Citation Nr: 1753855 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 11-08 801A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus type II. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel INTRODUCTION The Veteran had active service from February 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Oakland, California. In August 2013, the Veteran testified at a Board hearing at the RO. Most recently, in December 2016, the Board remanded this matter for further evidentiary development. FINDINGS OF FACT 1. The Veteran's hypertension was not incurred in service, was not manifested within one year of separation from active duty service, and was not caused or aggravated by any of the Veteran's service-connected disabilities. 2. The Veteran's service-connected disabilities do not prevent him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension, to include as secondary to any service-connected disabilities, have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Oakland, California. In August 2013, the Veteran testified at a personal hearing over which the undersigned Veterans Law Judge presided while at the RO. Most recently, in December 2016, the Board remanded this matter for further evidentiary development. I. Service Connection Generally, to establish a right to compensation for a present disability, a Veteran must show (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. §3.303(a). Active service is defined as active duty, as well as, any period of active duty for training during which disability or death is incurred or aggravated by disease or injury in the line of duty, and any period of inactive duty training, during which disability or death is incurred or aggravated by injury in the line of duty. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131; 38 C.F.R. §§ 3.6, 3.303, 3.304; Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). For a Veteran who served 90 days or more of active service, there is a presumption of service connection for hypertension, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A. Hypertension Service treatment records (STRs) are silent for any indication of hypertension during active service. The Veteran was afforded an August 2008 VA examination to determine the nature and etiology of his hypertension; however, in an October 2014 Board remand, it was determined that the August 2008 VA examination report was inadequate as it had reflected a diagnosis of "hypertension, unrelated to diabetes mellitus" without including an explanation as to the reasons for the conclusory statement that had been made. The opinion had also failed to address whether the Veteran's hypertension had been aggravated by his service-connected diabetes mellitus. The Veteran was later afforded a VA examination in November 2015, which showed that the Veteran was diagnosed with hypertension. The examiner concluded that the hypertension was less likely than not incurred in or caused by active service. The examiner explained that the Veteran did not have hypertension while in service, but rather that that hypertension had been diagnosed in 2002, within a year of his diabetes diagnosis. The examiner further indicated that the hypertension, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner again explained that the Veteran did not have hypertension while in service, but rather that that hypertension had been diagnosed in 2002, within a year of his diabetes diagnosis. In a December 2016 Board remand, the Board that the conclusions of the examiner were of no probative value as they were factually inconsistent. The examiner in one instance stated that the Veteran's hypertension existed prior to his period of active service (February 1967 to January 1969), and then concluded that the hypertension was manifested in 2002. As such, the Board found that the Veteran must be afforded an additional examination. Pursuant to the December 2016 Board remand, the Veteran underwent a July 2017 VA examination. The Veteran was diagnosed with hypertension. His treatment plan included taking continuous medication. Following review of the Veteran's claims file, interview and examination of the Veteran, the examiner opined that the Veteran's condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness the result of service. This was clarified in a July 2017 addendum opinion. The examiner further reasoned that there were just two blood pressure readings recorded in service, enlistment and separation, both of which did not meet VA's criteria for hypertension. There were two examinations in November 1969 and July 1982, which did not note a diagnosis of hypertension. The examiner further pointed out that December 2002 private treatment records by Dr. C. G. noted the Veteran's blood pressure was borderline and the first evidence of treatment was in February 2003, which was over 34 years since the Veteran's separation. The examiner opined that the condition claimed was less likely than not proximately due to or the result of the Veteran's service-connected diabetes mellitus. The examiner indicated that private treatment records by Dr. C. G. showed that the Veteran's blood sugar level was borderline since 2001 and that exercise, weight loss, and a change in diet was recommended. The Veteran began treatment for his high blood sugar levels for the first time in January 2002. The examiner further indicated that private treatment records by Dr. C. G. showed the Veteran's hypertension was borderline in December 2002 and treatment for hypertension began in February 2003. Consequently, the examiner found that the Veteran's diabetes mellitus, type II, preceded the onset of his hypertension. The examiner stated that the main mechanism of diabetes mellitus, type II, causing hypertension is by causing kidney failure and the Veteran's kidney function remains normal; hence, they are unrelated etiologically. The examiner also stated that for diabetes mellitus to be anyway causative of hypertension there has to not only be abnormal kidney function (which there is not), but also a time span of at least seven to 10 years between onset of diabetes mellitus, type II, and hypertension (which there is not). The examiner also stated that the Veteran's hypertension was not at least as likely as not aggravated beyond its natural progression by diabetes mellitus, type II. The examiner again provided rationale that while the Veteran's diabetes mellitus, type II, was diagnosed in January 2002, and his hypertension was diagnosed in February 2003, all recorded blood pressures documented upon VA treatment showed that the Veteran's blood pressure remained unaffected and reasonably well-controlled despite the diabetes mellitus having preceded the onset of his hypertension. After considering all of the evidence of record, including that set forth above, the Board finds that the criteria for service connection for hypertension have not been met. Specifically, while the first element, a current disability, is demonstrated here, there is no evidence that it had its onset in service. Nor is there evidence of any in service incident which would have precipitated the eventual diagnosis of hypertension. In addition, there is no evidence of a link between the Veteran's hypertension and his active duty service. There is likewise no evidence that the Veteran's hypertension was manifested to a compensable degree within the first year after service separation. Rather, the evidence shows it was diagnosed in 2003, approximately 34 years after service separation from active duty service. As such, the presumptions of 38 C.F.R. §§ 3.307, 3.309 would not apply here. Finally, the Board notes that the Veteran has claimed hypertension as secondary to diabetes mellitus; however, the July 2017 VA examiner provided an adequate rationale in support of his conclusion that the Veteran's hypertension is not caused or aggravated by his diabetes mellitus, type II. For all of the reasons set forth above, the preponderance of the evidence is against an award of service connection for hypertension. The benefit of the doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). II. TDIU VA will grant a TDIU when the evidence shows that a veteran is unable to secure or follow a substantially-gainful occupation consistent with the veteran's education and occupational experience, by reason of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A total rating for compensation purposes may be assigned where the schedular rating is less than total, when service connection is in effect for one disability rated as 60 percent or more, or when there are two or more service-connected disabilities with at least one disability rated as 40 percent or more, such that there is a combined rating of at least 70 percent. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran's service-connected disabilities are right lower extremity peripheral neuropathy, left lower extremity peripheral neuropathy, left calf shell fragment wound residuals, diabetes mellitus type II with erectile dysfunction, left thigh shell fragment wound residuals, left heel shell fragment wound residual scar, head shell fragment wound residuals, left upper extremity diabetic peripheral neuropathy median nerve, right upper extremity diabetic peripheral neuropathy, back shell fragment wound residuals, and right arm shell fragment wound residuals. His combined service-connected disability rating meets the schedular criteria for a TDIU. The Veteran contends that he is unable to obtain and maintain employment as a result of his service-connected disabilities. In his June 2015 application for increased compensation based on unemployability, the Veteran indicated that he stopped working in 2004. In a written affidavit dated in June 2015, the Veteran stated that he worked as a field supervisor for criminal investigators for the Office of the District Attorney (DA) for 34 years. He noted that his occupation required him to be "out in the field" and within the general public, where he would often manage staff and actively work on assignments. He further noted that his position involved a great deal of standing on his feet the majority of the day or driving, both of which were made difficult as a result of his service-connected disabilities. The Veteran noted that sitting in a vehicle, and sitting and standing for long periods of time were not possible for him, and would serve to induce pain in his back and legs. The Veteran further wrote that in order to manage his staff or to work in the field, he had to meet the physical requirements of the position, such as walking or running to and from place to place-activities he can no longer accomplish. According to the Veteran, he spent his entire career having to battle through the pain and setbacks that his disabilities inflicted until it came to the point where he was physically unable to continue performing his work and duties to the best of his abilities. At the September 2012 VA examination, when asked whether the Veteran's diabetic peripheral neuropathy impacted his ability to work, the VA examiner indicated that it did not. During his August 2013 hearing, the Veteran testified that his service-connected disabilities began to affect his job performance as a supervisor investigator at the DA's office. He further stated that although he had a staff of investigators, his job still required that he be on his feet a lot of times, and it simply "was just to the point where [he] did not feel that [he] could effectively do what [he] needed to do." According to the Veteran, after working at this position for 34 years, he no longer felt he needed to work anymore, and when he felt he could not do the job, he retired. Along with the Veteran's written affidavit, the Veteran's attorney also submitted a Vocational Assessment report dated in June 2015, which was prepared by a vocational specialist, W.C., after reviewing the Veteran's claims file and interviewing the Veteran by telephone. Based on his review of the claims file, W.C. determined that the Veteran was precluded from performing all but sedentary work because of his limited ability to stand. He further noted that the Veteran had no experience or skills that could transfer to sedentary work, and as such, only unskilled or semi-skilled work performed at the sedentary level of physical demand can be considered for him. W.C. further reasoned that the Veteran would be precluded from performing unskilled or semiskilled work because of his need to move from one position to another. According to W.C., "Anything that causes an individual to be off-task for twenty percent of the workday precludes the sedentary unskilled or semiskilled work that would otherwise be appropriate for [the Veteran]." In reaching this assessment, W.C. relied on the August 2008 VA examination report wherein the VA examiner noted that the Veteran can stand for no longer than thirty minutes before developing cramps and numbness in his legs, and as a result, he had to change positions throughout the workday. W.C. also took note of the July 2005 VA examination report wherein the VA examiner noted that the Veteran experienced painful sensation in both legs and a hot sensation in the left hip region. Based on his understanding of the Veteran's education and occupational history, as well as his understanding of the physical constraints and limitations experienced by the Veteran as a result of his service-connected disabilities, W.C. determined that it was at least as likely as not that the Veteran was precluded from securing gainful employment, and had been unable to do so since he last worked in 2004. W.C. disagreed with the VA examiner's assessment, once again referencing the July 2005 VA examination findings, and noting that the pain impacted the Veteran's ability to work because of the implied limitation on his ability to stand. The Board notes that the vocational assessment was based on W.C.'s review of the claims file and interview with the Veteran, but not on an in-person examination. Pursuant to a September 2015 Board remand, the Veteran was afforded a VA examination in February 2016. The VA examiner stated that the Veteran was not functionally impaired by his service-connected left heel shell fragment wound residual, head shell fragment wound residuals, right arm shell fragment wound residuals, left thigh shell fragment wound residuals, and back shell fragment wound residuals. He stated that he would be able to perform both physical and sedentary employment. The examiner further stated that the Veteran's service-connected scars did not cause him any functional impairment and that he could perform both physical and sedentary employment. With regard to the Veteran's right lower and left lower extremity peripheral neuropathy, the examiner stated that the Veteran was functionally impaired in that he would be limited in pushing, pulling, lifting, and carrying. He would also be limited in standing and walking as he would require alternating between sitting and standing. The Veteran also had limitations with lifting/gripping objects and fine manipulations due to pain, numbness, and tingling in his bilateral upper extremities. Overall, the examiner found that the Veteran was able to entertain light, physical and/or sedentary type employment despite the limitations noted. With regard to the Veteran's diabetes mellitus type II with erectile dysfunction, the examiner stated that the Veteran was not functionally impaired by such and was able to perform both physical and sedentary employment. The determination of whether a veteran is employable is a legal determination, rather than a medical determination. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (holding that "applicable regulations place responsibility for the ultimate TDIU determination on the VA [adjudicator], not a medical examiner."). The Board finds the February 2016 VA examination more probative than the June 2015 vocational assessment as the VA examination report and opinion is based upon a thorough examination of the Veteran's service-connected disabilities and more accurately reflects the current severity of such. Additionally, the Veteran has not demonstrated that he is incapable of either light physical or sedentary work as a result of his service-connected disabilities. For the foregoing reasons, the Board finds that the Veteran's service-connected disabilities do not preclude him from sustaining or following substantial gainful employment. Therefore, entitlement to a TDIU is denied. ORDER Service connection for hypertension, to include as secondary to service-connected diabetes mellitus type II, is denied. Entitlement to a TDIU due to service-connected disabilities, is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs