Citation Nr: 21003079 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 13-04 771 DATE: January 19, 2021 ORDER An initial compensable rating for bilateral hearing loss is denied. An initial rating in excess of 10 percent prior to May 2, 2018, and in excess of 60 percent thereafter for seborrheic dermatitis is denied. As of May 2, 2018, a total rating based on individual unemployability due to service-connected disability (hereinafter, TDIU) is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to an initial rating in excess of 10 percent prior to May 2, 2018, and in excess of 20 percent thereafter for lumbar spine degenerative disc disease (DDD) with spondylolysis is remanded. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for sleep apnea, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for heart disorder, to include as secondary to service-connected disability, is remanded. Entitlement to a TDIU prior to May 2, 2018, is remanded. FINDINGS OF FACT 1. Throughout the pendency of the appeal, the Veteran had no worse than Level I hearing in the right ear and Level I hearing in the left ear. 2. Prior to May 2, 2018, the Veteran’s seborrheic dermatitis affected no more than approximately five percent of his entire body or exposed areas, did not require systemic therapy, and did not result in disfigurement, symptomatic scarring, scarring of a size so as to warrant a separate compensable rating, or any additional functional impairment. 3. As of May 2, 2018, the Veteran is in receipt of the maximum schedular rating for his seborrheic dermatitis, and such disability does not result in symptomatology that is not contemplated by the currently assigned rating. 4. As of May 2, 2018, the evidence of record demonstrates that the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation consistent with his work history and education. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 5107; 38 C.F.R. §§ 3.321, 4.1, 4.10, 4.85, 4.86 Diagnostic Code 6100. 2. Prior to May 2, 2018, the criteria for a rating in excess of 10 percent for seborrheic dermatitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.118, Diagnostic Code 7806. 3. As of May 2, 2018, the criteria for a rating in excess of 60 percent for seborrheic dermatitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.118, Diagnostic Code 7806. 4. As of May 2, 2018, the criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to December 1970 and July 1972 to October 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. Although the Veteran requested a Board hearing in his January 2013 substantive appeal, he withdrew that request in a November 2015 letter. See 38 C.F.R. § 20.702(e). The Board assumes jurisdiction of the Veteran’s claim for a TDIU as part and parcel of the increased rating claims on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). The appeal returns to the Board after an August 2017 Remand. Increased Disability Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 1. Entitlement to an initial compensable rating for bilateral hearing loss. The Veteran is service-connected for bilateral hearing loss, which has been rated noncompensably under 38 C.F.R. § 4.85, Diagnostic Code 6100 throughout the pendency of the appeal. He asserts that his hearing loss warrants a higher rating. Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made. Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment. 38 C.F.R. § 4.85. The appropriate auditory acuity level is determined based on a combination of the percentage of speech discrimination and the pure tone threshold average. Additional considerations apply when exceptional patterns of hearing loss are demonstrated, which are defined as either a) pure tone averages of 55 or greater at 1000, 2000, 3000, and 4000 Hertz, or; b) a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a). Once an acuity level is established for each ear, Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the appropriate disability evaluation. The appropriate rating is determined based on a combination of the levels of hearing impairment established for each ear. Impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. On VA audiologic evaluation in September 2010, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 20 35 40 LEFT 10 15 15 30 55 The pure tone average was 26.25 in the right ear and 28.75 for the left ear. Speech audiometry revealed speech recognition ability of 100 percent, bilaterally. These audiometry test results equate to Level I hearing in the right ear and Level I hearing in the left ear under Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level I hearing in the left ear result in a noncompensable disability rating. 38 C.F.R. § 4.85. On VA audiologic evaluation in October 2012, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 10 15 30 40 LEFT 10 15 15 30 60 The pure tone average was 23.75 in the right ear and 30 for the left ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. These audiometry test results equate to Level I hearing in the right ear and Level I hearing in the left ear, using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level I hearing in the left ear result in a noncompensable disability rating. 38 C.F.R. § 4.85. On VA audiologic evaluation in May 2018, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 45 55 LEFT 20 30 25 45 70 The pure tone average was 36.25 in the right ear and 42.5 for the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear. These audiometry test results equate to Level I hearing in the right ear and Level I hearing in the left ear using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level I hearing in the left ear result in a noncompensable disability rating. 38 C.F.R. § 4.85. The Board has reviewed the Veteran's treatment notes and found no discussion of on-going treatment or evaluations of his hearing loss disability. Further, the record does not indicate he has undergone audiological testing that suggests his hearing loss is more severe than reported above. The Board has considered the Veteran’s lay statements and reports of hearing loss for this period on appeal. Notably, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the United States Court of Appeals for Veterans Claims (Court) held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. In this regard, it was noted during the Veteran’s May 2018 VA audiological evaluation that he experienced problems in several situations, such as difficulty hearing when there was background noise, when he did not see the person’s face or have a lip reading opportunity, and when the person or sound source was at a distance. In September 2019, the Veteran stated that he had to ask people to repeat themselves and had to increase the volume on the TV louder than others preferred. Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, in this case, while the Veteran is competent to report observable symptoms of his hearing loss, such as difficulty understanding speech, he is not competent to report that his hearing acuity is of sufficient severity to warrant a certain percentage evaluation under VA’s tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). While the Board is sympathetic to the Veteran’s assertions that he has difficulty hearing, the VA rating criteria are definitive and provide for a precise result based on audiometric test results. His subjective report of difficulty hearing under situational circumstances unfortunately cannot be the basis for an evaluative rating. The Board is bound to apply the VA rating schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment. The rating criteria are designed to evaluate difficulty hearing, the complaint put forth by the Veteran. In this regard, in Doucette v. Shulkin, 28 Vet. App. 366 (2017), the Court held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are the effects that VA’s audiometric tests are designed to measure. The Veteran has not otherwise described functional effects that are considered exceptional or that are not otherwise contemplated by the assigned evaluation. Id. Thus, his complete disability picture is compensated under the rating schedule. Accordingly, after a review of the evidence the Board finds the Veteran’s bilateral hearing loss does not warrant a compensable rating at any time during the appeal period. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an initial rating in excess of 10 percent prior to May 2, 2018, and in excess of 60 percent thereafter for seborrheic dermatitis. The Veteran’s service-connected seborrheic dermatitis is currently rated as 10 percent disabling prior to May 2, 2018, and in excess of 60 percent thereafter, pursuant to Diagnostic Code 7806. 38 C.F.R. § 4.118. In this regard, Diagnostic Code 7806 provides a 10 percent rating where dermatitis results in at least 5 percent, but less than 20 percent, of the entire body affected, or at least 5 percent, but less than 20 percent, of exposed areas affected; or if intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than 6 weeks during the past 12-month period. A 30 percent rating is warranted if the dermatitis results in 20 to 40 percent of the entire body, or 20 to 40 percent of exposed areas affected; or systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted if more than 40 percent of the entire body, or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806. Diagnostic Code 7806 also provides that dermatitis may be rated under Diagnostic Codes 7800-7805, depending on the predominant disability. Such Diagnostic Codes provide compensable ratings for disfigurement of the head, face, or neck (Diagnostic Code 7800), scars that are at least six square inches (39 sq. cm.) (Diagnostic Codes 7801, 7802), or scars that are unstable or painful (Diagnostic Code 7804). Additionally, Diagnostic Code 7805 provides that any disabling effect not considered in a rating provided under Diagnostic Codes 7800-04 should be evaluated under an appropriate Diagnostic Code. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit held that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. In Warren v. McDonald, 28 Vet. App. 194, 197 (2016), the Court held that the types of systemic treatment that are compensable under Diagnostic Code 7806 are not limited to "corticosteroids or other immunosuppressive drugs;" rather, compensation is available for "all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs." Finally, in Burton v. Wilkie, 30 Vet. App. 286, 291 (2018), the Court held that there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects. Prior to May 2, 2018 Based upon the competent medical evidence of record, the Board finds an initial rating in excess of 10 percent for the Veteran’s seborrheic dermatitis is not warranted prior to May 2, 2018. On VA examination in June 2010, the Veteran reported that his condition waxed and waned but that the itching, flaking, scaling, and scabbing bothered him continuously. He denied scarring. His seborrheic dermatitis involved his scalp, chin, cheeks over the maxillary sinuses, and brow, and he experienced flare-ups with more scaling and redness. With respect to treatment, he used Ciclopirox shampoo three to four days per week and applied a topical solution daily. He also applied a topical solution for the areas on his face. In the past 10 years, he had required a 30-day course of oral antibiotics three times, most recently in March 2010. The VA examiner determined the Veteran did not have systemic symptoms related to his problem. Physical examination revealed two scabs on the scalp with very mild erythema and very light scale. The brow, cheeks, and chin area also had light erythema and minimal scale. The VA examiner reported the total area covered was mild and equal to approximately five percent of the Veteran’s skin and scalp, without scarring or disfigurement. In November 2012, the Veteran underwent VA examination for his skin condition where he reported scaling and scabs on the scalp. He stated the condition was worsening with breakouts on his chest, which appeared to be cyclic. The Veteran’s skin condition did not cause scarring or disfigurement of the head, face or neck, there was no presence of benign or malignant skin neoplasms, and the Veteran did not have any systemic manifestations due to any skin diseases. The Veteran’s treatment included topical medication of Ciclopirox for less than 6 weeks in the past 12 months. The Veteran did not have any treatment or procedures other than systemic or topical medications in the past 12 months for exfoliative dermatitis or papulosquamous disorders. Physical examination revealed the Veteran’s dermatitis covered less than 5 percent of the total body area and exposed area. Based on the foregoing, the Board finds an initial rating in excess of 10 percent under Diagnostic Code 7806 is not warranted for the Veteran’s seborrheic dermatitis prior to May 2, 2018, as such did not affect more than 20 percent of his entire body or exposed area, or require systemic therapy. There is also no indication that the Veteran’s topical medication was administered on a large enough scale such that it affected the body as a whole. As of May 2, 2018 Based upon the competent medical evidence of record, the Board finds a rating in excess of 60 percent for the Veteran’s seborrheic dermatitis is not warranted as of May 2, 2018. Pursuant to the August 2017 Board Remand, the Veteran underwent VA examination in May 2018, wherein the Veteran reported dermatitis mostly in his scalp. The symptoms were cyclical and present in the ear canal, scalp and sometimes on his chest. They did not cause scarring or disfigurement of the head, face, or neck. There was no presence of benign or malignant skin neoplasms. The Veteran also did not have any systemic manifestations due to any skin diseases. The Veteran’s treatment included constant/near-constant use of a topical corticosteroid, Clobetasol, and constant/near-constant use of ketoconazole shampoo. The Veteran did not have any treatment or procedures other than systemic or topical medication in the past 12 months for exfoliative dermatitis or papulosquamous disorders. The Veteran also did not experience any debilitating or non-debilitating episodes in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. Physical examination revealed the Veteran’s dermatitis covered 5 to at least 20 percent of the total body area and at least 40 percent of the exposed area. Finally, the VA examiner determined that the Veteran’s skin conditions did not impact his ability to work. As of May 2, 2018, the Veteran’s seborrheic dermatitis is evaluated as 60 percent disabling under Diagnostic Code 7806. Under both previous Diagnostic Code 7806 criteria, and the new General Rating Formula for Skin, a 60 percent rating is the maximum rating assignable. As such, a rating in excess of 60 percent is not permitted under the General Rating Formula. Diagnostic Code 7820 also permits the disability to be rated as disfigurement of the head, face, or neck, or as scars. Here, however, the Board finds the Veteran’s service-connected seborrheic dermatitis does not cause any disfigurement to the head, face, or neck so as to warrant a rating based on such symptomatology. Scars are also not identified. As a result, an increased rating in excess of 60 percent for seborrheic dermatitis under Diagnostic Code 7820 is not warranted. Consequently, to warrant a rating in excess of that already assigned for this period, the evidence must show symptomatology that is not contemplated by the rating criteria. In this regard, an exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran’s service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service. 38 C.F.R. § 3.321(b)(1). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. With respect to skin disorders, such diagnostic criteria consider the percentage of affected area(s) and the treatment required for such. In the instant case, the Veteran specifically describes symptoms of itching, flaking, scaling, scabbing, and redness affecting his scalp, brow, cheeks, and chin, treated with topical solutions. Here, the Board finds the Veteran has not described symptomatology not contemplated or described by the diagnostic criteria. As such, referral for consideration of an extraschedular rating is not warranted, and the 60 percent rating assigned for the Veteran’s seborrheic dermatitis as of May 2, 2018, is proper. Other Considerations In making its determinations in this case, the Board has carefully considered the Veteran’s contentions with respect to the nature of his service-connected disabilities at issue and notes that his lay testimony is competent to describe certain symptoms associated with those disabilities. The Veteran’s history and symptom reports have been considered, including as presented in the medical evidence discussed above, and has been contemplated by the disability ratings that have been assigned. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disabilities at issue. As such, while the Board accepts the Veteran’s testimony with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected conditions at issue. The Board has also considered whether additional staged ratings under Hart, supra, and Fenderson, supra, are appropriate for the Veteran’s service-connected disabilities on appeal herein; however, the Board finds his symptomatology referable to his bilateral hearing loss has been stable throughout the pendency of the appeal and his seborrheic dermatitis has been stable during the periods already established. Thus, assigning additional staged ratings for such disabilities is not warranted. Furthermore, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claims adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 3. Entitlement to a TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more 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). “Substantially gainful employment” is considered “work that involves doing significant productive physical or mental duties and is done for pay or profit” even if the work “is done on a part-time basis or if a claimant is paid less, or is given less responsibility than when the same claimant worked before.” In other words, a “substantially gainful occupation” is “one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran’s earned annual income” prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration regulations). Marginal employment generally shall be deemed to exist when a veteran’s earned annual 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. 38 C.F.R. § 4.16(a). Marginal employment may also be held to exist, on a facts-found basis (includes 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. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation 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. The non-economic component includes consideration of the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Although the Veteran submitted his original TDIU claim in December 2016, the instant appeal stems from the Veteran’s initial service connection claims for back pain, type II diabetes, tinnitus, and seborrheic dermatitis, which were received on August 31, 2009. As of May 2, 2018, the Veteran is service-connected for seborrheic dermatitis, evaluated as 60 percent disabling; diabetes mellitus, type II, evaluated as 20 percent disabling; lumbar spine DDD with spondylolysis, L5-S1, evaluated as 20 percent disabling; tinnitus, evaluated as 10 percent disabling; and bilateral hearing loss, evaluated as noncompensable disabling with a combined evaluation of 80 percent. Based on such, the Veteran meets the schedular threshold for consideration of a TDIU as of May 2, 2018. The record indicates the Veteran’s last full-time employment was in May 2010, when he reportedly became too disabled to work due to his service-connected disabilities. According to his application for a TDIU, he worked as a flight data specialist for the Federal Aviation Administration from June 2001 to March 2006 and as a base supervisor for the Department of the Army from March 2006 to May 2010. His highest level of education earned was a Bachelor’s degree in political science. According to a September 2020 report from a private vocational expert, upon review of the evidence of record and an interview with the Veteran, it was opined that “it is more likely than not that [the Veteran] has been precluded from securing and following substantially gainful employment by his service-connected seborrheic dermatitis, lumbar spine condition, tinnitus, and hearing loss…” It was explained that “the Veteran would be unable to apply any skills he may have acquired through his work experience due to the limitations from his service-connected conditions.” The vocational expert indicated that the Veteran’s “inability to stand for more than 5-10 minutes, sit for more than 10-15 minutes, or walk for prolonged periods would not meet the definition of even sedentary employment in which an individual must stand or walk for one-third of the work day and sit for two-thirds of the work day.” According to the vocational expert, the Veteran would also need to alternate positions as frequent as every five to 15 minutes which was excessive and would impair his ability to attend to work tasks for prolonged periods. The Veteran’s impaired concentration secondary to pain in his low back and itching caused by his service-connected skin condition, in addition to his back disability, “would also lead to excessive time off task and cause him to be unproductive more than would be acceptable by employers.” Furthermore, the vocational expert noted that the Veteran’s “difficulty hearing and understanding speech, as well as concentrating due to ringing in his ears… would impair his ability to interact effectively with others.” The vocational expert further stated the “limitations in concentration, productivity, and pace, as well as communication, would interfere with his ability to apply previously learned skills to new work tasks and would more likely than not cause him to have difficulty learning new work tasks.” Based on the above, the Board resolves all doubt in the Veteran’s favor and finds the evidence shows his service-connected disabilities render him unable to obtain or retain employment consistent with his work history and education. Accordingly, a TDIU as of May 2, 2018, is granted. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent prior to May 2, 2018, and in excess of 20 percent thereafter for lumbar spine DDD with spondylolysis is remanded. In August 2017, the Board remanded this matter for the Veteran to undergo a VA examination that complies with 38 C.F.R. § 4.59 and consistent with Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The Veteran was afforded a VA examination for his low back disability in May 2018. Although the VA examiner conducted joint testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing, the VA examiner failed to offer an opinion as to additional functional loss during flare-ups. In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court held that an examiner must “elicit relevant information as to the Veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record, including the veteran’s lay information, or explain why she could not do so”. Consequently, the Board finds an additional remand is necessary to obtain a retrospective opinion regarding the findings rendered in May 2018 and June 2010. In addition, the retrospective opinion should offer an opinion as to the range of motion findings related to pain on active and passive motion and in weight-bearing and nonweight-bearing on examination in May 2018 and June 2010. 2. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents, is remanded. The Veteran seeks entitlement to service connection for hypertension, to include as secondary to herbicide exposure. Following the August 2017 Board Remand, the VA conceded such exposure based on the Veteran’s nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. However, hypertension is not a disease that is entitled to presumptive service connection due to herbicide exposure pursuant to 38 C.F.R. § 3.309(e). Nevertheless, the Board notes that the National Academy of Science (NAS) Institute of Medicine’s Veterans and Agent Orange: Update 11 (2018) upgraded hypertension from its previous classification in the category of “limited or suggestive” evidence of an association with exposure to Agent Orange to the category of “sufficient” evidence of an association. According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. The Veteran has not been afforded a VA examination in connection with his service connection claim for hypertension. Given the evidence noted above, the Board finds a remand is warranted to schedule the Veteran for an appropriate examination and to obtain an opinion addressing the etiology of his claimed hypertension. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disability, is remanded. The Veteran contends his erectile dysfunction is secondary to a service-connected disability. According to a March 2020 VA examination report, the VA examiner opined that while erectile dysfunction was less likely as not secondary to his service-connected diabetes mellitus, type II, hypertension was a risk factor. As such, the Board finds the Veteran’s service connection claim for erectile dysfunction is inextricably intertwined with the claim for entitlement to service connection for hypertension remanded herein. Therefore, the Board finds that adjudication of this claim must be held in abeyance pending development of the claim for entitlement to service connection for hypertension. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). If service connection is awarded for hypertension, then an addendum opinion is warranted to determine whether the Veteran’s erectile dysfunction is proximately due to and/or aggravated thereby. 4. Entitlement to service connection for sleep apnea, to include as due to exposure to herbicide agents, is remanded. While the Veteran’s exposure to herbicide agents is established, obstructive sleep apnea is not listed in 38 C.F.R. § 3.309(e) as a disease related to herbicide exposure and, consequently, the presumptive provisions of 38 U.S.C. § 1116 do not apply. However, the Veteran can still establish service connection for sleep apnea on a direct basis, to include as due to such exposure. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran has not been afforded a VA examination for his sleep apnea. As the Veteran has a current diagnosis of sleep apnea, was exposed to herbicide agents in service, and asserts his obstructive sleep apnea is due to such exposure, the Board finds a remand is warranted to afford him a VA examination to determine the etiology of his sleep apnea. 5. Entitlement to service connection for a heart disorder, to include as secondary to service-connected disability, is remanded. Pursuant to the August 2017 Board remand, a VA examiner provided an opinion in March 2020 that it was “less likely than not [the] [Veteran’s] currently claimed and non-diagnosed Agent Orange related ischemic heart disease does not meet the criteria for Agent Orange related [ischemic heart disease] and is not related to his service.” The VA examiner explained that the Veteran had arteriosclerosis related to his longstanding cholesterol. The VA examiner stated that “[l]iterature supports the term [coronary artery disease] when referencing high cholesterol because it impacts the heart in the form of clogged vessels and arteries with the potential of causing [myocardial infarction] and [cerebrovascular accident]. It does not mean [the] [V]eteran had or has ischemic heart disease as required per Agent Orange presumptive service connection.” The VA examiner stated that hyperlipidemia is a form of heart disease and uncontrolled hypertension further increased the Veteran’s risk for non-ischemic coronary artery disease. The VA examiner explained that the Veteran “never had a myocardial infarction], does not have a diagnosis of ischemia, or any other heart condition required by Agent Orange.” In providing this opinion, the VA examiner referred to the Veteran’s medical record reflective of coronary artery disease as it related to high cholesterol and hypertension dating back to 2007. However, the Board finds that the VA examiner failed to consider and address the September 2016 private treatment records from Piedmont Healthcare providing a diagnosis of coronary artery disease and an abnormal electrocardiogram. Therefore, the Board finds that an addendum opinion is warranted to clarify whether the Veteran has a diagnosis of coronary artery disease and ensure all evidence has been considered before this claim is adjudicated. Furthermore, as the March 2020 VA opinion suggests the Veteran’s hypertension may have contributed to a current heart disorder, an additional opinion is warranted to address such matters. 6. Entitlement to a TDIU prior to May 2, 2018, is remanded. With respect to the Veteran's claim for a TDIU rating prior to May 2, 2018, the Board finds that this claim is inextricably intertwined with the pending development for the increased disability rating and service connection claims. The claim for entitlement to a TDIU prior to May 2, 2018, cannot be reviewed while the pending claims remain unresolved. Thus, adjudication of the TDIU claim must be held in abeyance pending further development of the Veteran's increased disability rating and service connection claims. The matters are REMANDED for the following actions: 1. Forward the record to an appropriate clinician for a retrospective opinion addressing the severity of the Veteran’s lumbar spine DDD with spondylolysis as documented at the May 2018 and June 2010 VA examinations. The record and a copy of this Remand must be made available to the clinician. The need for additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The clinician is requested to review the VA examinations containing range of motion findings pertinent to the low back disability conducted in May 2018 and June 2010 and address the following inquiries: (A) Offer an opinion, expressed in terms of degrees, if possible, regarding range of motion of the back on passive motion, with weight-bearing, and with nonweight-bearing for both the May 2018 and June 2010 VA examinations. (B) Offer an opinion as to the additional loss of range of motion present following repeated use and the additional loss of range of motion present during the Veteran’s reported flare-ups at the time of the May 2018 and June 2010 examinations. Such opinion should be expressed, if possible, in terms of degrees, and specifically include a discussion of the frequency, duration, characteristics, severity, and/or functional loss related to repeated use and such flare-ups, as reported by the Veteran at the time of the examination, if applicable. If the clinician cannot provide such opinions, he or she must make clear that he or she has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran) but that any member of the medical community at large could not provide such an opinion without resorting to speculation. A rationale for any opinion offered should be provided. 2. Schedule the Veteran for a VA examination for his claim for hypertension. Following a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s hypertension is related to his acknowledged in-service exposure to herbicide agents. In rendering such opinion, the examiner should clearly address the NAS IOM Update 11 (2018) in which hypertension was upgraded from its previous classification in the category of “limited or suggestive” evidence of an association with exposure to Agent Orange to the category of “sufficient” evidence of an association. In this regard, according to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. A complete rationale for any opinion offered should be provided. 3. If the service connection is awarded for hypertension, then obtain an addendum opinion from the March 2020 VA examiner, or an appropriate substitute if unavailable, to address the etiology of the Veteran’s erectile dysfunction. The VA examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s erectile dysfunction is proximately due to and/or aggravated by his hypertension. If aggravation is found, the VA examiner should identify a baseline level of severity of erectile dysfunction by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the erectile dysfunction. The Veteran’s lay statements and the March 2020 VA examination opinion must be considered and addressed in the opinion. A complete rationale for any opinion offered should be provided. 4. Schedule the Veteran for an appropriate examination to determine the nature and etiology of his claimed sleep apnea. Following a review of the record and all appropriate testing, the VA examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) any current sleep apnea is related to an in-service injury, event, or disease, to include his conceded exposure to herbicide agents. A complete rationale for an opinion offered should be provided. 5. Return the record to the VA examiner who conducted the March 2020 examination, or an appropriate substitute if unavailable, for an addendum opinion addressing the etiology of all current heart disorders. The need for additional examination is left to the discretion of the clinician selected to provide the opinion. Following a review of the record, the clinician should address the following inquiries: (A) Identify all heart disorders diagnosed during and proximate to the Veteran’s August 31, 2009, even if such have resolved or is asymptomatic. In this respect, the clinician should address the September 2016 private treatment records from Piedmont Healthcare providing a diagnosis of coronary artery disease and an abnormal electrocardiogram. (B) For each diagnosed heart disorder, the clinician should opine as to whether such is at least as likely as not (i.e., a 50 percent or greater probability) had its onset in, or is otherwise related to, the Veteran’s military service, to include his conceded exposure to herbicide agents. The clinician should note that the absence of a presumption for a disorder is not a bar to establishing service connection. (C) For each diagnosed heart disorder, the clinician should opine as to whether such is at least as likely as not (i.e., a 50 percent or greater probability) proximately due to and/or aggravated by a service-connected disability. For any aggravation found, the clinician should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A complete rationale should be provided for any opinion offered. M. M. Celli Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yoo, 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.