Citation Nr: 21068119 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 10-13 574 DATE: November 9, 2021 ORDER Entitlement to service connection for hypertension is denied. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU), as of December 28, 2007, is denied. FINDINGS OF FACT 1. The issue of entitlement to TDIU is moot as of December 28, 2007, and there were no service-connected disabilities prior to December 28, 2007. 2. Hypertension is not shown to be due to, etiologically related to, or aggravated by any event, disease, or injury in service. CONCLUSIONS OF LAW 1. The issue of entitlement to TDIU as of December 28, 2007, is made moot by the assignment of a 100 percent rating for chronic obstructive pulmonary disease as of December 28, 2007, and there were no service-connected disabilities prior to December 28, 2007. 38 U.S.C. §§ 7104, 7105(d)(5). 2. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1965 to December 1967, to include active service in the Republic of Vietnam. The Veteran died in April 2016. The Appellant is the Veteran's surviving spouse, who has been substituted for the deceased Veteran for the claims on appeal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2008 and April 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Petersburg, Florida. In April 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In July 2013, May 2016, August 2020, February 2021, and June 2021, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. 1. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). A claim for TDIU is considered part of an increased rating claim when the issue of unemployability is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran asserts unemployability due to service-connected disabilities during the current appeal. However, the claim of entitlement to TDIU, effective December 28, 2007, has been made moot by the award of a 100 percent schedular rating for chronic obstructive pulmonary disease (COPD), effective December 28, 2007. Bradley v. Peake, 22 Vet. App. 280 (2008). There were no service-connected disabilities prior to December 28, 2007. A 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443 (1994); Swan v. Derwinski, 1 Vet. App. 20 (1990). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. Herlehy v. Principi, 15 Vet. App. 33 (2001) (request for TDIU moot where 100 percent schedular rating was awarded for the same period). The current appeal before the Board concerning entitlement to TDIU was filed by the Veteran on February 14, 2009. As the Veteran is now in receipt of a 100 percent rating, effective December 28, 2007, based on the service-connected COPD, effective December 28, 2007, there remains no time period on appeal where the schedular rating is less than total, as required for consideration of the assignment of TDIU. 38 C.F.R. § 4.16. The Board is cognizant of the fact that the receipt of a 100 percent schedular rating for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to a TDIU because a TDIU rating may still form the basis for assignment of special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280 (2008). VA's duty to maximize a claimant's benefits includes consideration of whether disabilities establish entitlement to SMC under 38 U.S.C. § 1114. Buie v. Shinseki, 24 Vet. App. 242 (2011). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. Bradley v. Peake, 22 Vet. App. 280 (2008). That scenario is not present here, as the Veteran is assigned a 100 percent rating for COPD and prior to December 28, 2007, the Veteran's disability ratings did not meet the percentage requirements for consideration for TDIU pursuant to 38 C.F.R. § 4.16(a). The Board further notes that the Veteran is already in receipt of SMC based on housebound criteria as a result of the service- connected disabilities, effective December 28, 2007. Therefore, the issue of entitlement to a TDIU is moot as of December 28, 2007. The assignment of a 100 percent rating for service-connected COPD effective December 28, 2007, makes the issue of entitlement to TDIU moot as of that date. Accordingly, the Board finds that the issue of entitlement to TDIU is moot and the claim for TDIU as of December 28, 2007, is denied. Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). 2. Entitlement to service connection for hypertension. Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Secondary service connection may be established for a disability that is proximately due to, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked evidence that is not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran contends that currently diagnosed hypertension is due to active service. Specifically, the Veteran asserts that hypertension is related to exposure to herbicide agents. The Veteran is presumed to have been exposed to herbicide agents based on the Veteran's duty or visitation in the Republic of Vietnam. However, hypertension is not a disease for which presumptive service connection based on exposure to herbicide agents is warranted. 38 C.F.R. § 3.309(e). That finding does not preclude the Veteran from pursuing a claim for service connection to be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In a July 2021 VA opinion, after review of the Veteran's claims file, the examiner, a nurse practitioner, opined that it was less likely than not that the Veteran's hypertension began during or is etiologically related to service, to include as due to exposure to herbicide agents. The examiner explained that the exact cause of hypertension is not known. However, risk factors include age, family history, lack of physical exercise, and dietary factors. Secondary hypertension can be caused by other conditions, including but not limited to renal disease, obstructive sleep apnea, and thyroid problems. Hypertension can also be the side effect of medications. The CDC and Mayo Clinic did not report that hypertension can be caused by an exposure event such as exposure to herbicide agents. The examiner then provided links to CDC and Mayo Clinic research that reiterated her opinion. The July 2021 examiner also opined that the claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of the service-connected disabilities. The examiner explained that, in addition to the reasoning provided in the previous paragraph, a records review did not show the Veteran was being treated for COPD, PTSD, tinnitus, and left hearing loss with medications that could have a side effect of hypertension. Thus, an etiological relationship could be established on that basis. COPD is a pulmonary condition and can lead to pulmonary hypertension, but that is separate and unrelated to cardiac hypertension. Also, PTSD, tinnitus, and left hearing loss cannot cause hypertension. Therefore, it was the examiner's opinion the Veteran's hypertension less likely than not is proximately due to the service-connected chronic obstructive pulmonary disease, PTSD, tinnitus, and left hearing loss. The July 2021 examiner also stated that, regardless of an established baseline, the Veteran's hypertension was not at least as likely as not aggravated beyond its natural progression by the service-connected disabilities. The examiner explained that a nexus could not be established because the examiner was unable to identify how COPD, tinnitus, and left hearing loss could aggravate blood pressure. While blood pressure could increase in response to a stress event such as those experienced in PTSD, blood pressure returns to its baseline once the stress event is over and does not cause a long-term increase in blood pressure that is chronic. The July 2021 examiner further acknowledged that the Veteran had bladder cancer prior to his passing. However, it was less likely than not that the hypertension was caused by bladder cancer. The examiner explained that hypertension is a cardiac condition and bladder cancer is a urologic condition. They are separate and unrelated conditions. There was no medical literature that the examiner was aware of that showed hypertension can be caused by bladder cancer. Hypertension can be caused by renal disease due to the renin angiotensin system in the kidney that regulates blood pressure and fluid and electrolyte balance. However, renal disease is separate as it affects the kidneys which is separate from the bladder. For similar reasons, the examiner stated that it was also less likely than not that the Veteran's hypertension was aggravated by bladder cancer. There are no other etiology opinions of record. In support of the claim, in addition to several written statements, the Veteran also provided testimony before the undersigned Veterans Law Judge during an April 2011 Board hearing. At that hearing, the Veteran discussed what he believed to be the cause of hypertension and the effect it had on his life. The only evidence that provides a link between the Veteran's service and diagnosed hypertension comes from the Veteran himself. The Board acknowledges the Veteran's assertions that current hypertension is the result of service. However, there is no competent medical opinion to establish a nexus between hypertension and active service. The Board finds that the Veteran, as a lay person without the appropriate medical training and expertise in diagnosing and treating cardiovascular disabilities, is not competent to provide a probative opinion as to whether a cardiovascular disability was either caused or aggravated beyond the natural progression by any incident of active service, or by any service-connected disability. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Veteran has not been shown to possess the adequate medical knowledge, education, or training, to competently opine to the diagnosis or etiology of any cardiovascular disability. While the Veteran may state that he experienced headaches or dizziness, he is not competent to provide a diagnosis of a specific disability, or to the etiology of any disability as those issues fall outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). That determination must be provided by a medical professional with the proper training, education and experience, in the appropriate fields. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). It is to be noted that the Board is not free to substitute its own judgment for a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board finds the July 2021 VA examiner's opinion to be competent, credible, and persuasive. The July 2021 VA examiner opined that it was less likely than not that the Veteran's claimed hypertension disability was related to or aggravated by an incident of service or a service- connected disability. The Board finds the July 2021 VA opinion to be more probative than the lay statements of record. The opinion of the July 2021 VA examiner is highly probative because it is supported by detailed rationale and provided by a trained medical professional. The VA examiner specifically identified and discussed the Veteran's contentions and theory concerning service and the claimed disability. Accordingly, the July 2021 VA examiner's opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion reached. As is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). To the extent that the Veteran's lay statements could be found to be competent and credible, the Board finds that they are outweighed by the July 2021 VA examination opinion because of the examiner's medical training. The Veteran nor Appellant has not submitted any competent medical evidence which supports a finding that the Veteran's hypertension began during, was related to, or was aggravated by active-duty service or a service- connected disability. Accordingly, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim and against a finding that a hypertension disability was incurred in, related to, or aggravated by the Veteran's honorable active service or service-connected disabilities. The Board is sympathetic to the Veteran in that it was clear that the Veteran sincerely believed that his hypertension originated during service. However, the most persuasive evidence of record does not support that contention. The Board is appreciative of the Veteran's faithful and honorable service to our country. However, as the preponderance of the evidence is against the claim of entitlement to service connection for hypertension, the claim must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.