Citation Nr: 21012654 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 12-21 376 DATE: March 4, 2021 ORDER Entitlement to service connection for hypertension, claimed as high blood pressure, is denied. Entitlement to service connection for diabetes mellitus type II is denied. Entitlement to total disability based on individual unemployability (TDIU) due to service-connected disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence does not show that the Veteran's hypertension is at least as likely as not etiologically related to his active duty service; it clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated therein. 2. The preponderance of the evidence does not show that the Veteran’s diabetes mellitus type II is at least as likely as not etiologically related to his active duty service. 3. The preponderance of the evidence does not indicate that the Veteran’s service-connected disabilities, apart from his acquired psychiatric disability (rated as 100 percent disabling), prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension, claimed as high blood pressure, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 1977 to September 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a July 2017 hearing before the Board of Veterans’ Appeals (Board). In a December 2017 decision, the Board remanded the Veteran’s claims for additional development. Most recently, the Board remanded the Veteran’s claim in a May 2020 decision. The Board finds that the RO substantially complied its remand directives, and the Board may now proceed with adjudication. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish service connection, the evidence generally must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (to include hypertension) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period post-service (one year for tinnitus). 38 U.S.C. § 1137; 38 C.F.R. §§ 3.307, 3.309. A nexus of a chronic disease to service may be established by showing continuity of symptomatology following service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). 1. Entitlement to service connection for hypertension, claimed as high blood pressure The Veteran asserts that his current hypertension was aggravated by or arose during or as a result of his active service. The Veteran’s service treatment records (STRs) are negative for complaints, treatment, or diagnosis of hypertension during active service; however, the August 1977 entrance medical examination notes that the Veteran was overweight upon entrance to service. The Veteran’s VA and private treatment records are negative for complaints, treatment, or diagnosis of hypertension in the 12-month period immediately following active service or for medical opinions tying the condition to the Veteran’s service. An April 1989 VA medical certificate mentions the Veteran experiencing psychiatric conditions and hypertension. The Veteran first filed a claim for service connection for hypertension in May 1991. During the Veteran’s July 2017 Board hearing, the Veteran asserted that his hypertension and diabetes mellitus were due to his active service, but he did not provide specific details as to when or why the conditions began. During the Veteran’s December 2019 VA examination for hypertension, the VA examiner opined that the Veteran’s hypertension and diabetes mellitus were less likely than not related to service. The examiner found that the Veteran had pre-existing hypertension, but there was no evidence of in-service aggravation of the condition. During the Veteran’s December 2020 VA examination for hypertension, the VA examiner noted that his entrance STRs indicated the Veteran was overweight upon entering service and put on a limited-calorie diet. A December 1982 medical record, taken two years after leaving service, indicated the Veteran had a normal body weight. In November 1995, the Veteran was diagnosed with diabetes mellitus; additionally, the Veteran weighed slightly more than 250 pounds. Based on these facts, the examiner found that the Veteran’s hypertension clearly and unmistakably preexisted service and was clearly and unmistakably not aggravated by service. The examiner’s rationale was based, in part, on the lack of high blood pressure treatment during or immediately after active service. The Veteran asserts that his hypertension arose during or was aggravated by his active service. In considering the Veteran’s contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay contentions are thus of markedly lower probative value than, and are outweighed by, the December 2020 VA examination opinion and medical evidence of record. Based on these facts, the Board finds the preponderance of the evidence is against the Veteran’s claim. While the Board concedes that the Veteran’s hypertension preexisted service, the medical evidence of record, particularly the December 2020 VA examination, indicate that the condition was clearly and unmistakably not aggravated by service and was most likely caused by significant post-service weight gain. As the preponderance of the evidence is against the Veteran’s claim, the claim for service connection for hypertension is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for diabetes mellitus type II The Veteran asserts that his current diabetes mellitus arose during or as a result of his active service. The Veteran’s STRs are negative for complaints, treatment, or diagnosis of diabetes during active service. The Veteran’s VA and private treatment records are