Citation Nr: 1752466 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 11-11 794 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a skin disorder, to include as due to herbicide agent exposure. 2. Entitlement to a rating in excess of 10 percent for degenerative disc disease and degenerative disease of the lumbar spine (low back disability) from December 12, 2012. 3. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife, G. M. ATTORNEY FOR THE BOARD L. Pelican, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from October 1966 to October 1969, with service in the Republic of Vietnam from April 1967 to April 1968. He was awarded the Air Medal, among other decorations. This case comes before the Board of Veterans' Appeals (the Board) from September 2008 and July 2010 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing before a Veterans Law Judge (VLJ) in May 2015. A transcript of that proceeding has been associated with the claims file. The claims were before the Board in September 2015. At that time, the Board denied a rating in excess of 10 percent for the Veteran's low back disability prior to December 12, 2012, and remanded the remaining portion of the period on appeal as well as the other issues for additional development. FINDINGS OF FACT 1. The evidence does not show that the Veteran's keloid skin disorder is related to military service. 2. For the period from December 12, 2012, the evidence shows the Veteran maintained full range of motion of the thoracolumbar spine and did not experience guarding or muscle spasms; the preponderance of the evidence is against a finding of forward flexion of 60 degrees or less or of muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Objective neurological abnormalities or a diagnosis of IVDS with incapacitating episodes have not been shown. 3. The Veteran's only service-connected disability is a low back disability, which is rated 10 percent disabling. 4. The evidence does not show that the Veteran is precluded from securing or following substantially gainful employment due solely to his service-connected low back disability. CONCLUSIONS OF LAW 1. A skin disorder was not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2017). 2. For the period from December 12, 2012, entitlement to a disability rating in excess of 10 percent for a low back disability is denied. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2017). 3. The criteria for a TDIU have not been met; referral for extraschedular consideration is not warranted. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in July 2008 and January 2010 letters. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2017). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service treatment records, and VA examination reports. The Veteran was provided a hearing before a VLJ in May 2015. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). The presiding VLJ has since left the Board. In a July 2017 letter, the Veteran was afforded the opportunity to attend another hearing with a different VLJ, but he did not respond. Accordingly, the Veteran is presumed to have not desired an additional hearing. These claims were remanded in September 2015 to obtain the Veteran's personnel file, provide him notice of how to substantiate a claim for TDIU, obtain VA and private medical records dating from December 2012, afford the Veteran a VA spine examination, and obtain an opinion regarding the Veteran's claimed skin disability. Review of the record indicates the Veteran's personnel records were associated with the claims file in 2014. The Veteran was provided TDIU notice in October 2016 and February 2017, and was requested the Veteran identify any sources of private treatment; however the Veteran did not respond to those requests. Outstanding VA medical records were added to the claims file in April 2017. The Veteran was afforded a VA spine examination in December 2016, and an opinion regarding his skin disorder was obtained in October 2017. Accordingly, there has been substantial compliance with the Board's remand directives. D'Aries v. Peake, 22 Vet. App. 97 (2008). Service Connection - Skin Disorder The Veteran seeks service connection for a skin disorder which he says originated during service and was caused by exposure to herbicide agents during military service. See, e.g., October 1991 and September 2008 VA Forms 21-4138. However, for the reasons discussed below, the evidence is against the Veteran's claim. Preliminarily, VA regulations provide presumptive service connection for some skin conditions based on exposure to herbicide agents, including chloracne and porphyria cutanea tarda. However, the Veteran's diagnosed keloids are not among the listed conditions. 38 C.F.R. §§ 3.307, 3.309 (2017). Service connection on a presumptive basis is therefore not warranted. To establish a right to compensation for a present disability on a direct basis, a Veteran must show: (1) 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) evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2017); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). VA medical records indicate the Veteran is diagnosed with keloids, satisfying the first Hickson element. The Veteran's service treatment records indicate that in September 1969 he had a cyst on his anterior chest that was incised and drained. His remaining service treatment records are negative for a skin condition; his skin was clinically normal at separation, and he expressly denied growths and cysts on his separation report of medical history. Nevertheless, given the September 1969 record and the Veteran's presumed exposure to herbicide agents, the second Hickson element is met. Regarding a relationship between the Veteran's keloids and service, there are several nexus opinions. A March 2011 VA examiner opined the Veteran's keloids were less likely than not related to service. The examiner reasoned that there was no objective evidence of keloids during service or from 1969 to 1991, and that the September 1969 cyst incision and drainage appeared to be acute, given the October 1969 separation medical reports did not indicate any residuals from that procedure. In a May 2011 opinion, Dr. O. J. indicated it was not possible to determine if all of the Veteran's keloidal plaques were related to an onset or event during service. Dr. O. J. explained that he had a number of service member patients who shaved to comply with military policy, and developed keloids in the same areas as the Veteran. He added that while he could not definitively determine which keloidal plaques resulted from the Veteran's time in service, it seemed as though it was not only possible, but probable, that a good deal of the keloids could have resulted directly and indirectly from service and post-service traumatic events. In a March 2017 opinion, a VA examiner opined the Veteran's keloids were less likely than not related to service. The examiner began by indicating that the National Academy of Sciences had not established an associative or causal relationship between herbicide exposure and keloid formation, then discussed the known causes of keloids, including alterations in the sequential process of wound healing, which could be influenced by multiple local and genetic factors. The examiner reasoned that because keloids represented an excessive tissue response to dermal injury, keloids on the Veteran's back, arms, abdomen, and groin were not due to service as there was no evidence of injury to these areas in service. As for the Veteran's cyst incision and drainage, the examiner observed that the in-service record did not identify the location of the cyst and also indicated it was a cyst rather than a keloid. She noted that the separation examination did not find a scar on the anterior chest, that the objective evidence of record indicated no mention of keloids from service until 1991, and that intervening injury and trauma were unknown during this timeframe. Consequently, a nexus could not be established. The May 2011 opinion from Dr. O. J. is equivocal in its findings; the most favorable reading of the opinion is that a good deal of the Veteran's keloids could have resulted from service. Thus, the Board affords it little probative value. See Warren v. Brown, 6 Vet. App. 4, 6 (1993) (holding that a physician's statement framed in terms such as "may" or "could" is not probative). The Board acknowledges the representative's assertion that the March 2017 opinion is inadequate because it relied on the absence of documentation of the ongoing complaints reported by the Veteran, and that the Board should rely on the Veteran's reported history in lieu of the examination report. As to the representative's first point, the March 2017 opinion is not based solely on the lack of documented ongoing complaints. Rather, the March 2017 VA opinion reached a firm conclusion supported by a reasoned and detailed rationale explaining the nature and causes of keloids and applying those facts to the evidence of record. Thus, the Board finds it highly probative. As to the second argument, the Veteran has presented conflicting statements regarding his keloid disorder. He reported that that he displayed early manifestations of the keloids in 1968 and 1969 with symptoms including painful itching, soreness, severe bleeding, and continuous spreading of growth on the chest. See October 1991 VA Form 21-4138 and May 2015 Hearing Transcript, pp. 9, 16-17. However, on his October 1969 report of medical history, the Veteran expressly denied ever having growths or cysts and reported he was in good health. Moreover, the contemporaneous separation examination report indicated his skin was clinically normal. Given the severity of the symptoms identified by the Veteran, the Board finds it significant that the Veteran did not report these symptoms at separation and that these symptoms were not otherwise documented. The Veteran's more recent statements are inconsistent with what he reported during service, and thus the Board finds the March 2017 opinion more probative. In the absence of a probative nexus opinion linking the Veteran's keloids to service with at least equal weight as the March 2017 opinion, the third Hickson element is not met, and as such, the preponderance of the evidence is against the claim and the Veteran's claim for service connection for a skin disorder must be denied. Increased Rating - Low Back Disability Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1 (2017). Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2017); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2017); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2017); and evaluating functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10 (2017). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran's low back disability is rated 10 percent from December 12, 2012 under Diagnostic Code 5241-5242. The Veteran seeks a higher rating. Under the General Rating Formula, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, disabilities are evaluated as follows: Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height (10 percent). Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis (20 percent). Forward flexion of the thoracolumbar spine to 30 degrees or less; or with favorable ankylosis of the entire thoracolumbar spine (40 percent); Unfavorable ankylosis of the entire thoracolumbar spine (50 percent); Unfavorable ankylosis of the entire spine (100 percent). 38 C.F.R. § 4.71a, General Rating Formula (2017). When evaluating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). Additionally, the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides the following: With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months (10 percent); With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent); With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent); With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months (60 percent). Note (1) to Diagnostic Code 5243 states that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The Board has reviewed the entirety of the medical evidence of record from December 12, 2012 to present, including the December 2016 VA examination report as well as the updated VA medical records. Notably, the VA medical records show no treatment for the Veteran's back disability. During the May 2015 Board hearing, the Veteran reported that his back disability impaired his ability to walk, bend, sit, and balance. See May 2015 Hearing Transcript, pg. 6. He said he used a cane for walking. Id. at 14. At the December 2016 VA back examination the Veteran reported he had no new back issues, no radiation, and no flare-ups. He denied experiencing any functional loss or functional impairment of his back. Upon evaluation, the Veteran had normal range of motion in all planes without evidence of pain. Repetitive testing did not result in any additional loss of function or range of motion. The Veteran did not exhibit additional range of motion loss due to pain, weakness, fatigability, or incoordination after repetitive testing. There was no evidence of pain on passive range of motion testing, or in non-weight bearing. The examiner observed no guarding or muscle spasm. The Veteran did not have any other neurologic abnormalities, and did not have a diagnosis of IVDS. The examiner noted the Veteran regularly used a golf club for stability and support. Given the Veteran's normal range of motion findings and the absence of spasms or guarding, the evidence is against assigning the Veteran a higher disability rating under the General Rating Formula. A higher rating based on incapacitating episodes due to IVDS is not warranted as the Veteran does not have a diagnosis of that condition nor have incapacitating episodes been shown. Moreover, as objective neurological abnormalities have not been found, separate ratings on that basis are not warranted. In summary, a rating in excess of 10 percent for the Veteran's low back disability is not warranted. TDIU A total rating based on unemployability may be granted if a veteran is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16 (2017); see also 38 C.F.R. §§ 3.340(a), 3.341(a) (2017). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a) (2017). Even when the criteria under 38 C.F.R. § 4.16(a) (2017) are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b) (2017). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a) (2017). For a Veteran to prevail on a claim for TDIU on an extraschedular basis, the record must reflect some factor which takes the case outside of the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating itself is not recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, and not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, the Veteran's sole service-connected disability is a low back disability rated 10 percent disabling; thus the schedular criteria for TDIU are not met. The remaining question is whether the Veteran is entitled to a referral for consideration of an extraschedular TDIU. The Board finds that he is not. As a threshold matter, there is conflicting evidence regarding whether the Veteran's low back disability is severe enough to limit his ability to secure or follow a substantially gainful occupation. On his February 2013 VA Form 9, the Veteran reported that his back disability kept him from being employed as a truck driver, as he could not sit for long periods. During his December 2016 VA examination, the Veteran reported he stopped working a year ago and was in receipt of Social Security benefits. However, the examiner opined that the Veteran's back disability did not affect his ability to work, explaining that while strenuous physical employment was limited given that the Veteran was status-post laminectomy, he had full range of motion with no neurovascular deficit. For that reason the examiner concluded the Veteran's spine disability alone should not limit his ability to secure or follow a substantially gainful occupation. The Veteran's employment history is also unclear. His Social Security Administration (SSA) disability records show he reported he stopped working as a dump truck driver in December 2010 due to back pain. See April 16, 2011 Psychiatric Evaluation. However, as noted above, in December 2016 the Veteran reported he stopped working a year ago. VA medical records from December 2012 to present show the Veteran worked "off and on" for a construction company. See, e.g., May 2016 and February 2016 Primary Care notes and January 2017 Substance Abuse Treatment Program consultation, located on pp. 41, 77, and 99 of April 13, 2017 CAPRI file on Virtual VA. The Board also observes that the Veteran was sent notice of how to substantiate a TDIU claim in October 2016 and February 2017, and that he declined to respond. The information requested in those letters could help substantiate the Veteran's claim, but his refusal to cooperate limits the evidence available to the Board. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In light of the foregoing, the Board finds that the evidence does not show that the Veteran's low back disability alone precludes the Veteran from obtaining or maintaining substantially gainful employment. Notwithstanding the Veteran's reports that his back disability adversely affects his ability to work, the Board finds the December 2016 report more probative on whether the Veteran's back disability alone prevents him from securing or following a substantially gainful occupation. Thus, referral for extraschedular TDIU consideration is not warranted at this time. ORDER Entitlement to service connection for keloids is denied. For the period from December 12, 2012, entitlement to a rating in excess of 10 percent for a low back disability is denied. Entitlement to TDIU is denied, and referral for extraschedular TDIU is not warranted at this time. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs