Citation Nr: 21040373 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 11-20 757 DATE: July 3, 2021 ORDER Entitlement to service connection for status-post collapsed lung (respiratory disability) is denied. Entitlement to a 10 percent rating, but no higher, for service-connected vitiligo in the scrotal area (skin disability) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. The Veteran's respiratory disability did not manifest in service and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 2. For the entire period on appeal, the Veteran had a skin disability on exposed and unexposed areas. 3. The Veteran's service-connected disabilities do not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309. 2. The criteria for a 10 percent rating, but no higher, for a skin disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.118, Diagnostic Code 7823. 3. The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from December 1972 to December 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, the Veteran testified at a Board hearing. The transcript of the hearing is of record. By way of background, in June 2017 and May 2020, the Board remanded the issues on appeal for further evidentiary development and adjudication. That development having been completed, the issues on appeal are again before the Board. Service Connection Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for a respiratory disability is denied. After a review of the record, the Board finds that although the Veteran has a current diagnosis of a respiratory disability, he does not meet the criteria for service connection as the preponderance of the evidence is against a finding that the Veteran's respiratory disability is casually or etiologically related to an in-service event, injury or disease. At the outset, the Board notes that in the June 2009 VA examination the Veteran was diagnosed with mild obstructive lung defect and in an April 2011 VA treatment record the Veteran was diagnosed with history of pneumothorax in service and asthma, and chronic obstructive pulmonary disease (COPD) with spontaneous pneumothorax and asthmatic symptoms. See June 2009 VA Examination and July 2011 Medical Treatment Record Government Facility. As such, the first element of service connection has been met. Regarding the second element of service connection, a review of the service treatment records (STRs) shows that in May 1979 the Veteran had spontaneous pneumothorax. See October 2014 STR Medical. However, his condition was temporary and was not expected to exceed 90 days. In an April 1983 and November 1983 STR, about four years after the spontaneous pneumothorax incident, the Veteran was noted to have normal lungs clear to auscultation. In an August 1986 STR, about seven years after the incident, the Veteran complained of shortness of breath and chest pain despite having clear lungs. The Veteran was diagnosed with shortness of breath. Subsequent records show that the Veteran had normal lungs and chest with lungs clear to auscultation in the June 1988 periodic examination and August 1989 examination. As the Veteran had spontaneous pneumothorax in service, the Board finds that the second element of service connection has been met. Concerning the third element of service connection, the Board notes that the Veteran was afforded VA examinations in June 2009 and February 2019 with an addendum opinion in June 2020. In the June 2009 VA examination, the Veteran reported that he has no history of asthma, empyema, cough, hemoptysis, and wheezing. However, the Veteran stated that he has dyspnea and chest pain. The examiner noted that a 2008 and 2009 x-ray scans of the chest revealed normal findings. The pulmonary function test (PFT) showed mild obstructive lung defect. However, the cause of this is not known. Considering the fact that the Veteran had normal chest x-ray scan and the Veteran's lung collapse occurred about 30 years ago, the examiner determined that the Veteran's condition has been resolved. In the October 2016 hearing, the Veteran stated that he has rapid breathing when he would wash his vehicle, climb stairs, and sometimes when bending. The Veteran stated that he uses an inhaler. In the June 2017 Board remand order, the Board instructed that all pertinent respiratory diagnoses should be identified by the examiner and, at a minimum, consider and address the following diagnoses: history of pneumothorax in service and asthma, moderate COPD and occasional dyspnea on exertion, and COPD with spontaneous pneumothorax and asthmatic symptoms. In the February 2019 VA examination, the examiner diagnosed the Veteran with spontaneous pneumothorax of the right and opined that the Veteran's condition is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that although the Veteran argued that his shortness of breath is due to his in-service collapsed lung, the Veteran also has an in-service precordial contusion incident and a history of smoking 10 to 15 years before quitting in 1986. Due to these other factors, the examiner opined that it is less likely that the Veteran's shortness of breath is a result