Citation Nr: 18141244 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 14-31 988A DATE: October 10, 2018 ORDER Entitlement to service connection for asbestosis is denied. New and material evidence not having been received, the Veteran’s application to reopen the previously denied claim of entitlement to service connection for erectile dysfunction is denied. Entitlement to a rating higher than 50 percent for posttraumatic stress disorder is denied. REMANDED Entitlement to a rating higher than 20 percent for callosities of the right foot is remanded. Entitlement to a rating higher than 10 percent for callosities of the left foot is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is remanded. FINDINGS OF FACT 1. Although the Veteran contends that he was exposed to asbestos in service, service records do not support this allegation, and the Veteran is not competent to confirm such exposure. 2. A December 2011 rating decision denied the claim of entitlement to service connection for erectile dysfunction. The Veteran did not file an appeal to that decision and it is final. 3. The evidence received since the December 2011 rating decision, although new, does not raise a reasonable possibility of substantiating the claim. 4. Throughout the appeal period, the Veteran’s PTSD has manifested by, at worst, occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for asbestosis have not been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 2. A December 2011 rating decision that denied the claim of entitlement to service connection for erectile dysfunction is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §20.1103 (2018). 3. Evidence received since the December 2011 rating decision is not new and material, and the Veteran’s claim for service connection for erectile dysfunction is not reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2018). 4. At no point during the appeal period has the criteria for entitlement to a rating higher than 50 percent for posttraumatic stress disorder been met or more nearly approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.102, 4.7, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1971 to December 1975. On his September 2014 Substantive Appeal (Form 9), he requested a hearing before a Veterans Law Judge. However, by July 2017 and December 2017 letters, the Veteran’s attorney stated “this letter shall confirm that we are not requesting a hearing at this time. To the extent that one was scheduled, we are withdrawing any request for the same.” Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, VA has issued a circular on asbestos-related diseases which provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual Rewrite (hereafter Manual), M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. VA must analyze the Veteran’s claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 2f. The Manual provisions acknowledge that inhalation of asbestos fibers and/or particles can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, bronchus, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 2a-g. The Manual further provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 2h. Although the M21-1 is not binding on the Board, the Board finds its guidance, vis-à-vis asbestos exposure, helpful in ensuring the proper development was completed in this Veteran’s claim. 1. Entitlement to service connection for asbestosis. As an initial matter, the Board notes that the Veteran’s claim for service connection for asbestosis was originally denied by an October 2009 rating decision. Additional evidence was then received within one year and the Veteran’s claim was reconsidered by a February 2011 rating decision. The Veteran then appealed that decision and this appeal ensued. As such, there is no need for new and material evidence. The evidence establishes that the Veteran has a current diagnosis of asbestosis. See March 2009 Private Treatment Records. Therefore, the first element of service connection has been met. However, his service treatment records do not document any complaints, treatment, or diagnoses related to his lungs. They show that he was assigned to the Marine Barracks in Vallejo, California; and on Mare Island between July 1972 and October 1974. He served as a rifleman, guard, mess cook, and airmen recruit during his active duty service period from December 1971 to December 1975. Based on this evidence, the RO contacted the service department to determine the level of exposure the Veteran experienced in these positions. The service department stated that the probability of exposure in all those military occupations was minimal, with the job titles of guard and rifleman having a probability of zero exposure. There is no evidence that the Veteran was exposed to asbestos in the barracks or that he worked in the naval shipyard. There is also no other evidence of asbestos exposure. The only evidence in support of asbestos exposure are the Veteran’s own lay statements. In this regard, the Veteran reported being exposed to asbestos from 1972 through 1986. His service was from December 1971 to December 1975. He also reported “asbestos exposure during work which included Plasterer, Sheetrock Installer, Welder/Solder, Fire Proof/Painter/Drywall, General Laborer (including factory worker) and Autobody.” The issue in this case turns on whether the Veteran was actually exposed to asbestos during service. When considering all the evidence, the Board finds that the preponderance of the evidence does not show that the Veteran was exposed. Here, there the Board must weigh the service department records which show that the Veteran’s MOS likely did not expose him to asbestos against the Veteran’s reports of being exposed to asbestos. First the Board notes that the Veteran admittedly was exposed to asbestos post-service. When considering this, the Board affords more probative weight to the service department records as the Veteran has not demonstrated that he is competent to identify asbestos and confirm such exposure during service. As such, the second element of service connection has not been met and the Board therefore need not address whether there is a so-called nexus between the Veteran’s asbestosis and service. The preponderance of the evidence is against the claim of service connection for asbestosis as secondary to asbestos exposure. As such, the benefit of the doubt doctrine is not for application. New and Material Evidence Notwithstanding determinations by the RO that new and material evidence has or has not been received to reopen the Veteran’s claim, it is noted that on its own, the Board is required to determine whether new and material evidence has been presented. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that the Board has a legal duty under 38 U.S.C. §§ 5108 and 7105, to address the question of whether new and material evidence has been presented to reopen a previously denied claim); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. The Court has elaborated on what constitutes “new and material evidence.” New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). For establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 2. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for erectile dysfunction. A claim for entitlement to service connection for erectile dysfunction was originally denied by a December 2011 rating decision. The Veteran did not appeal that decision and it became final. Evidence received since the December 2011 rating decision consists of numerous medical records and documents. The December 2011 rating decision denied the Veteran’s claim on the basis that there was no in-service injury to relate an erectile dysfunction disability to; nor was there a disability of erectile dysfunction. A review of the Veteran’s treatment records shows a diagnosis of erectile dysfunction; however, the evidence does not show that the Veteran had an in-service injury; nor does it show that his erectile dysfunction may be related to his service-connected disabilities. Although the diagnosis of erectile dysfunction is new, it is not material as it does not raise a reasonable possibility of substantiating the claim. That is, even accepting that the Veteran has a diagnosis of erectile dysfunction, the duty to assist would not be triggered as there is no evidence of an in-service injury or evidence indicating any relationship between the Veteran’s service-connected disabilities and his erectile dysfunction. As such, the Board finds that the evidence presented, although new, is not material as it does not raise a reasonable possibility of substantiating the claim for service connection. 3. Entitlement to a rating higher than 50 percent for posttraumatic stress disorder. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130, Diagnostic Code 9411, is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran’s condition that affect the level of the Veteran’s occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders. The Veteran is rated as 50 percent disabled due to his PTSD. A rating of 50 percent is warranted 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 (retention of only highly learned material, forgetting to complete tasks); impaired judgment, impaired abstract thinking; disturbances of motivation and mood; and difficulty establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where there is objective evidence demonstrating that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation; obsessional rituals which interfere with his routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or 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 work-like setting; and the inability to establish and maintain effective relationships. A 100 percent evaluation is warranted for 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. As noted, to warrant a rating of 70 percent, the Veteran’s symptoms should more nearly approximate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation; obsessional rituals which interfere with his routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or 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 work-like setting; and the inability to establish and maintain effective relationships. Having carefully considered all the available evidence of record to include the Veteran’s lay contentions in light of the evidence of record and the applicable law, the Board finds that the overall evidence shows that the Veteran’s disability most closely approximates the currently assigned 50 percent disability rating for the entire appeal period; and a higher 70 percent rating is not warranted. Throughout the appeal period, the Veteran’s PTSD manifested by symptoms of depressed mood, panic attacks, anxiety, chronic sleep impairment, isolation, avoidant behaviors, paranoia, forgetfulness, concentration issues, some auditory hallucinations, and hypervigilance. On VA examination in December 2013, the examiner opined that the Veteran’s PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally satisfactorily, with normal routine behavior, self-care and conversation. This is consistent with a 50 percent rating. In addition, on most recent VA examination in October 2017, the examiner opined that the Veteran’s PTSD caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. This is consistent with a lower, 10 percent rating. However, given the variable nature of PTSD in that symptoms increase and decrease, the Board finds that the Veteran’s PTSD has most nearly approximated occupational and social impairment with occasional decrease in work efficiency. At no point during the appeal period has the Veteran demonstrated symptoms of the type and severity contemplated by the 70 percent rating. He is not shown to have any suicidal ideation, obsessional rituals that interfere with routine activities, illogical, obscure, or irrelevant speech; near continuous panic or depression that affected his ability to function independently, impaired impulse control, spatial disorientation, or neglect of personal hygiene. The only evidence in support of a higher rating is an August 2015 VA treatment record which states Veteran “only leaves home for church, doctors’ appointments at VA, and doing little shopping. PTSD symptoms are debilitating and affect social functioning, employment and impaired family relationships. I do not think Veteran is employable.” To warrant a 70 percent rating, the evidence would have to show that the Veteran’s symptoms were of such a severity and frequency to cause occupational and social impairment with deficiencies in most areas including symptoms of the severity to cause an inability to establish and maintain effective relationships. VA treatment records from June 2015 show that the Veteran continued to attend church, felt supported by his pastor, and met other veterans with PTSD. He also reported having a relationship with his son whereby he gave him all his furniture—indicative of his ability to establish and maintain effective relationships. The Board also does not find that the Veteran is entitled to a 100 percent disability rating because the evidence does not suggest a total occupational and social impairment, due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations. Nor has the Veteran displayed grossly inappropriate behavior to the point of endangering himself or others. The record also does not show that he suffers from disorientation to time or place, memory loss for his name or the names of his close relatives. The evidence consistently shows that the Veteran’s PTSD is not manifested by symptoms such as intermittently illogical speech, near continuous panic, spatial disorientation, or neglect of personal appearance. The Veteran was consistently found to be oriented in all spheres and to have no evidence of impairment of thought due to his PTSD. He was appropriately dressed and groomed and did not report near-continuous panic. Thus, the Board finds that based on the overall record evidence, including the Veteran’s lay statements, the effects of the Veteran’s PTSD symptoms are of a type, frequency, and severity that are in accord with the level of impairment contemplated by the criteria for the currently assigned 50 percent schedular rating for the entire appeal period. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim. As such, that doctrine is not applicable in the instant appeal, and the Veteran’s claim must be denied. REASONS FOR REMAND Entitlement to ratings higher than 20 percent for callosities of the left and right foot is remanded. The Veteran has not been afforded a VA examination for his feet since November 2011. He has contended that his foot disabilities are worse than contemplated by his current ratings. As such, a new VA examination is warranted to determine the current level of severity of the Veteran’s foot disabilities.   Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is remanded. The issue if TDIU is inextricably intertwined with the Veteran’s claims for increased ratings for his feet. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records dated from October 2017. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected foot disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Martha R. Luboch, Associate Counsel