Citation Nr: 19103726 Decision Date: 01/15/19 Archive Date: 01/15/19 DOCKET NO. 17-09 030 DATE: January 15, 2019 ORDER Entitlement to service connection for a neurocognitive disorder, frontotemporal type, due to service-connected hypertensive heart disease with cardiomyopathy, thoracic aneurysm, and mild aortic dilatation (“hypertensive heart disease”) is granted. Entitlement to a rating in excess of 10 percent for service-connected hiatal hernia with gastroesophageal reflux disease and Barrett's esophagus ("hernia") from July 1, 2014 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for B-12 deficiency, to include as secondary to service-connected hernia is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to service-connected hernia is remanded. FINDINGS OF FACT 1. The Veteran’s neurocognitive disorder was caused by his service-connected hypertensive heart disease. 2. The Veteran’s hernia has been manifested by pyrosis, reflux, and regurgitation; but has not been manifested by persistently recurrent epigastric distress with regurgitation, nausea, vomiting and digestive pain; and is further not productive of considerable impairment of health. 3. Affording the Veteran the benefit of the doubt, the evidence demonstrates that his service-connected disabilities prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for neurocognitive disorder secondary to hypertensive heart disease, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § § 3.303, 3.310 (2017). 2. The criteria for an evaluation in excess of 10 percent for service-connected hernia have not been met at any point during the appellate period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.114, Diagnostic Code 7399-7346 (2017). 3. The criteria for entitlement to TDIU on a schedular basis have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1971 to October 1976 and February 1993 to December 2007. 1. Service Connection The Veteran asserts entitlement to service connection for a neurocognitive disorder, secondary to his service-connected hypertensive heart disease. Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). In order to prevail on the issue of secondary service connection, the record must show: (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); see also Allen v. Brown, 8 Vet. App. 374 (1995). With regard to a neurocognitive disorder, the Board finds that secondary service connection is warranted. The Veteran has submitted evidence of a current disability of a neurocognitive disorder. See November 2014 VA Examination. Accordingly, the Board finds that the first element of secondary service connection is established. See Wallin, 11 Vet. App. at 512. The Veteran is service-connected for hypertensive heart disease. See July 2015 Code Sheet. Thus, the second element of secondary service connection is also established. See id. The remaining question is whether there is medical nexus evidence establishing a connection between the service-connected disability and the current disability. In a reasoned September 2018 opinion from the Veteran’s private physician, the physician opined that it was as likely as not that the Veteran’s hypertensive heart disease contributed to the development of his neurocognitive disorder. No negative opinions are of record as the November 2014 VA examiner declined to provide an etiological opinion. Thus, the Board finds that the final element of secondary service connection is established. In light of the foregoing, the Board finds that the Veteran’s current neurocognitive disorder is related to his service-connected hypertensive heart disease. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303 (2017). The service-connection claim for a neurocognitive disorder is granted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.310 (2017); see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Increased Rating The Veteran contends that he is entitled to a rating in excess of 10 percent for his service-connected hernia. See July 2014 Correspondence. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Under Diagnostic Code 7346, a 10 percent disability rating is assigned for two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. VA treatment records document the Veteran’s use of prescription medications for his disability. These prescriptions have included Nexium. At his December 2014 VA examination, the Veteran reported his use of prescription Nexium to control his disability. The Veteran endorsed pyrosis, reflux, and regurgitation, but denied esophageal stricture and spasm. The examiner found no other physical symptoms pertinent to GERD or hernia, and no impact on the Veteran’s ability to work. As noted above, a 10 percent evaluation is warranted for two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent evaluation is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal pain, productive of considerable impairment of health. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is appropriately rated with a 10 percent evaluation. As evidenced by his December 2014 VA examination, the Veteran clearly has two or more of the symptoms for the 30 percent evaluation. Resolving any reasonable doubt in favor of the Veteran, the Board concludes that he is appropriately rated with a 10 percent evaluation throughout appellate period. The Board has also considered whether an evaluation in excess of 10 percent is warranted for the Veteran’s hernia at any point during the pendency of the appeal. The medical records, including the VA examination, do not show that the Veteran’s disability is productive of substernal pain or the considerable impairment of health required for a 30 percent evaluation. The Board also finds that the record does not demonstrate that the Veteran’s hernia is consistent with a 60 percent rating during the appeal period. There is no evidence of vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. The December 2014 VA examiner found no hematemesis, melena, nausea, vomiting, esophageal trauma, hospitalization, weight loss, or any other indication of considerable impairment of health. Accordingly, after consideration of all the evidence of record, the Board finds that an evaluation in excess of 10 percent is not warranted. The criteria for the next higher rating of 30 percent have not been met or approximated for any period in this appeal. See 38 C.F.R. §4.114, Diagnostic Code 7346. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2017). The Board may assign total disability ratings for compensation 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. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a) (2017). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). The Veteran is currently in receipt of a 60 percent rating for hypertensive heart disease; a 50 percent rating for obstructive sleep apnea; a 10 percent rating for right elbow lateral epicondylitis; a 10 percent rating for cervical spine degenerative arthritis; a 10 percent rating for tinnitus; a 10 percent rating for tinnitus; a 10 percent rating for hernia; a non-compensable evaluation for osteopenia; a non-compensable evaluation for bilateral hypertrophy of the retinal pigment epithelium; a non-compensable evaluation for bilateral hearing loss; a non-compensable evaluation for sinusitis; a non-compensable evaluation for allergic rhinitis; a non-compensable evaluation for hypertension; and a non-compensable evaluation for abdomen scars; for a combined rating of 90 percent. As such, the Veteran meets the TDIU requirement for a disability rated at 40 percent or more with sufficient additional disability to meet a combined 70 percent. 38 C.F.R. § 4.16(a). The Board must now consider whether the evidence reflects that the Veteran’s service-connected disabilities render him unemployable. In the Veteran’s June 2014 Application for Increased Compensation Based on Unemployability, the Veteran indicated that he last worked in February 2014 as a nurse. The Veteran also indicated that his highest level of schooling completed was four years of college, which resulted in a nursing degree; and that he had not continued any other pursuits of training after he became too disabled to work. In November 2014 a VA examiner opined that the Veteran’s (now service-connected) neurocognitive disorder caused total occupational and social impairment. In December 2014 a VA examiner opined that the Veteran’s hernia did not affect his ability to work. In a September 2015 letter from the Veteran’s wife, a registered nurse with a master’s degree in nursing, she detailed the Veteran’s difficulties with sleeping and staying awake, low stamina, and difficulty with concentration. She opined that the Veteran would have difficulties with a physical job due to his heart condition and difficulties with a desk job because he would fall asleep. In a September 2018 opinion from the Veteran’s private physician, she opined that the Veteran was unable to maintain substantial employment due to his service connected disabilities. The Board finds that the totality of Veteran’s service-connected disabilities prevents the Veteran from obtaining and maintaining substantially gainful employment, as the Veteran’s problems would make most areas of employment extremely challenging. The Veteran’s service-connected disabilities have caused him to experience a significant decline in his mental and physical faculties. From the evidence provided it is clear that the Veteran is unable to obtain substantially gainful employment. Furthermore, it is unlikely that the Veteran would be able to find a position similar to his past work experience as a nurse. An occupation in nursing requires physical and mental stamina, both of which medical examiners have found to be significantly impacted in the Veteran. A similar occupation would be too difficult as evidenced by the September 2015 medical opinion for the Veteran’s wife. The Board has considered the Veteran’s employment history, education and the evidence of record regarding the service-connected disabilities. Resolving any doubt in his favor, the Board finds that the totality of the Veteran’s service-connected disabilities result in an inability to obtain or retain substantially gainful employment based on the Veteran’s past work experience. As such, the Board concludes that entitlement to TDIU is warranted. REASONS FOR REMAND Upon review of the record, the Board finds that the remaining issues must be remanded. The Board sincerely regrets the additional delay caused by this remand, but wishes to assure the Veteran that it is necessary for a full and fair adjudication of the claims. 1. Entitlement to service connection for B-12 deficiency, to include as secondary to service-connected hernia is remanded. 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to service-connected hernia is remanded. The Board finds that new VA examinations and opinions are warranted for the Veteran’s B-12 deficiency claim and peripheral neuropathy of the bilateral lower extremities claim. In December 2014 the Veteran underwent VA examinations for his claims. The examiner did not provide an opinion as to the etiology of the Veteran’s B-12 deficiency or bilateral lower extremity condition other than summarily concluding that they were unrelated to the Veteran’s service-connected hernia. As the etiology opinion of the Veteran’s B-12 deficiency and bilateral lower extremity condition is necessary to make a decision on the Veteran’s claim, and the examination provided is inadequate, remand is required to obtain this opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: 1. Assist the Veteran in associating with the claims folder updated treatment records. 2. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s B-12 deficiency. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and conducting an examination of the Veteran, the examiner should respond to the following: a) The examiner should state whether it is at least as likely as not (a 50 percent probability or more) that the B-12 deficiency began in service, was caused by active service, or is otherwise related to active service. The examiner should take a thorough history from the Veteran regarding the onset and pattern of his symptoms. b) The examiner should state whether it is at least as likely as not (50 percent or greater probability) that the B-12 deficiency was caused or aggravated by the Veteran’s service-connected hiatal hernia with gastroesophageal reflux disease and Barrett’s esophagus. • If the examiner finds that the Veteran’s B-12 deficiency was aggravated by his service-connected hiatal hernia with gastroesophageal reflux disease and Barrett’s esophagus, then he/she should specify the baseline level of disability of the disability prior to aggravation and the permanent, measurable level of increased impairment due to service-connected hiatal hernia with gastroesophageal reflux disease and Barrett’s esophagus. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions, including, but not limited to, the Veteran’s June 2014 statement that his medication has contributed to his B-12 deficiency and July 2014 medical literature detailing proton pump inhibitors and B-12 deficiency. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s peripheral neuropathy of the bilateral lower extremities. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and conducting an examination of the Veteran, the examiner should respond to the following: a) The examiner should state whether it is at least as likely as not (a 50 percent probability or more) that the bilateral lower extremity condition began in service, was caused by active service, or is otherwise related to active service. The examiner should take a thorough history from the Veteran regarding the onset and pattern of his symptoms. b) The examiner should state whether it is at least as likely as not (50 percent or greater probability) that the bilateral lower extremity condition was caused or aggravated by the Veteran’s service-connected hiatal hernia with gastroesophageal reflux disease and Barrett’s esophagus. c) If the examiner finds that the Veteran’s bilateral lower extremity condition was aggravated by his service-connected hiatal hernia with gastroesophageal reflux disease and Barrett’s esophagus, then he/she should specify the baseline level of disability of the disability prior to aggravation and the permanent, measurable level of increased impairment due to service-connected hiatal hernia with gastroesophageal reflux disease and Barrett’s esophagus. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions, including, but not limited to, the Veteran’s June 2014 statement that his medication has contributed to his bilateral lower extremity condition. (Continued on the next page)   The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Gandhi, Associate Counsel