Citation Nr: 21009135 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 17-39 656A DATE: February 19, 2021 ORDER 1. Entitlement to a rating in excess of 50 percent prior to April 28, 2017 for posttraumatic stress disorder (PTSD), insomnia disorder, and other specified anxiety disorder (psychiatric disability) is denied. 2. Entitlement to an effective date prior to April 28, 2017 for the award of service connection for a bilateral hearing loss disability is denied. 3. Entitlement to service connection for a dry skin disability, to include as secondary to exposure to AO/herbicides, is denied. 4. Referral for consideration of a total disability rating for compensation based on individual unemployability (TDIU) prior to April 28, 2017 is denied. 5. Entitlement to an effective date prior to April 18, 2017 for Dependents’ Educational Assistance (DEA) benefits is denied. REMANDED 6. Entitlement to a compensable rating for a bilateral hearing loss disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the psychiatric disability manifested with occupational and social impairment with deficiencies in most areas prior to April 28, 2017. 2. VA initially denied the claim for service connection for a bilateral hearing loss disability in June 2009, and the Veteran did not appeal the decision. There was no formal claim, informal claim, or written intent to file a claim prior to the application to reopen the claim for service connection for a bilateral hearing loss disability, which was received on April 28, 2017. 3. The preponderance of the evidence is against finding that a dry skin disability had an onset in service or is otherwise related to service, to include as due to exposure to AO/herbicides. 4. The preponderance of the evidence is against finding that service-connected disabilities precluded the Veteran from securing or following substantially gainful employment prior to April 28, 2017. 5. Basic eligibility for DEA benefits did not begin earlier than April 28, 2017. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 50 percent prior to April 28, 2017 for the psychiatric disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9400 (2019). 2. The criteria for entitlement to an effective date prior to April 28, 2017 for the assignment of service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2019). 3. The criteria for entitlement to service connection for a dry skin disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 4. The criteria for referral for consideration of an extraschedular TDIU rating prior to April 28, 2017 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). 5. The criteria for entitlement to DEA benefits have not been met prior to April 28, 2017. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.807 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to March 1968. A Travel Board hearing was scheduled in April 2020. Prior to the hearing, the Veteran’s representative requested that the hearing be cancelled. Thus, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). Increased Rating 1. Entitlement to a rating in excess of 50 percent prior to April 28, 2017 for the psychiatric disability Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of the disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. The U.S. Court of Appeals for Veterans Claims (Court) has held that, in determining the present level of a disability for an increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran is currently in receipt of a 100 percent rating for his psychiatric disability from April 28, 2017. As this is the highest available rating for the psychiatric disability, the Board will assess only whether the Veteran meets the requirements for a higher rating prior to that date. For the period on appeal, the Veteran is in receipt of a 50 percent rating for his psychiatric disability. Under the rating criteria for psychiatric disabilities, a 50 percent disability rating is warranted for a psychiatric disability when there is 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 and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9400. A 70 percent rating is warranted for a psychiatric disability 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; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9400. A 100 percent rating is warranted for a psychiatric disability where there is 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; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9400. The United States Court of Appeals for the Federal Circuit held that evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Vasquez-Claudio v. Shinseki, 713 F3d 112, 116–17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather, “serve as examples of the type and degree of symptom, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas”—i.e., “the regulation . . . requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vasquez-Claudio, 713 F.3d at 117–18; 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, 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.” 38 C.F.R. § 4.126(a). The Board 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 examination.” Id. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against finding that the Veteran had occupational and social impairment with deficiencies in most areas prior to April 28th, 2017. The reasons follow. In an April 2020 statement, the Veteran reported that he has consistently had difficulty sleeping, noting he often woke up feeling as though he was still in Vietnam. The Board notes that the Veteran made other statements in this report, but the remaining symptoms seem to relate to current symptomatology rather than his past symptomatology, which symptomatology is relevant to the period on appeal. Throughout the period on appeal, the Veteran regularly attended mental health treatment at VA. Treatment records from 2014 to 2017 document that the Veteran did not have major mental health complaints other than consistently reporting nightmares approximately once per week at most and as infrequently as once or twice per month. He endorsed general sleep disturbances beyond his nightmares and regularly reported going out to eat with his two daughters, who he described as being supportive of him. The VA treatment records consistently document that the Veteran was cheerful and smiling without irritability, anger, or other mood