Citation Nr: 21074166 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 15-00 810 DATE: December 14, 2021 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD) is dismissed. Entitlement to service connection for hypertension is dismissed. Entitlement to a total disability individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for a hiatal hernia, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. In a June 2020 rating decision, the RO granted service connection for GERD and hypertension in the Veteran's favor. 2. With regard to the issues of service connection for GERD and hypertension, there is no longer an issue of fact or law before the Board for adjudication. 3. During the entire period on appeal, the Veteran was precluded from obtaining and maintaining substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for dismissal of the issue of service connection for GERD are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for dismissal of the issue of service connection for hypertension are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1968 to June 1970, including in the Republic of Vietnam. His many decorations include the Vietnam Gallantry Cross with Palm and Combat Infantryman Badge. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated September 2014 issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran timely appealed. The Veteran's appeal has previously been before the Board. In February 2019, the Board remanded the Veteran's claims to the Agency of Original Jurisdiction (AOJ) for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Dismissals 1. Entitlement to service connection for GERD 2. Entitlement to service connection for hypertension Two of the issues remanded by the Board in February 2019 and associated with this Docket Number and appeal are entitlement to service connection for GERD and entitlement to service connection for hypertension. While on remand, in a June 2020 rating decision, the RO awarded service connection for GERD and assigned an initial 10 percent disability rating. The RO also awarded service connection for hypertension and assigned an initial noncompensable disability rating. This is a complete grant of the benefits sought. The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to the Veterans or the dependents or survivors of Veterans. 38 U.S.C. §§ 511(a), 7104. All questions in a matter which under section 511(a) of title 38, United States Code, are subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board. Decisions of the Board shall be based on the entire record in proceedings and upon consideration of all evidence and material of record and applicable provisions of law and regulation. 38 U.S.C. § 7104(a). The Board may dismiss any appeal which fails to allege error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5). As the grant of service connection for GERD and hypertension is a full grant of the benefits that had been sought on appeal, the appeal of the issues of entitlement to service connection for GERD and hypertension are rendered moot. In other words, there is no longer a question or controversy remaining for these issues. Nor are any exceptions to the mootness doctrine present because the ultimate relief sought on appeal, payment or reimbursement by VA for service connection for GERD and hypertension, has been accomplished without the need for additional action by the Board. 38 U.S.C. §§ 511, 7104, 7105; 38 C.F.R. § 20.101. See also Thomas v. Brown, 9 Vet. App. 269, 270 (1996); Hudgins v. Brown, 8 Vet. App. 365, 367-68 (1995); Bond v. Derwinski, 2 Vet. App. 376, 377 (1992). Accordingly, the Veteran's claims for service connection for GERD and hypertension are dismissed. 3. Entitlement to a TDIU A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of their service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated as at least 60-percent disabling, and if there are two or more disabilities, at least one disability must be rated as at least 40-percent disabling and there must be sufficient additional disability to bring the combined rating to at least 70 percent. Id. The Board finds that the Veteran meets the schedular requirements from March 2, 2011 as service connection was in effect at 30 percent for coronary artery disease; status post coronary artery bypass grafting with depression (CAD) from March 2, 2011; and 50 percent for PTSD from September 17, 2003, among other disabilities. From March 2, 2011, the Veteran had at least one disability rated as at least 40 percent disabling and there was sufficient additional disability to bring the combined rating to 70 percent. Entitlement to a TDIU must be based solely on the impact of the Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. While the regulations do not provide a definition of "substantially gainful employment," in Faust v. West, 13 Vet. App. 342 (2000), the Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation "that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Requiring a Veteran to prove that he is totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion. 38 C.F.R. § 4.16(b). However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Following a thorough review of the evidence, the Board finds the competent and credible evidence of record supports an award of a TDIU for the entire appeal period. In a May 2012 Application for Increased Compensation Based on Unemployability, the Veteran noted that his service-connected ischemia heart condition prevented him from securing or following any substantially gainful occupation. He wrote that the date he last worked full time was October 2008, the same date he became too disabled to work. His occupation was as an appliance repairman. He also noted that he currently worked 15 hours per week beginning in 2010 to the present. His highest level of education was a high school degree. In a June 2012 statement, the Veteran noted that his last day working was on October 17, 2008, the day he had heart problems and had to get open heart surgery. After surgery, his recovery took weeks. He had stress from his heart problem and his PTSD. In April 2010, he began a part-time job and