Citation Nr: 1621158 Decision Date: 05/25/16 Archive Date: 06/02/16 DOCKET NO. 10-33 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertension to include as secondary to post traumatic stress disorder (PTSD). 2. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU), prior to April 24, 2013 (the date from which a combined 100 percent schedular rating has been in effect). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran had active service from August 1964 to November 1967. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA). In a June 2009 decision, the RO, in pertinent part, denied service connection for hypertension, and denied entitlement to a TDIU. In May 2015, the Board denied service connection for disabilities of the back and knees. The Board also denied higher ratings for PTSD, coronary artery disease (CAD), diabetes mellitus, and chest scars. The issues of service connection for hypertension and entitlement to a TDIU were remanded. These issues have been returned to the Board. The issue of service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The criteria for a TDIU have been met, for the entire appellate period. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341(a), 4.16, 4.25 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran states that he is unable to work due to the manifestations of his service-connected disabilities. Reviewing the November 2008 application for TDIU benefits, the Veteran has not worked since 2006. He last worked as a truck driver. Educationally, he received a high school education. For the following reasons, the Board finds that entitlement to TDIU prior to April 2013 is established. Total disability ratings for compensation may be assigned, 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities resulting from a common etiology will be considered as a single disability for the purpose of one 60 percent disability. See 38 C.F.R. §§ 4.16(a), 4.25. The Veteran is in receipt of service connection for the following disabilities and respective assigned ratings: coronary artery disease (CAD), 60 percent, effective from August 2006; diabetic neuropathy, 60 percent, effective from April 2013; PTSD, 50 percent, effective from September 2006; bilateral sensorineural hearing loss, 30 percent, effective from October 2005; diabetes mellitus type II with right eye cataract, 20 percent, effective from October 2005; tinnitus 10 percent, effective from October 2005; peripheral neuropathy (PNP) of the right lower extremity, 10 percent, effective from August 2006; PNP of the left lower extremity, 10 percent, effective from August 2006; chest scar associated with CAD bypass grafting, 10 percent, effective from April 2013, and superficial nonlinear scars, rated as noncompensable. He had a combined 80 percent rating, effective from October 2005; 90 percent, effective from September 2006; and 100 percent from April 2013. Accordingly, he has met the schedular threshold for TDIU consideration since October 2005. In considering the claim, the Veteran filed his original claim for service connection benefits in October 2005 and specifically for entitlement to TDIU, in November 2008. Prior to April 2013, the only medical opinion of record that directly addressed the Veteran's employability is a January 2009 VA opinion. The VA physician concluded that the Veteran was unable to perform physical labor but could perform sedentary work based on the diagnosis of diabetes mellitus type II, hypertension, CAD, and gout. She further concluded that the variously diagnosed non service-connected disabilities would not affect his employability. Since this opinion was given, the RO has since granted service connection for additional disabilities retroactively and they were not taken into consideration at that time. Moreover, the examiner concluded that the Veteran could perform sedentary labor, importantly, however, she did not comment on his PTSD and its effect on his ability to function in a sedentary job. VA outpatient records show that he continued to receive treatment for this disorder. PTSD was rated as 50 percent disabling, which indicates significant psychiatric symptomatology. In considering the severity of the Veteran's disabilities, his work history, his experience, and the Veteran's own statements as to his inability to resume work due to his conditions, as well as resolving any doubt in favor of the Veteran, the Board finds that the combined effects of the manifestations of his service-connected disabilities were sufficiently incapacitating as to result in unemployability, prior to April 2013. His physical disabilities coupled with his PTSD had rendered the Veteran, at best, only marginally employable. The record does not show what type of work the Veteran could have done given the restrictions or what modifications would have been involved. As such, any doubt on this issue is resolved in favor of the claimant. See 38 C.F.R. § 5107 38 C.F.R. § 3.102. Accordingly, entitlement to a TDIU is granted, for the entire appellate period. ORDER Entitlement to a total disability rating based on individual unemployability is granted for the entire appeal period, subject to the laws and regulations governing payment of monetary benefits. REMAND In the May 2015 remand, the Board directed the AOJ to obtain an addendum opinion regarding whether the Veteran's hypertension was aggravated by his service-connected PTSD. A VA examination was conducted in August 2015. Unfortunately, the opinion contained a conclusory rationale in support of its conclusion that the Veteran's hypertension was not aggravated by his service-connected PTSD. Specifically, in the August 2015 opinion, the author referred to the risk factors that cause hypertension and she concluded that the Veteran's PTSD did not aggravate his hypertension. However, she did not give adequate rationale as to her conclusion. In August 2010, the Veteran submitted a medical article, Prospective Study of Post Traumatic Stress Disorder Symptoms and Coronary Artery Disease in the Normative Aging Study. The examiner failed to comment on this article. In fact, VA has recognized that some studies have found an association between PTSD and poor cardiovascular health. (See http://www.research.va.gov/currents/spring2015/spring2015-8.cfm). Still further, the Institute of Medicine's has updated a 2006 report (in 2010 and 2012) that confirms that there is "limited or suggestive evidence of an association between exposure to [Agent Orange] and hypertension..." See Veterans and Agent Orange: update 2006, Institute of Medicine 557-60 (2007); Veterans and Agent Orange: update 2010, Institute of Medicine 694(2011), Veterans and Agent Orange: update 2012, Institute of Medicine 862-63 (2014). The Board finds that such studies should at least be considered in forming an opinion regarding an etiological relationship between hypertension and military service to include PTSD. The Board also notes that the Veteran has reported that his hypertension was originally diagnosed in the 1970s. See April 2006 VA examination report. However, there are no records showing any treatment for hypertension at that time. The RO should assist the Veteran in obtaining records from this time period. In sum, despite the additional development conducted since the prior remand, additional development is required to satisfy the duty to assist. Accordingly, the case is REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that he provide sufficient information, and if necessary, authorization, to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) medical records, to include records of his initial treatment for hypertension in the 1970's. 2. Obtain a clinical opinion as to: a). whether it is at least as likely as not (i.e., at least a 50 percent probability) that the currently diagnosed hypertension had its clinical onset during the Veteran's active duty or are otherwise related to such service, to include Agent Orange exposure; and b). whether the Veteran's hypertension is as likely or not caused by, or aggravated by, PTSD. The examiner should note that the term "aggravated by" refers to a chronic or permanent worsening of the underlying condition, as contrasted to mere temporary or intermittent flare-ups of symptoms that resolve and return to the baseline level of disability. The examiner should consider the pertinent evidence to include: the service treatment records, post service records and the studies noted above (See Prospective Study of Post Traumatic Stress Disorder Symptoms and Coronary Artery Disease in the Normative Aging Study; Veterans and Agent Orange: update 2006, Institute of Medicine 557-60 (2007); Veterans and Agent Orange: update 2010, Institute of Medicine 694(2011), Veterans and Agent Orange: update 2012, Institute of Medicine 862-63 (2014) and http://www.research.va.gov/currents/spring2015/spring2015-8.cfm). All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. Thereafter, the RO should readjudicate the remaining issue on appeal, to include consideration of all additional evidence received since the most recent supplemental statement of the case. If the determination remains unfavorable to the Veteran, he should be provided with a supplemental statement of the case and be afforded an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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 2014). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs