Citation Nr: 21032685 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-39 887 DATE: May 27, 2021 ORDER Entitlement to service connection for hypertension is granted. Entitlement to service connection for an acquired psychiatric disorder, to include Major Depressive Disorder (MDD), is granted. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed as moot. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his hypertension is related to his presumed exposure to herbicide agents as a result of his service in the Republic of Vietnam. 2. Resolving reasonable doubt in the Veteran's favor, his MDD is proximately due to or aggravated beyond its natural progression by his service-connected diabetes mellitus type II. 3. Given the award of service connection for non-ischemic cardiomyopathy status post pacemaker with an evaluation of 100 percent effective January 25, 2016, there is no remaining case or controversy with regarding to the issue of entitlement to a TDIU. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for an acquired psychiatric disorder, have been met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The appeal as to the issue of entitlement to a TDIU is dismissed as moot. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.104. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from January 1968 to December 1970, to include service in the Republic of Vietnam, with subsequent service in the Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal of April 2013, June 2014, and June 2016 rating decisions. The Veteran was scheduled for a Board hearing in August 2019 to address the issues of entitlement to service connection for hypertension and MDD on appeal. The Veteran canceled his request for a hearing in June 2019. There are no additional requests for a hearing of record. As such, the Board considers the Veteran's request for a hearing withdrawn. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). A disability may be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. 1. Entitlement to service connection for hypertension. The Veteran has generally contended that his currently diagnosed hypertension is related to his service. He also claims that his hypertension is secondary to his service-connected diabetes mellitus. As will be explained, after resolving all reasonable doubt in the Veteran's favor, the Board concludes that the Veteran's is related to his presumed exposure to herbicide agents while serving in the Republic of Vietnam. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The record reflects that the Veteran was diagnosed with hypertension in 2000-2002. See January 2014 VA examination report. Initially, the Board notes that the Veteran's service personnel records confirm that he served in the Republic of Vietnam from April 1969 to April 1970; thus, he is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. In addition to the general requirements for service connection, if a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases listed in 38 C.F.R. § 3.309(e) shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The Board notes that hypertension is not listed as a disease presumptively associated with exposure to herbicide agents. See 38 C.F.R. § 3.309(e). As such, service connection for hypertension cannot be presumed. Notwithstanding the inapplicability of the presumption, the United States Court of Appeals for the Federal Circuit has held that a claimant is not precluded from establishing service connection for a disease claimed to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The Veteran was afforded a VA hypertension examination in January 2014. As a result of the examination, the VA examiner opined that the Veteran's essential hypertension is not caused by or a result of his service-connected type 2 diabetes mellitus. The examiner explained that a review of current medical literature is silent for any mechanism by which diabetes can cause or aggravate hypertension except through renal dysfunction. They further explained that the first indication of early kidney dysfunction per laboratory values is not noted until 2010, approximately a decade after the Veteran's diagnosis of essential hypertension; therefore, his hypertension is categorized as essential hypertension. They concluded that this Veteran's hypertension is a stand-alone process, neither due to nor aggravated by his diabetes mellitus. See January 2014 VA examination report. The record also includes an opinion offered in August 2019 by T.R.C., MD., that it is at least as likely as not that the Veteran's hypertension is related to his military service. Dr. T.R.C. noted that the Veteran had a current diagnosis of hypertension and that he was first diagnosed with this condition around 2000. She noted that her review was based upon review of the Veteran's claims file, including his medical and service records dating from 1968 to the present. She explained that the current medical research supports a causal relationship between the chemicals used in Agent Orange and the subsequent development of hypertension in exposed populations. She referenced the Veterans and Agent Orange Update 11, published in 2018, and noted that it included the best summary of the available data. She further noted that the publication stated that "the information now assembled constitutes sufficient evidence of an association between exposure to