Citation Nr: 21042627 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-61 025 DATE: July 13, 2021 ORDER Service connection for hypertension is denied. Service connection for a stroke is denied. A total disability rating due to individual unemployability (TDIU) is denied. Special monthly compensation (SMC) due to need for aid and attendance is denied. FINDINGS OF FACT The probative evidence of record including June 2017 and July 2020 VA examiners' opinions indicate that the Veteran's hypertension was not causally related to his service to his service-connected coronary artery disease or diabetes. The examiners cited medical literature which indicated that the Veteran's coronary artery disease and diabetes were not risk factors for developing hypertension. In addition, the probative evidence of record including a July 2020 VA physician's opinion indicate that the Veteran's hypertension was not causally related to his Agent Orange exposure but rather due to his advanced age which was supported by CDC studies. 1. The probative evidence of record including three separate VA examiners' opinions indicate that the Veteran's service-connected coronary artery disease and diabetes did not cause his stroke because they are not risk factors for developing a hemorrhagic stroke. 2. A July 2020 VA physician opined that the Veteran's service-connected disabilities did not cause him to be totally unemployable prior to his death. Rather, his non-service-connected stroke in April 2013 is what rendered him totally unemployable. 3. The Veteran's service-connected disabilities did not cause him to be so helpless as to need regular aid and attendance. Rather, the record reflects that the claim for SMC was based almost entirely on helplessness caused by his non-service-connected stroke. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. § 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a stroke have not been met. 38 U.S.C. § 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria have not been met for a TDIU rating. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. 4. The criteria for entitlement to SMC based on the need for regular aid and attendance are not met. 38 U.S.C. §§ 1114, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty from August 1970 to February 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran died in July 2017. The appellant was granted substitution in a September 2017 administrative decision. The appellant testified before the undersigned at a Board hearing in September 2019. A transcript of the hearing is of record. These matters were before the Board in November 2019 and were remanded for further development. Service Connection Legal Criteria Generally, direct service connection may be established for a disability resulting from a disease, injury, or event, incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection, the following must be shown: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). "Secondary" service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. In addition, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during this service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iii). Certain diseases associated with exposure to certain herbicide agents (for example, "Agent Orange" will be presumed to have been incurred in service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6). Hypertension is not associated with herbicide agent exposure for purposes of this presumption. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309(e). 1. Service connection for hypertension is denied. Factual Background In December 1969, the Veteran's blood pressure reading during his entrance examination was 130/78. A January 1971 service treatment note indicates that the Veteran had a blood pressure reading of 120/70. In February 1972, the Veteran's blood pressure reading upon his exit examination was 134/80. See service treatment records. A December 1999 treatment note indicates that the Veteran had a past medical history of hypertension. A March 2010 VA treatment indicates that the Veteran was formally diagnosed with hypertension in 2001. The attending physician noted that the Veteran's hypertension was difficult to manage and that he was on numerous medications. The Veteran reported in a December 2016 statement that he was treated for hypertension during service and he continued to be treated for hypertension since exiting from service. In June 2017, a VA physician opined it was less likely than not that the Veteran's hypertension was proximately due to or the result of his service-connected diabetes and coronary artery disease. As a rationale, the physician explained that the Veteran's diagnosis of hypertension in 1999 preceded his diagnosis of diabetes in 2001 and his non-obstructive coronary artery disease in 2005. The physician also explained it was less likely than not that the Veteran's hypertension was aggravated beyond its natural progression by his service-connected diabetes and coronary artery disease. As a rationale, the physician explained that the medical treatment notes dating back to 2001 (prior to the diagnosis of diabetes or coronary artery disease) document significantly elevated blood pressure which have shown fluctuations on medication management since. The physician further explained that the Veteran's most recent lab testing reflected no evidence of diabetic nephropathy that would support a claim for aggravation of hypertension due to diabetes. The physician also explained that coronary artery disease is not considered a secondary or contributory cause of hypertension. At the September 2019 Board hearing, the Appellant testified that she guessed the Veteran was diagnosed with hypertension in 1972. The Appellant testified that the Veteran was taking high blood pressure medication but could not recall the name. In July 2020, a VA physician opined that it was less likely than not that the Veteran's hypertension was causally related to his service. As a rationale, the physician explained that although the Veteran's entrance and separation blood pressure readings were elevated, a diagnosis of hypertension requires serial blood pressure measurements. The physician noted that the only other documented in-service blood pressure reading was from January 1971 during which he had a reading of 120/70, a normal reading. The physician also explained that there are no records available to support an onset of hypertension within a year of separation from active duty in 1971 because the initial documentation of hypertension in the records is from 1999, over twenty years after separation. The examiner noted that at the time of his diagnosis, the Veteran was over 50 years old which is a known risk factor for hypertension. The examiner also opined that it was less likely than not that the Veteran's hypertension was causally related to his herbicide exposure. The examiner cited an UpToDate article entitled "Overview of hypertension in adults" from 2019 which indicated that risk factors for hypertension included advancing age, obesity/weight gain, positive family history, black race, genetic/developmental kidney disease, high salt diet, excessive alcohol consumption, and physical inactivity. The examiner explained that herbicide exposure was not noted as a risk factor for the development of hypertension. The examiner also cited CDC statistics from 2017 which documented a prevalence of hypertension in those aged 40-59 of 33.2% compared to just 7.5% in those aged 18-39. The examiner opined that the risk posed from the Veteran's age "far outweighed any claimed and unproved effect from potential herbicide exposure." The examiner acknowledged the National Academy of Sciences report from 2018 which found "sufficient evidence of an association" for hypertension in those exposed to herbicides but opined that the data was inconclusive in establishing causality. The examiner explained that the higher prevalence of hypertension in Vietnam-era veterans exposed to herbicides compared to those Veteran who were not was based on a specific group of individuals and has not been weighed against the general population. The examiner further explained that information from the VA Office of Research and Development specifically notes that the "Veterans of the Army Chemical Corps" study used to support a possible link between hypertension and Agent Orange is not definitive and does not prove by itself that Agent Orange causes hypertension, rather that there appears to be a strong correlation. The examiner concluded that there was no medical data found to support that herbicide exposure in general has any association with the development of hypertension. The examiner also opined that it was less likely than not that the Veteran's hypertension was causally related to his service-connected coronary artery disease. As a rationale, the examiner explained that the established risk factors for hypertension do not include coronary artery disease. The examiner further explained that the Veteran's non-occlusive coronary artery disease would have had no direct impact on his systemic hypertension which developed years prior to his diagnosis of coronary artery disease. Finally, the examiner opined that there is no known physiologic mechanism by which non-obstructive coronary artery disease (which is restricted to the blood vessels of the heart) would aggravate or worsen hypertension (which is determined by the systemic/peripheral vasculature.) Analysis The Board finds that the preponderance of the evidence is against a finding that the Veteran's hypertension was directly related to his service. The Board acknowledges the Veteran's December 2016 statement that he was treated for hypertension during service. While the Board recognizes that the Veteran displayed elevated blood pressure readings during his entrance and separation examinations, the only other blood pressure reading during service displayed normal levels. The remainder of the Veteran's service treatment records are absent for a diagnosis of, or treatment for hypertension. Furthermore, the earliest evidence of record indicating that the Veteran had a diagnosis of hypertension was from 1999, well over 20 years after exiting from service. The Board also acknowledges the Appellant's testimony that the Veteran had a diagnosis of hypertension in 1972. However, providing a diagnosis of hypertension is outside the common knowledge and requires medical expertise and the Appellant, as a layperson has not demonstrated that she possesses the qualifications to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that the preponderance of the evidence is against a finding that the Veteran's hypertension was causally related to service-connected coronary artery disease or diabetes. The Board assigns probative value to the June 2016 and July 2020 VA physicians' opinions because they supported their opinions with rationales supported by medical literature. The Board finds that the preponderance of the evidence is also against a finding that the Veteran's hypertension was causally related to his Agent Orange exposure. The Board assigns probative value to the July 2020 VA physician's opinion that the Veteran's hypertension was not causally related to herbicide exposure because they supported their opinion with a rationale supported by medical literature. Indeed, the physician listed the risk factors for hypertension which did not include herbicide exposure. The physician cited CDC studies which supported their opinion that the Veteran's age put him at an elevated risk for the development of hypertension. Finally, the examiner remarked that the National Academy of Sciences report from 2018 is not definitive and does not prove by itself that Agent Orange causes hypertension, rather that there appears to be a strong correlation. Accordingly, the Board finds that service connection for hypertension must be denied. 2. Service connection for a stroke as secondary to service-connected diabetes and coronary artery disease is denied. Factual Background In April 2013, the Veteran was hospitalized due a stroke which he stated was due to his service-connected diabetes mellitus and coronary artery disease. The Veteran was afforded an August 2013 VA examination during which the conducting physician opined that it was less likely than not that the Veteran's stroke was causally related to his diabetes or coronary artery disease. As a rationale, the physician explained that that the most common cause of a hemorrhagic stroke is hypertension and that other risk factors include older age, high alcohol intake, black ethnicity, lower cholesterol and lower LDL cholesterol, lower triglycerides and anti-coagulation therapy. The physician explained that several additional studies have found an inverse relationship between total and LDL-cholesterol and the risk of intercranial hemorrhage and that at least one study suggested that the association is stronger for subcortical or hypertensive intercranial hemorrhage than labor hemorrhage. However, the physician also explained that treatment with statins do not appear to increase the risk of primary intercranial hemorrhage or to negatively impact prognosis according to several studies and meta-analyses. The examiner concluded that it was less likely than not that the Veteran's right basal ganglia cerebrovascular accident secondary to hemorrhage to the right basal ganglia was causally connected to the Veteran's service connected diabetes and coronary artery disease because they are separate diagnoses and not risk factors for hemorrhagic stroke. In June 2017, a VA physician opined that it was less likely than not that the Veteran's stroke was causally related to his service-connected diabetes or coronary artery disease. As a rationale, the physician cited UpToDate and explained that hypertensive vasculopathy is the most common cause of spontaneous intracerebral hemorrhage, and that older age and antithrombotic therapy are additional risk factors. The physician noted that the Veteran had a hemorrhagic stroke in 2013 which is a known complication of hypertension. Finally, the physician explained that type II diabetes and coronary artery disease are not noted as risk factors for the development of hemorrhagic strokes. The physician also opined that it was less likely than not that the Veteran's stroke was aggravated beyond its natural progression by his service-connected diabetes and coronary artery disease. As a rationale, the physician explained that the credible medical literature does not support a causal or contributory role of diabetes mellitus or coronary artery disease in the progression of hemorrhagic strokes. In July 2020, a VA physician opined that it was less likely than not that the Veteran's stroke was causally related to his service-connected diabetes or coronary artery disease. As a rationale, the physician explained that the Veteran's imaging findings in 2013 validate the diagnosis of hemorrhagic stroke which resulted in permanent left-sided hemiplegia and variable cognitive deficits as residuals. The physician further explained that there is nothing to support that either the Veteran's stable diabetes or his mild coronary artery disease worsened his stroke or its residuals beyond natural progression to support a claim for transient or permanent aggravation of the condition. The physician stated that the Veteran's severe and refractory hypertension is noted and documented as a major clinical risk before, during, and after his strike and is the primary contributor to the onset and progression of his cerebrovascular accident. Analysis The Board finds that that preponderance of the evidence is against a finding that the Veteran's stroke was causally related to his service-connected coronary artery disease or diabetes. The Board assigns probative value to the August 2013, June 2017 and July 2020 VA examiners' opinions because they indicated that they reviewed the claims file, supported their opinions with rationales and cited medical literature in support of their conclusions. The Board acknowledges the Appellant's testimony that she believes the Veteran's stroke is related to his service. However, determining the cause of a stroke is outside the common knowledge and requires medical expertise and the Appellant, as a layperson has not demonstrated that she possesses the qualifications to make such a determination. Jandreau supra. Accordingly, service connection for a stroke must be denied. 3. A TDIU rating is denied. Legal Criteria It is the established policy of VA that all veterans who are unable to obtain and maintain substantially gainful employment because of service-connected disabilities shall be rated as totally disabled. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 3.340. Substantially gainful employment is work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the Veteran's service-connected disabilities alone are severe enough to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA must consider the veteran's level of education, special training, and previous work experience, but may not consider age or the effect of nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. SSA determinations are relevant but not binding on the Board because there are significant differences between SSA and VA criteria. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). A schedular TDIU rating may be assigned when the unemployable veteran has (1) a single service-connected disability rated at 60 percent or more; or (if there are two or more service-connected disabilities), (2) one disability rated at 40 percent or more, and the additional service-connected disabilities bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If these percentage criteria are not met but a veteran is, nevertheless, unemployable because of a service-connected disability or disabilities, then an extraschedular TDIU rating must be assigned. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16(b) ("[A]ll veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled.") (emphasis added.) Eligibility During the period on appeal, the Veteran did not have a service-connected disability that was rated at least 60 percent disabling nor did he have multiple service-connected disabilities, combining to a 70 percent or greater level of impairment with at least one disability rated 40 percent and thus he did not meet the schedular criteria for a TDIU rating. 38 C.F.R. § 4.16(a). However, the Veteran indicated in his application for increased compensation based on unemployability that, due to his service-connected disability, he was unable to gain employment, which raised the issue of eligibility for a TDIU rating on an extraschedular basis. See 38 C.F.R. § 4.16(b). Factual Background The Veteran reported in his TDIU claim application that he worked as a driver from March 1996 to March 2010. The Veteran reported that he did not leave this position due to his disability and that he did not try to obtain employment since he became too disabled to work. The Veteran indicated that he had three years of college, no specialized education or training and that he had not received any education or training since he became too disabled to work. At the September 2019 Board hearing, the Appellant testified that the Veteran retired in 2010 because "he wasn't just up to nothing" and she was not sure if he stopped working due to his heart condition. In July 2020, a VA physician opined that the Veteran's service-connected coronary artery disease, diabetes and diabetic neuropathy would have allowed for full time and productive employment with standard 8-hour work days and standard rest breaks without restrictions in terms of walking, bending, lifting, sitting, etc. The physician explained that the Veteran's treatment notes prior to his stroke in 2013 provide no documentation of the Veteran's functional status, nor do they indicate any significant decline in his functional status prior to his stroke. Regarding the Veteran's coronary artery disease, the physician indicated that there was no documentation of active symptoms of coronary artery disease were on record to support that any of his functional limitations were due to his service-connected conditions. The physician noted that the medical records referenced obesity, hypertension and asthma as potential contributors to his symptoms. The physician cited a January 2011 stress test during which the Veteran's METs level was 5.2 which is consistent with tolerance for moderate to heavy levels of activity including snow shoveling, lawn moving, yard work, rapid walking and participation in low-level sporting activities. Accordingly, the physician opined that no functional limitations could have been attributed to his coronary artery disease. Regarding the Veteran's peripheral neuropathy, the physician explained that his case was mild and not associated with notable functional impairments. The physician indicated that medical treatment notes from 2010 document mild, nonprogressive diabetic neuropathy of the feet not requiring specific treatment or intervention, and not indicative of any motor deficits. Accordingly, the physician opined that no functional limitations could have been attributed to his diabetic neuropathy. Regarding the Veteran's diabetes, the physician explained that the Veteran's diabetes was well controlled on oral medication only without documented hospitalizations or restrictions in activity due to hypoglycemia to support any occupational limitations due to his diabetes. Finally, the physician explained that the Veteran's stroke in 2013 is what caused him to become totally unemployable due to his level of severe impairment which showed no appreciable improvement over time despite trials of physical and occupational therapy. Analysis The Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected conditions rendered him totally unemployable prior to his death. The Board notes that the Veteran had indicated in his application that he did not leave his position as a driver due to his service-connected disabilities and that the Appellant testified that she did not know whether the Veteran retired due to his service-connected coronary artery disease. The Board assigns probative value to the July 2020 VA physician's opinion because they performed a thorough analysis of the medical evidence of record and supported their opinion with detailed rationales. Notably, the physician addressed each of the Veteran's service-connected conditions (coronary artery disease, peripheral neuropathy and diabetes) and explained why none of them could have caused any occupational limitations. Accordingly, the Board finds that the Appellant's TDIU claim must be denied. 4. SMC due to need for aid and attendance is denied. Legal Criteria Under 38 U.S.C. § 1114 (l), a Veteran who, as a result of service-connected disabilities, has experienced anatomical loss or loss of use of both feet or one hand and one foot, bilateral blindness (visual acuity of 5/200 or less), or who has such significant disabilities as to be in need of regular aid and attendance, is entitled to special monthly compensation. Similarly, 38 U.S.C. § 1114 (s) provides that Veterans with service-connected disability rated as total and (1) additional service- connected disability or disabilities independently ratable at 60 percent or more, or, (2) by reason of service-connected disability or disabilities, are permanently housebound, are also entitled to special monthly compensation based on such housebound status. A Veteran is considered "permanently housebound" when they are substantially confined to their house (or ward or clinical areas, if institutionalized) or immediate premises due to service-connected disabilities that are reasonably certain to remain throughout his lifetime. Id. Factual Background The Veteran had filed his claim for aid and attendance in April 2013 after a stroke. There is nothing in the record to indicate that the Veteran had required aid and attendance prior to his stroke in April 2013. At the September 2019 Board hearing, the Appellant testified that the Veteran did not require aid and attendance due to his coronary artery disease or diabetes. The Appellant also testified that the Veteran was able to drive prior to his stroke in 2013. Analysis The Veteran was service connected for coronary artery disease, diabetes and peripheral neuropathy of the bilateral lower extremities. The issue is whether the Veteran had "such significant disabilities as to be in need of regular aid and attendance" as a result of his service-connected disabilities. 38 U.S.C. § 1114 (l). The Board concludes that SMC based on aid and attendance is not warranted. The Veteran's service-connected disabilities did not cause him to be so helpless as to need regular aid and attendance. Rather, the record reflects that the claim for SMC is based almost entirely on helplessness caused by his non-service-connected stroke. (Continued on the next page) The Board notes that the Appellant testified that the Veteran's service-connected disabilities did not require the need of aid and attendance and that he was able to drive prior to stroke. Accordingly, the Board finds that the Appellant's claim for SMC must be denied. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.