Citation Nr: 21069148 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 15-02 097 DATE: November 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. Entitlement to an initial compensable disability rating for bilateral hearing loss, having been rendered moot, is dismissed. Entitlement to a disability rating in excess of 60 percent for ischemic heart disease/coronary artery disease, status post coronary artery bypass graft (IHD), having been rendered moot, is dismissed. Entitlement to service connection for hypertensive vascular disease (hypertension) is granted. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, he is unable to secure and maintain substantially gainful employment due to service-connected disabilities. 2. In a July 2018 letter, the Veteran, through his authorized representative, indicated that the grant of a TDIU would fully satisfy the appeal as to the claims of entitlement to increased ratings for his service-connected disabilities of bilateral hearing loss and IHD. 3. The Veteran was exposed to herbicides in service. 4. The Veteran has a current diagnosis of hypertension. 5. Epidemiologic evidence concludes that there is "sufficient" evidence of an association between hypertension and herbicide exposure. 6. The evidence is at least in equipoise as to whether the Veteran's currently diagnosed hypertension is related to his presumed exposure to herbicide agents during service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to TDIU benefits have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 2. The claim for a higher initial disability rating for bilateral hearing loss has been rendered moot by the grant of a TDIU. 38 U.S.C. §§ 7104(a), 7105. 3. The claim for a higher disability rating for IHD has been rendered moot by the grant of a TDIU. 38 U.S.C. §§ 7104(a), 7105. 4. The criteria for establishing entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Veteran had honorable active duty service with the United States Army from September 1966 to July 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from September 2012 and May 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2020, the Board, in pertinent part, remanded the issues on appeal for further development. The issues have returned to the Board. TDIU CLAIM Entitlement to a TDIU is granted. The Veteran contends that he is unable to work due to the symptomatology associated with his service-connected disabilities. The Veteran filed his claim of entitlement to a TDIU on June 27, 2012. After a thorough review of the evidence, the Board concludes that the Veteran's service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 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." See Hatlestead v. Brown, 5 Vet. App. 524, 529 (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 age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment must be reviewed in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Moore v. Derwinski, 1 Vet. App. 356 (1991), Timmerman v. Weinberger, 510 F.2d 439 (8th Cir. 1975). Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is service connected for the following disabilities: diffuse large B cell lymphoma (rated 100 percent from August 20, 2020); IHD (rated 60 percent from August 31, 2010); posttraumatic stress disorder (PTSD) (rated 30 percent from October 4, 2013, and increased to 50 percent, effective August 10, 2016); diabetes mellitus, type II (rated 40 percent from May 23, 2011); coronary artery bypass graft scar, anterior chest (rated 10 percent from June 26, 2012); tinnitus (rated 10 percent from October 4, 2013); coronary artery bypass graft scar, left leg (rated 0 percent from August 31, 2010); and, bilateral hearing loss (rated 0 percent from October 4, 2013). As such, entitlement to a TDIU is rendered moot beginning August 20, 2020. However, the Veteran remains eligible to seek an award of TDIU for the time period from the date of his claim, June 27, 2012, to August 20, 2020, the date the Veteran is in receipt of a 100 percent combined rating. The Veteran submitted a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, in July 2012 and November 2013. In both submissions, he reported that he last worked full-time in 2009. He identified his sole prior employment as an instrument technician for Alpharma. The Veteran reported that he had completed two years of college. He had no further education or training. In August 2012 and November 2013, VA received employment information from Alpharma, the Veteran's sole former employer. This employer indicated that the Veteran worked from September 1964 to March 2009 in the maintenance department; specifically, instrumentation and electrical. The employer noted that the Veteran missed work from November 11, 2008, to February 16, 2009, due to disability. The evidence of record shows that the Veteran underwent bypass surgery in November 2008. Furthermore, as previously indicated, he is service connected for IHD. Based on the above, the Veteran has met the schedular criteria for a TDIU throughout the entire appeal period; as such, entitlement turns on the determination as to whether the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(a). In January 2012, the Veteran underwent a VA examination for his service-connected IHD. The Veteran reported that, after his bypass surgery, he returned to work; however, upon his return, he had a syncopal episode and was unable to do any further significant exertional work after that. In a March 2013 statement, the Veteran indicated that he retired from his job because, on the first day back to work after his bypass surgery, he stood up and "passed out hitting the floor." Since he was turning 65 years of age the following month in March, his employer allowed him to work in the shop for the next month and retire. His employer would not allow him to go out due to the risk of the Veteran getting hurt as a result of his disability. In a January 2016 private vocational evaluation, the rehabilitation specialist noted that the Veteran "can do light inside tasks as long as he can pace himself." It further notes that his hobby used to be woodworking, but at that time, he was not physically able to engage in that activity. The Veteran reported that his service-connected IHD affected him in the following ways: He is fatigued. He is short of breath. He is dizzy when he changes from a sitting to a standing position. He has chronic fatigue. He has shortness of breath with minimal activity. He is focused throughout the majority of the day on his cardiac condition how to prevent any additional compromise. His ability to lift and carry, stand, walk, and climb is restricted. As for his service-connected diabetes mellitus, the Veteran reported that he is required to take five shots of insulin per day. If he has a dip in his blood glucose levels, he becomes "shaky and nervous" and must lie down for an hour-and-a-half to two hours, which happened approximately two times per week. The rehabilitation specialist noted that in his sole prior employment as an instrument technician, the Veteran was responsible for maintaining different instruments in the plant, as well as maintenance on gear case motors, etc. After his bypass surgery in 2008, he returned to work for a brief period of time. He passed out at work and was assigned a desk position until he retired. As the evidence discussed above shows, the Veteran retired the month after he passed out at work. The rehabilitation specialist concluded, "In consideration of the vocational limitations solely associated with his service-connected medical conditions, the vocational conclusion is that the Veteran is not able to engage in any type of substantial, gainful occupation. In reaching this conclusion, consideration was given to exertional as well as non-exertional abilities/limitations." In an April 2016 letter, the Veteran's private cardiologist opined that, as a result of the Veteran's history of coronary artery disease and its lingering effects of chest pressure and shortness of breath, he is unable to find gainful employment. The Board is aware that the crucial question is not whether the Veteran is actually unemployed but whether he is capable of performing the physical and mental acts required by employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In addition, as previously indicated, the Board may consider the Veteran's educational and work history when determining employability. 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole position that the Veteran has held since service required him to engage in physical activity/labor. The record reveals that the Veteran has consistent shortness of breath, dizziness, fatigue, and dips in his blood glucose levels as a result of his service-connected disabilities of IHD and diabetes mellitus, affecting his ability to work. As previously indicated, the Veteran's VA Form 21-8940 shows that his sole prior employment was as an instrument technician for Alpharma. Thus, his previous employment experience required constant physical movement, as he had to stand or move around a lot while working. The record does not reflect that he ever held a sedentary position in the 52 years since service, nor does it reflect that he has training and/or education to engage in these types of positions. The Board notes that the Veteran worked a desk job for a mere month prior to his retirement; however, as noted in his March 2013 statement, the employer allowed the Veteran to work inside the shop for a brief month following the incident where he passed out since the Veteran was only a month away from retirement age. Based on consideration of the cumulative record, the Board concludes that the Veteran is unable to obtain or maintain substantially gainful employment consistent with his educational level and prior work experience. As previously mentioned, the evidence of record does not support a finding that the Veteran has the skills or training to pursue wholly sedentary employment opportunities. The Veteran has a limited education. His work history since separation from service has consisted of physical labor, as his sole prior employment has been as an instrument technician. The above-discussed evidence shows that the Veteran is limited from such physically demanding work due to his service-connected disabilities of IHD and diabetes mellitus. Resolving all reasonable doubt in the Veteran's favor, the Board finds that his service-connected IHD and diabetes mellitus would be reasonably likely to preclude substantially gainful employment. Entitlement to a TDIU is warranted from June 27, 2012, the date of his claim. INCREASED RATING CLAIMS 1. Entitlement to an initial compensable disability rating for bilateral hearing loss, having been rendered moot, is dismissed. See Argument Below 2. Entitlement to a disability rating in excess of 60 percent for IHD, having been rendered moot, is dismissed. The Veteran contends that a grant of entitlement to a TDIU would satisfy his appeal as to the increased claims on appeal before the Board. See July 2018 letter. As entitlement to a TDIU is granted, the Board finds that this represents a complete grant of the benefits sought on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Under 38 U.S.C. § 7105(d)(5), the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. As the Veteran clearly expressed that entitlement to a TDIU satisfies his appeal as to his claims of entitlement to increased ratings for his service-connected bilateral hearing loss and IHD, the Veteran's appeal as to these issues are rendered moot, and there is no case or controversy to be resolved. Therefore, the appeal as to these issues are dismissed. SERVICE CONNECTION CLAIM Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Governing law provides that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance, and enrollment into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service, and (2) was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Only such conditions as are recorded in examination reports are to be considered as noted. The presumption of soundness only applies where there has been an entrance examination prior to the period of service on which the claim is based. 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238 (1994) (holding that the presumption of sound condition attaches only where there has been an induction examination in which the later-complained-of disability was not detected). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Also, service connection may be presumed for certain diseases if a veteran was exposed to an herbicide agent, including Agent Orange, during service, and the disease manifested to a degree of ten percent or more any time after service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). With respect to service connection based on herbicide exposure, VA laws and regulation provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam War (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116 (a)(3); 38 C.F.R. § 3.307 (a)(6)(iii). Also, 38 U.S.C. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, '[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.' Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Finally, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for hypertension is granted. The Veteran also seeks entitlement to service connection for hypertension. At the outset, VA has conceded the Veteran's exposure to herbicide agents during his active service. VA regulations do not list hypertension as a presumptive disability associated with herbicide agent exposure. This, however, does not preclude the Veteran from establishing entitlement to service connection on a direct incurrence or other basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The National Academy of Sciences (NAS), in 2006 and 2008 updates, concluded that there was "limited or suggestive evidence of an association" between hypertension and herbicide exposure. See 75 Fed. Reg. 32,540, 32,549 (June 8, 2010); 75 Fed. Reg. 81,332, 81,333 (December 27, 2010). However, in November 2018, the NAS upgraded the relationship between hypertension and herbicide exposure from limited/suggestive to "sufficient," indicating that "there is enough epidemiologic evidence to conclude that there is a possible association" between hypertension and herbicide exposure. See National Academies of Sciences, Engineering, and Medicine. 2018. Veterans and Agent Orange: Update 11 (2018). NAS serves as an advisor on scientific matters and is comprised of experts in the given field; the Board finds the NAS update highly probative. On VA examination in August 2021, the examiner noted the Veteran's diagnosis of hypertension. The examiner opined that the Veteran's hypertension was neither related to his IHD nor his diabetes mellitus. However, the examiner did not provide an opinion as to whether the Veteran's hypertension was a result of his conceded in-service herbicide exposure. Thus, the August 2021 VA opinion is of limited probative value. In sum, the Veteran has a current diagnosis of hypertension and is presumed to have been exposed to herbicide agents in service. Moreover, as determined, the Board finds probative the epidemiologic evidence supporting a potential positive association between herbicide agent exposure and hypertension. In this particular case, the record does not contain evidence suggesting that this Veteran's hypertension is not at least as likely as not due to his conceded exposure to herbicidal agents. The Board thus concludes that, at the very least, the evidence of a causal connection to service is in equipoise. Accordingly, resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria to establish service connection for hypertension are met. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, Associate 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.