Citation Nr: 22013540 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 15-45 326 DATE: March 9, 2022 ORDER Service connection for hypertension is denied. A total disability rating due to individual unemployability (TDIU) from April 1, 2013 is granted. REMANDED Service connection for obstructive sleep apnea, claimed as sleep problems, is remanded A compensable rating for arthralgia of undetermined causes is remanded. FINDINGS OF FACT 1. The evidence fails to establish that the Veteran's current hypertension is proximately due to or aggravated by any service-connected disability. 2. From April 1, 2013, the Veteran has two or more service-connected disabilities, one of which is rated at 40 percent or more, and which combine to 70 percent or more, and the Veteran is not able to secure or maintain substantially gainful employment due to his service-connected disabilities from April 1, 2013. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a). 2. The criteria for TDIU have been met since April 1, 2013. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 4.3, 4.15, 4.16 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1971 to June 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Board remanded the matter to assist the Veteran in having his private medical records associated with his claims file and to provide C&P medical examinations and etiology opinions. As an initial matter, following the Board's prior remand, service connection was granted for conditions of the bilateral shoulders, bilateral hands, low back, bilateral hips, and bilateral knees. As the grants of service connection represented full relief for those claims, the issues are no longer presently before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (1997). The Veteran continues to seek service connection for hypertension and for sleep apnea, a compensable rating for arthralgia, and TDIU. 1. Service connection for hypertension is denied. The Veteran seeks service connection for hypertension and for sleep apnea (claimed as sleep problems), which he contends are secondary to his service-connected disabilities. Generally, service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. When a condition is claimed as secondary to a service-connected disability, entitlement is warranted if the service-connected disability is shown to have proximately caused or aggravated the claimed condition. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Pursuant to the Board's prior June 2020 remand, VA examinations and medical opinions were provided in February 2021. After review of the Veteran's history and the medical literature, the examiner found that the Veteran's current hypertension and obstructive sleep apnea are not proximately due to or aggravated by any of his service-connected disabilities, to include the disabilities of his shoulders, hands and fingers, low back, knees, or scars. The examiner explained that these disabilities are separate entities and that medical literature does not support a relationship between the disabilities and the claimed conditions of hypertension and sleep apnea. Given this evidence, the Board finds that entitlement to service connection for hypertension and obstructive sleep apnea has not been established. The most probative evidence of record is the February 2021 examinations and medical opinions that concluded that a secondary connection is not present between the claimed conditions and any of the Veteran's service-connected disabilities. Though the Board acknowledges the Veteran's own contentions that pain from his service-connected disabilities causes his blood pressure to rise and interruptions in his sleep, the evidence does not show that the Veteran has education, training, or experience to opine on the etiology of hypertension and obstructive sleep apnea, which are medically complex issues beyond observation by the senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Accordingly, the Board finds that the February 2021 medical opinions are of higher probative value in considering the etiology of the claimed conditions. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2006) (reaffirming that the Board's role is to assess the weight of all evidence). Accordingly, because the evidence persuasively weighs against a finding that the Veteran's service-connected disabilities either proximately caused or aggravated his hypertension or obstructive sleep apnea, entitlement to service connection for hypertension or obstructive sleep apnea must be denied. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a). 2. TDIU from April 1, 2013 is granted. A TDIU may be assigned if the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Even where a veteran is in receipt of a total schedular rating, if no single disability is rated at 100 percent, entitlement to a TDIU must be adjudicated. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010). In this case, the Veteran was in receipt of a 100-percent rating for his service-connected left hip from March 15, 2012, until April 1, 2013. Thus, the Board will consider entitlement to a TDIU from April 1, 2013. To be considered for assignment of a schedular TDIU the Veteran's service-connected disabilities must meet the following criteria: (1) if there is only one such disability, this disability shall be ratable at 60 percent or more; or (2) 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). From April 1, 2013, the Veteran's service-connected disabilities combined to 70 percent or more, and at least one was rated at 40 percent or more. Thus, from April 1, 2013, the first criterion of 38 C.F.R. § 4.16(a) has been met, and the Board next considers whether the Veteran was unemployable during this period. A veteran is unemployable if he is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). A substantially gainful occupation is one 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. Ray v. Wilkie, 31 Vet. App. 58, 7273 (2019). In evaluating a veteran's ability to secure and follow a substantially gainful occupation, consideration may be given to his level of education, skills and training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. Id.; 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Turning to the evidence from April 1, 2013, the Veteran worked in construction from 1997 to 2008, needing to retire in 2008 due to factors including joint pain. The Veteran has reported that his ultimate retirement was due to chronic pain and difficulties created by his service-connected disabilities. The evidence shows that his service-connected low back and bilateral knees disabilities limit his ability to stand, walk, and sit; that his service-connected bilateral hip disabilities cause pain and immobility; and that his service-connected bilateral hand disabilities are severely painful every morning, requiring several hours to subside. The Veteran has related that these difficulties were factors in his inability to continue working. Resolving any reasonable doubt in the Veteran's favor, the Board finds that the functional impairment created by the Veteran's service-connected disabilities would prevent him from securing and maintaining employment in the areas in which he has training and experience, such as construction. These jobs would require use of the hands and legs, and the evidence reflects that the Veteran's service-connected disabilities significantly limit his ability to use his hands and to walk, stand, and sit. Accordingly, a TDIU is granted from April 1, 2013. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 4.3, 4.15, 4.16. REASONS FOR REMAND 3. Service connection for obstructive sleep apnea, claimed as sleep problems, is remanded. At issue is whether the Veteran is entitled to service connection for obstructive sleep apnea. The Veteran's treatment records indicate that the Veteran has obesity. This is sufficient to trigger VA's duty to assist, and this matter must be remanded for a new VA examination in order to determine whether or not obesity serves as a linking condition between the Veteran's previously service-connected disabilities and obstructive sleep apnea. McLendon v. Nicholson, 20 Vet. App. 79 (2006); VAOPGCPREC 1-2017 (January 6, 2017). 4. A compensable rating for arthralgia of undetermined causes is remanded. Unfortunately, the Veteran's claim for a compensable rating for arthralgia of undetermined causes must be remanded again. The Board's prior June 2020 decision directed for a new C&P examination to assess the current severity of the Veteran's disability. Specifically, the Board directed that "[t]he examiner should identify symptoms and functional impairments due to the arthralgias; all pertinent symptomatology and findings must be reported in detail." Though a new examination was provided in November 2020 at which the Veteran's arthralgia was noted as a diagnosed condition, the examination report largely focused on peripheral neuropathy conditions, and there was no examination report specifically addressing the symptoms and functional impairments of the Veteran's service-connected arthralgias. Consequently, there is not sufficient medical information available for the Board to soundly adjudicate the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also 38 C.F.R. § 20.904(a). As there has not been substantial compliance with the directive of the prior Board decision, remand is required. Dyment v. West, 13 Vet. App. 141, 14647 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination in order to address the following: (a.) Is it at least as likely as not (50 percent or more) that the Veteran's service-connected disabilities caused the Veteran to become obese? Why or why not? (b.) Is it at least as likely as not (50 percent or more) that obesity was a substantial factor in the Veteran developing obstructive sleep apnea? Why or why not? (c.) Is it at least as likely as not (50 percent or more) that but for the Veteran's obesity the Veteran would not have developed obstructive sleep apnea. 2. Schedule the Veteran for an examination regarding the current severity of his service-connected arthralgia of undetermined causes. All appropriate testing should be conducted. The examiner must identify the symptoms and functional impairments due specifically to the arthralgias. All pertinent symptomatology and findings must be reported in detail. DAVID R. SEATON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Davis, 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.