Citation Nr: 21040973 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-58 472 DATE: July 7, 2021 ORDER New and material evidence having been received, the petition to reopen the claim of service connection for high cholesterol and/or a weakened immune system is granted. Entitlement to service connection for high cholesterol and/or a weakened immune system is denied. Entitlement to an effective date earlier than August 15, 2014 for the grant of service connection for a traumatic brain injury (TBI) with memory loss is denied. Entitlement to an effective date earlier than August 15, 2014 for the grant of service connection for scar associated with TBI is denied. For the period prior to August 1, 2008, entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities is denied. FINDINGS OF FACT 1. In a January 2010 decision, the Board denied entitlement to service connection for high cholesterol; the Veteran did not file a notice of appeal. A special review was conducted in March 2011 and the claim remained denied. No appeal was made. 2. Additional evidence received since the Board's decision is new and relates to an unestablished fact necessary to substantiate the claim of service connection for high cholesterol and/or a weakened immune system. 3. High blood cholesterol is a laboratory finding and not a chronic disability for VA compensation purposes. 4. A disability manifested by a weakened immune system has not been shown. 5. On August 15, 2014, the Veteran filed a claim of service connection for a TBI. 6. For the period prior to August 1, 2008, the weight of the evidence is against a finding that the Veteran's service-connected disabilities preclude gainful employment. CONCLUSIONS OF LAW 1. New and material evidence has been received since the January 2010 Board decision and the March 2011 RO special review that denied entitlement to service connection for high cholesterol and the claim is reopened. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for high cholesterol and/or weakened immune system have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303. 3. The criteria for an effective date prior to August 15, 2014, for the grant of service connection for a TBI have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 4. The criteria for an effective date prior to August 15, 2014, for the grant of service connection for scar associated with a TBI have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.3.400. 5. For the period prior to August 1, 2008, the criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1967 to November 1971. These matters came to the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2011 rating decision, the RO conducted a special review of a prior denial of service connection for high cholesterol, as all chronic B-cell leukemias (including, but limited to, hairy-cell leukemia and chronic lymphocytic leukemia) were added to the list of presumptive disabilities due to herbicide exposure, effective August 31, 2010, and due to the Nehmer line of cases. See 75 Fed. Reg. 53,202 (August 31, 2010); see 38 C.F.R. § 3.816; Nehmer v. U.S. Veterans Admin., 32 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. U.S. Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal 1999) (Nehmer II); Nehmer v. Veterans Admin. of the Gov't of the U. S., 284 F.3d 1158 (9th Cir. 2002) (Nehmer III); Nehmer v. U.S. Veterans Admin., 494 F.3d. 846 (2007) (Nehmer IV). Specifically, the RO determined that a special review was warranted as his high cholesterol had been considered under the Schedule of Ratings for the Hemic and Lymphatic systems. Service connection for high cholesterol was denied in the March 2011 rating decision; per Nehmer there was no further need to review the claim as there was no evidence or contention that the Veteran had been exposed to herbicides while serving in the country of the Republic of Vietnam. A notice of disagreement was received in March 2012, a statement of the case was issued in May 2014, and a substantive appeal was received in June 2014. In a May 2015 rating decision, it was determined that new and material evidence had not been received to reopen the claim of service connection for high cholesterol. In a May 2012 rating decision, a TDIU was granted effective February 8, 2010. While the Veteran did not file a notice of disagreement, as he had testified that he had stopped working in July 2008 due to his service-connected disabilities, in August 2015 the Board took jurisdiction of the period prior to February 8, 2010. In a June 2020 rating decision, a TDIU was granted effective August 1, 2008. In a May 2015 rating decision, entitlement to service connection for a TBI with memory loss (40%) and scar associated with TBI (0%) was granted effective August 15, 2014. In June 2015, the Veteran filed a notice of disagreement with regard to the effective date assigned. A statement of the case was issued in October 2016 and a substantive appeal was received in November 2016. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in December 2016 with regard to the issues pertaining to high cholesterol/weakened immune system and a TDIU; the transcript is of record. The issues were remanded in May 2018. New & Material Evidence Even where the RO determines that new and material evidence has been received to reopen a claim, or that an entirely new claim has been received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C. § 5108. See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). New and 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 and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. In May 2005, the Veteran filed an informal claim of service connection, indicating as follows: "my immune system has been weakened due to the stress of my service connected anxiety condition." In an August 2005 rating decision, the RO denied service connection for high cholesterol (claimed as weakened immune system) as there were diagnoses of record and no opinions linking these conditions to his anxiety. The Veteran perfected an appeal, to include an assertion in his March 2007 substantive appeal that his high cholesterol/weakened immune system was due to exposure to herbicides. In a January 2010 decision, the Board denied service connection for high cholesterol as a matter of law on the basis that such does not constitute a disability. 