Citation Nr: 21000498 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 13-00 468 DATE: January 5, 2021 ORDER Entitlement to service connection for a heart condition is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran does not have ischemic heart disease (IHD) and his current heart condition is not etiologically related to service or his service-connected diabetes mellitus. 2. It is not factually ascertainable that the Veteran’s service-connected disabilities precluded substantially gainful employment within one year prior to October 19, 2009. 3. The Veteran has been in receipt of a combined 100 percent schedular disability rating from October 19, 2009. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a heart condition have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to January 1971, including combat and overseas service in Vietnam. The Veteran appealed March 2010 and June 2011 rating decisions by the Agency of Original Jurisdiction (AOJ). In June 2018 and April 2020, the Board remanded the Veteran’s claims to the AOJ for further action consistent with the Board’s remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection A veteran is entitled to the Department of Veteran Affairs (VA) disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of 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) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, a Veteran who during active military, naval, or air service served in the Republic of Vietnam during the period beginning 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 establishing that the Veteran was not exposed to any such agent. 38 U.S.C. § 1116(f) (2012) 38 C.F.R. § 3.307(a)(6) (2019). In order to benefit from the presumption of service connection for diseases associated with herbicide agent exposure, the Veteran must have one of the diseases enumerated in 38 C.F.R. § 3.309(e), which includes ischemic heart disease (IHD). Prior Board decisions remanded the issue because the record was unclear as to whether the Veteran had IHD. A December 2012 general VA examination report checked that the Veteran had IHD, but provided no explanation, details, or medical reference. Other VA examinations and opinions of record specific to the heart found that the Veteran did not have IHD. See March 2010 VA examination report; September 2019 VA opinion; June 2020 VA examination report. Medical treatment records do not note a current diagnosis of or treatment for IHD. As such, the Board finds that the Veteran is not diagnosed with IHD. Rather, the Veteran has been diagnosed with left ventricular hypertrophy of the heart and benign hypertensive heart disease during the appellate period. See February 2010 VA examination report; December 2017 VA treatment record; June 2020 VA examination report. However, these conditions are not presumptive heart conditions under 38 C.F.R. § 3.309(e). Nevertheless, the Veteran has claimed service-connection for his heart condition based on exposure to herbicide agents in Vietnam and also secondary to his service-connected diabetes mellitus. See October 2009 Correspondence; April 2010 Notice of disagreement (NOD). As to nexus, the June 2020 VA examiner did not find that the Veteran’s heart condition was related to service, to include exposure to Agent Orange, or caused or aggravated by his service-connected diabetes. Instead, the June 2020 VA examiner related the Veteran’s heart condition to his hypertension. The Board finds the June 2020 VA examiner’s opinion probative. There is not a positive nexus opinion of record to the contrary. Although hypertension is a condition relating to the cardiovascular system, the Veteran separately claimed service-connection for hypertension and specifically only appealed the issue regarding service-connection for IHD. See October 2009 VA Form 21-526; December 2012 VA Form 9. Service connection for hypertension has also been separately and previously denied in prior rating decisions. See February 2003 and January 2005 Rating decisions. As such, the Board will not expand the Veteran’s claim to include service-connection for hypertension. Overall, the competent medical evidence demonstrates that the Veteran does not have a current diagnosis of IHD to warrant presumptive service-connection under exposure to herbicide agents. Competent VA examinations and opinions of record do not relate the Veteran’s currently diagnosed heart condition to service, to include exposure to herbicide agents, or caused or aggravated by his service-connected diabetes mellitus. Instead, the Veteran’s heart condition has been related to his hypertension. However, the Veteran is not service-connected for hypertension. Furthermore, the Veteran separated service without any heart issues. See January 1971 Service treatment records (STRs). The medical evidence does not note heart issues or treatment until decades after separating from service. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a heart condition is denied. TDIU The Veteran’s claims, including a stand-alone TDIU claim, were all received on October 19, 2009. See October 2009 VA Form 21-526 and VA Form 21-8940. 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. 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. 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 stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following 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; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). “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) (2019). 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 nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. 1. Prior to October 19, 2009 The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred, if an application for increase in compensation is received within one year from such date. 38 C.F.R. § 3.400(o)(2). An exception to that rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In such an instance, the law provides that the effective date of the award “shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” 38 U.S.C. § 5110(b)(2); see also 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). The claim of TDIU is treated as a claim for an increased rating for the purposes of determining the effective date of TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Hurd v. West, 13 Vet. App. 449 (2000). Therefore, the claim of TDIU is entitled to a one-year look-back period. Since TDIU was tied with the Veteran’s increased rating for his service-connected diabetic neuropathy and the AOJ received the claim on October 19, 2009, consideration of TDIU within a year prior to October 19, 2009 is on appeal. During the one-year look-back prior to October 19, 2009, the Veteran had a total rating of 70 percent arising from the common etiology of the Veteran’s service-connected diabetes mellitus. Prior to October 19, 2009, the Veteran was service-connected for left leg diabetic neuropathy at 30 percent disabling, right leg diabetic neuropathy at 30 percent disabling, and diabetes mellitus with erectile dysfunction and retinopathy at 20 percent disabling. As such, the Veteran has met the schedular criteria for TDIU during the one-year look-back prior to October 19, 2009. The Veteran last worked April 30, 2009. See October 2009 VA Form 21-8940. Prior to that, he was working full-time and making $3,000 a month in sales for a steel company. He also worked as an engineer and manager for a steel company. Id. The Veteran has three-years of college eduction. Id. The record does not demonstrate that the Veteran was working in a protective environment or received special treatment or accommodations for his service-connected conditions while working. Therefore, the Board finds the Veteran was gainfully employed until April 30, 2009. From April 30, 2009, the record does not demonstrate that the Veteran was unable to find substantially gainful employment due to his service-connected disabilities at the time. The Veteran claimed entitlement to TDIU based on his diabetes, heart disease, and eye disorder. However, pursuant to this decision, the Veteran is not service-connected for a heart condition. The Board notes there are limited medical records during the one-year look-back period prior to October 19, 2009. Available medical records noted the Veteran’s blood sugar was controlled and that his vision had remained excellent since having undergone cataract surgery. See January 2009 treatment records. Overall, the medical evidence did not suggest the Veteran’s diabetes required regulation of activities. The Veteran’s vision was also adequate. Although the Veteran may have had lower extremity pains due to his neuropathy, the Veteran had experience in an office setting, to include in sales and as a manager, that would have allowed him to sit or stand as needed. Additionally, the Veteran indicated he did not leave his last job due to his service-connected disabilities. See October 2009 VA Form 21-8940. In short, it is not factually ascertainable that within one year prior to October 19, 2009 that the Veteran’s service-connected conditions precluded the Veteran from obtaining or maintaining substantially gainful employment. As a result, entitlement to TDIU prior to October 19, 2009 is denied. 2. From October 19, 2009 The Veteran has had a combined schedular rating of 100 percent from October 19, 2009. The Veteran’s service-connected disabilities, all relating to his service-connected diabetes mellitus, combine to a schedular rating of 100 percent from October 19, 2009. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). Thus, if VA has found a veteran to be totally disabled because of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280. Such a scenario is not present here. The Veteran’s 100 percent disability rating is based on a combination of his service-connected disabilities and no single service-connected disability is rated as 100 percent disabling. Further, the Veteran has asserted that a combination of his service-connected disabilities has resulted in his unemployability, not a single disability. See October 2009 VA Form 21-8940; December 2012 VA Form 9. Therefore, the issue of entitlement to TDIU is moot from October 19, 2009. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, 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.