Citation Nr: 21064277 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 19-22 278 fDATE: October 19, 2021 ORDER Service connection for hypertension is granted. Service connection for heart disease, diagnosed as hypertensive heart disease and coronary artery disease, is granted. Service connection for bilateral hearing loss is denied. An initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD), prior to March 11, 2021, is denied. REMANDED Entitlement to a total disability based on individual unemployability due to service-connected disabilities (TDIU) prior to March 11, 2021. FINDINGS OF FACT 1. The Veteran's current hypertension is related to his presumed herbicide exposure in the Republic of Vietnam. 2. The Veteran's hypertensive heart disease is proximately due to his service-connected hypertension, and his coronary artery disease is related to his presumed herbicide exposure in the Republic of Vietnam. 3. The Veteran's bilateral hearing loss does not meet the requirements to be considered a disability. 4. For the period prior to March 11, 2021, the Veteran's PTSD has been productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for ischemic heart disease, diagnosed as hypertensive heart disease and coronary artery disease, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 4. The criteria for an initial rating in excess of 30 percent for PTSD prior to March 11, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from May 1966 to April 1969, including service in the Republic of Vietnam from December 1966 to December 1967; the Veteran also served for more than 30 days at Camp Lejeune. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a May 2020 hearing. At the May 2020 hearing, the Veteran reasonably raised a claim for TDIU, and this issue is part of the instant appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). These matters were previously before the Board in September 2020 when they were remanded for additional development. The September 2020 Board decision also remanded the matters of entitlement to service connection for a low back disability and a skin condition. During the pendency of the appeal, a May 2021 rating decision, in part, granted service connection for lumbar disc herniation, rated 20 percent disabling, effective from January 8, 2018, and granted service connection for tinea unguium, rated noncompensable, effective from January 8, 2018. As the benefits sought have been awarded, the matters are no longer on appeal and will not be addressed herein. In addition, the May 2021 rating decision awarded an initial rating of 100 percent for the Veteran's PTSD, effective from March 11, 2021 (date of VA examination). The claim has been characterized accordingly. The matter of entitlement to TDIU has been recharacterized as entitlement to such benefit prior to March 11, 2021, at which point the Veteran has established a 100 percent schedular rating and entitlement to TDIU is moot. Finally, the Board notes that in June 2021, the Veteran opted into the Appeals Modernization Act (AMA) when he filed a Notice of Disagreement (VA Form 10182) and selected the Board's Hearing docket for review of the May 2021 rating decision as to the effective date for the award of an initial 100 percent rating for his service-connected PTSD. While the Veteran characterized the matter as entitlement to an earlier effective date, the appeal remained part of the underlying legacy system appeal seeking entitlement to an increased rating for PTSD as the May 2021 rating decision awarded only a partial grant of the maximum benefit sought. Such was explained in a September 2021 Board letter, also informing the Veteran that his AMA opt-in request could not be accepted, and thus his appeal seeking an initial increased rating for his PTSD, and associated TDIU, would remain in the legacy system. The matters are therefore adjudicated herein and addressed below. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) 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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 1. Entitlement to service connection for hypertension. The Veteran contends that his hypertension is related to service, to include his presumed herbicide exposure in the Republic of Vietnam, as well as secondary to his service-connected PTSD. A veteran who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service "in the Republic of Vietnam" includes service both on the landmass of Vietnam and the waters that are no more than 12 miles offshore of Vietnam. 38 U.S.C. § 1116A(a), (d). If a veteran was exposed to Agent Orange during active military, naval, or air service, certain diseases, including ischemic heart disease (including coronary artery disease), but not hypertension, are presumptively service connected. 38 C.F.R. § 3.309(e). Although entitlement to service connection may not be established on any of the presumptive bases noted above, a veteran is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). A current diagnosis of hypertension is confirmed by the evidence of record. As a current disability has been established, the remaining question is whether that disability is related to service. The Veteran was afforded a VA hypertension examination in March 2021. The examiner opined that the Veteran's hypertension was at least as likely as not caused by or related to his exposure to herbicides/Agent Orange while he was in Vietnam. The examiner noted that a recent study of Vietnam veterans found that hypertension rates were highest among former military personnel who had the greatest opportunity for exposure to tactical herbicides, including Agent Orange. Hence, the study from the National Academy of Sciences concluded that the positive association between hypertension and exposure to herbicides/Agent Orange. The Board notes that the RO then solicited an addendum opinion which was provided in July 2021. The July 2021 addendum opinion opined that the Veteran's hypertension was less likely than not incurred in or caused by the claimed in-service injury, event or illness, citing medical studies in support of his opinion. After a review of the evidence of record, the Board finds the medical opinion solicited by the RO regarding the etiology of the Veteran's hypertension was improper. In the request for an opinion, the RO stated, "You cited a study which indicates a positive association between hypertension and herbicide exposure, but association is not evidence of causation. Please provide a rationale with medical literature which shows this particular Vet[eran']s hypertension was caused by herbicide exposure. Hypertension is NOT a condition which VA presumes to be associated with herbicide exposure..." The language of the RO's request for an opinion suggested, and in effect, requested that the addendum opinion refute the earlier March 2021 opinion that the Veteran's hypertension was caused by or related to his presumed herbicide exposure in Vietnam. The Board finds that the July 2021 medical opinion was obtained by tainted process where the solicitation from the RO that led to the medical opinion contained questions that were fatally flawed in that they suggested an answer and limited the field of inquiry. See Colayong v. West, 12 Vet. App. 524, 534-35 (1999); see also Sizemore v. Principi, 18 Vet. App. 264, 275-76 (2004); Bielby v. Brown, 7 Vet. App. 260, 268-69 (1994); Austin v. Brown, 6 Vet. App. 547, 552 (1994). Accordingly, the Board finds the July 2021 medical opinion is "tainted" and thus may not be considered in the adjudication of this issue. See Colayong v. West, 12 Vet. App. at 536. As a result of the impropriety leading to the July 2021 addendum opinion, and the lack of probative value of the opinion due to such impropriety, the only probative medical opinion remaining is that of the March 2021 VA opinion that was in support of the Veteran's claim for service connection for hypertension. Therefore, after resolving any doubt in the Veteran's favor, the Board finds that the medical evidence of record sufficiently establishes that the Veteran's current hypertension is related to his presumed herbicide exposure in the Republic of Vietnam. Accordingly, service connection for hypertension is warranted. Inasmuch as this decision is granting service connection for hypertension as related to his presumed herbicide exposure in the Republic of Vietnam, there is no need for the Board to consider any alternative theories of entitlement, such as his hypertension being secondary to his service-connected PTSD. 2. Entitlement to service connection for ischemic heart disease. The Veteran also contends that his ischemic heart disease is related to service, to include his presumed herbicide exposure in the Republic of Vietnam, as well as secondary to his service-connected PTSD. As provided above, if a veteran was exposed to Agent Orange during active military, naval, or air service, certain diseases, including ischemic heart disease (including coronary artery disease), are presumptively service connected. 38 C.F.R. § 3.309(e). Service connection may be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). This matter was previously remanded by the Board in September 2020 to provide the Veteran an examination to determine the nature and etiology of his heart disease. On March 2021 VA heart conditions examination, the Veteran was diagnosed with heart valve replacement and hypertensive heart disease. The examiner found that there was no ischemic heart disease diagnosis. Inasmuch as the March 2021 VA examiner provided a diagnosis of hypertensive heart disease, and the above decision awarded service connection for hypertension, the Board finds that the Veteran is entitled to heart disease, diagnosed as hypertensive heart disease and coronary artery disease. 38 C.F.R. § 3.310. In reaching this finding, the Board notes that VA and private treatment records both include diagnoses of coronary artery disease. See January 2018 VA treatment record; see also July 2020 private treatment record. If a veteran was exposed to Agent Orange during active military, as in this case, ischemic heart disease (including coronary artery disease), are presumptively service connected. 38 C.F.R. § 3.309(e). Thus, the award of service connection for heart disease, diagnosed as hypertensive heart disease and coronary artery disease, is consistent with the medical evidence of record and the regulations governing presumptive service connection for veterans exposed to Agent Orange during active military, naval, or air service in the Republic of Vietnam. Inasmuch as this decision is granting service connection for heart disease as related to his presumed herbicide exposure in the Republic of Vietnam and as secondary to his service-connected hypertension, there is no need for the Board to consider any alternative theories of entitlement, such as his heart disease being secondary to his service-connected PTSD. 3. Entitlement to service connection for bilateral hearing loss. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. After a review of the evidence of record, the Board finds that service connection for bilateral hearing loss is not warranted because the Veteran does not have a hearing loss impairment in the right or left ear as defined by 38 C.F.R. § 3.385. See July 2018, March 2021 VA examinations. The Board acknowledges the March 2021 nexus opinion in support of the Veteran's claim for service connection for bilateral hearing loss. In addition, the Board concedes and acknowledges the Veteran's exposure to acoustic trauma during service. Nonetheless, service connection must be denied because the Veteran does not have a right or left ear hearing loss disability for VA compensation purposes. See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). 4. Entitlement to an initial rating in excess of 30 percent for PTSD prior to March 11, 2021. As reflected above in the Introduction, the Veteran was awarded an initial rating of 100 percent for his PTSD effective from March 11, 2021 (date of VA examination). Therefore, the Veteran's initial 30 percent rating for his PTSD for the period prior to March 11, 2021 is under review. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 (the General Rating Formula for Mental Disorders (General Formula)), which provides for a 30 percent rating when the evidence shows occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted when the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when the evidence shows occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when the evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign, however, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). After a review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding an initial rating in excess of 30 percent is warranted. The evidence does not show occupational and social impairment with reduced reliability and productivity. Flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once per week are not shown during the period prior to March 11, 2021. There is no evidence of difficulty understanding complex commands, impairment of short- and long-term memory, impaired judgment, impaired abstract thinking, or disturbances of motivation and mood. See July 2018 VA PTSD examination. There is also no evidence of difficulty in establishing and maintaining effective work and social relationships. In this regard, the Board notes that the Veteran has been married to his spouse for more than forty years, and he described the relationship as supportive. Id. In addition, he has indicated he has maintained a friendship with a friend from his period of active duty service. Id. Such clearly reflects the Veteran is able to establish and maintain effective work and social relationships. The Board has considered the lay statements submitted by the Veteran's friend and from his spouse as to the impact of his PTSD and his symptomatology, but such evidence is consistent with that reflected in the currently assigned 30 percent rating. Hence, the overall disability picture does not more nearly approximate the criteria for the assignment of a higher rating. For the above reasons, an initial rating in excess of 30 percent for the Veteran's service-connected PTSD has not been met at any time during the appeal period. REASONS FOR REMAND 5. Entitlement to TDIU prior to March 11, 2021 is remanded. The Board's September 2020 remand instructions included, in part, that the Veteran be provided and complete and return a VA Form 21-8940. A VA Form 21-8940 asks a veteran which service-connected disability or disabilities prevent him from securing or following a substantially gainful occupation, and the treatment he has received for the disability(ies). The veteran is further asked to supply information about his employment, including dates when his disability(ies) affected full-time employment, the date the veteran last worked full-time, and the date the veteran became too disabled to work. A VA Form 21-8940 also requests information regarding the veteran's employment, educational, and training history, to include employers for the last five years, the hours worked per week, the time lost from illness, the circumstances under which the veteran lost his last job, and whether the veteran has attempted to obtain employment since he became too disabled to work. A letter was mailed to the Veteran requesting he complete and return a VA Form 21-8940 in October 2020; no response has been received. The Veteran is instructed that while VA has a statutory duty to assist him in developing evidence pertinent to his claim, the Veteran also has a duty to assist and cooperate with the VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Continued failure to assist and cooperate with VA by failure to provide the requested information will result in the claim being considered abandoned. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned). This matter is being remanded to provide the Veteran another opportunity to submit and return a VA Form 21-8940 to provide necessary and critical information as to his appeal. The matters are REMANDED for the following action: 1. Again request clarification from the Veteran regarding his work and educational history by providing him an Application for Increased Compensation Based on Unemployability, VA Form 21-8940, and instruct him that he must submit the form. The letter to the Veteran should inform him of 38 C.F.R. § 3.158(a), and that further failure to assist VA will result in the claim being considered abandoned. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the current problems caused by his service-connected disabilities, to include problems with employment. The Veteran should be provided an appropriate amount of time to submit this lay evidence. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Marley, 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.