Citation Nr: 21020826 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 07-31 256A DATE: April 8, 2021 ORDER New and material evidence to reopen the claims for entitlement to compensation for weight gain, diabetes mellitus, type II, and vision problems, also claimed as entitlement to service connection and/or entitlement to benefits under 38 U.S.C. § 1151, has been received; thus, the claims are reopened. Entitlement to service connection for metabolic syndrome, also claimed as weight gain, is granted. Entitlement to service connection for diabetes mellitus, type II (diabetes) is granted. REMANDED Entitlement to compensation for vision problems, claimed as entitlement to service connection and/or entitlement to benefits under 38 U.S.C. § 1151; and entitlement to a total disability rating based on individual unemployability (TDIU) is remanded to the agency of original jurisdiction (AOJ) for additional action. FINDINGS OF FACT 1. In an October 2007 rating decision, the AOJ denied the Veteran’s claim of entitlement to benefits related to side-effects of his psychiatric medication. That claim was not appealed. 2. Since the October 2007 rating decision, the Veteran has submitted new and material evidence sufficient to reopen his claim. 3. The Veteran’s metabolic syndrome is etiologically related to his service-connected anxiety disorder 4. The Veteran’s diabetes is etiologically related to his service-connected anxiety disorder. CONCLUSIONS OF LAW 1. The October 2007 rating decision is final with respect to the Veteran’s claims to establish entitlement to benefits related to side-effects of his psychiatric medication. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. 2. The additional evidence received since the October 2007 rating decision is new and material to the claim for entitlement to benefits related to side-effects of his psychiatric medication; therefore, the claims are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for metabolic syndrome are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for diabetes are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1979 to February 1980. The Veteran’s claims were before the Board in February 2012, February 2015, April 2017, May 2018, and December 2020. Through a February 2021 rating decision, the Veteran’s claims for service connection for a neck, back, and left knee disorders, and radiculopathy related to those conditions, were granted. Thus, those claims are no longer on appeal. The Veteran has testified at several hearings, most recently before the undersigned Veteran’s Law Judge (VLJ) in October 2020. A transcript of this hearing has been associated with the claims file. The Veteran waived his right to have another hearing. Since the first rating decision in October 2007 that addressed the Veteran’s claims on appeal, the claims have been considered as follows: “entitlement to compensation benefits under 38 U.S.C. § 1151 for [a disability] due to medication prescribed by VA.” In this regard, the Board notes that the Veteran has been consistent that his medication (Seroquel) has caused these problems and he was prescribed the medication for his psychiatric condition, notably anxiety. It was not until May 2018, that the Board granted service connection for anxiety, however the Veteran’s claims continued to be considered under § 1151. Given that the Veteran has been clear in his assertion that Seroquel is related to the claims on appeal, the Board has recaptioned the claims on appeal as standard service connection claims. As for the claim of service connection for vision loss that is addressed in the Remand section below, as the claim is not being granted, that claim should continued to be considered under both theories of compensation. New and material evidence 1. New and material evidence to reopen the claim for entitlement to benefits related to side-effects of psychiatric medication Generally, a claim in the legacy system that has been denied in an unappealed decision may not be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. VA defines “new” evidence is existing evidence not previously submitted to agency decisionmakers. “Material” evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. “New and material evidence” can neither be cumulative 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). Regardless of what action was taken by the agency of original jurisdiction, the Board is under a statutory obligation to conduct a de novo review of the new and material issue. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). 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, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include 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. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). With regard to the new and material evidence submitted for the Veteran’s original claim, entitlement to benefits related to side-effects of his psychiatric medication was denied in October 2007, in part because the Veteran was not service-connected for anxiety at that time. Since that previous final denial, the Veteran’s claims file includes new VA medical records, VA examinations, and other opinions. The above evidence is “new,” as it was not before VA at the time of the October 2007 rating decision, and “material” as it raises the reasonable possibility of substantiating the previously-denied issue. To this point, the Board thus finds that new and material evidence has been submitted to reopen the claims for entitlement to benefits related to side-effects of his psychiatric medication. On that basis, the claims are reopened. Service Connection 2. Service connection for metabolic syndrome; and, 3. Service connection for diabetes The Veteran has consistently contended that his weight gain (metabolic syndrome) has caused an array of medical problems to include diabetes. Further, he has consistently contended that his psychiatric medication, Seroquel, caused the weight gain and diabetes which led to other problems. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The first inquiry for the Board is the Veteran’s current diagnoses. The December 2019 VA examiner assessed diagnoses of metabolic disorder (weight gain) and diabetes, mellitus, type II. The Veteran is service-connected for anxiety and takes or has taken Seroquel for this condition. Thus, the first two criteria for service connection are met. Turning to whether the Veteran’s conditions are etiologically related to Seroquel, the Veteran submitted a private opinion from C.B., M.D., dated December 2011. Dr. C.B. gave the opinion that the Veteran’s weight gain and diabetes are at least as likely as not related to his Seroquel prescription because Seroquel is known to cause weight gain. See Medical Treatment Record-Non Government Facility, marked received September 29, 2010, pages 1-11 of 93. Further, a VA opinion received February 2021 echoes the reasoning of Dr. C.B. and it was under this theory that the Veteran was awarded service connection for his left knee. Given the above, the Board finds the criteria for service connection for metabolic syndrome and diabetes to be met. As this represents a grant of benefits for compensation, the Board will not address the merits of the claims for compensation under 38 U.S.C. § 1151 as they are now moot (benefits awarded under 38 U.S.C. § 1151 are the same or less as service connection). Thus, service connection for these conditions is granted. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 4. Entitlement to compensation for vision problems, claimed as entitlement to service connection and/or entitlement to benefits under 38 U.S.C. § 1151, is remanded. As addressed above, the Veteran’s claim for benefits related to his vision problems should be considered under theories of 38 U.S.C. § 1151 and as secondary to problems stemming from his medication for his service-connected anxiety condition. The file contains an opinion for the 38 U.S.C. § 1151 claim, but no opinion on whether the Veteran’s vision issues were caused or aggravated by his service-connected conditions, to now include diabetes mellitus, type II. 5. Entitlement to a TDIU is remanded. Preliminarily, the Board notes that the AOJ must assign initial ratings for the now service-connected disabilities above. Thus, those ratings could significantly impact a decision on the issue of entitlement to a TDIU and the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). A February 2021 rating decision most recently denied the Veteran’s claim for a TDIU. After implementing ratings for his recently service-connected disabilities, the Veteran’s total combined ratings are as follows: 70 percent from November 15, 2004; 80 percent from July 21, 2009; and 100 percent from December 8, 2019. The AOJ noted that per the Veteran’s application for a TDIU, he was last employed as laundry attendant from February 2017 through May 2018. See VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, received June 5, 2018. The Veteran’s file indicates that he was in receipt of Social Security Disability since December 2007 and his benefit status has not been reopened due to employment. See SSA/SSI letter, received April 29, 2010. According to the Veteran’s application for a TDIU, he stated that he did side work from June 2011 to May 2018, which appears to be in addition to the other work he listed on his application. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Factors to be considered in determining whether unemployability exists are the Veteran’s education, employment history, and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). The ultimate question is whether the veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The record is unclear as to the extent of the Veteran’s earnings during the period on appeal. While the Veteran may have been employed, that work may have been marginal and thus he could qualify for a TDIU. Thus, a remand is required to allow the Veteran to submit his earnings history from Social Security and any other information that the Board might find helpful in determining whether the Veteran was employed gainfully or marginally. The Board wishes to emphasize that “[t]he duty to assist in the development and adjudication of a claim is not a one-way street.” Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). “If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the responsibility of appellants to cooperate with VA. See Olson v. Principi, 3 Vet. App. 480, 483 (1992). The Veteran is on notice that failure to cooperate with the requested development may result in an adverse determination. The matters are REMANDED for the following action: 1. Request that the Veteran submit records related to his earnings history, to include Social Security records or any other information regarding whether the Veteran was employed gainfully or marginally. 2. Obtain an opinion related to the Veteran’s claimed vision disability from a qualified clinician. After a review of the Veteran’s file, the clinician should render an opinion on the following questions: a. What, if any, disabilities related to the Veteran’s vision has he had over the course of the appeal (since 2007). The clinician should consider the October 2019 VA examination; b. Is it at least as likely as not that the Veteran’s vision conditions were (a) caused and/or (b) is aggravated by his service-connected conditions, specifically metabolic syndrome or diabetes mellitus, type II. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. The Veteran is service-connected for the following conditions: anxiety, sciatic radiculopathy of each extremity, degenerative disc disease of the cervical spine, degenerative disc disease of the lumbar spine, left knee arthritis, metabolic syndrome, and diabetes mellitus. 3. Thereafter, readjudicate the Veteran’s claim of entitlement to a TDIU. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.