Citation Nr: 21007036 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 14-32 308 DATE: February 8, 2021 REMANDED Entitlement to service connection for erectile dysfunction as secondary to service-connected type II diabetes mellitus is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD) and type II diabetes mellitus, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1968 to February 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2013 and February 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Board denied service connection for erectile dysfunction on a direct basis and as secondary to service-connected PTSD. The Board also remanded the issues of entitlement to service connection for erectile dysfunction as secondary to service-connected type II diabetes mellitus, service connection for hypertension, and TDIU for further development. The case has since been returned to the Board for appellate review. 1. Entitlement to service connection for erectile dysfunction as secondary to service-connected type II diabetes mellitus In a July 2020 VA medical opinion, the examiner opined that it was less likely than not that the Veteran’s erectile dysfunction is proximately due to or the result of his service-connected type II diabetes mellitus. In so finding, the examiner stated that the Veteran had erectile dysfunction for many years prior to the onset of his type II diabetes mellitus. However, to establish causation, the primary disability need not be service-connected, or even diagnosed, at the time the secondary condition is incurred. See Frost v. Shulkin, 29 Vet. App. 131, 138 (2017). In addition, the July 2020 examiner did not provide any specific rationale for her determination regarding the baseline and current severity of the Veteran’s erectile dysfunction. Rather, she reiterated the Veteran’s statements from a June 2012 VA examination report. Therefore, a remand is necessary to obtain an additional opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate) 2. Entitlement to service connection for hypertension In a December 2019 VA medical opinion, the examiner opined that it was less likely than not that the Veteran’s hypertension was incurred in or caused by the claimed in-service injury, event, or illness. However, the examiner’s only supporting rationale was that essential hypertension is not a condition that is currently recognized by VA as presumptively related to Agent Orange exposure. Although hypertension is not on the list of diseases that VA has associated with Agent Orange exposure, the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. §§ 3.303(d), 3.309(e); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In addition, the December 2019 VA examiner’s discussion regarding the relationship between hypertension and PTSD was general in nature and did not address this specific Veteran’s case. Moreover, the examiner did not clearly comment on the documents cited in the Board’s October 2019 remand instructions. Therefore, a remand is necessary to obtain an additional opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Barr, 21 Vet. App. at 311. The Veteran also contends that his hypertension is aggravated by his service-connected type II diabetes mellitus. See August 2018 statement in support of claim. The Veteran was afforded a VA diabetes mellitus examination during which the examiner indicated that the Veteran did not have hypertension that was at least as likely as not due to diabetes mellitus. However, the examiner provided no supporting rationale for his determination. Moreover, the VA medical opinions of record do not address whether the Veteran’s hypertension is aggravated by his type II diabetes mellitus. Therefore, a remand is necessary to obtain an opinion to address this theory of entitlement. 3. Entitlement to TDIU In his March 2012 application for TDIU, the Veteran reported that he was last employed full time in January 2007 and that he had no earned income for the past 12 months. The Veteran’s VA medical records suggest that he worked on a part-time basis during the appeal period. For example, during a May 2012 VA heart examination and a June 2012 VA psychiatric examination, the Veteran reported that he was working part time. In a September 2020 VA medical record, the Veteran also reported that he was busy remodeling a house and believed that the increased work or activity worsened his arthritis. In a March 2013 correspondence, the Veteran indicated that any part-time work was marginal employment. He stated that his annual earned income did not exceed the poverty level even prior to 2007. However, the Board notes that there is limited evidence of record regarding the Veteran’s income during the periods of the appeal where he reported working part time. The Board notes that part-time employment does not necessarily foreclose the possibility of an award of TDIU since a finding of marginal employment can establish entitlement to TDIU. Marginal employment generally shall be deemed to exist when a claimant’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(b). Marginal employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including, but not limited, to employment in a protected environment such as a family business or sheltered workshop. Id. In October 2020, the RO requested information from the Veteran regarding his self-employment. However, in November 2010, the Veteran provided information regarding his earned income prior to the appeal period. On remand, the AOJ should afford the Veteran an additional opportunity to submit relevant evidence regarding his employment history and income during the appeal period. The AOJ should also consider whether the Veteran’s part-time employment during the appeal period constituted “marginal employment.” The Board also notes that the Agency of Original Jurisdiction (AOJ) requested an additional VA heart examination in connection with the Veteran’s claim for TDIU in October 2020. A review of the record indicates that the examination has not yet been completed. Given that the findings of the pending examination may impact the outcome of the Veteran’s claim for TDIU, a remand is also warranted pending completion of the AOJ’s development. The matters are REMANDED for the following action: 1. Contact the Veteran to obtain clarification regarding his work history from March 2012 to the present. The Veteran should be asked to submit evidence (e.g., pay stubs, W2 forms, tax returns, letters from employers, etc.) documenting marginal employment, if any, due to his service-connected disabilities. 2. Obtain a VA medical opinion from an appropriate clinician regarding the etiology of the Veteran’s erectile dysfunction. The entire claims file must be made available to the examiner. (a) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s erectile dysfunction is caused or aggravated by his service-connected type II diabetes mellitus. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If there is a medical reason to doubt the history as reported, the examiner should so state. All opinions must be supported by detailed rationale. 3. Obtain a VA medical opinion from an appropriate clinician regarding the etiology of the Veteran’s hypertension. The entire claims file must be made available to the examiner. (a) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension had its onset in service or is otherwise causally or etiologically related to his active service, including exposure to herbicide agents (notwithstanding the fact that it may not be a presumed association). (b) The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension is caused or aggravated by his service-connected PTSD and/or type II diabetes mellitus. In providing this opinion, the examiner must specifically comment on the VA regulatory documents cited in the July 2018 remand instructions indicating an association between PTSD and heart disease. See Presumptions of Service Connection for Diseases Associated with Service Involving Detention or Internment as a Prisoner of War, 70 Fed. Reg. 37040 (June 28, 2005); Presumptions of Service Connection for Diseases Associated with Service Involving Detention or Internment as a Prisoner of War, 69 Fed. Reg. 60083 (Oct. 7, 2004) (association between PTSD and cardiovascular disease in prisoners of war). See also VA National Center for PTSD, Kay Jankowski, PTSD and Physical Health (“A number of studies have found an association between PTSD and poor cardiovascular health”). The examiner must also specifically comment on the articles submitted by the Veteran indicating a possible association between PTSD and hypertension. See September 2014 and September 2019 correspondence. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If there is a medical reason to doubt the history as reported, the examiner should so state. All opinions must be supported by detailed rationale. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Wulff, 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.