Citation Nr: 21062290 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 19-23 296 DATE: October 6, 2021 ORDER Entitlement to service connection for skin cancer is granted. Entitlement to service connection for neurofibroma is granted. Entitlement to a schedular total disability rating due to individual unemployability (TDIU) solely due to service-connected posttraumatic stress disorder (PTSD) from February 17, 2017, to June 21, 2021, is granted. Entitlement to special monthly compensation (SMC) at the housebound rate under 38 U.S.C. § 1114(s) from February 17, 2017, to June 21, 2021, is granted. REMANDED Entitlement to an extraschedular TDIU from June 21, 2021, is remanded. FINDINGS OF FACT 1. The Veteran's skin cancer was caused by his presumed exposure to herbicide agents in the Republic of Vietnam. 2. The Veteran's neurofibroma and residuals of the same are due to physical injury from a fall he sustained in active service. 3. The Veteran's service-connected PTSD has precluded him from securing or following a substantially gainful occupation. 4. As TDIU has been granted solely due to service-connected PTSD, the Veteran now has a service-connected disability rated as total and additional service-connected disabilities independently ratable at 60 percent or more. CONCLUSIONS OF LAW 1. The criteria for service connection for skin cancer are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for neurofibroma are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to a schedular TDIU solely due to service-connected PTSD are met from February 17, 2017, to June 21, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. 4. The criteria for entitlement to SMC at the housebound rate are met from February 17, 2017, to June 21, 2021. 38 U.S.C. § 1114(s), 5107; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from July 1964 to May 1968, to include service in the Republic of Vietnam (Vietnam). He also had periods of active duty for training and/or inactive duty training in the United States Marine Corps Reserve, United States Navy Reserve, and United States Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) from November 2013 and June 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In an August 2019 VA Form 9, the Veteran requested a Board hearing before a Veterans Law Judge on the issue of entitlement to a TDIU and a hearing was scheduled. In a January 2021 Correspondence, the Veteran, through his representative, notified the VA that he wished to cancel his request for a hearing. In May 2021, the undersigned Veterans Law Judge found good cause for an extension of time and granted a 120-day extension for the Veteran to submit additional evidence. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection for skin cancer is granted. The Veteran relates his skin cancer to exposure to herbicide agents during active service in Vietnam. The Board agrees. Regarding the first element of service connection, a current disability, the Veteran has been diagnosed with basal cell carcinoma of the skin, squamous cell carcinoma of the skin, and melanoma in the left forearm. See June 2021 and July 2017 VA treatment records; March 2021 private medical opinion; November 2012 VA agent orange program note; June 2005 histopathology report. Thus, the first element of service connection for skin cancer is met. Regarding the second element of service connection, in-service incurrence, evidence establishes that the Veteran served in Vietnam and is, therefore, presumed to have been exposed to herbicide agents incidental to that service. See Military Personnel Records. Furthermore, the RO has already conceded the Veteran's presumed exposure to herbicide agents and the Board will not disturb this favorable finding. See November 2013 rating decision. Thus, due to his service in Vietnam, the Veteran is presumed to have been exposed to herbicide agents and the second element of service connection for skin cancer is met. The first two elements of service connection having been met, service connection for skin cancer turns on a causal relationship between the current disability and in-service incurrence, otherwise known as a nexus. Because the Veteran's diagnosed skin cancers are not among the disabilities listed in VA regulations as presumptively caused by herbicide agent exposure, see 38 C.F.R. § 3.309(e), medical evidence establishing a causal link between the Veteran's skin cancer and herbicide agent exposure is necessary to grant the claim. See October 2020 C&P medical opinion (indicating the Veteran's skin cancers are not soft-tissue sarcomas eligible for presumptive service connection). The record contains favorable and unfavorable medical opinions regarding a nexus between the Veteran's skin cancer. A March 2014 private medical opinion stated that the Veteran's "multiple conditions . . . are as likely as not to have been caused by his exposure to herbicides." The Board, however, finds this positive opinion to be inadequate as it provided no rationale to support its conclusion. Furthermore, the opinion only references the Veteran's "multiple conditions" and his "particular skin disorders," rendering it insufficient to make a fully-informed decision regarding skin cancer. In