Citation Nr: 18159649 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 10-25 570 DATE: December 19, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder, is remanded. FINDINGS OF FACT The Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities. CONCLUSIONS OF LAW The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 4.1, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty form December 1964 to November 1966. Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from any notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate awareness of what is necessary to substantiate claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the September 2018 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. TDIU requires impairment so severe that it is impossible for the average person to obtain and maintain a substantially gainful occupation. 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 age or impairment caused by disabilities that are not service connected. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. The critical inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). If there is only one service-connected disability, it must be rated 60 percent or more. If there are two or more service-connected disabilities, at least one must be rated 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran meets the percentage requirement for consideration for TDIU. 38 C.F.R. § 4.16(a). The Board finds that the evidence of record is at least evenly balanced as to whether the Veteran is precluded from obtaining and maintaining a substantially gainful occupation consistent with his education and work experience as a result of his service-connected disabilities. The Veteran has been out of work since he retired in 2013, and is currently unemployed. As the Veteran currently has a 100 percent rating for his PTSD since March 2018, and 70 percent rating prior to that date, he meets the percentage requirement for the schedular criteria for TDIU. 38 C.F.R. § 4.16(a). The Veteran has also established service connection for ischemic heart disease, atrial fibrillation, bilateral hearing loss, and tinnitus. The Board finds that the evidence of record supports a finding that the Veteran is precluded from obtaining and maintaining a substantially gainful occupation consistent with his education and work experience as a result of the service-connected disabilities. The Veteran has asserted that, he could no longer work primarily due to service-connected PTSD. The Veteran claims that he had to quit his part-time positions subsequent to retiring from his full-time career because he could no longer handle the stress. In June 2017, the RO acquired a VA social and industrial survey opinion from a qualified social worker, that addressed the Veteran’s employability with regard to the service-connected disabilities. After a comprehensive analysis of the Veteran’s social, medical, psychiatric, and occupational histories, the examiner found positively for the Veteran’s claim for a TDIU. Specifically, while the examiner noted that there was no evidence that the Veteran was forced into retirement due to the service-connected disabilities, namely PTSD, the examiner found that the Veteran’s current psychiatric condition at least as likely as not prevented him from obtaining or sustaining even part-time employment. A review of the other VA examinations related to the Veteran’s PTSD corroborates the findings by the VA social worker. In a subsequent March 2018 psychiatric examination report for PTSD, the Veteran’s psychiatric disability was noted to manifest to such a severe degree as to be productive of total occupational and social impairment. The examination found continuing symptoms such as severe depression, anxiety, impairment judgment, disturbances in motivation and moods, an overall inability to establish effective work and social relationships, and near continuous panic or depression affecting his ability to function independently, appropriately, or effectively. That examination report resulted in the Veteran ultimately being assigned a 100 percent rating for PTSD. Even considering prior psychiatric examinations, the Board notes that a September 2013 VA examination, while finding that the Veteran’s PTSD was productive only of occupational and social impairment with deficiencies in most areas such as work, family, judgment, or mood, equating to a 70 percent rating, the examination explicitly noted that the psychiatric disability made it difficult for the Veteran to sustain even basic concentration, or grooming, without prompt. The Board finds the June 2017 social and industrial survey to be the most probative with regard to the employability of the Veteran. The examiner’s conclusion was based on a thorough and comprehensive evaluation of the Veteran’s medical and occupational history, and is considered to be of the highest probative value. While the Board is cognizant of the fact that some previous examination of PTSD noted that the Veteran’s condition did not affect the Veteran’s ability to obtain or sustain employment, such as the November 2014 VA examination, the Board finds that analysis is outweighed by the more contemporary evidence and examinations that describe a more severe psychiatric symptomatology picture. The Board must find that the examinations most favorable to the Veteran to be most probative, and demonstrating unemployability due to the service-connected disabilities. Therefore, the Board finds that in viewing the totality of the Veteran’s service-connected disabilities, to include lay statements and VA examinations, the Veteran’s service-connected disabilities prevent him from obtaining and retaining gainful employment. Resolving reasonable doubt in favor of the Veteran, the Board finds that entitlement to TDIU is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder, is remanded. The Board finds that the most recent VA examination provided to the Veteran to assess the nature and etiology of the Veteran’s claimed hypertension, as secondary to his PTSD, is incomplete. In December 2015, the Board remanded the Veteran’s claim for service connection to acquire another VA examination opinion that addressed the Veteran’s claimed secondary relationship between service-connected PTSD, and claimed hypertension. In a May 2017 VA examination report, the VA examiner found against the Veteran’s claim on a direct and secondary basis, and the Veteran’s denial for service connection for hypertension was continued. The Board finds the May 2017 VA examination to be incomplete. Specifically, the Board takes exception to the examiner’s analysis with regards to both direct and secondary causation. With regard to direct service connection, as it relates to the Veteran’s conceded exposure to herbicides, the VA examiner simply noted the findings of the National Academy of Science, with regard to “suggestive” evidence of a correlation between hypertension and herbicides exposure, and relies exclusively on the fact that the Secretary of the VA has not adopted that nexus as presumptive. The Board finds that argument is circular. By the examiner’s logic, any condition not presumptively service connected, as found by VA, should not be service connected. That rationale vitiates all jurisprudence and VA guidance on developing a claim for entitlement. As the Board cannot find that the legislative and public policy purpose of creating presumptive conditions is to enumerate or limit claims for entitlement due to herbicide exposure, the Board must find that that rationale to be inadequate. The Board also finds that the VA examiner’s opinion with regard to secondary causation is incomplete. The crux of the VA examiner’s argument with regard to causation is based on two incorrect, or unsupported, assumptions. First, the examiner noted that the Veteran’s PTSD or nightmares did not begin until well after the Veteran was diagnosed with hypertension in the 1990s, whereas the Veteran was diagnosed with PTSD at least a decade later. However, the Board finds that assumption does not account for the lay statements and private medical evidence of record, to include statements from the Veteran’s wife noting that the Veteran had psychiatric issues from his combat, to explicitly include nightmares, since service. Those facts are corroborated by statements from the Veteran’s treating psychiatrist, specifically in an April 2010 letter, noting that the Veteran had nightmares for 40+ years. The Board finds the lack of discussion with regard to the lay and medical evidence makes that assumption, and thus, the opinion, incomplete. The Board notes that in the May 2017 VA opinion, the nurse practitioner dismisses the opinion letter submitted by the Veteran’s treating physician, noting a positive correlation between the Veteran’s hypertension and PTSD. In providing a rationale, the VA examiner, in essence, found the opinion did not account for the Veteran’s obesity and history of alcohol use. While the August 2013 private opinion letter from Dr. R. J. did not explicitly note consideration of the Veteran’s medical history, the Board finds that having been the Veteran’s treating physician for 20+ years, that Dr. R. J. is in a unique position to attest to the specific condition of one of his long time patients, while considering all facets of his medical history, to this end, the Board does not find that such opinion was written in the abstract, not considering the Veteran’s medical history. Consequently, the Board finds that the rationale provided to reject the positive nexus opinion of record is incomplete, and therefore further development is required. VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is incomplete, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). The matters are REMANDED for the following action: 1. Attempt to obtain any outstanding VA treatment records that have not already been associated with the Veteran’s electronic claims file. If no records are available, the claims folder must indicate that fact and the Veteran should be notified. 38 C.F.R. § 3.159(e). 2. Then schedule the Veteran with a VA examination with a medical doctor to address the nature and likely etiology of hypertension. The examiner must review the claims file and should note that review in the report. Any and all indicated studies deemed necessary by the examiner should be accomplished. The examiner should indicate the likely onset of the Veteran’s hypertension; The examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension is due to his period of active service, to specifically to include conceded in-service herbicide agent exposure. In providing the above opinion, the examiner should consider the NAS 2006 and 2008 updates which concluded that there was “limited or suggestive evidence of an association” between hypertension and herbicide exposure. 75 Fed. Reg. 32,540, 32,549 (June 8, 2010); 75 Fed. Reg. 81,332, 81,333 (December 27, 2010). The examiner must not presume that since hypertension is not among the enumerated diseases presumptively service-connected for herbicide exposure, that it cannot be caused or related to exposure to herbicide agents. The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension was caused by PTSD. The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension, has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by service-connected PTSD. In doing so, please reconcile the opinion with all evidence of record, specifically to include a July 2012 VA examination report and hypertension opinion; a May 2013 statement authored by Dr. R. J., who stated a belief that the Veteran’s hypertension is at least as likely as not due to PTSD; an August 2013 statement provided by Dr. J.C.M. to the effect that the Veteran’s hypertension is at least as likely as not due to PTSD. With regards to both opinions, the examiner must take into account the private examiners relative relationship with the Veteran as his long time physician and assume that analysis is the result of consideration from that position. The examiner must also consider an article published in The Veterans Advocate titled, “PTSD and Heart Disease,” received in May 2013. The examiner should also provide an opinion as to whether the Veteran’s hypertension is at least as likely as not (50 percent probability or greater) proximately due to or caused by service-connected ischemic heart disease and atrial fibrillation, for the period from July 29, 2009, to January 1, 2016, only. The examiner should also provide an opinion as to whether the Veteran’s hypertension is at least as likely as not (50 percent probability or greater) aggravated (permanently increased in severity beyond the natural progress of the disorder) by service-connected ischemic heart disease and atrial fibrillation, for the period from July 29, 2009, to January 1, 2016, only. The examiner is requested to provide a fully reasoned explanation for the opinions, based on clinical experience, medical expertise, and established medical principles. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Zi-Heng Zhu, Associate Counsel