Citation Nr: 18156025 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 15-08 476 DATE: December 6, 2018 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. An initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with depressive disorder, prior to August 29, 2016 is denied. Entitlement to service connection for a respiratory disorder, to include asbestosis, is denied. REFERRED The issue of entitlement to accrued benefits was raised in a March 2017 Application for Accrued Amounts Due to Deceased Beneficiary (VA Form 21-601) and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran had, at worst, Level I hearing acuity in each ear. 2. Prior to August 29, 2016, the Veteran’s PTSD with depressive disorder did not approximate a level of total occupational and social impairment. 3. The Veteran’s respiratory disorders, to include pneumonia and shortness of breath, did not have their onset in service and are not otherwise etiologically related to active duty service, to include asbestos exposure therein. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100. 2. Prior to August 29, 2016, the criteria for an initial rating in excess of 70 percent for PTSD with depressive disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. The criteria to establish service connection for a respiratory disorder are not met. 38 U.S.C. §§ 1110, 1131, 1157; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1948 to July 1952. The Veteran died in February 2017. The appellant, who is the Veteran’s surviving daughter, has been substituted as the Veteran for purposes of processing the appeal to completion. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in January 2017 and June 2018 for additional development. The Board notes that the claims were remanded in January 2017 and June 2018 to obtain authorization for the release of private treatment records from the appropriate party, to include the appellant. In July 2018, the RO requested authorization for the release of the private treatment records; the appellant did not respond to that request. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the evidence demonstrates distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. 1. Entitlement to an initial compensable rating for bilateral hearing loss is denied. Here, the Veteran has been assigned a noncompensable rating for bilateral hearing loss throughout the appeal. As will be detailed below, the Board finds that the noncompensable evaluation should not be disturbed; therefore, staged ratings are not warranted. VA disability compensation for impaired hearing is derived from the application in sequence of two tables. See 38 C.F.R. 4.85, Table VI, Table VII. Table VI correlates the average pure tone sensitivity threshold (derived from the sum of the 1000, 2000, 3000, and 4000-hertz thresholds divided by four) with the ability to discriminate speech, providing a Roman numeral to represent the correlation. Each Roman numeral corresponds to a range of thresholds (in decibels) and of speech discriminations (in percentages). Level I represents essentially normal acuity, and numeric level XI represents profound deafness. The table is applied separately for each ear to derive the values used in Table VII. Table VII prescribes the disability rating based on the relationship between the values for each ear derived from Table VI. See 38 C.F.R. § 4.85. Controlled speech discrimination testing (Maryland CNC) and puretone audiometry testing results from the October 2013 VA audiology examination fails to demonstrate more profound hearing loss than Level I in each service-connected ear, which warrants a noncompensable percent rating throughout the appeal. See 38 C.F.R. § 4.85, Table VI, Table VII (Diagnostic Code 6100). A pattern of exceptional hearing loss is also not demonstrated, as puretone thresholds were not 55 dB or more at 1000, 2000, 3000 or 4000 Hertz or 30 dB or less at 1000 Hertz and 70 dB or more at 2000 Hertz during the examination. 38 C.F.R. § 4.86. The Veteran reported to the VA examiner that the functional impact of his hearing loss included difficulty hearing the phone ring and people knocking on the door, use of hearing aids, and bilateral tinnitus. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). He is separately compensated for tinnitus. Notably, difficulty or inability to hear or understand speech or to hear various other sounds in various contexts is contemplated in the schedular rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In sum, the preponderance of the evidence fails to reflect a basis for awarding a compensable rating, the benefit of the doubt is not applicable, and the appeal is denied. 2. Entitlement to an initial rating in excess of 70 percent for PTSD with depressive disorder, prior to August 29, 2016, is denied. The Veteran’s PTSD with depressive disorder is rated 70 percent disabling prior to August 29, 2016 under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. 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 § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013.) Under the General Rating Formula for Mental Disorders, a 70 percent rating is assigned when the psychiatric condition produces 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is total occupational or 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. After a review of the medical and lay evidence, the Board finds that a rating in excess of 70 percent is not warranted at any point during the appeal period. The evidence shows that the Veteran’s PTSD with depression produces deficiencies in most areas due to such symptoms as: depressed mood, anxiety, suspiciousness, anhedonia, hopelessness, lack of motivation, hyperarousal, avoidance, chronic sleep impairment, nightmares, flashbacks, irritability, hypervigilance, mild memory loss, disturbances of motivation and mood, isolation, impaired impulse control and judgment, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. Conversely, the Board finds that the Veteran’s symptoms prior to August 29, 2016 do not more nearly approximate a rating of 100 percent as they are not of such a severity or frequency to result in total occupational and social impairment. In this regard, there is no medical or lay evidence in the record of gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); or disorientation to time or place. He never reported memory loss of the severity contemplated by a 100 percent rating. Further, he denied suicidal ideation and the evidence does not demonstrate that the Veteran was in persistent danger of hurting himself or others. See November 2013 VA examination report and November 2016 VA treatment record. Notably, the November 2013 VA examiner found that the Veteran was occupationally and socially impaired with reduced reliability and productivity. VA treatment records often described the Veteran as alert, well groomed, pleasant, and oriented. See e.g. December 2014 and January 2016 VA treatment record. An