Citation Nr: 21026888 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-26 688 DATE: May 4, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim for service connection for hypertensive retinopathy is granted. An effective date earlier than March 29, 2013, for the assignment of a 100 percent rating for the service-connected ischemic heart disease is denied. [The appeal of the claim for entitlement to a clothing allowance will be the subject of a separate decision.] REMANDED Entitlement to service connection for tuberculosis as secondary to the service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for hypertensive retinopathy is remanded. FINDINGS OF FACT 1. An unappealed October 2013 rating decision denied service connection for hypertensive retinopathy, and new and material evidence was not received within one year of that decision. 2. The evidence associated with the file since the October 2013 rating decision includes evidence that relates to unestablished facts necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the claim for service connection for hypertensive retinopathy. 3. A November 2011 rating decision granted service connection for ischemic heart disease and assigned a 10 percent rating effective September 27, 2006 and a 60 percent rating from August 3, 2011. In doing so, the rating decision also denied a rating in excess of those assigned for ischemic heart disease during the staged periods. Since the November 2011 rating decision, the first communication from the Veteran to VA evidencing his intent to claim a higher rating for the service-connected ischemic heart disease was received on March 29, 2013. Prior to March 29, 2013, it was not factually ascertainable that an increase in the severity of the Veteran's ischemic heart disease had occurred. CONCLUSIONS OF LAW 1. The October 2013 rating decision that denied service connection for hypertensive retinopathy is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 2. The evidence received since the October 2013 rating decision is new and material evidence and serves to reopen the Veteran's claim for service connection for hypertensive retinopathy. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for an effective date earlier than March 29, 2013, for the award of a 100 percent rating for the service-connected ischemic heart disease have not been met. 38 U.S.C. §§ 1155, 5110(a); 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1970 to January 1972, to include service in the Republic of Vietnam. The record reflects that the Veteran appeared for two Board of Veterans' Appeals (Board) hearings stemming from his appeal in this matter, in September 2019 and August 2020. The September 2019 hearing transcript is unavailable, and such was explained to the Veteran. The August 2020 hearing was held before a Veterans Law Judge who is no longer employed at the Board. The Veteran was notified of such in a February 2021 letter from VA to the Veteran, which informed him that, if he did not respond within 30 days to elect another Board hearing, the Board would proceed with deciding his appeal. The Veteran did not respond to this letter. As such, the Board will decide the issues based upon the evidence of record. At the August 2020 hearing, the Veteran testified as to the issue of entitlement to a clothing allowance. As that appeal originated from a medical center, rather than the Regional Office (RO) where the claims addressed herein were originally decided, per Board policy, it must be decided in a separate decision. Finally, the Veteran had originally pursued his claim for benefits for contracting tuberculosis as a claim for benefits pursuant to 38 U.S.C. § 1151. However, to better reflect the Veteran's contentions about contracting tuberculosis while being treated for PTSD, a condition for which he is service-connected, the issue has been recharacterized as a claim for secondary service connection. New and Material EvidenceHypertensive Retinopathy A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing 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 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. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Regardless of how the RO decided a reopening question, the Board must consider the matter on appeal. Reopening is a threshold jurisdictional question for the Board. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The United States Court of Appeals for Veterans Claims (Court) has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material, even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). When making a decision as to whether received evidence meets the definition of new and material evidence, the Board is cognizant of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In an October 2013 rating decision, the RO denied service connection for hypertensive retinopathy because the RO found that there was no nexus between that condition and any aspect of the Veteran's military service. The Veteran did not perfect an appeal on this adverse determination, nor did he submit any additional evidence within the time frame needed to prevent it from becoming final. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Thus, the October 2013 rating decision became final as to this issue, based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. The evidence added to the record since the October 2013 rating decision includes the Veteran's August 2020 Board testimony that his "eye problems" began during his active service period while he was in Vietnam. This evidence, presumed as credible for new and material purposes, relates to an element of the Veteran's claim which was not met when the claim was first denied in October 2013. Thus, this evidence is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim for service connection for hypertensive retinopathy. As such, the claim is reopened. Earlier Effective Date Grant of 100% for Ischemic Heart Disease The effective date of a grant of an increased evaluation is based upon a variety of factors, including the date of claim, date entitlement is shown, and finality of prior decisions. U.S.C. § 5110; 38 C.F.R. § 3.400. U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) provide an exception to the general rule for increased rating claims by stating that the effective date of an increased rating shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from such date, otherwise, date of claim. Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992). The term claim or application means 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). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. Such 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. 