worked until November. He noted that working as an appliance repairman was very stressful and hard work. He performed that type of work for 35 to 40 years. At his part-time job, he picked up trash, watered flowers, and swept the patio. He noted there was no stress at that job and he did not have to work with others. In a July 2012 Request for Employment Information, the Veteran noted that the end date of his employment was on June 8, 2012. At that time, he worked part-time as a groundskeeper and earned less than $10,000 in the last 12 months he was employed. He noted that the date he last worked was June 15, 2012 due to being retired. In an August 2012 Request for Employment Information, the Veteran provided that the date he last worked was October 17, 2008 as an appliance technician. He noted that he stopped working because he retired after his heart surgery. In a January 2014 Application for Increased Compensation Based on Unemployability, the Veteran wrote that his service-connected CAD prevented him from securing or following any substantially gainful occupation. He noted that the date he last worked full time was October 17, 2008, the same date he became too disabled to work. He noted that he worked part-time as a groundsman. On VA examination in June 2014, the examiner indicated functional impairment due to tinnitus described as causing agitation. On VA examination in June 2014, the examiner indicated no functional impairment due to hypertension, an esophageal condition, or erectile dysfunction. On VA examination in June 2014, the examiner indicated functional impairment due to ischemic heart disease described as he would not likely be able to perform anything very strenuous or exertional. The examiner explained, The Veteran has not worked for two years. He was working at a local nursing home doing some minor maintenance for 20 hours a week during the summer times. He stopped doing it two years ago (states due to stress). Therefore, his level of heart disease will likely prevent any physical or exertional type of work. Anything exertional will likely bring on chest discomfort and fatigue and shortness of breath, as explained to me by him. However, sedentary employment and any type of work with no exertion would likely be performed without difficulty, from the cardiac standpoint (as he explained to me when he was working). However, his heart disease will likely prohibit any occupational environments where exertion and strenuous activity are required. In correspondence dated June 2014, the Veteran noted that he had open heart surgery. He had been planning to work until he was 70 years old but after surgery, he needed to make some life changes. He wrote, "My work was appliance repair going from house to house, day in and day out." He said that his heart health was more important to him than working. He stated that he lived with symptoms of his PTSD all the time as well, including stress. Having trouble sleeping added to this stress. He reported that he tried to work part-time at a Nursing Home for a few months but he ended up having angina from the stress of the job. On VA Examination in September 2014, the examiner indicated functional impairment due to hearing loss described as, "The Veteran may have difficulty hearing in some situations involving background noise." On VA examination in September 2014, the examiner indicated no functional impairment due to tinnitus. In an October 2014 Notice of Disagreement (NOD), the Veteran's attorney wrote, "Stress causes Veteran to have chest pains, which he already has to deal with regarding his PTSD. Veteran is currently unable to work, as confirmed by his cardiologist. Veteran should be considered permanently and totally disabled." On VA Examination in January 2020, the examiner indicated functional impairment due to a hiatal hernia described as affecting his sitting position while working. On VA Examination in January 2020, the examiner indicated functional impairment due to hypertension described as he will occasionally get light-headed from his fluctuations in his blood pressure which interferes with daily work. On VA Examination in January 2020, the examiner indicated functional impairment due to a heart condition described as it will cause some inability to do heavy work and to work in extreme weather condition. Due to his heart disease, he would have to limit stress from work. In an August 2020 correspondence, the Veteran's attorney wrote, "While the VA examiner may have found that [his] heart condition would not prevent him from certain types of sedentary work, [his] service-connected PTSD conditions would certainly interfere with his ability to perform tasks that require interaction with others." While the record reflects that the Veteran was employed part-time for a short time following his retirement, there is no indication that this job generated an income above the poverty threshold. On the contrary, the evidence shows that the Veteran's part-time employment was "marginal" rather than substantially gainful. Furthermore, the record reflects that the highest level of education the Veteran has is a high school degree. He also worked in the same career as an appliance repairman for 35 to 40 years. Thus, the likelihood of the Veteran finding a job outside of his career path is low. The Board finds that the opinion of the June 2014 examiner indicating that his heart disease would likely prohibit any occupational environments where exertion and strenuous activity are required further supports this conclusion. The Board acknowledges that working as an appliance repairman requires both exertion and strenuous activity, thus prohibiting him from working in this field any longer. Regulations place responsibility for the ultimate TDIU determination on the Board and not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board finds that the evidence of record establishes that the Veteran is unable to obtain and maintain substantially gainful employment due to the combined effects of his service-connected disabilities, to include his CAD and PTSD. A TDIU is granted for the entirety of the appeal period. REASONS FOR REMAND 1. Entitlement to