Citation Nr: 1313552	
Decision Date: 04/23/13    Archive Date: 05/03/13

DOCKET NO.  00-22 859A	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1.  Entitlement to service connection for hypertension, including as secondary to service-connected left knee and lumbar and cervical spine disabilities.

2.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

E. Pomeranz, Counsel


INTRODUCTION

The Veteran served on active duty from April 1990 to October 1992.

This appeal to the Board of Veterans' Appeals (Board) is from October 2006 and August 2009 rating actions of the Department of Veterans Affairs (VA) Regional Office (RO).

In the October 2006 rating action, the RO, in pertinent part, denied service connection for hypertension, including as secondary to service-connected left knee, low back (lumbar spine), and neck (cervical spine) disabilities.  Whereas the more recent August 2009 rating action denied entitlement to a TDIU.

When these claims were certified to the Board, they were part of a merged appeal that included numerous other claims, some of which had been in appellate status since before the October 2006 and August 2009 rating actions.  The Veteran previously had provided testimony pertinent to those claims at a hearing in January 2004 before a Veterans Law Judge (VLJ) of the Board.  That VLJ subsequently retired.  Therefore, the Veteran was given an opportunity to testify at a videoconference hearing in December 2009 before the undersigned VLJ of the Board, who in turn is ultimately deciding his appeal of these claims.

In December 2010 and August 2012, the Board remanded these claims to the RO via the Appeals Management Center (AMC) for further development and consideration.  That development and additional consideration since has been accomplished, although the claims continued to be denied, so they are again before the Board.


In January 2013, the Veteran submitted additional evidence in support of his claims.  The evidence included a private medical statement from A.J.T., M.D., dated in May 2005, a duplicate private medical record dated in July 2005, and a copy of a Settlement Agreement from the US Merit Systems Protection Board between the Veteran and VA, dated in November 2006.  He waived his right to have the RO, rather than the Board, initially consider this additional evidence.  38 C.F.R. § 20.1304(c) (2012).


FINDINGS OF FACT

1.  Hypertension was not shown during the Veteran's service or for many years after his discharge; there is a preponderance of evidence against any relationship or correlation between his hypertension and his service, including on the premise that his service-connected left knee, lumbar spine, and cervical spine disabilities, either alone or in combination, either caused or are permanently exacerbating his hypertension.

2.  His service-connected disabilities are:  chronic lumbar strain, rated as 40-percent disabling; pseudofolliculitis barbae, rated as 30-percent disabling; postoperative residuals of reconstructive surgery for anterior cruciate ligament tear of the left knee with arthritis, rated as 20-percent disabling; degenerative joint disease of the cervical spine, rated as 20-percent disabling; residuals status post surgery for anterior cruciate ligament tear of the left knee, rated as 10-percent disabling; tinea pedis and onychomycosis, rated as 0-percent disabling, i.e., noncompensable; and dislocation of the right index finger, postoperative, healed, also rated as noncompensable.  The combined rating is 80 percent.

3.  These service-connected disabilities, alone, so without regard to other factors such as his advancing age and non-service-connected disabilities, as likely as not prevent him from obtaining and maintaining employment - even sedentary employment - which could be considered substantially gainful versus just marginal in comparison when considering his level of education, prior work experience and training.


CONCLUSIONS OF LAW

1.  The Veteran's hypertension was not incurred in or aggravated by his active military service, may not be presumed to have been, and is not proximately due to, the result of, or aggravated by a service-connected disability or disabilities.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012).

2.  But resolving all reasonable doubt in his favor, the criteria are met for a TDIU.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, and 4.19 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA enhanced VA's duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The VCAA also redefined the obligations of VA with respect to the duty to assist the Veteran with the claim.  Id.

Duty to Notify

At the outset, as concerning the Veteran's claim of entitlement to a TDIU, given the favorable outcome (the granting of this claim), no conceivable prejudice to him could result from this adjudication even if, for the sake of argument, he did not receive the required notice and assistance concerning this claim.  

The Board therefore need not determine whether there has been compliance with the duty-to-notify-and-assist provisions of the VCAA concerning this claim since, again, any such failing ultimately would at most be inconsequential and, thus, amount to no more than nonprejudicial, i.e., harmless error.  38 C.F.R. § 20.1102.

As for his remaining claim of entitlement to service connection for hypertension, including as secondary to his service-connected left knee and lumbar and cervical spine disabilities, VA has a duty to notify him of the information and evidence not of record needed to substantiate and complete this claim.  38 U.S.C.A. §§ 5102, 5103.  This duty includes apprising him of whose specific responsibility, his or VA's, it is for obtaining this supporting evidence.  A January 2006 letter duly apprised him of the type of evidence and information needed to substantiate this claim and of his and VA's respective responsibilities in obtaining this supporting evidence.  He therefore has received the type of notice contemplated and required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).  See also Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining the VCAA notice requirements).

Additionally, on March 3, 2006, so since providing that January 2006 letter, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), holding that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim:  (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Obviously, since Dingess was issued after provision of the January 2006 letter, that letter did not comply with Dingess - but only insofar as also having to apprise the Veteran of the "downstream" disability rating and effective date elements of his claim.  Otherwise, as mentioned, the letter notified him of the evidence needed to substantiate his claim, the avenues by which he might obtain this evidence, and the allocation of responsibilities between himself and VA in obtaining this evidence.  Moreover, in another letter since provided in June 2008, so even since the issuance of Dingess, he was additionally informed of how VA determines "downstream" disability ratings and effective dates, as required by Dingess.  And, as importantly, his claim has been readjudicated even since providing that additional Dingess notice, including in April 2012 and January 2013 supplemental statements of the case (SSOCs), which in turn serve to rectify ("cure") the timing defect in the provision of that additional notice because the intended purpose of the notice is preserved, rather than frustrated, in that he is still given an opportunity to participate effectively and meaningfully in the adjudication of this claim.  Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007).  See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) and Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004).  But even as an aside, since the Board is denying the underlying claim of entitlement to service connection for hypertension, these "downstream" disability rating and effective date elements of this claim are ultimately moot.  So even had VA not provided the Dingess notice concerning these downstream elements of this claim, this would have amounted to at most nonprejudicial, i.e., harmless error.  See again 38 C.F.R. § 20.1102.

Duty to Assist

VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim").  This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant).

VA informed the Veteran of its duty to assist in obtaining records and supportive evidence.  And in fulfilling this assistance obligatioin, his pertinent medical records, including his service treatment records (STRs) and VA treatment records and private medical statements have been obtained, to the extent available.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  He is not receiving disability benefits from the Social Security Administration (SSA), including especially on account of his hypertension.  See July 2007 letter from the SSA denying his claim for disability benefits from this other Federal agency.  Ordinarily, when VA is put on notice of the existence of SSA records, it must try and obtain them before proceeding with the adjudication of the appeal.  See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Lind v. Principi, 3 Vet. App. 493, 494 (1992).  In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009), however, the Federal Circuit Court clarified that VA's duty to assist was limited to obtaining relevant SSA records.  The Federal Circuit Court rejected the argument in Golz that SSA records are always relevant and that VA always is required to obtain them.  Relevant records were defined under 38 U.S.C. § 5103A as those relating to the injury for which the claimant is seeking VA benefits and have a reasonable possibility of helping to substantiate the claim.  Id., at 1321.  The Federal Circuit Court also pointed out that "[n]ot all medical records for a Veteran will have a reasonable possibility of aiding in the substantiation of a VA disability claim."  Id.  The Federal Circuit Court thus concluded in Golz, "[t]here must be specific reason to believe these records may give rise to pertinent information to conclude that they are relevant."  Id., at 1323.  There simply is no such indication here.

Nor is there suggestion or indication that any other evidence relevant to this claim is still needing to be obtained.

The Board also notes compliance with its December 2010 and August 2012 remand directives in further developing this claim for hypertension.  Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand directives, and the Board itself commits error as a matter of law in failing to ensure compliance).  Specifically, in the December 2010 remand, the Board directed the RO/AMC to afford the Veteran a VA compensation examination for a medical nexus opinion concerning the etiology of his hypertension.  The examiner was asked to indicate the likelihood ( very likely, as likely as not, or unlikely) that the Veteran's hypertension was proximately due to, the result of, or chronically aggravated by pain caused by his service-connected left knee, low back, and/or cervical spine disabilities.  Pursuant to this remand directive, the Veteran underwent the requested VA compensation examination in May 2011.  In the examination report, the examiner addressed the pertinent question of whether the Veteran's hypertension was caused by his service-connected left knee, low back, and/or cervical spine disabilities, but did not also address the equally pertinent question of 

whether the Veteran's hypertension alternatively was being aggravated by these service-connected disabilities.

Two opinions are required for secondary service connection claims:

1.  Is the claimed disorder "caused by" or "due to" the 
service-connected disability? AND
2.  Is the claimed disorder "aggravated by" the service-connected disability?

See C.F.R. § 3.310(a) and (b) and Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connected condition (regulatory change effective from September 2006).  An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation.  Allen, 7 Vet. App. at 448; 38 C.F.R. § 3.310(b) .

Thus, in August 2012, the Board remanded this claim again and directed the RO/AMC to return the file to the VA examiner who had performed the May 2011 VA compensation examination for this additional medical comment.  To this end, the examiner was requested to provide an opinion regarding the alternative likelihood (very likely, as likely as not, or unlikely) that the Veteran's 
service-connected left knee, low back, and/or cervical spine disabilities, either alone or in combination, have aggravated the Veteran's hypertension.  In September 2012, in response, the examiner who had performed the May 2011 VA compensation examination provided an addendum opinion addressing this additional question of whether the Veteran's service-connected left knee, low back, and/or cervical spine disabilities have aggravated his hypertension.

So, in light of the above, the Board finds that the medical evidence of record is sufficient to resolve this claim; the VA has no further duty to provide an examination or medical opinion.  38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012).  See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

The Veteran also had a videoconference hearing before the undersigned VLJ of the Board in December 2009, during which he presented oral argument in support of this claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ chairing a hearing fulfill two duties to comply with this VA regulation.  These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked.  In this particular case at hand, the undersigned VLJ set forth the issues to be discussed at the hearing and sought to identify any pertinent evidence not then currently in the file that might have been overlooked or was outstanding and that might tend to substantiate this claim.  The VLJ notified the Veteran that, in order to prove his claim, he needed to show that he currently had hypertension that was either directly, presumptively, or secondarily related to his military service, including in the latter instance by showing it was caused or aggravated by his service-connected left knee, low back, and/or cervical spine disabilities.  Moreover, neither he nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conducting of that Board hearing.  The hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated his actual knowledge of those elements.  Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim).  As such, the Board finds that consistent with Bryant, the presiding VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record.


II.  Claim of Entitlement to Service Connection for Hypertension

A.  Pertinent Statutes, Regulations and Cases

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit Court held that a three-element test must be satisfied in order to establish entitlement to service connection.  Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))).  

Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard.  See Walker, supra, (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases.").  When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id.  

The Federal Circuit Court noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a Veteran can establish service connection for a chronic disease" under subsection 3.303(b).  Walker, supra.  Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."   Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation").  Significantly, the Federal Circuit indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added).  Id. at 14.  

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b).  Rather, the Federal Circuit Court held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Id., at 13-14.  Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required."  Id. at 13; see also id. at 9-11, 15-16 (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)).

Because however the Veteran has been diagnosed with hypertension, and hypertension is defined as a chronic disease in section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities apply, and the claim may be supported by evidence of a continuity of symptomatology since service.

His hypertension is also eligible for presumptive service connection.  Specifically, if shown to have initially manifested to a degree of 10 percent or more within one year from the date of his separation from service, it must be presumed to have been incurred during his service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a).  However, this presumption is rebuttable by affirmative evidence to the contrary.  38 C.F.R. § 3.307(d).

As also already alluded to, service connection may be additionally granted on a secondary basis for disability that is proximately due to or the result of an established service-connected disability.  38 C.F.R. § 3.310(a).  In addition, secondary service connection may be granted for a disorder that is aggravated by a service-connected disability; but in this alternative circumstance, compensation is limited to the degree of disability (and only that degree) over and above the degree of disability existing prior to the aggravation.  38 C.F.R. § 3.310(b) (2012); Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Lay persons can also provide an eye-witness account of an individual's visible symptoms.  See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).


Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, both the medical and the lay evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons and bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107.  A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See also 38 C.F.R. § 3.102.  When a Veteran seeks benefits and the evidence is in relative equipoise, he prevails.  See Gilbert, 1 Vet. App. at 49.  The preponderance of the evidence must be against his claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

B.  Factual Background

The Veteran's STRs are unremarkable for any complaints or findings of hypertension.  In a Dental Health Questionnaire, dated in September 1992, he denied having hypertension - meaning persistently elevated blood pressure.  His military service ended in October 1992.

In a March 1995 rating action, the RO granted service connection for degenerative joint disease of his left knee, post-operative reconstructive surgery, also degenerative joint disease of his cervical spine, and for chronic lumbar spine sprain.

VA Medical Center (VAMC) outpatient treatment records dated from July 2004 to January 2006 show that, in October 2004, a list of his medications was provided.  The list included Lisinopril for high blood pressure (HBP).  In March 2005, a list of his health-related problems was provided, and the list included hypertension.

In July 2005, he filed a claim of entitlement to service connection for hypertension.  He maintained that his hypertension was from pain attributable to his 
service-connected left knee and lumbar and cervical spine disabilities.  He therefore premised his claim on the theory of secondary service connection.

In a private medical statement from A.J.T., M.D., dated in December 2006, Dr. T. indicated the Veteran had presented himself in May 2005 with complaints of left knee and low back pain.  He was diagnosed with a lumbar injury and a musculoligamentous injury to his left knee.  According to Dr. T., the Veteran also had been diagnosed with high blood pressure due to pain of his left knee and back.

In December 2009, the Veteran testified at a videoconference hearing before the undersigned VLJ of the Board.  He said he was first diagnosed with hypertension approximately three or four years earlier, so in 2005 or 2006.  He indicated that he was being treated by Dr. T. at that time for pain in his neck, low back, and left knee.  According to the Veteran, because of his pain, his blood pressure went up and he developed hypertension.  Thus, he maintained that he had hypertension due to the pain from his service-connected neck, low back, and left knee disabilities.

In a VAMC treatment record dated in December 2009, a VA nurse practitioner (NP), Ms. C., discussed the Veteran's service-connected disabilities.  She stated that he had severe chronic pain and was on narcotic pain medication to treat his back, neck, and left knee conditions.  According to her, due to chronic pain, the Veteran could possibly become hypertensive, but according to her he had not been diagnosed with that yet.

In May 2011, the Veteran had a VA compensation examination that was performed by Ms. R., a VA certified family nurse practitioner (FNP-C).  She indicated that she had reviewed the Veteran's claims file.  She observed that, according to him, he had episodes of high blood pressure during his active military service.  He noted that, since his discharge from service, he had experienced bouts of elevated blood pressure whenever he was in pain.  Eventually, he was started on blood pressure medication.  His blood pressure normalized  and he was no longer taking any medication.  Following the objective physical portion of that examination, the diagnosis was history of hypertension.  But it was noted that, at the then present, he was normotensive and that no treatment was required.  The examiner opined that it was less likely than not that the Veteran's hypertension was caused by his 
service-connected left knee disability, low back disability, and/or neck disability.  None of these conditions were known to cause hypertension, although, according to that examiner, pain in itself could cause elevated blood pressure readings when one was in pain.

In September 2012, Ms. R., the VA FNP who had performed the May 2011 VA examination, provided an addendum to the May 2011 VA examination report seeing as though her comment was still needed concerning possible aggravation of the hypertension by the service-connected left knee, low back, and neck disabilities.  In the addendum, she stated that she had again reviewed the Veteran's claims file.  But she determined that it was unlikely his service-connected left knee, low back, and neck disabilities, either alone or in combination, had aggravated his hypertension.  In discussing the underlying reasoning for her opinion on this, she pointed out that, since September 1998, the Veteran's hypertension had been well controlled.

In January 2013, the Veteran submitted a private medical statement from Dr. A.J.T., dated in May 2005.  In the statement, Dr. T. explained that he had treated the Veteran after his work-related injuries to his left knee and low back in May 2005.  His lumbar area and left knee were still very tender.  According to Dr. T., the Veteran's blood pressure was elevated at 130/92, which, in his opinion, was due to the pain and stress of his injuries that had occurred at work in May 2005.  Dr. T. recommended that the Veteran take the rest of the day off due to his blood pressure.

C.  Analysis

Based on this collective body of evidence, the Board finds that the preponderance of this evidence is against the Veteran's claim for service connection for hypertension, including as secondary to (meaning caused or aggravated by) his service-connected left knee and lumbar and cervical spine disabilities.

His STRs are unremarkable for any complaints or findings of hypertension.  The first suggestion of hypertension or persistently elevated blood pressure comes in the way of a record dated in October 2004, some 12 years after his discharge from service in October 1992.  The Court has held that the fact that there was no record of any complaint, let alone treatment, involving the Veteran's condition for many years following his service is probative evidence against the notion the condition incepted during his service or, here, even within the one year presumptive period following his discharge, meaning by October 1993.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (accepting that it was proper to consider the Veteran's entire medical history, including a lengthy period of absence of complaints).  According to the holding in Maxson, in the appropriate circumstance, the Board may consider the absence of any indication of a relevant medical complaint until relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period for which there was no clinical documentation of the claimed disorder).  Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical treatment records does not, in and of itself, render lay testimony not credible, including as concerning 

continuous symptoms since service like persistently elevated blood pressure, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record.").  Moreover, although the Board cannot reject a claimant's lay statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").

At the conclusion of the most recent VA compensation examination in May 2011, the examiner stated that, while the Veteran had a history of hypertension, he was then currently normotensive (i.e., had blood pressure within normal limits) and no treatment resultantly was required.  However, clearly, he had been diagnosed with hypertension prior to that examination.  Nevertheless, to the extent he has been diagnosed with hypertension, there is no medical evidence or competent opinion of record etiologically linking his hypertension directly to his military service or dating it back to his service, even to within the one-year grace period following the conclusion of his service that in turn would allow the Board to presume it was incurred during his service.  38 U.S.C.A. §§ 1101, 1112, 1113, 38 C.F.R. §§ 3.307, 3.309(a).  See also Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  So even accepting that he has hypertension, it has not been shown to be either directly or presumptively related to his military service.


To the extent he maintains that he developed hypertension during his service, in other words, that it incepted during his service, and that he has continued to experience hypertension (i.e., continuity of symptomatology) since his discharge from service, his lay statements are considered competent evidence when describing the features or symptoms of an injury or illness.  Layno v. Brown, 6 Vet. App. 465 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995).  But that notwithstanding, as indicated in 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, hypertension involves the cardiovascular system and is diagnosed based on repeated blood pressure testing or a series of blood pressure readings over a defined course of time, to in turn establish its persistent elevation.  It therefore is not a disability capable of mere lay observation in terms of its diagnosis and etiology; that is to say, the diagnosis is based on objective rather than subjective data, and it is not just a "simple" condition such as a separated shoulder, broken arm, varicose veins, pes planus (flat feet) or tinnitus (ringing in the ears) allowing for probative lay comment concerning it, including insofar as when it incepted.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009);

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).

Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1).  Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  Id.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  Id.


The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  See Barr v. Nicholson,21 Vet. App. 303 (2007) (the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Whether medical versus lay evidence can establish this required cause-and-effect correlation between the Veteran's claimed disability and his military service depends entirely on the specific disability at issue in terms of whether it is a "simple" condition such as those mentioned readily capable of even lay comment concerning its diagnosis and/or etiology or whether, instead, it is a more medically complex condition necessarily requiring a certain measure of training and expertise - like this hypertension at issue and, as additional examples, a form of cancer, rheumatic fever, so on and so forth.  Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).

In deciding claims, the Board must assess the credibility and weight of all the evidence, so including both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds persuasive or unpersuasive and providing reasons or bases for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

Here, because there is no competent and credible suggestion of hypertension either at any time during the Veteran's service from April 1990 to October 1992 or during the one-year presumptive period following his discharge, so meaning by October 1993, direct or presumptive service connection is not warranted.


No matter, that is not the essential basis of his claim anyway.  He is alleging, instead, that chronic pain associated with his service-connected left knee, low back and neck disabilities causes recurring spikes in his blood pressure to warrant granting service connection on the alternatively viable basis that his persistently elevated blood pressure, i.e., hypertension is secondary to these service-connected disabilities.  Because, as mentioned, hypertension is not a "simple" condition readily capable of mere lay comment regarding its diagnosis and etiology, there has to be medical evidence supporting this notion of causation or aggravation to associate the hypertension with these service-connected disabilities.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); McQueen v. West, 13 Vet. App. 237 (1999).

Concerning this, the Board realizes that in the December 2009 VAMC treatment record, Ms. C., a VA NP, stated that due to chronic pain from the Veteran's 
service-connected left knee, low back, and cervical spine disabilities, he could possibly become hypertensive.  Her opinion, then, is couched in equivocal language and resultantly insufficient reason to grant this claim on this premise because saying this "could" or might "possibly" happen is akin to also saying it just as well "could not" or might "possibly not" happen.  Statements like this, which are inconclusive as to the origin of a disorder, generally cannot be employed as suggestive of a linkage between the disorder and the Veteran's military service, including, as specifically alleged here, by way of service-connected disabilities.  See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993).  However, these types of opinions also cannot be used to rule out this purported correlation, either.  Ultimately, noncommittal opinions like this amount to "nonevidence," neither for nor against the claim, because service connection may not be based on speculation or remote possibility.  See generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty).  See also 38 C.F.R. § 3.102 (when considering application of the benefit-of-the-doubt doctrine, reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility). 

In past precedent decisions, the Court also had held that saying a condition "may" be related to the Veteran's military service or a service-connected disability is similarly tantamount to saying it just as well "may not" be related to his service or service-connected disability, so, because of this equivocality, also an insufficient basis to grant service connection.  See Obert v. Brown, 5 Vet. App. 30 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Winsett v. West, 11 Vet. App. 420 (1998).

A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  An etiological opinion, however, has to be viewed in its entire context and not characterized solely by the medical professional's choice of words.  See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Lee v. Brown, 10 Vet. App. 336, 338 (1997).

Aside from that opinion, the Board also recognizes that, in the December 2006 private medical statement from Dr. T., he indicated the Veteran had been diagnosed with high blood pressure due to pain of the left knee and back.  In a prior statement from Dr. T., dated in May 2005, he stated that he had treated the Veteran after his work-related injuries to his left knee and low back in May 2005.  According to Dr. T., the Veteran's blood pressure was elevated at 130/92, which, in his opinion, was due to the pain and stress of his injuries that occurred at work in May 2005.  Thus, it appears that in the December 2006 private medical statement Dr. T. was referring to the May 2005 treatment of the Veteran immediately after he sustained injuries to his left knee and back at work and his blood pressure became elevated.  To the extent these statements from Dr. T. are offered to show that pain from the Veteran's service-connected left knee, low back, and cervical spine disabilities caused him to develop that elevated blood pressure, the Board finds that the ultimate probative value of this opinion nonetheless is diminished for several reasons.  Most notable of which is that Dr. T only seemed to suggest a temporary, rather than chronic, spike in the Veteran's blood pressure, so one that was only contemporaneous in that particular moment in time and immediately after rather than chronic and longstanding.

Dr. T did not cite to any evidence in the record, other than the time when the Veteran injured his left knee and back in the May 2005 work-related injury, and even more importantly Dr. T did not offer any underlying rationale for his opinion.  Clearly, the Veteran's blood pressure went up when he experienced pain in his left knee and back after that May 2005 work-related injury.  Indeed, as even conceded by the VA examiner in the May 2011 VA examination report, pain in itself could cause an elevated blood pressure reading when one is in pain.  However, the more pertinent question is whether pain from the Veteran's 
service-connected left knee, low back, and/or cervical spine disabilities caused him to experience sustained elevated blood pressure readings to the point where he developed hypertension because of the pain.  Dr. T. did not address this important matter in terms of reconciling any temporary versus permanent elevation in blood pressure suggestive of chronic hypertension.  And, to reiterate, most of the probative value of an opinion comes from its underlying reasoning or rationale.  See Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  In fact, even review of the claims file does not compensate for lack of reasoned medical analysis and explanation of the opinion.  See, too, Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"); Bloom v. West, 12 Vet. App. 185, 187 (1999) (The probative value of an opinion is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support [the] opinion.").

Notably, the evidence of record dated since May 2005, so since that work-related injury, shows the Veteran's blood pressure eventually stabilized to the point where he no longer needs to take blood pressure medication since his blood pressure apparently has been sufficiently within normal limits.  The May 2011 VA compensation examiner confirmed this, pointing out that, while the Veteran had a history of hypertension, he was then currently normotensive (i.e., had blood pressure within normal limits) and no treatment resultantly was required.  Dr. T. did not address this fact or otherwise explain how even the May 2005 
work-related injury caused a permanent, rather than merely temporary, increase in the Veteran's blood pressure to an elevated level.

For these reasons and bases, the Board finds that the probative value of Dr. T's opinion is significantly lessened.  See Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997); Hayes v. Brown, 5 Vet. App. 60, 69 (1993) ("[i]t is the responsibility of the BVA . . . to assess the credibility and weight to be given the evidence").

By contrast, the Board assigns significant probative value to the conclusion reached by Ms. R., the VA FNP who performed the Veteran's May 2011 VA examination and provided the September 2012 addendum to the report of that evaluation.  Her opinion is clearly based not only upon a review of the relevant evidence in the claims file but also is supported by rationale.  She opined that it was less likely than not that the Veteran's hypertension was caused by his service-connected left knee disability, low back disability, and/or neck disability.  In so concluding, she explained that none of these conditions were known to cause hypertension.  In addition, when later commenting also regarding the question of aggravation, she opined that it also was unlikely the Veteran's service-connected left knee, low back, and cervical spine disabilities, either alone or in combination, had aggravated his non-service-connected hypertension.  And as support for this additional conclusion, she cited the fact that since September 1998 his hypertension had been well controlled.  She therefore indicated the hypertension has not been worse since even the May 2005 work-related injury that Dr. T pointed to as the inciting event precipitating the increase in the Veteran's blood pressure, albeit, as discussed, only temporarily rather than permanently.  This commenting VA compensation examiner also reiterated that, although the Veteran had a history of hypertension, at the then present his blood pressure had normalized and he was no longer taking any medication.  Thus, the Board finds that the May 2011 and September 2012 VA opinions are more persuasive than Dr. T.'s opinions.

The Board recognizes that Dr. T. is a physician whereas Ms. R. is a certified FNP.  But where an appellant does not challenge a VA medical examiner's competence or qualifications, VA need not affirmatively establish that examiner's competency.  See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009).  Moreover, even when, as seemingly here, this has been circumstantially called into question, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  See Cox v. Nicholson, 20 Vet. App. 563 (2007).  There is no evidence of record showing that Ms. R. is not qualified to address the pertinent matters in this case regarding the etiology and/or aggravation of the Veteran's hypertension.

Consider, as well, that there is no "treating physician rule" requiring the Board to give additional evidentiary weight to the opinion of a physician like Dr. T that has treated the Veteran personally, including over the opinion of a VA compensation examiner that has not.  See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993); and Chisem v. Brown, 4 Vet. App. 169 (1993).

To the extent the Veteran, himself, maintains that pain from his service-connected left knee, low back, and cervical spine disabilities either caused or aggravated his hypertension, it is worth repeating that he is not competent to give a probative opinion concerning this since it involves highly complex medical questions concerning an internal physical process.  See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009).  Determining the etiology of complex medical conditions requires medical training and would not be subject to lay observation, as contrasted with the situations contemplated by Jandreau and Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of varicose veins).  So his lay opinion his hypertension was either caused or aggravated by his service-connected left knee, low back, and cervical spine disabilities is not competent evidence and cannot be considered as evidence favorable to his claim.


For these reasons and bases, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for hypertension, including as secondary to his service-connected left knee and lumbar and cervical spine disabilities.  In reaching this decision, the Board considered the doctrine of reasonable doubt.  However, since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied.  38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

C.  TDIU Claim

Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340(a)(1) (2012).  A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. § 4.16(a) (2012).  If there is only one service-connected disability, it must be rated at 60 percent or more; if instead there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. Id.  For the purpose of satisfying these rating requirements, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, or resulting from common etiology or a single accident, or affecting a single body system, or multiple injuries incurred in action, or multiple disabilities incurred as a prisoner of war, will be considered as one disability.


In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits.  Specifically, the Court indicated there is a need to discuss whether the standard delineated in the controlling regulations is an "objective" one based on the average industrial impairment or a "subjective" one based upon the Veteran's actual industrial impairment.  In a pertinent precedent decision, VA's General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances.  Thus, the criteria include a subjective standard.  As further observed by VA's General Counsel, "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation.  VAOPGCPREC 75-91.

A claim for a TDIU "presupposes that the rating for the [service-connected] condition is less than 100 [percent], and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider."  See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994).  In evaluating a Veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.  See also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993); and Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992).

While the regulations do not define "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides."  Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined substantially gainful employment as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income . . . ."

In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment."  In this context, the Court noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): 

It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity.  The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits.  The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. 

Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment."  38 C.F.R. § 4.16(a).  See also Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991).  That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same.  See 38 C.F.R. § 4.18.  Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  38 C.F.R. § 4.16(a).  Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold.  Id.  Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop.  Id. 


Requiring a Veteran to prove that he is 100-percent, i.e., totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment.  The use of the word "substantially" suggests intent to impart flexibility into a determination of his overall employability, whereas a requirement that he prove 100-percent unemployability leaves no flexibility.  See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).

And as the Court stated in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal.  See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991).

That said, to receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability.  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Moreover, the degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the Veteran is indeed "[in]capable of performing the physical and mental acts required by employment," and is not based solely on whether the Veteran is unemployed or has difficulty obtaining employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  Rather, the record must demonstrate some factor that takes his situation outside the norm since the VA Rating Schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment.  Id.; see also 38 C.F.R. §§ 4.1, 4.15 (2012).

The § 4.16(a) schedular criteria for TDIU consideration are satisfied.  Specifically, service connection has been established for chronic lumbar strain, rated as 
40-percent disabling; pseudofolliculitis barbae, rated as 30-percent disabling; postoperative residuals of reconstructive surgery for anterior cruciate ligament tear of the left knee with arthritis, rated as 20-percent disabling; degenerative joint disease of the cervical spine, rated as 20-percent disabling; residuals status post surgery for anterior cruciate ligament tear of the left knee, rated as 10-percent disabling; tinea pedis and onychomycosis, rated as noncompensable; and dislocation of the right index finger, postoperative, healed, also rated as noncompensable.  So the combined rating, when considering all of these 
service-connected disabilities together, is 80 percent.  See 38 C.F.R. § 4.25 (VA's Combined Ratings Table).

As for the relevant factual background, in a private medical statement from J.P.S., M.D., dated in May 2006, Dr. S. recognized that the Veteran was service-connected for left knee and low back disabilities.  He stated that the Veteran had been working at the VAMC in Alexandria, Louisiana, when, in May 2005, he tripped and twisted his left knee and injured his low back.  In December 2005, he underwent left knee arthroscopy and partial medial meniscectomy.  He subsequently underwent physical therapy and was eventually released to go back to sedentary-type work.  Upon physical examination, he walked with a cane and had a limp favoring his left leg.  Dr. S. indicated that the effects of the work-related left knee injury had not ceased.  Also according to Dr. S., the Veteran had a fair prognosis for recovery but not full recovery.  He could not return to his prior employment.  He then recently had a functional capacity evaluation (FCE) and could function at a sedentary-type work level.  He could not stand for over 30 to 45 minutes at a time or over 3 hours in an 8-hour day.  He could not do repetitive bending or lifting over 30 pounds.  Dr. S. concluded by saying it was his opinion that the Veteran could not go back to working an 8-hour day.

In May 2008, the Veteran filed this claim of entitlement to a TDIU.  On his May 2008 TDIU application (VA Form 21-8940), he stated that he had completed four years of college and had received a Bachelor's of Science (BS) degree in criminal justice.  He indicated that he also had participated in the VA vocational rehabilitation program.  He noted that he had worked as a medical clerk at the Alexandria VAMC from June 2003 to April 2007.  In addition, he had worked as a substitute teacher from January 2007 to January 2008.  According to him, he was unable to work because of his service-connected neck, low back, and left knee disabilities.


On a VA Form 21-4192, Request for Employment Information in Connection With Claim for Disability Benefits, dated in June 2008, the Veteran's former employer, the Evangeline Parish School Board, stated that he had worked as a substitute only on an "as[-]needed basis."  He had worked from August 2006 to April 2008.  His employment terminated as a result of a Workers Compensation claim.

On another VA Form 21-4192, Request for Employment Information in Connection With Claim for Disability Benefits, dated in July 2008, the Veteran's former employer, the Alexandria VAMC, indicated he had worked there as a medical clerk from June 2003 to March 2007.  He was no longer working due to his resignation.

In April 2009, the Veteran had a VA compensation examination.  He stated that he had chronic pain in his left knee on account of his left knee arthritis.  He indicated that he also had chronic pain in his low back and that prolonged sitting, driving, and standing aggravated his pain.  In addition, he had chronic pain in his neck due to the arthritis of his cervical spine.  He reported then recently retiring from his job at the Alexandria VAMC because of his left knee and low back disabilities.  The examiner stated that the Veteran's service-connected left knee, low back, and neck disabilities had significant effects on his usual occupation in that he had decreased mobility, problems with lifting and carrying, decreased strength in his lower extremity, and pain.

In a private medical statement from A.J.T., M.D., dated in May 2009, Dr. T. stated that he was the Veteran's primary care physician.  Dr. T. indicated that he had been treating the Veteran since his work-related injuries in May 2005.  The Veteran's diagnoses were lumbar injury and musculoligamentous injury to his left knee.  The Veteran had experienced increasing problems with his left knee, including a decrease in the range of motion, and the knee swelled with tenderness.  The left knee disability was aggravated by activities such as walking.  The Veteran also had lumbar pain with tenderness and decrease in range of motion.  Limitations were no pushing, pulling, bending, squatting, crawling, reaching, stooping, or lifting, and no standing for a long period of time.  The Veteran's low back pain was aggravated by activities such as walking.  He was being treated with cortisone injections and he was taking medication for pain.  Dr. T. stated that the Veteran's back and left knee had been giving him progressive pain and he believed that the Veteran would have considerable difficulty continuing his employment.  According to Dr. T., the Veteran was totally and permanently disabled.

In June 2009, the examiner from the April 2009 VA examination provided an addendum to the examination report.  In the addendum, the examiner opined that the Veteran's service-connected left knee, low back, and neck disabilities precluded him from performing any physical labor.  It was also the examiner's opinion that the Veteran would be better suited for sedentary work where he would be allowed to take breaks as needed to prevent prolonged standing or sitting.  The examiner further opined that the Veteran's service-connected disabilities of pseudofolliculitis barbae and dislocation of the right index finger did not preclude him from physical or sedentary type work.  Lastly, the examiner opined that none of the Veteran's nonservice-connected conditions precluded him from working.

During his December 2009 videoconference hearing before the Board, the Veteran testified that because of his service-connected left knee, low back, and neck disabilities he was unable to work.  He indicated that his private physician, Dr. T., had confirmed that he was unable to perform physical or even sedentary work.  However, because a VA examiner had determined that he could perform sedentary work, he continued to work at the Alexandria VAMC as a medical clerk.  He noted that he had to drive 60 miles each way to reach his employment.  He stated that the driving aggravated his left knee, low back, and neck disabilities.  In addition, he also took a narcotic-type medication for his disabilities which also made it difficult for him to drive.  Thus, even though his job at the Alexandria VAMC was a sedentary-type job, because it involved going through medical records while sitting at a desk, he received a medical retirement due to his left knee, low back, and neck disabilities.

