Citation Nr: 21007527 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-19 953 DATE: February 9, 2021 ORDER Service connection for hypertension is granted. Service connection for a back disability is granted. Service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) is granted. A 10 percent rating for residuals of broken nose is granted, subject to the laws and regulations governing the assignment of monetary benefits. REMANDED The claim for a total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence shows that it is likely as not (50 percent or more probability) that the Veteran’s hypertension was caused by his service, to include his presumed exposure to herbicide agents. 2. The evidence is in relative equipoise as to whether the Veteran’s back disability was caused by his back injury during his active service. 3. The evidence shows that it is as likely as not (50 percent or more probability) that the Veteran had an acquired psychiatric disorder, to include PTSD, which was caused by a corroborated in-service stressor. 4. The evidence is in relative equipoise as to whether the residuals of the Veteran’s broken nose had made his nasal passages so obstructed as to effectively make it no different than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a back disability have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service convection for an acquired psychiatric disorder, to include PTSD, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 4. A 10 percent rating for residuals of broken nose have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.97, Diagnosed Code (DC) 6502. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1968 to June 1970, including service in Vietnam. He died in July 2020. The Appellant is his widow who has been recognized as the appropriate substitute. A rating decision dated April 2013 denied Veteran’s claims for service connection for hypertension, a back disability, PTSD and TDIU, as well as an increased rating claim for residuals of broken nose, to which the Veteran appealed to the Board. A Board hearing was held in September 2019 before the undersigned Veterans Law Judge. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.§ 1110; 38 C.F.R.§ 3.303. Service connection requires competent evidence showing: (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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection can be established based on herbicide exposure. 38 C.F.R. § 3.307(a)(6). A veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam is presumed to have been exposed to herbicides and the veteran is entitled to a presumption of service connection for certain diseases listed under 38 C.F.R. § 3.309 (e). 1. Hypertension VA treatment records show that the Veteran was diagnosed with hypertension. The VA has conceded that the Veteran was presumed to have exposure to herbicide agent during his service in Vietnam. However, it was noted that hypertension is not disorders or deceases listed under 38 C.F.R. § 3.309(e). As such, the presumptive service connection for hypertension is not available. The Board must consider whether service connection can be granted on a direct basis. The National Academy of Sciences (NAS) had indicated that there was “sufficient evidence of association” between in-service tactical herbicide exposure and hypertension. See Nat’l Acad. of Sci., Inst. of Med., Veterans & Agent Orange: Update 2018 (the 11th edition). A private opinion dated August 2019 also found a positive nexus between the Veteran’s hypertension and his service. As such, the evidence makes it at likely as not (50 percent or more probability) that the Veteran’s hypertension was caused by his service, to include exposure to herbicide agents. Accordingly, service connection for hypertension is granted. 2. Back The Veteran was seeking service connection for a back disability, which he believed was related to an in-service back injury. Service treatment records (STRs) showed that the Veteran fell over a tent peg and twisted his back in January 1970, and he was diagnosed with lumbosacral sprain. X-rays in February 1970 showed fracture of L1 and L5 spinous process. VA examination in August 1970 diagnosed him with lumbarization of the 1st sacral segment with history of trauma. VA examination in March 2016 diagnosed him with degenerative arthritis of the LS spine with spinal stenosis. The examiner opined that the Veteran’s back disability was less likely than not (less than 50 percent probability) caused by his in-service injury, because the separation physical did not show any back problems which suggested that his in-service injury was resolved. A private opinion dated August 2019 holds a different view. The physician opined that the Veteran’s back condition began with his back injury in service. He was seen three to four times during service and he continued to have back problems after service. The Board finds that the evidence is in relative equipoise as to whether the Veteran’s back disability was caused by his documented injury during his active service. Accordingly, service connection for a back disability is granted. 3. PTSD The Veteran was seeking service connection for an acquired psychiatric disorder, to include PTSD, which he believes resulted from traumatic events he experienced in service. Service connection for PTSD specifically requires that the record show: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R.§ 4.125, (2) combat status or credible supporting evidence that the claimed in-service stressor actually occurred; (3) medical evidence of a causal nexus between diagnosed PTSD and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). Service personnel records show that the Veteran was awarded a Navy Commendation Medal for his heroic action in combat in Vietnam in September 1969 during which he fired at the enemy with a machine gun under heaving enemy fire until he was overcome by the heat and collapsed. As such, an in-service stressor is established. A VA examination in January 2012 did not diagnose the Veteran with PTSD. However, he was diagnosed with PTSD by a VA social worker in November 2010 and later by a VA psychologist in April 2018. A private opinion dated August 2019 diagnosed the Veteran with PTSD and opined that this condition was a result of his experience in Vietnam. As such, the evidence makes it at least as likely as not (50 percent or more probability) that the Veteran has an acquired psychiatric disorder, to include PTSD which was caused by an in-service stressor corroborated by supporting evidence. Service connection for PTSD is granted. Increased Rating for Residuals of Broken Nose The Veteran’s residuals of broken nose were rated at noncompensable level under Diagnostic Code (DC) 6502 which provides a single maximum 10 percent rating for deviation of nasal septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.97, DC 6502. The Veteran was seeking a compensable rating for the residuals of broken nose. He reported at the January 2012 and January 2013 VA examinations that his nose was fractured in service in 1969 and underwent a surgical repairment in service. He reported that since then he had daily nasal drainage and used nasal spray about every other day. He also reported congestion, particularly at night, which occasionally woke him up during the night and he had occasional interference with breathing which he handled with nasal spray. On examination, the examiners found deviated nasal septum but did not specifically find 50 percent or more obstruction of the nasal passage on both sides or complete obstruction on one side. A private opinion dated August 2019 indicated that the fact that the Veteran must use a nasal inhaler almost daily and his deviated nasal septum and nasal obstruction often caused fatigue due to difficulty in breathing suggested that his nose passages were blocked with chronic nasal congestion. As such, the Board finds that the evidence is in relative equipoise as to whether the residuals of the Veteran’s broken nose had made his nasal passages so obstructed as to effectively make it no different than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. Accordingly, a 10 percent rating is granted. REASONS FOR REMAND The Veteran was seeking a TDIU. He indicated that he received disability benefits from the Social Security Administration (SSA). The Board notes several SSA documents have been associated with the Veteran’s file. However, these documents do not appear to contain relevant SSA medical records which support the grant of social security disability benefits. As such, further development is warranted. Additionally, given the grants of service connection claims by this decision, the TDIU claim should be remand to the Agency of Original Jurisdiction (AOJ) for re-adjuration. The matter is REMANDED for the following actions: 1. Obtain medical records from SSA associated with the Veteran’s SSA disability claim. 2. Adjudicate the TDIU claim. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Wang, 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.