Citation Nr: 18144969 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-19 472A DATE: October 25, 2018 ORDER Entitlement to service connection for a heart condition, to include as secondary to service-connected diabetes mellitus type II, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a diagnosis of a current heart disability to include as secondary to the service-connected diabetes mellitus type II. 2. The preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities precludes him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a heart condition, to include on a secondary basis, have not been met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310, 4.2. 2. The criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from September 1965 to June 1967, which included service in the Republic of Vietnam. This matter is on appeal from an October 2012 rating decision for entitlement to service connection for the heart condition as secondary to service-connected diabetes mellitus type II; and a December 2014 rating decision for TDIU. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (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). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(b). VA regulations provide that certain diseases associated with exposure to herbicide agents, including ischemic heart disease, may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. 3.307(a)(6) are met. 38 C.F.R. 3.309(e). A veteran 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 during such service to an herbicide agent, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service. 38 C.F.R. 3.307(a)(6), (d); 3.309(e). Therefore, if a veteran falls under the requirements of the herbicide agent presumption and has a current diagnosis of one of a list of specified diseases, such as ischemic heart disease, the VA will presume in-service incurrence and a causal relationship (nexus), and grant service connection. Even in such cases, however, a veteran must have a current diagnosis of a qualifying disease. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Heart Condition claimed as Secondary to Service-Connected Diabetes Mellitus Type II The Veteran contends his heart condition is caused or aggravated by his service-connected diabetes mellitus type II. The Board also acknowledges that the Veteran has been found to have been exposed to herbicides while on active duty. The Veteran has offered an October 2010 report from a private physician in support of his claim. The physician reports on the Veteran’s symptoms including elevated blood sugar levels, numbness and pain, and erectile dysfunction. The physician opines that conditions related and secondary to diabetes mellitus can cause damage to the heart, nerves and circulatory system, and recommends that the Veteran be carefully evaluated to rule out the possibility that his blood pressure problem is related to his diabetic condition. The examiner did not diagnose any heart disability. The examiner suggested that further examination was needed to find a disability. As no diagnosis was noted, the Board finds this report to be of little probative value. The Veteran was afforded a VA Examination for Ischemic Heart Disease in October 2012. The VA Examiner found that there was no evidence of the Veteran having a current diagnosis of a heart disorder or previously being diagnosed with a heart condition or having heart surgery. The VA examiner notes that the Veteran denied any heart condition or hospitalization due to his heart, and the Veteran’s in-service and post-service treatment contain no diagnosis of a heart disorder. The Veteran asserts that the October 2012 VA examination was inadequate for rating purposes; arguing the examination was superficial with no physicals or labs performed, and that the VA examiner refused to evaluate the Veteran. The Veteran asserts that this renders the rating decision for his heart condition as “void ab initio”, and wants a new VA examination to reevaluate and readjudicate his claim. Here, the Board finds that all necessary assistance has been provided to the Veteran. Specifically, all VA treatment records and relevant private treatment records have been obtained. Moreover, the Veteran has been provided with a VA examination. While the Veteran asserts that his examination was inadequate because the VA examiner did not adequately perform a proper examination, the Board finds that upon review of these examination reports, that the examiner reviewed the Veteran’s past medical history, recorded his current complaints and history, conducted appropriate evaluations and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. As the VA examiner relied not only on physical examination, but also reviewed the claims file that included private and VA treatment records, the Board defers to the VA examiner’s judgement on the matter of whether diagnostic testing was warranted. Therefore, the VA examiner’s report is adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 ; Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, the Board finds there is no competent evidence in the available record to support the Veteran’s claim of service connection for a heart disorder, as the Veteran does not have the first element necessary for service connection for heart disability either on a direct or secondary basis, evidence of a current disability. See Brammer v. Derwinski, 3 Vet. App. 223. Due to the lack of a current diagnosis of a heart disability, service connection is not available based on any theory of entitlement. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a heart condition as secondary to service-connected diabetes mellitus type II is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). Total Disability Rating Based on Individual Unemployability (TDIU) VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any substantially gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. 38 C.F.R. § 3.340. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following disabilities will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. “Substantially gainful employment” is that employment “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.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In support of his claim, the Veteran has submitted several VA Form 21-8940, Veteran’s Application for Increased Compensation based on Unemployability, stating that his retirement from employment was from service-connected disabilities, and contends that he has met the legal requirements for TDIU under 38 C.F.R. § 4.16(a). The Veteran is currently service-connected for diabetes mellitus type II at 20 percent. The following disabilities were found secondary to the Veteran’s service-connected diabetes mellitus type II: sensory motor peripheral neuropathy of left lower extremity at 20 percent, sensory motor peripheral neuropathy of right lower extremity at 20 percent, voiding dysfunction at 20 percent, sensory motor peripheral neuropathy of left upper extremity at 10 percent, sensory motor peripheral neuropathy of right upper extremity at 10 percent, bilateral nuclear cataracts at 0 percent, and erectile dysfunction at 0 percent. These disabilities resulting from a common etiology of service-connected diabetes mellitus type II can be combined for an evaluation for compensation of 70 percent under 38 C.F.R. § 4.16(a). Here, the Veteran meets the schedular criteria for a TDIU rating. A review of the record shows that the Veteran has a high school education, and was employed with the Puerto Rico Police Department from June 1969 to August 1981. The Veteran’s submitted a November 2014 VA 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability, stating the reason for termination from his employment with the police department due to service-connected conditions; However, in his December 1981 VA 21-4192 Request for Employment Information in Connection with Claim for Disabilities, the stated reason for his termination from the police department was for “neuritys depression with anxiety.” The Puerto Rico State Insurance Fund in July 1985 granted the Veteran 100 percent disability for depressive neurosis with anxiety and paranoid personality. Letters in 1984 from the Puerto Rico Superintendent of Schools and warehouse employer show the Veteran was denied employment with them because of his nervous condition. The Board notes that an April 2002 Social Security Disability Determination reports that the Veteran states that in addition to working for the Puerto Rico police, he later worked as a security guard at JC Penny from 1986 to 1988. In response to the question on what illnesses, injuries or conditions limited the Veteran’s ability to work, the Veteran responded that depressive neurosis with pronounced anxiety and diabetes with high blood sugar levels were the reasons limiting his ability to work. He stated that these conditions began affecting him in 1988, and he stopped working later in 1988 because he was unable to concentrate on his working and had problems with his co-workers. A June 2002 Mental Residual Functional Capacity Assessment finds the Veteran was not significantly limited in work-related categories such as the ability to remember and carry out simple instructions, make simple work-related decisions, concentrate, get along with coworkers and adapt to changes in work nature. The Veteran received a VA General Medical Examination in May 2011. The VA examination shows that while Veteran’s service-connected disabilities effect the types of duties the Veteran can perform, overall, the VA examiner opines the Veteran can obtain and secure a financially gainful job of light, sedentary duty work. The Board finds that the evidence of record does not support a finding of TDIU. The Board acknowledges the Veteran has meet the schedular requirements of 38 C.F.R. § 4.16(a) for TDIU, as the Veteran’s service-connected disabilities have a combined rating of 70 percent sufficient to be considered. However, the law is clear that only service-connected disabilities may be considered in a claim of entitlement to TDIU, and that these disabilities are what renders the Veteran unable to secure or follow substantially gainful employment. The greater weight of the evidence shows that the Veteran’s service-connected disabilities do not render him unable to obtain or maintain employment. His termination of employment with the Puerto Rico Police Force and his later rejections for job opportunities in 1984 were because of his nervous condition with anxiety, not because of his service-connected disabilities. The Veteran’s own statements that he worked as a security guard from 1986 to 1988 after leaving the police force in 1981 does not support his contention that his service-connected disabilities prevented him from seeking gainful employment. The June 2002 Mental Function Assessment did not find the Veteran significantly limited to perform work-related activities. Furthermore, the May 2011 VA General Medical Examination also concludes the Veteran’s service-connected disabilities do not prevent him from obtaining employment, and that he is able to find substantially gainful work in a sedentary position. In consideration of the evidence, the Board finds that the preponderance of the evidence is against the claim for TDIU; thus, the benefit-of-the-doubt doctrine is not applicable and the claim must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Yang, Law Clerk