Citation Nr: 21073266 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 15-30 332 DATE: December 8, 2021 ORDER Entitlement to service connection for hypertension, to include as secondary to posttraumatic stress disorder (PTSD), is denied. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to PTSD, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. REMANDED Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance (A&A) or on account of being housebound (HB) is remanded. FINDINGS OF FACT 1. The Veteran's hypertension and OSA are not caused or aggravated by his service-connected PTSD and not otherwise related or attributable to his service. 2. His service-connected disability, PTSD, does not render him unemployable. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for hypertension or OSA, either as directly or presumptively due to the Veteran's service or as secondary to his service-connected PTSD. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria also are not met for entitlement to a TDIU. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to June 1976. This appeal to the Board of Veterans' Appeals (Board) is from July 2010 and August 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). On his August 2015 VA Form 9, Substantive Appeal to the Board, the Veteran requested a hearing before this Board. His hearing was scheduled for in October 2018, however, he failed to appear for it and did not provide any justifiable reason or explanation (good cause) for his absence. As such, his request for a hearing is considered withdrawn. 38 C.F.R. § 20.704(d) (2018). In November 2020, the Board remanded these claims back to the RO (Agency of Original Jurisdiction (AOJ)) for further development and consideration including to have the Veteran examined to determine whether he had PTSD and/or any other mental disorder (e.g., depression) because of his military service. At the time, he was still trying to establish his entitlement to service connection for an acquired psychiatric disorder inclusive of PTSD and depression. The RO (AOJ) was instructed to readjudicate this claim after obtaining that needed opinion, also these "inextricably intertwined" claims that also are at issue in this appeal. Those remand instructions since have been completed, as directed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). A March 2021 rating decision since issued, on remand, granted service connection for PTSD (claimed as an acquired psychiatric disorder) and rated it 70-percent disabling retroactively effective from July 2, 2012. A subsequent August 2021 rating decision determined there was clear and unmistakable error in the assignment of that effective date so assigned an earlier effective date of April 22, 2009. If the Veteran disagrees with that initial rating and/or effective date, he must separately appeal these "downstream" issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). As for these remaining claims, they continued to be denied on remand, so they are again before this Board. Service Connection 1. Entitlement to service connection for hypertension and OSA, both including as secondary to the PTSD The Veteran contends that his hypertension and OSA are both secondary to his now service-connected PTSD. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection or even presumptive service connection, the Board's adjudication will only consider instead entitlement to secondary service connection. Service connection may be granted for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In May 2021, pursuant to the Board's November 2020 remand directive, a VA examiner reviewed the relevant evidence in the file and confirmed the Veteran's diagnoses of hypertension and OSA. However, the Board concludes that, while he has established that he has hypertension and OSA, the preponderance of the evidence is against finding that his service-connected PTSD either caused or aggravates either condition. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Concerning hypertension, the May 2021 VA examiner opined that it is less likely than not proximately due to the Veteran's PTSD. The examiner explained that hypertension is due to an increase in peripheral vascular resistance, and primary hypertension is an elevation of blood pressure without change in cardiac output. Certain conditions, exercise, and emotional stress may increase blood pressure with an increase in cardiac output, but blood pressure returns to normal after stopping the exercises and after the stimulus for stress is removed. The examiner further explained that, in people with PTSD, a similar change in blood pressure may occur in stressful conditions, but it does not have the sustained elevated blood pressure to cause hypertension (i.e., persistently elevated blood pressure), and that the pathophysiology of hypertension is separate from that of PTSD. Concerning OSA, the May 2021 examiner opined that it, too, is less likely than not proximately due to the Veteran's PTSD. The examiner explained that the Veteran's diagnosis of OSA predates his diagnosis of PTSD, meaning that his PTSD could not have caused his OSA. In August 2021, an additional VA examiner provided the requisite opinions on the additional possibility of aggravation. This examiner opined that neither the Veteran's hypertension nor his