Citation Nr: 21030401 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-24 958 DATE: May 18, 2021 ORDER New and material evidence having not been received, the application to reopen the claim of service connection for hypertension is denied. Service connection for a chronic respiratory disorder is denied. Service connection for a gastrointestinal (GI) disorder is denied. Service connection for obstructive sleep apnea (OSA) is denied. A total disability based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran had active duty from March 1966 to December 1969. 2. Service connection for hypertension was denied in 2013; the Veteran's appeal was not timely and the decision became final. The evidence submitted since the last final denial in 2013 does not relate to an unestablished fact necessary to substantiate the claim. 3. A chronic respiratory disorder, diagnosed as asthma, emphysema, and pleural plaques in 2008, bronchitis in 2011, and chronic obstructive pulmonary disorder (COPD) was not shown in service, to include as a result of in-service asbestos and Agent Orange (AO) exposure, is not causally or etiologically related to service, and is not medically associated with a service-connected disability. 4. A GI disorder, diagnosed as gastroesophageal reflux disease (GERD), was not shown in service, is not causally or etiologically related to service, to include as a result of AO exposure, and is not medically associated with a service-connected disability. 5. OSA was not shown in service, is not causally or etiologically related to service, to include as a result of AO exposure, and is not medically associated with a service-connected disability. 6. The Veteran's service connected disabilities have rendered him unable to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The 2013 rating decision, which denied service connection for hypertension, is final. 38 C.F.R. § 7105 (2012); 38 C.F.R. § 20.1103 (2020). 2. New and material evidence has not been received to reopen the claim for service connection for hypertension. 38 U.S.C. §§ 1110, 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). 3. A chronic respiratory disorder was not incurred in service and is not secondary to a service connected disability. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2020). 4. A GI disorder was not incurred in service and is not secondary to a service connected disability. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303, 3.310 (2020). 5. OSA was not incurred in service and is not secondary to a service connected disability. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303, 3.310 (2020). 6. The criteria for a TDIU have been met. 38 U.S.C. §§ 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence to Reopen Hypertension Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision.38U.S.C. §5108; 38C.F.R. §3.156. "New" evidence means evidence "not previously submitted to agency decisionmakers." "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." 38 C.F.R. § 3.156(a). In order to be considered "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). In January 2013, the Regional Office (RO) denied a claim of service connection for hypertension due to the absence of a nexus between the current disorder and an in-service incurrence. The evidence at the time included service treatment records (STRs), lay statements, and clinical records. While the Veteran appealed this decision, it was not timely, and that decision became final. The evidence received since the prior final denial consists of clinical records, lay statements, and scholarly articles. While the clinical records showed treatment for hypertension, they did not show that it began in service. Further, the articles submitted pertained to the other claims on appeal and not hypertension. As to the Veteran's lay statements, these statements essentially duplicated his contentions all along. As the RO had previously considered the nature of his contentions, this evidence is not "new" as required under the applicable regulatory and statutory provisions. In sum, the evidence does not show that hypertension began in service. Therefore, the application to reopen the claim for service connection is denied. Service Connection Claims Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Chronic Respiratory Disorder In addition to the above regulations, service connection may be granted for a condition diagnosed after military discharge provided evidence establishes that the condition was caused by service. Service connection may be granted on this basis for a disability related to asbestos exposure during service if evidence demonstrates that the veteran was actually exposed in service and that a disease usually associated with such exposure resulted. As an initial matter, the Veteran contends that a chronic respiratory disorder was incurred as a result of AO exposure in Vietnam; however, as a chronic respiratory disorder is not listed under 38 C.F.R. § 3.309(e) as a disorder that is presumed to have been incurred as a result of AO exposure. Therefore, service connection is not warranted on this basis. Further, the Veteran contends that a chronic respiratory disorder was caused or aggravated by service connected posttraumatic stress disorder (PTSD). Therefore, both direct and secondary service connection will be addressed. Turning first to direct service connection, the Veteran was diagnosed with asthma, emphysema, and pleural plaques in 2008, bronchitis in 2011, and COPD in 2016. Therefore, a current disorder is shown, and the first element of direct service connection is met. As to an in-service incurrence, in the February 1966 enlistment examination, the Veteran marked a history of childhood asthma; however, the examiner marked that the Veteran did not have respiratory issues at enlistment. Therefore, a respiratory disorder did not pre-existed service and he was presumed sound at enlistment. Further, in a February 2015 statement, the Veteran contended that he developed a chronic respiratory disorder in service after his ship collided with another and part of it sank. However, STRs are absent of complaints, diagnoses, or treatment for a respiratory disorder. Specifically, he sought treatment for burns and a right knee injury but did not report a respiratory disorder or symptoms of a respiratory disorder. Nevertheless, he asserts that he was exposed to asbestos while serving as a machinist's mate and working in the engine room of a ship. As there is no evidence to contradict his statements, in-service asbestos exposure is conceded for purposes of this decision. As to nexus, in an April 2013 VA examination, the Veteran complained of wheezing and shortness of breath. Upon examination, the examiner opined that a respiratory disorder was less likely than not incurred in service. She reasoned that the Veteran had a history of smoking, which put him at high risk of COPD. Further, the examiner acknowledged that if the chest X-ray was abnormal with pleural plaques and calcification, he could have developed COPD as a result of asbestos exposure; however, she noted that his chest X-ray was normal. Therefore, she concluded that it was less likely than not that a chronic respiratory disorder was incurred in service. This evidence weighs against the claim. Further, in a February 2020 VA examination, the examiner opined that a respiratory disorder was less likely than not incurred in service. The examiner reasoned that the Veteran had an extensive smoking history which was most likely the cause of COPD. This evidence weighs against the claim. On the other hand, in a June 2020, clinical record, the clinician opined that a chronic respiratory disorder was at least as likely as not incurred in service. He reasoned that servicemembers who worked on ships were at risk of asbestos exposure. As the Veteran was a machinist's mate and worked in the engine rooms, the clinician opined that it was "highly probable" that he was exposed to asbestos. This evidence weighs in support of the claim. In a September 2020 VA opinion, the clinician opined that a chronic respiratory disorder was less likely than not incurred in service. He reasoned that STRs were absent of complaints, diagnoses, or treatment for a respiratory disorder and that clinical records did not reveal continuous ongoing medical treatment or aggravation of acute or chronic respiratory condition from time of discharge to present. Further, he noted that the Veteran's 27 year history of smoking was a significant risk factor for developing COPD. This evidence weighs against the claim. The Board has the responsibility of weighing conflicting medical opinions and may place greater weight on one physician's opinion over another depending upon factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. Therefore, the Board finds the opinions to be of great probative value. While the June 2020 clinician indicated that he reviewed the claims file, he rendered a general opinion based off the Veteran's military occupational specialty. He did not address the rationales provided in the VA examinations and VA opinions. Moreover, the June 2020 clinician did not address the finding of a normal chest X-ray conducted in 2013 and acknowledged that the Veteran's history of smoking could have played a role in the development of a chronic respiratory disorder. Based on the above, the medical evidence weighs against a finding that a chronic respiratory disorder was incurred in service. Therefore, the medical evidence does not support the claim of direct service connection. As to secondary service connection, the Veteran has been diagnosed with asthma, emphysema, pleural plaques, bronchitis, and COPD and is service connected for PTSD. Therefore, the first two elements of secondary service connection, a current disorder, and a service connected disability, are met. As to nexus, in a September 2020 VA opinion, the clinician opined that a chronic respiratory disorder was not caused or aggravated by service connected PTSD. He reasoned that PTSD medications did not cause COPD. Rather, the Veteran's 27 year history of smoking was a significant risk factor for developing COPD. There is no contradictory medical opinion. Thus, the medical evidence does not support service connection on a secondary basis. GI Disorder As an initial matter, the Veteran contends that a GI disorder was incurred as a result of AO exposure in Vietnam. However, as a chronic GI disorder is not listed under 38 C.F.R. § 3.309(e) as a disorder that is presumed to have been incurred as a result of AO exposure, service connection on a presumptive AO exposure basis is not warranted. Further, he contends that a chronic GI disorder was caused or aggravated by service connected PTSD. Therefore, both direct and secondary service connection will be addressed. Turning first to direct service connection, the Veteran was diagnosed with GERD in 2001. Therefore, a current disorder is shown, and the first element of direct service connection is met. As to an in-service incurrence, in