Citation Nr: 21006546 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 09-14 991 DATE: February 4, 2021 ORDER Service connection for basal cell carcinoma is granted. A 100 percent schedular rating for posttraumatic stress disorder (PTSD) is granted for the entire period on appeal, subject to the law and regulations governing the award of monetary benefits. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The competent and credible evidence is at least in equipoise as to whether the Veteran’s basal cell carcinoma began in service. 2. For the entire rating period on appeal, the evidence is at least in equipoise as to whether the Veteran’s PTSD has been productive of total occupational and social impairment. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of service connection for basal cell carcinoma have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of a 100 percent schedular rating for PTSD have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from March 1956 to August 1962. His decorations include the Good Conduct Medal and the Air Force Longevity Service Award. These matters come to the Board of Veterans’ Appeals (Board) on appeal from January 2008 and September 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. In August 2018, the Board remanded the issues currently on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ returned the case to the Board. See September 2020 supplemental statement of the case. 1. Service connection for basal cell carcinoma is granted. The Veteran seeks to establish service connection for basal cell carcinoma, claimed as skin cancer. The Board finds that the Veteran has a diagnosis of basal cell carcinoma. See, e.g., June 2012 VA examination report (noting a diagnosis of basal cell carcinoma). The Board further concludes that the Veteran’s disability began during active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The evidence in favor of the claim includes an October 2017 opinion from Dr. M.S. that it is at least as likely as not that the Veteran’s basal cell carcinoma first manifested in service. The rationale was that a laceration that initially presented during the Veteran’s active duty service and its resulting persistent bleeding and fragile skin indicated the presence of basal cell carcinoma. Dr. M.S. explained that the Veteran had a non-healing wound in the same exact location which intermittently became infected, bled, and did not respond to therapies, and that after discharge from service, the exact same area continued to flare up at which point he was ultimately biopsied and was found to be positive for basal cell carcinoma. The evidence against the claim includes an unfavorable June 2012 VA medical opinion as to whether the Veteran’s basal cell carcinoma was at least as likely as not incurred in or caused by service. The examiner reasoned that given the Veteran’s ethnic background in addition to other risk factors, including sun exposure being the most important environmental cause of basal cell carcinoma, it was more likely that sun exposure and ultraviolet exposure was the source of the Veteran’s recurrent basal cell carcinoma. The Board finds the private medical opinion in support of the Veteran’s claim is at least as probative as the negative VA opinion. Because the conflicting opinions give rise to a reasonable doubt, such doubt must be resolved in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service connection for basal cell carcinoma is granted. 2. A 100 percent rating is granted for PTSD. The Veteran seeks to establish a higher disability rating for his service-connected PTSD. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran is in receipt of a 30 percent rating for PTSD from January 11, 2010 to July 3, 2018, and a 50 percent rating from July 4, 2018 under 38 C.F.R. § 4.130, DC 9411. Psychiatric disabilities are evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under the General Rating Formula, a 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty establishing and maintaining relationships. Id. A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and an inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The United States Court of Appeals for Veterans Claims (Court) has held that the use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination.” 38 C.F.R. § 4.126(a). For the reasons set forth below, the Board finds that, for the entire rating period on appeal, the evidence is at least in equipoise as to whether the Veteran’s PTSD has been productive of total social and occupational impairment so as to warrant a 100 percent disability rating. Evidence weighing in favor of this finding includes a November 2020 opinion from Dr. M.C. that the Veteran’s PTSD has caused total social and occupational impairment since at least 2007. Dr. M.S. explained that the Veteran had been experiencing profound and severe intrusive memories, daily periods of dissociation, nightmares, avoidance, anger, irritability, and thoughts of violence directed at himself and others. It was noted that from 2007, the Veteran had manifested progressively less appropriate social interactions with other individuals, including his immediate family, and that he had removed himself from society, was reclusive, and stayed away from people for fear of his actions and unpredictability. Dr. M.S. further indicated that deterioration in cognitive function impaired the Veteran’s ability to sustain employment since at least 2007. See also September 2018 opinion by Dr. M.C. Evidence weighing against a finding of entitlement to a 100 percent rating for PTSD includes a September 2013 VA examiner’s assessment that the Veteran’s PTSD was productive of occupational and social impairment due to mild or transient symptoms, which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. See also February 2015 VA examination report; July 2017 VA examination report; June 2019 VA examination report. Viewing the record in its totality, the Board is persuaded that the evidence demonstrates a level of impairment that is consistent overall with the assignment of a 100 percent schedular rating for PTSD for the entire rating period on appeal. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. As such, a 100 percent rating is granted for PTSD for the entire period on appeal. 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to a TDIU is remanded. As noted, the Board has granted service connection for basal cell carcinoma. As this action may result in a new combined rating and alter the evidentiary basis for the TDIU claim, the Board will defer adjudication of this matter pending implementation of the Board’s decision with respect to the basal cell carcinoma.  This matter is REMANDED for the following action: 1. Implement the Board’s decision to grant service connection for basal cell carcinoma. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the action taken in the preceding paragraph, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ragheb, Johnny 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.