at least one of the chemicals of interest and hypertension." She noted that the update relied, in part, on newly-published studies of Vietnam-era veterans which found that the risk of hypertension was highest in those with the greatest potential exposure to the chemicals. Dr. T.R.C. acknowledged the opinion of the January 2014 VA examiner that the Veteran's hypertension was not secondary to his service-connected diabetes mellitus type II and stated that she was in agreement with this opinion. However, she also noted that the VA examiner had not offered an opinion regarding whether the Veteran's hypertension was secondary to his Agent Orange exposure, and noted that, at the time of the January 2014 examination, the weight of the medical evidence supporting a causal connection between hypertension and exposure to Agent Orange had not yet been published. In conclusion, she stated that, given that the Veteran was exposed to Agent Orange and that Agent Orange exposure has now been shown to be associated with an increased risk of developing hypertension, it was her opinion that it is at least as likely as not that the Veteran's hypertension is related to his military service. See August 2019 Independent Medical Opinion. The Board finds that the August 2019 opinion is the most probative evidence of record, as it reflects consideration of all pertinent evidence of record, including the current medical studies. Furthermore, as the August 2019 opinion supports the award of service connection on a direct basis, the substance of the opinion addressing whether his hypertension is secondary to his service-connected diabetes mellitus need not be further discussed. In summation, based on the August 2019 opinion, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current hypertension is related to his presumed exposure to herbicide agents while serving in the Republic of Vietnam. After resolving all doubt in favor of the Veteran, the Board finds that service connection for hypertension is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for an acquired psychiatric disorder, to include MDD, to include as secondary to service-connected diabetes mellitus type II. The Veteran contends that he developed depression as a result of his diabetes mellitus type II. See June 2012 VA Form 21-4138. The record reflects that the Veteran has been diagnosed with MDD. See July 2013 and November 2015 VA treatment notes. Additionally, the Veteran is service connected for diabetes mellitus type II. As such, the question remaining is whether there is a nexus between his current disability and service-connected disability. The Veteran was afforded a VA Mental Disorders examination in March 2013. During the examination, the VA examiner noted that the Veteran had been diagnosed with Mood Disorder, NOS, and Depressive Disorder, NOS, in 2008. As a result of the examination, the VA examiner opined that the Veteran's Depressive Disorder NOS is not at least as likely as not (50 percent or greater probability) proximately due to or the result of diabetes mellitus, and that it was not aggravated by the Veteran's service-connected diabetes mellitus either. Instead, the examiner attributed the Veteran's depressive symptoms and onset to his lengthy stressful career as an air traffic controller, his adjustment to retirement, and current problematic family circumstances that are longstanding. See March 2013 VA examination report. The record also includes statements provided by the Veteran's friends D.C. and F.B. and his wife in December 2012 in support of the Veteran's claim. In D.C.'s statement, they noted that the Veteran's demeanor, composure, and personality have diminished considerably, and his agitation and depression seemed worse in recent years. In F.B.'s statement, they noted that they had known the Veteran for 40 years, they had noticed a chance in his personality with him "deteriorating into a lesser person," and that he laughed less, had difficulty concentrating and decreased motivation, isolated himself, and suffered from stress, anxiety, and depression. In the Veteran's wife's statement, she noted that he was a most personable and positive person, but his demeanor slowed changed as he became fatigued easily; he is frustrated, impatient, angry, and pessimistic; and his sleep pattern is affected and he sleeps far less than he should. See December 2012 Statements. The record also includes an opinion offered by J.P, Psy.D., in August 2019. Dr. J.P. noted that she had reviewed and analyzed the Veteran's claims folder, service records, Veteran's statements, C-files, and various treatment records, and that, based on this review and her education, training, and experience as a clinical psychologist. She opined that, given the records showing an onset of mental health symptoms as the result of the Veteran's aforementioned service-connected conditions, the statements and medical records indicating the severity and chronicity of his psychological symptoms until the present, and the lack of any indication that the Veteran had a mental health disorder prior to joining the military, the evidence in the record indicates that it is at least as likely as not that the Veteran's depression is secondary to his service-connected disabilities. Dr. J.P. noted that she was of the opinion that the March 2013 VA examiner's conclusion was inappropriate and inaccurate, and that the