Citation Nr: 22018782 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-20 849 DATE: March 30, 2022 ORDER Entitlement to service connection for gangrene, to include as secondary to peripheral artery disease (PAD), which is secondary to ischemic heart disease (IHD), is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's gangrene disability is not shown to be causally or etiologically related to any disease, injury, or incident in-service, or caused or aggravated beyond the natural progression by the service-connected disabilities. 2. Prior to February 23, 2015, the Veteran's service-connected disabilities did not meet the schedular criteria for a TDIU rating, and the persuasive evidence of record is against a finding that his service-connected disabilities were of such nature and severity as to preclude him from securing and following a substantially gainful occupation. 3. Beginning February 23, 2015, the Veteran's service-connected disabilities did meet the schedular criteria for a TDIU; however, the evidence of record is against a finding that his service-connected disabilities were of such nature and severity as to preclude him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for a gangrene disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. At no point during the appeal period have the criteria for a total rating based on individual unemployability been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1969 through November 1973. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019 and August 2021, the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) for additional development. The appeal has since returned to the Board. In a December 2021 rating decision, the RO granted the appealed claim for entitlement to service connection for hypertension. The grant of service connection is considered a full grant of the benefits sought. As such, the Veteran's claim for hypertension is no longer before the Board. 1. Entitlement to service connection for gangrene, to include as secondary to PAD, which is secondary to IHD, is denied. The Veteran asserts that his gangrene disability is related to his service, to include his exposure to Agent Orange during service. Alternatively, he alleges that his gangrene disability was caused or aggravated by his IHD disability. Generally, service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a). A Veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent (i.e., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iii). VA regulations provide for presumptive service connection for specific diseases associated with exposure to herbicide agents, including early-onset peripheral neuropathy, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), prostate cancer and ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease and coronary bypass surgery; and stable, unstable, and Prinzmetal's angina). See 38 C.F.R. § 3.309 (e). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists, (2) an already service-connected disability, and (3) that the disability for which secondary service connection is sought was either (a) caused or (b) aggravated by the already service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). The record confirms a diagnosis of a gangrene disability within the period on appeal. See October 2019 C&P Exam. Thus, the first element for establishing service connection, including on a secondary basis, has been satisfied. The remaining questions before the Board are whether there was an in-service incurrence of a disease or injury; and whether his current disability is related to an in-service incurrence, if any, or was caused or aggravated by his service-connected IHD disability. The RO has previously conceded the Veteran's exposure to herbicides during his service in Vietnam. See August 2016 Rating Decision. Otherwise, service treatment notes are silent for treatment, diagnoses, or complaints related to gangrene disability. The Veteran's exposure to herbicides during service satisfies the second element of an in-service injury for direct service connection. The remaining questions for the Board are whether the Veteran's gangrene disability is related to his in-service herbicide exposure, or alternatively, caused or aggravated by his service-connected disabilities. In May 2016, the VA examiner reviewed the existing record and ultimately opined that the Veteran's gangrene disability is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner rationalized that there is no causal relationship found in medical literature for IHD to cause gangrene. It was further explained that the Veteran was found to have severe PAD. The development of PAD is similar to that of IHD, but there is no evidence that indicates that IHD can proximately cause damage to blood vessels outside the heart. In December 2016, an examiner opined that the Veteran's PAD disability is less likely than not the result of the Veteran's service-connected IHD disability. The examiner explained that the Veteran is a lifelong smoker, which is a risk factor for arterioslerotic heart disease. There is no medical evidence to suggest that the IHD is the cause of PAD. The examiner further explained that while PAD and IHD have the same etiologies, one does not cause the other. The examiner cited to medical literature that supports that PAD is more prevalent in older individuals, certain ethnic populations, families with atherosclerosis, and those with risks factors for cardiovascular disease. PAD is the leading risk factor for gangrene. In April 2017, the Veteran submitted an opinion from an unknown source within Shaw Heart Vascular treatment center. The opinion offered that the Veteran's gangrene disability was more likely caused by his IHD. It was rationalized that all IHD is caused by atherosclerosis, and it is widely acknowledged within the medical field that atherosclerosis is a cause of gangrene. The Veteran does not suffer from any other conditions known to cause gangrene. Thus, it is reasonable to conclude that his gangrene is more likely caused by his IHD. In October 2019, an examiner reviewed the Veteran's claim file and opined that is less likely than not that the Veteran's gangrene was incurred or caused by his service. The examiner rationalized that there is no known association between gangrene and agent orange exposure. The Veteran's gangrene disability was the result of PAD, presenting as critical limb ischemia, which subsequently resolved once effectively treated. The examiner further opined that it is less likely than not that that the Veteran's gangrene disability was due to or permanently aggravated beyond its natural progression by the Veteran's IHD service-connected disability. There is no medical nexus or clinical association between these conditions. While the pathophysiology of PAD is similar to IHD, there is no evidence that IHD causes PAD. In November 2021, an examiner again opined that the Veteran's gangrene disability is less likely than not the proximately due to, or the result, of the Veteran's service-connected disabilities. Further, the examiner determined a baseline severity of the Veteran's gangrene disability and noted that the current severity was not greater than the baseline. The examiner noted that the Veteran's service-connected disabilities of IHD, PTSD, and depression, tinnitus, and bilateral hearing loss are not related to PAD. Considering the aforementioned, presumptive service connection is not warranted for gangrene disability. Although VA has conceded herbicide exposure during service, gangrene is not listed as a disease that is entitled to presumptive service connection due to herbicide exposure. See 38 C.F.R. § 3.309 (e). When a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact incurred during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Medical evidence of record is against finding that Agent Orange caused the Veteran's gangrene disability. The October 2019 determined that there is no known link between Agent Orange and gangrene. Further, there is no competent evidence suggesting that the Veteran's gangrene disability is the result of his exposure to herbicides. Rather, medical evidence of record supports that the Veteran's gangrene disability was caused by a disability that presented post-service and has not been related to his service. The October 2019 VA examiner's opinion was supported by a thorough review of the record and is rendered by a competent medical professional that is uniquely qualified to opine on such matters. As such, the Board finds the October 2019 VA examiner's opinion highly probative. Thus, presumptive service connection, as due to Agent Orange exposure, could not be established. Additionally, the record does contain any evidence, including lay statements, relating the Veteran's gangrene disability to any injury, presentation, or event in-service unrelated to his exposure to herbicides. The Board finds that the October 2019 VA examiner's opinion and the absence of evidence supporting a relation between gangrene disability and the Veteran's service persuasively weighs against finding that the Veteran's gangrene disability is related to his service. Likewise, the persuasive evidence is against finding that the Veteran's gangrene disability was caused by the Veteran's service-connected disabilities. Each VA examiner of record offered a negative opinion for secondary service connection. Collectively, these opinions are adequately supported by medical literature, a review of the record, and thorough rationale that identifies a non-service-connected disability as a cause of the Veteran's gangrene disability. As such, they are also highly probative collectively. In contrast, the Board finds the April 2017 private opinion lacks probative value. In so finding, the Board notes that the ultimate positive opinion relies on a faulty premise that the Veteran does not suffer from other conditions than IHD known to cause gangrene. Such statement is directly refuted by the Veteran's identified non-service-connected diagnosis of PAD which the record notes is the leading cause of dry gangrene. See December 2016 C&P Exam. Treatment notes also confirm a diagnosis of PAD. See Medical Treatment Records-Non-Governmental Facility document, received April 18, 2016, page 5 of 22. Thus, the Board finds that the April 2017 private opinion has less probative value. Lastly, the November 2021 VA examiner's opinion supports that there was no aggravation of the Veteran's gangrene disability. In doing so, the November 2021 VA examiner determined that the Veteran's gangrene disability's baseline is documented in 2016. Since then, the examiner cited that the Veteran's gangrene disability has resolved, and the current severity is not greater than baseline. Thus, this opinion suggests that there has been no aggravation of the Veteran's gangrene disability. The Board finds that the evidence of record supports this finding, as the record is devoid of lay statements, or any other evidence, that suggests that the Veteran's gangrene disability has been aggravated beyond its natural progression at any time during the period on appeal. Rather, the Veteran was promptly treated by stenting in 2016 for his gangrene disability which resolved thereafter. Moreover, in the Veteran's October 2019 VA examination, he admitted that blood flow to his lower extremities was reestablished through treatment in 2016, and that his symptoms have improved and has not happened again. As such, the record does not establish that service-connected disabilities aggravated his gangrene disability. As such, secondary service connection is not warranted. Although the Veteran sincerely believes that his gangrene disability is related to his service, or is due to or aggravated by his IHD, he is a layperson and lacks the training/expertise to opine competently on medical questions such as those presented in the instant case. Lay statements are not competent evidence regarding diagnosis or etiology in such case. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007), Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Based on the aforementioned, the Board finds the evidence is not sufficient to show that the Veteran's gangrene disability is related to service or to a service-connected disability. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence is persuasively against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.§ 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 2. Entitlement to a total disability rating based on TDIU is denied. The Veteran contends that his service-connected disabilities prevent him from securing and following substantially gainful employment. Total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall 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. See 38 C.F.R. § 4.16 (a). For the purposes of determining rating level, disabilities resulting from a common etiology, or a single accident are considered a single disability. 38 C.F.R. § 4.16 (a). Where the percentage requirements for TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis when the veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director of Compensation and Pension Service. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, 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). Total disability will be considered to exist 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; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. An assessment for entitlement to a TDIU requires consideration of the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16 (b). Unemployability associated with advancing age or intercurrent (i.e. non-service connected) disability may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The fact that a Veteran is unemployed or has difficulty obtaining employment is not enough, as a schedular rating provides recognition of such. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The schedular criteria contemplate compensating a Veteran for considerable loss of working time from exacerbations proportionate to the severity of the disability. See 38 C.F.R. § 4.1. The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). During the period on appeal, which begins with his informal claim in June 2012, the Veteran was service connected for IHD, rated as 60 percent disabling from February 23, 2015, and 100 percent disabling from January 11, 2016; PTSD, rated as 30 percent disabling from June 15, 2012; tinnitus, rated as 10 percent disabling from June 15, 2012; bilateral hearing loss, rating as noncompensable from June 15, 2012; and hypertension disability, rated as noncompensable from January 11, 2016. His combined rating was 40 percent from June 15, 2012, 80 percent from February 23, 2015, and 100 percent from January 11, 2016. Thus, the Veteran did not meet the schedular rating prior to February 23, 2015. Beginning February 23, 2015, he met the schedular rating for a TDIU. In the Veteran's TDIU applications, he alleged that he could not work because of his service-connected disabilities. He last worked in April 2007 and became too disabled to work in 2008. His last employment was as a self-employed business owner. He had a high school education and had had no further training since becoming too disabled to work. The Board takes notice that the Veteran was awarded disability benefits by the Social Security Administration (SSA) in a March 2013 disability determination by an agency adjudicator. That determination considered the Veteran's non-service-connected impairment of epilepsy. The SSA determination assessed only physical limitations on the Veteran's ability to work. In January 2013, the Veteran's treating provider submitted a residual functional assessment to SSA which opined severe physical restrictions, including the capacity to sit three hours and stand or walk for only three hours, based partly on non-service-connected disabilities, such as obstructive pulmonary disease, a seizure disorder, and low back pain. The treating provider opined that the Veteran is unable to engage in full time competitive work due to his seizure disorder, chronic back pain, congestive heart failure, and chronic back pain. In an SSA psychological examination in February 2013, the Veteran reported mental symptoms of irritability and outbursts of anger. His relationship with his family and friends were good. He had no difficulty performing household tasks, attending to his activities of daily living, and completing household tasks. His mental status examination was relatively intact, with notations of irritability and occasional outbursts. The examiner determined he had moderate impairment to interact with co-workers or the public due to irritability and anger. He had no impairment in performing detailed and complex tasks, accepting instructions from supervisors, or maintaining regular attendance and performing work activities on a consistent basis. In January and February 2013, lay statements of record detail that the Veteran did light household chores, such as cooking and laundry, but could no longer perform maintenance work or do building repairs around the house. Additionally, the Veteran was capable of only walking short distances without needing to stop and catch his breath. In a February 2013 correspondence, the Veteran detailed that he lived in a rural area with little transportation. He admitted that he could be trained in a different industry if he could drive. His ability to drive was restricted due to his seizures. He also reported that he could not walk more than 500 feet without needing to rest and could only lift a few pounds. In a June 2013 psychological VA examination, an examiner determined that his PTSD caused occupational and social functioning with occasional decrease in work efficiency. The examiner further opined that his service-connected disabilities did not render the Veteran unable to maintain substantially gainful employment. It was further explained that his psychological issues secondary to his PTSD affected his ability to work but did not preclude it. In May 2016, after a heart VA examination, an examiner opined that the Veteran's IHD disability had no functional impact on his ability to work. In his July 2018 VA heart VA examination, the examiner opined that the Veteran is very limited in his activities and could only walk a block at a time. He could no longer perform yard work or maintenance around his house. In other lay statements of record, the Veteran has detailed that he was a business owner of an automobile and truck repair shop. He ran the business, which included overseeing hiring, overseeing the work performance of service technicians, ordering parts for inventory, preparing estimates for work to be performed, and handling public relations at all levels. Considering the aforementioned, the Board finds that a TDIU is not warranted at any time during the period on appeal. The Veteran has alleged that he is unable to work due to his service-connected disabilities. However, after a thorough review of the record, the Board finds that the evidence shows that the functional limitations imposed by the Veteran's service-connected disabilities did not render him unable to perform the mental or physical tasks necessary to follow a substantially gainful occupation during the period on appeal. The Board does not dispute that the Veteran experienced some occupational impairment due to his service-connected disabilities during the period on appeal. Evidence shows complaints of physical and mental limitations resulting from his service-connected disabilities. However, the Board finds that such impairment was adequately compensated by the assigned schedular ratings. Loss of industrial capacity is the principal factor in assigning disability ratings. See 38 C.F.R. §§ 3.321 (a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board has considered entitlement to TDIU based only upon the Veteran's service-connected disabilities and finds that although they may have impacted his ability to obtain and maintain employment, they did not wholly prevent him from securing or following gainful employment. Based on his physical limitations, it is conceded that he would experience some limitations in heavy lifting and prolonged standing or walking. Lay statements and medical evidence of record support that the Veteran, while physically limited, has the ability to perform less physically demanding tasks. This is shown in his ability to perform such activities of light household chores and walking several feet or a block. The record also does not demonstrate significant limitations from his service-connected disabilities in the Veteran's ability to perform work that is performed while primarily seated, Specifically, SSA determined that the Veteran was capable of performing sedentary work, which was defined as lifting no more than twenty pounds, sitting about six hours, and standing for four hours. His service-connected disabilities would not preclude this type of less physically demanding employment. In addition, such a position would provide income above the poverty level. A review of medical evidence and lay statements during the period appeal does not support significant restrictive physical limitations due to service-connected disabilities, especially to the extent that they would preclude work that the Veteran is qualified to perform. Similarly, the Veteran retained the mental capacity to perform such work when considering the limitations assessed by his PTSD. To this point, both SSA psychological evaluation and VA psychological examiners suggest that while the Veteran's psychological impairments affect employment, it does not preclude participation in substantially gainful employment. To this point, the Veteran was found to retain the mental capacity to perform detailed and complex tasks, take instructions from supervisors, attend work regularly and perform work activities on a consistent basis. Notably, the Veteran has worked as a business owner performing such tasks as supervising, hiring, ordering and maintaining inventory, and handling all aspects of public relations. The record is devoid of evidence suggesting that his service-connected PTSD has eroded the Veteran's mental capacity to perform work tasks consistent with his prior occupation as a business owner and manager, even when considering his reports of anger and irritability. Such skills obtained from his prior work would allow for work in a vast number of industries and jobs that would offer substantially gainful occupations. The Board recognizes that the Veteran has been in receipt of SSA disability benefits since 2013. However, SSA determinations, while probative, are not binding on the Board, as they involve the application of different legal standards. See Collier v. Derwinski, 1 Vet. App. 413 (1991). SSA considered the fact that the Veteran's age and non-service-connected disabilities, facts that VA cannot consider. The Board has considered the Veteran's argument that SSA doctors are highly qualified and "outrank" the C&P examiner. Additionally, that SSA judges are similar to VA judges who review the appeals and the SSA criteria for total disability benefits are much higher than VA. As addressed above, SSA determinations and VA decisions on TDIU apply different legal standards. Furthermore, the ultimate question of whether a Veteran is capable of substantially gainful employment is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354. Thus, the ranking of medical determinations from SSA versus VA examiners has no functional application in the ultimate determinate of whether a TDIU is warranted. Rather, the entire record, including non-medical evidence, has been considered in reaching the ultimate determination herein. Lastly, the Board notes that a Social Security Administrative Judge did not make the 2013 SSA disability determination. Thus, the comparison of adjudicators is factually and substantively flawed. Based on the aforementioned, the evidence is persuasively against finding that the Veteran's service-connected disabilities have prevented him from securing and following substantially gainful employment during the period on appeal. As such, his claim for TDIU is denied. The Board further finds that and referral for extraschedular consideration, prior to February 23, 2015, is not warranted as there is no reasonably possibility that the Veteran was unemployable when considering the effects of only his service-connected disabilities, education, and experience at during this time period. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.B. Mmeje, 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.