Citation Nr: 1759940 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 09-09 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a respiratory disability. 2. Entitlement to an initial rating higher than 70 percent for PTSD. 3. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Gibson INTRODUCTION The Veteran served on active duty from May 1969 to February 1971. This appeal to the Board of Veterans' Appeals (Board) is from June 2008 and May 2010 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In June 2012, the Veteran had a personal hearing before VLJ, who is no longer a member of the Board. The Veteran was advised of this, and of his right for an additional hearing before a sitting member of the Board, in a May 2017 letter. In June 2017, he declined having another hearing. In January 2014, the Board remanded these issues for additional development, which has been substantially completed. In this decision, the Board is granting service connection for fibrosis with a restrictive breathing pattern, and granting a TDIU. His claim for an initial rating higher than 70 percent for PTSD is denied. FINDINGS OF FACT 1. The Veteran was exposed to asbestos both in service and directly thereafter in his civilian occupation. In resolving all doubt in his favor, fibrosis noted on X-rays and his restrictive pattern of breathing shown on pulmonary function testing is related to his service. 2. He does not have total social and occupational impairment as a result of his PTSD. 3. The Veteran's PTSD and asbestos-related symptoms preclude him from engaging in substantial gainful employment consistent with his education and occupational experience for the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria are met for service connection for asbestos-related fibrosis with a restrictive breathing pattern. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303(a) (2017). 2. The criteria are not met for a rating higher than 70 percent for PTSD. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.400, 4.1, 4.3, 4.7, 4.20, 4.126-4.130, DC 9411 (2017). 3. The criteria are met for a TDIU, effective from May 16, 2007. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 3.400, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Service Connection Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. § 1110 (West 2014); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The record is in equipoise as to whether the Veteran has a current diagnosis. He does not yet have asbestosis, but the most recent treatment record shows that his X-rays show fibrosis, and that his pulmonary function tests show a restrictive breathing pattern. The Board is satisfied that symptomatic fibrosis is sufficient to support service-connection. The Veteran alleges he was exposed to asbestos while serving in the Navy. Specifically, he reported during his personal hearing that he was a boson (boatswain) mate, which required him to be around the boiler tanks and pipes, which the Board has no reason to doubt. His DD-214 shows that he was a signal man, but his service personnel records (SPRs) do not appear to be complete. Accordingly, as he is competent to report his own duties during service, and there is nothing to contradict this information, the Board finds that he was likely exposed to some asbestos during his service. The record also shows that he had civilian exposure in his occupation following service. His employment records show yearly physical examinations, and also noted that he wore a respirator or dust mask during the years he was noted to be working around asbestos. A May 1997 medical opinion notes that the Veteran was showing asbestos related symptoms on X-ray, and that he had exposure in this employment as early as 1973. He continued that the X-ray evidence, known exposure, and latency period associated with asbestos exposure led him to conclude that it was related to his work. However, it is not clear that the examiner was also informed about exposure in the service, just prior to 1973. Similarly, a July 2002 private examiner also attributed his symptoms to occupational exposure to asbestos, but again, it is not clear whether he was informed about earlier exposure while in service. The April 2009 VA examiner did not provide an opinion because she did not diagnose any disability. The January 2010 VA examiner also did not diagnose a disability, but opined that if he was beginning to show early asbestosis, that it was more likely related to the occupational exposure over the in-service exposure, as the occupational exposure was over a lengthier period of time. Finally, in September 2016, a private physician opined that his symptoms were as likely as not related to his exposure in service. However, this examiner did not discuss his occupational exposure. Based on this evidence, the Board finds that service connection is warranted. The record shows fibrosis and a restrictive breathing pattern, as well as in-service exposure; thus, the remaining element is whether there is a nexus between the two. The Board notes that VA adjudication manuals have noted that the latency period for asbestos-related diseases can vary from 10 to 45 or more years between first exposure and development of disease, which must be considered. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. I, Para. 3; M21-1, Part IV, Subpart ii, Chap. 2, Sec. c, Para. 2. the May 1997 medical opinion supports the conclusion that the symptoms developed, at least in part, due to distant exposure, citing the known latency period in support of his opinion. This is the only opinion that addresses the time period between exposure and onset, and, as does not contain any information that would exclude consideration of exposure in service, the Board resolves doubt in his favor. In sum, the record shows he was exposed by service and by work at roughly the same time and he now has asbestos-related symptoms. The Board finds it as likely as not that the service exposure caused his current disability, and service connection is granted. Increased Rating Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran's PTSD is rated as 70 percent effective from May 16, 2007, the date of receipt of his claim for service connection for PTSD. See 38 C.F.R. § 3.400. The criteria for evaluating PTSD are found at 38 C.F.R. § 4.130, DC 9411. A 70 percent evaluation is warranted 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); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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; and, memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed above serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). After review of the evidence, the Board does not find the Veteran to have total social and occupational impairment as a result of PTSD. The record shows that he has been married to his wife for over 40 years, and that she is supportive of him. He has a relationship with his children and grandchildren, although he has a hard time being around them for too long as the grandchildren are loud and have too much energy for him. He therefore still has a relationship with his family. At the May 2014 VA examination, he reported going to church occasionally. The record shows some suicidal ideation, and that he considered going to the emergency room for suicidal thoughts, but not that the Veteran is in persistent danger of hurting himself. Indeed, in May 2013, it was noted he had coping mechanisms for these thoughts, including going outside or going for a drive, and that his family and religion would act as barriers to acting on the thoughts. The record does not show grossly inappropriate behavior or a gross impairment in thought processes or communication. The record does show that his wife has to remind him about hygiene, but this alone does not support the award of a 100 percent rating. A September 2010 record shows considerable difficulty in accomplishing work tasks, which supports his TDIU, as discussed below. However, in sum, the evidence does not show that his PTSD causes total social and occupational impairment, which is required for the next higher rating. 38 C.F.R. § 4.130. This claim must therefore be denied. TDIU When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). The Veteran is service-connected for PTSD, at 70 percent effective from May 16, 2007; erectile dysfunction, at 0 percent effective April 24, 2012; and, as of this decision, fibrosis with a restrictive breathing pattern. He therefore meets the eligibility criteria for a TDIU. This claim was inferred as part of his increased rating for PTSD claim, therefore, it has been pending since May 16, 2007. See 38 C.F.R. § 3.400. The remaining inquiry is whether his disabilities preclude employment. The record shows he worked at a chemical plant from 1973 to 2006, at which time he retired. He has reported being a steelworker and a chemical worker, and the report from his company shows he was a "general production operator." He has two years of college, but no other experience or training. A September 2010 record shows his PTSD would preclude him from dealing with the public, interacting with supervisors, dealing with work stressors, or maintaining attention. His ability to understand and carry out instructions was impaired, and he was unable to behave in an emotionally stable manner or predictably in a social situation. A September 2016 record shows PTSD also causes sleep impairment. Further, his fibrosis and breathing impairment prevents exertional activities. Based on this evidence, the Board finds that his disabilities collectively preclude employment, and that a TDIU is warranted effective from May 16, 2007, when he met the eligibility requirements. ORDER Service connection is granted for fibrosis with a restrictive breathing pattern. The claim of entitlement to a rating higher than 70 percent for PTSD is denied. A TDIU is granted effective May 16, 2007. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs