Citation Nr: 20046975 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 17-26 752 DATE: July 14, 2020 ORDER Entitlement to a 70 percent disability rating, but no higher, is awarded for service-connected posttraumatic stress disorder (PTSD). Entitlement to service connection for hypogonadism, to include as secondary to exposure to herbicide agents, is denied. Entitlement to service connection for a lipoma, to include as secondary to exposure to herbicide agents, is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to exposure to herbicide agents, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran’s symptoms most closely approximate occupational and social impairment with deficiencies in most areas. 2. The Veteran’s hypogonadism first manifested after service discharge and is not shown to be related to service, including exposure to herbicide agents, or proximately due to service-connected disability. 3. The Veteran’s lipoma first manifested after service discharge and is not shown to be related to service, including exposure to herbicide agents, or proximately due to service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 70 percent disability rating, but no higher, for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.14, 4.130, Diagnostic Code (DC) 9411 (2019). 2. The criteria for entitlement to service connection for hypogonadism have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2019). 3. The criteria for entitlement to service connection for a lipoma have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1967 to September 1971. He also served in the Air Force from February 1991 to May 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi (Agency of Original Jurisdiction (AOJ)). The Veteran testified at a video conference hearing before the undersigned in February 2020. A transcript of the proceeding is of record. The Board notes that additional VA clinic records were added to the file in July 2020. None of these records contain any pertinent evidence regarding the dispositive issues on appeal. As such, there is no prejudice in adjudicating the claims decided at this time. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126–27 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 1. Entitlement to a disability rating in excess of 30 percent for service-connected PTSD The Veteran’s PTSD is rated under 38 C.F.R. § 4.130, DC 9411. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. A 30 percent disability rating for mental disorders to include PTSD is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but generally functioning satisfactorily, with routine behavior, self-care, and normal conversation, due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, and/or recent events). 38 C.F.R. § 4.130, DC 9411. A 50 percent disability rating for PTSD is warranted when the Veteran’s symptoms manifest as follows: occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (i.e. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and/or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. PTSD evaluated at 70 percent disabling requires the following manifestations: occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and/or the inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for mental conditions manifesting with total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The nomenclature employed in the portion of VA’s Rating Schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association. 38 C.F.R. § 4.130. This claim was initially certified to the Board in April 2019. As such, the 5th edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) applies to this claim. See 80 Fed. Reg. 14308 (Mar. 19, 2015). The prior version of the Diagnostic and Statistical Manual of Mental Disorders, DSM-IV, utilized Global Assessment of Functioning (GAF) scores ranging between zero and 100 percent, which theoretically represented the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. The DSM-5 recommended that the use of GAF scores be dropped for several reasons, including their conceptual lack of clarity and questionable psychometrics in routine practice. As the DSM-5 applies in this appeal, the Board may not consider the evidentiary value of any GAF scores. Golden v. Shulkin, 29 Vet. App. 221, 225 (2018). A review of the Veteran’s file reveals the following evidence regarding his PTSD. The Veteran sought entitlement to service connection for PTSD in September 2014. He explained that during his time in Vietnam, he and his fellow servicemembers experienced mortar attacks frequently. While he was generally managing well after he returned home, he now experienced nightmares, especially in light of recent terrorist activity. In March 2015, he received a VA examination for PTSD. At that time, he was diagnosed with both PTSD and unspecified depressive disorder, but the examiner, Dr. R.L., indicated that the symptoms of each condition are too intertwined to provide clear differentiation between the two. Dr. R.L. stated that the symptoms of his PTSD caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress (or that his symptoms are controlled by medication). The examination does report that the Veteran was prescribed 50 mg of Trazodone. The symptoms documented at that time included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances including work. Following this examination, the AOJ awarded service connection for PTSD and evaluated his condition as 30 percent disabling in a March 2015 rating decision. In January 2016, the Veteran filed a Notice of Disagreement with this rating decision, contending that his PTSD warranted a higher disability rating. He provided a Disability Benefits Questionnaire (DBQ) and additional assessment authored by a Dr. K.S in November 2015. He evaluated the Veteran’s PTSD symptoms as manifesting with total occupational and social impairment. The symptoms documented by Dr. K.S. included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances including work, inability to establish and maintain effective relationships, and persistent danger of hurting self or others. He elaborated more on these symptoms in his in-depth assessment. Dr. K.S. further reported, “This patient exhibits high levels of personal control and decorum which tend to obscure the seriousness of his internal negative emotional states, which have significant potential to cause rapid decompensation of his behavior, including violent manifestations.” In Dr. K.S.’s November 2015 assessment, he described the Veteran’s PTSD as rendering him “100 percent occupationally disabled, totally and permanently,” contending that the Veteran did not possess the ability to regulate his thoughts and emotions to a degree sufficient to reliably carry out tasks and/or responsibilities of any type of employment. He further expressed that the Veteran lacked the ability to remember and follow most instructions due to very significant attentional deficits caused by his PTSD symptoms. Additionally, he remarked, “…the patient’s PTSD symptom profile highly suggests that the patient would pose a threat to the safety of others and himself. He is prone to misinterpret the meaning of verbal and non-verbal behaviors of others as posing a threat to him and to behave inappropriately and potentially violently. The patient’s irritability, paranoid-like thinking, and hyper-vigilance all contribute to his being persistently on the edge of reactivity with others. The patient is prone to sudden and unpredictable anger over minimal frustration and inconvenience. He exhibits no potential for actual violence because he confronts his own violent ideation and reliably controls his impulses, but this holding phenomena causes significant emotional stress on the patient and his being dissatisfied with his mood and behavior, especially toward others.” In a Mental Residual Functional Capacity Assessment, Dr. K.S. further reported that he did not consider the Veteran to be malingering. He provided another assessment in February 2017, documenting largely similar information. He observed, however, that the Veteran was recently prescribed a higher dosage of both Citalopram (30 mg, up from 20 mg) and Trazodone (100 mg, up from 50 mg). CAPRI VA treatment records during this time, however, generally described the Veteran’s psychiatric symptoms as mild. He did not experience suicidal ideations, homicidal ideations, or hallucinations. His judgment and insight were described as “good,” and his thought processes were normal. A second VA examination for PTSD was performed in March 2017 by a Dr. L.Y. She also stated that the symptoms of the Veteran’s PTSD caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress (or that his symptoms are controlled by medication). She noted the Veteran sees Dr. K.S. once per week. Dr. L.Y. documented the Veteran’s PTSD as manifesting with sleep problems including nightmares and night sweats, restlessness, irritability, feeling overwhelmingly fearful, and distressing thoughts. He denied suicidal and homicidal ideations. Following the March 2017 examination, CAPRI VA treatment records continued to report symptoms as previously documented (i.e. no suicidal or homicidal ideations or hallucinations, good insight and judgment, etc.), but they do indicate he experienced increased sleep troubles and anxiety upon being diagnosed with cancer. Dr. K.S. provided another DBQ in July 2018, again contending that the Veteran experienced total occupational and social impairment due to the symptoms of his PTSD. These included depressed mood, anxiety, suspiciousness, panic attacks occurring more than once per week, chronic sleep impairment, impairment of short and long term memory, flattened affect, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work, and suicidal ideation. At this time, he reported seeing Dr. K.S. once per month. The Veteran’s most recent VA examination for PTSD was provided in February 2019. Dr. L.Y. was his examiner again, and this time she stated that the symptoms of the Veteran’s PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. At that time, he reported increased depression, sleep problems, restlessness, persistent rumination, anhedonia, disinterest in hobbies like watching television, decreased concentration, anxiety, racing thoughts, and irrational fears. He denied suicidal ideations, homicidal ideations, and hallucinations. CAPRI VA treatment records continued to report mild symptoms of anxiety, but no suicidal or homicidal ideations or hallucinations. Dr. K.S. provided his most recent narrative in January 2020, reiterating his contentions that the Veteran’s PTSD is “severe and 100 percent…totally occupationally disabling.” He also maintained that the Veteran “does not possess the stability of mood and clarity of thought to reliably carry out the tasks and/or responsibilities of any job description.” Symptoms reported by