service connection for a hiatal hernia is remanded. The Veteran has claimed entitlement to service connection for a hiatal hernia, to include as secondary to service-connected CAD and/or PTSD. The Board finds that additional development is required for the hiatal hernia claim. The Veteran's claim was most recently remanded in February 2019 for a VA examination and opinion regarding the nature and etiology of his hiatal hernia to include as secondary to service-connected CAD and PTSD and the medications prescribed to treat those conditions, and as secondary to exposure to herbicides. In a January 2020 VA examination for esophageal conditions, the VA examiner wrote, "There is no absolute medical evidence that herbicide exposure causes hiatal hernia." This was the entirety of the opinion regarding herbicides. As to causation or aggravation by service-connected disabilities, the examiner determined a baseline level of severity, noting, "There was no diagnosis of hiatal hernia and esophageal disease in 2004...The medical record does not show hiatal hernia nor esophageal disease in 2004." However, he concluded, "His hiatal hernia was not aggravated by his CAD or PTSD. The medical literature indicated hiatal hernia is caused and/or aggravated by age, obesity, and genetic factors." The examiner did not address medications prescribed for CAD or PTSD. In an August 2020 correspondence, the Veteran's attorney wrote, The VA examiner opined that [his] hiatal hernia is caused or aggravated by...obesity. However, the VA examiner has failed to opine whether [his] obesity was caused or aggravated by his service-connected conditions. The Court of Appeals for Veterans Claims has recently held that obesity which is caused or aggravated by a service-connected condition may serve as an 'intermediate step' to secondary service connection. [He] is currently service-connected for his PTSD. Research shows that PTSD can cause or aggravate weight gain. Furthermore, [his] service-connected coronary artery disease severely limits his ability to exercise, thus further aggravating his obesity. The VA has not addressed this theory of service connection. He also cited an article authored by the American Journal of Epidemiology entitled, "Longitudinal associations among posttraumatic stress disorder, disordered eating, and weight gain in military men and women" in support of the Veteran's claim. The new theory raised by the attorney in the August 2020 brief that obesity is an intermediate step between service-connected disabilities and the hiatal hernia had not been raised by the evidence or appellant prior to that brief. Therefore, the January 2020 examiner was not asked to address obesity as an intermediate step and had no duty to extrapolate this unraised theory or question. However, the opinion did fail to address the question of the effects of medications prescribed for CAD and PTSD on the hiatal hernia. Moreover, his herbicide opinion reflects the wrong standard. The law does not require "absolute medical evidence." It only requires that it be "at least as likely as not" and this is the standard presented in the Board remand directives. Therefore, the Board finds there was not substantial compliance with its remand directives regarding herbicide exposure and medications prescribed for service-connected disabilities. Stegall v. West, 11 Vet. App. 268 (1998). Remand is required to ensure substantial compliance with these directives. The medical article cited by the Veteran's attorney in the August 2020 brief is evidence that triggers VA's duty to assist by providing a medical opinion on the question, as it indicates that the hiatal hernia may be related to obesity that is related to PTSD or CAD. Therefore, the Board will add a new directive to this remand to explore whether the hiatal hernia would not have occurred but for obesity caused or aggravated by service-connected PTSD and/or CAD. General Counsel Precedent Opinion 1-2017 determined that obesity can constitute an "intermediate step" between a service-connected disability and a disability that may be service connected on a secondary basis. The opinion also established that the intermediate step rule extends to circumstances where a service-connected disability aggravates obesity. When raised by the record, the Board must consider whether obesity was caused or aggravated by a service-connected disability, consistent with 38 C.F.R. § 3.310. Accordingly, an addendum opinion is needed. Accordingly, the matter is REMANDED for the following action: 1. Return the claims file to the January 2020 VA esophageal conditions examiner for an addendum opinion. (If the January 2020 VA examiner is unavailable, please request from a qualified clinician.) The examiner is requested to opine on the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hiatal hernia was caused by herbicide exposure? Why or why not? (b.) Is it at least as likely as not that the medications prescribed for the Veteran's PTSD and/or heart disability 1) caused the Veteran's hiatal hernia? Why or why not? 2) aggravated the Veteran's hiatal hernia? Why or why not? (c.) Is it at least as likely as not that the Veteran's obesity was 1) caused by his service-connected disabilities of CAD and PTSD (to include medication prescribed for these disabilities)? Why or why not? 2) aggravated (worsened beyond its natural progression) by his service-connected disabilities of CAD and PTSD (to include medication prescribed for these disabilities)? Why or why not? Please address the American Journal of Epidemiology article, "Longitudinal associations among posttraumatic stress disorder, disordered eating, and weight gain in military men and women" in these opinions. (d.) Is it at least as likely as not that the Veteran's hiatal hernia would not have occurred but for his obesity? Why or why not? (Continued on the next page) A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), or by a deficiency in the record (additional facts are required) or the examiner (does not have the needed knowledge or training). LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Minock 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.