Citation Nr: 21067945 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 18-47 108 DATE: November 8, 2021 ORDER Entitlement to service connection for residuals of a stroke, claimed as secondary to service-connected posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for fatigue is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, effective December 27, 2019, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran's stroke residuals are not secondary to service-connected PTSD, and are not otherwise related to an in-service injury or disease. 2. The preponderance of the probative evidence shows that the Veteran's symptom of fatigue has been related to other service-connected and non-service-connected disabilities. 3. The Veteran meets the schedular criteria for a TDIU throughout the rating period on appeal, as he has a combined 60 percent rating for disabilities resulting from a common etiology. 4. During the appeal period prior to December 27, 2019, the probative evidence shows that the Veteran's service-connected disabilities alone did not prevent him from securing or following substantially gainful employment. 5. During the appeal period from December 27, 2019, according to the probative evidence of record, it is as likely as not that the Veteran's service-connected disabilities prevented him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a stroke due to service or service-connected disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for fatigue are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. Resolving reasonable doubt in the Veteran's favor, the criteria are met for a TDIU during the appeal period from December 27, 2019, and no earlier. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1966 to September 1968, including service in Vietnam. This case comes to the Board of Veterans' Appeals (Board) on appeal from decisions of the Agency of Original Jurisdiction (AOJ). In July 2019 and July 2021, the Board remanded this case to the AOJ for additional development. The case was subsequently returned to the Board. A review of the record shows substantial compliance with the prior Board remands. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The AOJ contacted the Social Security Administration (SSA) in an attempt to obtain medical records pertaining to the Veteran, and in December 2019, the SSA indicated that it has no medical records. Supplemental VA medical opinions were obtained with regard to the claim of service connection for residuals of a stroke, and updated VA medical records have been obtained. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three elements required to establish service connection are: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic diseases, including brain hemorrhage, brain thrombosis, and other organic diseases of the nervous system will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 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. 1. Service connection for residuals of a stroke, claimed as secondary to PTSD The Veteran contends that his April 2012 stroke was caused by service-connected PTSD. See his November 2012 Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940), and December 2012 statement. He does not contend, and the evidence does not reflect, that his stroke is due to or aggravated by service-connected bilateral hearing loss or tinnitus. The question for the Board is whether the Veteran has a current disability that is related to service, or is proximately due to or the result of, or was aggravated beyond its natural progress by service-connected disability. The record reflects that in late April 2012, the Veteran underwent an acute subcortical left hemisphere stroke (cerebrovascular accident (CVA)) in the middle cerebral artery (MCA) distribution. See May 14, 2012 VA discharge summary. He was hospitalized at a VA facility from late April 2012 to May 3, 2012, and then transferred to another VA facility where he was admitted for another week. He has a current disability of residuals of a CVA (stroke), including right hemiparesis and aphasia. See February 2021 VA examination and August 2021 VA medical opinion. The Veteran's service personnel records reflect that he served in the Republic of Vietnam during the Vietnam era, and is presumed to have been exposed to an herbicide agent (to include Agent Orange). 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Certain specified diseases are presumptively service connected based on herbicide exposure, including ischemic heart disease. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309 (e). For purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309 (e), Note 2. Stroke is not a disability to which the herbicide presumptions apply. See 38 U.S.C. § 1116 (a); 38 C.F.R. § 3.309 (e). In other words, a stroke is not a disability recognized by VA as being due to herbicide exposure, and therefore it is not subject to presumptive service connection on the basis of herbicide exposure. Id. The Veteran does not contend, and the evidence does not reflect, that his stroke was incurred in service or manifested to a compensable degree in the year following discharge from service. Service treatment records are negative for a stroke. An August 2004 VA outpatient treatment record reflects that the Veteran reported that he smoked one pack of cigarettes per day and had a 40-pack/year history. On examination, his blood pressure was 161/88. In October 2004, he reported that he smoked one pack of cigarettes per day since age 12. The diagnostic assessment included tobacco abuse, and history of alcohol abuse. A May 3, 2012 VA discharge summary reflects that the Veteran was admitted with a history of hypertension and tobacco abuse, and presented to the emergency department with a complaint of right-sided weakness involving the arm and leg and slurred speech. The Veteran reported that the symptoms initially began in late April, but he did not go to a hospital until the next day. He was treated and discharged to home, but continued to have gradually worsening deficits, including weakness of the right upper and lower extremities, difficulty with ambulation, and dysarthria, and presented to the VA facility. The discharge diagnoses were left internal carotid (LIC) ischemic infarct, hypertension, and high-lipid disorder. The discharge diagnosis on May 14, 2012 was acute subcortical left hemisphere stroke in the MCA distribution, and his active problems included CVA, tobacco use disorder, and alcohol dependence. An August 2012 VA neurology note reflects that the Veteran was seen for follow up after hospital discharge for a LIC ischemic stroke. The physician noted that he was improving from a neurologic standpoint, but refused to take his Aggrenox. His vascular risk factors were reviewed with him, particularly his tobacco abuse, but he refused to quit smoking, and also adamantly stated that he did not have hypertension or high-lipid disorder. Subsequent VA outpatient treatment records reflect diagnoses of hypertension and late effects of cerebrovascular disease. The Board concludes that, while the Veteran has a current disability of stroke residuals, the preponderance of the evidence is against finding that the Veteran's stroke is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310. The August 2018, February 2021, and August 2021 VA examiners collectively opined that the Veteran's residuals of a stroke are instead more likely proximately due to his nonservice-connected lengthy history of heavy tobacco use, alcohol use, and hypertension. The rationale of the August 2018 VA examiner was that it was not clear whether the Veteran's hypertension was diagnosed prior to or subsequent to his stroke event, but it is clear that he smoked heavily prior to his stroke and that he was a heavy user of alcohol since age 12. The examiner indicated that heavy alcohol use increases the risk of stroke, as does smoking cigarettes, and opined that it is at least as likely as not that the Veteran's alcohol and tobacco use were the main proximate causes for the stroke that occurred in 2012. The August 2021 VA examiner indicated that it is unclear what parameters the Veteran feels his stroke has been aggravated by PTSD and related psychological comorbidities, and stated that once an individual has had a dry or occlusive stroke and recovered, it is considered "cured," or the new baseline has been established, though the adaptive course may be protracted, taking months. The Veteran has problems with right hemiparesis and aphasia, as shown on VA examination, and there is no evidence of aggravation beyond the natural course, and there would not be due to PTSD and related psychological comorbidities. The examiner opined that there are no anatomic or physiologic connections by which psychological conditions can cause or aggravate cerebrovascular disease, and therefore, it is less likely than not that the Veteran's CVA was due to his PTSD. It is less likely than not that it has been aggravated beyond its natural course due to any cause (essentially unequivocal), including his PTSD. The examiner opined that the Veteran's stroke was more likely than not due to hypertension, tobacco use, dietary factors, and family history, and that psychological conditions do not play a role in the etiology or aggravation of stroke. He concluded that there is no plausible mechanism. The Veteran believes his stroke and stroke residuals are proximately due to or the result of his service-connected PTSD. He is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, anatomical relationships, pathology, and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the August 2018, February 2021, and August 2021 VA medical opinions. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Service connection for fatigue The Veteran contends that he has fatigue related to service, but has not asserted any specific argument. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a disability manifested by fatigue and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The evidence of record, including VA medical records and the Veteran's own statements, shows that he has current disabilities which impair his sleep and result in fatigue, to include service-connected PTSD and tinnitus, and non-service-connected residuals of a stroke, and that chronic sleep impairment is a symptom of service-connected PTSD. See reports of VA PTSD examinations in August 2012, November 2013, and December 2019, the Veteran's June 2012 statement in which he said that almost every night he has nightmares of Vietnam combat, and that severe tinnitus sometimes keeps him from falling asleep and/or wakes him from sleep. A June 2012 VA mental health note includes a depression screen showing that the Veteran reported that nearly every day he had trouble falling or staying asleep, or sleeping too much, and felt tired or had little energy. A sleep inventory showed moderately severe sleep impairment. Subsequent VA outpatient treatment records reflect that his active problems included sleep disturbances and dyssomnia, but also show that he denied fatigue on several occasions. The Board previously denied entitlement to service connection for a sleep disorder in a July 2021 decision. At the May 2016 VA PTSD examination, the Veteran reported that since his stroke, he only slept for a couple of hours, and sometimes got up and stayed up for a couple of hours. In June 2018, the Veteran described his symptoms of PTSD and said that he could not sleep much and kept seeing the faces of soldiers killed in Vietnam. Governing regulation provides that the evaluation of the same manifestation under different diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The current disability rating for service-connected PTSD has been assigned in part based on chronic sleep impairment. See December 2013 rating decision. As the Veteran does not have a disability manifested by fatigue that has not already been attributed to other service-connected and non-service-connected conditions, the Board finds that service connection is not warranted. While the Veteran believes he has a current diagnosis of fatigue, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). TDIU 3. Entitlement to a TDIU The Veteran seeks a TDIU. He contends that his service-connected PTSD, bilateral hearing loss, and tinnitus render him unemployable. See November 2012 Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940), his December 2012 statement, and February 2013 notice of disagreement. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes 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, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. Consideration may be given to the veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran's service personnel records show that he had combat service in Vietnam as a helicopter door gunner. He has the following service-connected disabilities: PTSD (rated 50 percent disabling), tinnitus (rated 10 percent disabling), and bilateral hearing loss (rated noncompensable from June 18, 2012 to April 22, 2016, and 20 percent disabling from April 22, 2016. Throughout the rating period on appeal, his combined service-connected disability rating is 60 percent. Given that the service-connected PTSD, hearing loss and tinnitus result from a combat etiology and combine to a 60 percent disability rating, the threshold schedular criteria set forth in 38 C.F.R. § 4.16 (a)(2) for consideration of TDIU have been met. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is warranted from December 27, 2019, and no earlier. Entitlement to a TDIU is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether a veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019). The record reflects that the Veteran has a seventh-grade education and has primarily worked as an over-the-road truck owner and driver for many years until his stroke in April 2012. See August 2012 VA PTSD examination, November 2012 VA Form 21-8940. At the August 2012 VA examination, the Veteran reported that prior to service, he worked for six months for Harrison Steel, and then worked for various farms. During service, he was a helicopter door gunner in Vietnam. After service, he worked for one and one-half years for General Motors before being laid off. He subsequently worked as an over-the-road truck driver all his life until he experienced a stroke four months earlier. In the November 2012 VA Form 21-8940, the Veteran reported that he was a self-employed owner-operator of a truck from January 2010 until he became too disabled to work on April 2012. He said that during 2010, he worked 70 hours per week. He stated that he had a stroke in April 2012 which he asserted was caused by PTSD, and that he was no longer able to drive a truck. He reported that he completed seventh grade, and had no other education or training. He contended that service-connected PTSD, hearing loss, and tinnitus prevented him from securing or following a substantially gainful occupation. At a December 2019 VA examination, the Veteran reported that he primarily worked as a truck driver and also worked as a farmer. He stated that he had to stop driving once he had the stroke because they would not let him drive. He then did jobs around people's homes. The evidence reflects that the Veteran has several non-service-connected disabilities which negatively impact his ability to work, including residuals of a CVA, chronic obstructive pulmonary disease (COPD), and rheumatoid arthritis. At a November 2013 VA PTSD examination, the Veteran reported that he had not worked since his CVA. The February 2021 VA examiner indicated that the Veteran's residuals of stroke/CVA including hemiparesis and aphasia impacted his ability to work, causing limitations with gait, walking, standing, holding, lifting, and gripping objects, and limitations with expressing himself. A September 2020 VA rheumatology consult reflects that the Veteran had pain and swelling in his hands, wrists, and elbows, for which he took hydrocodone. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his service-connected bilateral hearing loss and tinnitus, specifically difficulty hearing conversation, especially in a noisy environment. See VA examinations and medical opinions in August 2012, December 2012, November 2013, and May 2016. The December 2012 examiner opined that the Veteran's hearing loss and tinnitus did not render him unemployable. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of his service-connected PTSD. The August 2012 and November 2013 VA examiners both opined that the Veteran's PTSD produces occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner opined that the Veteran had mild to moderate PTSD symptoms. He was able to function successfully as a truck driver for many years based on self-report prior to experiencing a stroke four months earlier. However, he had very limited contact with people in this role, and did experience significant social problems over the years including legal difficulties, a divorce, and lack of many friendships. In a December 2012 addendum, the examiner opined that the Veteran was not unemployable due to PTSD; he successfully worked as over-the-road truck driver until his stroke in April 2012, and based on his reported history, the stroke caused him to stop working. At the May 2016 VA examination, the Veteran reported that he had been medically retired since his stroke in 2012, and prior to retirement, he drove a truck for most of his life. He described numerous disciplinary problems and having been terminated secondary to "disagreements and getting along with people." The examiner indicated that his PTSD symptoms included depressed mood, anxiety, suspiciousness, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner opined that the severity of his PTSD symptoms appeared mild, and there was reportedly no change in functioning since the last VA examination. The examiner stated that his symptoms likely wax and wane depending upon psychosocial stressors. Although the Veteran's statements suggest that he stopped working primarily due to his service-connected disabilities, the Board finds that his assertions are not consistent with the evidence of record, including his statements made to treatment providers and examiners. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (finding that in weighing credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). The Board finds that prior to December 27, 2019, the preponderance of the probative evidence does not show that the Veteran's service-connected disabilities alone rendered him unable to secure or follow a substantially gainful occupation, and that his non-service-connected disabilities produced the majority of his occupational impairment, particularly his non-service-connected residuals of a CVA. During this period, his PTSD symptoms were described as mild, or at most, moderate, and his hearing loss primarily affected his ability to hear conversation, which examiners found would not prevent him from working. Given the foregoing, during this period, the Veteran's service-connected disabilities did not preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. The evidence shows that he has completed seventh grade, and had extensive work experience as an over-the-road truck driver, farmer, and handyman. The medical opinions regarding the functional effects of the Veteran's service-connected disabilities are highly probative, and weigh against the claim during this period. The Board concludes that the findings during treatment and examination to be more probative than the lay statements by the Veteran regarding the effect of his service-connected disabilities on his occupational functioning. The December 27, 2019 examiner opined that the Veteran's PTSD produces occupational and social impairment with reduced reliability and productivity, and that his PTSD symptoms impact his ability to relate to others and react well to supervision. His PTSD symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and impairment of short and long-term memory. The examiner stated that historically, his mental health issues (including anger outbursts and irritability) have led to fights and legal difficulties due to his aggression. Occupationally, prior to his stroke, he worked in jobs that were more solitary. The examiner opined that the Veteran's chronic sleep difficulties would impact his ability to concentrate and follow through with tasks, and his memory difficulties would impact his ability to recall instructions and follow through with tasks. The January 2020 VA audiology examiner opined that the degree of the Veteran's hearing loss makes it very difficult for him to hear environmental sounds and conversation around him which could pose safety problems. (Continued on the next page) Given the foregoing, and resolving reasonable doubt in his favor, the Board finds that from December 27, 2019, the Veteran's service-connected disabilities of PTSD, bilateral hearing loss, and tinnitus, especially in combination, preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. Accordingly, a TDIU is warranted from December 27, 2019, and no earlier. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. L. Wasser, 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.