Citation Nr: 21052443 Decision Date: 08/25/21 Archive Date: 08/25/21 DOCKET NO. 13-08 772 DATE: August 25, 2021 ORDER Service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), to include neurocognitive disorder and major depressive disorder, as secondary to the service-connected tinnitus and bilateral hearing loss, is granted. Service connection for hypertension, as secondary to service-connected disabilities, is denied. Service connection for a cardiac disorder, to include coronary artery disease, including as secondary to service-connected disabilities, is denied. REMANDED A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran died in August 2019; the appellant is the Veteran's surviving spouse, who is substituted as the claimant to continue the pending appeal to completion. 2. Prior to death, the Veteran was diagnosed with acquired psychiatric disorder, including neurocognitive disorder and major depressive disorder; the acquired psychiatric disorder was worsened beyond its normal progression by the service-connected tinnitus and bilateral hearing loss. 3. Prior to death, the Veteran was diagnosed with hypertension; symptoms of hypertension were not chronic in service, were not continuous since service separation, and did not manifest to a compensable degree within one year of service separation; the hypertension was not otherwise etiologically related to active service; the hypertension was not caused, or worsened beyond its normal progression, by the service-connected bilateral hearing loss, tinnitus, or acquired psychiatric disorder. 4. Prior to death, the Veteran was diagnosed with coronary artery disease, status post triple bypass surgery (cardiac disorder); symptoms of the cardiac disorder were not chronic in service, were not continuous since service separation, and did not manifest to a compensable degree within one year of service separation; the cardiac disorder was not otherwise etiologically related to active service; the cardiac disorder was not caused, or worsened beyond its normal progression, by the service-connected bilateral hearing loss, tinnitus, or acquired psychiatric disorder. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the appellant, the criteria for service connection for an acquired psychiatric disorder, other than PTSD, to include neurocognitive disorder and major depressive disorder, as secondary to the service-connected tinnitus, have been met. 38 U.S.C. §§ 1110, 1153, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. 2. The criteria for service connection for hypertension, including as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 1112, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a), 3.310. 3. The criteria for service connection for a cardiac disorder, to include coronary artery disease, including as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 1112, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is the surviving spouse of the Veteran, who had active service from January 1945 to August 1946. While the appeal was pending, the Veteran died in August 2019. The appellant is now pursuing the appeal as a substituted claimant under the provisions of 38 U.S.C. § 5121A. See July 2020 Notification Letter. These matters were previously before the Board in September 2013, July 2016, April 2018, January 2021, and May 2021, at which times the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for additional development and consideration. Prior to the Veteran's death, the Board denied service connection for PTSD in a September 2013 decision, which was not appealed. As such, the Board has characterized the issue of service connection for depression as service connection for an acquired psychiatric disorder, other than PTSD, to include neurocognitive disorder and major depressive disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Legal Criteria 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; 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Prior to death, the Veteran was diagnosed with coronary artery disease (as arteriosclerosis) and hypertension (as cardiovascular-renal disease), which are "chronic" diseases under 38 C.F.R. § 3.309(a). Therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arteriosclerosis and cardiovascular-renal disease, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Service connection for an acquired psychiatric disorder, to include neurocognitive disorder and major depressive disorder The appellant asserts that the Veteran's psychiatric disorder, to include neurocognitive disorder and major depressive disorder, had its onset during service when he was stationed in Iwo Jima, Japan, due to the intense fear, panic, and worry he experienced while deployed. See September 2011 Statement in Support of Claim. Alternatively, the appellant contends that the Veteran's psychiatric disorder was the result of his service-connected tinnitus and bilateral hearing loss. See January 2016 correspondence. After a review of all the lay and medical evidence, and resolving reasonable doubt in favor of the appellant, the Board finds that the Veteran's acquired psychiatric disorder was worsened beyond its normal progression by the service-connected tinnitus and bilateral hearing loss. VA obtained an addendum medical opinion in June 2021, wherein the VA examiner opined that it is at least as likely as not that the Veteran's acquired psychiatric disorder was worsened beyond its natural progression by the service-connected tinnitus and hearing loss. The June 2021 VA examiner noted that tinnitus and bilateral hearing loss preceded the onset of the Veteran's major depressive disorder and neurocognitive disorder due to Alzheimer's disease and explained that medical studies have shown a strong link between tinnitus and major depressive disorder as well as with Alzheimer's disease. Additionally, studies have shown that tinnitus and hearing loss can make it difficult to relax, concentrate, sleep, and communicate with others and tinnitus distress can negatively influence cognitive performance, especially general intelligence and executive functions. The VA examiner concluded that it is at least as likely as not that the service-connected tinnitus and bilateral hearing loss worsened the Veteran's psychiatric disorder given that the distress of tinnitus and hearing loss negatively influenced the Veteran's cognitive performance to include executive functions and accelerated the progression of his acquired psychiatric disorder. Resolving reasonable doubt in the appellant's favor, the Board finds that the criteria for service connection for an acquired psychiatric disorder, other than PTSD, to include neurocognitive disorder and major depressive disorder, as secondary to the service-connected tinnitus and bilateral hearing loss, have been met. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310. As service connection is being granted on a secondary basis, there is no need to discuss entitlement to service connection on any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. 2. Service connection for hypertension The appellant asserts that the Veteran's hypertension was caused by a constant state of worry while stationed in Iwo Jima, Japan, and/or is the result of the now service-connected acquired psychiatric disorder. See e.g., September 2011 Statement in Support of Claim for PTSD. The appellant also generally alleges that the Veteran's hypertension was the result of the service-connected tinnitus and bilateral hearing loss. Initially, the Board finds that prior to death, the Veteran was diagnosed with hypertension. See August 2017 VA examination report. The chronic disease presumptive service questions for the Board are whether the Veteran had a chronic disease, hypertension, that manifested chronic symptoms in service, continuous symptoms since service, or to 10 percent within one year of separation from active service in August 1946. The Board concludes that, while the Veteran had hypertension prior to death that is a chronic disease under 38 C.F.R. § 3.309(a), the weight of the lay and medical evidence shows that symptoms of hypertension were not chronic in service, were not continuous since service, and did not manifest to a compensable degree within one year of service separation. 38 U.S.C. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Additionally, the Board finds that the weight of the evidence shows that hypertension did not have its onset during active service, and was not otherwise etiologically related to active service. Although service treatment records are not available for review, an August 1946 service separation examination report reflects the Veteran's cardiovascular system was found to be clinically normal. During a September 2014 VA examination, the Veteran reported that hypertension symptoms had their onset 15 years prior (post-service onset approximately in 1999). As such, the above evidence does not demonstrate chronic symptoms of hypertension during active service or continuous symptoms of hypertension since service. The lay and medical evidence weighs against a finding of continuous symptoms of hypertension since service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) is not warranted based on either "chronic" in-service or "continuous" post service symptoms. As discussed above, the service separation examination report did not indicate any history or findings or diagnosis for hypertension. The earliest evidence of hypertension is not indicated until 2005, in a December 2005 private treatment record reflecting a history of hypertension, decades after separation from active service and outside of the applicable presumptive period. The earliest reported onset of hypertension by the Veteran was in 1999, approximately 53 years after separation from active service and approximately 52 years outside of the applicable presumptive period. On the question of a direct nexus between the hypertension and active service, the Board finds that the weight of the evidence is against finding that the hypertension was causally related to service. The weight of the evidence shows that hypertension had its onset after active service and that the Veteran was not diagnosed with hypertension until 1999, at the earliest, based on the Veteran's lay reports of having had hypertension beginning during a time that is about 1999. Finally, the evidence of record does not contain a competent opinion establishing a nexus between the Veteran's hypertension and active service. Instead, the record includes an August 2017 VA examination report which contains the VA examiner's opinion that it is less likely than not that the Veteran's hypertension had its onset during service or was otherwise related to service. The August 2017 VA examiner explained that the August 1946 service separation examination report reflects no abnormalities and that post-service treatment records do not indicate any treatment or diagnosis for hypertension until many years after service separation. Additionally, a June 2021 VA addendum opinion was obtained, wherein the VA examiner also opined that it is less likely than not that the Veteran's hypertension had its onset during service. The June 2021 VA examiner explained that no diagnosis or concerns of hypertension were made during active duty service, and hypertension was not diagnosed until decades later. Furthermore, the evidence does not reflect a chronicity of hypertension symptoms since the Veteran's deployment to Iwo Jima upon which the Board could find that the later diagnosed hypertension was directly incurred in service. The Board further finds that the weight of the evidence shows that the Veteran's hypertension was not caused or worsened beyond its normal progression by the service-connected tinnitus, bilateral hearing loss, or by the now-service-connected acquired psychiatric disorder. In the June 2021 VA addendum opinion, the VA examiner opined that it is less likely than not that the Veteran's hypertension was caused or worsened beyond its normal progression by the service-connected tinnitus, bilateral hearing loss, or the now-service-connected acquired psychiatric disorder. The VA examiner noted that a thorough review of medical literature failed to demonstrate a causal relationship between hypertension and tinnitus, hearing loss, or psychiatric disorders, and explained that hypertension and tinnitus, hearing loss, and mental health issues are not medically related. The VA examiner explained the physiology of hypertension, and how peripheral resistance in the vascular system is not medically related to tinnitus, hearing loss, and psychiatric disorders. Thus, the VA examiner concluded that the Veteran's hypertension was not caused or worsened beyond its normal progression by the service-connected tinnitus, bilateral hearing loss, or the acquired psychiatric disorder. The record does not contain a competent medical opinion to the contrary. For the forgoing reasons, the Board finds that the weight of the evidence is against the claim for service connection for hypertension, including as secondary to service-connected disabilities, and the claim must be denied. 3. Service connection for a cardiac disorder The appellant generally contends that the Veteran's cardiac disorder was the result of developing hypertension due to the stress of being deployed to Iwo Jima, Japan. See September 2011 Statement in Support of Claim for PTSD. The appellant also generally alleges that a cardiac disorder was either caused or worsened beyond its normal progression by the service-connected tinnitus, bilateral hearing loss, and/or acquired psychiatric disorder. Initially, the Board finds that prior to death the Veteran was diagnosed with coronary artery disease, status post triple bypass surgery (cardiac disorder). See July 2014 VA examination report. The chronic disease presumptive service questions for the Board are whether the Veteran had a chronic disease (arteriosclerosis) that manifested chronic symptoms in service, continuous symptoms since service, or to 10 percent within one year of separation from active service in August 1946. The Board concludes that, while the Veteran had a cardiac disorder prior to death that is a chronic disease under 38 C.F.R. § 3.309(a), the weight of the lay and medical evidence shows that symptoms of the cardiac disorder were not chronic in service, were not continuous since service, and did not manifest to a compensable degree within one year of service separation. 38 U.S.C. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Additionally, the Board finds that the weight of the evidence shows that the cardiac disorder did not have its onset during active service, and was not otherwise etiologically related to active service. Although service treatment records are not available for review, an August 1946 service separation examination report reflects the Veteran's cardiovascular system was found to be clinically normal, and X-rays taken during the separation examination were also negative. As such, the above evidence does not demonstrate chronic symptoms of arteriosclerosis during active service. The lay and medical evidence weighs against a finding of continuous symptoms of arteriosclerosis since service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) is not warranted based on either "chronic" in-service or "continuous" post service symptoms. As discussed above, the August 1946 service separation examination report did not indicate any history or findings or diagnosis for arteriosclerosis. The earliest evidence of arteriosclerosis is not indicated until 2005, in an August 2005 private treatment record showing the Veteran was diagnosed with triple vessel coronary artery disease and underwent a coronary artery bypass surgery, 59 years after separation from active service and 58 years outside of the applicable presumptive period. On the question of a direct nexus between the cardiac disorder and active service, the Board finds that the weight of the evidence is against finding that the cardiac disorder was causally related to service. The weight of the evidence shows that the cardiac disorder had its onset after active service and that the Veteran was not diagnosed with a cardiac disorder until 2005 when he underwent a coronary artery bypass surgery. The weight of the competent opinion evidence is against a nexus between the cardiac disorder and service. The evidence of record does not contain a competent opinion establishing a nexus between the Veteran's cardiac disorder and active service. Instead, an August 2017 VA examination report which contains the VA examiner's opinion that it is less likely than not that the Veteran's cardiac disorder had its onset during service or was otherwise related to service. The August 2017 VA examiner explained that the August 1946 service separation examination report reflects no abnormalities and that post-service treatment records do not indicate any treatment or diagnosis for a cardiac disorder until 2005, approximately 59 years after service separation. Additionally, a June 2021 VA addendum opinion contains the VA examiner's opinion that it is less likely than not that the Veteran's cardiac disorder had its onset during service as the evidence does not show that the Veteran was diagnosed or seen for any heart condition during active duty service. The VA examiner explained that the Veteran's cardiac disorder did not have its onset until 2005, decades after service separation. The Board further finds that the weight of the evidence shows that the Veteran's cardiac disorder was not caused by, or worsened beyond its natural progression by, the service-connected tinnitus, bilateral hearing loss, or the now-service connected acquired psychiatric disorder. In the June 2021 VA addendum opinion, the VA examiner opined that it is less likely than not that the Veteran's cardiac disorder was either caused, or worsened beyond its normal progression by the service-connected tinnitus, bilateral hearing loss, or the acquired psychiatric disorder. The VA examiner explained that the conditions of coronary artery disease and tinnitus, bilateral hearing loss, and psychiatric disorders are not medically related, and a thorough review of medical literature failed to demonstrate a causal relationship. Coronary artery disease is caused by cholesterol plaque build-up, which leads to narrow arteries and the need for a coronary artery bypass graft, but medical literature does not indicate that tinnitus, bilateral hearing loss, or a psychiatric disorder could cause or worsen cholesterol plaques. Finally, the Board addresses the appellant's contention that the Veteran's hypertension caused or worsened the cardiac disorder beyond its normal progression. As the Board's instant decision above has denied service connection for hypertension, secondary service connection is not warranted as a matter of law because there is no primary service-connected disability upon which secondary service connection may be granted; therefore, the theory of service connection for a cardiac disorder as secondary to the service-connected hypertension must be denied as a matter of law. See 38 C.F.R. § 3.310(a); Reiber v. Brown, 7 Vet. App. At 516-17; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). For the forgoing reasons, the Board finds that the weight of the evidence is against the claim for service connection for a cardiac disorder, including as secondary to service-connected disabilities, and the claim must be denied. REASONS FOR REMAND 4. A TDIU is remanded. As the Board's instant decision grants service connection for an acquired psychiatric disorder, the RO will assign an initial disability rating for the now service-connected acquired psychiatric disorder. Accordingly, the issue of entitlement to a TDIU is inextricably intertwined with the question of initial rating of the additional functional and occupational impairments caused by the now service-connected acquired psychiatric disorder. The matter is REMANDED for the following action: 1. Adjudicate the downstream element of an initial disability rating for the service-connected acquired psychiatric disorder. 2. Thereafter, readjudicate the issue of TDIU. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Choi, 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.