Citation Nr: 21016083 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 15-46 789 DATE: March 19, 2021 ORDER New and material evidence has been received to reopen the claim for entitlement to service connection for hypertension. Entitlement to service connection for cirrhosis is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for esophageal varices is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. A final September 2005 rating decision denied the Veteran’s claim for entitlement to service connection for hypertension, and the subsequent evidence received is not cumulative and redundant of the other evidence of record and raises a reasonable possibility of substantiating the Veteran’s claim. 2. The Veteran’s cirrhosis was not due to or aggravated by his active-duty service. 3. The Veteran’s hypertension was not due to or aggravated by his active-duty service. 4. The Veteran’s esophageal varices were not due to or aggravated by his active-duty service. 5. The Veteran was not precluded from obtaining and maintaining substantially-gainful employment by his service-connected disabilities. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the issue of service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for entitlement to service connection for cirrhosis have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.310. 4. The criteria for entitlement to service connection for esophageal varices have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 5. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1962 to April 1963 and from August 1965 to August 1968. This case comes before the Board on appeal from a rating decision of November 2012 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota denying accrued benefits to the Appellant, who is the Veteran’s surviving spouse following his death in June 2012. Following the rating decision on appeal, the Appellant timely filed her notice of disagreement (NOD) in January 2013. The RO issued a statement of the case (SOC) in September 2015 and the Appellant’s timely appeal to the Board followed in November 2015. The RO issued a supplemental statement of the case (SSOC) in April 2016. Because the Appellant did not request a hearing in her appeal to the Board, no hearing before the undersigned Veterans Law Judge (VLJ) was scheduled. The Board subsequently remanded this case for clarification as to whether the Appellant sought accrued benefits or substitution in the Veteran’s claim. See October 2018 Board Decision at 4-10. After determining that the Appellant sought the latter, the RO denied substitution in June 2019. However, the Board subsequently reversed the RO’s decision and granted substitution in July 2019. See July 2019 Board Decision at 5-10; see also id. at 11-13 (remanding the merits of the Appellant’s claims for further development, including outstanding treatment records). Following an additional SSOC issued in May 2020, the Board adjudicated the majority of the Appellant’s claims on the merits in a decision of June 2020. See June 2020 Board Decision at 5-30. The above claims were remanded for further development, to include an additional VA examiner’s medical opinion. See id. at 30-32. A final SSOC was issued in September 2020. Before addressing the Appellant’s remaining claims on the merits, the Board briefly clarifies the scope of the issues on appeal. In its June 2020 decision, the Board found that new and material evidence had been received to reopen the claim for entitlement to service connection for cirrhosis. See June 2020 Board Decision at 11-14. Accordingly, that issue is no longer before the Board. After reviewing the evidence of record, the Board finds that the RO has substantially complied with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that a remand confers upon the Veteran the right to substantial compliance with remand instructions). The Board therefore extends its condolences to the Appellant as to the Veteran’s death and will proceed to adjudicate the Appellant’s remaining claims. 1. The claim for entitlement to service connection for hypertension is reopened. The Veteran’s original claim on this issue was denied in a rating decision of September 2005, which became final when it was not timely appealed. Once a rating decision has become final, new and material evidence is generally required to reopen that claim. See 38 C.F.R. § 3.156(a). “New evidence is evidence not previously part of the actual record… [material] evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.” Id. New and material evidence “can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.” Id. However, new and material evidence can be sufficient to reopen a claim if it can satisfy at least one previously unproven element thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010) (holding that regulations do not require evidence “as to each previously unproven element of a claim”) (emphasis added). The elements of service connection are the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Disabilities which are “proximately due to or the result of a service-connected disease or injury” are also service connected. 38 C.F.R. § 3.310(a). “When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.” Id. The Veteran had originally asserted that his hypertension was secondary to his cirrhosis. See January 2005 Correspondence. He later asserted that his hypertension was due to exposure to herbicide agents. See October 2011 VA Form 21-4138. As discussed in the Board’s June 2020 decision, the assertion of a new theory of entitlement does not constitute new and material evidence. See June 2020 Board Decision at 14; see also Velez v. Shinseki, 23 Vet. App. 199, 206 (2009). However, new evidence offered in support of such theories can constitute new and material evidence. See id. As discussed in the Board’s June 2020 decision, the Veteran’s October 2011 assertion that he had “never abused alcohol in [his] life” contradicts the prior findings of a September 2005 VA examiner, and the Board found this assertion credible for the limited purpose of constituting new and material evidence. See June 2020 Board Decision at 14. Because the claim of entitlement to service connection for cirrhosis has been reopened, entitlement to service connection for hypertension as secondary to cirrhosis has necessarily been reopened as well. The Board therefore finds that additional evidence has been submitted in support of the third Shedden factor and that the Veteran had presented new and material evidence sufficient to reopen his claim to service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Entitlement to service connection for cirrhosis, hypertension, and esophageal varices. As noted above, the elements of service connection are the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Disabilities which are “proximately due to or the result of a service-connected disease or injury” are also service connected. 38 C.F.R. § 3.310(a). Additionally, certain disabilities may be service-connected on a presumptive basis where a Veteran has been exposed to herbicide agents during their active-duty service. See 38 C.F.R. § 3.307(a). Veterans are presumed to have been exposed to such herbicide agents when they served within the Republic of Vietnam during an applicable time period. See id. at (a)(6)(iii) (providing that exposure is presumed where a veteran served “in the Republic of Vietnam… [between] January 9, 1962 [and] May 7, 1975”). The Board previously found that this presumption is applicable to the Veteran’s active-duty service. See June 2020 Board Decision at 30. However, cirrhosis, hypertension, and esophageal varices are not among the conditions for which such presumptive service-connection is available. See 38 C.F.R. § 3.309(e) (listing qualifying conditions). Accordingly, the Board remanded these conditions for a VA examiner’s opinion as to whether they were at least as likely as not directly due to or aggravated by the Veteran’s exposure to herbicide agents. See June 2020 Board Decision at 30-31. This medical opinion was provided in August 2020. The August 2020 VA examiner opined that it was more likely than not that the Veteran’s cirrhosis was due to alcohol abuse, and that his hypertension and esophageal varices were secondary to this condition. In reaching this conclusion, the August 2020 VA examiner noted that: [Portal] hypertension also present in [the Veteran] is from cirrhosis and varices… ONLY. [Esophageal] varices are usually and almost always due to liver cirrhosis… There is no medical plausible connection for liver cirrhosis or esophageal varices due to [Vietnam] service, nor any plausible blood transfusion nor any residual of 1968 malaria cured while in service… [Etiology] for cirrhosis and varices appears to be BMI of 34 and beer drinking by view of [2001-2005 medical records]… While recent studies have shown an association with hypertension and veterans assigned to the Chemical corps who had a high exposure to herbicides, there was no association in veterans with other MOS. See August 2020 VA Medical Opinion at 2 (capitalization in original); see also November 2015 Discharge Certificate (reflecting that the Veteran’s occupational specialty did not involve chemical warfare); see also May 2014 Military Personnel Records at 4 (listing duties as machine gunner, infantryman, grenadier, and wireman). This opinion is consistent with a previous VA examination of June 2005, in which the examiner noted that: [The Veteran] was treated [for malaria] and cured and when he left the service in 1968 there was no evidence of liver disease or malaria. His liver disease is caused as a result of alcohol although this [history] was virtually impossible to get from [the Veteran], but thanks to the documentation in 2001 it was simple to trace it to ALCOHOL USE WHICH IN COMBINATION WITH OBESITY EVEN WITH WHAT WE CONSIDER NORMAL DRINKING CAN RESULT IN CIRRHOSIS. In addition liver [biopsy] shows micronodular formation and hemosiderosis present, as well as the [ultrasound] done in the VAH shows fatty liver… this [is] very suggestive of Alcohol in combination with obesity. The rest of the laboratories [sic] done to [rule out] other liver pathology have been negative. See June 2005 VA Examination Report at 4-5 (capitalization in original). As discussed above, the Veteran had denied abusing alcohol. See October 2011 VA Form 21-4138 at 1 (asserting that “I have never abused alcohol in my life”). While the Board previously found this statement credible for the limited purpose of reopening the Appellant’s claims, the Board does not find it credible for adjudicating them on the merits because it is repeatedly contradicted by the Veteran’s own medical records. See April 2005 Medical Treatment Records at 6 (providing note of July 2001 that the Veteran “drinks beer regularly”); see also id. at 13 (providing note of June 1999 that the Veteran then had “1-2 12 oz. beers per day”); see also July 2009 Medical Treatment Records at 72 (providing note of October 2001 observing “excessive alcohol use”). The Board notes that the Veteran had submitted a private medical record of April 2002, in which the Veteran’s treating physician had opined that “[it] is possible that [the Veteran] had some of his chronic liver disease due to his malaria and exposure to other different agents in Vietnam[,] that is the only possible etiology that we have found at this point.” See February 2005 Medical Treatment Records at 1. However, while this treatment note encouraged the Veteran to “avoid alcohol,” along with “smoking [and] any type of hepatic toxic medications,” it does not otherwise discuss the Veteran’s actual use of alcohol or explain why such use would not be among the possible etiologies of liver disease. Based on the Veteran’s assertions of no alcohol use discussed above, the Board