38 C.F.R. § 3.155 (a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The Veteran contends that he is entitled to an effective date earlier than March 29, 2013, for the assignment of the 100 percent disability rating for his ischemic heart disease. Specifically, he contends he should be awarded a 100 percent rating earlier than March 29, 2013, because he had the condition and was being treated for it prior to that date. The Veteran was granted service connection and assigned an initial staged rating of 10 percent effective September 27, 2006, and 60 percent effective August 3, 2011, for his ischemic heart disease in an unappealed November 2011 rating decision which became final. The Veteran filed a new claim on March 29, 2013, wherein he claimed an increase in the rating assigned for his ischemic heart disease. The Board has carefully reviewed the evidence of record and has found no formal or informal communication prior to March 29, 2013, that expressed an intent to file an increased rating claim for this service-connected condition. An earlier effective date may be established for the assignment of a 100 percent rating for the service-connected ischemic heart disease if the evidence demonstrates that, during the one-year period prior to his March 29, 2013, increased rating claim, there was a factually ascertainable increase in disability. Nonetheless, the record does not otherwise show communications or evidence submitted by the Veteran or on his behalf during the one-year period prior to his March 2013 increased rating claim pertaining to his heart condition. Thus, the record does not show a factually ascertainable increase in his ischemic heart disease within one year prior to the March 2013 increased rating claim. Based on the foregoing, the Board finds that the claim for an effective date earlier than March 29, 2013, for the assignment of a 100 percent rating for the service-connected ischemic heart disease must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the Veteran's claim of entitlement to an earlier effective date, however, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Service connection for tuberculosis as secondary to service-connected PTSD The Veteran also seeks compensation for inactive tuberculosis which he asserts resulted from being exposed to tuberculosis while inpatient at a VA Medical Center for PTSD treatment in May and June of 2009. He underwent a VA examination to determine the etiology of his inactive tuberculosis in February 2012. The examiner opined against the Veteran's tuberculosis being related to his time inpatient for PTSD. He reasoned that the Veteran's 2009 medical records showed that he had a positive skin test in March or April of 2009, but did not have active tuberculosis at that time, as proven by sputum cultures and chest imaging. He concluded that it was less likely than not that tuberculosis was incurred in the 2009 PTSD program because the Veteran did not have tuberculosis but rather only had a positive tuberculosis PPD skin test which showed exposure. He also said there was no evidence as to when the Veteran was exposed. The Board has been unable to locate a March or April 2009 PPD test in the Veteran's medical records currently associated with the claims file. The Veteran was an inpatient for PTSD with VA in 2009 from May 18, 2009, to June 4, 2009, and the record includes a May 2009 positive PPD test during his inpatient care. As such, the RO should ensure that all VA treatment records are associated with the claims file. A new VA medical opinion is needed to address the etiology of the Veteran's current inactive tuberculosis with an accurate account of the documented medical history related to this condition. If the new opinion concludes that the Veteran's tuberculosis was not related to his 2009 PTSD treatment because it was inactive during that time, the examiner must also explain the relationship between exposure and active or inactive status of the tuberculosis, and why a finding that the tuberculosis was inactive precludes a finding of concurrent exposure. Service connection for hypertensive retinopathy The Veteran seeks service connection for hypertensive retinopathy. He believes that service connection is warranted as either secondary to hypertension, a condition for which he is not currently service-connected, or on a direct basis. At the recent hearing, he testified that his "eye problems" began in service but did not describe what "eye problems" he experienced in service. So, the Board is unable to determine whether those "eye problems" are the same symptoms he experiences currently with hypertensive retinopathy. Further, his argument for secondary service connection was based on his theory that his conceded Agent Orange exposure caused his hypertension which caused his hypertensive retinopathy. The Veteran has not been afforded a VA examination to determine the etiology of his hypertensive retinopathy. Although he is not service-connected for hypertension, his theory of secondary service connection raises the possibility that his hypertensive retinopathy could be directly associated with his Agent Orange exposure. A VA examination is needed to address this possibility as well as his contention that his hypertensive retinopathy symptoms are related to the "eye problems" he has testified he began to experience in service. Accordingly, these matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records, specifically for the years 2008 through 2010, to include any record of a March or April 2009 PPD test. 2. Then, obtain a VA medical opinion regarding the etiology of the Veteran's tuberculosis from an appropriate VA examiner. If an opinion cannot be provided without an examination, one should be provided. The examiner is asked to clarify the timeline of all positive indications of tuberculosis prior to, and during, the Veteran's May through June 2009 VA inpatient treatment for PTSD and respond to the following questions: (a.) Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's tuberculosis was caused by exposure during his inpatient VA treatment for PTSD from May 18, 2009, to June 4, 2009? (b.) Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's tuberculosis was aggravated (i.e., made worse) by his inpatient VA treatment for PTSD from May 18, 2009, to June 4, 2009? If so, the examiner should identify the degree of impairment that is due to such aggravation. If the examiner concludes that the Veteran's tuberculosis was not related to his 2009 PTSD treatment because it was inactive during that time, the examiner must also explain the relationship between exposure and active or inactive status of the tuberculosis, and why a finding that the tuberculosis was inactive precludes a finding of concurrent or nearly concurrent exposure. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or is the result of an exhaustion of the limits of current medical knowledge in providing an answer to that particular question. 3. Also, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his hypertensive retinopathy. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the following opinion: Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's hypertensive retinopathy onset in service or is otherwise related to his service or any incident thereof, to include the "eye problems" he has testified he began experiencing in service, and/or as a result of his presumed exposure to herbicide agents therein? The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, Associate 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.