Citation Nr: 21065199 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-28 685A DATE: October 25, 2021 ORDER Entitlement to service connection for hypertension, including secondary to service-connected PTSD, is denied. Entitlement to service connection for chronic diarrhea (claimed as a stomach disorder), including secondary to service-connected PTSD, is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to July 12, 2018, is denied. FINDINGS OF FACT 1. The Veteran's hypertension did not originate in service or within one year of discharge therefrom, and is not otherwise etiologically related to service, did not manifest until more than one year after separation, nor was it proximately due to, the result of, or aggravated by his PTSD. 2. The Veteran's chronic diarrhea did not originate in service or within one year of discharge therefrom, and is not otherwise etiologically related to service, did not manifest until more than one year after separation, nor was it proximately due to, the result of, or aggravated by his PTSD. 3. Prior to July 12, 2018, the evidence of record demonstrates that the Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for chronic diarrhea (claimed as a stomach disorder) due to service or service-connected PTSD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. Prior to July 12, 2018, the criteria for a TDIU have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1974 to October 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified at a video conference hearing held before the undersigned Veterans Law Judge. A transcript of this hearing has been added to the record. The Board previously remanded the appeal in March 2021, and the matter has been returned for appellate consideration. The requested development having been completed (namely obtaining additional evidence and new examinations), the Board finds substantial compliance with its remand instructions. The Board notes that the Veteran's appeal originally included the issues of entitlement to service connection for allergic rhinitis and tension headaches. However, the July 2021 rating decision awarded service connection for the Veteran's allergic rhinitis and tension headaches and assigned noncompensable evaluations effective March 16, 2015. As this represents a full grant of the benefit sought, those issues are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Service Connection Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current 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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a 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) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(b). 1. Entitlement to service connection for hypertension, including secondary to service-connected PTSD. The Veteran is seeking service connection for hypertension. He contends that his hypertension is related to his active duty service, to include exposure to herbicide agents, and/or is proximately due to or the result of a service-connected PTSD. As to the first element of service connection, current disability, the record indicates that the Veteran has a diagnosis of hypertension. Therefore, this element is met. Turning to the second element of service connection, in-service incurrence or aggravation of a disease or injury, the Board notes that the preponderance of the evidence is against finding that the Veteran's hypertension was incurred or aggravated during service. The objective medical evidence of record fully supports that conclusion. Review of the Veteran's service treatment records revealed an absence of hypertension diagnosis during service. The Veteran's blood pressure was measured at 124/76, 116/86, 132/86, and 132/92 during his active duty service. None of his in-service measurements were indicative of hypertension. The Veteran also contends that he was exposed to herbicide agents while service at Fort Carson from 1974 to 1976. Specifically, the Veteran claims herbicide exposure due to handling equipment returning from Vietnam. However, there is no presumption of contamination for equipment used in Vietnam. The Veteran has offered no evidence other than his unsupported belief that the equipment at issue was contaminated with an herbicide agent. There is no competent evidence supporting the idea that, even if the Veteran had handled any specific equipment that had been used in the Republic of Vietnam, that such equipment would have any residual herbicide agents on them. The Veteran is not competent to make such a statement, and there is no other evidence supporting such a conclusion. Absent evidence of actual exposure to herbicide agents, service connection on a presumptive or direct basis for such exposure is not warranted. With regards to secondary service connection, the Veteran is service connected for PTSD. The Veteran was afforded a September 2015 VA examination to ask the etiological questions related to his hypertension. The March 2021 Board decision, however, found the September 2015 VA examination inadequate due to additional evidence added to the record since September 2015. As such, the Board remanded the claim in March 2021 for an addendum opinion. To the end, the July 2021 VA examination was afforded to the Veteran. The July 2021 VA examiner opined that the Veteran's hypertension to be unrelated to his active duty service. The VA examiner highlighted that most cases of hypertension have no discernible etiology. However, obesity, drinking too much alcohol, smoking, and family history were identified as common risk factors associated with hypertension. The VA examiner also pointed to the lack of evidence of chronic hypertension condition during active duty, as the Veteran presented with normal blood pressure reading during service with a reading of 132/86 at service exit. Moreover, the VA examiner found no evidence of continuity of symptomology or care related to the Veteran's hypertension, specifically within one year of service discharge. The examiner highlighted that hypertension does not typically cause symptoms at onset unless increase in blood pressure is severe, acute, and sustained. The VA examiner also opined that the Veteran's hypertension is less likely than not proximately due to or the result of the Veteran's service-connected PTSD. The VA examiner acknowledged the possibility that mental health conditions, such as PTSD, can cause acute elevations in blood pressure but noted that it is unlikely that PTSD can cause a sustained and chronic hypertension condition. The VA examiner noted that the medications prescribed to the Veteran for his PTSD typically depress blood pressure, and do not cause hypertension. The VA examiner also found no evidence of aggravation of the Veteran's hypertension by PTSD, or any medication used to treat the condition. The Veteran presented with normal readings for his blood pressure during the examination. The VA examiner that the Veteran's hypertension is controlled with medication with no signs of being aggravated beyond its natural progression by his service-connected PTSD. In this case, as to the issue of whether the Veteran's hypertension is related to his active duty service, and/or proximately due to or the result of service-connected PTSD, the Board finds that the July 2021 VA examination report is adequate and the most probative evidence of record as it was definitive, based upon a complete review of the Veteran's entire claims file, in consideration of the Veteran's reported history, prior physical evaluation of the Veteran, and pursuant to the Board's remand instructions. Furthermore, the July 2021 examiner provided a complete and thorough rationale in support of his opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Service connection is also not warranted on a presumptive basis, as there is no evidence that the Veteran's hypertension was manifest to a compensable degree within one year of his separation. The earliest evidence of objective evidence is 1983. As discussed above, the service treatment records do not support the Veteran's claim of onset of his disability during service. In fact, the Veteran was not diagnosed until after service discharge. The absence of post-service complaints, findings, diagnosis, or treatment for many years after service is one factor that tends to weigh against a finding of continuous symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (noting that the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Thus, any assertions that he may make as to onset during service with subsequent continuity of are not supported by the objective evidence of record. The Board acknowledges the statements provided by the Veteran regarding his hypertension. The Veteran is competent to report the symptoms of his hypertension, he is not competent to opine as to whether his hypertension is related to his active duty service, and/or proximately due to or the result of a service-connected PTSD. As the Veteran's statements are not competent as to the question of nexus, they are assigned no probative weight. Therefore, the issue of whether the Veteran's hypertension is related to his active duty service, and/or proximately due to or the result of a service-connected PTSD must be decided based on the competent evidence of record. Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding of an in-service event, injury or disease, or that the Veteran's hypertension is causally related to his service, proximately due to or the result of a service-connected PTSD or manifested within an applicable presumptive period. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, service connection for hypertension is denied. 2. Entitlement to service connection for chronic diarrhea (claimed as a stomach disorder), including secondary to service-connected PTSD. The Veteran is seeking service connection for a stomach disorder. He contends that his chronic diarrhea is related to his active duty service, to include exposure to herbicide agents, and/or is proximately due to or the result of a service-connected PTSD. As to the first element of service connection, current disability, the record indicates that the Veteran has a diagnosis of chronic diarrhea. See July 2021 VA examination. Therefore, this element is met. As to the second element for direct service connection, in-service incurrence or aggravation of a disease or injury, review of the Veteran's service treatment records revealed that the Veteran complained of stomach pain and diarrhea during his active service. As such, the Board finds that the second element met. As explained previously, the evidence weighs against the finding that the Veteran was exposed to an herbicide agent during active service, to include his service time stationed at Fort Carson. Accordingly, as herbicide exposure is not established, service connection may not be established for chronic diarrhea on the basis that it is linked to such exposure, presumptively or otherwise. With regards to secondary service connection, the Veteran is service connected for PTSD. Therefore, the questions for the Boards are whether the Veteran's chronic diarrhea is related to his in-service injury, and/or proximately due to or the result of a service-connected PTSD. The Veteran was afforded a September 2015 VA examination to ask the etiological questions related to his diarrhea condition. The March 2021 Board decision, however, found the September 2015 VA examination inadequate due to additional evidence added to the record since September 2015. As such, the Board remanded the claim in March 2021 for an addendum opinion. The July 2021 VA examination report found that the Veteran's chronic diarrhea disorder unrelated to his active service, and not proximately due to or the result of a service-connected PTSD. Although the Veteran was found to have a diagnosis of chronic diarrhea, the VA examiner noted that the diagnosis is only based on the Veteran's subjective reports. The VA examiner found the Veteran to be a poor historian due to conflicting medical history reported to the examiner. The VA examiner noted that the Veteran was treated for gastroenteritis, which causes diarrhea, stomach pain, nausea, and vomiting, during his active service, but opined that the condition is a self-limiting viral syndrome that resolves in a few days with no chronic sequela. As such, the VA examiner found the Veteran's in-service gastroenteritis to be unrelated to the Veteran's current diarrhea condition. The VA examiner noted that the Veteran's medications used to treat his PTSD are not known to cause diarrhea. The examiner highlighted that the Veteran reported that his episodes of diarrhea are triggered by his diet and not a psychological condition, or stress. Moreover, the VA examiner did not find any evidence of aggravation of the Veteran's chronic diarrhea condition by his PTSD. In this case, as to the issue of whether the Veteran's chronic diarrhea condition is related to his active duty service, and/or proximately due to or the result of service-connected PTSD, the Board finds that the July 2021 VA examination report is the most probative evidence of record as it was definitive, based upon a complete review of the Veteran's entire claims file, in consideration of the Veteran's reported history, prior physical evaluation of the Veteran, and pursuant to the Board's remand instructions. Furthermore, the July 2021 examiner provided a complete and thorough rationale in support of his opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the statements provided by the Veteran regarding his chronic diarrhea condition. The Veteran is competent to report the symptoms of his condition, he is not competent to opine as to whether his chronic diarrhea condition is related to his active duty service, and/or proximately due to or the result of a service-connected PTSD. As the Veteran's statements are not competent as to the question of nexus, they are assigned no probative weight. Therefore, the issue of whether the Veteran's chronic diarrhea condition is related to his active duty service, and/or proximately due to or the result of a service-connected PTSD must be decided based on the competent evidence of record. Although the Veteran has established a current disability and in-service injury, the preponderance of the evidence weighs against finding that the Veteran's chronic diarrhea condition is causally related to his service, proximately due to or the result of a service-connected cervical spine disability or manifested within an applicable presumptive period. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, service connection for a chronic diarrhea condition will therefore be denied. TDIU 3. Entitlement to a TDIU, prior to July 12, 2018. To establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). "Substantially gainful employment" is that employment "which is ordinarily followed by the non-disabled 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). As further provided by 38 C.F.R. § 4.16(a), "Marginal employment shall not be considered substantially gainful employment." The regulatory scheme allows for an award of a TDIU when, due to service-connected disabilities, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, and that if there are two or more disabilities, at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. It is also the policy of the VA, however, 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(b). Where the veteran does not to meet the applicable percentage, standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In this case, the Veteran has 4 service-connected disabilities (PTSD, left foot hallux valgus, rhinitis), which have a combined disability rating of 50 percent, prior to July 12, 2018. Such a rating does not establish eligibility for a schedular TDIU. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, consideration must nevertheless be given as to whether a TDIU is warranted on an extraschedular basis under 38 C.F.R. § 4.16(b). Thus, the question for the Board is whether the Veteran's service-connected disabilities prevent the Veteran from securing or following a substantially gainful occupation. Following a review of the evidence, the Board finds that it has not been shown that the Veteran's service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation, prior to July 12, 2018. The Veteran's VA Form 21-8940 (Veteran's Application for Increased Compensation based on Unemployability) provided that the Veteran was last employed full-time in April 2003. The Veteran identified his psychiatric disability and left foot hallux valgus as the primary sources of his inability from securing or following any substantially gainful occupation. The Veteran's highest level of education attained was two years of college. With regards to the Veteran's left foot disability, the September 2015 VA examiner found that the Veteran would be limited in prolonged jogging, running, and high impact activities. However, the VA examiner found the Veteran could perform light physical and sedentary activities. Turning to the Veteran's psychiatric disability, the May 2016 VA examiner noted that the Veteran reported retiring from Caterpillar after 30 year in 2003 due to health concerns. The Veteran also worked in a group home for adolescents for three years from 2003 to 2006. The Veteran did not endorse any occupational difficulties due to his service-connected psychiatric disability. The VA examiner found that the Veteran's psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity. Considering the above, the Board finds that the Veteran's service-connected disabilities did not render him unable to secure and maintain substantial and gainful employment, prior to July 12, 2018. Despite the Veteran's report of occupational difficulties due to his service-connected PTSD, the Board notes that the June 2015 VA examiner found the Veteran's PTSD symptoms resulted in occupational and social impairment with reduced reliability and productivity. Moreover, the Veteran did not specifically endorse any occupational limitations due to his psychiatric disability. The Veteran's left foot disability was found to limit the Veteran with intense activities, such as jogging, running, and high impact tasks, but the VA examiner opined that the Veteran would be able to perform light physical and sedentary activities. The objective medical evidence of record certainly establishes that the Veteran's service-connected disabilities would make finding employment more difficult. However, the legal standard is not simply whether the Veteran's occupational capacity is impacted by his disabilities; indeed, the entire point of the VA disability rating system is to compensate veterans for the impact that their disabilities have on their occupational outlook. Instead, the question is whether the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. That burden, quite simply, is not met for this time period. There is no evidence that the Veteran's service-connected disabilities, standing alone, would prevent the economic and non-economic factors relating to employment. In summary, for the period prior to July 2018, the Board finds that the evidence does not demonstrate that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. The weight of the evidence is against the Veteran's claim; there is no doubt to be resolved. Entitlement to a TDIU prior to July 12, 2018, is denied. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Higgins 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.