Citation Nr: 21021642 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 13-23 132 DATE: April 13, 2021 ORDER Service connection for hypertension is granted. A total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, hypertension was initially manifested and treated in service and has required prescription medication since that time. 2. The Veteran is currently employed in substantially gainful employment and the evidence does not establish that he works in a protected or sheltered environment. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for hypertension have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for TDIU have not been met. 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1984 to December 1987, and from February 1988 to July 2005. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2011 Agency of Original Jurisdiction (AOJ) decision. The Veteran presented sworn testimony in support of his appeal during a December 2016 hearing before the undersigned Veterans Law Judge. In August 2017, the Board remanded the issues reflected above as well as an appeal for service connection for disabilities of both knees, and also referred a claim for entitlement to service connection for surgical scar residuals. The AOJ granted service connection for bilateral knee disabilities and for scar disabilities. These grants represent a complete resolution of the appeal as to those issues. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 1. Hypertension Once the evidence has been assembled, it is the Board’s responsibility to evaluate the record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a Veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Certain chronic diseases, such as hypertension, may be presumed to be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For reference purposes, VA considers systolic pressure of 140 mm Hg or more, or diastolic pressure of 90 mm Hg or more, to be indicative of hypertension. 38 C.F.R. § 4.104, Diagnostic Code 7101. A compensable, 10 percent rating for hypertension is warranted for hypertension with diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more or minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. Id. The Veteran’s service treatment records show that his blood pressure readings were elevated during his last year of service. A complicating factor in this case is that he was prescribed a beta blocker, Atenolol, apparently in conjunction with other treatment for a mild heart attack during service. The records show that he continued taking the prescription medication for control of his blood pressure during service and after service, and was formally diagnosed with hypertension as early as 2008 with a prescription of Lisinopril added at that time. A VA examiner in June 2011 originally opined that it was at least as likely as not that the Veteran’s current hypertension was the same or related to the hypertension showing during service. The examiner rationalized that essential hypertension, once diagnosed, is normally a lifelong condition which requires continued surveillance in addition to medication management. This examiner did not reference any specific blood pressure readings in service. The AOJ obtained an addendum opinion from a different examiner in August 2011. This examiner specifically reviewed blood pressure readings in service and after service, and found that the Veteran did not have blood pressure readings that would constitute a diagnosis of hypertension while on active duty. The examiner explained that the Veteran was placed on a beta blocker in January 2005 as prophylactic treatment for an occult myocardial infarction and not for hypertension. The examiner noted that the first elevated blood pressure reading after service occurred in April 2009. The Veteran presented a Disability Benefit Questionnaire in January 2017 wherein the examiner asserted that the Veteran was diagnosed with hypertension in service – listing the onset date of 2002. However, the examiner also noted it was unknown if/when initial blood pressures were taken or how hypertension was diagnosed. As a result of a Board remand directive, another opinion was obtained in December 2019 regarding whether the Veteran’s hypertension was caused or aggravated by his service-connected coronary artery disease. The examiner did not find a relationship, but the examination report did not comply with the Board’s remand directive to consider and address the Veteran’s service treatment records, including his history of elevated blood pressure readings in service. Overall, the Board has opinions for and against this claim all of which have deficiencies. Two examiners have opined that the Veteran’s hypertension first manifested in service but it is unclear from the reasoning whether these opinions was based solely on the Veteran’s recollections or actual review of pertinent records. On the other hand, the August 2011 addendum opinion does not address the extent that the beta blocker prescribed in service – while for the purpose of prophylactic treatment of coronary artery disease - may have masked any hypertensive blood pressure readings. Furthermore, this examiner referenced the first elevated blood pressure reading as occurring in April 2009 while the available private records indicate a formal diagnosis of hypertension as early as 2008. The December 2019 VA opinion did not comply with the Board’s remand directives. The Board finds that reasonable doubt exists regarding whether the Veteran’s hypertension first manifested in service. In resolving reasonable doubt in his favor, the Board finds that a grant of service connection for hypertension is warranted. Accordingly, the claims are granted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”) 2. TDIU Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. Alternatively, a total disability rating for compensation based on unemployability may be assigned to a Veteran who is unable to secure and follow a substantially gainful occupation by reason of his/her service-connected disabilities. The Veteran's employment history, educational and vocational attainment as well as his particular physical disabilities are to be considered in making a determination on unemployability. 38 C.F.R. §§ 3.340, 3.341, 4.16. In determining whether the Veteran is entitled to a total disability rating based upon individual unemployability, neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a 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 the Veteran can find employment. Van Hoose, ibid. The Veteran meets the rating criteria set forth in 38 C.F.R. § 4.16, as his coronary artery disease is rated as 60 percent disabling and his additional service-connected disabilities bring his combined disability rating to 90 percent. He also receives special monthly compensation benefits. His service-connected disabilities are clearly quite significant. However, the evidence of record shows that he is currently employed. According to his VA medical records, he is working as a police officer with the Department of Defense. The Veteran has not asserted this employment is sheltered or in a protected environment in any way on account of his service-connected disabilities and has made no contentions in support of this claim for TDIU benefits. Because the purpose of the TDIU benefit is to compensate for actual unemployability, meaning actual unemployment, the Veteran’s employment status earning substantially gainful employment precludes a grant of TDIU. The benefit sought is denied. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Heather J. Harter, 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.