Citation Nr: 1321253 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 05-39 273A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for hypertension including as due to service-connected diabetes mellitus. 2. Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to March 27, 2008. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from May 1968 to May 1970. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from February 2004 and May 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, that denied the Veteran's claims for entitlement to a TDIU and service connection for hypertension, including as due to service-connected diabetes mellitus, respectively. By way of a rather complex procedural history, it is noted that, in October 2005, the Board remanded the Veteran's claim for a TDIU to the RO for issuance of a statement of the case (SOC). The Veteran subsequently perfected his appeal as to that matter. In a March 2008 decision, the Board denied the Veteran's claims for service connection for hypertension, including as due to service-connected diabetes mellitus, a rating in excess of 70 percent for posttraumatic stress disorder (PTSD), and a TDIU. The Veteran appealed the Board's March 2008 decision to the United States Court of Appeals for Veterans Claims (court). In April 2009, the Veteran and the VA General Counsel filed a Joint Motion for Partial Remand (Joint Motion) requesting that the matter of entitlement to an increased rating for PTSD be dismissed. It was further requested that the issues of entitlement to service connection for hypertension and entitlement to a TDIU be remanded back to the Board. In an April 2009 Order, the court granted the parties' Joint Motion. The court dismissed the Veteran's claim for an increased rating for PTSD, and remanded his claims for service connection for hypertension and a TDIU to the Board for further action consistent with the Joint Motion for Partial Remand., In a May 2008 rating decision, the RO granted a 70 percent rating for the Veteran's PTSD, effective June 6, 2006. In September 2009, the Board remanded the Veteran's claims to the RO for further development. While the remand was pending, in a January 2011 decision, the RO granted the Veteran's claim for a TDIU, effective from March 27, 2008. As the TDIU was not granted for the appellate period prior to March 27, 2008, this was not a full grant of the benefit sought on appeal. Thus, the issue of entitlement to a TDIU prior to March 27, 2008 remains in appellate status. The January 2011 rating decision also assigned an effective date of December 19, 2005, for the 70 percent rating for PTSD. In an April 2012 decision, the Board granted an effective date of October 21, 2005 for the award of a 70 percent rating for PTSD. At that time, the Board remanded the Veteran's claims for service connection for hypertension and a TDIU prior to March 27, 2008 to the RO for further development. Thereafter, in January 2013, the Board requested a medical opinion, pursuant to 38 U.S.C.A. § 7109 and as set forth in a designated Veterans Health Administration (VHA) Directive, in response to the appellant's claim of entitlement to service connection for hypertension. See 38 U.S.C.A. § 7109(a) (West 2002) and 38 C.F.R. § 20.901 (2012). See generally Wray v. Brown, 7 Vet. App. 488, 493 (1995). A VHA medical opinion was rendered in March 2013. Later that month, the Veteran was provided with a copy of the opinion and the opportunity to submit additional evidence or argument; no further evidence or argument was received. The matter of entitlement to a TDIU prior to March 27, 2008 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Resolving all doubt in the Veteran's favor, hypertension is due to the Veteran's exposure to Agent Orange during active military service. CONCLUSION OF LAW The criteria to establish service connection for hypertension have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5103, 5107 (West 2002 & Supp. 2012): 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for hypertension herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. In written statements in support of his claim, the Veteran asserts that he has hypertension that is due to his military service or to his service-connected diabetes mellitus. Service connection for diabetes mellitus was granted by the RO in a December 2001 rating decision. The Veteran also contends, in pertinent part, that he was exposed to Agent Orange in service that caused or contributed to his post service diagnosis of, and treatment for, hypertension. Thus, he contends that service connection is warranted for hypertension. Upon review of the record, the Board finds that the evidence is in relative equipoise. As such, affording the Veteran the full benefit of the doubt, the Board finds that service connection is warranted for hypertension. When a veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); but see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (to the effect that the theory of continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This is a direct service connection theory of entitlement. Certain chronic diseases, such as cardiovascular-renal disease including hypertension, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. This is also a direct service connection theory of entitlement. In addition, secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). With regard to the matter of establishing service connection for a disability on a secondary basis, the court has held that there must be evidence sufficent to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability. See Allen v. Brown , 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a non-service-connected disability is proximately due to or the result of a service-connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; see also 38 C.F.R. § 3.310(b) (2012). With regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused by the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (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, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of cardiovascular pathology, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). In this case, the Veteran contends, in pertinent part, that he was exposed to Agent Orange in service that caused or contributed to his post service diagnosis of, and treatment for, hypertension. Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. §§ 1116; 38 C.F.R. § 3.307. If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and acute and sub acute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.307, 3.309(e). The enumerated diseases do not include hypertension. 38 C.F.R. § 3.309(e). Effective August 31, 2010, VA amended 38 C.F.R. § 3.309(e), in part, to add ischemic heart disease to the list of diseases associated with exposure to certain herbicide agents. See 75 Fed. Reg. 53202-16 (Aug. 31, 2010). Specifically, the Secretary of VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for enumerated other disorders, and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See, e.g., Veterans and Agent Orange Update: Update 2010 (Update 2010), 77 Fed. Reg. 47924-8 (Aug. 10, 2012). But see March 6, 2013 VHA opinion, at page 3, discussed infra. Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, presumption is not the sole method for showing causation. In light of the foregoing, service connection may be presumed for residuals of Agent Orange exposure by showing two elements. First, the Veteran must show that he served in the Republic of Vietnam during the Vietnam era. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Second, the Veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e), or otherwise establish a nexus to service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997). The first determination to be clarified is whether the Veteran was exposed to Agent Orange. The above-described presumptions apply only to veterans who actually served on the land mass of the Republic of Vietnam. In December 2001, the RO granted service connection for diabetes mellitus based, in large measure, on the Veteran's exposure to Agent Orange in service. The Board has no reason to doubt the RO's conclusion. Therefore, he is presumed to have been exposed to herbicides during active duty. The next question for consideration is whether the Veteran has a disease or disorder that is positively associated with exposure to Agent Orange or is otherwise related thereto. Here, the objective medical evidence fails to demonstrate that he has a disease associated with exposure to Agent Orange or is otherwise related thereto. However, the evidence of record establishes a nexus between the Veteran's hypertension and his exposure to Agent Orange during military service. Accordingly, an award of service connection for hypertension is warranted. Service treatment records do not discuss complaints or diagnosis of, or treatment for, hypertension. When examined for separation in April 1970, the Veteran's blood pressure reading was 128/78. Post service, private treatment records show that, on August 16, 1985, the Veteran's blood pressure reading was 150/94; on December 2, 1985, it was 160/100; on December 16, 1985, it was 130/90; and, on March 17, 1986, it was 160/100. VA records and examination reports, dated from August 2000 to March 2013, indicate that, since September 2001, the Veteran took prescribed medication for hypertension. According to a March 2003 record from the Social Security Administration (SSA) the Veteran was found totally disabled and unable to work due to back disorders and essential hypertension. He was found eligible for disability benefits since November 2001. An April 2005 VA examination report indicates that the Veteran reported being discovered to have high blood pressure 40 years ago and diabetes was diagnosed in the 1980s. The examiner noted that the Veteran developed hypertension 40 years ago, a few years out of the Army. There was a history of hypertension in the Veteran's mother. The examiner opined that it was not at all likely that (given) the onset of the Veteran's hypertension 20 years before his diabetes, the diabetes and his exposure to Agent Orange are responsible for it. However, the VA examiner suggested that the Veteran's hypertension had its onset approximately 40 years earlier (pre-dating service). The 2009 Joint Motion noted that this examination report appeared inconsistent with the evidence that suggested an onset of hypertension approximately 20 years ago. The examiner did not address the question of whether the Veteran's hypertension was aggravated by his service-connected diabetes mellitus. In a July 2008 written statement, the Veteran reiterated that his hypertension was due to his exposure to Agent Orange. In April 2010, the Veteran underwent another VA examination. According to the examination report, the examiner found that the Veteran's hypertension was diagnosed in the 1990s. The examiner indicated that he reviewed the Veteran's medical records that showed he took blood pressure medication since September 1989. However, the VA examiner did not address the private treatment records dated to 1985, that showed a blood pressure reading of 150/94 on August 16, 1985. He did not address the other records that showed a reading of 160/100 on December 2, 1985, 130/90 on December 16, 1985, and 160/100 on March 17, 1986. Upon May 2012 VA examination, the examiner opined that the Veteran's hypertension was not at least as likely as not incurred in or caused by military service. The examiner noted that hypertension is not a presumptive condition associated with exposure to Agent Orange and the Veteran's hypertension was demonstrated in approximately 1989, with diabetes type 2 shown in about 1992. There was no evidence of renal insufficiency demonstrated on laboratory results from May 18, 2004 and August 3, 2009. The examiner stated that diabetic nephropathy with renal insufficiency would be compatible with exacerbation of the claimed condition, but this was not demonstrated. In January 2013, the Board requested a VHA opinion as to when the Veteran's hypertension was initially manifested and whether it was at least as likely as not (a 50 percent or higher degree of probability) that hypertension had its clinical onset during, or was otherwise related to, his active duty, including exposure to Agent Orange. The Board also asked if it was as likely as not that the Veteran's hypertension was caused by his service-connected diabetes mellitus or his other service-connected disabilities (PTSD, carpal tunnel syndrome of the left and right arms, malaria, and erectile dysfunction). If not, the Board asked if it was as likely as not that the Veteran's hypertension was aggravated by his service-connected diabetes or his other service-connected disabilities. If so, to the extent possible, the examiner was asked to identify the baseline severity of the Veteran's hypertension prior to the aggravation. In the March 6, 2013 VHA report, a VA physician reviewed the Veteran's medical records and noted that the Joint National Committee in 2003 (JNC7) definition of state 1 hypertension was a systolic blood pressure of 140 to 159 and/or diastolic pressure of 90 to 99. The examiner concluded that the Veteran's hypertension manifested as early as August 1985. The VHA examiner opined that, knowing the Veteran's hypertension developed approximately 15 years after discharge, it was unlikely that the appellant's hypertension was incurred due to result of active service. The physician explained that risk factors for hypertension are many and varied and, not specifically referring to the Veteran, may include hypertension in the parents, obesity, excess alcohol intake, excess sodium intake, physical inactivity, etc. In response to the Board's query regarding whether or not the Veteran's hypertension was incurred due to exposure to herbicides, the VHA physician stated that "[c]urrently, the Institute of Medicine's 2010 [U]pdate of Veterans and Agent Orange states 'the Update 2006 conclusion of limited or suggestive evidence of an association between herbicide exposure and hypertension was reaffirmed'." According to the VHA physician, "[o]ne interpretation of this statement is that there is evidence for, as well as, against association between herbicides exposure and hypertension. Hence it is as likely as not that the appellant's hypertension was incurred due to exposure to herbicides." See March 6, 2013 VHA opinion, at page 3. The VHA examiner concluded that the Veteran's hypertension was not caused by his service connection diabetes or other service-connected disabilities. It was noted that the hypertension preceded the diagnosis of diabetes and was not caused by erectile dysfunction, carpal tunnel syndrome or PTSD. The VHA examiner further opined that it was unlikely that the Veteran's service-connected PTSD, malaria, erectile dysfunction, and carpal tunnel syndrome aggravated the hypertension. With respect to diabetes, the physician stated that "it may possibly aggravate hypertension" by various mechanisms, that include diabetic neuropathy (not evident in this Veteran), hyperinsulinemia (the Veteran did not appear to have his condition as he only needed oral diabetes medicine and was not on insulin), volume expansion induced by hyperglycemia glucose load (a "possibility" in the appellant as at one time he had a HgA1c noted to be 7.3), and increased arterial stiffness at a later stage ("a possibility" in the Veteran since the longer he had diabetes the more likely he will develop arterial stiffness aggravating the hypertension). The VHA physician commented that the Veteran's hypertension preceded the diagnosis of diabetes and, hence, diabetes, was not a factor in aggravating the initial diagnosis of hypertension. Over time, the diabetes may make the blood pressure harder to control. The VA examiner also indicated that the effect of the Veteran's diabetes on his hypertension appeared to be limited. Again, service connection may be presumed for residuals of Agent Orange exposure by showing two elements by showing that the Veteran served in the Republic of Vietnam during the Vietnam era. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Second, the Veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e), or otherwise establish a nexus to service. See Brock v. Brown, 10 Vet. App. at 162; see also Combee v. Brown, 34 F.3d at 1042. Here, the medical evidence is in equipoise. While the VHA examiner concluded that it was unlikely that the appellant's hypertension was incurred due to result of active service or service-connected diabetes mellitus, he opined that it was as likely as not that the Veteran's hypertension was incurred due to exposure to herbicides. The examiner particularly noted that the Update 2006 conclusion of limited or suggestive evidence of an association between herbicide exposure and hypertension was reaffirmed in the Update 2010. According to the VHA physician, "[o]ne interpretation of this statement is that there is evidence for, as well as, against association between herbicides exposure and hypertension." Furthermore, the VHA examiner stated that the Veteran's diabetes may possibly aggravate hypertension by various mechanisms. However, the May 2012 VA examiner concluded that the Veteran's hypertension was not due to exposure to Agent Orange and not secondary to service-connected diabetes mellitus. Given the medical expertise of the VHA examiner, the Board is persuaded that the evidence supports the Veteran's claim and service connection may be granted. As such, affording the Veteran all benefit of the doubt, service connection for hypertension is warranted and the Veteran's claim will be granted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107; 38 C.F.R. § 3.303, 3.307, 3.309. ORDER Service connection for hypertension is granted, subject to governing criteria applicable to the payment of monetary benefits. REMAND The Veteran also seeks entitlement to a TDIU prior to March 27, 2008. The RO received his claim for a TDIU in February 2003. In an April 2011 signed statement, the Veteran indicated that he was unemployable due to service-connected disabilities since 2002 or 2005 and, a March 2012 signed statement, asserted that his TDIU should have been effectuated from May 2004. TDIU may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a) (2012). Prior to March 27, 2008, service connection was in effect for PTSD, evaluated as 50 percent disabling from January 30, 2002 and 70 percent disabling from October 21, 2005; diabetes mellitus, evaluated as 20 percent disabling from January 8, 2001; carpal tunnel syndrome of the left and right arms, each evaluated as 10 percent disabling from October 2, 2006, and malaria and erectile dysfunction, each assigned noncompensable disability evaluations. The Veteran's combined disability rating was 60 percent from January 30, 2002, and 80 percent from October 21, 2005. Thus, he met the minimum percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a) prior to March 27, 2008. However, given the Board's decision herein, that grants service connection for hypertension, the RO must now assign a disability rating for the Veteran's hypertension. Then, the RO must reconsider whether the Veteran is entitled to a TDIU prior to March 27, 2008. Thus, in the interest due process and fairness, the Board will defer consideration of the matter of entitlement to a TDIU prior to March 27, 2008 until the RO has completed these actions. Accordingly, the case is REMANDED for the following action: 1. The RO should assign a disability rating for the Veteran's hypertension. 2. Then, readjudicate the Veteran's claim of entitlement to a TDIU prior to March 27, 2008. If the benefits sought on appeal remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board as appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs