Citation Nr: 21007306 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 11-21 266A DATE: February 9, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for melanoma is remanded. FINDING OF FACT The Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU are met. 38 U.S.C. § 5107; 38 C.F.R. § 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal of March 2010 and August 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board issued a decision reopening the issue of entitlement to service connection for melanoma and denying the other issues on appeal. The Veteran appealed the November 2018 decision to the United States Court of Appeals for Veterans Claims (the Court). In a September 2019 Order, pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated the Board’s November 2018 decision in part and remanded the remaining claims to the Board for additional development and readjudication. In March 2020, the Board remanded the Veteran’s claim for additional development. It has since returned to the Board. 1. Entitlement to TDIU VA regulations allow for the assignment of a total disability rating based on individual unemployability (TDIU) when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Since August 18, 2008, the Veteran has had a 60 percent rating for diabetic nephropathy with hypertension and a 20 percent rating for diabetes mellitus with peripheral vascular disease of the bilateral lower extremities. The Veteran was additionally service connected for atrial fibrillation as of February 9, 2016 and major depressive disorder as of March 14, 2017. Therefore, the Veteran meets the schedular rating criteria for TDIU. The central inquiry is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). On his 2014 TDIU application, the Veteran reported that he last worked full-time in January 1999 and that he became too disabled to work at the same time. He indicated that he worked for 30 years for the same employer. At his February 2015 Board hearing, the Veteran testified that for his entire career he drove a tractor trailer. On his 2008 SSA application, the Veteran reported he retired in May 2002. He described his job as driving a tractor trailer long and short distances, unloading boxes at stops. The Veteran’s 2014 TDIU application indicates that he has one year of college education. At his February 2010 VA compensation and pension examination, the Veteran reported tingling and numbness in his feet and claudication after walking 100 yards on level ground. At a February 2016 compensation and pension examination, he reported his feet always feel cold and feel better with walking. At his February 2015 Board hearing the Veteran testified that he elevates his feet as much as possible during the day due to pain. He stated that after standing for an hour or walking around the block he has claudication pain. The Veteran underwent a private vocational assessment in September 2019. The Veteran reported that he has daily bilateral leg and foot pain with tingling and numbness in his feet after walking 100 yards or standing more than 15 minutes. He also reported difficulties getting in and out of a vehicle and driving for prolonged periods. He reported that his work as a driver involved loading his truck at the beginning of a route and during the course of stops along the route lifting and carrying up to 50 pounds and using a hand truck to move heavier boxes. The vocational rehabilitation consultant opined that the Veteran is not able to perform the physical activities required in his previous job and has does not have transferable vocational skills to a job he could perform given his limited education, skills, and work history. The Board finds that giving the Veteran the benefit of the doubt, considering his physical limitations as a result of his service-connected conditions, particularly his inability to sit for long periods without elevating his feet, and that his previous work experience is limited to truck driving, entitlement to TDIU is warranted. REASONS FOR REMAND 1. Entitlement to service connection for melanoma is remanded. In its March 2020 remand, the Board ordered that the Veteran be afforded a VA examination and an opinion obtained as to the nature and etiology of any current diagnosis of melanoma. The Board noted that the Veteran has submitted an undated letter from Dr. R.L., one of his treating doctors. The letter states that “recent medical studies have shown a direct link between agent orange exposure and malignant melanoma.” Also of record is a 2004 news article reporting on a study showing that Vietnam veterans have an elevated risk of melanoma. In addition, the Veteran submitted the abstract of a 2014 medical journal article titled “Association between Agent Orange exposure and nonmelanotic invasive skin cancer: a pilot study.” A VA opinion was obtained in November 2020. The examiner opined that the Veteran’s melanoma was less likely than not incurred in or caused by the Veteran’s service, as rationale stating that melanoma is not a condition that has been presumptively related to Agent Orange exposure and the record does not reflect that the Veteran has a history of any presumptive condition that could have progressed to melanoma. The examiner acknowledged the content of Dr. R.L.’s letter but did not otherwise discuss it. The examiner further did not discuss the medical literature references submitted by the Veteran. The examiner concluded that the more likely etiology of the Veteran’s melanoma is genetics but offered no rationale for that opinion. The Board finds that the November 2020 VA opinion is not adequate, and a new opinion must be obtained. The matters are REMANDED for the following action: Obtain a VA opinion as to whether it is at least as likely as not that the Veteran’s melanoma onset in or is causally related to his service, to include his presumed exposure to herbicide agents in Vietnam. A new examination is not required unless the VA examiner opines that one is necessary. (Continued on the next page)   The Board acknowledges that melanoma is not among the skin conditions presumptively linked to Agent Orange exposure by federal regulations. However, the lack of presumption is not a bar to service connection. The examiner should consider whether in this Veteran’s specific case, it is at least as likely as not that his melanoma is causally related to his service, to include his presumed exposure to herbicide agents. The examiner must provide a complete rationale for all opinions expressed. In doing so, the examiner must discuss the letter from Dr. R.L. and the articles submitted by the Veteran referencing medical studies on the relationship between melanoma and Agent Orange exposure. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Christensen 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.