infers that the April 2002 private physician relied on these assertions in reaching this opinion. Accordingly, the Board assigns the April 2002 private medical opinion less probative weight than the July 2005 and August 2020 VA examiners’ opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (providing that when determining the probative value of a medical opinion, “[the] first inquiry is whether the medical expert is informed of sufficient facts upon which to base an opinion relevant to the problem at hand”). The Board also notes that the Veteran had previously submitted additional medical articles in support of these claims. See November 2015 Correspondence at 5-11 (providing articles of September and October 2002). However, these articles do not support the inference that any of these conditions are due to the Veteran’s active-duty exposure to herbicide agents. Instead, they note that alcohol consumption is “[the] most common cause of cirrhosis[,]” discuss the manifestation of portal hypertension as secondary to cirrhosis, and discuss the manifestation of esophageal varices as secondary to such hypertension. See id. at 5-6; see also id. at 8. This is consistent with both the VA examiners’ opinions and with additional private treatment records. See June 2005 Medical Treatment Records at 13 (providing August 2004 MRI and interpreting physician’s opinion that it showed “[findings] compatible with portal hypertension secondary to cirrhosis”). The balance of the evidence of record therefore supports the conclusion that while the Veteran was diagnosed with these conditions, and was in fact exposed to herbicide agents during his active-duty service, it is more likely than not that his cirrhosis was due to his use of alcohol and his hypertension and esophageal varices were secondary to his cirrhosis. The Board therefore finds that while the first and second Shedden factors have been met, the third has not. The assignment of service connection for these conditions is therefore not warranted. 38 C.F.R. §§ 3.303, 3.310. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence is against the Appellant’s claim. 38 U.S.C. § 5107. 3. Entitlement to a TDIU. Generally, VA will grant a TDIU when the evidence shows that the Veteran is precluded by reason of his service-connected disabilities from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The record reflects that during the rating period on appeal, the Veteran’s total combined disability rating was 40 percent. See May 2012 Rating Codesheet at 1 (reflecting compensable disabilities for posttraumatic stress disorder and residuals of a left leg injury, as well as noncompensable ratings for malaria and right leg wound residuals). Accordingly, the Board may not assign a schedular TDIU in the first instance. See 38 C.F.R. § 4.16(a) (requiring a single disability of 60 percent or greater or else a combined disability rating of 70 percent with at least one disability of 40 percent or greater). Instead, the Board must consider whether referral of the Appellant’s claim for extraschedular consideration is warranted. See 38 C.F.R. § 4.16(b) (providing that the Board “should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards”). The Board concludes that such referral is not warranted because the balance of the evidence of record supports the conclusion that the Veteran’s non-service-connected cirrhosis, together with its associated secondary conditions, was the reason he became unable to sustain employment. See January 2005 Correspondence (providing the Veteran’s assertion that “in 2002, I had an extremely horrific experience… [my private physicians] informed me I had Cirrhoses of the Liver [and] I was forced into retirement because of the disease”); see also November 2015 Correspondence at 3 (providing letter of October 2002 to union officials requesting reduced dues and asserting that “I was forced to retire from my job… [and] am no longer able to work in any capacity” due to “Cirrhosis of the liver and Portal Hypertension”); see also February 2012 Social Security Agency (SSA) Records (providing determination that the Veteran was disabled from September 2002 due to chronic liver disease and cirrhosis). The Board notes that the Veteran would later assert that his retirement was due to the combination of his service-connected disabilities. See August 2011 VA Form 21-8940 at 1 (asserting inability to obtain substantially gainful employment due to “PTSD, Malaria, [and] Leg Injury”); see also February 2012 VA Form 21-4138 (asserting that “[unemployability] is the result of my multiple health problems created due to my Combat Service in Vietnam”). However, these later assertions are contradicted by the SSA determination and by the Veteran’s own contemporaneous assertions that his cirrhosis and associated secondary conditions were the cause of his retirement in 2002. The Board may not consider a veteran’s non-service-connected disabilities in adjudicating entitlement to a TDIU. See 38 C.F.R. § 4.16(a). Neither the Veteran nor the Appellant has submitted evidence supporting the conclusion that it is at least as likely as not that the Veteran’s service-connected disabilities, alone, prevented him from obtaining and maintaining substantially-gainful employment during the rating period on appeal. See November 2015 VA Form 9 at 3-4 (providing, in pertinent part, Appellant’s description of the Veteran’s leg and PTSD symptoms, but without any assertion that these symptoms interfered with his employment or that his 2002 retirement was due to such symptoms). The Board therefore concludes that referral for consideration of an extraschedular TDIU is not warranted. 38 C.F.R. § 4.16(b). The Board has considered the doctrine of reasonable doubt but finds that it is not warranted because the balance of the evidence of record is against the Appellant’s claim. 38 U.S.C. § 5107. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.