Citation Nr: 21065448 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 14-20 427A DATE: October 26, 2021 ORDER Entitlement to total disability based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for a skin disability, to include sebaceous cysts and residuals thereof, to include as secondary to service-connected scarring residuals of acne is remanded. FINDING OF FACT The Veteran is precluded from engaging in substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for the assignment of TDIU due to service-connected disabilities have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1972 to April 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before a Veterans Law Judge in May 2018. The Veterans Law Judge, who conducted the hearing, has since retired. The hearing transcript is associated with the claims file. The Veteran was provided notice of the Veterans Law Judge's retirement in September 2021. The September 2021 notice requested a response within 30 days if the Veteran desired another hearing. Since the Veteran did not respond to the September 2021 notice within 30 days, it is assumed that the Veteran did not want another hearing. The appeal was last remanded by the Board in September 2018 for additional development. Regrettably, more development is still necessary as to the Veteran's claim for service connection for a skin disability, to include sebaceous cysts. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that entitlement to service connection for an acquired psychiatric disability was previously on appeal; however, on remand the RO issued a June 2021 rating decision granting entitlement to service connection for an acquired psychiatric disability rated at 100 percent from March 27, 2012. Accordingly, entitlement to service connection for an acquired psychiatric disability is no longer on appeal. Entitlement to total disability based on individual unemployability (TDIU) Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, a total rating may nonetheless be granted on an extraschedular basis in exceptional cases (and pursuant to specifically prescribed procedures) when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16 (b). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). The Veteran has been awarded service connection for residuals of acne scarring rated at 30 percent from September 27, 2011 and an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) rated at 100 percent from March 27, 2012. The Veteran's combined rating was 30 percent from June 27, 2011 and 100 percent from March 27, 2012. The Veteran submitted an application for TDIU, VA Form 21-8940, in February 2021. The Veteran asserted on his application that he was unemployable due to his service-connected acquired psychiatric disability. The Veteran also stated that he last worked as a medical assistant in 2011 and as a painter in August 2011. An April 2012 VA treatment record notes that the Veteran reported that he could not work full-time due to pain. At the time he was unemployed and having difficulty finding employment. The Veteran was afforded a VA examination in June 2012. The VA examiner noted diagnoses of major depression, recurrent with psychotic features; a history of polysubstance dependence including ETOH, cocaine, and marijuana; and anti-social traits. The VA examiner's report noted that the Veteran moved to Florida five years prior after losing his construction business in Boston. He had done some part-time construction work in Florida but hadn't worked in six months. The VA examiner's report noted that the Veteran performed his own yard work, read the bible, and attended church. The Veteran received his GED while in the Navy and attended Broadcast school but never received a degree. The Veteran's symptoms included depressed mood, anxiety, suspiciousness, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and persistent delusions or hallucinations. The VA examiner determined that the Veteran was capable of managing his financial affairs. The VA examiner determined that the Veteran's psychiatric disabilities were manifested by occupational and social impairment with reduced reliability and productivity. The Veteran is in receipt of disability benefits from the Social Security Administration (SSA). On a May 2012 Adult Function Report, the Veteran reported that he had a severe psychiatric disability and hat he performed his own yardwork biweekly and attended church regularly. A May 2012 SSA disability determination determined that the Veteran was disabled as of November 15, 2011 and cited a primary diagnosis of osteoarthritis and allied disorders and a secondary diagnosis of affective/mood disorders. A November 2012 VA treatment record notes that the Veteran reported a history of suicidal ideations and also auditory hallucinations of voices telling him to stab his employer and wife. A January 2013 VA treatment record again noted that the Veteran was unemployed. The Veteran was afforded a VA examination for his scars in September 2013. The VA examiner determined that the Veteran's scars did not impact his ability to work. The VA examiner also noted that the Veteran moved to Florida five years prior after losing his construction business in Boston because a customer did not pay the Veteran $80,000 that he was owed. The Veteran had done some part-time construction work since moving to Florida but had not worked for the past six months. At the time of the examination, the Veteran reported that he performed his own yard work, read the bible, and attended church. A February 2015 VA treatment record indicates that the Veteran performed side jobs independently and that he was refused payment by a customer. The Veteran was afforded a hearing before a retired VLJ in May 2018. The Veteran testified that he was previously self-employed as a handyman and painter and did not have health insurance for most of his life because stress prevented him from getting a job working for someone else. The Veteran was afforded a VA examination for his service-connected acquired psychiatric disability in September 2020. The VA examiner noted diagnoses of PTSD and major depressive disorder with psychotic features recurrent. The VA examiner explained that the Veteran reported visual hallucinations identified as a black mist and demons in the eyes of others. The Veteran also reported auditory hallucinations of voices telling him to hurt his wife. At the time of the examination, the Veteran did not appear to be a danger of acting out on his hallucinations. The VA examiner explained that symptoms of both mental disorders overlapped such as mood disturbance, sleep difficulties, mild memory difficulty, irritability, anhedonia, and perceptual distortion. The VA examiner determined that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran was afforded a VA examination in March 2021 for his service-connected facial scars. The Veteran had tender scars on both cheeks with pain that was 2/5 in severity. The VA examiner determined that the Veteran's scars did not impact his ability to work. The Veteran submitted a private medical opinion in March 2021. The private examiner noted that the Veteran suffered from PTSD with symptoms of anxiety and depression. The private examiner also described the Veteran's PTSD as severe and his depression as moderate to severe. The Veteran was afforded a VA examination in May 2021 for his service-connected acquired psychiatric disability. The VA examiner's report noted a diagnosis of major depressive disorder with psychosis. The VA examiner determined that the Veteran's service-connected acquired psychiatric disability resulted in total occupational and social impairment. At the time of the examination the Veteran was taking prescription medication for symptoms of depression, insomnia, and nightmares. The Veteran was not suicidal. The Veterans symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, and persistent delusions or hallucinations. The Veteran was deemed capable of managing his or her financial affairs. The Veteran reported that when stressed he experienced auditory hallucinations that told him to hurt someone and that he coped by staying away from people and staying to himself. The Board finds that an award of schedular TDIU is warranted from March 27, 2012 due to unemployability caused by the Veteran's service-connected acquired psychiatric disability. At the outset, the Board notes that the Veteran has also been awarded service connection for residuals from acne scarring; however, the evidence has not shown that the Veteran's scarring impacted his ability to work. See September 2013 and March 2021 VA examiner's reports. The November 2012 VA treatment record and the September 2020 and May 2021 VA examiner's reports show that the Veteran's service-connected acquired psychiatric disability was manifested by delusions and hallucinations including auditory hallucinations of voices telling him to hurt his boss. The Board finds that this evidence supports the Veteran's assertions that he was incapable of working for someone else. See May 2018 hearing transcript. In addition, the evidence shows that the Veteran last worked regularly in 2011 and has only performed side jobs since that time. The Board notes that the RO previously determined that the Veteran's service-connected acquired psychiatric disability was of such severity to warrant a 100 percent rating. The Board agrees and finds that an award of TDIU is warranted from March 27, 2012. The Veteran was not awarded service connection for an acquired psychiatric disability prior to March 27, 2012 and his only other service-connected disability, scarring, has not been shown to impact his ability to work, accordingly an award of TDIU is not warranted prior to March 27, 2012. REASONS FOR REMAND Entitlement to service connection for a skin disability, to include sebaceous cysts and residuals thereof, to include as secondary to service-connected scarring residuals of acne is remanded. The Veteran's representative argued in an August 2021 informal hearing presentation that a September 2019 VA medical opinion was inadequate, that the examiner was not competent, and that the VA examination did not constitute substantial compliance with the Board's prior remand instructions. Specifically, the Veteran's representative pointed out that the September 2018 Board remand requested that an opinion be obtained from a dermatologist; however, the September 2019 VA medical opinion was obtained from a certified medical examiner specializing in family medicine. In addition, the Veteran's representative also argued that VA examiner failed to consider all of the skin disabilities experienced by the Veteran during the period on appeal. The Board acknowledges that the prior September 2018 Board remand requested that an examination be conducted by a dermatologist and that the subsequent September 2019 VA examination was conducted by a certified medical examiner trained in family medicine instead. The Veteran's representative asserts, without elaboration, that only a specialist can provide an adequate opinion in this case. Under 38 C.F.R. § 3.159, competent medical evidence is provided by any person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. The Veteran does not explain why a certified medical examiner with training in family medicine necessarily fails to satisfy these criteria. See e.g. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). Nevertheless, the Board finds that an opinion from a dermatologist would be beneficial as requested in the September 2018 Board remand. On remand, the AOJ should attempt to obtain an opinion from a dermatologist or another specialist with similar credentials In addition, the Board acknowledges that the September 2019 VA examiner only noted a diagnosis of a pilar cyst and did not address any of the past skin diagnoses noted in the Veteran's record during the period on appeal. For example, a February 2012 VA treatment record and a September 2013 VA examiner's report identified the Veteran's cysts as sebaceous cysts and diffuse xerosis with popliteal areas. A November 2012 private treatment record indicated that the Veteran's left lower extremity abscess could have been due to septic arthritis. A June 2015 VA treatment record notes that the Veteran's left lower extremity cysts could have been pyoderma gangrenosum, a mycobacterium infection, or related to tuberculosis. A July 2015 VA treatment record noted that the Veteran's cysts could have been pyoderma gangrenosum related to a hematologic malignancy. And, a January 2016 private treatment record indicated that the Veteran had pyoderma gangrenosa. Unfortunately, the September 2019 VA examiner only considered and addressed a diagnosis of a pilar cyst and did not consider any diagnosis for the lesions on the Veteran's lower extremity as reported during the period on appeal. All disabilities that existed during the period on appeal must be addressed. The Board notes that a disability which resolves, or becomes asymptomatic, during the pendency of a claim may still be subject to service connection. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, a new VA examination should be obtained from a dermatologist addressing all skin disabilities experienced by the Veteran during the period on appeal. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by a dermatologist to determine the nature and etiology of all skin disorders, to include sebaceous cysts or residuals thereof, and pyoderma gangrenosum. For each skin disability diagnosed, the examiner must opine whether it is at least as likely as not related to service, and if not, wither it is at least as likely as not (1) proximately due to his service-connected acne with scarring, or (2) aggravated beyond its natural progression by his service-connected acne with scarring. 2. Then, readjudicate the Veteran's claim. If the claim remains denied, issue a supplemental statement of the case and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi 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.