Citation Nr: 21030692 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-64 353 DATE: May 19, 2021 ORDER Service connection for hypertension is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran served on active duty from June 1968 to June 1970, to include service in the Republic of Vietnam. 2. Hypertension was not shown in service, was not shown to a compensable degree within one year of service, symptoms were not continuous since service, and hypertension was not caused or permanently worsened in severity by a service-connected disability. 3. The Veteran's service-connected disabilities do not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Hypertension was not incurred in service, is not presumed to have been incurred in service, and is not proximately due to, aggravated by, or the result of a service connected disability. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.30, 3.307, 3.309, 3.310 (2020). 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1110, 1131, 1521, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In April 2019, the Board remanded the appeal for additional development. It has now been returned for further appellate action. Service Connection for Hypertension Turning to the relevant laws and regulations, 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). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may also be granted on a presumptive basis for diseases associated with herbicide exposure under 38 C.F.R. § 3.309 if a veteran served in the Republic of Vietnam between January 1962 and May 1975. 38 C.F.R. § 3.307(a)(6). Notwithstanding the foregoing provisions regarding presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As to direct service connection, the medical records reveal that the Veteran has been diagnosed with hypertension since at least 2006. As such, a current diagnosis has been shown and the first element of service connection is met. As to an in-service incurrence, service treatment records (STRs) are silent for complaint, treatment, or diagnosis of hypertension. The May 1970 separation examination reflected a blood pressure reading of 139/88, which is not considered hypertension for VA compensation purposes. The Veteran also denied any high or low blood pressure readings at his separation examination. Thus, the second element of direct service connection is not met, and the medical evidence does not support direct service connection. To the extent that the Veteran asserts a medical nexus between hypertension and service, the medical evidence does not support the claim as no medical professional has established a causal relationship (medical nexus) between service and hypertension. Therefore, the medical evidence does not support service connection based on nexus. As to secondary service connection, the Veteran's main contention is that hypertension was caused, or aggravated by, service-connected diabetes. Alternatively, he suggests it was caused or aggravated by service-connected prostate cancer. In this respect, multiple medical opinions have been obtained and weigh against the claim. Specifically, an August 2016 VA examiner opined that hypertension was less likely than not caused or aggravated by the Veteran's service connected disabilities. The examiner examined the Veteran and reviewed the record and reasoned that the Veteran had already been diagnosed with hypertension when he was seen at the VA for the first time in 2009 and that he was not diagnosed with diabetes until 2012. A reasonable reading of the opinion is that diabetes did not cause hypertension as hypertension was diagnosed three years before the onset of diabetes. A November 2019 VA examiner also opined it was less likely than not that hypertension was proximately caused by or aggravated by the Veteran's service-connected disabilities. The examiner reasoned that in November 2006 private treatment notes revealed that the Veteran was there to establish care with a slightly abnormal blood pressure reading. The examiner noted that the Veteran had a diagnosis of hypertension from 2006 and was not diagnosed with prostate cancer until 2009, some three years later. As above, this evidence indicates that hypertension was diagnosed before prostate cancer so there could be no causal relationship. As to aggravation, the examiner also noted that the Veteran's blood pressure had been stable since he first started using the VA to treat it in 2009, thus showing no evidence of aggravation. The examiner referred to a treatment note showing that the Veteran's PSA had risen from 4.2 to 9.5 when he was referred to a non-VA provider for prostate surgery, resulting in a radical prostatectomy in July 2009. The examiner reasoned that the Veteran had already been diagnosed with hypertension when seen at the VA for the first time in 2009 and continued to receive medications for his hypertension from another provider. It continued to be about the same, rating at 110/60 and 118/71. The examiner opined that this showed his hypertension was not aggravated by prostate cancer. Based on the above, the medical evidence does not support service connection on a secondary basis as hypertension was neither caused by nor aggravated by service connected disabilities. Next, as to presumptive service connection under 38 C.F.R. § 3.309, no chronic disease or injury was shown in service. As noted above, STRs are silent for complaints of, treatment for, or a diagnosis of hypertension; therefore, the medical evidence does not support presumptive service connection on a "chronic disease or injury shown in service" basis. Next, the medical evidence does not support presumptive service connection based on continuity of symptomatology since service. Specifically, the medical evidence shows that the Veteran was first diagnosed with hypertension, at the earliest, in 2006. As he separated from service in 1970, the medical evidence shows that symptoms of his current disability developed over 30 years after service. As such, the medical evidence does not support service connection on a "continuity of symptomatology" basis. Further, the disorder did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. As stated, the Veteran separated from service in 1970 but treatment notes did not note symptoms until 2006. This evidence does not support presumptive service connection on a "manifest within one-year from separation" basis. Therefore, the medical evidence does not support presumptive service connection on any basis. Next, to the extent that the Veteran asserts that hypertension is due to herbicide exposure, hypertension is not on the list of diseases presumed to be associated with herbicide exposure. Moreover, he has not submitted any evidence in support of this contention on a direct causation basis. Therefore, the evidence does not support the claim based on herbicide exposure or under Combee. As to the medical evidence, the Board finds that the examinations were adequate for evaluation purposes. Specifically, the examiners reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the examiners were not fully aware of the Veteran's past medical history or any relevant fact was misstated. Moreover, the examiners have the requisite medical expertise to render a medical opinion regarding the etiology of the disorder and had sufficient facts and data on which to base the conclusion. Further, there is no contradicting medical evidence of record for any theory of entitlement. Therefore, the Board finds the examiners' opinions to be of great probative value. The Board has considered the Veteran's lay statements that hypertension was caused by service. 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 etiology of his current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. TDIU 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 Veteran claims that he is unemployable due to service-connected disabilities. He is service connected for adenocarcinoma of the prostate at 60 percent, diabetes mellitus at 20 percent, and tinnitus at 10 percent. The total combined rating is 70 percent and he met the requirements of 38 C.F.R. § 4.16(a). Turning to the evidence, the Veteran reported completing high school without further education. He also stated that he worked as a machine operator from June 1983 to April 2010 when he could no longer complete his job duties due to his disabilities. A statement from his former employer showed that he worked from May 1975 to January 2011 as a laborer. His employer also stated that he had a normal retirement, and that he had no concessions made due to age or disability. Social Security Administration (SSA) records revealed that prostate cancer and knee disabilities contributed to his unemployment; however, notably, at that time the Veteran's prostate cancer was not in remission as it was throughout the pendency of this appeal period. At an August 2016 VA prostate examination, prostate cancer was noted to be in full remission. There were no residuals noted, and the examiner opined that his prostate cancer in remission did not impact his ability to work. At an August 2016 VA diabetes examination, the examiner noted that diabetes was well controlled, did not require regulation of activities, and required visits to the Veteran's diabetic care provider less than two times per month. There were no reported episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations in the preceding twelve months. There was no loss of strength or weight, no complications, and no residual conditions. The examiner opined that the Veteran's service-connected diabetes did not impact his ability to work. Importantly, the Veteran has not asserted, and the evidence has not shown, that his service-connected tinnitus contributed to his unemployability. Instead, the evidence continues to show that the Veteran worked until he had a normal retirement which was not due to any disability. It is undisputed that during the appeal period, the Veteran was retired, and from the evidence it would appear that the very latest he stopped working in early 2011. As for education, he indicated in February 2012 VA medical records that he retired from work without providing any disabilities as a reason. The VA and private treatment records reflect that the Veteran was out of work for a short period of time in treating prostate cancer; however, he repeatedly reiterated to providers that he intended to return following his treatment and he did in fact return to work. Prostate cancer has also remained in remission. Based on the above, the medical evidence does not support a finding that the Veteran's service connected disabilities resulted in unemployability. The Board has considered the lay statements and testimony of the Veteran regarding his capacity to work throughout the entire period on appeal. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of symptomatology sufficient to satisfy the requirements of 38 C.F.R. § 4.16(a). Such competent evidence concerning the nature and extent of the Veteran's employability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which his employability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the impact of the Veteran's service-connected disabilities on his capacity to work and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective evidence of unemployability, and the appeal is denied. 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 M. Yacoub, 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.