Citation Nr: 21008061 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 19-13 904 DATE: February 11, 2021 ORDER As new and material evidence has been received, the claim to reopen service connection for dermatitis is granted. The appeal is granted to that extent only. Entitlement to an initial 70 percent rating for posttraumatic stress disorder, but no higher, is granted. Entitlement to an effective date prior to June 8, 2016 for service connection for PTSD is denied. Entitlement to an effective date prior to June 8, 2016 for service connection for allergic rhinitis is denied. Entitlement to an earlier effective date of June 8, 2015 for service connection for coronary artery disease bypass scar is granted. Entitlement to an earlier effective date prior to June 8, 2016 for service connection for cataracts is denied. REMANDED Entitlement to service connection for keratosis is remanded. Entitlement to an initial compensable rating for coronary artery bypass scar is remanded. Entitlement to service connection for dermafibromatomas is remanded. Entitlement to service connection for COPD is remanded. Entitlement to service connection for dermatitis is remanded. Entitlement to an increased rating in excess of 20 percent for diabetes mellitus is remanded. Entitlement to an increased initial rating in excess of 10 percent for allergic rhinitis is remanded. Entitlement to an increased rating in excess of 30 percent for coronary artery bypass is remanded. Entitlement to an increased rating in excess of 10 percent for hypertension is remanded. Entitlement to an initial compensable rating for bilateral cataracts is remanded. Entitlement to service connection for asthma is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for pingueculae (claimed as an eye condition) is remanded. Entitlement to service connection for tinnitus, to include secondary to service-connected disabilities, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. An unappealed August 1983 rating decision denied entitlement to service connection for dermatitis. 2. Evidence received since the August 1983 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for dermatitis. 3. The Veteran's PTSD is manifested by occupational and social impairment with deficiencies in most areas. The Veteran does not have total occupational and social impairment due to PTSD. 4. A claim for service connection for PTSD was received on June 8, 2016. A September 2016 rating decision granted service connection for PTSD from June 8, 2016. 5. A claim for service connection for allergic rhinitis was received on June 8, 2016. A September 2016 rating decision granted service connection for allergic rhinitis from June 8, 2016. 6. A claim for an increased rating for CAD was received on June 8, 2016. A bypass scar was shown on examination in June 2016. It was factually ascertainable that the scar was present in the year prior to the increased rating claim. 7. A claim for service connection for cataracts was received on June 8, 2016. A December 2016 rating decision granted service connection for cataracts from June 8, 2016. CONCLUSIONS OF LAW 1. The August 1983 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for dermatitis. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 3.159, 20.1103. 2. The criteria for entitlement to an initial 70 percent rating, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411. 3. The criteria for an effective date prior to June 8, 2016 for the grant of service connection for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for an effective date prior to June 8, 2016 for the grant of service connection for allergic rhinitis have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 5. The criteria for an effective date of June 8, 2015, but no earlier, for the grant of service connection for coronary artery disease bypass scar have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 6. The criteria for an effective date prior to June 8, 2016 for the grant of service connection for cataracts have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1963 to July 1983. The Board has added the issue of entitlement to a TDIU to the appeal, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Whether new and material evidence has been received to reopen service connection for dermatitis Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as 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. See 38 C.F.R. § 3.156 (a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. An unappealed August 1983 VA examination denied service connection for residuals of dermatitis. The rating decision found that dermatitis was not shown on VA examination. Private treatment records dated in March 2012 and March 2015 reflect diagnoses of stasis dermatitis. A VA examination dated in June 2016 reflected diagnoses of seborrheic keratosis and dermatofibroma. The Veteran reported experiencing a history of a recurrent rash on his hands and feet since service. He reported that the rash resolved after his coronary artery bypass procedure in 2006 and had not returned. The evidence received since the prior final rating decision is new and material, as it relates to a current disability. Accordingly, the claim for service connection for dermatitis is reopened. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities ("Rating Schedule"), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. See 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. See 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. See 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits as well as the entire history of his disabilities in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 2. Entitlement to a 50 percent rating for posttraumatic stress disorder The rating criteria for PTSD provide that a 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and/or difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned when there is 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 and place; memory loss for names of close relatives, own occupation or name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, 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, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). Under the 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; 38 C.F.R. § 4.130. The Veteran has appealed the initial 50 percent rating assigned for PTSD in the September 2016 rating decision. He contends that a higher initial rating is warranted. The Veteran had a VA examination in June 2016. The Veteran reported that he is very hypervigilant, does not trust people, stays to himself most of the time, and can only name three friends other than his wife. His PTSD symptoms included depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, impairment of short and long-term memory, flattened affect, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective relationships, and inability to establish and maintain effective relationships. A November 2020 VA DBQ from a private examiner reflects an assessment of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The report noted that the Veteran had not worked since 2006. He was considered capable of managing his financial affairs. The Veteran reported that his symptoms did not impair his ability to perform daily activities, maintain personal hygiene, maintain the household, or run errands. Based on the foregoing, the Board resolves reasonable doubt in favor of the Veteran and finds that an initial 70 percent rating, but no higher, is warranted for PTSD. The Board finds that the evidence of record does not support a rating of 100 percent. The evidence does not show total occupational and social impairment due to PTSD symptoms. The evidence shows that the Veteran had some social relationships with his wife and some friends. He has occupational impairment which is contemplated by the rating assigned. The evidence also does not show delusions, hallucinations, or disorientation to time or place. The evidence does not show any findings of suicidal or homicidal ideation. Thus, the Veteran is not a persistent danger of hurting himself or others. The Veteran is able to maintain personal hygiene and is considered capable of managing his financial affairs. Therefore, this does not rise to the frequency, severity, and duration as needed for a 100 percent rating. The Board finds that the symptoms do not more nearly approximate the criteria for a 100 percent evaluation and are not of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d 112. Accordingly, the criteria for a 100 percent rating are not met. Earlier Effective Date The law and regulations governing effective dates establish that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110 (a). The effective date of an award of disability compensation to a veteran shall be the day following the date of discharge or release if application therefore is received within one year from such date of discharge or release. 38 U.S.C. § 5110 (b)(1). This statutory provision is implemented by a regulation which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. An exception to that rule provides that the effective date of an award of an increase 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)(2), 38 C.F.R. § 3.400 (o)(2); see also Harper v. Brown, 10 Vet. App. 125 (1997). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for an increased rating and revised 38 C.F.R. § 3.400 (o)(2). These amendments are applicable with respect to claims and appeals filed on or after March 24, 2015. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a). The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Brannon v. West, 12 Vet. App. 32, 35 (1998). The effective date of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but rather, on the date the application was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). 3. Effective date for service connection for PTSD 4. Effective date for service connection for allergic rhinitis The Veteran seeks an earlier effective date for service connection for PTSD and allergic rhinitis. Claims for service connection for allergic rhinitis and PTSD (claimed as mental health condition) were received on June 8, 2016. No claims for service connection for allergic rhinitis or PTSD were submitted prior to that date. The Veteran did not submit any communications prior to June 8, 2016 indicating an intent to claim service connection for allergic rhinitis or PTSD. A September 2016 rating decision granted service connection for allergic rhinitis and for PTSD, both effective from June 8, 2016. There is no basis for an effective date prior to June 8, 2016 for service connection for allergic rhinitis or PTSD, as there is no evidence of VA receipt of a claim, formal or informal, for service connection for allergic rhinitis or PTSD prior to that date. Therefore, the Veteran's claims for an earlier effective date prior to June 8, 2016 for the award of service connection for allergic rhinitis and PTSD must be denied. 5. Effective date for service connection for coronary artery disease bypass scar The Veteran seeks an earlier effective date for service connection for his CAD bypass scar. A claim for service connection for coronary artery disease was received in March 2008. A September 2008 rating decision granted service connection for coronary artery bypass graft. The Veteran did not appeal the rating assigned in the September 2008 rating decision, and the rating decision became final. 38 U.S.C. § 7105. A claim for an increased rating for CAD was received on June 8, 2016. In conjunction with his increased rating claim, an examination for scars was performed in June 2016. The examination included a diagnosis of a scar associated with his coronary artery bypass. Based on that examination, a June 2016 rating decision granted service connection for a bypass scar. As noted, the September 2008 rating decision that granted service connection for CAD was not appealed and became final. The claim for an increased rating was received on June 8, 2016. It is factually ascertainable that the bypass scar was present a year prior to the increased rating claim. Although the scar has been present since the bypass surgery, the earliest claim for an increased rating was received in June 2016. Accordingly, the criteria for an earlier effective date from June 8, 2015, but no earlier, for CAD bypass scar are met. 6. Effective date for service connection for cataracts The Veteran seeks an earlier effective date for service connection for cataracts. A claim for service connection for cataracts was received on June 8, 2016. No claim for service connection for cataracts was submitted prior to that date. The Veteran did not submit any communications prior to June 8, 2016 indicating an intent to claim service connection for cataracts. A December 2016 rating decision granted service connection for cataracts, effective from June 8, 2016. There is no basis for an effective date prior to June 8, 2016 for service connection for cataracts, as there is no evidence of VA receipt of a claim, formal or informal, for service connection for cataracts prior to that date. Therefore, the Veteran's claim for an earlier effective date prior to June 8, 2016 for the award of service connection for cataracts must be denied. REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 20 percent for diabetes mellitus is remanded. 2. Entitlement to an increased initial rating in excess of 10 percent for allergic rhinitis is remanded. 3. Entitlement to an increased rating in excess of 30 percent for coronary artery bypass is remanded 4. Entitlement to an initial compensable rating for bilateral cataracts is remanded. 5. Entitlement to an increased rating in excess of 10 percent for hypertension is remanded. 6. Entitlement to an initial compensable rating for CAD bypass scar is remanded. 7. Entitlement to service connection for sleep apnea is remanded. 8. Entitlement to service connection for COPD is remanded. VA treatment records dated in May 2018 show that the Veteran reported treatment with several private physicians. Further while a June 2016 examination found that there was no diagnosis of sleep apnea, the May 2018 medical records indicated that the Veteran had been diagnosed with sleep apnea and was using a CPAP. A remand is required to allow VA to obtain authorization and request these records. 9. Entitlement to service connection for keratosis is remanded. 10. Entitlement to service connection for dermatitis is remanded. 11. Entitlement to service connection for dermafibromatomas is remanded. The Veteran had a VA examination in June 2016. The examiner diagnosed seborrheic keratosis and dermatofibroma. The examiner noted that the Veteran does not have a skin diagnosis other than dermatofibroma. The examiner opined that his skin condition is less likely than not related to service, as the Veteran was not treated for a skin condition in service. The examiner did not address service treatment records showing a diagnosis of pruritic dermatitis in service. The case is being remanded to obtain an addendum opinion that should include consideration of the service treatment records showing a diagnosis of a skin condition. 12. Entitlement to service connection for asthma is remanded. The Veteran had a VA examination in June 2016. The examiner opined that asthma is less likely than not related to service. The examiner’s rationale was that service treatment records are silent for any findings of asthma. The Veteran is service-connected for CAD and has reported dyspnea in connection with that condition. See June 2016 CAD examination. The theory of secondary service connection is raised based on the Veteran’s reported symptoms. The case is being remanded to obtain a medical opinion addressing secondary service connection. 13. Entitlement to service connection for pingueculae (claimed as an eye condition) is remanded. A June 2016 VA examination reflects that the examiner diagnosed pingueculae but did not provide a medical opinion about the etiology. A medical opinion is necessary to ascertain whether the diagnosed condition is related to his service-connected diabetes mellitus and cataracts. 14. Entitlement to service connection for tinnitus is remanded. The Veteran had a VA examination in June 2016. The Veteran reported tinnitus with onset 10 years earlier. The examiner noted that tinnitus is a symptom of hearing loss. It was noted that the onset of tinnitus was after service. The examiner noted that tinnitus is a subjective condition with several etiologies, of which hearing loss is one. An addendum opinion is necessary to ascertain whether the etiology of tinnitus is related to the Veteran’s service-connected disabilities. 15. Entitlement to a TDIU is remanded. At a June 2016 VA examination for CAD, the Veteran reported that he previously worked as an LPN but could not tolerate occupational stress since his heart surgery. He reported that he had been let go from his last employment at an auto auction. On remand, the AOJ should ask the Veteran to complete a TDIU application and adjudicate the TDIU claim. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. Ward, Dr. McDonald, Dr. Nguyen, and Dr. Sarmiento. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Send the Veteran a VA Form 21-8940 and ask the Veteran to list all his employment since June 2016. After the completed form is returned, adjudicate the claim for entitlement to a TDIU. 3. Obtain an addendum opinion from an appropriate clinician regarding service connection for dermatitis, dermafibromatomas, and keratosis. (a) The examiner must opine whether the Veteran’s skin disabilities, including dermatitis, dermafibromatomas, or keratosis are at least as likely as not related to service, including the diagnosis of pruritic dermatitis in service. (b) The examiner must opine whether the Veteran’s skin disabilities, including dermatatitis, dermafibromatomas, or keratosis, are at least as likely as not proximately due to service-connected diabetes mellitus. (c) The examiner must opine whether the Veteran’s skin disabilities, including dermatitis, dermafibromatomas, or keratosis, are at least as likely as not aggravated by diabetes mellitus. 4. Obtain an addendum opinion from an appropriate clinician regarding service connection for asthma. (a) The examiner must opine whether asthma is at least as likely as not proximately due to service-connected CAD. (b) The examiner must opine whether asthma is aggravated beyond its natural progression by CAD. 5. Obtain an addendum opinion from the June 2016 VA examiner, or another appropriate clinician, regarding service connection for tinnitus. (a) The examiner must opine whether tinnitus is at least as likely as not proximately due to the Veteran’s service-connected disabilities. (b) The examiner must opine whether tinnitus is aggravated beyond its natural progression by his service-connected disabilities. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski 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.