disturbances. He was consistently documented to have strengths in his ability to care for others, his ability to express emotions, and his communication skills. He consistently denied suicidal or homicidal ideation. It was also consistently documented that the Veteran was fully oriented with good eye contact, full expressions, and no psychomotor retardation or agitation. The Veteran’s speech was documented to be spontaneous, clear, not pressured, and normal in rate, rhythm, and tone. The Veteran’s thoughts were documented to be linear, goal-directed, coherent, and logical. VA treatment providers also consistently documented that there was no evidence of auditory or visual hallucinations, no evidence of delusions, and depression and suicide risk screens were frequently negative. The Veteran’s insight and judgment were regularly documented to be fair to good, his attention was grossly intact, and he was noted to be of average intelligence. Private treatment records from October 2015 to August 2016 document the Veteran was fully oriented, and he exhibited no signs of depression, irritability, anger, or loss of concentration or focus. The Veteran’s mood and eye contact were described as good, and his affect was described as normal, though it was noted on at least one occasion that he was more anxious than normal. The Veteran reported experiencing bad dreams. The Veteran was provided a VA examination in January 2014. The examiner documented symptoms of anxiety, chronic sleep impairment and nightmares, and mild memory loss, and checked the box documenting that the psychiatric symptoms caused occupational and social impairment due to mild or transient symptoms. The examiner documented that the Veteran was fully oriented, was able to provide an accurate history, his insight was adequate, and his response time was normal. The examiner documented that his affect was blunted. However, the examiner also documented that the Veteran’s attention was normal, and he was not distractible, though the examiner noted that he did lose track of what he was saying on one occasion. The Veteran’s speech was documented by the examiner to be mildly tangential, but it was spontaneous, fluent grammatically, and free of paraphasia. The Veteran’s immediate, recent, and remote memories were documented to be within normal limits. The examiner acknowledged that the Veteran reported mild forgetfulness, but that he had denied pathologic memory experiences. The Veteran was noted to be able to manage his finances. Another VA examination was conducted in October 2015 to assess the Veteran’s psychiatric symptomatology. The examiner again checked the box to document occupational and social impairment due to mild or transient symptoms, listing symptoms that including anxiety, chronic sleep impairment, nightmares, and mild memory loss. The Veteran reported that he was widowed in 1990 but that he has a female friend. He also reported that he enjoys walking with his friends, fishing, and spending time with his dogs. He reported he had been retired for approximately five and a half years after working for 40 years at a tobacco company. The examiner documented that the Veteran was friendly, fully oriented, and provided an accurate history with adequate insight. His auditory comprehension was intact, and his response times were normal. His affect wad documented as congruent to his mood, his thought processes were linear and coherent, he was not distractible, and his speech was spontaneous, fluent, grammatic, and free of paraphasia. The examiner noted that the Veteran’s immediate, recent, and remote memories were within normal limits. The Veteran denied suicidal and homicidal ideation, and he was documented to be able to manage his finances. In March 2016, the Veteran submitted a private psychiatric assessment that he attended in January 2016. The Veteran reported that his two daughters lived with him and that he had a relationship with a female friend, though he reported he had no plans to get married again. The Veteran was documented to be appropriately dressed and groomed, affable and cooperative, and had a pleasant affect with good range. The Veteran’s speech as documented to have good pattern and flow, and his thoughts were logical and goal-directed with no evidence of hallucinations or delusions. The Veteran did not endorse homicidal or suicidal ideation. The Veteran was fully oriented, and his cognitive function was grossly intact, though he reported that he was still experiencing memories and dreams of shocking events in service. The Veteran reported intrusion symptoms, nightmares, marked physiological reactions to external cues that resemble aspects of traumatic events, avoidance behaviors, negative alterations in cognition or mood associated with traumatic events, and inappropriately blaming himself for some of the traumatic events. The Veteran reported experiencing persistent negative emotions of fear and horror, and he endorsed an exaggerated startle response related to his distressing dreams, which he reported experiencing two to three times per week. The Veteran also reported symptoms of anxiety, occasionally getting nervous at work, and avoiding social situations because it triggered his anxiety. This private treatment provider noted that the Veteran had an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, though the examiner clarified that the Veteran generally functioned satisfactorily in most areas of routine behavior. Another VA examination was provided in February 2017. The examiner again checked the box indicating occupational and social impairment due to mild or transient symptoms based on reported symptoms of anxiety, chronic sleep impairment, and mild memory loss. The Veteran reported that his two daughters lived with him and described his relationship with them as very good. He also reported that he has a female friend and that they go out to eat. The Veteran reported that he was involved with his church as a trustee and treasurer. The examiner documented that there was no evidence of social impairment. The Veteran also reported that he could perform activities of daily living and performed house and yard work regularly. The Veteran reported no changes in his symptoms since his last VA examination, and he continued to deny homicidal or suicidal ideation. The Veteran submitted a final private psychiatric assessment in December 2017. The examiner was asked to assess the Veteran’s psychiatric disability prior to April 28, 2017. The Board notes that this examiner did not appear to have treated the Veteran prior to the December 2017 examination or during the period on appeal, and it is unclear what evidence was reviewed by the examiner or whether the examiner interviewed the Veteran. The examiner documented symptoms including nightmares one to three times per week, significant daily anxiety, intermittent depression, intrusive recollections of traumatic experiences, unprovoked hostility and irritability, and difficulty adapting to stressful circumstances. The examiner also documented mild, moderate, and marked limitations related to the Veteran’s ability to perform social and occupational tasks. The examiner noted that the Veteran had good and bad days, suggestive of intermittent symptoms. The Board finds that the December 2017 examination is not credible. Initially, as noted above, the examiner did not document what evidence he was using to make this assessment, and it is unclear whether he interviewed or treated the Veteran, and though this is presumably based on a review of the psychiatric treatment records, the Board finds that it is inconsistent with the treatment records from August 2015 to April 2017, the period of time in which the examiner purports to be assessing. The December 2017 private examiner reports that from August 2015 to April 2017 the Veteran exhibited marked limitation in an ability to concentrate, perform activities with a schedule and maintain regular attendance, respond appropriately to changes, and complete a normal week without interruption; moderate limitation in an ability to sustain an ordinary routine without supervision, ability to work in coordination or proximity to others without distraction, and ability to get along with co-workers or peers or exhibiting behavioral extremes; and mild limitation in ability to remember locations and procedures, ability to interact appropriately with the general public, ability to accept instructions and respond appropriately to criticism, ability to be aware of normal hazards, ability to travel to unfamiliar places or use public transportation, or ability to set realistic goals or make plans independently. However, as is fully assessed above in VA and private treatment records, two VA examinations, and one private psychiatric assessment conducted contemporaneously during the same period, the Veteran reported that he had friends, including a female friend, had good relationships with his daughters, went out to restaurants, went to church, performed house and yard work, was a treasurer and trustee at his church, and was able to manage his own finances. This is in direct contradiction to the reports from the December 2017 private examiner. Additionally, the multiple contemporaneous records during the August 2015 to April 2017 period include documentation that examiners and treatment providers did not document significant impairment in mood, memory, ability to interact with others, manage his finances, maintain routine hygiene and attendance, or complete tasks. The December 2017 examiner did not address these many inconsistencies or explain why the examiner believed the Veteran’s symptoms had been worse than the Veteran had consistently reported in the past to both VA and other private examiners and providers. Thus, given the inconsistencies between the December 2017 examiner’s reports and the contemporaneous records without any explanation for these inconsistencies or an explanation as to how the Veteran was examined or what records were reviewed by this examiner, the Board finds that the December 2017 examination report is less probative than the multiple contemporaneous private and VA treatment records, the two VA examinations, and the private examination that are included in the claims file and fully addressed above. Clinical findings made contemporaneously with the time period in question tend to be highly reliable. Finally, the Board notes that the Veteran submitted another private psychiatric examination in August 2020. The Board notes that this psychiatric evaluation generally refers to the Veterans current symptoms and his employment history. However, the examiner noted that the Veteran has consistently had nightmares up to three times per week, which relates to the period on appeal as he reported that he started having dreams and recollections related to his service immediately upon his return from Vietnam. The Veteran also reported to the August 2020 private examiner that he had been experiencing difficulties concentrating on vocational tasks as early as 2010. Initially, in the January 2014, October 2015, and February 2017 VA examination reports, when asked which of the following best summarized the Veteran’s level of occupational and social impairment, the psychologists checked occupational and social impairment due to mild or transient symptoms, which is the level of severity described under the 10 percent rating. The January 2016 private psychiatric examiner documented that the psychiatric symptoms caused occupational and social impairment with an occasional decrease in work efficiency with intermittent periods of inability to perform occupational tasks, phrasing that is comparable to that of the 30 percent rating criteria. While the adjudicator makes the determination of what evaluation is warranted for the service-connected psychiatric disability, the examiner’s conclusions that the psychiatric disability was summarized best by the criteria described under the 10 or 30 percent rating is evidence against a finding that the psychiatric disability caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood to warrant a 70 percent rating or higher. The Board acknowledges that the Veteran has noteworthy symptomatology associated with his psychiatric disability that causes intermittent impairment in his ability to engage socially and occupationally, as is evidenced by the assignment of a 50 percent rating. However, a 50 percent rating contemplates occupational and social impairment with reduced reliability and productivity, which the Board finds is indictive of his level of impairment. To qualify for a higher 70 percent rating, the psychiatric disability must cause occupational and social impairment with deficiencies in most areas. The Board finds that, though the Veteran has symptoms that impact his ability to function occupationally and socially related to his psychiatric disability, the psychiatric symptoms do not cause social and occupational impairment with deficiencies in most areas. Though the Veteran is retired, the Veteran has been able to continue to engage in regular housework, yardwork, and manage his finances. Beyond this, during the period on appeal, the Veteran served in a role as a trustee and treasurer at his church, a role which would involve significant responsibility and is indicative of the Veteran’s ability to be reliable in a work setting even though the evidence does not suggest he was paid for this role. Furthermore, the Veteran has maintained what he describes as very good relationships with his two daughters, a relationship with a female friend, and relationships with other friends, with whom he reported he regularly takes walks. These symptoms are not indicative of deficiencies in family relations, including his ability to obtain and maintain social and work relationships or deficiencies in his ability to engage in social settings or settings comparable to a work environment. These facts affirmatively show that the Veteran is able to establish and maintain effective relationships. Additionally, a 70 percent rating contemplates deficiencies in judgment, thinking, and mood. The Veteran’s mood is consistently documented during the appeal period to be fair to good. Treatment providers documented that, though occasionally anxious, he was cheerful and smiling. Furthermore, his thoughts were consistently documented to be linear, goal-directed, coherent, and logical outside of the occasional tangential thought. The Board notes that the Veteran also consistently denied suicidal or homicidal ideation, the record does not document obsessional rituals, symptoms of panic or depression affecting the ability to function, inability to maintain hygiene, spatial disorientation, or impaired impulse control, which are all significant symptoms contemplated by the 70 percent rating criteria. Finally, the Board acknowledges the opinion provided by the August 2020 private psychiatric examiner that the psychiatric disability had caused difficulty with concentration and completing vocational tasks as early as 2010 to the extent that it would cause the Veteran to be unable to perform the skills necessary for full-time competitive employment. However, the Board notes that a 70 percent rating requires deficiencies in most areas of occupational and social impairment. The record, as noted above, does not document deficiencies in most areas as it relates to the Veteran’s ability to interact socially. He has maintained relationships with his daughters, a female friend, other friends, and with members of his church. The private examiner did not mention or address these facts, but rather, focused solely on the Veteran’s occupational impairment. As the rating criteria contemplate impairment in both social and occupational settings, an opinion relating to only occupational impairment is not sufficient, on its own, to warrant a higher rating. Furthermore, the Board finds the opinion of the August 2020 private examiner to be inadequate as it appears to be based more on the Veteran’s self-reported symptoms and history rather than a thorough review of both the Veteran’s self-reported symptoms and the claims file. The examiner noted that the Veteran had reported that he left his job at the tobacco company in 2010 because his work performance had declined, and he was unable to fulfill his duties due to anxiety and poor concentration. The Board finds these statements, made over 10 years after the Veteran retired, to be less probative than the contemporaneous statements made by the Veteran that were documented in VA records from 2010 to 2017, discussed above. His statements made in August 2020 are inconsistent with the contemporaneous reports. While the contemporaneous reports acknowledge that the psychiatric symptoms have had some impact on the Veteran’s ability to continue his employment, he did not report at the time that he was unable to concentrate in such a way that he could not fulfill his duties, and his contemporaneous reports are consistent with the symptoms observed by examiners and treatment providers in the contemporaneous records. Furthermore, the Veteran’s record clearly documents that in the years following his retirement, he was able to sufficiently concentrate to complete office work at his church and serve as a trustee and treasurer. The examiner, in providing the August 2020 opinion, did not address these discrepancies in the record or the facts related to the Veteran taking on responsibilities at his church. As the opinion appears to be based on an incomplete review of the record, the Board finds that the opinion of the August 2020 private psychiatric examiner is inadequate and therefore, not probative. To the extent that the August 2020 psychiatric examiner characterized the Veteran as “totally psychiatrically disabled,” the Board finds that the preponderance of the evidence is against a finding of total social and occupational impairment to warrant a 100 percent rating. As discussed already, the Veteran has positive relationships with his daugthers, which is affirmative evidence against a finding of total social impairment. In order for a 100 percent rating to be warranted, there must be both total social and total occupational impairment, and the Veteran does not have total social impairment. Therefore, the Board finds that the service-connected psychiatric symptoms are most closely approximated by the assigned 50 percent disability rating. Importantly, as described in detail above, the preponderance of the evidence is against the Veteran showing occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood; nor are his psychiatric symptoms of similar severity, frequency, and duration to warrant an increased 70 percent disability rating. As the Board has found that the disability picture does not rise to the level of severity of the 70 percent rating, it follows that the Board finds that the disability picture does not rise to the level of severity of the 100 percent rating. Considering the total disability picture, as noted in detail above, the Board finds the preponderance of the evidence is against an evaluation in excess of 50 percent prior to April 28, 2017. Therefore, a rating in excess of 50 percent prior to April 28, 2017 for psychiatric disability is denied. Effective Date 2. Entitlement to an effective date prior to April 28, 2017 for the grant of service connection for a bilateral hearing loss disability Except as otherwise provided, the effective date of an award of compensation based on a claim reopened after final disallowance shall be fixed in accordance with the facts found but shall be no earlier than the date of receipt of the application. 38 U.S.C. § 5110(a). The statutory provision is implemented by regulation, which provides that the effective date for an evaluation and award of compensation based on a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The Board received a claim for service connection for a bilateral hearing loss disability on April 28, 2017. While the Veteran had previously filed a claim for service connection for a bilateral hearing loss disability, it was denied in a June 2009 rating decision based on a finding that the Veteran did not meet the criteria for a bilateral hearing loss disability for VA purposes. That decision became final, as the Veteran did not appeal the decision. Thus, the Board finds that April 28, 2017 is the earliest date upon which service connection may be granted as this is the date the Board was in receipt of claim. The Board acknowledges that January 2016 VA treatment records document a diagnosis of sensorineural hearing loss, suggesting that entitlement to the benefit may have arisen earlier than April 28, 2017. However, the request to reopen the claim for service connection for a bilateral hearing loss disability was not received until April 28, 2017. The statute provides that the effective date of an award of compensation based on a claim reopened after final disallowance shall be fixed in accordance with the facts found but shall be no earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a). Because the application to reopen the claim for service connection for diabetes mellitus was not received until April 28, 2017, and the effective date can be no earlier than the claim to reopen, an earlier effective date for the grant of service connection for a bilateral hearing loss disability is legally precluded. Service Connection 3. Entitlement to service connection for a dry skin disability The Veteran believes that his dry skin disability was caused by his exposure to Agent Orange (AO)/herbicides while serving in Vietnam. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran 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 between the present disability and the disease or injury incurred or aggravated during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a dry skin disability. The reasons follow. As to evidence of a current disability, July 2011 VA treatment records document the Veteran has a past medical history of dry skin and records from July 2017 again document that the Veteran has dry skin. Though it is unclear whether or not the Veteran has a diagnosis of a skin disability for the purposes of service connection, the Board will proceed with review, as the Veteran has symptomatology indicative of a possible skin disability, and, as will be fully assessed below, the Veteran does not meet all the criteria for entitlement to service connection. Thus, whether or not the symptoms constitute a disability for the purposes of service connection is moot. If a veteran was exposed to an “herbicide agent,” such as Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam from January 9, 1962, to May 7, 1975, then, absent affirmative evidence to the contrary, certain diseases will be service-connected even if there is no in-service record of the disease in service. 38 C.F.R. § 3.307(a)(6), (d), 3.309(e). Notwithstanding the foregoing presumptions, a veteran is not precluded from establishing service connection due to exposure to herbicides with proof of direct causation. Combee v. Brown, 38 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran’s claims file documents that the Veteran served in Vietnam, and as such, service connection is presumed for the disabilities listed in 38 C.F.R. § 3.309(e). However, dry skin is not a disability for which the presumption of service connection based on exposure to AO/herbicides applies under 38 C.F.R. § 3.309(e), and the evidence does not support a finding that the Veteran’s symptoms are indicative of a disability, such as chloracne, that qualifies for this presumption. Thus, the Board finds the presumption of service connection due to AO/herbicide exposure does not apply to the claims for service connection for a dry skin disability. Despite not meeting the requirements for presumptive service connection, the Board will still assess whether the Veteran meets the requirements for service connection on a direct basis. As to evidence of an in-service disease or injury, the service treatment records (STRs) do not show that the Veteran reported symptoms related to his skin during service. For example, at the separation examination, conducted in March 1968, a clinical examination of the skin was normal. Additionally, the Veteran denied ever having or having had skin diseases. The Boards finds this to be highly probative evidence that the Veteran did not have any dry skin or rashes on his skin during service. The Veteran filled out the Report of Medical History completely and paid attention to the questions, as evidence by the fact that he checked the boxes indicating ever having or having had a history of scarlet fever; mumps; cramps in his legs; VD-syphilis, gonorrhea, etc.; car, train, sea, or air sickness; and sleepwalking. Given the Veteran’s willingness to report past or current medical history, the Board finds it likely that the Veteran would have reported having or having had symptomatology related to his skin during his service had such symptoms been present. Thus, the facts do not establish that the Veteran had an in-service disease or injury that caused a skin disability at that time. However, as the Veteran served in Vietnam, he is presumed to have been exposed to Agent Orange. Thus, to this extent, an in-service disease or injury is shown. The Board finds the preponderance of the evidence is against a nexus between the current dry skin diagnosis and his service. For example, the earliest documentation of a history of dry skin is noted in private treatment records from October 1995, more than 25 years after the Veteran’s discharge from service, when the Veteran reported that he had a rash under his arms. July 1999 private treatment records also document a rash on his arms. These treatment records did not include a reference to the Veteran reporting herbicide exposure as a possible cause, nor did the Veteran note that he had been experiencing the rash in the more than 25 years since his active service. Additionally, even after the Veteran filed his claim for dry skin in April 2017, the Veteran reported to a private treatment provider in July 2017 that he did not have any lesions, rashes, or skin concerns, despite reporting that he had dry skin to a VA treatment provider less than two weeks after denying it to his private provider. Given the greater than 25 years between the Veteran’s discharge from service and the first notation of skin symptomatology and the lack of reporting of symptoms dating back to service at the time the rash and dry skin symptoms were first reported to private treatment providers, the Board finds the preponderance of the evidence is against finding that the current dry skin is related to his active service. The Board acknowledges the Veteran’s lay statements that he believes his dry skin was caused by exposure to AO/herbicides in service. However, he is not competent to directly link the current dry skin diagnosis to service or exposure to AO/herbicides, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. At the present time, there is no competent evidence of a nexus between the Veteran’s dry skin disability and service, to include AO/herbicide exposure. VA did not provide the Veteran with an examination or opinion in connection with this claim, and the Board finds as fact that the evidence does not establish entitlement to a VA examination or medical opinion for dry skin. VA must provide a medical examination and/or medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the evidence does not show an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service. For a VA examination and/or medical opinion to be warranted, all the McLendon criteria must be met, and at least one of the criteria is not met. Therefore, entitlement to a VA examination and/or medical opinion is not warranted for the claim for service connection for a dry skin disability. In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, the claim for service connection for a dry skin disability is denied. TDIU/DEA Benefits 4. Entitlement to a TDIU prior to April 28, 2017 As noted above, the Veteran is in receipt of a 100 percent schedular rating for the service-connected psychiatric disability as of April 28, 2017. That is the disability for which he claims he is precluded from substantially gainful employment. See VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, received in October 2016. As he was in receipt of a 100 percent schedular rating from that date, a TDIU rating is not available, as the schedular rating must be less than total for consideration of a TDIU rating. 38 C.F.R. § 4.16(a) (stating, “Total disability ratings for compensation may be assigned, where the schedular rating is less than total….”) (Emphasis added.). A TDIU rating may be granted upon a showing that the veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 C.F.R. § 4.16(a). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award under § 4.16(a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. If a veteran does not meet the aforementioned criteria, a total disability may still be assigned, but on a different basis. 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 totally disabled. 38 C.F.R. § 4.16(b). Therefore, the rating boards are required to submit to the Director, Compensation Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage of standards set forth in 38 C.F.R. § 4.16(a). Id. In determining whether a veteran is unemployable for VA purposes, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Court has held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether a veteran, as a result of his or her service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his or her educational and occupational experience. 38 C.F.R. § 3.340, 3.341, 4.16. The Board also notes that the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the veteran is capable of performing the physical and ment acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Initially, the Board acknowledges that the issue of entitlement to a compensable rating for bilateral hearing loss has been remanded. However, as noted above, the earliest available effective date for a bilateral hearing loss disability is April 28, 2017, the date at which the Veteran is in receipt of a 100 percent rating. Thus, the issue of entitlement to a compensable rating is not intertwined with the issue of entitlement to TDIU prior to April 28, 2017 as any increased rating related to the remand would not be effective during the period on appeal for the issue of TDIU. Prior to April 28, 2017, the Veteran’s only service-connected disability is the psychiatric disability, for which he receives a 50 percent rating. As the Veteran does not have a combined total rating over 70 percent, the schedular criteria for TDIU have not been met. Regardless, the Board will consider whether referral for extraschedular consideration for TDIU is warranted. At a private examination, conducted in April 2009, the Veteran reported that after he graduated high school, he was drafted. After service, the Veteran got a job at a tobacco company working as a mechanic. He reported that he was able to work largely independently, but he had maintained his employment for over 40 years and was still working for the same company at the time of the 2009 examination. The Veteran reported at a June 2010 VA examination that he had retired from his work at the tobacco company, noting that he was “tired of working” while also noting that his psychiatric symptoms had some impact on his decision to retire. Following his retirement, the Veteran reported to a September 2011 VA examiner that he had started doing minor tasks at his church, including helping in the office and mowing the yard. The Veteran reported he continued to help at his church, eventually becoming a trustee and treasurer, as is fully noted in the Board’s assessment of the Veteran’s psychiatric disability. On the October 2016 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Individual Unemployability, the Veteran reported that he quit working in January 2010 due to his psychiatric disability, and he reported that his psychiatric symptoms had begun impacting his employment in June 2004. He also reported he had completed high school and one year of college. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that the psychiatric disability causes the Veteran to be unable to secure or follow substantially gainful employment. The Board acknowledges that the psychiatric disability symptoms impacted the Veteran’s day-to-day life prior to April 28, 2017 and had some impact on his employability, as reported by the Veteran and documented by VA examiners and VA treatment providers. However, the Board finds the psychiatric disability alone would not impact the Veteran’s ability to obtain and maintain substantially gainful employment. The symptomatology for the psychiatric disability for the period on appeal is fully addressed above, and the preponderance of the evidence is against finding that these symptoms would prevent the Veteran from securing or following substantially gainful employment during the period on appeal. Most importantly, since retiring and reporting that his psychiatric symptoms had some impact on his employability, the Veteran has obtained and maintained additional roles at his church, including performing yardwork and completing some office work. During the period on appeal, these responsibilities expanded to becoming a treasurer and trustee of the church, which is a position that certainly involves responsibility and the ability to complete tasks related to tracking and managing finances. The Board acknowledges that this is not paid or full-time work, but it does show that the Veteran is able to complete tasks consistent with those that would be required for employment in an office setting, and the record does not document that the Veteran would be limited in his ability to continue to do those tasks on a full-time basis or in an employment setting. The Veteran retired at age 65 after completing his active service and working for the same company for over 40 years. The Board acknowledges that the Veteran reported to the June 2010 VA examiner that he retired, at least in part, due to his psychiatric symptoms, and prior to his retirement, the Veteran had reported to a January 2009 VA examiner that irritability, anxiety, and depression were interfering with his work performance. However, upon retiring, the Veteran reported to the June 2010 examiner that the main reason he had retired was that he was simply tired of working. Additionally, both the January 2009 and June 2010 VA examiners noted that there was only mild impairment in the Veteran’s social and occupational functioning, a notation that is consistently reported by VA examiners as it related to the psychiatric symptoms through February 2017. Finally, in August 2018, the company that provided human resources services for the tobacco company that employed the Veteran, noted that the Veteran took early retirement but was unaware of any concessions being made for age or disability. Additionally, as noted above, the rating criteria for psychiatric disabilities are such that they consider the totality of psychiatric symptomatology. The Board’s finding that the psychiatric symptoms are properly assessed by a 50 percent rating is also a finding at the totality of the symptomatology causes, at most, reduced reliability and productivity in an employment setting rather than a more severe occupational impact such as total impairment or deficiencies in most areas as is contemplated by the higher 70 percent and 100 percent ratings. The Veteran’s work history includes working at the same company for more than 40 years, which reflects a history of reliability. Beyond this, during the period on appeal, the Veteran served in a role as a trustee and treasurer at his church, a role that would involve significant responsibility and is indicative of the Veteran’s continued mental ability to be reliable in a work setting. The Board finds that such is evidence of the Veteran having the ability to perform the mental requirements of substantially gainful employment. See Ray, 31 Vet. App. at 73. Additionally, the Veteran’s service-connected psychiatric disability does not preclude him from performing labor, and he has not alleged that he cannot perform labor. Based on the above assessment of the Veteran’s physical and mental abilities with consideration of his education, training, skills, and work history, the Board finds that the Veteran was capable of work that would result in income at the level of substantially gainful employment prior to April 18, 2017. For example, the Veteran could complete basic office work, such as filing and managing small accounts for a church, library, or small business, much like he does at his own church. This employment would be largely solitary, much like his previous employment as a mechanic, which he reported was mostly independent work. The Veteran would also be able to work in employment situations in which he converses with others as the Veteran has shown the ability to maintain relationships with friends, family, a female friend, and others at his church. The Veteran’s symptoms, though they may prevent him from avoiding high population areas or working with many people at one time, could do telemarketing work, which often involves a one-on-one, scripted conversation and can be done from the Veteran’s home. The Veteran could do physical labor that is more solitary in nature, such as at a yard maintenance company, much like the work he does at his own home and at his church. This is evidence against a finding that the Veteran was precluded from all forms of substantially gainful employment prior to April 18, 2017. The Board acknowledges the opinion provided by the December 2017 private examiner that the Veteran would have been unable to complete work activities consistently and withstand the pressures of a work situation due to minimal levels of reliability and dependability. However, as noted above, the opinion of this examiner is inconsistent with, and therefore less probative than, the contemporaneous notations made by VA and private treatment providers, VA examiners, and the private psychiatric examiner who assessed the Veteran’s symptomatology related to his psychiatric disability during the period on appeal. Additionally, the December 2017 examiner specifically stated that the Veteran could not dependably or reliably engage in work situations from August 2015 to April 2017. However, during that time, the Veteran himself was reporting that he was a treasurer and trustee at his church and was engaging in yardwork and office work, as noted above. The Veteran himself suggests that he was able to complete these tasks dependably and reliably at that time. The Board finds this to be highly probative evidence that the Veteran was able to complete tasks consistent with those found in a work-like setting dependably and reliably without significant impact from his psychiatric symptoms. Finally, the Board acknowledges the statements made to the private psychiatric examiner in August 2020, in which the Veteran reported that he left his job at the tobacco company in 2010 because his work performance had declined and he was unable to fulfill his duties due to anxiety and poor concentration. The Board finds these statements, made over 10 years after the Veteran retired, to be less probative than the contemporaneous statements made by the Veteran that were documented in VA records from 2010 to 2017, discussed above. His statements made in August 2020 are inconsistent with the contemporaneous reports. While the contemporaneous reports acknowledge that the psychiatric symptoms have had some impact on the Veteran’s ability to continue his employment, he did not report at the time that he was unable to concentrate in such a way that he could not fulfill his duties, and his contemporaneous reports are consistent with the symptoms observed by examiners and treatment providers in the contemporaneous records. The Board also acknowledges the opinion provided by the August 2020 private examiner that the psychiatric disability had caused difficulty with concentration and completing vocational tasks as early as 2010 to the extent that it would cause the Veteran to be unable to perform the skills necessary for full-time, competitive employment. However, as noted above, this opinion was based on a self-reported history that the Board, after a thorough review of the claims file, has found to be inconsistent with the contemporaneous evidence (which reasons are discussed above) and, therefore, less probative. The examiner, in providing the August 2020 opinion, did not address these discrepancies in the record or the facts related to the Veteran taking on responsibilities at his church. As the opinion appears to be based on an incomplete review of the record, the Board finds that the opinion of the August 2020 private psychiatric examiner is inadequate and therefore, not probative. Furthermore, the Veteran’s record clearly documents that in the years following his retirement, he was able to sufficiently concentrate to complete office work at his church and serve as a trustee and treasurer. While the Veteran may have been unable to continue work as a mechanic in part due to his psychiatric symptoms, the standard for entitlement to TDIU is not whether the Veteran is able to continue his pervious employment but whether he is able to obtain or maintain any substantially gainful employment. The Veteran’s part-time work at his church is highly probative evidence that the psychiatric symptoms were not so severe that he was unable to be concentrate in a meaningful way on work-like tasks. As the preponderance of the evidence is against a finding that the Veteran would be precluded from securing or following a substantially gainful employment due to the service-connected psychiatric disability, referral for extraschedular consideration of a TDIU rating prior to April 28, 2017 is not warranted. 5. Entitlement to DEA benefits prior to April 18, 2017 Survivors’ and Dependents’ Educational Assistance under Chapter 35, Title 38, of the United States Code, is a program of education or special restorative training that may be authorized for an eligible person, such as a surviving spouse, if the applicable criteria are met. 38 U.S.C. §§ 3500, 3501; 38 38 C.F.R. §§ 21.3020, 21.3021. Basic eligibility for certification of Dependents’ Educational Assistance exists if the veteran was discharged from service under conditions other than dishonorable, or died in service, and either (1) has a permanent total service-connected disability, or (2) a permanent total service-connected disability was in existence at the date of the veteran’s death, or (3) died as a result of a service-connected disability, or, if a service member (4) is on active duty as a member of the Armed Forces and, for a period of more than 90 days, has been listed by VA concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in the line of duty by a foreign government or power. 38 C.F.R. § 3.807. The appellant was awarded eligibility to Dependents’ Educational Assistance, effective April 28, 2017, based upon the finding that the evidence showed that the Veteran was in receipt of a 100 percent rating, and therefore, met the requirement of a permanent total service-connected disability under 38 C.F.R. § 3.807(c). As noted above, the Veteran is not in receipt of a 100 percent rating based on permanent total service-connected disability prior to April 28, 2017. Thus, entitlement to an earlier effective date for Dependents’ Educational Assistance benefits is denied.   REASONS FOR REMAND 6. Entitlement to a compensable rating for a bilateral hearing loss disability is remanded. The Board finds a remand is necessary for the claim for a compensable rating for a bilateral hearing loss disability. The Veteran’s last examination for his bilateral hearing loss disability was conducted in May 2017, nearly four years ago. In an April 2020 statement, the Veteran reported that his hearing loss had gotten worse since the May 2017 VA examination. Thus, the Board finds a new examination is necessary to assess the current nature of the bilateral hearing loss disability. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss disability. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Keninger, 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.