Citation Nr: 21066506 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 18-07 871 DATE: November 1, 2021 ORDER The appeal for entitlement to service connection for hypertension (now claimed as hypertensive cardiovascular disease) is reopened; to this extent only the appeal is granted. A total disability rating for individual unemployability due to service-connected disabilities (TDIU) is granted effective on September 22, 2017, subject to the laws and regulations governing the award of monetary benefits. REMANDED The appeal for entitlement to service connection for hypertension is remanded. The appeal for entitlement to service connection for lumbar spine degenerative disc disease with pain and chronic myositis is remanded. The appeal for entitlement to service connection for benign prostatic hyperplasia is remanded. The appeal for entitlement to service connection for cervical spine degenerative disc disease with pain is remanded. The appeal for entitlement to service connection for a disability of the left shoulder is remanded. The appeal for entitlement to service connection for right shoulder degenerative joint disease with rotator cuff tear is remanded. The appeal for entitlement to service connection for left knee degenerative joint disease is remanded. The appeal for entitlement to service connection for right knee degenerative joint disease, status post total right knee replacement, is remanded. The appeal for entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The AOJ has never considered whether hypertension may be related to herbicide exposure in Vietnam. 2. As of September 22, 2017, the Veteran was rendered unemployable due solely to service-connected disabilities. CONCLUSIONS OF LAW 1. New regulatory and administrative developments require reopening the previously denied claim for entitlement to service connection for hypertension. 38 U.S.C. §§ 7104(b), 7105(c). 2. According the Veteran every benefit of the doubt, the criteria for entitlement to individual unemployability have been met as of September 22, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to July 1969, to include service in Vietnam, for which he was awarded the Combat Infantry Badge and the Vietnam Campaign Medal. This matter comes before the Board of Veterans' Appeals (Board) from a December 2017 Agency of Original Jurisdiction (AOJ) decision. It was remanded by the Board in September 2018 and again in June 2021 for further evidentiary and procedural development and has now been returned for further appellate review. 1. Hypertension Service connection for hypertension was denied in an October 2013 AOJ decision on the basis that hypertension was not shown during service or within one year of service. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). However, where there is an intervening change in law or regulation that creates a new basis of entitlement to the benefit, the claim may be reviewed on a de novo basis. Spencer v. Brown, 4 Vet. App. 283 (1993). Regulations pertaining to herbicide exposure provide that if a Veteran served on active duty in Vietnam during the Vietnam era, the Veteran is presumed to have been exposed to Agent Orange or similar herbicides. 38 C.F.R. § 3.307. These regulations also stipulate the diseases for which service connection may be presumed due to an association with exposure to herbicide agents. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Evidence which may be considered in rebuttal of service incurrence of a disease listed in Section 3.309 will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. 38 C.F.R. § 3.307(d). Although hypertension has not been added to the regulatory list of diseases which are presumed to have been caused by herbicide exposure, the National Academy of Sciences (NAS) has recently upgraded hypertension to the "sufficient" category from "limited or suggestive," indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. This NAS upgrade is a significant change to VA's underlying understanding of hypertension in the context of herbicide exposure. In light of this change, and because the AOJ has never considered entitlement to service connection for hypertension on the basis of herbicide exposure in Vietnam, the Board will reopen the claim and remand for further evidentiary development and de novo consideration. 2. TDIU Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. Alternatively, a total disability rating for compensation based on unemployability may be assigned to a Veteran who is unable to secure and follow a substantially gainful occupation by reason of his/her service-connected disabilities. The Veteran's employment history, educational and vocational attainment as well as his particular physical disabilities are to be considered in making a determination on unemployability. 38 C.F.R. §§ 3.340, 3.341, 4.16. In determining whether the Veteran is entitled to a total disability rating based upon individual unemployability, neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. 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. Van Hoose, ibid. Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran is currently service connected for post-traumatic stress disorder (PTSD), rated as 70 percent disabling effective in July 2020, but 30 percent from September 2017 through July 2020; residuals of a fracture to his right wrist, rated as 50 percent disabling; tinnitus, rated as 10 percent disabling; and hypothyroidism, rated as 10 percent disabling. His current combined disability rating, effective since July 2020 is 90 percent. The combined disability rating was 60 percent from October 2011, and 70 percent from September 2017, however. He asserts he is unable to work due to these disabilities. VA educational records show that after service the Veteran worked as an electrician. He also utilized his VA educational benefits to pursue a bachelor's degree in science. It is unclear whether he completed the degree, however. The Veteran worked for the US postal service as a letter carrier for thirteen years, from 1993 to 2006, when he took a disability retirement related to his knee impairments, which precluded the extensive walking necessary to the job. Upon careful review, the Board concludes that with the application of reasonable doubt, the Veteran's service-connected disabilities precluded gainful employment as of September 22, 2017, when the Veteran's combined disability rating reached the 70 percent level and the date he submitted the claim on appeal, thus meeting the schedular criteria for a TDIU as set forth in 38 C.F.R. § 4.16. Essentially, the combination of mental impairment from PTSD and physical impairment related to his right wrist ankylosis is sufficient to support unemployability due to service-connected disabilities. As noted above, the TDIU claim stems from an application for increased and service-connected benefits on September 22, 2017. As such, this represents a full grant of benefits on appeal. In sum, the evidence currently supports a grant of TDIU effective September 22, 2017. The benefit sought is granted. REASONS FOR REMAND IF the Veteran is wholly satisfied with the grant of a TDIU reached above, he is informed that he may withdraw his remaining appeal issues, wholly or in part, by submitted a statement to that effect bearing his signature. If he desires to continue with all of the remaining appeal issues, however, no action on his part is required. The VA will perform the evidentiary development requested below in due course. The Veteran contends that the remaining disabilities on appeal were incurred "coincidental to my Active Tour of Duty in Vietnam," when he was scarred physically and mentally. Review of the Veteran's service treatment records reveal normal findings involving his blood pressure, spine and musculoskeletal system (other than the right wrist, which is not at issue here), and his genitourinary system. No injuries to any of these areas are recorded during service and all were deemed normal upon separation from service. Similarly, the report of a September 1969 VA examination reflects normal findings with no complaints in these areas. The report of a March 1972 VA orthopedic examination shows normal motion in the right shoulder and elbow. Hypertension Regulations pertaining to herbicide exposure, provide that if a Veteran served on active duty in Vietnam during the Vietnam era, that Veteran is presumed to have been exposed to Agent Orange or similar herbicides. 38 C.F.R. § 3.307. Thus, it is presumed under law that the Veteran was exposed to herbicides in Vietnam. Therefore, upon remand, the Veteran's claims file should be provided to a VA clinician with expertise in hypertension and herbicide exposure for review and an informed medical opinion as to whether it is more, less, or equally likely that the Veteran's hypertension is related to herbicide exposure. Degenerative disc disease, lumbar and cervical spine, both knees, both shoulders, benign prostate hyperplasia, and bilateral hearing loss As the current evidence of record tends to indicate that these disabilities were not incurred during service or within one year of service, but were initially manifested many years after service, to prevail upon these claims, the Veteran must show another relationship to service. Currently the evidence of record contains negative nexus opinions from multiple medical experts who have examined the Veteran and reviewed his medical records. The Veteran has also submitted one medical opinion linking all of his current disabilities to his military service. This opinion is lacking in rationale and specifics, however. With regard to the claim for service connection for bilateral shoulder impairment, the Veteran contends that his shoulder disabilities are proximately caused by his right wrist impairment. He asserts that he has compensated in his upper body movements for his wrist impairment through altered mechanics, such as by abnormally torquing his shoulders over the years, and that service connection on a secondary basis is warranted. The existing VA medical opinions pertaining to his shoulders do not adequately address this contention. Therefore, another VA examination and nexus opinion is required. The Veteran has been eligible for VA medical care for many years, as he received VA educational benefits after service, and because service connection for his right wrist impairment was granted effective upon his discharge from service. His claims file contains reference to VA treatment for a disability not at issue here in 1979 and does not contain any records reflecting his initial establishment of VA medical care. No VA treatment records pertaining to the disabilities on appeal here are available for review prior to 2002, however. All VA medical records are deemed to be constructively of record in VA claims proceedings. Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, as there is reason to believe that there may be earlier medical records extant, upon remand, they must be obtained. Given the gap in time between the Veteran's discharge from service and the earliest post-service treatment records available for review, from 2002 through 2020, VA treatment records more proximate in time to service may prove highly relevant to the Veteran's appeals. As the case is being remanded, the Veteran's recent VA treatment records should be updated for the claims file, as well. Additionally, we observe that the Veteran was previously given the opportunity to release private medical treatment records to the VA for review by adjudicators. Given the gap in the available medical evidence, private treatment records reflecting the Veteran's physical condition proximate to service are likely to be helpful to understanding his claims. As the appeal is being remanded, he should be given another opportunity to identify his private medical care after service so that VA assist him in obtaining these records for review. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all private medical treatment between his discharge from service in 1969 and 2002. 2. Obtain the Veteran's complete VA treatment records for the period from 1969 to 2002. Please note that during this time frame, the Veteran resided in Puerto Rico and New Jersey, so the records should be requested from VA medical facilities, including VA medical centers and all related clinics, in both places. All records which have been archived should be retrieved from storage for inclusion in his claims file. Additionally, VA treatment records generated subsequent to July 2021 should be updated for the file. 3. After obtaining the records requested above, an informed VA medical opinion regarding other theories of entitlement regarding the Veteran's hypertension should be obtained. The reviewer is requested to provide an opinion as to whether it is more, less, or equally likely that the Veteran's hypertension is causally related to his herbicide agent exposure in Vietnam. The examiner is requested to review any relevant studies regarding a potential relationship between hypertension and an herbicide agent including those issued by the National Academy of Sciences. The complete rationale for all opinions expressed should be fully explained. If the reviewer deems that additional tests and studies and/or a clinical examination of the Veteran would be helpful, then such tests/studies/examination should be arranged. 4. After obtaining the records requested above, schedule the Veteran for a VA examination for bilateral shoulder disabilities. The examiner must review the claims file. All tests and studies deemed helpful by the examiner should be accomplished in conjunction with the examination. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following to include a complete rationale and explanations for all conclusions reached: Is the Veteran's bilateral shoulder impairment at least as likely as not proximately due to his service-connected right wrist disability? Is his bilateral shoulder impairment at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected right wrist disability? (continued on the next page) 5. After the development requested above has been completed to the extent possible, the AOJ should again review the record, performing any additional evidentiary development which may become necessary. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Harter, Heather J. 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.