negative for complaints, treatment, or diagnosis of diabetes in the 12-month period immediately following active service or for medical opinions tying the condition to the Veteran’s service. During the Veteran’s July 2017 Board hearing, the Veteran asserted that his hypertension and diabetes mellitus were due to his active service, but he did not provide specific details as to when or why the conditions began. During the Veteran’s December 2019 VA examination for diabetes mellitus, the VA examiner opined that the Veteran’s diabetes mellitus less likely than not began during service; however, it was at least as likely as not related to in-service weight gain and, therefore, to an in-service event, disease, or injury. That said, the examiner also stated that the Veteran gained about 70 pounds after service, which likely contributed to the development of diabetes. Given these contradictory conclusions, the Board can only lend the December 2019 VA examination some probative weight. During the Veteran’s December 2020 VA examination for diabetes mellitus, the VA examiner opined that the claimed condition was less likely than not incurred in or caused by an in-service event, illness, or injury. The examiner stated that the STRs did not show a clear history of diabetes or high blood sugar level readings during or shortly after active duty, although the Veteran was overweight, which is a risk factor for developing diabetes. According to a March 1980 health record, obesity was diagnosed, and the Veteran was recommended to begin a 1100 KCAL diet. A December 1982 Clinical Record (two years after separation) noted “WT 214 lbs, Body Fat 17.4% (normal).” Therefore, the Veteran was not overweight per AFKA ACH-PA standards, and no regular weight control program was indicated. The Veteran was diagnosed with diabetes in November 1995, fifteen years after separation from service. No history of diabetes during service was found, and the examiner concluded that the Veteran’s diabetes likely began after service due to post-service weight gain. The Veteran asserts that his diabetes arose during or as a result of his active service. In considering the Veteran’s contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability, particularly a disability of the endocrine system such as diabetes. See Jandreau v. Nicholson, supra. His lay contentions are thus of markedly lower probative value than, and are outweighed by, the December 2020 VA examination opinion and medical evidence of record. Based on these facts, the Board finds the preponderance of the evidence is against the Veteran’s claim. While the Board concedes that the Veteran was overweight during active service, there is no record of diabetes until 1995, 15 years after separation from active service. While the December 2019 VA examiner concluded that the Veteran’s diabetes was at least as likely as not due to in-service weight gain, the December 2020 VA examiner reached the opposite conclusion and provided a more detailed and historically consistent rationale for its conclusion. The December 2020 examination notes the lack of a diagnosis for diabetes until 15 years later, the Veteran’s relatively controlled weight during service, normal weight in the years just after service, and the significant weight gain the Veteran experienced later. Based on these facts, the Board finds the preponderance of the evidence indicates that the Veteran’s current diabetes arose post-service and is less likely than not due to any in-service event, injury, or illness. As the preponderance of the evidence is against the Veteran’s claim, the claim for service connection for diabetes mellitus type II is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). 3. Entitlement to TDIU The Veteran asserts that his service-connected disabilities preclude him from securing or following a substantially gainful occupation. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes may be assigned where the schedular rating is less than total, when, in the judgment of the rating agency, 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 service-connected 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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As a preliminary matter, from April 10, 2009, the Veteran has been in receipt of a 100 percent disability rating for an acquired psychiatric disorder. He is also in receipt of a noncompensable rating for a right wrist scar and, from June 21, 2016, a 10 percent evaluation for a separate, painful scar of the right wrist. The grant of a 100 percent disability rating does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, supra (analyzing 38 U.S.C. § 1114(s)). In this case, the Board finds that the evidence of record does not indicate that the Veteran’s two right wrist scar disabilities preclude him from securing or following a substantially gainful occupation, nor has the Veteran suggested that is the case. The Veteran has primarily contended that his hypertension and diabetes mellitus prevent him from working; however, these conditions are not service connected. Based on these facts, the Board finds that the preponderance of the evidence does not indicate that the Veteran’s service-connected disabilities, apart from his service-connected psychiatric disability, prevent him from securing or following a substantially gainful occupation. Accordingly, the claim for TDIU is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Hicks, 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.