the February 1966 enlistment examination, the Veteran marked a history of stomach trouble; however, the examiner marked that the Veteran did not have GI issues at enlistment. Therefore, a GI disorder did not pre-existed service and he was presumed sound at enlistment. Further, in a February 2015 statement, the Veteran reported incurring GI issues as a result of his ship colliding with another and sinking; however, STRs are absent of complaints, diagnoses, or treatment for a GI disorder. Specifically, he sought treatment for burns and a right knee injury but did not report a GI disorder or symptoms of a GI disorder. Therefore, the second element of direct service connection is not met, and the medical evidence does not support the claim of direct service connection. As to secondary service connection, the Veteran has been diagnosed with GERD and is service connected for PTSD. Therefore, the first two element of secondary service connection, a current disorder and a service connected disability, are met. As to nexus, in an April 2013 VA examination, the Veteran reported GI issues beginning in 2002. Upon examination, the examiner opined that a GI disorder was not related to PTSD. She explained that the Veteran was prescribed Venlafaxine (Effexor) for PTSD and Prazosin (Minipress) for sleep disturbance, she noted that on interview, he denied any side effects of both medications and did not relate his GI disorder to PTSD. This evidence weighs against the claim. Further, in a February 2020 VA examination, the Veteran complained of heartburn beginning in the 1970s. Upon examination, the examiner opined that a GI disorder was not caused by service connected PTSD. The examiner reasoned that there was no evidence that a GI disorder was exacerbated by PTSD. Rather, the Veteran had been prescribed medicine for a GI disorder and reported that his response was "mostly good." This evidence weighs against the claim. Based on the above, the medical evidence does not support that a GI disorder was caused or aggravated by service connected PTSD. Therefore, the medical evidence does not support the claim of secondary service connection. In sum, the medical evidence does not support that a GI disorder was incurred in service and/or was caused or aggravated by a service connected disability. OSA As an initial matter, the Veteran contends that he incurred OSA as a result of AO exposure in Vietnam. However, as OSA is not listed under 38 C.F.R. § 3.309(e) as a disorder that is presumed to have been incurred as a result of AO exposure, service connection on this basis is not warranted. Further, the Veteran contends that OSA was caused or aggravated by service connected PTSD. Therefore, both direct and secondary service connection will be addressed. Turning first to direct service connection, the Veteran was diagnosed with OSA in 2014. Therefore, a current disorder is shown, and the first element of direct service connection is met. As to an in-service incurrence, STRs are absent of complaints, diagnoses, or treatment for OSA. Specifically, the Veteran sought treatment for burns and a right knee injury but did not report OSA or symptoms reasonably associated with OSA. Therefore, the second element of direct service connection is not met, and the medical evidence does not support the claim of direct service connection. As to secondary service connection, the Veteran has been diagnosed with OSA and is service connected for PTSD. Therefore, the first two element of secondary service connection, a current disorder and a service connected disability, are met. As to nexus, in a July 2018 clinical record, the clinician opined that OSA was caused or aggravated by service connected PTSD. She reasoned that research showed that OSA was commonly "associated" with psychiatric disorders. Further, the Veteran submitted a research study showing that the prevalence for "comorbid" psychiatric conditions was higher in individuals with OSA than those who did not have OSA. On the other hand, a September 2020 VA examiner opined that OSA was not caused or aggravated by service connected PTSD. The examiner explained that OSA was caused by the narrowing of structures located in the back of the throat and not PTSD. The Board has the responsibility of weighing conflicting medical opinions and may place greater weight on one physician's opinion over another depending upon factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. In this case, the Board affords more probative weight to the September 2020 VA examination. Specifically, the VA examiner explained the etiology of OSA. Further, the July 2018 clinician and the research study described a co-morbid relationship, which is not the same as causation. Therefore, the medical evidence weighs in favor of a finding that OSA was not caused or aggravated by service connected PTSD. In sum, the medical evidence does not support the claims that OSA was incurred in service and/or was caused or aggravated by a service connected disability. The Board has considered the Veteran's lay statements that these disorders began in service and/or are related to a service connected disability. He is competent to report symptoms because this requires only personal knowledge, as it comes to him through his senses; however, he is not competent to offer an opinion as to the etiologies of his current disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the medical personnel who have examined the Veteran during his current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to