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (stating that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities). The Veteran did not file a notice of appeal and the Board decision is final. As detailed above, in March 2011 the RO conducted a special review of the prior denial of service connection for high cholesterol, as all chronic B-cell leukemias (including, but limited to, hairy-cell leukemia and chronic lymphocytic leukemia) were added to the list of presumptive disabilities due to herbicide exposure, effective August 31, 2010, and due to the Nehmer line of cases. See 75 Fed. Reg. 53,202 (August 31, 2010); see 38 C.F.R. § 3.816; Nehmer v. U.S. Veterans Admin., 32 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. U.S. Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal 1999) (Nehmer II); Nehmer v. Veterans Admin. of the Gov't of the U. S., 284 F.3d 1158 (9th Cir. 2002) (Nehmer III); Nehmer v. U.S. Veterans Admin., 494 F.3d. 846 (2007) (Nehmer IV). Specifically, the RO determined that a special review was warranted as his high cholesterol had been considered under the Schedule of Ratings for the Hemic and Lymphatic systems. Service connection for high cholesterol was denied in the March 2011 rating decision; per Nehmer there was no further need to review the claim as there was no evidence or contention that the Veteran had been exposed to herbicides while serving in the country of the Republic of Vietnam. In a May 2015 rating decision, it was determined that new and material evidence had not been received to reopen the claim of service connection for high cholesterol. In an August 2018 decision, the Board found that the Veteran was exposed to herbicides while serving in Thailand in the United States Air Force security police and determined that his coronary artery disease was due to his in-service herbicide exposure. Based on the finding that the Veteran was exposed to herbicides during service and based on the Veteran's assertion that he has high cholesterol/weakened immune system due to herbicide exposure, the Board finds that such provides the basis for reopening the claim. For the above reasons, the claim of service connection for high cholesterol and/or a weakened immune system is reopened. 38 U.S.C. § 5108. Service Connection The Veteran has claimed high cholesterol and/or a weakened immune system due to service, to include conceded in-service exposure to herbicides while serving in Thailand. While acknowledging that the Veteran may have high cholesterol, this finding is not recognized as a disability for VA benefits purposes. See 38 U.S.C. §§ 101(16), 105(a), 1110; 38 C.F.R. § 3.303(c); see also 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (stating that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities). The term "disability" as used for VA purposes refers to impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability, thus in the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, an award of service connection for high cholesterol is not warranted as a matter of law. With regard to his claim of service connection for a weakened immune system, review of the medical records do not reflect that a disability manifested by a weakened immune system has been diagnosed. In the absence of proof of a current chronic disability manifested by a weakened immune system there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. In the absence of any competent evidence of a diagnosis of a disability manifested by a weakened immune system, the Board must conclude the Veteran does not currently suffer from such a disability. The Board has given consideration to the lay contentions of the Veteran, however, the medical evidence, or lack thereof, outweigh the lay contentions of the Veteran. Earlier Effective Date The Veteran seeks entitlement to an effective date earlier than August 15, 2014 for the grant of service connection for a TBI and for a scar associated with TBI. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and an award of pension, compensation or dependency and indemnity compensation based on an original claim or a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of VA must be filed for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a)(1); 38 C.F.R. § 3.151(a). For claims received on or after March 24, 2015, VA amended its regulations governing how to file a claim. The effect of the amendment was to standardize the process of filing claims, and the forms accepted, to increase the efficiency, accuracy, and timeliness of claims processing, and to eliminate the concept of informal claims. 38 C.F.R. § 3.155; 79 Fed. Reg. 57660-01. However, prior to the effective date of the amendment, an informal claim was any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). 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 veteran, it will be considered filed as of the date of receipt of the informal claim. On the other hand, if the formal claim is received after one year of its receipt, then the effective date will be the date of VA's receipt of the formal application form. Jernigan v. Shinseki, 25 Vet. App. 220 (2012); 38 U.S.C. § 5103(b); 38 C.F.R. § 3.155. However, the effective date of a claim will be the date of the informal claim if VA did not send a claimant a formal application form after receiving an informal claim, as required by 38 C.F.R. § 3.155, because the one-year time limit to return the formal claim did not begin. Quarles v. Derwinski, 3 Vet. App. 129 (1992). By way of history, on August 15, 2014, the Veteran filed a VA 21-526EZ, Fully Developed Claim, claiming service connection for a TBI. In support of his claim, the Veteran submitted a December 2012 private neuropsychological evaluation which reflected diagnoses of cognitive disorder not otherwise specified (post-concussional disorder), PTSD, and major depressive disorder. In March 2015, the Veteran underwent a C&P examination in which a TBI and memory loss were diagnosed. In a May 2015 rating decision, service connection was established for a TBI (40%) and a scar associated with TBI (0%), effective August 15, 2014. The Veteran asserts that an earlier effective date should be granted for a TBI and associated scar as these conditions are shown in his service treatment records and a claim was reasonably implied. In November 1971 the Veteran filed claims of service connection for a nervous condition, stomach discomfort, and breaking of heels. Service connection was established for anxiety neurosis with GI symptoms (10%) effective November 6, 1971. In May 2005, the Veteran filed a claim of service connection for a heart disability and a weakened immune system and an increased rating claim for his anxiety neurosis. The Veteran's June 2008 claim for a TDIU only referenced PTSD. It was not until August 15, 2014 that the Veteran filed a claim of service connection for a TBI. The effective date assigned for an original claim for compensation will be the date of receipt of the claim or the date the entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). Moreover, the mere presence of medical evidence of a disability does not show an intent on the Veteran's part to seek service connection and therefore does not constitute a claim; rather, the Veteran must assert a claim either expressly or impliedly. VA is not required to conjure up issues not raised by the claimant. See Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995) (noting that although VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant). In this case, service treatment records reflect the Veteran's report that he sustained an injury to his head and unconsciousness when he hit his head on a wing flap (see 10/11/2011 STR-Medical at 7) and he claims he was hit by a beer bottle on his head during an altercation during active service. See 03/25/2015 C&P Exam. The fact that the Veteran sustained a head injury during service does not constitute an express or implied assertion from the Veteran that he is seeking service connection for a TBI or residuals from the head injury. There must be a showing from the Veteran that he intends to claim a disability. In the present case, the Veteran did not file a claim of service connection for a TBI until August 15, 2014. The evidence of record does not contain any documentation prior to this date reflecting an intent to claim service connection for this disability, nor does the Veteran contend that he filed a claim prior to such date. See MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that there must be some intent expressed to apply for benefits and endorsing the Court's holding in Brannon v. West, 12 Vet. App. 32, 35 (1998) ("The mere presence of the medical evidence does not establish an intent on the part of the veteran to seek ... service connection[.]")). Consequently, there is no legal basis for assigning an effective date prior to August 15, 2014. In summary, VA is not free to award a retroactive effective date prior to the date it receives a claim unless there is specific statutory or regulatory authority for such retroactive effective date. As there is no such provision which authorizes VA to award benefits retroactively, his claim for an earlier effective date for the award of service connection for peripheral vestibular disorder must be denied. The evidence is not so evenly balanced as to allow for the application of reasonable doubt. 38 U.S.C. § 5107(b). For the above reasons, the Board concludes that an effective date earlier than August 15, 2014, for the grant of service connection for a TBI with memory loss and a scar associated with TBI is not warranted. Entitlement to a TDIU prior to August 1, 2008 Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not her age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In determining whether a Veteran is entitled to a total disability rating based upon individual unemployability, the Veteran's non-service-connected disabilities and his advancing age are not for consideration. See 38 C.F.R. § 3.341(a); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The Board's task is to determine whether there are circumstances apart from the non-service-connected conditions and advancing age which would justify a total disability rating based on unemployability. In other words, the Board must determine if there are circumstances, apart from non-service-connected disabilities, that place this Veteran in a different position than other veterans. See 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1995). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Service connection is in effect for posttraumatic stress disorder (PTSD) (70% 05/12/2005); coronary artery disease (60% 05/12/2005); traumatic brain injury (40% 08/15/2014); scar associated with TBI (0% 08/15/2014); and, hypertension (0% 04/20/2017). As detailed, a TDIU is in effect from August 1, 2008. From May 12, 2005, the Veteran's combined rating is 90%. Thus, his service-connected disabilities meet the minimum schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). In June 2008, the Veteran submitted a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. He reported that he did full-time "dock work" from March 1985 until July 31, 2008; he was a mailhandler with dock bid. He reported that he became too disabled to work as of July 31, 2008. Per an August 2010 VA 21-4192 Request for Employment Information, his employer reported that he worked full-time until July 31, 2008 and he opted for an early retirement due to his PTSD. A TDIU is in effect from August 1, 2008 and the Board finds that this constitutes a full grant of the benefit sought on appeal as the evidence of record reflects that the Veteran was employed in a full-time capacity prior to August 1, 2008. Thus, despite the fact that the Veteran's combined rating meets the schedular criteria for a TDIU from May 12, 2005, as the evidence of record does not reflect that his disabilities precluded him from engaging in substantially gainful employment for the period prior to August 1, 2008, there is no basis for a grant of a TDIU prior to August 1, 2008. Awarding a TDIU would not service its intended purpose as the Veteran was able to maintain gainful full-time employment prior to August 1, 2008, despite the severity of his service-connected disabilities. While acknowledging the functional limitations associated with his service-connected disabilities, the evidence of record does not reflect that the Veteran was precluded from gainful employment for which he was qualified due to his service-connected disabilities. The Board acknowledges the Veteran's statements that he was only able to work his dock position because he was isolated he would have quit earlier, as he did not get along with other employees. However, there has been no assertion that special accommodations had been afforded him or that his work circumstances qualified as a protected environment; for example, this was not a family business or similar sheltered environment and no statements have been provided from his employers indicating that he was intentionally placed in an isolated environment as an accomodation for his disorder as opposed to simply having a job that customarily involved isolation and thus happened to be conducive to his symptoms. Nor is there any showing that the employment in question was marginal. For all the foregoing reasons, for the period prior to August 1, 2008 entitlement to a TDIU due to service-connected disabilities is denied. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.