Citation Nr: 21015296 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 12-01 157 DATE: March 17, 2021 ORDER Entitlement to service connection for hypertension is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran's hypertension was not shown in service or manifested to a compensable degree within a year of discharge; and the evidence fails to establish that the Veteran's diagnosed hypertension is related to active service. 2. The Veteran did not meet the minimum percentage requirements for consideration of a schedular TDIU rating. 3. The evidence of record does not show that the Veteran’s service-connected disabilities precluded him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. § 3.303, 3.307, 3.309. 2. The criteria for entitlement to a TDIU due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from September 1970 to July 1972, to include service in the Republic of Vietnam. Unfortunately, the Veteran passed away in January 2015 during the pendency of this appeal. The Appellant is his surviving spouse and has been properly substituted in this appeal. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). By way of history, the Veteran filed his initial claim for service connection for hypertension in April 2008. The Agency of Original Jurisdiction (AOJ) denied the claim in a January 2009 rating decision. The Veteran did not appeal this decision and it became final. The Veteran subsequently filed a petition to reopen his claim for service connection for hypertension in July 2010. The AOJ denied his claim in the March 2011 rating decision on appeal, which the Veteran then appealed to the Board. In the Board’s January 2015 decision, the Board found that new and material evidence had been presented sufficient for reopening the Veteran’s claim. The Board also remanded the Veteran’s claim at this time for a VA examination and accompanying opinion addressing etiology. The Veteran died in January 2015 and, in February 2018, while this appeal was pending, VA received a request for substitution of the appellant with respect to the claims pending and unadjudicated at the time of the Veteran’s death. The RO issued a Memorandum granting the appellant’s request for substitution in February 2018, pursuant to 38 U.S.C. § 5121A (West 2012). The appellant is his surviving spouse. As the substituted claimant, the appellant may proceed in furtherance of these identified claims that were still pending at the time of the Veteran’s death, and has the same rights to submit additional evidence as did the Veteran. The claims discussed herein have been certified to the Board for adjudication based upon substitution of the appellant as the claimant. The Board finds that the claims were pending and unadjudicated at the time of the Veteran’s death. Following this remand, the claim returned to the Board in February 2020, wherein the claim was remanded again to the AOJ as the Board found the VA medical opinions to be inadequate. The Board directed the AOJ to complete further evidentiary development. Such development has been completed and the claim has been presently returned to the Board for adjudication. 1. Entitlement to service connection for hypertension is denied. The Appellant contends the Veteran’s hypertension is related to his active military service. Specifically, the Appellant asserts that the Veteran’s hypertension is a result of his exposure to herbicide agents during his tour of duty in Vietnam. Alternatively, the Appellant contends that the Veteran’s hypertension could also have been caused or aggravated by one of his service-connected disabilities, including coronary artery disease (CAD) or posttraumatic stress disorder (PTSD). Service connection may be established for a disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38C.F.R. §§ 3.303, 3.304. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247 (1999). The governing law provides that 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." 38 U.S.C. § 1116(f). Furthermore, VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain disabilities listed in 38 C.F.R. § 3.309(e). While hypertension is not included in 38 C.F.R. § 3.309(e), the National Academy of Sciences (NAS) has upgraded the relationship between hypertension and herbicide exposure from "limited or suggestive" to "sufficient," indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. Also, certain chronic diseases, listed in 38 C.F.R. § 3.309(a), to include hypertension, are subject to presumptive service connection under 38 C.F.R. § 3.03(b). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. In order to establish a disease is "chronic" in service, there must be a combination of manifestations sufficient to identify the disease and sufficient observation to establish chronicity at the time of service. When a chronic disease is shown in service, subsequent manifestation of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a Veteran served at least ninety days of active service, and certain chronic diseases become manifest to a degree of ten percent or more within one year after the date of separation from such service, such a disease shall be presumed to have been incurred in service, even though there is no evidence of such a disease during the period of active service. 38 U.S.C. §§ 1101,1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The record contains a current diagnosis for hypertension from November 1992. See November 1992 C&P examination. Thus, the first element of service connection has been met. The Veteran’s service personnel records show that he served in the Republic of Vietnam from September 1971 to June 1972. See DD-214. Therefore, the Veteran’s exposure to herbicide agents is presumed. Pursuant to the January 2015 Board remand, an addendum VA medical opinion was obtained in December 2019 that addressed whether a nexus existed between the Veteran’s hypertension and his active military service. The December 2019 VA examiner opined that the claimed condition was less likely than not incurred in or caused by any in-service injury, event, or illness. The VA examiner reasoned that “[t]he medical records do not indicate a condition of hypertension at the time of separation…The medical records show that the claimant smoked and had a history of alcohol and [drug] abuse, which contributes to developing hypertension. Based on the medical records reviewed, the claimed condition of hypertension is less likely than not incurred in or caused by in-service injury, events, or exposures.” Regarding the theory of secondary service connection, the December 2019 VA examiner stated that “PTSD does not cause hypertension. CAD can be contributed to by hypertension, but not the opposite. Secondary hypertension is known to be related to use of drugs[.] Based on the medical records reviewed, the claimed condition of hypertension is less likely than not proximately due to or the result of PTSD or CAD status post myocardial infarction (MI).” Further, the VA examiner opined that the Veteran’s hypertension was “less likely than not permanently aggravated by CAD or PTSD” reasoning that “PTSD can cause increased anxiety and stress, which can temporarily cause the blood pressure to raise in response to stress hormones, but this is not a permanent aggravation. CAD status post MI would be worsened by hypertension, not the reverse. The claimant’s hypertension was more likely than not aggravated by drug abuse[.]” In February 2020, the Board found the December 2019 opinions to be inadequate as they failed to address the Veteran’s history of in-service exposure to herbicide agents, as well as the NAS indication of a positive association between hypertension and such exposure. As such, the Board again remanded the claim in February 2020 with directives to obtain an addendum opinion. The AOJ obtained an addendum opinion in February 2020. Regarding the theory of direct service connection, to include as due to exposure to herbicide agents in service, the February 2020 VA examiner opined that the Veteran’s hypertension was less likely than not incurred in or caused by an in-service injury, event, or illness. The VA examiner reasoned, “[n]o records establish hypertension was diagnosed in service. The earliest record found for a hypertension diagnosis was the C&P exam dated November 1992. I have reviewed that hypertension secondary to Agent Orange exposure (NAS report) has been changed from limited/suggestive to sufficient evidence. As a result, I will concede that exposure to Agent Orange is a direct risk factor for hypertension. [However], in looking at the claimant as a whole, he was documented to have polysubstance abuse issues and smoked cigarettes, which are both risk factors for hypertension. He also happened to be African American, per Uptodate, ‘Black patients are at significantly greater risk for stroke then white patients, especially at younger ages, due in part to the earlier onset and greater severity of hypertension.’ My opinion is based on what is statistically more likely. Overall, I think the claimant’s other risk factors are more likely to be the cause of his hypertension, less likely than not that hypertension was [caused by or] incurred in service.” Regarding secondary service connection, the February 2020 VA examiner opined that the Veteran’s hypertension was less likely than not proximately due to or the result, or aggravated beyond its natural progression by, the Veteran’s service-connected CAD or PTSD. The VA examiner stated, “I have reviewed the ‘Sleep and cardiovascular disease’ article. Pathogenesis of hypertension is poorly understood and multifactorial. However, some of the most common risk factors (per Uptodate) include age, obesity, family history, race. While I am aware observational type studies suggest that PTSD may contribute to hypertension (for example, Journal of Psychosomatic Research, Volume 72, Issue 1, January 2012, pages 33-38), this is still in general an investigative type association, as opposed to common, mainstream medical knowledge. Further I need to consider the claimant’s other risk factors, including his history of polysubstance abuse and race, as a more likely cause of his hypertension. CAD does not cause hypertension, rather, hypertension is a risk factor for CAD.” Upon review of the record, the Board finds that service connection for hypertension is not warranted. The Board finds the February 2020 VA examiner's medical opinion to be highly probative because it provided a detailed rationale based on the relevant evidence of record. The examiner fully explained the reasoning underlying the opinion and noted that the Veteran's service treatment records do not suggest that his hypertension had onset in service. The examiner also noted that there is no medical evidence of a hypertension diagnosis until the 1990’s, which is more than one year after the Veteran's separation. Further, the February 2020 VA examiner indicated that there are numerous