Citation Nr: 21024557 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 16-27 271 DATE: April 23, 2021 ORDER Entitlement to service connection for skin cancer, to include as due to herbicide exposure, is denied. Entitlement to total disability due to individual unemployability is granted. FINDINGS OF FACT 1. The Veteran’s skin cancer, to include squamous cell carcinomas, actinic keratosis, and seborrheic keratosis were not manifested in service or for many years thereafter; his skin cancer diagnoses are not diseases listed in 38 C.F.R. § 3.309(e), and are not shown to be etiologically related to his service, to include as due to exposure to herbicide agents therein. 2. The Veteran’s service-connected ischemic heart disease, diabetes mellitus, and related conditions render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for skin cancer, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 2. The criteria for entitlement to total disability due to individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1966 to July 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s claims were previously remanded by the Board in a July 2020 decision. The Board finds that the RO has substantially complied with the July 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for skin cancer, to include as due to herbicide exposure The Veteran contends that his skin cancer is the result of exposure to agent orange. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of skin cancer, to include actinic keratosis and seborrheic keratosis, as evidenced by the August 30, 2019 examination. Skin cancer is not an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Thus, it is not subject to presumptive service connection. Additionally, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Veteran’s treatment notes do not reflect a diagnosis of skin cancer until 2001. The Veteran’s service treatment records (STRs) are silent for complaints, treatment, or diagnoses pertaining to skin cancers. The Veteran’s July 1968 separation examination indicated normal skin. Private treatment records indicate the Veteran was treated for actinic keratosis and seborrheic keratosis in October 2002. The Veteran was noted to have an invasive squamous cell carcinoma on the right arm and an actinic (solar) keratosis in August 2006. The Veteran was afforded a VA examination in August 2019. The Veteran reported he developed skin cancer due to agent orange. The Veteran also indicated his first skin cancer lesion was excised in 2001. The VA examiner noted numerous scars on the Veteran’s upper body. In October 2019, the VA examiner provided an opinion that the Veteran’s skin cancer was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner indicated there were no active skin cancer lesions while in service and no treatment or diagnosis for skin cancer during the Veteran’s military service. The examiner also noted that the medical literature indicating an association between skin cancer and Agent Orange exposure are inconclusive. The Board notes treatise evidence must “not simply provide speculative generic statements not relevant to the veteran’s claim.” See Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). In August 2020, another VA examination provided an addendum opinion regarding the etiology of the Veteran’s skin cancer. The examiner opined that the Veteran’s skin cancer was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. As rationale, the examiner noted there was no evidence of a skin condition arising in service or evidence of skin cancer until around 2001. The examiner further explained that there is no evidence in the current, widely accepted, peer-reviewed literature to support the contention that Agent Orange or herbicides cause skin cancers to include melanoma, squamous cell carcinoma, and basal cell carcinoma. The examiner noted that squamous cell carcinoma and basal cell carcinoma have a genetic predisposition and connected to chronic, long-term skin exposure. The examiner also indicated that melanoma is connected to both sun-exposure and genetics. The examiner concluded that it is less likely than not that the Veteran’s skin cancer, seborrheic and actinic keratosis are due to or incurred in service, to include environmental or toxic exposures such as Agent Orange. Accordingly, because skin cancer (to include seborrheic keratosis and actinic keratosis) is not listed in 38 C.F.R. § 3.309 (e), to substantiate this theory of entitlement, there must be affirmative evidence that it is related to such exposure. The Veteran is a layperson and his own opinion is not competent evidence in the matter, and he has not presented any competent evidence supporting this theory of entitlement. See Jandreau, 492 F.3d 1372, 1377. The record does not include any competent evidence that the Veteran’s skin cancer is indeed etiologically related to his service, to include as due to exposure to herbicide agents. Accordingly, the preponderance of the evidence is against this claim, and the appeal in the matter must be denied. Gilbert, 1 Vet. App. at 55.   2. Entitlement to total disability due to individual unemployability The Veteran contends that he has been unable to work due to his service-connected disabilities. In his April 2013 application for increased compensation based on unemployability, the Veteran indicated he was unable to work due to service-connected ischemic heart disease and diabetes. The Veteran indicated that he has not been able to work since April 2001. An updated application in May 2018 indicated the Veteran was unable to work due to ischemic heart disease, diabetes, a back injury, and hearing loss. The Veteran reported he worked through September 2010 as a plumber. The Veteran is seeking a total disability rating based on individual unemployability (TDIU). The Board finds that the Veteran’s service-connected disabilities prevent him from securing or following a substantially gainful occupation, and the Board finds that a TDIU is warranted in this case. A TDIU may be assigned when the disabled veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities; provided they meet specified percentage ratings. 38 C.F.R. § 4.16(a). For purposes of meeting the percentage criteria of § 4.16(a) disabilities resulting from a common etiology are considered a single disability. 38 C.F.R. § 4.16(a)(2). To qualify for a schedular TDIU under § 4.16(a) the Veteran must have one service-connected disability rated at 60 percent or more, or, if there are two or more such disabilities, one must be ratable at 40 percent or more, and combine with sufficient additional disability to bring the combined total to 70 percent or more. Further, for the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war The combined ratings table at 38 C.F.R. § 4.25 is used to determine the combined disability rating. 38 C.F.R. § 4.25. There are two regulatory subsections that allow for a TDIU. The first, called a “schedular TDIU,” provides that a TDIU may be assigned when a disabled Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities alone. 38 C.F.R. § 4.16(a). If there is only one service-connected disability, this disability must be ratable at 60 percent or more. Id. 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. Id. Either the Board or the agency of original jurisdiction (AOJ) can grant a schedular TDIU in the first instance. The second, called an “extraschedular TDIU,” does not have the percentage requirement but cannot be granted by the Board or the AOJ in the first instance. 38 C.F.R. § 4.16(b). Rather, it must be submitted to VA’s Director, Compensation Service to provide an opinion as to whether or not the Veteran’s service-connected disabilities alone prevent the Veteran from securing or following a substantially gainful occupation. 38 C.F.R. § 4.16(b). Additionally, in a recent precedential decision issued by the United States Court of Appeals for Veterans Claims, they offered guidance in defining “unable to secure and follow a substantially gainful occupation.” In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court found that 38 C.F.R. § 4.16 (b) has two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the Veteran’s history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. The Veteran was found to have service-connected ischemic heart disease status post myocardial infarction (IHD), rated at 30 percent from July 18, 2010; posttraumatic stress disorder (PTSD), rated at 30 percent from May 20, 2014; hearing loss, rated at 30 percent from September 20, 2013, 40 percent from April 12, 2016, and 30 percent from May 23, 2018; diabetes mellitus, type II (Agent Orange), rated at 20 percent from July 18, 2011; peripheral neuropathy of the left lower extremity, rated at 20 percent from May 23, 2018; peripheral neuropathy of the right lower extremity, rated at 20 percent from May 23, 2018; and tinnitus, rated at 10 percent from September 20, 2013. The Veteran’s combined evaluation was 30 percent from July 18, 2010, 40 percent from July 18, 2011, 70 percent from September 20, 2013, 80 percent from May 20, 2014, and 90 percent from May 23, 2018. The Board finds that the Veteran’s bilateral hearing loss and tinnitus are disabilities affecting a single body system. The Board also finds that the Veteran’s diabetes mellitus and bilateral lower extremity peripheral neuropathy are disabilities resulting from a common etiology. 38 C.F.R. § 4.16(a)(2) and (3). Thus, the Veteran met the schedular requirements for TDIU from September 20, 2013. 38 C.F.R. § § 4.16(a). The remaining inquiry is whether he was unable to secure or follow substantially gainful occupation due solely to service-connected disabilities. The Veteran’s May 2018 Application for Increased Compensation Based on Unemployability (application) indicates that the Veteran stopped working full time in September 2010. The Veteran reported he was unable to continue his career as a plumber from that date due to IHD, diabetes mellitus, and hearing loss. The Veteran reported he had worked in plumbing from September 1976 through September 2010. In a March 2013 statement, the Veteran reported that his heart races when trying to do “anything.” The Veteran also reported shortness of breath, weakness, and heart flutters frequently. The Veteran indicated that his diabetes affects his weak legs reducing his ability to stand and walk distances. The Veteran reported on his application that he had one year of high school education and had completed plumber trade school in the 1960s. The Veteran’s VA treatment notes reveal significant treatment for a heart condition with reports of rapid palpitations, dizziness, and episodes of atrial fibrillation. There is a history of a heart attack in March 2010. The Veteran is also under treatment for peripheral neuropathy. Treatment notes from October 2017 indicate the Veteran has tingling in his fingers and toes with constant numbness. A diabetic foot examination showed bilateral slightly decreased protective sensation. A VA examination in June 2018 indicated that the Veteran had dyspnea and fatigue at 3 to 5 METs based on an interview based METs test but would only be limited to 5 to 7 METs solely on the Veteran’s heart condition. In a March 2020 statement, the Veteran’s physician, Dr. M.R.B., opined that the Veteran is unable to work due to his peripheral vascular disease. Based on the foregoing, the Board finds that the totality of the evidence supports a finding that the Veteran’s service-connected heart condition and diabetes render him unemployable. Specifically, the evidence suggests that the Veteran has not worked due to his heart condition since 2010 and has significant difficulties with activities of daily living due to chest pain and shortness of breath. As the Veteran is unable to physically perform the tasks needed in his past work nor any other work, the evidence supports a finding of unemployability due to his service-connected disabilities. Accordingly, a TDIU is granted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Taylor, Associate 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.