Citation Nr: 21023936 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-18 523 DATE: April 21, 2021 ORDER Entitlement to service connection for hypertension, secondary to service-connected posttraumatic stress disorder (PTSD) on a causation basis, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The evidence is evenly balanced as to whether the Veteran's hypertension is a result of his service-connected PTSD. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for hypertension, secondary to PTSD, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1986 to November 1992, and from August 2004 to October 2005, with additional National Guard service. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), which, among other things, denied service connection for hypertension. In December 2013 the Veteran filed a notice of disagreement (NOD) as to his hypertension and in March 2015 the RO issued a statement of the case (SOC). In May 2015 the Veteran filed a substantive appeal (via VA Form 9). In July 2018 and again in August 2020 the Board remanded the Veteran’s claim for additional development. For the reasons stated in the discussion below, the RO did not substantially comply with the remand instructions with regards to the issue of a TDIU. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a),(b). Hypertension A September 2012 VA examiner noted that the Veteran was diagnosed with hypertension in 2001. A March 2014 private treatment note indicates that the Veteran takes medication daily for his hypertension. Thus, the Veteran meets the current disability requirement. The remaining question is whether the Veteran’s service-connected PTSD caused his hypertension. A September 2014 private physician opined it is at least likely as not that the Veteran’s PTSD contributed to or aggravated his hypertension. The private physician explained that studies indicate a direct correlation with hypertension and individuals suffering from PTSD. While the private physician relied on the service history provided by the Veteran, the discounting of a medical opinion that relied on service history provided by the Veteran is only warranted in certain circumstances, none of which are present here. See Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006) (reliance on the service history provided by the veteran only warrants the discounting of a medical opinion in certain circumstances, such as when the opinions are contradicted by other evidence in the record or when the Board rejects the statements of the veteran). Although the private physician’s rationale was not extensive, reading the opinion as a whole and in the context of the evidence of record, it is entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). In October 2014 the Veteran submitted articles from medical doctors in regard to the relationship between hypertension and PTSD. Generally, these articles indicate that hypertension is a risk factor for PTSD and that there is a higher prevalence of hypertension in those with PTSD. Medical article and treatise evidence “can provide important support when combined with an opinion of a medical professional.” Sacks v. West, 11 Vet. App. 314, 317 (1998). Therefore, the medical literature submitted by the Veteran is entitled to significant probative weight. A February 2021 VA examiner opined that the Veteran’s hypertension is less likely than not proximately due to or the result of his PTSD. The VA examiner explained that PTSD and related psychological comorbidities do not cause hypertension which is established medical knowledge and practice supported by standard textbooks. The VA examiner acknowledged that studies have shown an association of PTSD and hypertension but have not established cause. The VA examiner noted that the Veteran is diagnosed with essential hypertension which is not caused by any other condition. Further, the VA examiner opined that the Veteran’s hypertension has not been aggravated beyond its natural progression. The VA examiner explained that stress my temporarily elevate blood pressure but will not cause or aggravate essential hypertension beyond its natural course. The VA examiner noted the Veteran’s blood pressure numbers and stated that the Veteran currently has normal blood pressure on single dose medication. The Board finds this opinion probative as it is clearly stated and supported by a thorough rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board finds the positive nexus opinion and treatise evidence provided by the Veteran to be equal in probative weight to the negative nexus opinion provided by the February 2021 VA examiner. Therefore, the evidence is at least evenly balanced as to whether the Veteran’s hypertension is a result of his service-connected PTSD. Accordingly, service connection for hypertension, secondary to service-connected PTSD, on a causation basis, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310. REASONS FOR REMAND Entitlement to a TDIU due to service-connected disabilities is remanded. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Board took jurisdiction over entitlement to a TDIU in the July 2018 remand as part and parcel of the underlying claim for a higher initial rating for PTSD that was on appeal in that decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (the issue of entitlement to a TDIU is part and parcel of a rating claim when raised by the record). That claim arose from the August 2014 grant of service connection for PTSD and assignment of an initial rating of 30 percent, effective October 25, 2013. Thus, the appeal period for the issue of entitlement to a TDIU on appeal begins October 25, 2013. From October 25, 2013, the Veteran is in receipt of service connection for bilateral pes planus to include plantar fasciitis rated 50 percent, intervertebral disc syndrome rated 40 percent, chondromalacia of the left knee rated 20 percent, flexion of the left knee rated 10 percent, and peripheral neuropathy of the left lower extremity rated 10 percent. Thus, the Veteran has met the percentage requirements under 38 C.F.R. § 4.16(a). While the Veteran is in receipt of a 100 percent rating from July 22, 2019, the Board need not address at this time whether the issue of entitlement to a TDIU is moot from this date. See Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008) (a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU moot, as the TDIU could in certain circumstances render the Veteran eligible for special monthly compensation benefits pursuant to 38 U.S.C. § 1114(s)) The record indicates that the Veteran has shown difficulty in obtaining and maintaining substantially gainful employment. However, a July 2019 treatment note from a private psychiatrist indicates that the Veteran was working at that time. Furthermore, the Veteran was unable to keep his appointment for a VA examination in December 2019 because “he could not get off work to attend the exam.” The Board notes that the Veteran meets the schedular requirements for a TDIU, but there is insufficient evidence to determine whether the Veteran’s service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. While it is clear that the Veteran has been able to secure employment since he has separated from the military, the evidence does not show whether or not it is substantially gainful. The July 2018 remand instructed that the Veteran be provided with notice and an application for TDIU (VA Form 21-8940) to complete and return. In a November 2018 letter the RO completed both of these directives. However, the issue was never adjudicated by the RO in a rating decision or Supplemental Statement of the Case. As a result, due process requirements have not been met and the issue must be remanded. As the RO did not substantially comply with the Board’s March 2018 and August 2020 remand instructions which instructed the AOJ to adjudicate the issue in the first instance, the issue of entitlement to a TDIU must again be remanded to ensure such compliance. See Stegall, 11 Vet. App. 268 (finding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure such compliance). The issue of entitlement to a TDIU should be adjudicated in the first instance by the AOJ, to include appropriate notification. The Veteran should also be given another opportunity to submit a formal application for a TDIU (VA Form 21-8940). The matters are REMANDED for the following action: 1. Send the Veteran a letter that provides him with notice as to the information and evidence that is required to substantiate his claim for a TDIU and ask the Veteran to complete a formal application for a TDIU (VA Form 21-8940) and to report his education and employment history and earnings. 2. After the above development has been completed, adjudicate the issue of entitlement to a TDIU. If any benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a supplemental statement of the case that considers all additional relevant evidence and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.