OSA are aggravated by his service-connected PTSD. Concerning hypertension, the examiner clarified that PTSD is not a known risk factor for hypertension, and that the Veteran's hypertension is "maintained on one medication ... which is very common and would not suggest an aggravation ... secondary to [his] PTSD." Concerning his OSA, the examiner stated that, again, PTSD is not a known risk factor for OSA. Further, medical literature does not support any causative or pathophysiological commonality between OSA and PTSD, despite the two conditions having a higher prevalence with back and forth association this merely means that many individuals with one of these diagnoses, often also have the other. Finally, the examiner explained that the Veteran's OSA is not aggravated by the Veteran's PTSD as there are no complications nor treatment that is above and beyond what one would expect had the Veteran not had PTSD. Since the May and August 2021 VA examiners did not find any proximate cause or aggravation of the Veteran's OSA or hypertension by his PTSD, the preponderance of the evidence is against these claims for these additional disabilities, meaning in addition to the PTSD. Moreover, because the Veteran is a layman, he does not have the competence to give a probative opinion concerning whether his hypertension or OSA are proximately due to, the result of, or aggravated by his PTSD. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the VA medical examiners' opinions against these claims are more probative and, in fact, determinative of the ultimate disposition. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Consequently, the Board gives more probative weight to the May and August 2021 VA opinions and, as such, finds that service connection is not warranted for either hypertension or OSA, including as secondary to PTSD. TDIU 2. Entitlement to a TDIU In July 2012, the Veteran submitted a VA Form 21-526b, Supplemental Claim, which included a claim for a TDIU. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As of the writing of this decision, the Veteran is in receipt of a 70 percent rating for his PTSD and, as such, meets the schedular criteria for a TDIU. In determining whether an individual is unemployable by reason of service-connected disability, consideration must be given to the type of employment for which the Veteran would be qualified. Such consideration would include education and occupational experience. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. §§ 3.341, 4.19. In Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013), the Federal Circuit Court held that, when a Veteran is claiming entitlement to a TDIU based on the combined effect of multiple service-connected disabilities, VA's duty to assist "does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities." See also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA adjudicators, not a medical examiner's opinion. Geib, 733 F.3d at 1354; see also 38 C.F.R. § 4.16(a). The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). On March 14, 2019, so during the pendency of this appeal, the CAVC issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; the economic component means "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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a Veteran's ability to "secure and follow" such employment, noting that attention must be given to: the Veteran's occupational history, education, skill and training; whether the Veteran has the physical ability to perform occupational activities; and whether the Veteran has the mental ability to perform occupational activities. On June 17, 2013, VA released a Fast Letter, which is binding on the AOJ, but not the Board. The stated purpose of which was to revise and clarify VA procedures relating to claims for a TDIU. The changes noted included the following: VA will require the claimant to complete and submit VA Form 21-8940, i.e., a TDIU application, to substantiate the claim for this benefit; VA will administratively deny a TDIU claim if VA requests, but the Veteran does not submit, required forms or evidence. Under the heading "Requirement for VA Forms 21-8940 and 21-4192," the following was stated: If a claim for TDIU has been expressly or reasonably raised by the evidence of record, but a current VA Form 21-8940 is not on file, provide it to the Veteran for completion. Before VA will consider a claim for IU the Veteran must complete a VA Form 21-8940, and the Veteran with multiple service-connected disabilities must specify one or more service-connected disabilities that he or she believes cause the unemployability. It was instructed that if the Veteran fails to complete and return the VA Form 21-8940, the claim would be denied. The June 17, 2013, VA Fast Letter changes were incorporated into the VA Adjudication Procedures Manual M21-1MR, which also is not binding on the Board. However, guidance from that VA Manual indicates that a substantially complete VA Form 21-8940 is required to establish entitlement to a TDIU because it gathers relevant and indispensable information regarding a claimant's disabilities and employment and educational histories. The form concludes with a series of sworn certification statements, and in endorsing it, a Veteran both attests to his/her employment status, and