judge_norm: JONATHAN HAGER

benefit: tdiu

benefit: pension

text:
��Citation Nr: 19120000

Decision Date: 03/19/19	Archive Date: 03/19/19

DOCKET NO. 16-15 609A

DATE:	March 19, 2019

ORDER

The application to reopen a claim of service connection for back disability is granted.

REMANDED

Entitlement to an effective date earlier than November 26, 2012 for the award of service connection and a separate disability rating for left trigeminal neuralgia is remanded.

Entitlement to an effective date earlier than February 1, 2016 for the award of an increased (10 percent) rating for sinusitis is remanded.

Entitlement to service connection for back disability is remanded.

Entitlement to an increased rating for status post septoplasty for deviated septum, rated noncompensable prior to May 3, 2013 and 10 percent disabling since that date, is remanded.

Entitlement to a rating in excess of 10 percent for left trigeminal neuralgia is remanded.

Entitlement to a rating in excess of 10 percent for right trigeminal neuralgia is remanded.

Entitlement to a rating in excess of 10 percent for sinusitis is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded.

Entitlement to non service-connected pension benefits is remanded.

FINDINGS OF FACT

1. The Veteran s claim of service connection for back disability was originally denied in an April 2008 rating decision on the basis that the disability did not have its onset in service and was not otherwise related to service; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year.

2. Evidence received since the April 2008 agency of original jurisdiction (AOJ) decision includes information that was not previously considered and which relates to an unestablished fact necessary to substantiate the claim of service connection for back disability, the absence of which was the basis of the previous denial.

CONCLUSIONS OF LAW

1. The AOJ s April 2008 rating decision that denied the claim of service connection for back disability is final. 38 U.S.C. � 7105 (d)(3); 38 C.F.R. �� 3.104, 3.156(a)-(b), 20.302, 20.1103.

2. The evidence received since the April 2008 AOJ decision is new and material and sufficient to reopen the claim of service connection for back disability. 38 U.S.C. � 5108; 38 C.F.R. � 3.156 (a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1997 to January 2003. These matters come before the Board of Veterans  Appeals (Board) from a January 2014 rating decision. In that decision, the AOJ denied the Veteran s application to reopen a claim of service connection for back disability as new and material evidence had not been received, awarded an increased (10 percent) rating for status post septoplasty for deviated septum, from May 3, 2013, denied entitlement to a rating in excess of 10 percent for atypical facial pain, and denied entitlement to a TDIU and non service-connected pension benefits. The Veteran testified before a Decision Review Officer (DRO) at an April 2016 hearing and a transcript of the hearing has been associated with his claims file.

In February 2017, a DRO recharacterized the Veteran s atypical facial pain as trigeminal neuralgia and continued the 10 percent rating for right trigeminal neuralgia. The DRO also separately awarded service connection for right trigeminal neuralgia and assigned a separate 10 percent rating, from November 26, 2012. Accordingly, the Board has characterized the claim for an increased rating for the Veteran s facial pain as encompassing the separate issues of entitlement to increased ratings for left and right trigeminal neuralgia.

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a November 2018 hearing and a transcript of the hearing has been associated with his claims file.

The application to reopen a claim of service connection for back disability

Generally, an AOJ decision denying a claim which has become final may not thereafter be reopened and allowed. 38 U.S.C. � 7105 (d)(3). The 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. 38 U.S.C. � 5108.

New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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 C.F.R. � 3.156 (a). The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).

For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996).

The AOJ initially denied the Veteran s claim of service connection for back disability in an April 2008 rating decision on the basis that the disability did not have its onset in service and was not otherwise related to service. Specifically, the AOJ explained that there was no evidence of any complaints of or treatment for back problems in the Veteran s service treatment records and that he injured his back in an accident that occurred after his discharge from service.

The Veteran was notified of the AOJ s April 2008 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the April 2008 decision became final. See 38 U.S.C. � 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. �� 3.104, 3.156(a)-(b), 20.302, 20.1103.

The pertinent new evidence received since the April 2008 denial of service connection for back disability includes treatment records from North County Doctors Group/St. Francois Chiropractic Center dated in January and February 2003 and a July 2011 VA mental health history and physical note. This additional evidence reflects that the Veteran was treated for back problems following a motor vehicle accident in service and they suggest that his claimed back disability may be partially related to this accident (among other post-service back injuries). Hence, the additional evidence pertains to an element of the claim that was previously found to be lacking and raises a reasonable possibility of substantiating the claim by indicating that the Veteran s claimed back disability may be related to service. The evidence is, therefore, new and material, and the claim of service connection for back disability is reopened.

REASONS FOR REMAND

1. Entitlement to service connection for back disability is remanded.

The Veteran contends that he has current back disability related to the back problems that he experienced following his motor vehicle accident in service in December 2002. His treatment records reflect that he has been diagnosed as having current back disability and that he has experienced additional post-service back injuries (including in a motor vehicle accident in 2008 and while working as a janitor, which resulted in a workers compensation claim). Also, his treatment records suggest that the current back disability may be related, at least partially, to his back injury in service.

The Board cannot make a fully-informed decision on the issue of entitlement to service connection for back disability because no VA examiner has opined whether the Veteran s current back disability was incurred in service. Hence, an appropriate examination should be conducted upon remand. See 38 U.S.C. � 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Moreover, in November 2011, the AOJ requested and received the Veteran s Social Security Administration (SSA) disability records. These records include a May 2011  Disability Report-Field Office  form (Form SSA-3367), which reveals that the Veteran had previously filed for and been denied SSA benefits in May 2008 for unspecified disability. The folder associated with this prior claim was reportedly still in existence, but its contents were not requested and they do not appear to have been included with the records that were submitted to VA. Hence, the evidence reflects that there are outstanding and potentially relevant SSA disability and/or supplemental security income (SSI) records. A remand is required to allow VA to request these records.

In addition, the Veteran reported during the April 2016 DRO hearing and November 2018 Board hearing that he had been awarded worker s compensation benefits for a back injury at work. A remand is required to allow VA to obtain authorization and request these outstanding relevant records.

Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the St. Louis Vista electronic records system and are dated to August 2018. Any VA treatment records are within VA s constructive possession, and are considered potentially relevant to the remaining issues on appeal. A remand is required to allow VA to obtain them.

Lastly, the Board notes that the most recent supplemental statement of the case (SSOC) dated in February 2017 was mailed to the Veteran in February and August 2017, but that it was returned as undeliverable on both occasions. Thus, the Board must assume that the Veteran did not receive the February 2017 SSOC. As such, appropriate action to re-send the Veteran and his representative the SSOC should be accomplished on remand to ensure due process.

2. Entitlement to increased ratings for status post septoplasty for deviated septum, left trigeminal neuralgia, and right trigeminal neuralgia are remanded.

The evidence reflects that the Veteran s trigeminal neuralgia and/or status post septoplasty may have worsened since he was most recently examined by VA in January 2014 and November 2015, respectively. For example, he reported during the April 2016 and/or November 2018 hearing that the facial pain associated with either or both of these disabilities had worsened since the last examinations and that he was experiencing some symptoms that may be associated with these disabilities, but are not specifically contemplated by his assigned ratings (e.g., headaches, impaired vision). The Board notes that evidence in the Veteran s claims file reflects that he was scheduled for a VA neurological examination in February 2016, but that he failed to report for the examination. He explained during the November 2018 hearing, however, that he was homeless and did not have a fixed address at the time of the scheduled examination, and that he missed a lot of appointments at that time.

In light of the evidence of potential worsening of the Veteran s disabilities, the fact that a new examination would be helpful in determining the symptoms that are attributable to his service-connected disabilities, and the fact that the issues of entitlement to increased ratings for status post septoplasty for deviated septum, left trigeminal neuralgia, and right trigeminal neuralgia must otherwise be remanded, as explained below, the Veteran should be provided an opportunity to report for new VA examinations to ascertain the current severity and manifestations of his status post septoplasty for deviated septum and trigeminal neuralgia.

Also, a June 2018 VA addendum note and the Veteran s testimony during the November 2018 hearing reflect that he has received private acupuncture and chiropractic care for his facial pain. It is unclear whether all such records have been obtained. A remand is required to allow VA to obtain authorization and request any such outstanding relevant records.

Lastly, all outstanding VA treatment records should be secured upon remand and the February 2017 SSOC should be re-sent to the Veteran and his representative.

3. Entitlement to TDIU due to service-connected disabilities is remanded.

Since a decision on the other remanded service connection and higher rating issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is required.

Also, the evidence in the Veteran s claims file reflects that he has been employed on an intermittent basis throughout the claim period. It is unclear as to the nature and frequency of such employment and whether any such employment was substantially gainful. Hence, upon remand, the AOJ should request that the Veteran clarify his employment and earnings history throughout the entire claim period, as such information would be helpful in adjudicating his TDIU claim.

Lastly, all outstanding treatment records and SSA records should be secured upon remand and the February 2017 SSOC should be re-sent to the Veteran and his representative.

4. Entitlement to non service-connected pension benefits is remanded.

Since a decision on the other remanded service connection, higher rating, and TDIU issues could significantly impact a decision on the issue of entitlement to non service-connected pension benefits, the issues are inextricably intertwined. A remand of the pension claim is required.

Also, the Veteran has never been afforded a VA examination to obtain information as to the nature and severity of all current disabilities. The Board notes that evidence in his claims file reflects that he was scheduled for a VA general medical examination in February 2016, but that he failed to report for the examination. As noted above, the Veteran was homeless at the time of the scheduled examination and did not have a fixed address at that time. Hence, the Board finds that the Veteran should be afforded a VA general medical examination (and any other appropriate examination) to obtain information as to the nature and severity of all current disabilities and to obtain information as to the functional effects and extent of such disabilities. See 38 U.S.C. � 5103A; Roberts v. Derwinski, 2 Vet. App. 387, 390 (1992). Thereafter, the AOJ should evaluate all of the Veteran s disabilities and assign a disability rating for each disability for pension purposes.

Moreover, the AOJ should obtain complete updated information as to the Veteran s annual income, medical expenses, and net worth during each 12-month annualization period since his pension claim was received in November 2012.

Lastly, all outstanding treatment records and SSA records should be secured upon remand and the February 2017 SSOC should be re-sent to the Veteran and his representative.

5. Entitlement to an effective date earlier than November 26, 2012 for the award of service connection and a separate disability rating for left trigeminal neuralgia, entitlement to an effective date earlier than February 1, 2016 for the award of an increased (10 percent) rating for sinusitis, and entitlement to a rating in excess of 10 percent for sinusitis are remanded.

In the February 2017 decision, the DRO awarded service connection and a separate rating for left trigeminal neuralgia, from November 26, 2012, and awarded an increased (10 percent) rating for sinusitis, from February 1, 2016. In November 2018, the Veteran submitted a timely notice of disagreement (NOD) with regard to the effective date assigned for the separate rating for left trigeminal neuralgia, the effective date assigned for the award of an increased rating for sinusitis, and the 10 percent rating awarded for sinusitis. A statement of the case has not yet been issued with respect to these matters. The Board points out that a decision on the appeal for an earlier effective date for the award of service connection and a separate disability rating for left trigeminal neuralgia could significantly impact a decision on the issue of entitlement to a higher rating for that disability. Thus, the issues are inextricably intertwined and a remand is required for the AOJ to issue a statement of the case that includes the issues which are addressed in the November 2018 NOD (to include entitlement to an earlier effective date for the award of service connection and a separate disability rating for left trigeminal neuralgia). 38 C.F.R. � 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).

The matters are REMANDED for the following action:

1. After undertaking any necessary action to verify the Veteran s current mailing address, re-send to the Veteran and his representative a copy of the February 2017 SSOC, and afford them an appropriate time period for response.

2. Send the Veteran and his representative a statement of the case that addresses the issues of entitlement to an effective date earlier than November 26, 2012 for the award of service connection and a separate disability rating for left trigeminal neuralgia; entitlement to an effective date earlier than February 1, 2016 for the award of an increased (10 percent) rating for sinusitis; and entitlement to a rating in excess of 10 percent for sinusitis. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues appealed should be returned to the Board for further appellate consideration. Do not return to the Board the issue of entitlement to a higher rating for left trigeminal neuralgia until after the Veteran has perfected an appeal of the matter of entitlement to an earlier effective date for the award of service connection and a separate disability rating for left trigeminal neuralgia, or until after the time period for doing so has expired, whichever occurs first.

3. Ask the Veteran to report his employment history and earnings (to include starting and ending dates of any employment), especially for the period since November 2011; and to report his income, medical expenses, and net worth with as much detail as possible for each period from November 2012 through December 31, 2013; from January 1, 2014 through December 31, 2014; from January 1, 2015 through December 31, 2015; from January 1, 2016 through December 31, 2016; from January 1, 2017 through December 31, 2017; from January 1, 2018 through December 31, 2018; and since January 1, 2019. All efforts to obtain such information must be documented in the claims file.

4. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for back disability, nasal/facial disability, and neurological disability, to include the dates of any such treatment.

Ask the Veteran to complete a VA Form 21-4142 for all records pertaining to his claim for worker s compensation benefits and for all records of his treatment for back disability, nasal/facial disability, and neurological disability from any sufficiently identified private treatment provider from whom records have not already been obtained (including, but not limited to, the chiropractor(s) and acupuncturist(s) from which he has sought treatment). Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile.

5. Obtain the Veteran s federal records from the SSA pertaining to that agency s May 2008 decision concerning the Veteran s claim for disability and/or supplemental security income benefits, including any medical records relied upon to make the decision (see the prior filing information referenced in the May 2011  Disability Report-Field Office  form (Form SSA-3367) which is included among the already obtained SSA disability records). Document all requests for information as well as all responses in the claims file.

6. Obtain the Veteran s outstanding VA treatment records from the St. Louis Vista electronic records system for the period since August 2018; and all such relevant records from any other sufficiently identified VA facility.

7. After all efforts have been exhausted to obtain and associate with the claims file any additional SSA records and treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current back disability. The examiner must provide an opinion as to whether any back disability experienced by the Veteran since approximately November 2012 at least as likely as not (1) began during active service; (2) manifested within one year after separation from service (in the case of any currently diagnosed arthritis); or (3) is related to an in-service injury or disease, including the Veteran s back injury in a motor vehicle accident in December 2002.

The examiner must provide reasons for each opinion given.

8. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected status post septoplasty for deviated septum. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to the status post septoplasty for deviated septum alone and discuss the effect of the Veteran s disability on any occupational functioning and activities of daily living.

The examiner should also identify any comorbid disorder(s) (including, but not limited to, any headaches or vision disorder), and state whether each is shown to be caused by the Veteran s status post septoplasty for deviated septum. If not, then with respect to each comorbid disorder identified, the examiner should attempt to distinguish any symptoms and impairment attributable to such disability from the symptoms and impairment attributable to status post septoplasty for deviated septum. If the manifestations cannot clearly be distinguished, the examiner should clearly so state.

The examiner must provide reasons for any opinion given.

9. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left and right trigeminal neuralgia. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to the trigeminal neuralgia alone and discuss the effect of the Veteran s disability on any occupational functioning and activities of daily living.

The examiner should also identify any comorbid disorder(s) (including, but not limited to, any headaches or vision disorder), and state whether each is shown to be caused by the Veteran s trigeminal neuralgia. If not, then with respect to each comorbid disorder identified, the examiner should attempt to distinguish any symptoms and impairment attributable to such disability from the symptoms and impairment attributable to trigeminal neuralgia. If the manifestations cannot clearly be distinguished, the examiner should clearly so state.

The examiner must provide reasons for any opinion given.

10. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a general medical examination (and any other appropriate examination(s)) by an appropriate clinician to obtain information as to the nature, extent, and severity of all current disabilities. Based on examination of the Veteran and a review of all pertinent lay and medical evidence, the examiner should clearly identify all currently present disabilities. Then, with respect to each such disability, the examiner should identify any symptoms and functional impairments due to the disability, discuss the effect of the disability on any occupational functioning and activities of daily living, and indicate whether it is reasonably certain that the disability will continue throughout the Veteran s lifetime.

The examiner must provide reasons for any opinion given.

11. Then, after completion of the above, the AOJ should evaluate all of the Veteran s disabilities and assign a disability rating for each disability for pension purposes.

Jonathan Hager

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	B. Elwood, Counsel


series: legacy

judge_norm: JAMES L MARCH

judge_role: Veterans Law Judge

disposition: granted

disposition: remanded

condition: hypertension

text:
��Citation Nr: 19121000

Decision Date: 03/21/19	Archive Date: 03/21/19

DOCKET NO. 11-08 801A

DATE:	March 21, 2019

ORDER

Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the regulations governing the payment of monetary awards.

REMANDED

Service connection for hypertension is remanded.

FINDING OF FACT

The Veteran s service-connected disabilities, collectively rated 90 percent disabling, prevent him from obtaining and retaining substantially gainful employment consistent with his educational and occupational history.

CONCLUSION OF LAW

The criteria for entitlement to TDIU have been met.  38 U.S.C. �� 1155, 5103, 5103A, 5107(b); 38 C.F.R. �� 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from February 1967 to January 1969.

This matter comes before the Board of Veterans  Appeals (Board) on appeal from a December 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran presented sworn testimony at a hearing before the undersigned in August 2013.

Most recently, in November 2017, the Board denied service connection for hypertension, to include as secondary to the service-connected diabetes mellitus, and entitlement to a TDIU.  The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court).

In June 2018, the Court granted a Joint Motion for Remand (Joint Motion), vacating the Board s November 2017 denial, and remanding for additional proceedings.

Entitlement to a TDIU is granted.

VA will grant a TDIU when the evidence shows that a veteran is unable to secure or follow a substantially-gainful occupation consistent with the veteran s education and occupational experience, by reason of service-connected disabilities.  38 C.F.R. �� 3.340, 3.341, 4.16.  Consideration may be given to the veteran s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. �� 3.341, 4.16, 4.19.

A total rating for compensation purposes may be assigned where the schedular rating is less than total, when service connection is in effect for one disability rated as 60 percent or more, or when there are two or more service-connected disabilities with at least one disability rated as 40 percent or more, such that there is a combined rating of at least 70 percent.  38 U.S.C. � 1155; 38 C.F.R. �� 3.340, 3.341, 4.16(a).

The Veteran s service-connected disabilities are right lower extremity peripheral neuropathy, left lower extremity peripheral neuropathy, left calf shell fragment wound residuals, diabetes mellitus type II with erectile dysfunction, left thigh shell fragment wound residuals, left heel shell fragment wound residual scar, head shell fragment wound residuals, left upper extremity diabetic peripheral neuropathy median nerve, right upper extremity diabetic peripheral neuropathy, back shell fragment wound residuals, and right arm shell fragment wound residuals.  As his combined service-connected disability rating is 90 percent, he meets the schedular criteria for a TDIU.

The Veteran contends that he is unable to obtain and maintain employment as a result of his service-connected disabilities.  In his June 2015 application for increased compensation based on unemployability, the Veteran indicated that he stopped working in 2004.  In a written affidavit dated in June 2015, the Veteran stated that he worked as a field supervisor for criminal investigators for the Office of the District Attorney (DA) for 34 years.  He noted that his occupation required him to be  out in the field  and within the general public, where he would often manage staff and actively work on assignments.  He further noted that his position involved a great deal of standing on his feet the majority of the day or driving, both of which were made difficult as a result of his service-connected disabilities.  The Veteran noted that sitting in a vehicle and sitting and standing for long periods of time were not possible for him and would serve to induce pain in his back and legs.  The Veteran further wrote that in order to manage his staff or to work in the field, he had to meet the physical requirements of the position, such as walking or running to and from place to place activities that he can no longer accomplish.  According to the Veteran, he spent his entire career having to battle through the pain and setbacks that his disabilities inflicted until it came to the point where he was physically unable to continue performing his work and duties to the best of his abilities.

At the September 2012 VA examination, when asked whether the Veteran s diabetic peripheral neuropathy impacted his ability to work, the VA examiner indicated that it did not.

During his August 2013 hearing, the Veteran testified that his service-connected disabilities began to affect his job performance as a supervisor investigator at the DA s office.  He further stated that although he had a staff of investigators, his job still required that he be on his feet a lot of times, and it simply  was just to the point where [he] did not feel that [he] could effectively do what [he] needed to do.   According to the Veteran, after working at this position for 34 years, he no longer felt he needed to work anymore, and when he felt he could not do the job, he retired.

Along with the Veteran s written affidavit, the Veteran s attorney also submitted a Vocational Assessment report dated in June 2015, which was prepared by a vocational specialist, W.C., after reviewing the Veteran s claims file and interviewing the Veteran by telephone.  Based on his review of the claims file, W.C. determined that the Veteran was precluded from performing all but sedentary work because of his limited ability to stand.  He further noted that the Veteran had no experience or skills that could transfer to sedentary work, and as such, only unskilled or semi-skilled work performed at the sedentary level of physical demand can be considered for him.  W.C. further reasoned that the Veteran would be precluded from performing unskilled or semiskilled work because of his need to move from one position to another.  According to W.C.,  Anything that causes an individual to be off-task for twenty percent of the workday precludes the sedentary unskilled or semiskilled work that would otherwise be appropriate for [the Veteran].   In reaching this assessment, W.C. relied on the August 2008 VA examination report wherein the VA examiner noted that the Veteran can stand for no longer than thirty minutes before developing cramps and numbness in his legs, and as a result, he had to change positions throughout the workday.  W.C. also took note of the July 2005 VA examination report wherein the VA examiner noted that the Veteran experienced painful sensation in both legs and a hot sensation in the left hip region.  Based on his understanding of the Veteran s education and occupational history, as well as his understanding of the physical constraints and limitations experienced by the Veteran as a result of his service-connected disabilities, W.C. determined that it was at least as likely as not that the Veteran was precluded from securing gainful employment and had been unable to do so since he last worked in 2004.  W.C. disagreed with the VA examiner s assessment, once again referencing the July 2005 VA examination findings, and noting that the pain impacted the Veteran s ability to work because of the implied limitation on his ability to stand.  The Board notes that the vocational assessment was based on W.C. s review of the claims file and interview with the Veteran, but not on an in-person examination.

Pursuant to a September 2015 Board remand, the Veteran was afforded a VA examination in February 2016.  The VA examiner stated that the Veteran was not functionally impaired by his service-connected left heel shell fragment wound residual, head shell fragment wound residuals, right arm shell fragment wound residuals, left thigh shell fragment wound residuals, and back shell fragment wound residuals.  He stated that he would be able to perform both physical and sedentary employment.  The examiner further stated that the Veteran s service-connected scars did not cause him any functional impairment and that he could perform both physical and sedentary employment.

With regard to the Veteran s right lower and left lower extremity peripheral neuropathy, the examiner stated that the Veteran was functionally impaired in that he would be limited in pushing, pulling, lifting, and carrying.  He would also be limited in standing and walking as he would require alternating between sitting and standing.  The Veteran also had limitations with lifting/gripping objects and fine manipulations due to pain, numbness, and tingling in his bilateral upper extremities.  Overall, the examiner found that the Veteran was able to entertain light, physical and/or sedentary type employment despite the limitations noted.

With regard to the Veteran s diabetes mellitus type II with erectile dysfunction, the examiner stated that the Veteran was not functionally impaired by such and was able to perform both physical and sedentary employment.

In December 2018, the Veteran s attorney submitted a Vocational Assessment from a second consultant, who, like the June 2015 consultant concluded that the Veteran s service-connected disabilities have precluded substantially gainful employment consistent with his educational and occupational history since he last worked in 2004.  In support of her conclusion, the consultant explained that the Veteran s service-connected disabilities preclude his ability to sit, stand, or walk for any substantial period of time:  emphasizing that he is unable to maintain a sitting or standing position long enough to maintain competitive employment.  The consultant s opinion was predicated on a thorough review of the claim file and analysis of the favorable and unfavorable opinions of record.  The consultant acknowledged the unfavorable medical opinions of record but explained that although medical professionals are qualified to define the physical and emotional limitations extending from the Veteran s service-connected disabilities, the medial professionals lack the experience needed to explain how such limitations prevent the Veteran from working.

The determination of whether a veteran is employable is a legal determination, rather than a medical determination.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (holding that  applicable regulations place responsibility for the ultimate TDIU determination on the VA [adjudicator], not a medical examiner. ).

After resolving any doubt in the Veteran s favor, the Veteran s service-connected disabilities, collectively rated 90 percent disabling, prevent him from obtaining and retaining substantially gainful employment consistent with his educational and occupational history.  In this regard, the Veteran s peripheral neuropathy of the upper and lower extremities limit his ability to perform physically demanding work as well as his ability to perform work that requires sitting for prolonged periods of time.  The Veteran was most recently employed as an investigator.  Although the physical demands of the job were light, it required prolonged periods of sitting, standing, and walking as he conducted work in the field and at his desk.  See, e.g., Vocational Assessment (December 2018).  The Veteran has some college education, but his difficulty sitting make it unlikely that he would reenter academia.  Additionally, the Veteran has been removed from the workforce for over a decade.  As to the conflicting favorable and unfavorable medical and vocational opinions, the Board finds that since each opinion was rendered by a professional that reviewed the relevant facts of the case and interviewed the Veteran and each professional provided an adequate rationale, the opinions are, at worst, in relative equipoise.  Based on all of the evidence of record, the Board finds that it is at least as likely as not that the Veteran s service-connected disabilities prevent him from obtaining and retaining substantially gainful employment consistent with his educational and occupational history.  Accordingly, a TDIU is warranted.

REASONS FOR REMAND

Service connection for hypertension is remanded.

The evidence shows that the Veteran has hypertension; however, an opinion has not yet been provided as to the possibility of a relationship between the Veteran s hypertension and his presumed exposure to herbicide agents such as Agent Orange.

Although hypertension is not listed as a disease associated with herbicide exposure under 38 C.F.R. � 3.309(e), the National Academy of Sciences Institute of Medicine has concluded that there is  limited or suggestive evidence of an association  between herbicide exposure and hypertension.  See 77 Fed. Reg. 47924, 47926-927 (Aug. 10, 2012).  Thus, a remand for a medical opinion is warranted for the hypertension claim.  See Joint Motion (June 2018); 38 U.S.C. � 5103A(d); 38 C.F.R. � 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

The matter is REMANDED for the following action:

1. .  Forward the claims file to a physician in connection with the hypertension claim.  The physician should review the evidence in the claims file.

The physician should then provide an opinion as to whether it is at least as likely as not that the Veteran s hypertension had its onset during, or is otherwise related to, his active service.

The opinion should include consideration of the Veteran s presumed exposure to certain herbicide agents, such as Agent Orange, as the National Academy of Sciences Institute of Medicine has concluded that there is  limited or suggestive evidence of an association  between herbicide exposure and hypertension.

The physician should provide a complete rationale or explanation for all opinions reached.

JAMES L. MARCH

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	A. Castillo, Associate Counsel


judge_norm: JACQUELINE E MONROE

disposition: denied

benefit: cue

text: The motion for reversal or revision of a July 2014 decision in which the Board of Veterans’ Appeals (Board) denied service connection for hypertension, on the basis of clear and unmistakable error (CUE), is denied.

text:
��Citation Nr: 19122000

Decision Date: 03/26/19	Archive Date: 03/23/19

DOCKET NO. 18-11 670

DATE:	March 26, 2019

ORDER

The motion for reversal or revision of a July 2014 decision in which the Board of Veterans  Appeals (Board) denied service connection for hypertension, on the basis of clear and unmistakable error (CUE), is denied.

FINDING OF FACT

In July 2014, the correct facts, as they were known at the time, were before the Board, and the statutory and regulatory provisions extant at the time were correctly applied.

CONCLUSION OF LAW

The July 2014 Board decision that denied service connection for hypertension does not contain clear and unmistakable error. 38 U.S.C. � 7111; 38 C.F.R. �� 20.1400-20.1406.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1972 to November 1972.

The Veteran, who is the moving party, has filed a CUE motion in February 2018 for revision or reversal of a July 2014 Board decision that denied service connection for hypertension.

Also, this appeal has been advanced on the Board s docket pursuant to 38 U.S.C. � 7107(a)(2) and 38 C.F.R. � 20.900(c).

Analysis

A prior final Board decision must be reversed or revised where evidence establishes that there is CUE in the prior final decision. 38 U.S.C. �� 5109A, 7111; 38 C.F.R. �� 20.1400-02. All final Board decisions are subject to revision on the basis of CUE except for those decisions which have been appealed to and decided by the Court and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. � 20.1400.

Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board s Rules of Practice. 38 C.F.R. Part 20. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.

CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be  undebatable,  not merely  a disagreement as to how the facts were weighed or evaluated ; and (3) the commission of the alleged error must have  manifestly changed the outcome  of the decision being attacked on the basis of CUE at the time that decision was rendered.  Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff d, 642 F. App x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Vanerson v. West, 12 Vet. App. 254, 258-59 (1999) (citing definition of  clear and unmistakable error  in Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)).

Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board s adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 U.S.C. � 7111; 38 C.F.R. �� 20.1403, 20.1404.

The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision.  See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999).  A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset.  King v. Shinseki, 26 Vet. App. 433, 441 (2014).  The standard is not whether it is reasonable to conclude that the outcome would have been different.  Id. at 442.

By way of background, the Board notes that the Veteran initially filed a claim for service connection for hypertension in May 2010. In a September 2010 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO), denied the Veteran s claim on the basis that his hypertension pre-existed service and it was not aggravated by his service. The Veteran filed a notice of disagreement (NOD) in December 2010 and a statement of the case (SOC) was issued in June 2012. The Veteran filed a VA Form 9 (substantive appeal) in July 2012. The Veteran provided testimony before the Board in June 2013 and a hearing transcript was associated with the record.

In a July 2014 decision, the Board affirmed the RO s decision and denied the claims for service connection for hypertension.

In October 2017, the Veteran filed an application to reopen his claim for service connection for hypertension, which the RO denied in October 2017.

The Board s July 2014 denial is no longer appealable to the Court, as more than 120-days has passed since the issuance of the Board decision and reconsideration was not sought. See 38 U.S.C. � 7104; 38 C.F.R. � 20.1100; see Gates v. Nicholson, 19 Vet. App. 376 (2005); May v. Nicholson, 19 Vet. App. 310, 320 (2005). As such, the Board s July 2014 decision is final and may be collaterally attacked on the basis of CUE.

In a February 2018 motion, the Veteran, through his attorney, contends that the Board s July 2014 Board decision failed to properly apply the law as it existed at that time by failing to properly apply the presumption of soundless, and thus it was clearly and unmistakably erroneous.  Specifically, the Veteran s attorney contends that the Veteran may have suffered from pre-hypertension prior to active duty service, but that hypertension is a separate disease entity, and that disease clearly and unmistakably did not pre-exist service and the Board failed to meet it burden that hypertension clearly and unmistakable existed prior to service. He points out that the Veteran s hypertension during service did not meet the definition of hypertension as defined under Diagnostic Code 7101, diastolic blood pressure predominately 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic pressure of less than 90mm. In addition, Note (1) to Diagnostic Code 7101 states in part that hypertension must be confirmed by readings taken two or more times on at least three different days. The Veteran s attorney also contends that the Board also failed to show that hypertension, a condition not noted on service entrance examination, was not clearly and unmistakable aggravated by service, and thus is entitled to the presumption that it was aggravated as a matter of law.

As a threshold matter, the Board finds that the arguments advanced by the Veteran and his attorney allege CUE with the requisite specificity, and thus meet the filing and pleading requirements of 38 C.F.R. �� 20.1400(a), and 1404(a), (b).

The Veteran s service treatment records (STR) reflect that the Veteran received a Regular Army examination in July 1972. At this time, clinical evaluation was normal with respect to the vascular system. The Veteran s blood pressure when sitting measured 128/88. See July 1972 Report of Medical Examination. The Veteran then denied any history of high or low blood pressure, dizziness or fainting spells. See July 1972 Report of Medical History.

About 8 days after entering active duty, the Veteran passed out. See August 10, 1972, Troop Medical Clinic note. At the time of this incident, it was noted that the Veteran had no history of previous high blood pressure, although at this time he related that he was told that he would develop hypertension later in life. His blood pressure then measured 180/80 in the morning and 156/84 in the evening. The Board also notes additional blood pressure readings were taken the following days, recorded as 154/90 in the morning and 152/86 in the evening on August 11, 1972, and 142/90 in the morning and 148/88 in the evening on August 12, 1972.

An August 21, 1972, STR notes that systolic hypertension was in the 142-180 range, 6 out of 6 times with no diastolic pressure above the 80-90 range.

An August 24, 1972, Release of Medical Information (ROI) contains a notation from the Veteran s pre-service treating doctor, Dr. S. The ROI reflects that Dr. S. informed that the Veteran s blood pressure measured 140/82 on November 5, 1970, when the Veteran was seen for a civil service physical.

The Veteran was ultimately assessed as having high blood pressure, specifically systolic hypertension with consistent readings of 140 mm or more of systolic blood pressure. He underwent Medical Board proceedings in early October 1972. After evaluation by a Medical Board, the Veteran s hypertension was noted as existing prior to service, and as not caused or aggravated by service.

A review of the claims files discloses the presence of VA medical records beginning in May 2010. A review of these records documents assessed and treated hypertension, but no evidence linking the condition to service, to include by means of aggravation.

Of record is a July 2010 letter from P.C.G., M.D. The letter documents assessments of hypertension, and other disorders, but no etiology opinion for hypertension.

In a July 2012 statement, the Veteran related that although blood pressure readings  were marginal,  they were consistently higher following the  incident  that led to his discharge. He related that after he consulted with his wife, that they had reached the conclusion that  more medical evidence  existed that his hypertension was not  temporary.

In a February 2013 statement, the Veteran referenced the Medical Board proceedings of October 1972. He noted that his blood pressure measured 128/88 at entrance and suggested that high blood pressure readings prior to service were  anomalous,  but that his high blood pressure readings following service were consistently high. He related a history of being told that he had high blood pressure during a physical education college class he took a year following his discharge. He related that his blood pressure had measured 160/90 at that time and was not reduced by exercise. He stated that since discharge, he did not have a normal blood pressure reading and had dizziness, headaches and occasional profuse sweating, that he attributed to hypertension. He related that by the time he had reached the age of 34, his blood pressure readings were averaging 170/90-95. He contended that his blood pressure was borderline before induction and turned to full hypertension prior to his discharge. He related that he was unable to obtain any records dated contemporaneous to service.

As noted above, in June 2013, the Veteran was offered a hearing before the Board. At the hearing, he reiterated his assertions that he did not have hypertension in service, and that the condition began therein and existed to present. His representative emphasized that the Medical Board proceedings in which hypertension was found to pre-exist service was not sufficient evidence to determine that the condition did clearly and unmistakably pre-exist service and urged that the presumption of soundness attach. The Veteran felt that the in-service finding of systolic hypertension was thus sufficient to grant the claim. He acknowledged the systolic reading of 140 taken by Dr. S. prior to entrance, but noted that blood pressure readings taken at the entrance examination were normal. He testified that he did not have health insurance for quite some time after service.

In March 2014, the Board obtained a Veterans Health Administration (VHA) expert opinion, based upon a full review of the claims file and pertinent medical evidence. The opinion notes that in 1972, the Veteran denied any history of hypertension, although he had related that he had been told that he would develop hypertension later in life. A history of family hypertension was noted, as was a personal history of smoking. The expert noted the November 1970 blood pressure reading of 140/82 taken in November 1970 by Dr. S. and that the Veteran had blood pressure readings of 128/88 at entrance and was found qualified for duty.

In terms of service, the expert noted that the Veteran passed out 8 days into service and outlined blood pressure readings taken at that time and that medical consultation in August 1972 showed that the Veteran had been  ill at ease.  He found unclear whether the Veteran had a sole diagnosis of hypertension, or to what role anxiety may have had. He noted that in October 2010 the Medical Board recommended separation from the service due to systolic hypertension.

The VHA expert related that hypertension is often silent, imperceptible and insidious, and was a chronic disease. He related that borderline hypertension or pre-hypertension is defined as systolic blood pressure 120-139 mmHg or diastolic blood pressure 80-89 mmHg, and that primary hypertension was defined as readings that exceeded these values. He noted that the record documented a November 1970 reading of 140/80 and concluded that hypertension thus pre-existed service. He explained that at entrance the Veteran s readings were consistent with pre-hypertension and explained that the Veteran had numerous clinical variables often cited to predict the development of hypertension, including pre-hypertension, smoking and a family history of hypertension.

The expert found no  etiological relationship  to service and noted that in any person, blood pressure fluctuates throughout the day and that blood pressure readings may show considerable variability. He noted that anxiety, stress, emotional distress and physically demanding activity can all elevate blood pressure. He explained that some of these factors may have played a role in some of the in-service readings, noting that the Veteran did report feeling  ill at ease  in service. The expert saw the variations in blood pressure as not unusual, noting that on multiple occasions the Veteran s blood pressure neared that of the November 1970 blood pressure of 140/82. He noted that hypertension progressed naturally, if untreated, and related that he could not conclude that hypertension had permanently worsened as a result of service.

In the July 2014 decision, the Board determined  [a]s hypertension was not noted by the examiner at entrance in the examination report, the Veteran is presumed sound at entry. However, the Board finds that hypertension clearly and unmistakably pre-existed service. The evidence clearly establishes that the Veteran had a blood pressure reading of 140/80 prior to service and the March 2014 VHA opinion finds that this shows pre-existing hypertension. Although the expert did not explicitly state that it was clear and unmistakable that the Veteran had pre-existing hypertension, his statement was nonetheless unequivocal when he found that the pre-service reading of 140/80 showed hypertension. The Board also finds that it is clear and unmistakable that the pre-existing hypertension was not aggravated during service. Although the Veteran s blood pressure readings following entrance were higher than noted at entrance, the March 2014 expert opinion indicates that these were fluctuations inherent the disease and related to factors such as stress. Moreover, the expert opinion concludes that hypertension was not permanently worsened by service. Accordingly, the Board finds that the evidence is clear and unmistakable that pre-existing hypertension was not aggravated in service.

The law and regulations in effect at the time of the July 2014 Board decision, which has not changed, in pertinent part, provides service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. �� 1110, 1131; 38 C.F.R. � 3.303(a). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. � 3.303(d).

To establish a right to compensation for a present disability, a Veteran must show:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service  - the so-called  nexus  requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C. � 1111.

VA regulation provides that the term  noted  denotes  [o]nly such conditions as are recorded in examination reports,  38 C.F.R. � 3.304 (b), and that  [h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions.  38 C.F.R. � 3.304(b)(1).

To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).

A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. � 1153; 38 C.F.R. � 3.306; Green v. Derwinski, 1 Vet. App. 320 (1991). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. � 1153; 38 C.F.R. � 3.306.

A lack of aggravation during service can be shown by establishing by clear and unmistakable evidence either that there was no increase in disability, or that any increase in disability was due to the natural progression of the pre-existing condition. 38 U.S.C. � 1153; 38 C.F.R. � 3.306; Wagner, 370 F.3d at 1096; Horn v. Shinseki, 25 Vet. App. 231, 235. The Veteran  need not produce any evidence of aggravation in order to prevail ; instead, the burden is on the VA to identify affirmative evidence demonstrating that there was no aggravation. Horn, 25 Vet. App. at 235. The burden is not met by finding that the record contains insufficient evidence of aggravation. Id.

Here, the Veteran s July 1972 enlistment examination report notes a normal blood pressure reading with no history of high blood pressure. Accordingly, the Board recognized that the presumption of soundness was applicable, but also found that the presumption was rebutted.  The Board found that there was clear and unmistakable evidence showing that the Veteran s hypertension pre-existed service. In so finding, the Board relied on the elevated blood pressure readings to include 180/80 and the subsequent results reflecting systolic blood pressure readings in the 154-160 range with diastolic pressure readings in the 80-90 range; the findings of the August 24, 1972, ROI which noted that the Veteran s blood pressure measured 140/82 on November 5, 1970 prior to service, when the Veteran was seen for a civil service physical; and the October 1972 Medical Board proceedings that assessed the Veteran as having high blood pressure, specifically systolic hypertension with consistent readings of 140 mm or more of systolic blood pressure, and determined the Veteran s hypertension was noted as existing prior to service, and as not caused or aggravated by service.

With regard to the argument of the Veteran s attorney s that his blood pressure readings in service were not consistent with VA s definition of hypertension under 38 C.F.R. � 4.104, Diagnostic Code (DC) 7101, although the Veteran s systolic blood pressure reading was recorded once as above the 160mm systolic blood pressure (180/80 in August 1972) during service as defined as systolic hypertension under DC 7101, the definition of hypertension referenced by the physicians during service differs from VA s established definition for compensation purposes. As noted in the October 1972 medical Board evaluation, systolic hypertension was defined as  consistent readings of 140mm or more of systolic blood pressure.  See also DORLAND s ILLUSTRATED MEDICAL DICTIONARY 896 (32d ed. 2012) (defining hypertension simply as  high blood pressure  and noting that  various criteria for its threshold have been suggested, ranging from 140 [] systolic and 90 [] diastolic to as high as 200 [] systolic and 110 [] diastolic ); but see id. at 1510 (defining prehypertension as  moderately increased blood pressure, [with] a systolic pressure of 120 to 139 or a diastolic pressure of 80 to 89 ). Notably, under the Air Force regulation, which appears unchanged since 1953, in pertinent part, provides that hypertension was defined as an average systolic blood pressure of 140 mm. or more, or an average diastolic blood pressure of 90 mm. or more if the candidate is 35 years of age or under. Air Force Manual 160-1 (1953). Under current Air Force regulations,  [h]ypertension is defined as systolic pressure greater than 140 millimeters of mercury (mmHg) or diastolic pressure greater than 90 mmHg confirmed by manual blood pressure cuff averaged over two or more properly measured, seated, blood pressure readings on separate days within a 5-day period (isolated, single-day blood pressure elevation is not disqualifying unless confirmed on 2 separate days within a 5-day period).   See DOD Instruction 6130.03 (2018).

Here, the Veteran underwent repetitive testing over a short period of time to assess whether he had hypertension, and here medical professionals determined that he met the established criteria (i.e., consistent systolic blood pressure readings ranging from 140mm to above) in diagnosing him with hypertension during active duty, which is also consistent with the definitions as provided by the Air Force regulations and has remained essentially unchanged, as well as the Dorland s Illustrated Medical Dictionary. There is no law or regulation constraining the Board to define hypertension under the criteria set out in 38 C.F.R. � 4.104, DC 7101, for the purpose of determining whether hypertension existed prior to or during service. The Board s reliance on the blood pressure readings, medical findings that he had systolic hypertension during service, as well as the May 2014 expert opinion concluding the same, supports the Board s finding at that time and reveals that the existence of the Veteran s hypertension prior to service is not debatable. See Vanerson, supra.

In evaluating whether the Veteran s pre-existing hypertension was aggravated by service, the Board found the aggravation prong of the presumption of soundness was clearly rebutted by the evidence of record and explained that although the Veteran s blood pressure readings following entrance were higher than noted at entrance, the March 2014 expert opinion indicates that these were fluctuations inherent in the disease and related to factors such as stress and the expert concluded that hypertension was not permanently worsened by service.  Here, in finding there is clear and unmistakable evidence as to both the pre-existence and the non-aggravation of the Veteran s hypertension, the Board applied the correct,  clear and unmistakable error  standard as required under 38 U.S.C. � 1111 and Wagner, supra. Therefore, the attorney s disagreement with these determinations amount to no more than a disagreement with how the facts were weighed or evaluated. A disagreement with how the facts are weighed or evaluated can never constitute CUE. Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Russell v. Principi, 3 Vet. App. 310, 313 (1992).

The Board also notes argument of the Veteran s attorney that the Board failed to show that hypertension, which he asserts is a condition not noted on service entrance examination, was not clearly and unmistakably aggravated by service, and thus is entitled to the presumption that it was aggravated as a matter of law. This argument, however, is legally inconsistent, as he argues that his hypertension did not pre-exist service, and thus argues it was incurred during service (direct service connection) but contends that his hypertension was aggravated as a matter of law. The presumption of aggravation, however, applies only when pre-service disability increases in severity during service, and thus does not apply to direct service connection claims. See Beverly v. Brown, 9 Vet. App. 402, 405 (1996); Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995). See also 38 U.S.C. � 1153; 38 C.F.R. �� 3.303(a), 3.306; Wagner, supra.

In weighing the evidence before it at the time of the July 2014 Board decision, the Board engaged in an exercise of judgment that cannot now be said to constitute the kind of CUE, as such weighing of facts can never rise to the level of CUE. Fugo, supra; see also 38 C.F.R. � 20.1403(d)(3).

Thus, the correct facts as they were known at the time were before the Board and the statutory and regulatory provisions extant at that time were correctly applied. As such, the moving party has not met the criteria required to revise or reverse the Board s July 2014 decision denying service connection for hypertension, on the grounds of CUE, and the motion must be denied.

JACQUELINE E. MONROE

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	Sarah Campbell, Associate Counsel


judge_norm: D MARTZ AMES

condition: shoulder

text: Entitlement to a temporary 100 percent rating for convalescence under 38 C.F.R. § 4.30, for right shoulder surgery, beyond May 1, 2013 is denied.

text:
��Citation Nr: 19123000

Decision Date: 03/27/19	Archive Date: 03/27/19

DOCKET NO. 15-37 926

DATE:	March 27, 2019

ORDER

Entitlement to a temporary 100 percent rating for convalescence under 38 C.F.R. � 4.30, for right shoulder surgery, beyond May 1, 2013 is denied.

FINDING OF FACT

The Veteran s postoperative condition does not meet the requirements for convalescence past May 1, 2013.

CONCLUSION OF LAW

The criteria for a temporary total rating based on convalescence have not been met. 38 U.S.C. � 1155 (2012); 38 C.F.R � 4.30 (2018).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from May 2007 to November 2008.

Neither the Veteran nor her representative have raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that  the Board s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board. ); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Entitlement to a temporary 100 percent rating for convalescence under 38 C.F.R. � 4.30, for right shoulder surgery, beyond May 1, 2013

The Veteran contends that a temporary 100 percent rating under 38 C.F.R. � 4.30, based on convalescence is warranted beyond May 1, 2013, to compensate her throughout her physical therapy.

Under 38 C.F.R. � 4.30, a temporary total disability rating will be assigned from the date of hospital admission and continue for one, two, or three months from the first day of the month following hospital discharge when treatment of a service-connected disability results in: (1) Surgery necessitating at least one month of convalescence; (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight- bearing prohibited); or (3) Immobilization by cast, without surgery, of one major joint or more.

The evidence shows that the criteria for convalescence beyond May 1, 2013 are not met.

VA treatment records show that the Veteran underwent right shoulder surgery on January 17, 2013.

In her October 2015 VA Form 9, the Veteran stated that after her surgery, her shoulder was immobilized for the first four weeks.  After the first four weeks, the Veteran began 24 weeks of physical therapy, which would end around July 17, 2013.  The Veteran contends that during the time after surgery, she had pain and limited range of motion for internal movements, movements above shoulder level, and movements behind her back that continued after the 24-week physical therapy regiment.  The Veteran also points to a previous claim for her left shoulder where she received six months of convalescence.  However, her previous claim is distinguishable in the level of detail provided.

Here, the Veteran provided two letters from physicians regarding her condition.  The first letter is dated November 2013 and states that the Veteran had shoulder surgery and  [t]ypically, convalescence following such a surgery without complications is approximately 5-6 months.   The physician did not give any details concern the Veteran s particular case, even though the letter was drafted 11-months post-surgery.  The second letter is very similar.  It is dated August 2014 and states that the Veteran had shoulder surgery and  [t]ypically, convalescence following such a surgery without complications is approximately 5-6 months therefore return to work the date was to be on 7/17/2013.   Again, this letter is written well past the surgery, but does not address the Veteran s actual symptoms or circumstances.

The Veteran argues that her surgery qualifies as subsection (1)  Surgery necessitating at least one month of convalescence,  and she is correct.  The Veteran received more than a month of convalescence for her right shoulder surgery.

Next, the Veteran argues that her surgery, plus physical therapy, qualifies for subsection (2)  Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight- bearing prohibited).

The Board recognizes that the list provided after  such as  is not exhaustive; however, the Veteran s complaints, symptoms, and postoperative residuals discussed above are not similar in severity as what is contemplated by the regulation.  The Veteran s complaints are painful and limited motion after surgery and throughout physical therapy treatment.  In addition to her symptoms not being of comparable severity or functional limitation to the symptoms described in the regulation, the medical records also do not show any of the circumstances specifically set forth by the regulation: severe postoperative residuals, therapeutic immobilization, body casts, the need for house confinement.  The Veteran claims that she is entitled to convalescence beyond May 1, 2013 due to her 24-weeks of physical therapy; however, the medical evidence shows the Veteran stopped attending physical therapy sessions in April 2013.

In a July 2013 treatment record, the physician noted that the Veteran discontinued physical therapy in April 2013, because she did not think she was getting much out of it and thought her range of motion was subjectively satisfactory.  She reported working on exercises at home.  The Veteran reported some limitations with range of motion and pain while sleeping.  In a March 2013 note, a physician noted to continue physical therapy with aggressive range of motion with no restrictions on strength and range of motion.

Based on the foregoing, the Board finds that the Veteran is not entitled to a temporary total rating for convalescence pursuant to 38 C.F.R. � 4.30 for surgery on her right shoulder beyond May 1, 2013.  Therefore, the appeal is denied.

D. Martz Ames

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	J. Fowler, Associate Counsel


judge_norm: S L KENNEDY

text:
��Citation Nr: 19124000

Decision Date: 04/01/19	Archive Date: 03/30/19

DOCKET NO. 17-14 907

DATE:	April 1, 2019

ORDER

The reduction in Department of Veterans Affairs (VA) disability compensation for the purpose of recoupment of military drill pay for 65 days during Fiscal Year 2005, 68 days during Fiscal Year 2012, 72 days during Fiscal Year 2013, and 81 days for Fiscal Year 2014 was proper, and the appeal is denied.

FINDINGS OF FACT

1. The Defense Manpower Data Center (DMDC) indicated that the Veteran received drill pay for 65 days during Fiscal Year 2005, 68 days during Fiscal Year 2012, 72 days during Fiscal Year 2013, and 81 days for Fiscal Year 2014.

2. The Veteran s VA disability compensation benefits were properly withheld for recoupment of pay during her drill periods.

CONCLUSION OF LAW

The recoupment of VA disability compensation benefits due to receipt of military drill pay for 65 days during Fiscal Year 2005, 68 days during Fiscal Year 2012, 72 days during Fiscal Year 2013, and 81 days for Fiscal Year 2014, was proper.  38 U.S.C. �� 5107, 5304(c); 38 C.F.R. �� 3.654, 3.700.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served in the Marine Corps from November 1994 to December 2001; from March 2003 to March 2004; from December 2005 to November 2006; from August 2009 to September 2010; and from September 2010 to September 2011.

The law prohibits the receipt of VA disability compensation benefits for any period for which a person receives active service pay.  This includes active duty pay, drill, and active duty for training payments, and inactive duty for training payments made to reservists and members of the National Guard.  38 U.S.C. � 5304(c); 38 C.F.R. �� 3.654, 3.700.

Reservists or members of the National Guard may waive their VA disability compensation for periods of field training, instruction, other duty, or drills. A waiver may include prospective periods and contain a right of recoupment for the days for which the reservist did not receive payment for duty by reason of failure to report for duty.  38 C.F.R. � 3.700 (a)(1)(iii).

In September 2005, VA received from the Veteran a VA Form 21-8951, Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances.  The form had notified the Veteran that, based on her social security number, the DMDC had identified her as having been a reservist or guardsman during fiscal year 2005 and having received training pay for 65 days.  The form advised the Veteran that active or inactive duty training pay could not legally be paid concurrently with VA disability compensation and that she could elect to keep the training pay and waive her VA benefits for the days when she was paid training pay and that her future benefits would be adjusted accordingly.  She was also advised that, if she did not return the waiver, it would be assumed that she wished to waive VA compensation or pension for the number of days printed on the front of the form.  The Veteran signed the form.  Additionally, the Veteran was separately sent and returned VA Forms 21-8951 for fiscal years 2012 (68 days), 2013 (72 days), and 2014 (81 days), respectively.

Due to the Veteran s confirmed drill dates, her compensation was withheld to recoup the training pay in fiscal years 2005, 2012, 2013, and 2014.

Based on a review of the evidence of record, the Board finds that recoupment of the Veteran s VA compensation to account for her receipt of drill pay for 65 days during Fiscal Year 2005, 68 days during Fiscal Year 2012, 72 days during Fiscal Year 2013, and 81 days for Fiscal Year 2014 was warranted.

The Board has considered the contentions of the Veteran that VA made mistakes with regard to her compensation payments and that the reductions/recoupments resulted in financial hardship to her entire family.  VA did err with regard to the rate of payment to the Veteran, but corrected the error.  Significantly, the Veteran did not submit documentation showing that any of the confirmed number of drill dates was incorrect with regard to the number of drill days she performed during the periods on appeal.  Instead, the only evidence of record certifying the number of paid drill days are the VA Forms 21-8951 submitted by the Veteran.  Accordingly, the Board finds those forms the most probative evidence of record.  As the recoupment of the disability benefits for fiscal years 2005, 2012, 2013, and 2014 were based on the appropriate certification, the Board finds that the correct amount of compensation benefits was properly withheld.

S. L. Kennedy

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	J. Connolly, Counsel


judge_norm: B T KNOPE

condition: psychiatric

condition: gi

text:
��Citation Nr: 19125000

Decision Date: 04/04/19	Archive Date: 04/03/19

DOCKET NO. 15-22 528

DATE:	April 4, 2019

ORDER

New and material evidence having not been received, the application to reopen a previously denied claim for entitlement to service connection for panic disorder with agoraphobia, adjustment disorder with mixed mood, alcohol dependence, and schizotypal personality disorder claimed as panic disorder is denied.

Entitlement to service connection for ulcers is denied.

FINDINGS OF FACT

1. The Veteran s claim of service connection for panic disorder was denied in a July 2008 rating decision; he did not appeal that decision and it became final.

2. New and material evidence has not been submitted sufficient to reopen the previously denied and final claim of service connection for panic disorder with agoraphobia, adjustment disorder with mixed mood, alcohol dependence, and schizotypal personality disorder claimed as panic disorder.

3. The preponderance of evidence shows that that Veteran s peptic ulcer was not present in service or until many years thereafter and is not related to service or any incident of service

CONCLUSIONS OF LAW

1. New and material evidence has not been received to reopen the previously denied claim of entitlement to service connection for panic disorder with agoraphobia, adjustment disorder with mixed mood, alcohol dependence, and schizotypal personality disorder claimed as panic disorder.  38 U.S.C. � 5108; 38 C.F.R. � 3.156.

2. The criteria for entitlement to service connection for ulcers have not been met.  38 U.S.C. � 1110; 38 C.F.R. � 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served from November 1970 to August 1971.  The Veteran testified at a November 2018 videoconference hearing before the undersigned Veterans Law Judge.  A hearing transcript is of record.

New and Material Evidence

In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material.  If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened.  See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991).

Under the relevant regulation,  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.  If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied.  See Elkins v. West, 12 Vet. App. 209 (1999); see 38 U.S.C. � 5103A (eliminates the concept of a well-grounded claim).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied.  Rather, consideration 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.  See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010).

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 (1996).  However, for the purpose of establishing whether new and material evidence has been received, the credibility of the such evidence is to be presumed unless  patently incredible  See Duran v. Brown, 7 Vet. App. 216 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992).

1. Whether new and material evidence has been submitted to reopen a claim of service connection for panic disorder with agoraphobia, adjustment disorder with mixed mood, alcohol dependence, and schizotypal personality disorder claimed as panic disorder

In the instant matter, the Veteran seeks to reopen the claim of service connection for a panic disorder.

After careful review of the evidence of record, the Board finds that the claim for a panic disorder should not be reopened.

The Veteran s mental condition, claimed as a nervous condition, was initially denied in a July 1981 rating decision.  A review of that rating decision reveals that at the time, VA declined to grant service connection because his condition was considered as a constitutional or developmental abnormality.  He did not appeal that decision, nor did he submit any new and material evidence within a year of receiving it.  See Buie v. Shinseki, 24 Vet. App. 242 (2011).  In August 2008, the Veteran filed a new claim for service connection for a panic disorder.  In a February 2009 rating decision, the RO denied his claim on the basis that panic disorders are considered a congenital or developmental defect which is unrelated to military service.  He did not appeal that decision, nor did he submit any new and material evidence within a year of receiving it.  This represents the last final denial of the claim.

In an October 2012 correspondence, the Veteran requested that his panic disorder claim be reopened.  In support of his claim, the Veteran testified in his November 2018 Board hearing that he began experiencing panic attacks while in service and they continued after discharge.  However, the Veteran s assertions that he suffered from panic attacks as a result of his military service was already considered.  Therefore, absent some new and material evidence that his panic attacks are directed related to his military service, his testimony is redundant of evidence already of record during the prior denials.  Further, while medical records submitted since the last final denial of the Veteran s claim show diagnosis and treatment of his panic disorder, no medical opinion has been provided that supports a nexus between the Veteran s disorder and his military service.

In sum, the Board finds that new and material evidence has not been submitted in connection with the claim of service connection for a panic disorder, and the claim is not reopened.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. � 5107; 38 C.F.R. � 3.102.

Service Connection

The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. � 1110; 38 C.F.R. �� 3.303, 3.304.  Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. � 3.303(d).

Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).

2. Entitlement to service connection for ulcers

The Veteran asserts that he is entitled to service connection for his peptic ulcer.  The Board finds that service connection is not warranted.

Here, the Veteran s service treatment records are silent as to any complaints, treatment, or diagnosis of any stomach disorders.  Further, the Veteran s August 1971 separation examination indicated no stomach trouble.

Post-service treatment records dated October 1981 indicate that the Veteran has a history of peptic ulcer disease.  The Board emphasizes that because he left active service in 1971, it was not until approximately 10 years later that the evidence revealed a stomach disorder.  Therefore, continuity is not established based on the clinical evidence of record.

As part of this claim, the Board recognizes the Veteran s statements regarding his history of symptoms.  In this regard, while the Veteran is not competent diagnose a stomach disorder, as it may not be diagnosed by unique and readily identifiable features, and thus requires a determination that is  medical in nature,  he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence.  Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

In addition to the fact that no pertinent symptoms were mentioned at his separation physical examination, no medical records exist showing that he sought treatment for the disorder until many years after discharge.  In fact, the Board notes that the Veteran testified during his November 2018 videoconference hearing that while he experienced bleeding ulcers in service, he no longer experiences them.  These statements prevent the Board from relying on his statements regarding a continuity of symptoms.  Therefore, continuity is not established based on the Veteran s statements.

Next, service connection may also be granted when the evidence establishes a medical nexus between his claimed disorder and either his active duty or his service-connected disability.  In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran s claimed disorder to active duty, despite his contentions to the contrary.

Although he is competent to report when lay-observable symptoms such as when his stomach disorder began, as noted above, the evidence weighs against such reports.  The Veteran has not submitted competent medical evidence that his current stomach disorder was incurred during or due to service nor has any physician provided such a nexus.

Therefore, the Board finds that the weight of the competent evidence does not attribute the Veteran s peptic ulcer to military service.  In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt.  38 U.S.C. � 5107(b).

However, as the most probative evidence is against the claim, the doctrine is not applicable in this case.  See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

B.T. KNOPE

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	E. Vample, Associate Counsel