In a VAMC treatment record dated in December 2009, a VA NP, Ms. C., provided an opinion regarding whether the Veteran's service-connected disabiities prevented him from being able to secure or follow employment.  She stated that he had severe chronic pain and was on narcotic pain medication to treat his low back, neck, and left knee conditions.  According to her, he was unable to maintain any type of gainful employment due to his service-connected disabilities, as he was medically retired from a sedentary job and had orthopedic conditions that physically hampered him from managing a job that was more strenuous.

In May 2011, the Veteran had another VA examination that was performed by Ms. R., a certified FNP.  This additional VA examiner stated that she had reviewed his claims file.  She observed he previously had worked at the Alexandria VAMC but had retired due to his neck, low back, and left knee disabilities.  Following the physical examination, she determined it was less likely than not that his service-connected disabilities deemed him unable to participate in gainful employment.  He wore a back brace due to his low back pain.  He was not suitable for physical labor but, in her estimation, he could participate in sedentary-type labor such as a desk job.  She noted that all of his service-connected disabilities were stable.

In September 2012, Ms. R., the VA FNP who had performed the May 2011 VA examination provided an addendum to the May 2011 VA examination report.  In the addendum, she stated that she had reviewed the Veteran's claims file.  She opined that his service-connected disabilities, individually or in combination, did not deem him unemployable.  She reiterated that he wore a back brace due to his low back pain.  But, according to her, although the Veteran was not suitable for physical labor, sedentary labor would not be difficult for him.  His pseudofolliculitis barbae did not interfere with sedentary or physical labor and the condition itself was stable.  The examiner also noted that, although the Veteran had mildly limited range of motion of his neck, he had no evidence of weakness and would have no difficulty performing sedentary desk duties.  His service-connected left knee disability involved both arthritis and instability.  In addition, due to his left knee disability, he had difficulty with prolonged standing and walking.  Recognizing this, the examiner concluded the Veteran would be better suited for sedentary labor; physical labor would not be feasible.


There is evidence for and against this claim on the determinative issue of employability.  Ultimately, the VA FNP who conducted the May 2011 VA examination and provided the September 2012 addendum to the examination report concluded that, while physically exertional work was certainly no longer a viable option for the Veteran given the severity of his service-connected disabilities, sedentary work was still a possibility.  The VA FNP stated that the Veteran could participate in sedentary-type labor such as a desk job.  In addition, the examiner from the prior June 2009 VA examination came to the same conclusion.  She opined that, while the Veteran's service-connected left knee, low back, and cervical spine disabilities precluded any physical labor-type work, sedentary work was still possible - albeit if he is allowed to take breaks as needed to prevent prolonged standing or sitting.  However, the Veteran had a desk job, so this very same type of sedentary employment, when he was working at the Alexandria VAMC and he eventually had to resign even from that job due to problems in his mobility caused by his service-connected left knee and low back disabilities.  In addition, it does not appear that either VA examiner who ultimately concluded unfavorably considered the fact that he had to take narcotic pain medication to treat his left knee, low back, and cervical spine disabilities, which created problems with him driving to work and, at least by implication, would even cause additional impairment in his cognition or other functioning even once at work.  Thus, it is at least debatable whether he can perform even a sedentary job and even if allowing him to periodically stand up and stretch his leg, back and neck, as needed, seeing as though intrinsic to this determination is the question of whether any such job permitting this freedom would only amount to a job of accommodation and, thus, not constitute substantially gainful employment, rather, only instead what amounts to marginal employment.  38 C.F.R. §§ 4.16(a), 4.18.  Moreover, there is the additional matter of whether his level of education, prior work experience and training would present real opportunities for employment with this level of accommodation (only sedentary work), especially since this narrows the type of jobs that he potentially could perform.


In consideration of the evidence of record in support of the Veteran's claim, in a May 2009 private medical statement Dr. T. concluded that due to the Veteran's left knee and low back disabilities, he was totally and permanently disabled.  In addition, in the December 2009 VAMC treatment record, Ms. C., a VA NP, concluded that the Veteran was unable to maintain any type of gainful employment due to his service-connected disabilities, as he was medically retired from a sedentary job and had orthopedic conditions that physically hampered him from managing a job that was more strenuous.  So these clinicians in effect have totally ruled out any type of employment as a truly viable option, irrespective of whether it is labor or physically intensive versus less so and sedentary.

Consequently, the Board finds that the evidence of record is in relative equipoise, meaning about evenly balanced for and against the claim concerning whether the Veteran's service-connected disabilities alone, so without regards to his advancing age and non-service-connected disabilities, are so disabling as to prevent him from obtaining or maintaining employment even in a sedentary capacity that would be considered substantially gainful versus just marginal in comparison.  See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19.  And since the evidence is about evenly balanced on this determinative issue of whether sedentary employment, even though still an option in a strict sense, would be enough in this circumstance to be substantially gainful versus just marginal employment, the Board is resolving this doubt in the Veteran's favor and resultantly granting his TDIU claim.  See 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55.  As the evaluations assigned for his service-connected disabilities meet the requirements for schedular consideration of entitlement to a TDIU, and in fact establish this entitlement, the issue of referral for extra-schedular consideration is moot.  See 38 C.F.R. § 4.16(a), (b).



ORDER

The claim of entitlement to service connection for hypertension, including as secondary to the service-connected left knee and lumbar and cervical spine disabilities, is denied.

But the claim of entitlement to a TDIU is granted, subject to the statutes and regulations governing the payment of VA compensation.




____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs