Citation Nr: 18157619 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 12-30 440 DATE: December 13, 2018 ORDER Entitlement to service connection for Peyronie's disease, to include as due to toxic herbicide agent exposure and/or treatment for a heart condition, for purposes of accrued benefits is denied. Entitlement to a total disability rating based on individual unemployability, for purposes of accrued benefits (TDIU) prior to August 26, 2016 is denied. FINDINGS OF FACT 1. The evidence does not show that the Veteran’s Peyronie’s disease was incurred in service, or is related to service, to include asserted toxic herbicide agent exposure or treatment for a heart condition. 2. Prior to August 26, 2016, the Veteran was not unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for Peyronie's disease, to include as due to toxic herbicide agent exposure and/or treatment for a heart condition, for purposes of accrued benefits have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. Prior to August 26, 2016, the criteria TDIU were not met. 38 C.F.R. § 4.16(a), 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1951 to May 1974. The Veteran died in July 2017, while the claims on appeal were pending. The Veteran’s surviving spouse properly established herself as a substituted appellant in an application dated December 2017. In a December 2016 rating decision, the Veteran was granted a 100 percent rating for his COPD as of August 26, 2016. Accordingly, the period on appeal for his TDIU rating is confined to prior to this date. See Bradley v. Peake, 22 Vet. App. 280 (2008). This appeal was remanded most recently in June 2016 for further development. Specifically, the Veteran was afforded a VA examination for Peyronie’s disease, the report of which was added to the record. The Board notes that the Veteran was scheduled for an examination to assess the appropriateness of a TDIU rating. However, the Veteran requested that this examination be canceled in April 2017. Thus, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the Remand orders, and no further action is necessary in this regard. Finally, the Board notes that the appellant is not represented in this appeal. She was sent a letter in February 2018 indicating her right to appoint a representative, and she has not done so. Accordingly, the issues on appeal may be decided without prejudice to the appellant. 1. Entitlement to service connection for Peyronie's disease, to include as due to toxic herbicide agent exposure and/or treatment for a heart condition, for purposes of accrued benefits Service connection is sought for Peyronie’s disease. The Veteran’s asserted, in his September 2011 Notice of Disagreement, that his Peyronie’s disease was incurred due to exposure to Agent Orange, and in the alternative, to a 2009 surgery for a non-service connected heart condition. Generally, service connection can be granted if the evidence shows: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service event. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Under 38 C.F.R. § 3.303 (b), a causal relationship can be established by showing continuous symptomatology for diseases that qualify as a chronic disease listed in 38 C.F.R. § 3.309(a) (2016). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition to the regulations cited above, service connection is warranted for a disability aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). Finally, service connection is warranted for a veteran who has been exposed to toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307 (a)) for diseases such as chloracne or other acneform diseases consistent with ischemic heart disease, Type 2 diabetes, Hodgkin’s disease, non-Hodgkin’s lymphoma, porphyria cutanea tarda, multiple myeloma, prostate cancer, soft-tissue sarcomas, early-onset peripheral neuropathy, Parkinson’s disease, B-cell leukemias and chloracne and respiratory cancers. 38 C.F.R. § 3.309 (e). In this case, the Veteran mainly asserted that his Peyronie’s disease began after a sudden rush of blood to his penis during an operation for the placement of stents in his left and right iliac arteries. He also asserted that it could have onset due to Agent Orange exposure in service. First, regardless of whether the Veteran’s assertions regarding are the stents is medically or factually accurate, the Veteran’s heart disease was not service connected. Moreover, while the Veteran served in the Republic of Vietnam from 1965 to 1971, and is therefore presumed exposed to Agent Orange in service, Peyronie’s disease is not a disorder for which presumptive service connection may be awarded based on Agent Orange exposure. Accordingly, service connection for the Veteran’s Peyronie’s disease is not warranted on either of these asserted theories of entitlement. Secondary service connection being ruled out, the only remaining way service connection can be awarded is through showing direct service connection. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, service connection is also not warranted on this basis. Specifically, the service treatment records do not reflect complaints of, treatment for, or a diagnosis related a reproductive disorder in service. Indeed, the Veteran’s February 1974 separation examination report notes normal genitalia. In fact, the first noted indication of a reproductive disorder was not until after the Veteran’s surgery for a non-service connected heart disorder. The Veteran showed symptoms of and was diagnosed with Peyronie’s disease in 2009. This disease was not of record until over thirty years after the Veteran left active duty. Accordingly, a continuity of symptoms is not established based on the clinical evidence of record. Further, while the Veteran mentioned in a July 2011 visit that the problem “could have been” present prior to the stent placement, he does not truly assert that his disorder has been present since 1974. Therefore, continuity of symptomatology is not shown by the medical record or by the Veteran’s statements. Moreover, the competent medical evidence does not indicate a relationship between the Veteran’s current diagnosis and his active service. Specifically, the Veteran underwent a Compensation and Pension examination for male reproductive disorders in August 2016. The Veteran’s examiner explained that the Veteran’s disorder involves the growth of fibrous plaque in the soft tissue of the penis and affects approximately five percent of all men. The examiner thus opined that the Veteran’s Peyronie’s disease was less likely incurred in or caused by service. Because the record does not point to evidence suggesting a nexus to service, service connection is not warranted for the Veteran’s Peyronie’s disease. Moreover, again, the Veteran had not truly forwarded this argument on appeal. Consideration has been given to the statements made by the Veteran relating his Peyronie’s disease to active service. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). However, the Veteran was not competent to provide testimony regarding the etiology of a male reproductive disorder. See Jandreau, 492 F.3d at 1377, n.4. Because such disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, any unsubstantiated statements that Veteran’s disorder was due to service are found to lack competency. Considering the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. The appeal is denied. 2. Entitlement to a total disability rating based on individual unemployability, for purposes of accrued benefits (TDIU), prior to August 26, 2016 The appellant seeks a total disability rating based on individual unemployability prior to August 26, 2016 (as of this date, the Veteran was ineligible for TDIU due to his 100 percent rating for COPD). In this case, the Board concludes that TDIU is not warranted as the Veteran was not incapable of securing and following substantially gainful employment due to service-connected disabilities prior to that date. Total disability is considered to exist when service connected impairment is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned based on individual unemployability 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. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). As of his death in July 2017, the Veteran was service-connected for four conditions: COPD evaluated at 30 percent disabling from April 8, 2008, and 100 percent disabling from August 26, 2016; insomnia evaluated at 30 percent disabling from March 11, 2014; migraine headaches rated as 30 percent from August 5, 2014; and restless leg syndrome evaluated as 0 percent from April 8, 2008. His total disability rating was 30 percent prior to March 11, 2014, 50 percent from that date, and 70 percent from August 5, 2014. Because the Veteran never had a single disability rated at 40 percent or greater, the schedular requirements under 38 C.F.R. § 4.16(a) were not met prior to August 26, 2016. Moreover, the Board concludes that TDIU is also not warranted because the Veteran was not incapable of substantially gainful employment due to his service-connected disabilities. See 38 C.F.R. § 4.16(b). Indeed, the medical and lay evidence, including C&P examinations from April 2011 and September 2015 (migraine headaches), January 2012, February 2012, and August 2016 (COPD), and May 2009 VA Form 9 (restless leg syndrome), indicates that the Veteran’s service-connected disabilities did not preclude employment of any sort. While these reports indicate that the Veteran was unable to complete work requiring extended walking, sitting, or time outside, the Veteran would have been capable of work that was primarily non-physical. Indeed, a December 2010 VA counseling report found the Veteran to be sharp witted and able to answer questions relatively quickly. The Board acknowledges the medical and lay evidence asserting an inability to work due to COPD and a bilateral neurological leg disability. However, the fact that even a medical professional finds a veteran unemployable due to a service-connected disability is not dispositive, as the Board has ultimate responsibility for determining whether a veteran is unemployable. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board has also considered evidence indicating that the severity of the Veteran’s symptoms since their onset prevented him from walking more than 100 feet or sitting for prolonged periods. Notably, a December 2010 VA entitlement decision states that the Veteran had a “serious employment handicap.” However, the Board finds that the Veteran’s service connected symptoms did not prevent him from working at all, including in a job that not involving significant physical activity. Accordingly, the weight of the evidence is against the appellant’s TDIU claim. In sum, the Board determines that the Veteran was not unable to secure and follow substantially gainful employment during the period on appeal. As such, the appellant’s TDIU claim is denied. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel