Citation Nr: 18140700 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 12-20 019 DATE: ORDER Entitlement to service connection for hypertension, including as secondary to diabetes mellitus II (DM) or posttraumatic stress disorder (PTSD), and to include as due to exposure to herbicide agents, is denied. Entitlement to an effective date of April 20, 2006 for the award of a total disability rating due to individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s hypertension was onset many years after his active service, was not caused by any incident in-service, including exposure to herbicide agents, and was not cause by or aggravated by his service-connected PTSD or DM. 2. From April 20, 2006 to May 31, 2010, the Veteran’s service connected disabilities prevented him from engaging in substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension, to include as due to exposure to herbicide agents, as well as secondary to service-connected PTSD and DM, have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for entitlement to TDIU have been met from April 20, 2006 to May 31, 2010. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to September 1966. This matter is before the Board of Veterans’ Appeals (Board) on appeal of February 2009, April 2010, July 2010, November 2010, and February 2011 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2013, the Veteran appeared at a hearing before the undersigned. This claim has an extensive procedural history wherein the Board issued initial decisions in January 2009 and November 2014. The claim was appealed to the United States Court of Appeals for Veterans Claims (Court). In May 2015 the Court approved a Joint Motion for Partial Remand ( JMPR ) which returned the claims to the Board. Additional Board decisions were issued in November 2015 and July 2017. Most recently, the Board remanded the Veteran’s claim for service connection for hypertension to obtain an additional medical opinion. The issues are now returned for further appellate review. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also, Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for hypertension, including as secondary to diabetes mellitus II (DM) or posttraumatic stress disorder (PTSD), and to include as due to exposure to herbicide agents Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The evidence must show (1) the existence of a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis 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). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran served onboard the U.S.S. Paul Revere off the coast of Vietnam in 1965 and 1966. Veteran’s VA and private medical records from 2009 reflect a current diagnosis of hypertension. A March 2012 VA hypertension examination confirms a diagnosis of hypertension from 2009. Hypertension is not reflected in the Veteran’ service treatment records. Nor is there any evidence that hypertension developed within one year of the Veteran’s service. Service connection is not established by a direct link to the Veteran’s active military service or by consideration of the condition as a chronic disease. See Shedden, supra, see also, 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a). The Veteran contends his hypertension is related to his service due to exposure to herbicide agents in Vietnam. He also claims his hypertension is caused or aggravated by his service connected PTSD or DM. He submitted statements supporting his assertions from his cardiologist, Dr. R. In December 2010, Dr. R. provided a letter stating the Veteran’s hypertension “is related to his service in the Vietnam War.” August 2010 and March 2011 letters from Dr. R. asserts the Veteran’s hypertension is related to his PTSD. No supporting rationale or explanation is provided for these opinions; thus, they have no probative value because they are not supported by any rationale. Similarly, the Veteran’s private physician, Dr. S., provided an August 2010 letter asserting the Veteran’s PTSD “may be a cause of increased” hypertension. No explanation or supporting rationale is included. As the Veteran’s treating physician, Dr. S. is competent to provide an etiology opinion, but absent supporting rationale, the Board finds this opinion is of little probative value. Additionally, the Veteran submitted medical literature regarding a possible link between hypertension and PTSD. Multiple VA examinations were provided to fully address the Veteran’s contentions. An initial VA examination was provided in March 2012. The examiner reviewed medical literature purporting a link between PTSD and hypertension. He determined that the studies were limited in nature and not applicable to the Veteran’s claim. He opined that the Veteran’s hypertension was less likely than not caused by or aggravated by his PTSD. He determined the Veteran had essential hypertension, unrelated to his PTSD. As the opinion did not address the Veteran’s contentions related to herbicide exposure and DM, the Board remanded the claim for decision remanded the claim for an additional VA examination. On remand, a VA examiner provided a June 2015 addendum opinion and a June 2016 examination and opinion addressing the Veteran’s contentions. She opined that the Veteran’s hypertension was less likely than not directly related to his active service because it was not onset during service. She also opined that the hypertension was less likely than not caused by PTSD because it was diagnosed after PTSD was diagnosed. This examiner also fully discussed the causal relationship between hypertension and herbicide exposure, including the relevant medical studies. She opined that the Veteran’s hypertension was less likely than not causally related to herbicide exposure because it was more likely associated with the risk factors or age, sex, and weight. The Board’s July 2017 decision found the June 2017/June 2016 VA opinion was insufficient in addressing whether the Veteran’s hypertension was aggravated by his PTSD. The opinion was also insufficient because no supporting rationale was provided for the examiner’s conclusion that DM had not caused or aggravated the hypertension. The claim was remanded for an addition medical opinion to address these issues. A final VA medical addendum opinion was provided in March 2018. The examiner opined that it is less likely than not that the Veteran’s hypertension was caused or aggravated by his service connected PTSD or DM. This examiner explained that the Veteran’s PTSD might “temporarily elevate his blood pressure in a crisis,” but a temporary elevation did not amount to an aggravation of the condition. Moreover, he observed that the Veteran’s blood pressure readings since 2007 were essentially stable. He also explained DM does not cause or aggravate hypertension unless an individual has renal disease. He reviewed the Veteran’s latest tests and determined the Veteran did not have any renal disease. VA examination opinions from March 2012, June 2015, June 2016, and March 2018, when read together, fully discuss all the Veteran’s contentions. Overall the opinions are supported by complete and clear rationale. The relevant medical literature is discussed. The Board finds these opinions are provided by competent medical professionals and credibly describe relationship between the Veteran’s hypertension and his service connected disabilities and any possible exposure to herbicide agents. The opinions are entitled to great weight. Thus, the Board finds the preponderance of the evidence is against finding the Veteran’s hypertension is causally related to his active service, including as a result of possible exposure to herbicides. Further, his hypertension is not caused by or aggravated by his service connected PTSD or DM. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 2. Entitlement to an effective date earlier than June 1, 2010 for an award of a total disability rating due to individual unemployability (TDIU) TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided 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.§ 4.16(a). Disabilities resulting from common etiology or a single accident are considered one disability for the purpose of meeting the percentage thresholds for TDIU. Id. The relevant issue is not whether the Veteran is unemployed or has difficulty obtaining employment, but whether the Veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but no consideration may be given to age or impairment caused by nonservice-connected disabilities. 38 C.F.R.§ 4.16, 4.19. A claim for TDIU may be filed as a freestanding claim. In addition, TDIU may be an element of a claim for an increased disability rating when unemployability is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.§ 5110(a); 38 C.F.R.§ 3.400. In a claim for increased rating, if it is factually ascertainable that an increase in disability occurred within the one-year period prior to filing the claim, the effective date will be the date the increase was shown. 38 C.F.R. § 3.400(o)(2). Generally, a claim for a TDIU is thought of as equivalent to an increased rating and, as such, 38 C.F.R. § 3.400(o) should be applied. See, Hurd v. West, 13 Vet. App. 449 (2000). In this case, the Veteran filed a claim seeking an award for TDIU on June 1, 2010. The claim was granted, effective from June 1, 2010, by a November 2011 rating decision. When the Veteran’s appeal came before the Board in November 2014, the Board determined the Veteran had not filed a timely appeal as to the issue of the effective date of the award of TDIU. In November 2015, pursuant to a May 2015 JMPR, the Board determined that the Veteran had filed a timely appeal as to the effective date of his award of a TDIU. In May 2017, the claim was remanded again as intertwined with the Veteran’s claim for service connection for DM. The claim is now returned to the Board for adjudication. The earliest possible effective date the Board may find for the freestanding TDIU claim is June 1, 2009. Id. The Board finds a claim of TDIU was also raised by the record pursuant to the Veteran’s claim for an initial increased rating for PTSD. See Rice, supra. The Veteran filed a claim for service connection for PTSD on April 20, 2006. Initially, service connection was denied and the Veteran appealed. After adjudication by the Board, a February 2009 rating decision allowed service connection for PTSD and assigned a disability rating of 30 percent. In March 2009, the Veteran filed a timely notice of disagreement (NOD) as to the initial rating. A November 2014 Board decision did not find the issue of an earlier effective date for the award of a TDIU was on appeal and awarded a 70 percent disability rating for PTSD from April 20, 2006. The award for PTSD was implemented by the RO in a January 2015 rating decision. Nonetheless, as noted above, a subsequent JMPR vacated the part of the November 2014 Board decision that found that the effective date of the TDIU assigned was not appeal. Thus, the Board finds the earliest possible effective date for TDIU is April 20, 2006 as the TDIU claim in question was raised as part of the increased rating claim for PTSD under the holding in Rice. See also, 38 C.F.R.§ 3.400. An earlier effective date for the TDIU claim under Rice is more favorable to the Veteran than the standalone claim filed in June 2010. Accordingly, the Board will consider whether an earlier effective date for TDIU is applicable between April 20, 2006 and June 1. 2010. As recounted in the Board’s November 2014 decision, the Veteran worked as a trash collector from 1991 until 2003. He stopped working after he suffered an employment-related back injury. The Veteran’s Social Security Administration records document he has a ninth-grade education. The Veteran is service connected for a mental health disability (currently diagnosed as anxiety disorder and previously rated as posttraumatic stress syndrome (PTSD)), DM, and bilateral hearing loss. His back injury is not related to his military service. The Veteran testified that while he was employed, he worked 14 and 15-hour days. After work he returned home only to eat and sleep before returning to work the next day. His long hours at work helped him handle his mental health problems. After the back injury, he experienced idle time. He started to have difficulty sleeping and began to experience memories of things that happened long ago. He had nightmares and became moody. He testified that he began treatment for his mental health problems in 2004 or 2005. He described 2006 as a rough year, wherein he had to “address issues that [he] was trying to hide for years.” He also testified that his PTSD symptoms remained consistent between 2006 and 2010. VA treatment records document a diagnosis of PTSD and depression in April 2005. In April 2006, a VA examination records continuing sleep problems and avoidance of social situations. The Veteran reported irritability and “extreme anger.” He reported snapping at his children for no reason. In March 2007, VA medical records document the Veteran was temporarily delayed in continuing participation VA PTSD group therapy. The medical notes recount that during a discussion about this delay, he became angry, frustrated, and loud. Resolution of the issue required “repeated explanation of the situation.” In June 2007, the Veteran had difficulty attending his son’s graduation due to the noise, crowd, and his proximity to other people. In March 2009, the Veteran submitted a statement that he was sleeping poorly, isolating himself from friends and family, and avoiding crowds. June 2010 medical records document an instance where the Veteran became angry and confrontational over having his blood drawn. The Veteran submitted a July 2015 employability evaluation from Certified Rehabilitation Counselor, Ms. L. The Rehabilitation Counselor reviewed the Veteran’s entire file and discussed his educational, employment and medical history. Her opinion is competent, credible, and relevant to the issue at hand. Ms. L. opined that the Veteran has been “unable to secure and follow substantially gainful employment due to worsening and severe depression, anger, sleeplessness, anxiety and aggression” since 2003. In her opinion, the Veteran’s limited education, in combination with his mental health difficulties, prevented him from transferring his limited work skills as a trash collector to a new field of work after his back injury. She determined he is unable to complete sedentary work because of “his inability to remain calm among strangers, hear loud noises and control his anxiety for any length of time due to his PTSD and anxiety.” Here, the Veteran has one service connected disability, PTSD, rated as 70 percent disabling from April 20, 2006. The evidence shows that between April 20, 2006 and May 31, 2010, the Veteran’s PTSD caused irritability and angry outbursts. He had difficulty being around others. The Veteran’s treatment records suggest he is unable to work with others or accept supervision due to these symptoms. In addition, he has very limited education and his job skills from being a trash collector are not easily transferred to other employment. After resolving any reasonable doubt in the Veteran’s favor, the Board finds that he is precluded from substantially gainful employment because of his service-connected disabilities; thus, an award of a TDIU is warranted. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeanne Celtnieks, Associate Counsel