Citation Nr: 20054971 Decision Date: 08/19/20 Archive Date: 08/19/20 DOCKET NO. 15-41 062A DATE: August 19, 2020 ORDER Entitlement to service connection for hypertension is denied. Entitlement to a total disability based on individual unemployability (TDIU), prior to December 6, 2017, to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. Hypertension did not have its onset during the Veteran’s active service and is not otherwise etiologically related to such service, and hypertension was not present to a compensable degree within a year of the Veteran’s separation from service. 2. Prior to December 6, 2017, the Veteran does not meet the schedular criteria for assignment of a TDIU, and his service-connected disabilities do not render him unable to secure and follow substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1112, 1131, 1137, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). 2. The criteria for entitlement to a TDIU, to include on an extraschedular basis have not been met prior to December 6, 2017. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. § 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active air service from May 1957 to December 1961. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This case was previously before the Board in January 2019, at which time the issues currently before the Board were remanded for additional development. The case has now been returned to the Board for appellate review. Service Connection — Hypertension The Veteran asserts that he has hypertension as a result of his active service. Specifically, the Veteran has reported that his high stress job while in active service resulted in elevated blood pressure that was the start of his development of hypertension. Service treatment records (STRs) show that the Veteran was seen in medical in April 1959 after being struck in the face by a softball. At that time, his blood pressure readings were 140/88, 130/90, and 132/86. He was eventually admitted to the hospital to rule out a head injury. There is no indication from the record that the Veteran’s slightly elevated blood pressure readings continued. In March 1961, the Veteran was afforded an initial flying examination. At that time, he specifically denied experiencing high or low blood pressure on the Report of Medical History. His blood pressure readings at that time were as follows: 124/80 while sitting, 128/80 while recumbent, and 128/80 while standing. His heart and vascular system were noted to be clinically normal upon examination. Ultimately, the Veteran was qualified for flying duty. In June 1961, the Veteran was afforded a periodic examination for altitude changes. At that time, his blood pressure reading was 132/76 and his heart and vascular system were noted to be clinically normal upon examination. In October 1961, the Veteran was afforded a separation examination. At that time, the Veteran specifically denied experiencing high or low blood pressure on his report of medical history. His blood pressure reading was 124/84, and his heart and vascular system were noted to be clinically normal upon examination. There is no indication from the examination report that there were concerns regarding the Veteran’s blood pressure at the time of his separation from active service. A review of the post-service treatment records indicate that the Veteran was diagnosed with hypertension in May 2011 and has continued to receive treatment for such since that time. The Veteran was afforded a VA examination for his hypertension in September 2019. After examining the Veteran, the examiner opined that the Veteran’s hypertension was less likely as not incurred in or caused by the in-service injury, event, or illness. In so finding, the examiner noted that there was no evidence of recurrent elevated bloop pressure readings while the Veteran was in active service. As such, the examiner found that there was nothing to connect the Veteran’s current diagnosis to his active service. In May 2020, an addendum VA medical opinion was obtained from the September 2019 VA examiner. At that time, the examiner reiterated the opinion that the Veteran’s hypertension was not related to his active service. In so finding, the VA examiner noted that the STRs did not support a diagnosis of hypertension with sustained elevated blood pressure. The examiner noted that elevated blood pressure readings during times of stress or illness with a return to normal blood pressure does not constitute a diagnosis of hypertension. The Board finds that the September 2019 and May 2020 VA medical opinions are adequate, especially when read in conjunction with one another. In this regard, the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran, and provided a supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As there are no opinions of record to the contrary, the VA medical opinions are the most probative evidence of record. While laypersons are competent to report observable symptoms, the Veteran is not competent to provide an opinion linking hypertension to active service, as that requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an etiology opinion in this case. Further, there is no indication from the record that the Veteran had hypertension to a compensable degree within one year of his separation from active service. As such, presumptive service connection for a chronic disease is not warranted. 38 C.F.R. § 3.309 (a) (2019). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for hypertension is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to a TDIU prior to December 6, 2017 The Veteran contends that his service-connected disabilities have made it difficult for him to secure and maintain employment. In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Robertson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Additionally, 38 C.F.R. § 4.16 (b) has two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the Veteran’s history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58 (2019) Review of the record shows that the Veteran does not meet the schedular criteria for assignment of a TDIU prior to December 6, 2017. However, a TDIU may be granted on an extraschedular basis under 38 C.F.R. § 4.16 (b) if it is established that the Veteran is indeed unemployable on account of his service-connected disabilities. A review of the record shows that the Veteran last worked full-time in 2008, at which time he reported he stopped working as a result of his bilateral hearing loss. He reported that his bilateral hearing loss prevented him from passing a hearing exam to retain his CDL license. The Veteran is noted to have graduated high school and has two years of college education. He has an employment history that includes working as a CDL driver, teaching at a community college, and self-employment as a safety instructor. A March 2015 VA audiology evaluation, it was noted that the Veteran reported that he was unable to hold a job as a result of his hearing loss as his hearing loss was severe to the point that he struggled with hearing people. At a July 2016 VA audiology evaluation, it was noted that the functional impairment caused by the Veteran’s hearing loss was it made it difficult to understand speech. At a January 2017 VA audiology evaluation, it was noted that the Veteran’s hearing loss caused difficulty understanding speech in the presence of background noise, and it caused difficulty communicating on the telephone. The Veteran’s tinnitus was noted to interfere with his ability to hear speech clearly. A review of the record shows that the Veteran receives treatment for various disabilities at the VA Medical Center. A review of the treatment notes of record does not show the Veteran to have symptoms of his service-connected disabilities that are worse than those reported in the VA examination reports of record. As the Veteran does not meet the schedular criteria for assignment of a TDIU, in the January 2019 remand, the Board referred the case to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis. In a May 2020 Advisory Opinion, the Director of Compensation Service denied entitlement to a TDIU on an extraschedular basis. In this regard, the Director of Compensation Service found that the Veteran has the skills, training, and industrial background to obtain employment that can accommodate his disability picture and that his service-connected disabilities were not of a severity so as to prevent the Veteran from obtaining and maintaining gainful employment. The Board agrees with the finding made by the Director of Compensation Service. In this regard, the Board finds that the Veteran’s service-connected disabilities do not prevent the Veteran from obtaining and maintaining employment. In fact, the Veteran’s symptoms do not render his disability unique or unusual, and while his bilateral hearing loss makes understanding speech difficult, there is no indication from record that they would prevent him from engaging in sedentary employment. Further, the Veteran’s education and industrial background shows that he has the education and experience that would allow him to be successful in a sedentary employment setting. Additionally, while the Veteran’s symptoms may cause some difficulty, the Veteran was able to engage in a successful employment despite his disabilities. As such, those symptoms are not of such severity so as to prevent the Veteran from obtaining and maintaining gainful employment consistent with his education and industrial experience. Therefore, the Board finds that the Veteran’s service-connected disabilities do not render him unable to secure and follow substantially gainful employment consistent with his education and industrial experience. Therefore, the Board finds that the preponderance of the evidence is against the claim and entitlement to a TDIU prior to December 6, 2017, to include on an extraschedular basis, is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umez-Eronini, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.