Veteran and several other individuals had explicitly explained drastic negative differences in him following his service. She noted that it was clear that the Veteran's symptoms, as a result of his service-acquired diabetes and ED, had altered the lifestyle to which the Veteran was previously accustomed. Dr. J.P. also cited several articles addressing the relationship between depression and chronic illness as well as between mental illness and military service. While the VA medical nexus opinion of record does not link the Veteran's current psychiatric disorder to his service-connected diabetes mellitus type II, the opinion is conclusory. In contrast, the Board finds the August 2019 opinion probative, as it supported by a thorough rationale, including details of the Veteran's relevant medical history, consideration of the Veteran's statements as well as those of his friends and wife, and medical literature addressing the pertinent issues. After considering the record as a whole, including the statement offered by Dr. J.P. linking the Veteran's current psychiatric disorder to his service-connected disability, as well as the statements of his wife and friends regarding his ongoing symptoms, the Board finds the evidence of record to be at the very least in equipoise as to whether the Veteran's psychiatric disorder is proximately due to or the result of his service-connected disability. Resolving all doubt in the Veteran's favor, entitlement to service connection for an acquired psychiatric disorder, to include MDD, is granted. Entitlement to a TDIU A TDIU may be assigned, where the schedular 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, this disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated 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). Even if a Veteran does not have sufficient ratings to satisfy these threshold minimum requirements of § 4.16(a) for consideration of a TDIU, he or she may establish entitlement to this benefit on an extraschedular basis under the provisions of § 4.16(b) if it is shown he or she is indeed unemployable because of service-connected disability or disabilities. Importantly, the Veteran's application for a TDIU (VA Form 21-8940) was received by VA on March 17, 2016. At the time of submission, there was a prior claim for increase pending review by the Board that had been filed in November 2007. As such, the TDIU claim is part and parcel of the prior pending claim under Rice v. Shinseki, 22 Vet. App. 447 (2009), and the date of claim must be recognized as November 8, 2007. Therefore, this adjudication includes an assessment as to whether a TDIU may be awarded from the date of claim. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall 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). Here, the Veteran has been entitled to service connection for diabetes mellitus type II with a 20 percent disability rating at all times since the service connection was awarded effective July 21, 2004. The Veteran was service-connected solely for diabetes mellitus type II until his subsequent award for service connection for non-ischemic cardiomyopathy status post pacemaker, with an evaluation of 100 percent, effective January 25, 2016. As the record currently stands, the percentage ratings for his service-connected disability do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) at any time during the period prior to January 25, 2016. That stated, under 38 C.F.R. § 4.16(b), where a veteran is unable to work by reason of service-connected disabilities, but he or she does not meet the schedular eligibility criteria under 38 C.F.R. § 4.16(a), the case should be referred to the Director of Compensation Services for extraschedular consideration. Here, the evidence of record fails to show that the Veteran is unemployable due to his service-connected diabetes mellitus type II; as a result of his January 2013 and May 2016 VA Diabetes Mellitus examinations, the VA examiners noted that the Veteran's diabetes mellitus did not impact his ability to work. See January 2013 and May 2016 VA examination reports. Accordingly, there exists no basis for the Veteran's case to be submitted for extraschedular consideration. Beginning January 25, 2016, the Veteran became service-connected with the 100 percent rating awarded for non-ischemic cardiomyopathy status post pacemaker. A TDIU is considered a lesser benefit than the 100 percent rating, and the award of a 100 percent rating generally renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. An exception to this is a separate award at the housebound rate or a TDIU predicated on a single disability (perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or greater may warrant payment of special monthly compensation (SMC) under 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280 (2008). In this case, the Veteran is not seeking SMC at the housebound rate, and the record does not otherwise reasonably raise that matter. Further, the Veteran is not in receipt of service connection for disabilities separately rated at 60 percent or greater. Thus, a grant of a TDIU would not result in an award of SMC. Hence the grant of the 100 percent rating renders the claim for TDIU moot. The appeal as to the TDIU issue is therefore dismissed. Amanda Baker Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer, 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.