Citation Nr: 21063274 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 14-07 190A DATE: October 13, 2021 ORDER Entitlement to service connection for skin cancer is denied. Entitlement to a total disability rating based on individual unemployability (TDIU rating) prior to October 10, 2013, is denied. FINDINGS OF FACT 1. The Veteran's skin cancers are not of service origin and any skin cancers which clearly and unmistakably pre-existed his third period of active duty clearly and unmistakably underwent no increase during that period of active duty. 2. The Veteran has a four years of college education, and work experience as a firefighter, nurse, and college instructor but from December 1, 2012, the day after the Veteran's discharge from his last period of active duty, to October 10, 2013, his service connected disabilities did not precluded his ability to secure or follow a substantially gainful occupation during the relevant time frame. CONCLUSIONS OF LAW 1. The criteria for service connection for skin cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. 2. The criteria for a TDIU rating prior to October 10, 2013 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1990 to June 1991 with no overseas service; from June 2006 to September 2007 with service in Iraq; and from December 2011 to completion of his required active service on November 30, 2012, including combat service in the Persian Gulf, and his decorations include the Combat Action Badge and the Combat Medical Badge. These matters initially come before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2015 the Board remanded a claim for a rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). In December 2017 the Board granted a 70 percent rating for PTSD, denied a compensable rating for bilateral hearing loss, and reopened a claim for service connection skin cancer residuals but prior to de novo adjudication that claim was remanded for additional development, as was a claim for an increased rating for a lumbar spine disability. Also, claims for service connection for type II diabetes mellitus, and increased ratings for asthma, a right knee disability, and a back scar were remanded pursuant to the holding in Manlincon v. West, 12 Vet. App. 238 (1999) for the issuance of a statement of the case (SOC). Those matters were addressed in SOCs of August 24, 2018 and January 13, 2020, but appeals were not perfected by the filing of timely Substantive Appeals, VA Forms 9 or equivalent, and those matters have not been perfected for appellate consideration. A January 2020 rating decision granted service connection for a left lower lip scar, as a residual of actinic cheilitis (precancerous lesion) removal, which was assigned a noncompensable evaluation. In April 2020 the Board denied a rating in excess of 20 percent a lumbar spine disability but granted a separate 10 percent rating for right lower extremity radiculopathy (sciatic nerve) associated with the lumbar spine disability (which was effectuated by an April 24, 2020 rating decision), and dismissed entitlement to a TDIU rating prior to October 10, 2013, as moot because the Veteran had had a 100percent combined schedular rating since the time. The Board remanded claims for service connection for skin cancer and entitlement to a TDIU rating prior to October 13, 2013 for further development. Also, a claim for a rating in excess of 20 percent for left shoulder acromioclavicular (AC) sprain was remanded pursuant to Manlincon, Id., and an SOC as to that matter was issued on April 24, 2020 but that appeal was not perfected by filing a Substantive Appeal, VA Form 9 or equivalent, and that matter has not been perfected for appellate consideration. Initial Considerations In compliance with the 2020 Board remand, in May 2020, the Veteran was requested to complete and return enclosed releases to obtain private clinical records. However, he did not respond. Also, since that remand additional service records were sought and received. A June 23, 2013 Report of Contact reflects that the Veteran reported that his reserve unit had no STRs but that he maintained possession of them and had mailed in all copies of the STRs. Moreover, he was provided with another VA dermatology examination in July 2021 to obtain an additional nexus opinion, which was provided by that examiner. There is no allegation that the examination or opinion obtained was inadequate. Accordingly, there has been substantial compliance with the prior Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Service Connection Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curium, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as cancer, will be presumed related to service, absent an intercurrent cause, if shown as chronic in service; or, if manifested to a compensable degree within a presumptive period following separation from service; or, if noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). A veteran who served during a period of war will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C. § 1111. When the presumption of soundness attaches to a claim but there is a question of pre-existing disability, VA has the burden of establishing by clear and unmistakable evidence (1) that a disability pre-existed service and (2) that there was no aggravation during service. Wagner v. Principi, 370 F.3d 1089, 1096 (2004). A pre-existing injury or disease will be considered to have been aggravated during service where there is an increase in disability during service unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. However, aggravation of a pre-existing injury or disease will not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Davis v. Principi, 276 F.3d 1341, 1346-67 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In deciding whether a condition pre-existed service, the Board must consider the veteran's medical history, accepted medical principles, evidence of the "basic character, origin and development" of the condition, and "lay and medical evidence concerning the inception, development and manifestations" of the particular condition. 38 C.F.R. § 3.304(b)(1), (2). The term "clear and unmistakable evidence," as used in 38 U.S.C. § 1111, has been defined as evidence that "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258-89 (1999). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Reasonable doubt will be favorably resolved if there is an approximate balance of favorable and unfavorable evidence but if the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001). Entitlement to service connection for skin cancer It is contended that the Veteran developed skin cancer due to inservice sun exposure. Except to the extent that service connection has already been granted for a scar of the left side of the lower lip, as a residual of actinic cheilitis (precancerous lesion) removal, the claim for skin cancer is denied. The record does not show that the Veteran had any skin problems during his first period of active service from November 1990 to June 1991. During his second period of active service, from June 2006 to September 2007, in January 2007 the Veteran was seen for actinic keratosis, although the anatomical site was not specified. In May 2007 he was seen by a dermatologist for spontaneous bleeding from a papule in the anterior left axillary line which the Veteran believed may have been present for years but was unaware of any physical changes in the papule other than bleeding. He had a history of nonmelanoma skin cancer and actinic keratoses. On examination he had macules of the left cheek and left zygoma. An August 2007 STR reflects that the Veteran had had removal of basal cell carcinoma from the left leg and face. An August 2007 Post Deployment Assessment shows that he reported having skin diseases or rashes, and was concerned about basal cell cancer. Following the Veteran's second period of active service, a November 2007 STR reflects that the Veteran had actinic keratosis at an unspecified site. Private clinical records show that the Veteran had a basal cell carcinoma removed from his xiphoid process in January 2008. He had four actinic keratoses of the left medial calf and dorsal aspect of the left hand treated with liquid nitrogen cryotherapy. In June 2008 he had a chemical peel to treat multiple actinic keratoses of the face. In August and September 2008, he was treated for lesions of the left thigh and left calf. In January 2010 he was treated with liquid nitrogen cryotherapy for 15 areas of actinic keratoses, and again told to avoid strong sunlight. In December 2010 he was treated with liquid nitrogen cryotherapy for 16 areas of BCCs, and again told to avoid strong sunlight. Throughout 2011 to 2013 he continued to be treated for many skin lesions, variously diagnosed as squamous cell carcinoma, BCCs, and actinic keratoses. On VA examination in October 2009 (in the interim between his second and third periods of active duty) the Veteran reported having had basal cell carcinomas (BCCs) excised from his lip, left leg, and left shoulder during service. He related that the left shoulder lesion had first been excised in 2007 but recurred and was treated in 2008 with Mohs surgery. He related that the lip lesion had recently recurred. On physical examination he had scars of the left side of the lower lip; the anterior aspect of the left leg; the medial aspect of the left thigh; the superior aspect of the left shoulder, and the anterior aspect of the left shoulder. The diagnoses were status post residuals of basal cell carcinoma, by history, without objective evidence, due to which a more precise diagnosis could not be rendered because there was no objective data to support a more definitive diagnosis; and no evidence of recurrence of active basal cell carcinoma. The examiner opined that it would only be with a resort to mere speculation to opine that the Veteran's residuals of BCCs were the same or the result of his active duty because there was no evidence of evaluation or treatment of BCCs when inservice except for a notation in DD Form 2697 of August 21, 2007 reporting "basal cell cancer LT leg, face removed." There were no further records after service until March 2009 when he reported a history of skin cancer having been excised during an initial VAOPT visit. Following the Veteran's third period of active service, on VA examination of his skin in July 2013 he reported having had skin lesions since his first deployment in Iraq in 1990, and it became worse during his 2nd and 3rd overseas deployments, for which he had been treated on many occasions. The examiner reported that the Veteran was fair complexed and had generalized solar skin damage, with multiple actinic and seborrheic keratoses. The examiner opined that it was less likely as not the Veteran's skin cancer was due to his military service in 2006 and 2007. Based on a review of the evidence, a review of medical literature, and the examiner's clinical experience, the rationale was that although there was a well-documented history of multiple non-melanoma skin cancer which had been excised, that there was no objective evidence of active skin cancer during service in 2006 and 2007. During that service the Veteran was evaluated for a skin lesion of the anterior axillary line in May 2007 but there was no objective evidence of a biopsy of this lesion and, thus, there was no histologic findings of skin cancer during that period of service. Thereafter, he had multiple biopsies with findings of skin cancer in 2009, 2010, 2011, and 2012. While it was in the realm of possibility that he may have had a skin cancer lesion during that period of service, given his extensive history of such lesion and a biopsy of a chest lesion six months after discharge in 2007, there was no objective evidence of skin cancer during that period of service. The examiner further stated that sun exposure was the primary risk factor for skin cancer and it would be speculative to opine as to what degree of sun exposure during that period of service contributed to the development of his skin cancers because the Veteran had had a lifetime of sun exposure. The two most common nonmelanoma skin cancers, i.e., basal cell carcinoma (BCC) and squamous cell carcinoma (SCC), were directly correlated with accumulated sun exposure over many years. Given the Veteran's fair complexion and having grown up in the state of Florida, and thus likely having had extensive sun exposure, he had risk factors for developing skin cancer. On VA dermatology and scar examinations in December 2018 the Veteran's records were reviewed and recited in detail. On examination he had diffuse solar "lentigines" and tanning of the trunk and upper extremities but no current skin cancer lesions. He had sutures in the dorsal aspect of his right hand for a recent resection of a skin cancer. He had several old, well healed scars which were stable, superficial, linear, an incisional but not all the scars correlated with the available reports of dermatologic surgeries. The dermatology diagnoses were: a history of non-melanoma skin cancers, treated and not currently active; a history of removal of papule from the left anterior axillary line (anterior aspect of the armpit) during the second period of service, resolved without residuals; and a history of cryotherapy removals of benign skin lesions during the second period of service, resolved without residuals. The scar diagnosis was an upper back mid-line scar from superficial squamous cell carcinoma removal. The other smaller scars from non-melanoma skin cancer removals could not be accurately matched to available pathology reports (private dermatology reports from 2008 to 2013). The examiner opined that the Veteran's actinic cheilitis, a precancerous lesion, of the left side of the lower lip most likely developed from cumulative sun exposure during and outside of military service but was diagnosed shortly after his second period of active duty and noted to have developed during the second period of active duty. However, the examiner opined that it was less likely as not that the Veteran's scar residuals of non-melanoma skin cancers originated during or were otherwise etiologically related to any of the Veteran's periods of active military service, based upon medical literature review, clinical experience, medical treatment record (MTR) review, and examination of the Veteran. The medical treatment records documented Veteran's removals of non-melanoma skin cancers--to include basal cell carcinoma (BCC) and squamous cell carcinoma (SCC) and of those with visible residuals, the evidence weighed against the removals having occurred during active duty. The examiner stated that medical literature did not support at least a 50percent likelihood that Veteran's non-melanoma skin cancers--to include BCC and SCC were are etiologically related to his periods of active duty. The rationale was that according to "UpToDate (a peer-reviewed compilation of the current medical literature)", "Epidemiologic studies indicate[d] that cumulative sun exposure (principally UVB radiation) is the most important environmental cause of cutaneous SCC. In contrast, intense intermittent sun exposure (eg, sunburn, childhood exposure) is the most important risk factor for BCC and melanoma." Moreover, the Veteran described having had significant sun exposure throughout his life. He was raised in Florida, from the age of 4 years--with recollection of having experienced sunburns while growing up. He had light skin, a positive family history (parents) of skin cancers, and had continued to reside in Florida. Further, although the Veteran was likely exposed to sun during portions of his approximately 2 years 9 months of total active duty service, his last period of active duty was predominantly administrative (and, thus, not likely to be exposed to excessive sunlight). Additionally, dermatology records documented that a majority of Veteran's non-melanoma skin cancers (NMSC) had been removed from regions typically covered by uniform clothing. A review of STRs and other medical treatment records did not find evidence which supported at least a 50percent probability of aggravation of non-melanoma skin cancers (NMSC) during active duty. It was most likely that Veteran's non-melanoma skin cancers (NMSC) lesions had been etiologically related to the sun-exposure experienced during his many years outside of active duty service. Thus, a nexus (through causation or aggravation) cannot be made between Veteran's non-melanoma skin cancers conditions and his military service. Pursuant to the 2020 Board remand, in July 2021 the Veteran's records were reviewed. The reviewing clinician opined, "The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The rationale was that the Veteran was first seen for skin lesions in 2008, which was after the second period of active duty and prior to his third period of active duty. The medical records did not show a specific cause of the skin lesions that occurred during military services to cause the Veteran to develop skin cancer. It was opined that the skin cancers were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. It was also opined that the skin cancers clearly and unmistakably pre-existed entrance into the third period of active duty and that rationale was that the medical records documented treatment for skin cancers prior to the third period of active duty. It was also opined that there was clear and unmistakable evidence that the skin cancers were not aggravated during the third period of active duty, again noting that medical records did not show a specific cause of the skin lesions that occurred during military service to cause the Veteran to develop skin cancer. The Board notes that the clinician rendering the July 2021 opinion was incorrect in stating that there was no evidence of skin lesions until 2008 which was after the Veteran's second period of service because the evidence shows that he was seen and treat for actinic keratosis and basal cell carcinoma during his second period of service. Nevertheless, all of the other medical opinions of record are to the effect that his variously diagnosed skin lesions (other than the actinic cheilitis of the lower lip) did not originate during any period of active duty. In fact, the opinion of the most detailed examination and review in 2018 was that the skin lesions were not etiologically related to any of the Veteran's three periods of active duty. In opposition to the several negative VA medical opinions there is only the Veteran's opinion that he his skin lesions, which have been variously diagnosed, are related or due to his exposure to excessive sun light during several periods of active duty. In espousing this lay conclusion, there has been no mention or consideration of such exposure outside of his periods of active duty. On the other hand, the unfavorable medical opinions also considered his fair complexion in addition to excessive exposure to sunlight outside of his periods of active duty. Furthermore, the only opinion addressing whether any skin cancers which pre-existed his third period of service found that they clearly and unmistakably had and, also, had clearly and unmistakably not been aggravated during his third period of active service. The Board gives greater weight to the opinions of the VA clinicians, and particularly those in 2018 and 2021, because they were based on a review of the record, the clinical experience of the clinicians, and also upon medical literature. This evidence far outweighs the Veteran's lay hypothesizing as to the service origin of his various skin cancers. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for skin cancer and, so, there is no doubt to be resolved. Entitlement to a TDIU rating prior to October 10, 2013 The Veteran was assigned a 100 percent schedular rating for asthma with obstructive sleep apnea (OSA) effective October 210, 2013, and it is contended that prior thereto the Veteran's service-connected disabilities precluded gainful employment. However, the Board concludes that the preponderance of the evidence weighs against finding that service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation during that time. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.19. As noted, the Veteran had three periods of active duty. It is not contended or shown that he was incapable of substantially gainful employment during the interim between his first and second periods of active duty, or in the interim between his second and third periods of active duty. Moreover, the fact that he was capable of performing his third period of active duty affirmatively establishes that he was so capable. Because he has been in receipt of a 100 percent schedular rating since October 10, 2013, the relevant time period for which it must be determined whether a TDIU rating is warranted is from the day after discharge from his third period of active duty, i.e., December 1, 2012, until the assignment of the 100 percent rating for asthma with OSA, i.e., October 10, 2013. During this time, he had a combined rating of 90percent, effective since February 3, 2011. A veteran is totally disabled if service-connected disability or combination of service-connected disabilities is rated at 100 percent under to the Schedule for Rating Disabilities, or even if less than 100 percent disabled if he satisfies two requirements in 38 C.F.R. § 4.16(a) which are there is one service-connected disability it must be rated 60 percent or more; but, if there are two or more service-connected disabilities, at least one must be rated 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. Second, it must be found that there is an inability to secure and follow a substantially gainful occupation due to service-connected disabilities. Id.; see also 38 C.F.R. §§ 3.340(a)(2), 4.19. During the time from December 1, 2012, until the assignment of the 100 percent rating for asthma with OSA, i.e., October 10, 2013, the Veteran was service connected for PTSD, rated 70 percent; asthma with OSA, rated 50 percent; right knee degenerative joint disease, rated 10 percent; lumbosacral strain with disc space narrowing and spondylolisthesis, rated 20 percent; left shoulder acromioclavicular (AC) sprain, rated 10 percent from December 1, 2012 and 20 percent from February 25, 2013; tinnitus, rated 10 percent; right leg radiculopathy, rated 10 percent from September 16, 2013; and bilateral hearing loss, rated noncompensably disabling. During the time from December 1, 2012, October 10, 2013, service connection was not in effect for a scar of the back or for scar of the left side of the lower lip, as residual of removal of actinic cheilitis (precancerous lesion). He had a combined disability evaluation of 90 percent from December 1, 2012 (until a 100 percent schedular rating was assigned for asthma with OSA from October 10, 2013). Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined as employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides. It also has been defined as "an occupation that provides an 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." Faust v. West, 13 Vet. App. 342 (2000). "[U]nable to secure and follow substantially gainful employment" in 38 C.F.R. § 4.16(a) comprises both economic and noneconomic components, which required consideration of a wide range of factors and one is a veteran's ability to perform sedentary activities. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Consideration may be given to factors such as level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991) (citing Timmerman v. Weinberger, 510 F.2d 439 (8th Cir. 1975)). A January 25, 2010 VA Psychiatry Consult note reflects that the Veteran had worked for a municipal fire and rescue department for 34 years and had retired on December 25, 2009. On VA PTSD examination of July 6, 2010, it was noted that he had retired due to eligibility by age or duration of employment, and it was noted that a February 2010 treatment noted showed that he was working on a master's degree and taught part-time at a community college. In VA Form 21-8940, Application for Increased Compensation Based on Unemployability, dated and received in July 2016, the Veteran reported that he had last worked full-time on November 29, 2012 but had become too disabled to work on December 1, 2012 due to his service-connected disabilities. He had four years of college education but had not tried to obtain full-time employment since he became too disabled to work. He had work experience as a paramedic. In VA Form 21-4192, received in September 2016, from Florida State College, it was reported that the Veteran had been employed on a part-time basis since January 2010 as an adjunct instructor, teaching at a college level continuously since January 2013, although he had not worked in 2012. As to impairment from service connected disorders, at the time of the Veteran's initial VA outpatient treatment (VAOPT) visit on March 30, 2009, it was noted that the Veteran had a history of chronic pain of his right hand and his left ankle, and both shoulders. He had had surgery on each knee. On VA PTSD examination in July 2010, it was noted that the Veteran was taking psychotropic medication and had received individual psychotherapy but had not been hospitalized for psychiatric treatment. He had a bachelor's degree in nursing. He did not desire to socialize but had no history of assaultive behavior or violence or suicide attempts. While he related that his wife reported that he was forgetful, on mental status examination his immediate, recent, and remote memory were all normal. The examiner opined that the Veteran had occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks but with generally satisfactory functioning. A February 25, 2013 VA Physical Therapy Consult shows that the Veteran was evaluated for increasingly severe chronic low back pain which radiated into his right leg. He was able to ambulate without any assistive device. VA audiology evaluation of July 2013 revealed that the Veteran had a bilateral sensorineural hearing loss and that he reported that it had become worse such that he had to wear hearing aids all the time, and he had difficulty hearing in the presence of background noise and had to have the volume of the TV turned up loud. Audiometric testing revealed an average threshold level at pertinent frequencies of 40 decibels in the right ear and 50 decibels in the left ear, with discrimination ability of 84 percent in the right ear and 76 percent in the left ear, for Level II hearing acuity in the right ear and Level IV hearing acuity in the left ear. He also had tinnitus, which the examiner reported did not impact the ordinary conditions of life. On VA examination in July 2013 of the Veteran's spine it was noted that the Veteran had had a laminectomy in 1998. Since his last period of service, he had gone to pain management and had one injection of analgesic medication. He did not use a back brace or any assistive device for ambulation. Pain began at 70 degrees of flexion, without any change on three repetitions of motion. He had no guarding or muscle spasm. He had normal reflexes and sensations, as well as full strength in the lower extremities. The examiner indicated that the low back disorder did not impact the Veteran's ability to work. On VA examination in July 2013 the Veteran complained on constant right knee pain, and X-rays revealed moderate to severe medial joint space osteoarthritis and mild lateral and patellofemoral osteoarthritis. On examination he had full right knee extension and flexion to 120 degrees at which point he developed pain, and there was no change after three repetitions of motion. His functional loss consisted of painful and limited motion, but he had full strength and no instability. He used a right knee brace about 75percent of the time. The examiner reported that the right knee condition did not impact the Veteran's ability to work. On VA examination in July 2013 of the Veteran's left shoulder it was noted that he had had a dislocation and labrum tear in 2007. He was right handed. The Veteran reported that lifting and overhead motion caused flareups. On examination left shoulder flexion was to 90 degrees and abduction was to 80 degrees, at which points pain began, and there was no change after three repetitions of motion. His functional loss consisted of painful and limited motion, but he had full strength. The examiner reported that the left shoulder condition did not impact the Veteran's ability to work. On VA respiratory examination in August 2013 the Veteran reported intermittently using a nebulizer for his asthma but not antibiotics, oral bronchodilators, or continuous oxygen therapy. He did not require the use of oral or parenteral corticosteroid medications. Pulmonary function testing revealed the best prediction of his respiratory disability was his ratio of forced expiratory volume after one second (FEV-1) to Forced Vital Capacity (FVC) which was 98percent of predicted. The examiner reported that the asthma did not impact the Veteran's ability to work Records of the Bahri Orthopedics & Sports Medicine Clinic reflect that in September 2013 the Veteran was treated for low back pain which radiated to the right calf. He was full weight-bearing and did not use any assistive device for ambulation. On examination thoracolumbar flexion was to 50 degrees. He was referred to a pain management clinic for physical therapy. A December 2013 statement from a physician of Respiratory Critical Care & Sleep Medicine Associates reported that the Veteran now had severe asthma requiring aggressive inhalation and likely infusion therapy to control. Overall, during the relevant time frame, the Veteran's service-connected disabilities certainly make it difficult to obtain or keep employment, as recognized by his assigned disability rating, but did not render him unemployable or preclude him from performing the physical and mental acts required by employment. Rather, despite significant impairment from nonservice-connected disorders, he was able to continue working full-time until the end of his third period of active duty, on November 30, 2012. He has not worked full-time since then, but the fact that the Veteran has chosen only to work on a part-time basis thereafter or had difficulty obtaining employment is not enough; the evidence must more nearly reflect that the Veteran was not capable of performing the physical and mental acts required by employment. See Van Hoose, 4 Vet. App. 361. The Board finds the objective medical evidence consisting of medical opinions as to his functional ability to be of greater probative value as to the Veteran's level of impairment than his self-reported level of functional impairment. The medical opinions, and the evidence overall, do not indicate that during the relevant time he was incapable of obtaining or retaining substantially gainful employment which would not require arduous or strenuous physical activity. Withers v. Wilkie, 30 Vet. App. 139, 148 (2018) held that while 38 C.F.R. § 4.16 "does not make the concept of sedentary work an explicit TDIU factor" if TDIU is denied because "a veteran is capable of sedentary work" this must be explained in the context of that case." Thus, while not a legally governing consideration, the ability to perform sedentary work can be a relevant factor and a finding that sedentary employment is possible can be determinative when explained in relation to past education and occupational history. See id. However, neither VA nor the Court has explicitly defined the term "sedentary employment." Withers, Id. The Board finds that sedentary employment is the common meaning in society of non-physical, white collar, office-type work. The Board envisions potential sedentary employment to encompass administrative, managerial, or other forms of employment that would not require the Veteran to spend a significant amount of time standing, ambulating or physical activity requiring lifting, bending, walking, or standing for long periods of time, and would permit the Veteran to take periodic breaks. The Board acknowledges that the Veteran's service-connected disabilities would reasonably cause some occupational limitations, and particularly in employment that is physically intensive. However, during the relevant time frame, his service-connected disabilities alone were not shown to be severe enough to prevent him from securing or following substantial employment that is relatively non-labor-intensive and does not require repeated heavy and/or repetitive lifting, prolonged sitting, standing, etc. Based on the evidence of record showing a college education and work experience in nursing and teaching, the Board finds no readily apparent reason why the Veteran would not be able to secure and follow substantially gainful employment performing clerical work or other office work, taking necessary precautions (e.g., avoiding lifting heavy items) and while taking regular breaks, as needed. In fact, his college education aligns with an ability to perform sedentary work or even of an unskilled or semi-skilled nature that does not require specialized training, such as clerical, inspection, or assembly work. He would be capable of a variety of forms of employment that require some degree of writing, arithmetic, computer skills, or other tasks consistent with his work history. Indeed, although service connected for PTSD, the evidence does not establish that it was of such severity as to have impaired his mental status, his ability to concentrate, and focus on tasks at hand. To the extent that the Veteran would require unscheduled breaks to alleviate pain for discomfort from physical pain and difficulty breathing, the evidence does not reflect that an employer cannot make reasonable accommodations (e.g., breaks to rest) for the Veteran. The Americans with Disabilities Act (ADA) mandates reasonable accommodations for employees with substantial disabilities so long as the employee can satisfactorily perform the work once those accommodations are made. See 42 U.S.C. Chapter 126. No evidence is of record demonstrating that he requires any workplace accommodations that would be extraordinary or beyond those that would be required by the ADA. Thus, the Board concludes that the preponderance of the evidence demonstrates that despite the impact of his service-connected disabilities the Veteran could still perform sedentary work because, irrespective of his age and nonservice connected disabilities, he could perform work, such as that described above, which would allow him to sit or stand at will, or take breaks to sit or stand as needed. Thus, an award of a TDIU rating from December 1, 2012, to October 10, 2013, is not warranted. For these reasons and bases, on balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fussell, 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.