signals understanding of the TDIU benefit's incompatibility with substantially gainful work. A properly signed and executed VA Form 21-8940 enables VA to gather the information necessary to determine the Veteran's entitlement to a TDIU and recover TDIU compensation that is later discovered to have been awarded on fraudulent terms. To this end, in September 2012, in response to the Veteran's Supplemental Claim for a TDIU, VA notified him that he needed to complete a TDIU application, VA Form 21-8940; to facilitate that happening, he was provided a copy of this form and instructions for completing it. In June 2021, on remand of this claim, VA again notified him that he needed to complete this VA Form 21-8940, TDIU application, and again provided him a copy of this form and instructions for completing it. But, to date, he has not completed or returned this necessary form, nor has he provided any additional information regarding his employment or lack thereof. The Board acknowledges there is medical evidence of record suggesting some occupational impairment, but this is contemplated by the rating the Veteran has for his service-connected PTSD (70 percent) since the rating, itself, concedes as much. See 38 C.F.R. §§ 4.1, 4.15. According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of time working from exacerbations or illnesses proportionate to the severity of the several grades of disability. See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired). So, there must be occupational impairment above and beyond that for a TDIU claim to prevail, though not the "total" unemployability required for a 100 percent schedular rating for the mental disorder. The CAVC has clarified that, requiring a Veteran to prove 100 percent or total unemployability is different from requiring proof that he cannot obtain or maintain "substantially gainful employment." The use of the word "substantially" suggests intent to impart flexibility into a determination of overall employability, whereas a requirement that he prove 100 percent unemployability leaves no flexibility. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). But, even considering this lesser standard, this is not shown here. As the Veteran has not completed and returned the needed VA Form 21-8940, VA is unable to adequately develop his TDIU claim including by obtaining necessary information to make a proper determination as to whether he is unemployable owing to his service-connected disability. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist a claimant is not a "one-way street," and a claimant seeking help cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining putative evidence). Therefore, based on the evidence of record, the Board is unable to make a finding that the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disability (PTSD). Accordingly, this TDIU claim must be denied. REASONS FOR REMAND 3. Entitlement to SMC based on the need for regular A&A or on account of being HB is remanded. The Board finds that another remand of this remaining claim is required for further development to determine the current impact of the Veteran's service-connected disability, PTSD, on his activities of daily living (ADLs) and, more specifically, whether he is HB because of this disability or requires the regular A&A of a caregiver. A review of the record on appeal shows the Veteran was approved for Social Security Administration (SSA) benefits based on depression, esophageal cancer, and digestive incisional hernia repairs, retroactively effective from in February 2010. In his November 2010 SSA application, he stated that he had trouble with some ADLs, mostly owing to his physical disabilities, which are not service connected, but also indicated that he requires a caregiver. While use of a caregiver is not reflected in his later VA treatment records, during his March 2021 VA PTSD examination, he additionally reported that he isolates, i.e., is HB due to his PTSD. It is unclear whether his PTSD renders him HB or he just prefers isolation due to this service-connected disability. Because the Veteran was recently awarded service connection for PTSD in the March 2021 rating decision, on remand, which in the subsequent August 2021 decision, also on remand, was made retroactively effective from April 2009, he has not yet undergone a VA examination to determine whether he is additionally entitled to SMC based on the purported need for regular A&A or on account of being HB because of this service-connected disability (PTSD). Accordingly, this remaining claim is REMANDED for the following action: 1. If there are outstanding records concerning this remaining claim, obtain them and appropriately notify the Veteran if unable to obtain any additional records that he identifies with the required amount of information. 38 C.F.R. § 3.159(c) and (e). 2. After receiving all additional treatment or other relevant records, have the Veteran undergo a VA SMC examination for A&A or Housebound benefits. All functional and other impairment attributable to his service-connected disability - PTSD (versus that, instead, due to nonservice-connected disabilities) must be set out in detail in the report, and all functional limitations and impairments must be fully explained. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.