Citation Nr: 21011380 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 20-03 486 DATE: March 1, 2021 ORDER The appeal seeking to reopen a claim for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is granted. The appeal seeking to reopen a claim for entitlement to service connection for bilateral hearing loss is denied. The appeal seeking to reopen a claim for entitlement to service connection for tinnitus is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for an exophytic cyst of the right kidney is denied. Entitlement to an initial disability rating in excess of 30 percent for coronary artery disease is denied. Entitlement to an earlier effective date prior to January 16, 2017, for the award for service connection for coronary artery disease is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for headaches is remanded. Entitlement to special monthly compensation based on aid and attendance/housebound status is remanded. FINDINGS OF FACT 1. In an April 2014 rating decision, the claim of entitlement to service connection for PTSD was denied because there was no evidence the Veteran was diagnosed with the disorder. The Veteran did not appeal that decision or submit new and material evidence within one year; it became final. 2. The evidence added to the record since the April 2014 rating decision relates to an unestablished fact that is necessary to substantiate the claim of entitlement to service connection for an acquired psychiatric condition, to include PTSD. 3. In an April 2014 rating decision, the claims of entitlement to service connection for hearing loss and tinnitus were each denied because neither condition was found to have been incurred in or caused by active duty service. The Veteran did not appeal either decision or submit new and material evidence within one year; both service connection claims became final. 4. The evidence added to the record since the April 2014 rating decision does not relate to an unestablished fact that is necessary to substantiate the claims of entitlement to service connection for either bilateral hearing loss or tinnitus. 5. The preponderance of the evidence is against finding that the Veteran’s hypertension began during active service, or is otherwise related to an in-service injury or disease. 6. The preponderance of the evidence is against finding that the Veteran’s exophytic cyst of the right kidney began during active service, or is otherwise related to an in-service injury or disease. 7. The Veteran’s coronary artery disease was not manifested by more than one episode of acute congestive heart failure in the past year, a workload not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent. 8. There is no evidence in the claims folder that the Veteran filed a formal claim prior to January 16, 2017, seeking entitlement to service connection for coronary artery disease. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for entitlement to service connection for an acquired psychiatric condition, to include PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. New and material evidence has not been received to reopen the claim for entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. New and material evidence has not been received to reopen the claim for entitlement to service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 4. The criteria for entitlement to service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for entitlement to service connection for an exophytic cyst of the right kidney are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for entitlement to an initial disability rating in excess of 30 percent for coronary artery disease are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code (DC) 7005. 7. The criteria for entitlement to an earlier effective date prior to January 16, 2017, for the award for service connection for coronary artery disease have not been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1 (p), 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to February 1972. New and Material Evidence 1. Whether new and material evidence has been submitted sufficient to reopen a claim for entitlement to service connection for an acquired psychiatric condition, to include PTSD The Veteran seeks to reopen a previously denied claim seeking entitlement to service connection. The question before the Board is whether new and material evidence has been submitted to reopen the claim. The Board finds that it has and will reopen the claim. The Veteran’s initial claim seeking entitlement to service connection for PTSD was denied in an April 2014 rating decision because the medical evidence of record did not establish that he was diagnosed with PTSD. The Veteran did not appeal that decision or submit new and material evidence within one year; it became final. Evidence of record at that time of the Board decision included the Veteran’s service treatment records, post-service medical records, as well as the Veteran’s lay statements. In January 2017, the Veteran filed his current petition to reopen the claim seeking service connection. Among the newly submitted medical evidence submitted in support of his petition is an August 2019 private examination report showing the Veteran was diagnosed with adjustment disorder with mixed anxiety and depressed mood. The private examiner provided an opinion stating that it was more likely than not that the Veteran’s diagnosed psychiatric condition began during his military service. This evidence was not of record at the time of the prior final rating decision, and therefore, the medical record is new. As service connection for the Veteran’s claim was denied because he did not have a confirmed psychiatric diagnosis, this new medical evidence directly relates to the basis of the prior final denial and satisfies the low threshold requirement for new and material evidence. Accordingly, the Board finds that new and material evidence sufficient to reopen a claim for service connection has been received, and the claim is reopened. 2. Whether new and material evidence has been submitted sufficient to reopen a claim for entitlement to service connection for bilateral hearing loss 3. Whether new and material evidence has been submitted sufficient to reopen a claim for entitlement to service connection for tinnitus The Veteran seeks to reopen two previously denied claims seeking entitlement to service connection for bilateral hearing loss and tinnitus. The question before the Board is whether new and material evidence has been submitted to reopen the respective claims. The Board finds that new and material evidence has not been received sufficient to reopen either claim. The Veteran’s original claims seeking entitlement to service connection for bilateral hearing loss and tinnitus were each denied in an April 2014 rating decision because neither condition was found to have been incurred in or caused by active duty service. The Veteran did not appeal that decision or submit new and material evidence within one year; both service connection claims became final. In January 2017, the Veteran filed his current petition to reopen the claims seeking service connection. Evidence received since the last final April 2014 rating decision includes numerous VA and private medical records, as well as the Veteran’s lay statements that he is entitled to this benefit. The Veteran’s statements generally maintaining he is entitled to this benefit are essentially the same ones he made at the time of the April 2014 rating decision. As such, his statements are not new. The medical records were not in his claims file at the time of the April 2014 rating decision, and therefore, the VA and private treatment records are new. However, none of this recently submitted evidence establishes that either the Veteran’s hearing loss or tinnitus is related to his active duty service. As such, the Board finds that these medical records are not material. Accordingly, the Board finds that new and material evidence has not been received to reopen the Veteran’s service connection claims for either hearing loss or tinnitus, and the appeal is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d); Cosman v. Principi, 3 Vet. App. 503 (1992). 4. Entitlement to service connection for hypertension 5. Entitlement to service connection for an exophytic cyst of the right kidney The Veteran contends that he suffers from hypertension and an exophytic cyst of the right kidney that are each related to active duty service. For the reasons that follow, the Board finds that his claims are not warranted, and they are denied. Post-service medical records reflect the Veteran has been diagnosed with essential hypertension. See August 2018 VA treatment record. VA treatment records also document imaging results showing the Veteran had an exophytic mass in his right kidney. See, e.g., October 2018 VA hepatology note. However, there is no competent evidence of record suggesting that either of these claimed disabilities are related to service. Further, the Veteran does not provide any specific statements explaining how or why he believes either of these disabilities may be related to his active duty service, besides the general assertion that he is entitled to service connection. Absent probative evidence indicating either an incurrence of the claimed disabilities during service or suggesting a relationship between either of these claimed conditions and active duty service, there is no basis upon which to award service connection. The Board has considered the Veteran’s argument that the claimed disabilities are related to service. However, the diagnosis and etiology of the disabilities are outside the realm of common knowledge of a lay person because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on the foregoing, the Board finds that the preponderance of the probative and persuasive evidence is against a finding of service connection for hypertension or an exophytic cyst of the right kidney. Thus, the respective claims for service connection are denied. As the preponderance of the evidence is against the Veteran’s respective claims, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C. § 5107 (b). Increased Rating Disability evaluations are determined by comparing a veteran’s present symptoms with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, the Board will assign staged ratings for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505 (2007). 6. Entitlement to an initial disability rating in excess of 30 percent for coronary artery disease The Veteran contends that an increased rating is warranted as he experienced severe symptoms of his coronary artery disease. As will be discussed in more detail below, the Board concludes that the overall symptomatology and level of impairment did not more closely approximate those indicative of a 60 percent rating throughout the appeal period. An evaluation higher than 30 percent is not warranted. The Veteran’s disability is evaluated pursuant to 38 C.F.R. § 4.104, DC 7005. Under DC 7005, a 30 percent rating is warranted where there is workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness or syncope; or, where there is evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram or X-ray. A 60 percent evaluation is warranted where there is evidence of more than one episode of acute congestive heart failure in the past year; or, workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent evaluation is warranted where there is chronic congestive heart failure; or workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness or syncope; or, left ventricular dysfunction with an ejection fraction of less than 30 percent. One MET (metabolic equivalent) is defined as the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note (2). Turning to the evidence of record, the Veteran underwent a VA examination in March 2017 to evaluate the severity of his coronary artery disease. The examiner noted that the Veteran’s treatment plan included taking continuous medication for his condition. He was not found to have congestive heart failure. On interview-based METs testing, the examiner found that the lowest activity level at which the Veteran reported dyspnea or fatigue attributable to a cardiac condition was between 5 and 7 METs, a level consistent with activities such as walking up one flight of stairs, golfing without a cart, mowing the lawn with a push mower, or doing heavy yard work. There was no evidence of either cardiac hypertrophy or dilatation, and the left ventricular ejection fraction was 60 percent. A September 2018 VA treatment record noted that a recent echocardiogram showed a visually estimated ejection fraction of between 55 and 60 percent. A February 2019 VA treatment record showed the Veteran underwent a congestive heart failure screen. The examiner noted that the Veteran did not have any known systolic dysfunction. An April 2019 VA cardiology progress note stated the Veteran did not experience exertional chest pain or pressure, dyspnea, palpitations, dizziness, pre-syncope, syncope or a transient ischemic attack. The examiner found no anginal symptoms. Based on this evidence, assignment of a rating in excess of the currently assigned 30 percent is not warranted. First, there is no evidence of any episodes of congestive heart failure. Second, there is no evidence the Veteran experienced a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness or syncope. Third, the Veteran did not have left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Thus, the criteria for an increased rating are not more closely approximated and the criteria for a 60 percent rating have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.104, DC 7017. Earlier Effective Date 7. Entitlement to an earlier effective date prior to January 16, 2017, for the award for service connection for coronary artery disease The Veteran seeks earlier effective dates for the award of service connection for coronary artery disease. Following a review of the pertinent evidence of record, the Board finds that assignment of an earlier effective date for service connection of the Veteran’s claim is not warranted. Regulations defining a “claim” were revised effective March 24, 2015 and apply only to claims and appeals filed after that date. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. The Board finds the Veteran is already in receipt of the earliest possible effective date for his disability. The Veteran submitted his service connection claim on January 16, 2017. A thorough review of the claims file shows no written communication by either the Veteran or his representative evidencing any intent to seek compensation disability benefits for coronary artery disease prior to this date. As there is no claim of service connection prior to January 16, 2017, the preponderance of the evidence is against the claim for entitlement to an earlier effective date and it is denied. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. Having reopened the Veteran’s service connection claim for an acquired psychiatric disorder, remand is needed to afford the Veteran a VA examination with opinion on whether any diagnosed psychiatric condition, to include adjustment disorder, is related to active duty service. 2. Entitlement to service connection for headaches is remanded. The Veteran maintains that he suffers from headaches that are secondary to his psychiatric disability. As this issue is inextricably intertwined with the pending service connection claim for an acquired psychiatric disability, it must be deferred until the psychiatric claim is resolved. 3. Entitlement to special monthly compensation based on aid and attendance/housebound status is remanded. The Veteran’s claim for special monthly compensation is inextricably intertwined with the other claims being remanded. It therefore must be deferred until further development is completed. As these issues are being remanded for further development, the Veteran’s claims folder should also be updated to include all outstanding VA treatment records. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records dated from January 2020 to the present and associate those documents with the Veteran’s claims file. 2. After completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed acquired psychiatric disorder, to include adjustment disorder. The examiner is asked to clearly denote all diagnosed psychiatric conditions and then provide an opinion as to whether it is at least as likely as not that any such diagnosed condition is related to an in-service injury, event, or disease. A complete rationale must be provided for all opinions. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to service connection for headaches and entitlement to special monthly compensation based upon aid and attendance/housebound status. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jack S. Komperda, 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.