Dr. K.S. at that time included “traumatic memory intrusions multiple times per day, repeatedly interrupting his train of thought and activity; flashbacks with dissociation multiple times per week; distressing dreams multiple times per week; physiological reactions to memory triggers, including sweating and hyperventilation; avoidance; negative alterations in thought and mood; negative beliefs and expectations about himself, others, and the world; persistent negative emotional states, including fear, anger, and guilt; diminished interest and participation in significant activities; difficulty experiencing positive emotions; hyperarousal and reactivity; irritability; hypervigilance; excessive startle response; problems with concentration and memory; and chronic sleep disturbance with sleep deprivation and daytime drowsiness. A lay statement provided by the Veteran’s wife described these symptoms, as well. In weighing the evidence of record, the Board is persuaded by the findings of Dr. K.S. While Dr. L.Y. has interviewed the Veteran for VA examinations at least twice, Dr. K.S. has reportedly seen the Veteran 34 times in less than 3 and a half years. This level of interaction with the Veteran undoubtedly gives Dr. K.S. a clearer understanding of the level of his disability. At the very least, the evidence of record is in equipoise to permit the finding that the Veteran’s PTSD warrants a 70 percent disability rating. As referenced previously, a 100 percent disability rating is warranted for PTSD symptoms manifesting as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The Board recognizes that Dr. K.S. has referenced that the Veteran experiences suicidal ideation and there is persistent danger of hurting himself or others. However, Dr. K.S. has also indicated that “he exhibits no potential for actual violence because he confronts his own violent ideation and reliably controls his impulses.” The Veteran as demonstrated the capacity to avoid grossly inappropriate behavior. He has shown a capacity to perform activities of daily living including maintenance of personal hygiene. Additionally, the Veteran has been fully oriented in all spheres, and his memory loss has not risen the level of being unable to remember the names of close relatives, his own occupation, or his own name. overall, the lay and medical evidence does not establish that the frequency and severity of these symptoms rises to a level of “total” occupational and social impairment. An August 2019 VA clinic record reflected that the Veteran owned a funeral home and was helping with services. As such, the Veteran has some residual occupational capacity. For these reasons, the Board finds that a 70 percent disability rating is the most appropriate award for his service-connected PTSD. Service Connection Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303. Service connection may also 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). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For veterans who served on active duty continuously for 90 days or more during a period of war or after December 31, 1946, service connection may be awarded on a presumptive basis for certain “chronic” diseases listed in 38 C.F.R. § 3.309(a) if the chronic disease manifests to a compensable degree within a prescribed time period, which period is within one year of discharge from active duty in the case of diabetes mellitus. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. A veteran may also establish service connection for a “chronic” disease listed in 38 C.F.R. § 3.309(a) by demonstrating continuity of symptomatology. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). “Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.” 38 C.F.R. § 3.310(a). “Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence.” 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, and has one of the diseases enumerated under 38 C.F.R. § 3.309(e), that disease shall be service-connected (provided the requirements of 38 C.F.R. § 3.307(a)(6) have been met) even though there is no record of such disease during service. 38 U.S.C. §§ 1113, 1116; 38 C.F.R. §§ 3.307, 3.309. The diseases listed under 38 C.F.R. § 3.309(e) shall have become manifest to a degree of ten percent or more at any time after service, with some exceptions. 38 U.S.C. §§ 1116; 38 C.F.R. § 3.307(a)(6)(ii). Veterans who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 are presumed to have been exposed during such 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 U.S.C. §§ 1116; 38 C.F.R. §§ 3.307(a)(6)(iii). Lay evidence is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature.” Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. §§ 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. §§ 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 2. Entitlement to service connection for hypogonadism, to include as secondary to exposure to herbicide agents The Veteran contends that his hypogonadism is due to his exposure to herbicide agents during his active duty service in Vietnam. In reviewing 38 C.F.R. § 3.309(e), the Board notes that hypogonadism is not listed under the statute as one of the conditions that warrants entitlement to service connection on a presumptive basis based on exposure to herbicide agents in Vietnam. Furthermore, though the Veteran has submitted a number of articles regarding the effects of herbicide agent exposure, none of them appear to suggest that hypogonadism is an effect. The Veteran has submitted an article discussing a potential relationship between testicular cancer and herbicides, but this is a different disease process and is insufficient to suggest a relationship between hypogonadism and herbicide exposure. The file also contains an opinion from a February 2017 VA examiner finding that it is less likely than not that his hypogonadism has been caused or aggravated by service-connected diabetes mellitus type II. In particular, the examiner noted the onset of hypogonadism prior to diabetes mellitus, and reviewed laboratory findings for diabetes mellitus to support a finding that hypogonadism was not aggravated by diabetes mellitus. It was noted that medical literature did not support a causal link between diabetes mellitus and hypogonadism. In assessing the Veteran’s claim under the criteria for direct service connection, a review of the Veteran’s available service treatment records does not reveal that the Veteran received treatment for or a diagnosis of hypogonadism during his active duty service. CAPRI VA treatment records first document hypogonadism as a primary diagnosis in 2007, though it is unclear when he was first diagnosed. There is no competent evidence suggesting that hypogonadism had its onset in service, or is otherwise related to an event in service. Importantly, the Veteran does not allege, and the record does not suggest, that his hypogonadism first manifested in service. In particular, there is no lay or medical evidence of persistent or recurrent symptoms since service. Otherwise, the Veteran is not shown to possess the medical training and expertise to offer a competent opinion of any association between hypogonadism and active service, including herbicide exposure, or as being proximately due to a service-connected disability. The Board has also considered whether VA’s duty has been triggered to obtain further opinion. The AOJ has obtained an opinion concerning a potential association with diabetes mellitus, and the Board finds that the VA examination report obtained relies on an accurate factual predicate as determined by the Board and provides sufficient rationale supporting the conclusion reached. Otherwise, the Board finds that the preponderance of the evidence is against a finding of persistent or recurrent symptoms since service, and there is no competent evidence suggesting an association between hypogonadism and active service, herbicide exposure and/or any service-connected disability. As such, VA has no further duty to obtain opinion, even under the low threshold of McLendon. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (holding that a conclusory generalized statement that a service illness caused his present medical problems was insufficient to trigger duty to provide medical examination as this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every Veteran’s disability case). Given the lack of in-service event or any nexus linking his hypogonadism to service or service-connected disability, the Board must deny the Veteran’s claim for entitlement to service connection for hypogonadism on both a presumptive and direct bases as well as a secondary basis. There is no doubt of material fact to be resolved in the Veteran’s favor. 3. Entitlement to service connection for a lipoma, to include as secondary to exposure to herbicide agents The Veteran has not articulated with any specificity the details surrounding his claim for entitlement to service connection for a lipoma other than to contend that it is related to his exposure to herbicide agents from his active duty service in Vietnam. His VA treatment records document that in July 2008, he was diagnosed with a lipoma over his left eyebrow that had been present for approximately 3 years; it was subsequently excised in December 2008. A review of the file does not reveal he suffered from any residual effects as a result of the lipoma removal. There are no complaints of this mass or reports of treatment available in his service treatment records to suggest that this condition existed during his time on active duty. Furthermore, this lipoma did not develop until many years following service. There is, however, reference made to a boil on the Veteran’s trunk in his service treatment records, but the Veteran does not appear to contend that this is related to the condition for which he seeks service connection. Given the lack of in-service event or any nexus linking his forehead lipoma to service, the Board must deny the Veteran’s claim for entitlement to service connection for a lipoma on a direct basis In reviewing 38 C.F.R. § 3.309(e), the Board notes that masses, lipomas, and/or cysts are not listed under the statute as a condition that warrants entitlement to service connection on a presumptive basis based on exposure to herbicide agents in Vietnam. One of the studies provided by the Veteran references chloracne as an effect of exposure to herbicide agents; however, the medical evidence does not suggest that this lipoma was instead chloracne. As such, service connection cannot be granted on a presumptive basis either. The Board has also considered whether VA’s duty has been triggered to obtain further opinion. The Board finds that the preponderance of the evidence is against a finding of persistent or recurrent symptoms since service, and there is otherwise no competent evidence suggesting an association between the Veteran’s lipoma and active service, herbicide exposure and/or any service-connected disability. The Veteran is not competent to suggest such an association. As such, VA has no duty to obtain opinion, even under the low threshold of McLendon. See Waters, 601 F.3d 1274 (Fed. Cir. 2010). There is no doubt of material fact to be resolved in the Veteran’s favor. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as secondary to exposure to herbicide agents, is remanded. The Veteran contends that his hypertension is etiologically related to his exposure to herbicide agents while serving on active duty in Vietnam. The record contains an opinion indicating his hypertension is less likely than not related to his service-connected diabetes mellitus type II; however, there is not an etiology opinion considering the relationship between his herbicide agent exposure and hypertension. The Board acknowledges that hypertension is not listed as one of the conditions entitled to presumptive service connection based on exposure to herbicide agents under 38 C.F.R. § 3.309(e). Nonetheless, the Veteran has submitted studies suggesting a correlation between herbicide agent exposure and hypertension. The Board is additionally aware of findings by the National Academy of Science (NAS) suggesting an etiological association between the two. Given this evidence, the Board will remand for an opinion that considers whether the Veteran’s hypertension is etiologically related to his exposure to herbicide agents during his active duty service in Vietnam. 2. Entitlement to TDIU The Board finds that the issue of TDIU was raised during the February 2020 video conference hearing after having previously been denied in a March 2016 rating decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In the case at hand, the Veteran is presently service-connected for prostate cancer, evaluated as 100 percent disabling; PTSD, now evaluated as 70 percent disabling; and diabetes mellitus type II, evaluated as 20 percent disabling. The Veteran is also service-connected for erectile dysfunction and residual scars status post radical prostatectomy, each rated as non-compensable. His combined rating is 100 percent. As each of the Veteran’s disabilities combines to at least a 70 percent disability rating with one disability rated higher than 40 percent, the Veteran meets the schedular requirements for eligibility for a TDIU rating. A TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating generally renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. An exception to this is a separate award at the housebound rate or a TDIU predicated on a single disability (perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or more may warrant payment of special monthly compensation (SMC) under 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280 (2008). In this case, the Veteran is not seeking SMC at the housebound rate, and the record does not otherwise reasonably raise that matter. A review of the record reveals that the Veteran provided a VA Form 21-8940 in January 2016. At that time, he was not working. However, a VA treatment note dated August 2019 appears to indicate that he owned a funeral home and helped with the services there, suggesting he is presently employed (albeit in what appears to be sheltered employment). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (including but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). In light of this criteria, the Board will remand to seek clarification of the Veteran’s present income, given the statutory requirements. The matters are REMANDED for the following action: 1. The AOJ shall associate the Veteran’s most recent outstanding VA medical treatment records with his file, specifically those records from January 2020 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any private treatment providers that have treated him for hypertension. Thereafter, obtain and associate with the claims folder any private treatment records identified. 3. Conduct appropriate development to determine whether the Veteran owns a funeral home and, if so, determine his earned income. See VA TELEMEDICINE FOLLOW-UP NOTE dated August 20, 2019. 4. Then, the Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of his hypertension. The claims file must be made available to and be reviewed by the examiner. The examiner should specifically indicate whether the Veteran’s hypertension occurred in or is otherwise etiologically related to the Veteran’s military service, to include his exposure to herbicide agents while serving in Vietnam. The examiner should consider the following: • the study associated with the record as part of the Veteran’s lay statement in December 2016; • the VA etiology opinion considering the link between the Veteran’s hypertension and his diabetes mellitus type II; • CAPRI VA treatment records documenting a diagnosis of hypertension; • the Veteran’s February 2020 hearing testimony; • the March 2020 correspondence, providing studies linking hypertension and herbicide agent exposure; and • the recent determination by the National Academy of Sciences which upgraded hypertension to the “sufficient” category from “limited or suggestive,” indicating that “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. (continued on the next page) 5. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Victoria A. Banis, 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.