significant risk factors for the development of hypertension, many of which the Veteran had, other than exposure to herbicide agents, which were more likely to contribute to the development of the Veteran’s disability. Furthermore, the Board finds the February 2020 examiner's opinion that the Veteran's hypertension was less likely than not caused or aggravated by his service-connected disabilities, in particular his CAD and PTSD, to be highly probative. The Board finds this opinion to be highly probative because it provided an adequate rationale based on a review of the evidence of record and appropriate medical literature. Given its great probative value, the Board therefore finds that no nexus between the Veteran's service-connected PTSD or CAD and hypertension. To the extent that the Appellant believes that the Veteran’s hypertension is linked to his active duty service or was caused or aggravated by his service connected disabilities, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has fight-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the question regarding the etiology of his high blood pressure is an issue of causation of a medical condition, which requires a medical determination outside the realm of common knowledge of any lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran’s lay statements alone are not sufficient to establish the required nexus in this case. The Board must then rely on the available and probative medical evidence, which have found no nexus between the Veteran's hypertension and his military service and that it is less likely than not that his hypertension was caused or aggravated by his service-connected disabilities. Additionally, the Board finds that entitlement to service connection for hypertension under 38 C.F.R. § 3.309(e), based on his presumed exposure to herbicide agents, is not warranted. As noted, hypertension is not among the exclusive list of conditions which are covered by this presumption. See 38 C.F.R. §§ 3.307, 3.309(e). While hypertension is not on the list of diseases recognized currently by VA as being presumptively related to exposure to herbicide agents, the NAS in its most recent Agent Orange update moved hypertension from limited or suggestive of an association between hypertension and herbicide exposure to sufficient evidence of an association. See Veterans and Agent Orange Update 11 (2018). The standard for this new category is epidemiologic evidence is sufficient to conclude that there is a positive association. That is, a positive association has been observed between exposure to herbicides and the outcome in studies in which chance, bias, and confounding could be ruled out with reasonable confidence. For example, if several small studies that are free of bias and confounding show an association that is consistent in magnitude and direction, there could be sufficient evidence of an association. There is sufficient evidence of an association between exposure to the chemicals of interest and hypertension. However, while the NAS has found some connection between herbicide exposure and hypertension, hypertension is not listed as a presumptive condition at this time, which means that the medical evidence in each specific case must be reviewed, and medical opinions reached considering the totality of their health and medical circumstances. Here, the probative medical evidence of record has found that it is less likely than not that the Veteran's hypertension was the result of his presumed exposure to herbicides during his service in the Republic of Vietnam. The February 2020 examiner conceded that exposure to herbicide agents could certainly be a factor in the development of hypertension, however, in the Veteran’s case, his other risk factors were more significant and more likely the cause of the condition. As a result, entitlement to service connection for hypertension based on presumed exposure to herbicide agents is not warranted. Finally, service connection may also be granted for chronic disabilities, if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309 (a), to include hypertension. See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). However, there is no evidence, nor allegation, that the Veteran's hypertension was diagnosed either in service or within one year after service, let alone to a compensable degree. See 38 C.F.R. § 3.309. The evidence reflects that the Veteran was not formally diagnosed with hypertension until 1992, which is several years after his separation from service. Without evidence supporting a diagnosis in service or within one year of separation, the claim is not warranted. The evidence weighs against the Veteran’s claim and application of the benefit-of-the-doubt doctrine is not warranted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). TDIU 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. The Appellant contends that the Veteran was entitled to a TDIU as a result of his service-connected disabilities. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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 service-connected disabilities. 38 C.F.R. §§ 3.340 and 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). However, a total rating based on individual unemployability may still be assigned to a veteran who fails to meet the percentage standards if he is unemployable by reason of his service-connected disabilities. If a Veteran is found to be unemployable solely due to his service-connected disabilities, then the case is to be referred to the Director of Compensation Service for extraschedular consideration. The question, therefore, becomes whether the Veteran is unable to secure or follow a substantially gainful occupation solely due to service-connected disabilities.38C.F.R. §4.16(b). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the Veteran can find employment generally, but whether the Veteran can perform the physical and mental acts required by employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363(1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. By way of history, the Veteran filed a formal claim for TDIU in May 2009. The AOJ issued a rating decision in July 2009 denying entitlement to TDIU. The Veteran filed a timely notice of disagreement in March 2010 and appealed this matter to the Board. In the January 2015 and February 2020 Board decisions, the Board remanded the issue of entitlement to a TDIU as inextricably intertwined with the Veteran’s claim for service connection for hypertension, addressed above. For the period on appeal, the Veteran is service connected for antral gastritis, rated at 30 percent disabling; PTSD, rated at 30 percent disabling; and coronary artery disease, status post myocardial infarction rated at 10 percent disabling. These disabilities combine to a 60 percent rating for the period on appeal. Thus, the Veteran did not meet the schedular criteria for a TDIU outlined above. See 38 C.F.R. § 4.16(a). Since the Veteran did not meet TDIU on schedular basis for the period on appeal, but there was potential evidence of unemployability, as mentioned above as part of the February 2020 remand, the Board instructed the AOJ to submit the Veteran's claim to the Director of Compensation Service for consideration of whether an extraschedular rating was warranted. Thereafter, the Director of Compensation Service found that the overall evidence failed to support the contention that any of the Veteran's service-connected disabilities or a combination of the effects of those disabilities prevented gainful employment. The Director reasoned that the medical evidence did not show that the Veteran's service-connected disabilities would result in an inability to perform all employment and pointed out that it was likely that the Veteran could still perform some more sedentary occupations. While the Director conceded that the medical evidence of record may suggest that the Veteran has limitations in regard to strenuous occupations or occupations without regular breaks, the Veteran’s service connected conditions or the combination of the effects of such conditions do not wholly prevent gainful employment. See December 2020 VA memo. Since the Veteran's claim of entitlement to a TDIU on an extraschedular basis was denied by the Director, the Board may now address the merits of the Veteran's claim for entitlement to a TDIU for the period on appeal, to include on an extraschedular basis. Wages v. McDonald, 27 Vet. App. 233, 239 (2015). Turning to the evidence of record, in the Veteran’s May 2009 VA 21-8940, the Veteran reported that he had a high school education and that he became too disabled to work in 1990. In an updated VA 21-8940 submitted by the Appellant in August 2019, the Appellant indicated that the Veteran last worked for a company in maintenance until approximately January 1988 but left his job due to his disability. The Appellant confirmed that the Veteran had graduated from high school and had no other education or training. The Veteran underwent a general medical VA examination in November 2011. The VA examiner reported that the Veteran had multiple non-service-connected conditions, such as chronic headaches, HIV/AIDs, ventral abdominal hernia, and chronic back pain. During the examination, the Veteran also reported a history of purported sleep apnea, which he self-treated by borrowing a family members CPAP machine intermittently. The VA examiner also indicated that the Veteran had decreased vision, hearing loss, and neck and shoulder pain, all non-service connected. Significantly, the VA examiner noted that none of these conditions impacted the Veteran’s ability to work. The VA examiner also completed a Heart Conditions disability benefits questionnaire (DBQ) and diagnosed the Veteran with his now service-connected coronary artery disease. The Veteran reported that he experienced chronic chest pains in the “sternal area” since the 1990’s, which have remained unchanged at rest or on exertion, resolving on their own. The VA examiner noted that continuous medication would be required to control the Veteran’s CAD. The VA examiner opined that the Veteran’s CAD did not impact his ability to work. The VA examiner stated that the Veteran “has not worked in 15-17 years[.] He reports anginal type pains since the 1990’s. No cardiac intervention has been done. There is a history of drug and alcohol abuse. I am not sure if the chest pain is cardiac related or not.” The Veteran also underwent a psychiatric examination for his PTSD in November 2011. The VA examiner reported that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although functioning satisfactorily generally. The VA examiner noted that during the examination, the Veteran indicated that he had used anti-depressants on and off for years. The VA examiner indicated that he observed the Veteran to be “irritable and minimally cooperative with questions.” The Veteran reported a 10-year history of drug use, but reported he quit “without help” in 2009. The Veteran indicated that he was estranged from his second wife, and currently living with a family member while he tries to find housing for himself. He indicated that they had been married for 24 years but separated “for about 20 years.” They did not have any children, but the Veteran reported he had four sons, and had “good” relationships with them. Medical records showed that the Veteran was followed by psychology and participated in several group therapies, including for anger management and coping skills. The Veteran indicated that he spent his free time constructing model airplanes and ships, playing solitaire, going out to eat, fishing, watching TV, and attending church. Since separation from service, the Veteran reported that he had about four jobs, the longest of which lasted about 11-12 years. The Veteran reported he was fired from one job for not showing up to work because his car had been stolen. Otherwise, he reported that his work attendance was good, co-worker relationships were “good”, and performance evaluations were also “good.” The Veteran reported he “had no problems” performing work duties. The Veteran reported that before he entered service he graduated from high school and went to night school to be a millwright but did not complete the program as he was drafted. Regarding symptoms of his PTSD, the VA examiner reported that the Veteran experienced anxiety, chronic sleep impairment, mild memory loss, impaired judgment, impaired abstract thinking, impaired impulse control, such as unprovoked irritability with periods of violence, as well as PTSD diagnostic criteria of hypervigilance and avoidance. The VA examiner remarked that the Veteran displayed an “inability to communicate his internal experience directly, cantankerous nature, and memory problems.” The VA examiner also opined that while the Veteran was not currently employed at the time of the interview, he was not unemployable, as his history shows that he has been able to maintain long-term employment well when he had transportation. However, the examiner did note that “in a work setting, he will have a hard time getting along with others and others will likely experience him as irritable and harsh-toned.” An addendum opinion addressing the functional impact of the Veteran’s service-connected antral gastritis and his service-connected CAD was obtained in December 2019. The December 2019 VA examiner stated that “[b]ased on medical records reviewed, the Veteran’s antral gastritis had no basis to alter ability to perform employment. CAD status post MI would limit [employment] to low intensity, sedentary work or work that would include the ability to take breaks and perform work in a controlled climate.” Medical treatment records were requested from the Social Security Administration (SSA) but the AOJ received a response that the medical records requested were unavailable as a result of destruction. Examining the totality of the record, the Board finds that the evidence does not suggest that the Veteran's service-connected disabilities render him unemployable for the period on appeal. Although the Veteran may have believed that his service-connected disabilities and their associated symptoms would preclude him from obtaining a job, the medical evidence of record reflects that he was likely able to secure and maintain substantially gainful employment during the period in question. In this regard, the Board gives great probative weight to the November 2011 VA examiner's opinion and findings. The November 2011 PTSD examiner noted that the Veteran was able to successfully maintain a job for over a 10-year period, and primarily had no issues in the workplace, including issues with attendance, issues with task completion, and relationships with colleagues. Further, the VA examiner noted that the Veteran completed many activities in his free time, both inside and outside the home, and was not totally occupationally and socially impaired. Although the Veteran indicate that his disability was the reason he stopped working full-time, there is no medical reason of record for his retirement status. The evidence of record indicates that the Veteran has not attempted to obtain gainful employment since his last job; rather than has been precluded from obtaining employment because of his service-connected disabilities. While the Veteran surely experiences difficulties associated with his service-connected PTSD and associated symptoms, the November 2011 VA examiner indicated that these symptoms did not impact his occupational functioning such that it would render him totally unemployable. As for the Veteran’s other service-connected disabilities, a December 2019 VA examiner indicated that his antral gastritis would have no functional impact on his employment, and that while there may be some limitations on his abilities as a result of service-connected CAD, he would still be able to perform any sedentary labor. In sum, the Board finds that the Veteran's disabilities do not render him unemployable. Because the Veteran is employable, entitlement to a TDIU prior to is not warranted. The evidence weighs against the Veteran’s claim and application of the benefit-of-the-doubt doctrine is not warranted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Thus, the Veteran's claim is denied. T. Berry Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, 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.