the lay statements that have been submitted. Therefore, the appeals are denied. TDIU The issue of entitlement to TDIU has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The record reflects that the Veteran is service connected for PTSD at 70 percent, headaches at 50 percent, a right knee disability at 10 percent, tinnitus at 10 percent, burns of the left forehead, left cheek, and nose at 0 percent, hearing loss at 0 percent, scars on the right and left forearms at 0 percent, and a left knee scar at 0 percent. Since August 17, 2015, the combined rating has been 80 percent and meets the schedular criteria for TDIU. The Veteran's highest level of education is two years of college and he last worked in 2014 as an insurance agent. Turning to the evidence, as to PTSD, in a May 2018 private opinion, the clinician opined that the Veteran could not sustain stress from a competitive work environment, be expected to engage, or adequately function in gainful work activity due to PTSD. Specifically, she stated that he had problems with recurrent intrusive thoughts, flashbacks, and hypervigilance, which interfered with the ability to adequately perform work tasks. Further, the clinician explained that the Veteran was easily startled by people and noises and that focusing on irrelevant stimuli would take him longer to complete duties and responsibilities. She also noted that he would have difficulty concentrating and following directions. In addition, the clinician explained that PTSD would cause the Veteran to be emotionally reactive, have a negative attitude, be late for work, and fail to meet deadlines. She also stated that chronic sleep impairment caused by PTSD would cause him to be irritable, tired, and have difficulty concentrating. As to the Veteran's impaired impulse control, the clinician opined that it would cause him to act out and act inappropriately. Further, she noted that impaired memory and concentration due to PTSD would cause him to lose train of thought, have difficulty multitasking, and forget to complete tasks. The clinician also opined that the Veteran would likely be isolative, avoidant, and defensive. He would have increased panic attacks, fail to ask questions about more complex tasks, be suspicious of people, and have difficulty handling criticism. Further, she explained that his difficulty to adapt to stressful situations would cause him to experience anxiety, outbursts, fatigue, be overwhelmed with the workload, and have difficulty meeting deadlines. Further, in a May 2020 statement, the Veteran reported difficulties with memory and concentration as well as insomnia. In addition, in a June 2020 statement, the Veteran's wife explained that she worked with him at the insurance agency. She stated that he could not concentrate or interact with customers and that his thought processes, focus, and ability to cope with stress and pressure declined. As to hearing loss and tinnitus, in a June 2020 statement, the Veteran's wife explained that he could no longer hear people on the telephone and that she had to take messages for him. She also stated that tinnitus worsened his ability to concentrate and made him forgetful. As to the right knee disability, in a May 2020 statement, the Veteran explained that he could not sit for long periods of time or travel to see customers due to the right knee disability. Further, in a June 2020 statement, his wife stated that the right knee disability affected his ability to travel as well as sit for long periods of time. She also explained that the pain made it hard for him to concentrate. In addition, in a June 2020 clinical record, the clinician stated that the Veteran would be unable to stand or walk for more than 30 minutes due to knee pain. He also would be unable to sit for more than 45 minutes and would not be able to carry more than 15 pounds. The clinician also explained that the Veteran would be required to miss work or leave early three or more days per week due to the pain and limitations and that he would need more than one additional break per day aside from the normal work breaks so that he could rest. As to headaches, in a July 2018 clinical record, the clinician opined that the Veteran would miss two or more days of work a month due to headaches. Further, in a September 2020 VA examination, the examiner opined that headaches impacted the Veteran's ability to work. Specifically, the examiner opined that the Veteran must remain in a quiet and dark environment until headache symptoms subsided and would unable to perform all activities during this time, which may last up to 48 hours. The examiner also noted that the Veteran reported leaving work early and being unable to work due to headaches. Based on the above, the evidence supports a finding that the Veteran's service connected disabilities rendered him unable to obtain or maintain substantially gainful employment. Specifically, the service connected disabilities rendered him unable to sit or stand for long periods of time and affected his ability to hear on the phone, remember information, concentrate, sleep, and adequately perform tasks at work without difficulty, among others. In sum, the medical evidence of record supports a finding that the Veteran's service connected disabilities rendered him unable to obtain or maintain substantially gainful employment since August 17, 2015. As such, the appeal is granted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ragofsky, Attorney Advisor 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.