addition, the websites cited as support in the opinion, which include ehow, Wikipedia, a veterans association, and a website with "landscaper" in the URL that could not be accessed, are general informational websites and not medical treatises; thus, their probative value is minimal. Lastly, the Board has already found this opinion to be inadequate for adjudicative purposes. See October 2020 Board remand. For these reasons, the March 2014 private medical opinion carries no probative weight. The record also contains a negative C&P nexus opinion rendered in October 2020. The October 2020 C&P examiner opined that the Veteran's skin cancer was less likely than not caused by his exposure to herbicide agents. The Board, however, finds the examiner's rationale inadequate and the opinion non-probative. To support the opinion, the examiner began by stating that "[s]kin cancer is not a presumptive condition of Agent orange exposure," which is not a proper basis for denying service connection and the examiner was instructed in the October 2020 Board remand to not base a negative opinion on this premise. Furthermore, most of the opinion relates the Veteran's skin cancers to other risk factors, such as prolonged sun exposure, ethnicity, age, sex, and genetics. The examiner, however, does not discuss why these risk factors are more likely the cause of the Veteran's skin cancer than herbicide agent exposure, other than to say that his service in Vietnam was "short" and "not considered prolonged exposure." This explanation is unconvincing as the examiner did not define "short" or "prolonged exposure," or provide any foundation or medical authority to support the notion that more time spent in the sun post-service is more likely to cause skin cancer than less time exposed to herbicide agents in service. Furthermore, the examiner discusses several statistics reflecting a correlation between skin cancer and age, sex, race, and sun exposurethe majority of which most likely pertain to individuals not exposed to herbicide agentsand fails to discuss any medical literature regarding herbicide agents and skin cancer (and we know such literature exists because some is discussed in the March 2021 private medical opinion). For these reasons, the Board finds the October 2020 negative nexus opinion to be inadequate and non-probative. That leaves a March 2021 positive private medical opinion by Dr. M.S. The March 2021 opinion states that the Veteran's skin cancers are at least as likely as not due to herbicide agents. The Board finds this positive opinion to be supported by an adequate rationale and probative. Dr. M.S. writes that a 2014 study found that 51 percent of 100 veterans enrolled in the VA's Agent Orange registry had the same type of skin cancers as the Veteran, a figure he described as "statistically significant." Dr. M.S. also noted that several research agencies have classified some of the chemicals found in herbicide agents to be carcinogenic. He also highlighted that the Veteran has multiple skin cancers, which he states is "extremely rare," and that the only "common thread in [the Veteran's] history that provides some rationale as to why [the Veteran] has suffered from various types of skin malignancies" is herbicide agent exposure. Further adding to its probative value, Dr. M.S. concedes that the Veteran has other risk factors for skin cancers, and notes that he is not ignoring those factors, but stresses that the Veteran also has exposure to herbicide agents which contain "chemicals that have been found to be tumor-promotors and carcinogens." Continuing, he states that "[i]t is simply impossible to determine whether the veteran would have developed skin cancers without exposure to [herbicide agents]." The Board finds Dr. M.S.'s opinion to be supported by an adequate and convincing rationale. In this regard, Dr. M.S. supported his opinion with a study involving veterans exposed to herbicide agents, which is more relevant and probative to the Veteran's case than statistics concerning the general population. Dr. M.S. also noted the chemical makeup of herbicide agents and cited findings of medical authorities that some of those chemicals have been found to be carcinogenic. Dr. M.S. also explains the rarity of the Veteran's several skin cancers occurring simultaneously, something that general statistics concerning other risk factors cannot explain, and that exposure to herbicide agents is the only plausible explanation for this "extremely rare" occurrence. Because of its well-supported rationale, the Board finds Dr. M.S.'s March 2021 positive medical opinion to be probative and in favor of granting the claim. In sum, the Veteran has several diagnosed skin cancers as well as presumed exposure to herbicide agents during active service in Vietnam. The record contains non-probative positive and negative opinions supported by inadequate rationales. The record also contains a private medical opinion from March 2021 by Dr. M.S. supporting the causal relationship between the Veteran's various skin cancers and his herbicide agent exposure. Dr. M.S.'s opinion is supported by a well-reasoned and convincing rationale and is probative. Thus, all elements of service connection for skin cancer are met, and the benefit sought on appeal is granted. 2. Entitlement to service connection for neurofibroma is granted. The Veteran relates his neurofibroma to herbicide agent exposure or, alternatively, to a fall he sustained in service. See March 2021 Statement in Support of Claim; March 2012 VA Form 21-526. As the record supports granting service connection for neurofibroma due to a fall, the Board will address only that theory of entitlement. Regarding the first element of service connection, a current disability, the Veteran has been diagnosed with neurofibroma. A June 2021 VA treatment record indicates the Veteran reported a history of cervical spine neurofibroma that was resected in the 1980s. A November 2012 VA agent orange program note describes the Veteran's neurofibroma as intermittent with remissions and indicates the Veteran reported residual neck pain. In April 1980, the Veteran underwent surgery for removal of an intradural neurofibroma. The Veteran states that he continues to feel daily residual pain from the surgery. See March 2021 Statement in Support of Claim. As the record shows that the Veteran was diagnosed with a neurofibroma, that the condition is intermittent, and that he continues to suffer from residuals of the surgery, the first element of service connection for neurofibroma is met. Regarding the second element of service connection, in-service incurrence, the Veteran reports that he was knocked to the ground from a 3-foot-tall structure and landed on his shoulder, causing pain for a few days. See March 2021 Statement in Support of Claim. The Veteran's report of this incident is credible and consistent with the places, types, and circumstances of his service in Vietnam. See 38 U.S.C. § 1154(a). Thus, the second element of service connection is met. The first two elements of service connection having been met, service connection for neurofibroma turns on a causal relationship between the current disability and in-service incurrence, otherwise known as a nexus. The record contains a negative and a positive nexus opinion regarding neurofibroma. An October 2020 C&P examiner opined that the Veteran's neurofibroma was less likely than not due to service. The Board finds this negative opinion to be non-probative as it is supported by an inadequate rationale. In this regard, the October 2020 C&P examiner stated that "[t]here is no medical basis for such an assumption"; the neurofibroma was excised by total laminectomy with no residuals; and neurofibroma is "benign, has a genetic component, may be multiple." First, the statement that there "is no medical basis for such an assumption" is vague, lacks explanation, and is not supported by any medical authority or medical principles. Second, the statement that the Veteran has not experienced residuals since removal of the neurofibroma is inaccurate as the Veteran has reported experiencing daily pain from the operation. Third, the statement that the condition is benign and "may be multiple" is also vague and its relevance to the opinion is unclear due to the lack of explanation. The examiner's comment that the condition has a "genetic component" is noteworthy; however, it is outweighed by other more favorable evidence of record (discussed below). For these reasons, the October 2020 C&P negative nexus opinion is supported by an inadequate rationale and lacks probative value. That leaves the March 2021 positive private medical opinion by Dr. M.S. The March 2021 opinion states that the Veteran's neurofibroma is at least as likely as not due to physical injury sustained during a fall in service. Dr. M.S. explained that although neurofibroma is "typically a genetic disorder, there have been studies indicating that trauma can lead to neurofibroma." He then discussed several case studies involving trauma-induced neurofibroma and noted research indicating that "trauma may possibly be a predisposing factor behind the development of solitary diffuse neurofibromas in patients [who] are not known to have neurofibromatosis." Dr. M.S. highlighted that the Veteran developed neurofibroma at the site of the injury, like what occurred in the discussed case studies. He further observed that although neurofibroma can be genetic in origin, the Veteran has no documented history of neurofibroma in his family according to the Veteran's in-depth study of his genealogy going back centuries. Due to evidence showing neurofibroma has not occurred in the Veteran's family and research demonstrating a link between trauma and neurofibroma, Dr. M.S. concluded it is at least as likely as not that the Veteran's neurofibroma is due to the in-service injury. The Board finds that this opinion merits probative weight based on its thorough and detailed rationale and citations to medical authorities. In sum, the evidence shows that the Veteran was diagnosed with neurofibroma and continues to suffer from painful residuals of the surgery to remove the neurofibroma. The Veteran's competent and credible lay reports also establish that he suffered trauma in service at the location where the neurofibroma developed. The record contains a negative nexus opinion that merits no probative weight due to its inadequate supporting rationale. The record also contains a probative positive nexus opinion with a robust rationale and discussion of studies showing a link between physical injury and neurofibroma. Thus, all elements of service connection for neurofibroma are met, and the benefit sought on appeal is granted. 3. Entitlement to a schedular TDIU solely due to service-connected PTSD from February 17, 2017, to June 21, 2021, is granted. The Veteran asserts that he is unable to secure or follow a substantially gainful occupation due to his service-connected PTSD. See July 2021 Correspondence. The Board agrees. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the Veteran is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran's standalone TDIU claim was filed on February 17, 2017. See February 2017 VA Form 21-8940. As of that date, the Veteran is in receipt of a 50 percent rating for PTSD; a 20 percent rating for diabetic neuropathy of the right upper extremity (to include carpal tunnel syndrome (CTS)); a 20 percent rating for diabetic neuropathy of the left upper extremity (to include CTS); a 20 percent rating for diabetes mellitus; a 20 percent rating for a voiding dysfunction; a 10 percent rating for diabetic neuropathy of the left lower extremity (to include sciatic nerve); a 10 percent rating for diabetic neuropathy of the right lower extremity (to include sciatic nerve); a 10 percent rating for tinnitus; and a noncompensable rating for bilateral hearing loss. The Veteran's combined rating was 90 percent from February 3, 2017, and as of June 21, 2021, his combined rating was 100 percent. Thus, the Veteran meets the schedular criteria for a TDIU from the date of the claim, February 17, 2017, to the date his combined evaluation became total, June 21, 2021. See 38 U.S.C. § 4.16(a). The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran last worked full-time in November 2016. See June 2017 VA Form 21-4192; March 2017 VA Form 21-8940; see also June 2021 Third-Party Correspondence (indicating work history ended in 2016); June 2021 VA Form 21-4138, Lay/Witness Statement (Veteran stating he has "not worked since November 2016"). As the record reflects that the Veteran has not worked since November 2016 and, therefore, he has not earned income from employment since November 2016, the economic component of entitlement to a TDIU is met throughout the appeal period. See Ray, 31 Vet. App. at 73. Turning to the noneconomic component, the Veteran has four years of college and work history in information technology (IT), telecommunications, consulting, and product development. See June 2021 Third-Party Correspondence. Because the Veteran's employment history is focused almost exclusively in the areas of IT, business, and office-type work, the Board will focus on how his service-connected PTSD affects his ability to perform that type of work. A March 2017 PTSD Disability Benefits Questionnaire (DBQ) indicates that the Veteran's PTSD is productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. His PTSD symptoms include recurrent, involuntary, and intrusive distressing memories of the traumatic events; recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic events; intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic events; marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic events; avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic events; avoidance of or efforts to avoid external reminders that arouse distressing memories; persistent negative emotional state; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; hypervigilance; exaggerated startle response; and sleep disturbance. His PTSD is also productive of depressed mood; anxiety; suspiciousness; chronic sleep impairment; circumstantial, circumlocutory, or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; and inability to establish and maintain effective relationships. The examiner indicated that the Veteran's PTSD symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. Regarding functional impact, the March 2017 psychiatric examiner opined that the Veteran "is not able to interact with coworkers and/or customers due to his PTSD symptoms, anxiety and irritability"; "He is unable to adapt to changes, stress, or demands at work"; and "He is not able to work in public or in an enclosed space/cubicle." In July 2021, a private vocational consultant assessed the impact of the Veteran's PTSD on his employability. In his report, the consultant opined that solely due to his PTSD, the Veteran "has been unable to secure and follow substantially gainful employment outside of a sheltered work environment, including sedentary unskilled work, since at least June 2015 to the present." He further opined that the Veteran is unable to meet "the standard requirements of sustaining adequate pace, productivity, and reliability, as well as appropriately interacting with others in the workplace, even in an unskilled sedentary work role, solely due to his service-connected psychiatric condition since at least June 2015." The consultant reviewed the Veteran's psychiatric records and concluded that "the amount of time the veteran would be impacted by distressing and distracting symptoms of his service-connected PTSD would render him off-task and/or absent more than would be tolerated by employers." The vocational expert also noted that the Veteran's "reliability, productivity, as well as issues with concentration and memory, would not be tolerated by employers in substantially gainful employment." He further highlighted that the Veteran's "tendency to become easily frustrated with others and isolate related to his PTSD would not be tolerated in competitive employment because all employment requires at least some degree of interaction with supervisors, coworkers, or the general public." Based on the above evidence, the Board agrees that the Veteran is precluded from securing or following a substantially gainful occupation solely due to his service-connected PTSD. As the July 2021 vocational expert explained, the Veteran's PTSD symptoms would render him unable to secure and follow employment consistent with his work history in IT and similar sedentary, office-type work. Specifically, his symptoms would adversely impact productivity, reliability, and the ability to maintain effective relationships with co-workers, customers, and the public. In sum, the probative evidence of record demonstrates that the Veteran's service-connected PTSD precludes him from securing or following substantially gainful employment. Although he has work experience that is readily applicable to a sedentary occupation based on the ordinary meaning of the term, which the Board broadly defines as white-collar office-type work, the vocational expert explained that the Veteran's PTSD symptoms would preclude him from performing this type of employment and the March 2017 examiner opined that he would be limited in his ability to follow such employment. See Withers v. Wilkie, 30 Vet. App. 139, 148 (2018). Accordingly, entitlement to a schedular TDIU solely due to service-connected PTSD is warranted from February 17, 2017, to June 21, 2021. 4. Entitlement to SMC at the housebound rate under 38 U.S.C. § 1114(s) from February 17, 2017, to June 21, 2021, is granted. As noted above, the Board was required to determine whether the Veteran's PTSD alone warrants a TDIU because it impacts his entitlement to SMC at a housebound rate. SMC benefits "are to be accorded when a veteran becomes eligible without need for a separate claim." Bradley v. Peake, 22 Vet. App. 280, 286 (2008); see Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011); Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (observing that entitlement to SMC is an "inferred issue" in the context of an increased rating claim). SMC is payable at the housebound rate when a veteran has a service-connected disability rated as 100 percent disabling, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or, (2) is permanently housebound because of a service-connected disability or disabilities. 38 U.S.C. § 1114(s)(1). TDIU may meet the requirement of a disability rated as 100 percent disabling for purposes of Section 1114(s)(1) only if the veteran's unemployability is based on a single condition. See Bradley, 22 Vet. App. at 293. As the Board has awarded TDIU in this decision based solely on his service-connected PTSD and the Veteran has additional service-connected disabilities ratable at 60 percent or more (a 20 percent rating for diabetic neuropathy of the right upper extremity (to include CTS); a 20 percent rating for diabetic neuropathy of the left upper extremity (to include CTS); a 20 percent rating for diabetes mellitus; a 20 percent rating for a voiding dysfunction; a 10 percent rating for diabetic neuropathy of the left lower extremity (to include sciatic nerve); a 10 percent rating for diabetic neuropathy of the right lower extremity (to include sciatic nerve); and a 10 percent rating for tinnitus), entitlement to SMC under 38 U.S.C. § 1114(s)(1) is warranted from February 17, 2017, to June 21, 2021. REASONS FOR REMAND Because the Veteran's combined evaluation is total as of June 21, 2021, he is not eligible for schedular TDIU from that date onward. See 38 C.F.R. § 4.16. To determine whether the Veteran meets the criteria for an extraschedular TDIU, remand is necessary to refer the matter to the Director of Compensation Service for extraschedular consideration. Any outstanding VA and private treatment records should also be secured. This matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, secure any outstanding relevant private treatment records. 3. Then refer the matter to the Director of Compensation Service for consideration of extraschedular TDIU solely due to service-connected PTSD. The Director is asked to review the entire claims file. At the time of issuance of this Board decision, the Veteran's combined evaluation is total as of June 21, 2021. However, after ratings are assigned to the two disabilities granted service connection in this decision (skin cancer and neurofibroma), the Veteran's combined evaluation may become total prior to June 21, 2021. Therefore, the Director is asked to confirm the date the Veteran's combined evaluation became total as it may change as a result of this decision and consider whether extraschedular TDIU is warranted from that date onward. K. A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.