Citation Nr: 21007085 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 12-11 393 DATE: February 8, 2021 ORDER Entitlement to service connection for idiopathic acquired leukoderma (claimed as skin condition) is denied. Entitlement to service connection for seborrheic keratosis (claimed as skin condition) is denied. Entitlement to service connection for actinic keratosis (claimed as skin condition) is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s idiopathic acquired leukoderma was not incurred in service and the preponderance of the evidence is against a finding that it is related to his service, to include as due to his exposure to herbicide agents therein. 2. The Veteran’s seborrheic keratosis was not incurred in service and the preponderance of the evidence is against a finding that it is related to his service, to include as due to his exposure to herbicide agents therein. 3. The Veteran’s actinic keratosis was not incurred in service and the preponderance of the evidence is against a finding that it is related to his service, to include as due to his exposure to herbicide agents therein. 4. In light of the Veteran’s educational and occupational experience, it is less likely than not that his service-connected disabilities prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for idiopathic acquired leukoderma have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107, 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for entitlement to service connection for seborrheic keratosis have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107, 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 3. The criteria for entitlement to service connection for actinic keratosis have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107, 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 4. The criteria for a total disability evaluation based on individual unemployability due to service-connected disorders have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 3.340, 3.341, 4.1, 4.3, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1964 to March 1966, including combat service in the Republic of Vietnam, and his decorations include the Combat Infantry Badge. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “nexus” between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection for certain chronic diseases will be rebuttably presumed if manifest to a compensable degree within one year after separation from active service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Moreover, for such diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for idiopathic acquired leukoderma. 2. Entitlement to service connection for seborrheic keratosis. 3. Entitlement to service connection for actinic keratosis. The Veteran is requesting service connection for skin conditions based on his presumed exposure to herbicide agents while serving in the Republic of Vietnam. The Veteran’s service treatment records are silent for any complaints, findings, treatment, or diagnoses related to seborrheic keratosis, actinic keratosis, or idiopathic acquired leukoderma. On the March 1966 service separation physical examination, the Veteran’s skin was clinically assessed as normal. He is also not shown to have a diagnosed skin disability until April 2010, when he underwent a VA examination and was given diagnoses of idiopathic acquired leukoderma and seborrheic keratosis. The Veteran stated that his skin conditions began about 10 years prior to his claim. See April 2010 VA examination. At that time, the Veteran had not been diagnosed with actinic keratosis. Based upon the foregoing evidence, service connection for a skin disability on the basis that such became manifest in service and persisted is not warranted. It is also not shown that the Veteran has a skin disability that became manifest within one year of his separation from service that would also qualify as a chronic disease under 38 U.S.C. § 1112, such that service connection on that basis would be warranted. Regarding whether the Veteran’s skin disabilities are otherwise directly related to his military service, medical opinions were obtained in April 2010 and October 2018. As stated above, the Veteran’s military medical records were silent for diagnosis and treatment of a skin disease. In April 2010, a VA examiner opined that the Veteran’s claimed disabilities were less likely than not related to his service based on most recent medical knowledge. The claims were remanded by the Board in July 2017 because the April 2010 VA examiner did not provide sufficient rationale. In October 2018, a VA examiner diagnosed actinic keratosis as an additional skin condition. The examiner opined that the Veteran’s diagnosed seborrheic keratosis, idiopathic acquired leukoderma and actinic keratosis were less likely than not related to his service because the Veteran’s service treatment records did not show any evidence of signs, symptoms, diagnosis, or treatments to support a diagnosis of the conditions during active military service. The physician also noted that the long-time elapse since the exposure event and the development of the condition is against an etiological nexus between the skin conditions. The examiner explained that seborrheic keratosis is one of the most common skin growths in adults and generally increase with age. Medical literature shows that it tends to run in some families, and inheritance plays a role. The physician also explained that idiopathic acquired leukoderma is a benign skin condition caused by aging and damage from exposure to sunlight. Finally, he explained that actinic keratosis is caused by damage from exposure to ultraviolet radiation of sunlight, which is very common in the region that the Veteran resides. As the October 2018 opinions reflect familiarity with the entire record as well as the Veteran’s past medical history, was based on an in-person examination of the Veteran, and include an explanation of the rationale for the opinions, they have substantial value and the Board finds the opinions persuasive. Accordingly, the Board concludes that the preponderance of the evidence is against the Veteran’s claim of service connection for seborrheic keratosis, actinic keratosis, and idiopathic acquired leukoderma on a direct basis. Service Connection - Herbicide Agents Exposure As previously mentioned above, the Veteran’s main theory of entitlement in this case is that his skin disabilities are the result of herbicide agents (including Agent Orange), to which he was exposed while serving in the Republic of Vietnam. The Veteran’s service personnel records show that he served in the Republic of Vietnam. Therefore, his exposure to herbicide agents in service is established. The law provides that, if a veteran was exposed to an herbicide agent during service, certain listed diseases shall be service-connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. The list of diseases afforded this presumption include chloracne or other acneform diseases consistent with chloracne and porphyria cutanea tarda, both of which must manifest within one year after the last exposure to an herbicide agent but does not include other skin conditions. As the Veteran is not shown to have ever had a diagnosis of chloracne or other acneform disease consistent with chloracne or porphyria cutanea tarda, the herbicide exposure presumptive provisions of 38 U.S.C. § 1116 do not apply to his claims for service connection for a skin disability. Nevertheless, a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to Agent Orange, is not precluded from establishing service connection for such disability as due to Agent Orange exposure with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d 1039, 1042(Fed. Cir. 1994). There is, however, no competent evidence in the record of a nexus between the Veteran’s skin disabilities and Agent Orange exposure. The April 2010 VA examiner opined that the Veteran’s skin conditions were less likely than not associated with exposure to certain herbicide agents in Vietnam according to the most recent medical knowledge. Here again, the October 2018 VA examiner opined that the Veteran’s skin conditions were less likely than not related to his service. The examiner explained that the medical literature does not support a direct etiological relationship between agent orange exposure and actinic keratosis, seborrheic keratosis, or idiopathic acquired leukoderma. The examiner rationalized, as stated above, that medical literature shows that actinic keratosis is caused by damage from exposure to ultraviolet radiation to sunlight common in the Veteran’s climate, that seborrheic keratosis is the most common skin growths in adults and generally increase with age, and that idiopathic acquired keratosis is a benign skin condition that occurs mostly in sun exposed areas and is most likely related to aging and sun exposure. The Board finds that the October 2018 VA skin examination is probative medical evidence of record as it is based on a thorough review of the claims file, an in-person evaluation, a review of medical literature, and contains a well-supported opinion and rationale. The Veteran’s own statements relating his skin disabilities to herbicide agents exposure in service are not competent evidence, as he is a layperson, and lacks the training to opine regarding medical causation in this matter; whether a disease/condition is related to Agent Orange exposure is a complex medical question, and is not capable of resolution by lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans’ Court). Accordingly, the Board concludes that the preponderance of the evidence is against the Veteran’s claim of service connection for skin disabilities as due to herbicide (Agent Orange) exposure. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a total disability rating based on individual unemployability will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the July 2017 Board decision remanded the claim for individual unemployability for further development of the intertwined claims. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Under the applicable criteria, total disability ratings based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. For the purpose of meeting these schedular criteria, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; and multiple injuries incurred in action, will be considered as one disability. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to the benefit on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran’s background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance, although appropriate cases must be referred to the Under Secretary for Benefits or the Director of the VA Compensation and Pension Service for such extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether a veteran is entitled to a TDIU rating, neither non-service-connected disabilities or advancing age may be considered. 38 C.F.R. § 4.19. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In the present case the Veteran’s only service-connected disabilities are tinnitus, rated as 10 percent disabling, and bilateral hearing loss, rated as noncompensable. The combined evaluation is 10 percent. As such, the minimum scheduler criteria for individual unemployability benefits under 38 C.F.R. § 4.16 (a) are not met. The determination of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following a substantially gainful occupation is placed on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Board has the “authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence.” Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997). In this case, the Board must evaluate the Veteran’s statements, VA examinations, service treatment records, employment history and VA outpatient treatment records. VA outpatient records reflect that the Veteran was diagnosed with bilateral hearing loss in November 2011. Treatment notes document that he reported onset a year before that date. At that time, there was no complaint or diagnosis of tinnitus. The November 2011 VA examination reported the functional impact of his hearing loss is that he is significantly impacted by increased tardiness. The Veteran also has hearing difficulty and difficulty following directions, but there was no effect on usual daily activities. The Veteran was unemployed following retirement from his previous employment as an accountant at a pharmaceutical company. In April 2015, the Veteran was provided another VA examination to evaluate his bilateral hearing loss and tinnitus disabilities. The VA examination report reflects the impact of the Veteran’s hearing loss was difficulties understanding conversational speech. The examiner opined that the Veteran’s tinnitus did not impact ordinary conditions of life. In September 2019, a VA examiner reported that the Veteran indicated having speech understanding difficulties in group conversations and in noisy environments, but that the Veteran’s tinnitus did not impact ordinary conditions of life. An April 2019 VA examiner reported that the Veteran had difficulty understanding conversational speech, particularly when not face to face with the speaker and in the presence of background noise. That examiner also opined that the Veteran’s tinnitus did not impact ordinary conditions of daily life. A July 2019 VA examiner opined that the Veteran’s hearing loss and tinnitus does not impact ordinary conditions of life. With respect to the Veteran’s education and work experience, the Veteran submitted a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) detailing his employment from 1979 until 2000 working as an accountant for Bristol Myers, 40 hours per week. He reported having four years of college education. The question is whether the Veteran is not capable of performing the physical and mental acts required by employment due solely to his service-connected disorders. The question is not whether he can find employment, or whether his non-service-connected disabilities contribute to his difficulties in working. In this case, the weight of the evidence is against finding that the Veteran’s service-connected disabilities alone render him incapable of working with consideration of his employment and educational history. The Board acknowledges that the Veteran's hearing loss impacts his ability to hear, especially with background noise and when not engaging in a face-to-face conversation. The Board also acknowledges that the Veteran’s hearing loss and tinnitus may have made it difficult to continue his work as an accountant. However, the standard for TDIU is not whether the Veteran can maintain a specific job, but rather, whether the Veteran can obtain and maintain substantially gainful employment. Communication has changed over the years, to include e-mail and texting. The Veteran is well educated with a significant work history, and his hearing loss and tinnitus would not impact his ability to obtain and maintain substantially gainful employment that involved written communications. While VA examiner’s assessing the Veteran’s level of occupational and social impairment noted difficulties such as hearing in noisy environment as well as difficulty following conversational speech, a review of the record does not show that the Veteran is unable to secure or follow substantially gainful employment due to his bilateral hearing loss or tinnitus, considering his education and occupational experience as an accountant. The Board finds that given the Veteran’s education, and training and experience as an accountant, his bilateral hearing loss and tinnitus do not render him unable to secure or follow substantially gainful employment, therefore, no referral is required. 38 C.F.R. § 4.16 (b). In conclusion, the evidence preponderates against finding that the Veteran meets the requirements for consideration of entitlement to total disability due to individual unemployability. The claim therefore must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Booker 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.