Citation Nr: 21005664 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-10 477 DATE: February 2, 2021 ORDER Service connection for hypertension is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's hypertension is not attributable to service, including to his presumed herbicide agent exposure, and was not manifest within one year of separation from service. 2. The Veteran’s service-connected disabilities do not render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102 , 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to July 1971 in the United States Army, with service in the Republic of Vietnam from February 1970 to December 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran and his spouse testified before the undersigned during a videoconference hearing. A transcript of the hearing is included in the electronic claims file. In March 2020, the Board remanded the above claims for further development. 1. Service connection for hypertension is denied. VA provides compensation for disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). For certain chronic diseases, including hypertension, 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(a)(3), 3.309(a). For those listed chronic diseases, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). In addition, where a Veteran has been exposed to an herbicide agent during active service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied. 38 C.F.R. § 3.309(e). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6). While hypertension is not one of the diseases presumed to be associated with herbicide agent exposure, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Under VA regulations, hypertension must be confirmed by readings taken two or more times on at least three different days. The regulation also clarifies that the term "hypertension" means that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104 , Diagnostic Code (DC) 7101, Note (1). Additionally, in order for hypertension to be considered compensably disabling, the evidence must show that diastolic pressure is predominantly 100 or more, systolic pressure is predominantly 160 or more, or there is a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. 38 C.F.R. § 4.104, DC 7101. The Veteran has current hypertension, documented on VA examination in March 2020. At the hearing, the Veteran testified that he has had hypertension since his military discharge. He reported that the etiology was uncertain and none of his treating providers have been able to make such a determination, but he believed it may be related to his exposure to herbicide agents in Vietnam. On entry into service, no abnormalities of the heart or vascular system were found, and the Veteran did not report pertinent complaints on the accompanying Report of Medical History. His blood pressure measurement was 130/86. Service treatment records (STRs) generated thereafter do not document any complaints, diagnoses, or treatment pertaining to hypertension. On his separation examination, no abnormalities of the heart or vascular system were found, and he did not report pertinent complaints to the examiner. There are no records documenting diagnoses, treatment, or complaints related to hypertension dated from within one year of his 1971 discharge. As noted by the Board in the March 2020 remand, the Veteran’s military personnel records show that he served in the Republic of Vietnam From February 1970 to December 1970. The Board discussed the fact that the National Academies of Sciences, Engineering and Medicine (NAS) recently found sufficient evidence of an “association” between hypertension and exposure to Agent Orange and other herbicide agents used during the Vietnam War. Veterans and Agent Orange: Update 11 (2018). Hypertension was upgraded from its previous classification in the category of “limited or suggestive” evidence of an association to the category of “sufficient” evidence of an association. As such, the claim was remanded in order to obtain an opinion addressing the Veteran’s herbicide agent exposure. In March 2020, a VA examination was conducted. The examiner reviewed the claims file, including the STRs which depicted undated blood pressure readings of 130/96, and 130/unknown. He noted that the onset of the Veteran’s hypertension was in 2013. He opined that hypertension was less likely than not incurred in or caused by military service, explaining that was no indication of hypertension in the STRs or within one year from discharge. With regard to the Board’s inquiry regarding herbicide agent exposure and the NAS study, he explained that an association does not indicate causation. Rather, the Veteran’s hypertension has been classified as “benign essential hypertension,” the most commonly occurring type of hypertension with an onset in middle age. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The probative evidence does not show that the current hypertension is related to the Veteran’s active military service, including herbicide agent exposure. The Board notes that the term, “essential,” is defined as "idiopathic, said of a disease." Dorland's Illustrated Medical Dictionary at 649 (32nd ed. 2012). Idiopathic is defined as "of unknown cause or spontaneous origin." Id. at 912. Essential hypertension is defined as "hypertension occurring without discoverable organic cause." Id. at 896. These definitions suggest that the Veteran’s benign essential hypertension is of an unknown origin, as indicated by the March 2020 examiner. Further, based on the March 2020 VA examination report and the Board’s own review of the claims file, hypertension was not found within one year of separation from service; rather, the evidence reflects that the disability was not shown until 2013, more than 40 years after service discharge. The fact that he sought treatment for other conditions after service, but not hypertension, weighs against the credibility of any statements that his disability persisted since discharge. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The claims file contains private treatment records dating back to 2010 without mention of the hypertension in the earliest records. The medical opinion evidence is also persuasive. The March 2020 VA examiner addressed the contentions of direct service connection, including based on herbicide agent exposure, but opined that the Veteran’s current hypertension was not related to military service. He based his conclusions on an examination of the claims file, including the post-service treatment records and diagnostic reports. He reviewed and accepted the reported history and symptoms in rendering the opinions, and provided a rationale for the conclusion reached. The only evidence to the contrary of the March 2020 VA examiner’s opinion is the lay evidence. The Veteran, however, does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such medically complex disabilities as benign essential hypertension. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). With respect to his assertion that he had hypertension in service, the Board has carefully reviewed the service treatment records and they do not show any indication that there were any high blood pressure concerns. Rather, the only blood pressure measurement taken in service did not fall within the regulatory definition of hypertension. As such, while the Veteran may have a legitimate belief that he had hypertension in service, the Board finds that the weight of the evidence does not support such a finding. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. 2. A TDIU is denied. VA will grant disability compensation based upon individual unemployability (TDIU) when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Here, the minimum schedular criteria have been met throughout the appeal period. The Veteran’s service connected disabilities include the following: posttraumatic stress disorder (PTSD) (70 percent disabling); lumbosacral strain with arthritis (20 percent disabling); left ankle sprain (10 percent disabling); tinnitus (10 percent disabling); left leg sciatica (10 percent disabling); right leg sciatica (10 percent disabling); and left ear hearing loss (noncompensable). His combined disability rating has been 90 percent throughout the appeal period. See May 2020 rating decision codesheet (most recent codesheet). The Board must thus determine whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage.”) Moore v. Derwinski, 1 Vet. App. 356 (1991). The record shows the Veteran completed high school in 1965 and then attended college where he majored in history and political science. After military service, he completed law school in 1973 and thereafter passed his state’s bar examination. He worked in private practice as an attorney for 40 years and retired in approximately 2012. He has reported to VA examiners that he did not experience any disciplinary trouble or other such difficulties during his post-service career. He reported that he typically got along well with co-workers, supervisors, and members of the public. On VA audiological examination in May 2014, the examiner found that the Veteran’s left ear hearing loss had no impact on the ordinary conditions of daily life, including the ability to work. Tinnitus caused difficulty in that it impacted concentration. On VA psychiatric examination in June 2014, the examiner opined that the Veteran’s PTSD caused occupational and social impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress, or, symptoms were controlled by medication. His symptoms consisted of anxiety, suspiciousness, and chronic sleep impairment. He was found capable of managing his financial affairs. On VA psychiatric examination in January 2015, the examiner opined that the Veteran’s psychiatric symptoms cased occupational and social impairment with deficiencies in most areas. His symptoms consisted of the following: depressed mood, anxiety, suspiciousness, panic attacks, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, difficulty in understanding complex commands, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain relationships, suicidal ideation, obsessional rituals which interfere with routine activities, impaired impulse control, neglect of personal appearance and hygiene, and an intermittent inability to perform activities of daily living. On VA lumbar spine examination in April 2015, the disability was found to impact the Veteran’s ability to work in that he was limited in lifting, bending, and twisting. He also avoided running. On VA left ankle examination in April 2015, the disability was found to impact the Veteran’s ability to work in that he limited his time walking on uneven surfaces or walking generally if needed. He also avoided running. In a December 2016 report, the Veteran’s treating mental health provider, S.S., stated that the Veteran experienced anger, anxiety, irritability, nightmares, and sleep disturbances due to his PTSD. On VA psychiatric examination in August 2017, the examiner opined that the PTSD caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or symptoms were controlled by medication. His symptoms included a depressed mood, anxiety, suspiciousness, chronic sleep impairment, memory loss, impairment of short and long term memory, disturbances of motivation and mood, and difficulty adapting to stressful circumstances. On VA audiological examination in August 2017, the Veteran’s hearing loss was found to impact his ability to work in that he had difficulty hearing and had to ask others to repeat themselves. Tinnitus impacted his ability to work in that it was described as extremely annoying, and affected sleep and concentration. In an August 2017 report, S.S. stated that the Veteran had serious issues with anger, which affected work relationships. He performed volunteer work, and occasionally had outbursts of anger, which caused members in his group to be concerned. In a June 2018 report, S.S. stated that the Veteran’s PTSD symptoms persisted in the moderate to severe range. He experienced road rage and obsessive-compulsive type behaviors. He had impaired judgment in situations of anger. Panic attacks were ongoing. In an October 2019 report, S.S. noted that work and social relationships were affected by anger and angry outbursts. He had impaired judgment during his anger episodes. He had ongoing severe anxiety and frequent panic attacks. He was severely depressed at times, and had memory impairment. At the January 2020 hearing, the Veteran testified that he had been self-employed and could not have worked for someone else during his working years due to his psychiatric symptoms. The Court has defined “substantially gainful employment” as encompassing both an economic and a noneconomic component. 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. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Court set forth a number of factors to consider in making the latter determination, including the following: the veteran’s history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, including limitations in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. Here, the economic component of Ray has been met throughout the appeal period. The record consistently reflects that the Veteran stopped working in approximately 2012, prior to filing his claim. As for the noneconomic component, the Veteran is not vocationally-limited. To the contrary, he possesses both a college degree and a law degree, and has four decades of experience in private practice. He additionally has experience in running his own business as he was self-employed throughout his career. With regard to audiological and visual limitations, he does not have any service-connected disability causing a visual limitation. The impact of his audiological disabilities on work include impairments in concentration due to tinnitus. As for hearing loss, the May 2014 examiner found no impact on work, and the August 2017 examiner found that the Veteran had to ask others to repeat themselves. With regard to physical limitations, his service-connected lumbar spine and left ankle disabilities impact lifting, bending, twisting, walking, and running. He does not have any service-connected disability impacting his abilities to sit, grasp, type, or reach. With regard to mental limitations, both the June 2014 and August 2017 VA examiners found only “mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress.” In contrast is the VA examination report of January 2015, and the reports of S.S., which indicate that his PTSD symptoms significantly impact his ability to handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. In assessing the Veteran’s service-connected disability picture as a whole throughout the appeal period, the Board finds the Veteran is not vocationally limited given his extensive and successful work history, advanced education, and general skill level. He does not have a service-connected disability causing a visual limitation. His tinnitus and hearing loss cause audiological limitations to the extent they require him to ask others to repeat themselves and impact concentration. He does not have a service-connected physical disability causing limitations on his abilities to sit, grasp, type, or reach. His service-connected psychiatric disability has shown a varying and inconsistent impact on work. Significantly however, no provider or examiner has opined that his PTSD symptoms cause total occupational impairment, or that he is unable to secure or follow substantially gainful employment due to his PTSD. The Board thus finds that the preponderance of the evidence is against a finding that the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities. While the economic component of Ray has been met, the noneconomic component has not. Rather, the ratings assigned for his service-connected disabilities are recognition of the occupational impairment they have caused. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for a TDIU must be denied. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.