April 2015 VA adult day health care note described him as alert but mildly confused. However, he walked with a slow steady gait, performed his own fasting blood sugar at lunch, and gave himself medication, indicating an ability to perform activities of daily living despite deficiencies in other areas. See also October 2013 VA treatment record. As to social impairment, the Veteran reported feelings of social detachment, isolation, estrangement, and diminished social interest. Further, the record indicates that the Veteran was twice divorced, although he maintained a close relationship with his second wife as she was his caregiver and accompanied him to his VA medical appointments. An additional review of the record shows that the Veteran had a close relationship with his children and grandchildren. Thus, the Board notes that the Veteran maintained a relationship with his family and otherwise demonstrated an ability to maintain some social relationships, despite significant, even severe, social impairments. As to occupational impairment, the Veteran worked as a ceramic tile setter until his retirement in 1995. He reported to the November 2013 VA examiner that he was never fired. A July 2014 VA treatment record indicated an improvement in the Veteran’s symptoms, as he denied experiencing nightmares, avoidance, hyperstartle response, and feelings of detachment. In his March 2015 VA Form 9, the Veteran indicated that the November 2013 VA examiner failed to take into consideration the ameliorative effects of his psychiatric medication. In Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), the Court held that the Board may not deny entitlement to a higher evaluation on the basis of relief provided by medication when the effects of medication are not specifically contemplated by the rating schedule. However, Diagnostic Code 9411 expressly authorizes VA to take into account the ameliorative effects of medication when evaluating PTSD. 38 C.F.R. § 4.130, Diagnostic Code 9411 (providing a noncompensable PTSD evaluation when, inter alia, “symptoms are not severe enough... to require continuous medication” and a 10% PTSD evaluation when, inter alia, “symptoms [are] controlled by continuous medication”). In sum, a higher, 100 percent rating is not warranted prior to August 29, 2016, as the evidence of record does not support a finding that the Veteran exhibited the level of cognitive, occupational and social impairment that rendered him totally occupationally and socially impaired as a result of the type of symptoms listed in the general rating schedule or symptoms of a similar degree. As such, the preponderance of the evidence shows that the Veteran’s psychiatric symptomatology did not more closely approximate the criteria for a 100 percent disability rating under the general rating schedule for psychiatric disorders, prior to August 29, 2016. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Service Connection 3. Entitlement to service connection for a respiratory disorder, to include asbestosis, is denied. During his life, the Veteran maintained that his respiratory disorder, to include asbestosis, was related to his in-service exposure to asbestos aboard the USS McKean (DD-784) and USS Gurke (DD-783). Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection on a direct basis requires evidence demonstrating: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the claimed in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Initially, the Board notes that the Veteran’s VA treatment records include diagnoses of pneumonia and shortness of breath, satisfying element one of service connection. Regarding the second element of service connection, the Veteran’s service treatment records are negative for complaints, findings, diagnosis, or treatment for respiratory disorders. His June 1952 separation chest x-ray was normal. However, the Veteran’s military personnel records indicate that his military occupational specialty (MOS) was a seaman, which carries a minimal risk of asbestos exposure. Thus, the second element of service connection is also established as to asbestos exposure, but not the presence of an in-service respiratory disorder. As previously noted, the appellant failed to authorize the release of private treatment records. As such, there is no post-service evidence prior to February 2013 showing complaints, treatment, or diagnosis of a respiratory disorder. A February 2013 VA chest computerized tomography (CT) scan of the chest revealed no pleural effusion, patchy infiltrates in the lungs, and small bilateral effusions. The Veteran was diagnosed with pneumonia in March and September 2013, over sixty years after service separation. Additionally, a March 2014 VA x-ray revealed no evidence of asbestosis. Regarding the final element, nexus, in a February 2017 opinion supported by information from the Veteran’s relevant medical history, a VA examiner opined that the Veteran’s respiratory disorder was less likely than not related to an in-service injury, event, or disease, including asbestos exposure. In support of her conclusion, the examiner noted that the Veteran’s VA primary care and hospice notes were negative for objective, respiratory-based, clinical evidence related to asbestosis. Additionally, the Veteran’s December 2013 respiratory examination observed “good” respiratory efforts, breath sounds were heard bilaterally, and there were no adventitious sounds heard. Finally, the examiner highlighted that “medical literature states that the pathognomonic for asbestos exposure is the presence of pleural plaques . . . [that] result in minimal reductions in forced vital capacity.” However, the examiner emphasized that the Veteran’s March 2014 chest x-ray “observed clear costophrenic angles appeared clear without any signs of pleural plaques.” As there was no “pathognomonic objective evidence for [a]sbestos related pleural plaques and/or findings consistent with chronic obstructive pulmonary disease, non-caseating and/or caseating (necrotizing) granulomas inflammation and/or infectious process,” the examiner provided a negative nexus opinion. The Board finds that the examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no competent medical opinion to the contrary. To the extent the Veteran asserted that his respiratory difficulties were the result of in-service asbestos exposure, he was not competent to do so, as opining on the etiology of respiratory disorders requires medical expertise he did not possess. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). (For similar reasons, his assertion that the March 2014 x-ray equipment was not working correctly is not competent and is contradicted by the findings from that report cited by the February 2017 VA examiner.) Accordingly, the third element is not established, and service connection is not warranted for a respiratory disorder, to include asbestosis. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Forde, Counsel