Citation Nr: 21002470 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 20-18 195 DATE: January 13, 2021 ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The evidence of record weighs against a finding of that the Veteran’s hypertension is proximately due to, the result of or aggravated by his service-connected PTSD, and the record does not indicate that the Veteran had complaint of or treatment for hypertension during his period of service. 2. The evidence of record is not sufficient to show that the Veteran’s service-connected disabilities, individually or in aggregate, prevent the Veteran from finding and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 5102, 5103, 5103A 5107(b); 38 C.F.R. §§ 3.340, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Air Force from May 1963 to April 1967. In August 2020, the Board remanded the appeal for further development. 1. Service connection for hypertension The Veteran contends that his hypertension is due to his period of service, to include as secondary to his service-connected PTSD. The Board finds that, while the Veteran has a current diagnosis of hypertension, the evidence is insufficient to establish that the Veteran’s hypertension is related to his period of service or service-connected disability. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372. Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a disease enumerated by the regulations, such as hypertension, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1110, 1133; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran’s medical records indicate a current diagnosis of hypertension. The Veteran’s service treatment records do not indicate complaint of or treatment for hypertension during his period of service. As the second element of service connection on a direct basis has not been met, analysis will turn to secondary service connection. In a June 2018 Notice of Disagreement, the Veteran asserted that his hypertension was linked to his service-connected PTSD. The Veteran included an article discussing research regarding veterans experiencing increased flight or fight response during mental stress. The article, however, provides only generic statements that contain no evidence that the Veteran in this case has hypertension due to his PTSD. Therefore, the article does not, in and of itself, support the claim for service connection. Wallin v. West, 11 Vet. App. 509 (1998). Thus, the Board assigns the article low probative value for the purpose of adjudicating the claim. In an April 2018 VA examination, the examiner found that it less likely than not that the Veteran’s hypertension is proximately due to or the result of his service-connected PTSD. The examiner explained that hypertension is noted to be related to advancing age, race, and, in some cases, the cause of hypertension is unknown. The examiner reported that risk factors for developing primary hypertension are being overweight or obese, family history of hypertension, increased salt in diet, reduced nephrons, excessive alcohol consumption and physical inactivity. The examiner noted that secondary hypertension can be related to some medications, and over-the-counter medications can increase the risk of secondary hypertension. The examiner stated that other causes include illicit drug use, primary kidney disease, primary aldosteronism, renovascular hypertension, obstructive sleep apnea, pheochromocytoma, cushings syndrome, endocrine disorders, and other disorders, such as coarctation of the aorta. The examiner stated that there is no medical evidence to support the claim that PTSD will cause or is a significant risk factor for the development of hypertension at this time. In a September 2020 VA addendum opinion, the examiner stated that it is less likely than not that the Veteran’s hypertension is aggravated by his service-connected PTSD. The examiner explained that uncontrolled hypertension can lead to hypertensive heart disease. The examiner noted that the Veteran has had an EF of 60-65 percent. The examiner also noted that the Veteran has had no changes to his current blood pressure medication regimen noted in the past several years. The examiner stated that there is no medical evidence provided to show any aggravation of the hypertension condition being related to his diagnosed PTSD. The examiner noted that PTSD can cause a transient elevation of blood pressure; however, no permanent elevation of blood pressure has been noted in this Veteran. The examiner further stated that due to these findings, there is no aggravation of the Veteran’s hypertension due to his service-connected PTSD. The examiner reported that it is known that the longer hypertension is present, the more risk for other conditions related to hypertension can occur, thus causing heart enlargement, protein in the urine and other factors that can affect the progression of the hypertensive heart disease, which would not be related to the Veteran’s PTSD. The examiner opined that, due to these findings, the Veteran’s hypertension has not been shown to have been aggravated beyond its natural progression by his service-connected PTSD. After review of the record, the Board finds that the evidence weighs against a finding of service connection for hypertension secondary to PTSD. The VA medical opinions of record indicate that the Veteran’s hypertension is not due to or aggravated by his service-related PTSD. The opinions offered are based on medical literature and the Veteran’s medical records. The Board finds these opinions, in totality, highly probative for the purpose of adjudicating the claim. As the evidence weighs against a nexus between the Veteran’s hypertension and his PTSD, service connection for hypertension on a secondary basis is not warranted. While the Veteran believes that his hypertension is related to his period of service, he is only competent to report symptoms and is not competent to opine on the etiology of hypertension, as this is a medically complex question. As the probative medical evidence does not establish a nexus, the criteria for service connection has not been met. Moreover, while hypertension may be considered for presumptive service connection under 38 C.F.R § 3.309, the record does not indicate manifestation of hypertension within one year of the Veteran’s separation from service. Therefore, service connection is not warranted. 2. TDIU The Veteran contends that his service-connected disabilities are such that a TDIU is warranted. The Board finds that the evidence is insufficient to establish that the Veteran is unable to find and follow substantially gainful employment. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15. A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. For the Veteran to prevail on a claim for a TDIU, the sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether the Veteran is entitled to a TDIU, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). Turning to the evidence, prior to July 3, 2019, the Veteran was service-connected for PTSD at a 50 percent rating. Since July 3, 2019, the Veteran was service-connected for PTSD at 50 percent, diabetic nephropathy at 30 percent, and diabetes at 20 percent disabling. Since July 3, 2019, the Veteran has met the schedular criteria for a TDIU. Prior to July 3, 2019, the Veteran had not met the schedular criteria for a TDIU. However, VA policy is to grant TDIU, regardless of the percentages, when service-connected disability renders a veteran unemployable. 38 C.F.R. § 4.16 (b). Where there is evidence that a veteran is unemployable by reason of service-connected disability, but does not meet the percentage requirements, the Board is required to remand the claim, so that it can be referred to VA's Director of Compensation Service for extraschedular consideration in accordance with 38 C.F.R. § 4.16 (b). Therefore, the Board will consider whether referral for extraschedular consideration under 38 C.F.R. § 4.16 (b) is warranted prior to July 3, 2019, and whether TDIU is warranted under 38 C.F.R. § 4.16(a) since July 3, 2019. In an April 2018 VA examination, the Veteran reported that he retired from TVA in 2004. He stated that he worked as a maintenance technician. The Veteran reported that he got along well with other employees. He also stated that he lived with his wife and that his home life and domestic relationship were good. The examiner summarized the Veteran’s social and occupational impairment as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. In a July 2018 private medical examination, the Veteran reported having a high school education and attending 2 college classes. He stated that he has worked from 1967 to January 2004 off and on, as a maintenance steam technician. He left this job because he retired. The Veteran reported there were no problems getting along with supervisors or co-workers. In an August 2019 VA examination, the examiner stated that the Veteran’s diabetes had functional impact on his ability to work in that the Veteran tires easily which prevents him from participating in strenuous activities such as walking or standing long periods. The August 2019 VA examination did not report any functional impact on the Veteran’s ability to work due to his service-connected diabetic nephropathy. In an April 2020 VA Form 9, the Veteran stated that he has not worked since 2005 due to his severe disability. After review of the evidence, the Board finds that the evidence is insufficient to establish a TDIU since July 3, 2019, or to warrant referral for extraschedular consideration prior to July 3, 2019. For the entire appeal period, the evidence indicates that the Veteran’s diabetic nephropathy does not have functional impact, and the Veteran’s diabetes prevents participation in strenuous activities for long periods of time, but it does not preclude employment. The evidence also establishes that the Veteran’s mental health condition does not cause impairment so severe as to preclude the Veteran from employment. The Board has considered the Veteran’s statement regarding his inability to work due to his disability; however, the medical evidence is insufficient to establish that the Veteran is unable to work due to his service-connected disabilities. While the medical evidence indicates that the Veteran’s service-connected disabilities cause some functional impairment, such impairment is considered by the already assigned disability ratings and singularly or cumulatively do not preclude him from securing or following substantially gainful employment. In reaching such determination, the Board finds that the VA examiners’ opinions are highly probative as to the level of impairment associated with the Veteran's service-connected disabilities. For these reasons, a TDIU is denied. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ford 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.