of his spontaneous pneumothorax that occurred almost 40 years ago. The Veteran is documented in multiple records to have been diagnosed with COPD, and it is also noted that he is noncompliant with medications as well. The Veteran did not bring his medications to the appointment, nor could he tell the examiner what he was taking currently for his lung condition. The examiner concluded that the Veteran's residual shortness of breath is more likely the result of his COPD. As the examiner did not address each of the respiratory diagnoses, it was unclear whether the February 2019 examiner considered all of the Veteran's respiratory disabilities. As such, in May 2020, the Board remanded the issue for further clarification. In the June 2020 VA addendum opinion, the examiner opined that the claimed disabilities are less likely than not incurred in or caused by the Veteran's in-service injury, event, or illness. The examiner explained that the Veteran experienced a spontaneous pneumothorax in 1979. The Veteran's condition resolved, and he served 13 additional years. The Veteran had no consequences or evidence of problems after resolution of the pneumothorax. Therefore, the pneumothorax clearly occurred in service and subsequently resolved. There were no consequences at that time, and there are no disabilities assignable to the residuals. The examiner stated that the diagnoses of 'mild obstructive lung defect, history of pneumothorax in service and asthma, moderate COPD and occasional dyspnea on exertion, and COPD with spontaneous pneumothorax and asthmatic symptoms conditions to include COPD/asthma' are unrelated to the prior spontaneous pneumothorax. The Veteran had a multi-pack year history of smoking and this is most likely the cause of the Veteran's respiratory disability, to include COPD. There is no mechanism by which an old resolved pneumothorax can cause COPD. They are different anatomically and physiologically. This is established medical knowledge and practice. Therefore, it is more likely than not that the Veteran experienced a spontaneous, resolved pneumothorax in service. There is no significant residual to that event. Regarding the February 2019 VA examiner's notation of precordial contusion in May 1976, in the addendum the examiner stated that it may be that there is a discrepancy in dates for the pre-cordial contusion. This is the likely source of the pneumothorax cited as occurring in 1979. Regardless, if they are separate events, the pre-cordial contusion is irrelevant and moot, as it would have resolved, as there is no further documentation of a contusion. It would not have caused the pneumothorax in 1979, having occurred three years prior and it would have no relevance to COPD, for the same rationale. The Board gives great probative value to the June 2020 VA examiner's medical opinion as it is based on the examiner's medical knowledge, training, and experience. Further, the examiner's opinion is persuasive because the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran, and provided thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Although the Veteran claims that his respiratory disability manifested in service, he failed to submit any medical evidence in support of his claim. As there are no contradicting medical evidence, the Board affords great probative value to the June 2020 VA examiner's medical opinion and finds that the Veteran's respiratory disability is not etiologically related to service. In sum, the criteria for service connection for a respiratory disability have not been met. Accordingly, service connection for a respiratory disability must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Increased Rating 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. §§ 3.321, 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That being said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. The Veteran's skin disability is rated under Diagnostic Code 7823 for vitiligo. Diagnostic Code 7823 states that a noncompensable rating is warranted for vitiligo with no exposed areas affected. A 10 percent rating is warranted for vitiligo with exposed areas affected. 2. Entitlement to a 10 percent rating for service-connected skin disability is granted. As an initial matter, the Veteran filed his claim for entitlement to an increased rating in May 2009. Based on the evidence of record, the Board finds that after resolving all reasonable doubt in favor of the Veteran, the Veteran's skin disability is consistent with a 10 percent rating, but no higher. A review of the records shows that the Veteran was afforded VA examinations in March 2008, June 2009, March 2015, March 2016, February 2019, and December 2020. In the March 2008 examination, the Veteran reported that he has constant itching of his scrotal area due to his vitiligo. The Veteran also stated that his vitiligo worsens in the summer. On examination, the Veteran exhibited two large hypopigmented areas of the scrotum with moderate amount of excoriation of the skin of the scrotal area. These areas of the skin were extremely rough with increased rugae of the skin. There was no appreciated thinning of the skin and instead had increased thickening. The hypopigmented area covered 50 percent of the scrotum, which is approximately five percent of the entire body affected with no other abnormalities. In the June 2009 examination, the Veteran stated that his condition progressively worsened. He stated that he now has constant itching with increased skin discoloration of the scrotal area. He stated that the medicated cream helps decrease the itching, but it does not completely resolve the itching. On examination, the examiner noted that on inspection the Veteran's vitiligo covered about 50 percent of the scrotum and less than five percent of the entire body affected. In an April 2011 VA treatment record, the Veteran was noted to have scrotal vitiligo with pruritus. See July 2011 Medical Treatment Record Government Facility. In a June 2012 VA treatment record, the Veteran was noted to have normal scrotum and perianal region except for slight thickening and absence of pigment less than palm size bilaterally. See October 2016 CAPRI. In a March 2014 and September 2014 VA treatment record, the Veteran complained of chronic scrotal itch and discoloration. See October 2014 CAPRI. In the March 2015 examination, the Veteran reported that he had similar lesions on the front of his chest and abdomen that has gotten better. On examination, no lesion was discovered on the front of abdomen and chest. The Veteran's vitiligo affected about less than five percent of the total body area and no vitiligo on exposed area. The Veteran had vitiligo on the front of scrotum with excoriated, lichenified dyschromic lesion. None of the exposed area was affected by the Veteran's vitiligo. In the March 2016 examination, the examiner noted that the Veteran's vitiligo skin lesion was on both scrotal areas. The skin lesion was stable, not painful, and superficial with loss of pigmentation. The examiner did not note any vitiligo in other parts of the body. In a March 2016 VA treatment record, the Veteran stated that his rash is mostly on the scrotum. On examination, the Veteran had depigmentation possibly from brunt out vitiligo from chronic scratching. The scrotum had well demarcated depigmented patch on a background lichenification. See October 2016 CAPRI. In the October 2016 hearing, the Veteran attested that his vitiligo at times spread from his scrotum to 20 percent of his thigh. Based on the Veteran's testimony, the Board remanded the issue for further evidentiary purposes. In the June 2017 Board remand order, the Board instructed that, if possible, to schedule the VA examination during an active stage of the Veteran's skin disorder. However, if it is not possible to schedule the Veteran during an active stage, the examiner's report should include documentation of the symptoms of the Veteran's vitiligo based on his description of his symptoms during an active stage, to include his reports that his condition spread to his thigh area. Pursuant to the June 2017 Board remand order, the Veteran was afforded another VA examination in February 2019. In the examination, the examiner determined that the Veteran had vitiligo in less than 5 percent of the total body area and none on exposed area. The examiner did not address the Veteran's flare-ups of vitiligo or opined whether the Veteran's vitiligo would spread to cover 20 percent of the Veteran's thighs. As such, another VA examination was afforded to the Veteran. In the December 2020 VA examination, the examiner noted that the Veteran had vitiligo in less than 5 percent of the total body area and none on exposed area. As such, the examiner determined that no exposed areas were affected by vitiligo. Again, the examiner did not address whether the Veteran's vitiligo can spread to cover 20 percent of the Veteran's thighs during a flare-up. Based on the records, the Board finds that the Veteran's skin disability warrants a 10 percent rating for the entire appeal period. The records show that the Veteran testified that his vitiligo spread to his thighs during flare-ups, which suggest that exposed areas are affected. Although the Board notes that an examination was not conducted during a flare-up, the Veteran is not prejudiced as a maximum, 10 percent rating for service-connected vitiligo is being assigned for the entire period on appeal. As such the Board finds that the Veteran's skin disability is consistent with a 10 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7823. TDIU 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. See 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 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(a). An extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). If a sufficient rating is present, then it must be at least as likely as not that the veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16(a). 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). The issue is not whether the veteran can find employment generally, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his age or to the impairment cause by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. Where these percentage requirements are not met, entitlement to benefits 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 or her employment and educational history. 38 C.F.R. § 4.16(b). See Johnson v. McDonald, 762 F.3d 1362 (2014). The Board does not have the authority to assign an extraschedular total disability rating based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). 3. Entitlement to a TDIU is denied. At the outset, the Veteran filed for entitlement to an increased rating for his skin disability in May 2009. In June 2017, the Board found that a claim for TDIU was raised as part and parcel of the increased rating claim pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In September 2019, the VA sent Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), but the Veteran failed to respond. See September 2019 Subsequent Development Letter. The Board notes that the Veteran is service connected for posttraumatic stress disorder (PTSD) at 50 percent as of April 23, 2015; tinnitus at noncompensable rating as of January 1, 1993 and 10 percent as of November 15, 2006; scar from residuals of spontaneous pneumothorax at noncompensable rating as of January 1, 1993 and 10 percent as of May 26, 2009; bilateral hearing loss at noncompensable rating as of January 1, 1993 and 10 percent as of July 5, 2011; residuals of frostbite at noncompensable rating as of January 1, 1993; and vitiligo in scrotal area at noncompensable rating as of January 1, 1993 and 10 percent as of May 26, 2009. The Veteran has a combined evaluation of 20 percent effective May 22, 2009; 30 percent effective July 5, 2011; and 70 percent effective April 23, 2015. Accordingly, the Veteran met the schedular criteria effective April 23, 2015. Prior to April 23, 2015, the Board will consider whether referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted. A review of the records shows that the Veteran has a high school education. See June 2015 C&P Exam. The Veteran's past work history consists of working at Nissan, Walmart and other places making automotive repairs. See October 2014 CAPRI. In the October 2016 hearing, the Veteran stated that when he was working, his vitiligo would affect his ability to work in that he would have to go somewhere to scratch. He further testified that he was not currently working due to a brain disease and the need to see a neurologist. The Veteran thought he last worked 5 years earlier, or in approximately 2011. Concerning the Veteran's tinnitus and bilateral hearing loss, the October 2014 examiner noted that the Veteran stated that he has trouble hearing others and that he has noises in the ears that would come and go. The August 2016 examiner noted that the Veteran stated that he has hearing failure and that he asks people to repeat and that the noises in his ears would come and go. As for his scar and frostbite residuals, the March 2015 examiner opined that the Veteran's scar would not impact his ability to work as there was no residuals found on examination. Concerning his vitiligo, the March 2015, March 2016, February 2019, and December 2020 examiners opined that the Veteran's vitiligo would not impact his ability to work. However, in a June 2012 VA treatment record, a physician opined that the Veteran's itching and need to scratch his groin area due to his rash certainly interferes with his going out in public and doing a regular job to some degree. See October 2016 CAPRI. Regarding his PTSD, the June 2015 examiner opined that due to his PTSD the Veteran has occupational and social impairment with reduced reliability and productivity. See June 2015 C&P Exam. The Board acknowledges that the Veteran was found disabled by the Social Security Administration, but as the SSA records were destroyed and unavailable for review. See September 2019 Medical Treatment Records Furnished by SSA. Based on the foregoing, the Board finds that the Veteran is not precluded from securing and following a substantially gainful occupation. There is little to no evidence to show that the Veteran is precluded from working jobs for which he is qualified. Notably, the Veteran did not complete VA Form 21-8940, so it is unclear when he last worked. Further, no information was received from his former employers about his work history. (Continued on the next page) The Board observes that his PTSD is productive of reduced reliability and productivity, his hearing loss and tinnitus provide some limitations with hearing, and that he must take breaks to go to a private space when his vitiligo is itchy. It appears that that the Veteran can work in environments with minimal stress that allow for breaks. Accordingly, prior to April 23, 2015, the Board declines to remand the claim for referral to the Director of VA Compensation Service for consideration of TDIU on an extraschedular basis. From April 23, 2015, the Board finds that the lack of evidence weighs against a finding that the Veteran meets the requirements for entitlement to a TDIU. The claim is denied. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Noh, 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.