnea. There is no indication that the Veteran has undergone a sleep study to determine whether he has sleep apnea. Rather, the evidence of record indicates that he does not have sleep apnea. Private medical records do show that the Veteran had complained of nightmares and sleep impairment, and he was assessed with insomnia and prescribed medication to help him sleep. Subsequent private medical records continue to show that the Veteran's complaints of sleep impairment are associated with his diagnosed mental disorder. In addition, during the Veteran's December 2017 VA mental health examination, symptoms of chronic sleep impairment, sleep problems and nightmares were noted to be attributable to his service-connected depressive disorder. Similarly, VA treatment records show that the Veteran's trouble sleeping was a sign of his depression. See, e.g., June 21, 2019 and March 13, 2021 VA treatment records. In short, the Board finds that the preponderance of the evidence establishes that the Veteran's sleep disturbances are manifestations of his service-connected depressive disorder, not of a separately diagnosed sleep disorder. See 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (listing chronic sleep impairment as one of the symptoms to be considered when rating psychiatric disabilities). More importantly, the disability evaluations assigned for the Veteran's depressive disorder throughout the course of this appeal period have been based on symptoms that specifically included chronic sleep impairment. See December 2017 rating decision. There is no competent evidence of a separate sleep disorder other than the sleep disturbances which are manifestations of his service-connected depressive disorder. The Board observes that, even assuming that a distinct sleep disorder could be established based on the appellant's reported symptoms, assigning it a separate, compensable rating would violate the rule against pyramiding, because the same symptoms would be rated twice. See 38 C.F.R. § 4.14. In summary, the appellant is not shown to have sleep apnea or any other sleep disorder; and the preponderance of the evidence establishes that his sleep disturbances are manifestations of his service-connected depressive disorder. As a result, service connection for a sleep disorder must be denied. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 4. Entitlement to an increased rating for depressive disorder, rated as 30 percent disabling prior to December 18, 2019, and 50 percent, thereafter The Veteran seeks a higher initial rating for his service-connected depressive disorder. He is currently assigned a 30 percent rating, effective prior to December 18, 2019, and a 50 percent rating, thereafter, for his depressive disorder disability under the General Rating Formula for Mental Disorders, to include his unspecified depressive disorder. See 38 C.F.R. § 4.130, Diagnostic Code 9435. The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher, prior to December 18, 2019, and 70 percent or higher, effective, thereafter. 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). 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. While is some conflicting evidence of record, resolving all doubt in the Veteran's favor, the Board concludes that the Veteran's depressive disorder does more nearly approximate the level of impairment required for a disability rating of 100 percent. A May 2016 private psychiatric assessment notes that the Veteran was socially isolated and withdrawn. He had been married and divorced once and had two adult children. As he lived alone, he struggled to perform daily living tasks. He would go with a friend to do his food shopping, prepared simple meals including soup, and had a problem keeping his house clean. He also noted that it was difficult for him to wash his clothes, do dishes, and he did not do dishes for two to three weeks. He had to be reminded to take a shower, shave, and get a haircut. He showered two to three times a week and struggled to remember to pay his bills. The clinician found that the Veteran's depressive disorder was emotionally debilitating and that individuals with this symptomatology typically had suicidal ideation, few friends, and inability to maintain a job. The clinician further noted that the Veteran's symptoms relate back to the date of his original claim in October 2013. The Veteran reported passive suicidal ideation noting that "I'm depressed and overwhelmed so it might be the good decision." He denied intent or plan on that day. He also reported auditory and visual hallucinations and delusions consisting of hearing voices, seeing shadows/ spirits when no one is present and sometimes thought that someone was trying to poison him. He suffered from chronic sleep impairment including insomnia and broken sleep. He described difficulty in establishing and maintaining relationships, difficulty adapting to stressful situations including work, disturbances of motivation and mood, impaired impulse control, neglect of personal hygiene, intermittent inability to perform activities of daily living, mild memory loss and impairment in short and long-term memory. He reported near-continuous depression and anxiety symptoms that were not present prior to his military service. The clinician found that the Veteran's debilitating depression had caused a remarkable decline in his quality of life. The clinician found that the Veteran could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his depressive disorder. An April 2018 VA mental health examination show the Veteran's depressive disorder had more mild symptoms including occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task due to depressed mood, anxiety, and chronic sleep impairment. The VA examiner found that the Veteran's depressive disorder is manifested by symptoms of chronic sleep impairment and depressed mood, and the Veteran used medication to help alleviate his symptoms and did not attend therapy sessions. The VA examination report shows that the Veteran had problems with sleeping and eating three times a day, but he demonstrated an ability to function independently, was alert and oriented, with normal memory and speech, and logical and goal-oriented thought processes. The VA examiner found that the Veteran's depressive disorder symptomatology results in no more than occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by medication. Similarly, private treatment records show that he receives medication to help control his mental health symptoms of depressed mood, anxiety, and chronic sleep impairment. See November 2013, March 2014 and March 2016 private treatment records. His private treatment records also show that the Veteran receives relief with animal therapy and through ownership of his dogs. See November 2013 and October 2017 private treatment records. While VA treatment records show incidents of increased stress caused by financial and housing issues, the Veteran was consistently evaluated as oriented, appropriately groomed, and had normal thought process, thought content with fair insight and judgment on mental status evaluation. There was no evidence of thought disorder, or suicidal or homicidal thoughts on these reports. See July 2014 and December 2017 VA treatment social worker records. On the other hand, an October 2020 Disability Benefits Questionnaire (DBQ) shows the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Current symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, impaired judgment, disturbances of motivation and mood, and neglect of personal appearance and hygiene. The Veteran commented that hackers had hacked his phone. He stated that he had minimal motivation to do much and watched television all the time. A March 2021 DBQ shows that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/ or mood. His current symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, such as forgetting names, directions, and recent events, impairment of short and long-term memory, for example, retention of only highly learned material while forgetting to complete tasks, difficulty in understanding complex commands, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances including work or a worklike setting, inability to establish and maintain effective relationships, suicidal ideation, impaired impulse control, such as unprovoked irritability with periods of violence, persistent delusions or hallucinations, persistent danger of hurting self or others, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Based on the reports in May 2016, October 2020, and March 2021 the Veteran has, among other severe symptoms, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). These symptoms more nearly approximate total social and occupational impairment. The May 2016 report specifies that this has been a problem since 2013, which would include the entire appeal. As noted, other evidence including private treatment records dated from November 2013 to October 2017, and the April 2018 VA examination report indicate more mild symptoms. However, there is no reason shown to value this evidence over the evidence indicating more severe symptoms in 2016, 2020, and 2021. Thus, resolving all doubt in the Veteran's favor, as there is probative evidence of record showing total occupational and social impairment, the maximum 100 percent rating is warranted during the appeal period. Thus, the appeal is granted. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The Veteran raised the issue of entitlement to a TDIU based on his service-connected psychiatric disability in March 2021. Thus, in June 2021, the Board determined that derivative entitlement to a TDIU had been raised by the record and remanded this claim back to the AOJ for all necessary development. The Veteran subsequently submitted a TDIU application (VA Form 21-8940) in October 2021. On his application, he indicated that he had last worked in 2003, the date he became too disabled to work. As the Board has determined that the Veteran is entitled to a 100 percent rating for his schedular rating, effective throughout the entire appeal, i.e., since October 13, 2013, a TDIU as moot since the Veteran was in receipt of a total, i.e., 100 percent disability rating for his service-connected depressive disorder. The U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has recognized that a 100 percent schedular disability rating means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled due to a particular service-connected disability or combination of disabilities pursuant to the Rating Schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for a TDIU moot where a 100 percent schedular rating was awarded for the same period). As the Veteran's service connection claim for depressive disorder was dated, October 13, 2013, that is the earliest possible date of entitlement to his 100 percent schedular rating and, by extension, any derivative entitlement to a TDIU. However, it is not categorically true that assignment of a total schedular rating always renders a TDIU claim moot, particularly as it relates to possible entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114 (s). Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). SMC at the housebound rate is payable where a Veteran has a single service-connected disability rated at 100 percent, and has an additional, service-connected disability or disabilities independently ratable at 60 percent, that are separate and distinct from the 100 percent service-connected disability and involve different anatomical segments or bodily systems. See 38 U.S.C. §§ 1114 (s); 38 C.F.R. §§ 3.350 (i). But this is not the situation here. The Veteran is also service connected for fracture of the distal right fibula, rated as 0 percent disabling, effective February 16, 1967, and 20 percent, effective October 18, 2002; left shoulder rotator cuff tendonitis, rated as 20 percent disabling, effective December 18, 2019; tinnitus, rated as 10 percent disabling, effective January 12, 2015; right foot pes planus, rated as 10 percent disabling, effective December 18, 2019; bilateral hearing loss, rated as 10 percent disabling, effective December 18, 2019; and scar on the right ankle, rated as 0 percent disabling, effective December 18, 2019. Since he does not have additional, service-connected disability independently ratable as at least 60-percent disabling, meaning apart from the 100 percent rating for his mental disorder, SMC under 38 U.S.C. § 1114 (s) resultantly is not warranted. As such, this claim for a TDIU is moot and, therefore, summarily dismissed. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.