Citation Nr: 21026199 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 15-12 976 DATE: April 30, 2021 ORDER Entitlement to service connection for hypertension is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) for the periods from July 5, 2013 to October 1, 2013, July 7, 2015 to January 1, 2017, and from January 19, 2017 to March 1, 2017, is dismissed. Entitlement to a TDIU for the periods from March 2, 2010 to July 5,2013, and October 1, 2013 to July 7, 2015, is denied. Entitlement to a TDIU for the period from January 1, 2017 to January 19, 2017, and from March 1, 2017, is granted. FINDINGS OF FACT 1. The Veteran’s hypertension is not etiologically related to service, nor was it proximately caused or aggravated by his service-connected depressive disorder. 2. For the periods from July 5, 2013 to October 1, 2013; July 7, 2015 to January 1, 2017; and from January 19, 2017 to March 1, 2017, the Veteran was in receipt of a 100 percent schedular rating and was assigned special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) rendering the issue of entitlement to a TDIU moot. 3. For the periods from March 2, 2010 to July 5, 2013 and October 1, 2013 to July 7, 2015, the Veteran’s service-connected disabilities did not preclude the Veteran from securing and following gainful employment. 4. For the period from January 1, 2017 to January 19, 2017, and beginning March 1, 2017, the Veteran’s service-connected disabilities precluded the Veteran from securing and following gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. For the periods beginning from July 5, 2013 to October 1, 2013; July 7, 2015 to January 1, 2017; and from January 19, 2017 to March 1, 2017, the claim for a TDIU is moot. 38 C.F.R. § 4.16 (a). 3. For the periods from March 2, 2010 to July 5, 2013, and from October 1, 2013 to July 7, 2015, the criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 4. For the period from January 1, 2017 to January 19, 2017, and beginning on March 1, 2017, the criteria for entitlement to TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from September 1975 to November 1978, and in the United States Navy from April 1980 to August 1989. This matter was previously before the Board in December 2018 wherein the Board remanded issues of service connection for bilateral hearing loss, tinnitus, hypertension, and entitlement to TDIU. The Board notes, however, that a March 2020 rating decision granted service connection for bilateral hearing loss and tinnitus. As this represents a full grant of the benefits sought, these issues are no longer on appeal. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). With regard to the remaining issues, as remand directives have been substantially complied with, the Board will proceed with adjudication of the claims. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for hypertension. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a) (2018). To establish a right to compensation for a present disability, a Veteran must show: (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, the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In addition, secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b). The Veteran contends that service connection is warranted for hypertension. VA treatment records show the Veteran was diagnosed with hypertension in a June 2004 urgent care visit. At that time, the Veteran reported having hypertension for the past seven years. Alternatively, in an August 2010 VA treatment record, the Veteran reported having high blood pressure since 1982. While the Veteran has a current diagnosis for hypertension, the Veteran’s service treatment records (STRs) show no complaints, treatment, findings of elevated blood pressure readings, or a diagnosis for hypertension. Contrary to his report of having hypertension since 1982, STRs show the Veteran denied having high blood pressure in March 1980 and March 1982 Report of Medical History forms. Moreover, a March 1982 reenlistment record showed his blood pressure was 118/88, which does not constitute a diagnosis of hypertension for VA purposes. 38 C.F.R. § 4.104, DC 7101, Note 1. Furthermore, even if the Veteran’s hypertension began subsequently in 1982, his period of service from March 12, 1982 to August 25, 1989 has been determined to constitute dishonorable service and is a bar to the payment of VA benefits for any disabilities arising during this period of service. 38 U.S.C. §§ 101(2), 5303; 38 C.F.R. §§ 3.1(d), 3.12(c) and (d). The Board also notes that in an August 2011 Statement in Support of Claim, the Veteran contended that his hypertension was caused by his service-connected depressive disorder. However, in a March 2020 medical opinion, the examiner found that there is no pathophysiology associated between the Veteran’s hypertension and depression. Given the above, the Board finds that service connection is not warranted. While the record reflects a current diagnosis for hypertension, there is no indication of an in-service incurrence or a nexus relating to this condition to service, nor is there evidence of record to suggest a link between hypertension and the Veteran’s depressive disorder. As such, the Board finds the preponderance of evidence is against the claim and the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, the claim of service connection for hypertension is denied. 2. Entitlement to a TDIU. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58 (2019) the Court clarified that substantially gainful employment contains economic and noneconomic components. The Court provided guidance as to the meaning of a veteran’s ability to “secure and follow” such employment, noting that attention must be given to: the veteran’s occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. Id. at 73. A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must be at least one disability 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). The Veteran is service connected for major depressive disorder, rated as 70 percent from March 2, 2010; status post right knee replacement, rated as 100 percent from July 7, 2015, and 30 percent from January 1, 2017; left ankle sprain, rated as 20 percent from July 29, 2012; left knee strain with instability, rated as 20 percent from July 29, 2012, 100 percent from January 19, 2017 to March 1, 2017, and 20 percent from March 1, 2017; tinnitus, rated as 10 percent from July 31, 2012; right knee osteoarthritis, rated as 10 percent from March 2, 2010, 100 percent from July 5, 2013, and 10 percent from October 1, 2013; and status post right wrist cyst removal and bilateral hearing loss, each rated as noncompensable. The Veteran had a combined evaluation of 70 percent from March 2, 2010, and subsequent combined evaluations of 90 percent and 100 percent. Thus, the Veteran met the schedular criteria for TDIU as of March 2, 2010. The Board notes that the Veteran was in receipt of 100 percent schedular ratings and special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s) and 38 C.F.R. § 3.350 (i) for periods beginning from July 5, 2013 to October 1, 2013, July 7, 2015 to January 1, 2017, and from January 19, 2017 to March 1, 2017. Therefore, as the maximum benefits were granted, TDIU is moot for these periods. However, from March 2, 2010 to July 29, 2012, the Veteran was in receipt of a combined 70 percent rating, and for periods from July 29, 2012 to July 5, 2013, October 1, 2013 to July 7, 2015, January 1, 2017 to January 19, 2017, and beginning March 1, 2017, the Veteran had a combined 90 percent rating. Thus, the Board must determine whether a TDIU is warranted for any these periods. At the outset, the Board notes that the Veteran has provided conflicting evidence as to when he was last employed. For example, in a January 2010 VA treatment record, he reported that his last job was a food and beverage manager at the Embassy Suites three years prior. Additionally, in a July 2013 Statement in Support of Claim, he reported that he has been unable to work since 2007 due to his service-connected right knee. However, in his April 2019 VA Form 21-8940, Application for TDIU, he reported that he was last employed in 2009. The Board also notes that the Veteran submitted a Social Security Administration (SSA) earnings statement that indicates 2009 as being the last year of earnings. However, this statement does not include the Veteran’s name or any other identifying information pertaining to the Veteran. Further, a July 2017 VA treatment record noted the Veteran was retired, while an April 2018 VA treatment record shows the Veteran was employed with child protective services. In an April 2020 written correspondence, the Veteran denied having ever worked for child protective services and reported that he has not had gainful employment since 2007. Despite the conflicting evidence, the Board has reviewed the evidence of record and finds that a TDIU is not warranted for the periods from March 2, 2010 to July 5, 2013, and from October 1, 2013 to July 7, 2015, as there is no evidence that the Veteran’s service-connected disabilities precluded the Veteran from securing and following gainful employment during these periods. However, a TDIU is warranted for period from January 1, 2017 to January 19, 2017, and from March 1, 2017. With regard to periods from March 2, 2010 to July 5, 2013, and from October 1, 2013 to July 7, 2015, VA treatment records show that from 2010 to 2011, the Veteran participated in a substance abuse treatment program and a work development program. At his initial evaluation in January 2010, he reported that he worked until 2007 as a food and beverages manager. He indicated he had a good income, but he had an off the job injury to his leg and shoulder. He further reported that he was on unemployment for one year and then lived off his savings, but he currently had no source of income. An August 2010 treatment note shows the Veteran completed the domiciliary substance abuse program in July 2010, and he was requesting assistance with housing as he was homeless and unemployed. A February 2011 mental health note shows the Veteran was accepted into the employee development program and he would start classes/training and would participate up to six months in the work program. In April 2011, the Veteran met with his coordinator to plan for his discharge. The coordinator noted that the Veteran would continue to work with compensated work therapy (CWT), and he would apply for a job at the VA while working in CWT. During his July 2011 discharge visit, the Veteran reported that he had been re-hired by a previous job and that he was working full time. However, in a July 2011 VASH home visit, the Veteran reported that he stopped his transitional work experience due to pain in his left shoulder. Notably, the Veteran is not service connected for his left shoulder. Additionally, a June 2012 VA treatment record shows the Veteran reported being currently employed by Marriott as an accountant, however, he was on leave from said employer for cancer treatment. In July 2013, the Veteran had right knee surgery; however, there is no evidence that his knee or any other service-connected disabilities precluded the Veteran from securing and following gainful employment. Prior to his surgery, his December 2011 VA examination for his knees showed functional impairment of difficulty standing or walking for long periods during flare-ups. After surgery, an orthopedic note shows that the Veteran was placed on light duty for work for three months, and he was advised to avoid strenuous lifting or running for three months while he recovers. The evidence shows that the Veteran appeared to have fully recovered as a December 2013 treatment note shows he reported staying active by playing racquetball twice a week with his wife. Additionally, in a March 2014 pain clinic consult, the Veteran did not report any problems with his knees, left ankle, or right hand, but he reported exacerbating his right shoulder after playing racquetball. A February 2014 VA treatment record also shows the Veteran went back to school as part of his Vocational Rehabilitation and Employment (VR&E) plan. In a September 2014 mental health visit, he reported maintaining an A minus average at the University of Phoenix, while working 28 to 30 hours per week in Comp and Pen as part of his work study. Subsequent VR&E records show that he successfully completed his bachelor’s degree in September 2018. Based on the above, the Board finds a TDIU is not warranted for the periods from March 2, 2010 to July 5, 2013, and from October 1, 2013 to July 7, 2015. Although the Veteran had periods of unemployment, his service-connected disabilities did not preclude him from obtaining substantial gainful employment during these time frames. As noted above, the Veteran has provided conflicting statements as to his employment history. While he reported that he last worked in 2007 due to his knee, he reported otherwise in his January 2010 psychiatric evaluation and specifically noted that he lost his job when the contract ended. He further reported being on unemployment for one year, living off his savings, and that he became a house dad where he would take care of his wife’s daughter’s child until the marriage ended. In addition, the Veteran was unemployed in 2010 and 2011 due to participating in a substance abuse treatment program, which is unrelated to his service-connected disabilities, and he participated in a work development program that was preparing him for full-time employment. Furthermore, he subsequently enrolled in school, obtained part-time and full-time employment, and successfully completed his bachelor’s degree. Thus, there is no evidence his service-connected disabilities precluded him from securing and following gainful employment for these periods. The Board recognizes a November 2016 letter where the Veteran’s VA physician noted that the Veteran cannot work due to severe pain in his knees, severe back, neck pain, TBI related headaches, and tinnitus. However, the Veteran is not service connected for his back, neck, or headaches; therefore, these disabilities cannot be considered in assessing for TDIU. Moreover, his knees did not prevent employment, but only caused difficulty standing or walking for long periods during flare-ups. Additionally, in a June 2015 private Disability Benefits Questionnaire and assessment (associated with the record in December 2016), the examiner found that the Veteran’s depressive disorder, right knee osteoarthritis, left ankle, right hand and cyst were preventing him from maintaining substantial gainful employment. However, his knee, ankle, and right hand could not have been severely limiting as the Veteran was able to play racquetball with his wife and he reported no problems while working and going to school due to any of these service-connected disabilities. The Board also notes an April 2015 treatment record that shows the Veteran had “somewhat of a depressed mood” concomitant to pain. Similarly, in a subsequent April 2015 mental health visit, the Veteran denied having a depressed mood; he reported that his PTSD symptoms were under control; and he reported having only knee pain. He also reported that he was currently working at WLA [sic] and was taking 12 units in school. Furthermore, at no time was the Veteran found to be unemployable by VR&E due to his service-connected disabilities for the periods beginning March 2, 2010, July 29, 2012, or October 1, 2013. The Board recognizes an October 2019 VR&E closure report which noted the Veteran had significant vocational impairments when he applied for services in October 2013; however, he was not found to be unemployable. Rather, the Veteran was given a training objective to complete a bachelor’s degree in human services, which he successfully completed while also working up to 30 hours a week in a work-study program. Although he was also expected to obtain employment in the field of alcohol drug counseling, an April 2019 VR&E report showed the Veteran would not be able to successfully achieve his vocational goal due to worsening of his service connected and nonservice-connected conditions. Even if the Board considered only the Veteran’s service- connected conditions, the worsening did not occur until 2019. For these reasons, the Board finds the preponderance of evidence is against the claim and the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, the claim for a TDIU for the periods from March 2, 2010 to July 5, 2013, and from October 1, 2013 to July 7, 2015, is denied. Alternatively, for the period from January 1, 2017 to January 19, 2017, and from March 1, 2017, TDIU is granted. As mentioned above, the Veteran’s VA physician found that the Veteran’s service-connected knees and other nonservice-connected disabilities contributed to his inability to work. In addition, an April 2019 VR&E report found that the Veteran was unable to perform any substantial gainful activity due to worsening effects of the Veteran’s service connected and nonservice-connected disabilities. Further, a private examiner found that the Veteran’s depressive disorder, right knee osteoarthritis, left ankle, right hand and cyst were preventing him from maintaining substantial gainful employment. Although findings show that the Veteran’s nonservice-connected disabilities contribute to his inability to maintain substantial gainful employment, the June 2015 private examiner found that only his service-connected disabilities preclude employment. As such, the Board finds the evidence is in equipoise and resolves all doubt in favor of the Veteran. Thus, TDIU is warranted for the period from January 1, 2017 to January 19, 2017, and beginning on March 1, 2017. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, 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.