Citation Nr: 21016052 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 15-14 176 DATE: March 19, 2021 ORDER Entitlement to service connection for hypertension to include as secondary to his service-connected post-traumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), is denied. FINDINGS OF FACT 1. The Veteran’s hypertension is not related to his active duty service or to a service-connected disability. 2. The Veteran’s service-connected disability does not prevent him from obtaining or maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension, to include as secondary to PTSD, are not met. 38 U.S.C. §§ 1110, 7105; 38 C.F.R. §§ 3.102, 3.303, 3.310(a). 2. The criteria for TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1970 to May 1973. This appeal is before the Board of Veterans’ Appeals (Board) from multiple rating decisions from Department of Veterans Affairs (VA) Regional Offices (RO). The procedural history of the case is as follows: In a February 2013 rating decision, the RO granted the Veteran’s claim for PTSD and denied his claim for TDIU and he subsequently appealed. In December 2015, the Veteran filed a claim of entitlement to service connection for hypertension to include as secondary to his service-connected PTSD. In a March 2016 rating decision, the RO denied the Veteran’s hypertension claim. Subsequent development followed and in July 2018, the Board remanded the Veteran’s TDIU and hypertension claims. Further development followed and both claims returned to the Board; however, in May 2020 the Board once again remanded the TDIU and hypertension claims. Once again, further development followed and both claims returned to the Board; however, in October 2020 the Board remanded both claims for further development. In January 2021, the RO denied both claims in a supplemental statement of the case and both claims have since returned to the Board. 1. Service Connection for Hypertension as Secondary to PTSD Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. For certain chronic diseases, such as 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). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). "Hypertension" refers to persistently high arterial blood pressure. Medical authorities have suggested various thresholds ranging from 140 mmHg systolic and 90 mmHg diastolic to as high as 200 mmHg systolic and 110 mmHg diastolic as reflective of hypertension. See Dorland's Illustrated Medical Dictionary, 896 (32nd ed. 2012). For VA rating purposes, the term "hypertension" means that the diastolic blood pressure is predominantly 90 mmHg or greater. The term "isolated systolic hypertension" means that the systolic blood pressure is predominantly 160 mmHg or greater with a diastolic blood pressure of less than 90 mmHg. For VA purposes, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). As the evidence of record was previously summarized in the prior three Board decisions, the following will not be a full recitation of the evidence of record. Turning to the evidence of record, the service treatment records (STRs) do not indicate that at any point he received treatment for, or voiced complaints related to high blood pressure. Private treatment records indicate he was diagnosed with hypertension in November 2005. In August 2019, the Veteran underwent a VA hypertension examination report which included a review of the claims file, a recitation of complaints and medical history, and physical examination results. The examiner provided a negative nexus opinion; however, this opinion was based on the absence of a permanent disability as his hypertension was controlled with medication. As such, in May 2020, the Board remanded the claim after finding the August 2019 VA examination report inadequate since the opinion neither adequately addressed the Veteran’s diagnosed hypertension nor provided an opinion as to whether his hypertension is related to his service-connected PTSD. Subsequently, he underwent a June 2020 VA hypertension examination report which included a review of the claims file, a recitation of complaints and medical history, and physical examination results. The examiner did not render a direct service connection opinion. However, the examiner determined his hypertension is not proximately due to or the result of his service-connected PTSD. Specifically, the examiner acknowledged medical literature attesting to an association between PTSD and cardiovascular disorders but found there is “insufficient medical literature to show how PTSD may cause or is directly related to … hypertension.” Lastly, the examiner determined his hypertension was not aggravated beyond its natural progression by his PTSD. In June 2020, the Board once again remanded the Veteran’s claim to acquire a VA medical opinion as to the nature and etiology of the Veteran’s hypertension on a direct service connection basis. In December 2020, a VA medical opinion was entered into the claims file. The examiner ultimately determined it was less likely than not the Veteran’s hypertension was related to his active duty service after noting the lack of in-service treatment or diagnosis and length of time between end of service and his diagnosis. As to an etiology, the examiner stated: Unknown etiology. Hypertension often does not have a specific etiology but is multifactorial including lifestyle, diet, weight, stress, exercise, comorbid medical conditions. A single one of these does not necessarily lead to hypertension and hypertension can also be idiopathic (unknown etiology) as well. After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the preponderance of the evidence is against finding the Veteran’s hypertension is the result of active service or a service-connected disability. As an initial matter, as the Veteran’s hypertension has not been shown to have manifested by any symptomatology during or within one year of active service separation, the presumptive service connection provisions of 38 C.F.R. §§ 3.303(b), 3.307 and 3.309(a) are not applicable. As to direct service connection, the Board recognizes that the Veteran currently is diagnosed with hypertension. Thus, the first element of service connection is established. See Shedden, 381 F.3d at 1167. However, the evidence of record does not support the finding of the second and third required elements; specifically, an in-service event and a medical nexus between his current diagnosed disability and his active duty service. Here, as to an in-service event, the Veteran’s STRs do not indicate that at any point he voiced complaints of or received treatment for hypertension. Moreover, according to his STRs, his blood pressure was taken and documented on four occasions and none of the readings meet the previously stated qualifications for a diagnosis for high blood pressure. See Dorland's Illustrated Medical Dictionary, 896 (32nd ed. 2012); 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Additionally, the claims file is devoid of any complaints of or treatment for hypertension until 2005; 32 years after active duty service. Indeed, the December 2020 VA examiner determined it was less likely than not his hypertension was related to his active duty service. Furthermore, the evidence of record is devoid of any competent or credible medical evidence linking his hypertension to active duty service or countering the December 2020 VA medical opinion. As to secondary service connection, the Board recognizes the Veteran is currently service connected for PTSD and is diagnosed with hypertension; thus, he fulfills the first and second elements necessary for service connection on a secondary basis. See 38 C.F.R. § 3.310. However, the evidence of record does not support the finding of the third required element; specifically, that his current disability is proximately due to, the result of, or aggravated by his service-connected disability. Here, the June 2020 VA examiner acknowledged the medical literature attesting to an association between PTSD and cardiovascular disorders but found there is “insufficient medical literature to show how PTSD may cause or is directly related to … hypertension.” Moreover, the examiner determined it was less likely than not his hypertension was (1) proximately due to, (2) the result of, or (3) aggravated by his service-connected PTSD. The Board assigns this opinion significant probative value as it is supported by the medical evidence of record and pertinent medical literature. Moreover, the evidence of record is devoid of any competent or credible medical evidence linking his hypertension to his PTSD or countering the June 2020 VA medical opinion. Indeed, the only evidence of a connection between the Veteran’s hypertension and his active duty service or to a service-connected disability are his own statements. Lay evidence may be competent to establish medical etiology or nexus (Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)), but VA can give lay evidence whatever weight to which it concludes the evidence is entitled. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). In this case, although the Veteran may believe his hypertension is related to active duty service or to a service-connected disability, he is not competent to make such determinations, which are medical in nature. See Jandreau, 492 F.3d at 1372. Such opinions require specialized training and knowledge and are matters which are not capable of lay observation. As such, the Board finds the Veteran’s contentions are of little probative value. In sum, the Board finds the preponderance of the evidence is against finding the Veteran’s hypertension is related to active duty service or to a service-connected disability. Hence, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, the Veteran’s claim of service connection for hypertension to include as secondary to his service-connected PTSD, is denied. 2. Entitlement to TDIU The Veteran contends his service-connected disability prevents him from maintaining or obtaining a substantially gainful occupation. TDIU may be assigned when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that: if the veteran has only one such disability, the disability must be rated at 60 percent or more, or, if the veteran has two or more disabilities, at least one disability is rated at 40 percent or more and additional disabilities bring the veteran’s combined disability rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose, disabilities affecting a single system, e.g., nervous, will be considered a single disability. 38 C.F.R. § 4.16(a). VA will grant a TDIU when the evidence shows that the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when the Board conducts a TDIU analysis, it must take into account the individual veteran’s education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes his case outside of the norm. The sole fact that he is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). As to his service-connected disabilities, the Veteran is service-connected for PTSD, rated at 50 percent disabling effective June 7, 2012. As such, the Veteran does not meet the schedular criteria for TDIU because he does not have one disability ratable at 60 percent or more, or, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). However, a TDIU evaluation can still be awarded if it is established by the evidence of record that the service-connected disabilities rendered a veteran unable to secure and follow substantially gainful employment. If this is established, the case is to be sent to the Director of the Compensation Service for extraschedular consideration. See 38 C.F.R. §§ 3.340(a), 3.341(a), 4.16(b). The Board notes the Veteran is in receipt of Social Security Disability Benefits since 2005 for “malignant neoplasm kidney, adrenal glands, ureters” and since 2007 for various back disabilities. See 2005 and 2007 Social Security Disability Benefits Determinations. However, as he is not service connected for any of these disabilities, they will not be included in any consideration for his entitlement to TDIU. See 38 C.F.R. § 3.341 After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the preponderance of the evidence is against finding the Veteran is entitled to TDIU. Here, his July 2012 VA Form 21-8940 indicates his last period of employment ended in 2007. However, VA treatment records indicate he has continually worked in a bar since July 2010 and has maintained full or part time employment ever since. Moreover, in April 2019, the VA sent a letter asking the Veteran to confirm if he was still employed at the bar; however, no response was received. Indeed, the VA sent follow up letters in June and October 2020, seeking VA Forms 21-4192 and 21-8940; however, once again, no response was received to either letter. Furthermore, a September 2020 VA treatment record indicates he only recently stopped working due to a Covid-19 diagnosis. Lastly, the evidence of record does not contain any indication of any kind that the Veteran’s service-connected disability has prevented him from obtaining or maintaining a substantially gainful occupation at any point during the period on appeal In sum, the preponderance of the evidence is against finding the Veteran’s service-connected disability prevents him from obtaining or maintaining a substantially gainful occupation. Hence, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Moreover, he failed to provide the necessary information contained in an updated VA Form 21-8940; thus, information from his prior education, training, and employment that may have supported his claim could not be considered. See Wood, 1 Vet. App. at 193. Accordingly, the Veteran’s claim for TDIU, is denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.