Citation Nr: 18158749 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-18 161 DATE: December 17, 2018 ORDER Service connection for squamous cell carcinoma of the lung is granted. Entitlement to a disability rating of 70 percent, but no more, for a specified trauma and stressor related disorder is granted on and after July 17, 2014, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The probative evidence of record is at least in equipoise as to whether the Veteran’s squamous cell carcinoma of the lung is etiologically related to exposure to asbestos during his active duty service. 2. The Veteran’s specified trauma and stressor related disorder, throughout the period on appeal, has been manifested by occupational and social impairment with deficiencies in most areas, but not total occupational and total social impairment. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a grant of service connection for squamous cell carcinoma of the lung have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. With resolution of reasonable doubt in the Veteran’s favor, on and after July 17, 2014, the criteria for a disability rating of 70 percent, but no higher, for a specified trauma and stressor related disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.126, 4.130, Diagnostic Code 9410 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from April 1962 to July 1965. The Veteran testified before the undersigned Veterans Law Judge during a November 2018 hearing. This matter is on appeal from September 2015 and June 2017 rating decisions. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Squamous Cell Carcinoma of the Lung The Veteran has a current diagnosis of squamous cell carcinoma of the lung, which he contends is etiologically related to exposure to asbestos during his active duty service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). An April 2017 private treatment record notes a recent diagnosis of squamous cell carcinoma of the left upper lobe. The Veteran has testified credibly that he was exposed to asbestos during his active duty service. Specifically, he contends that, while aboard a ship en route to and from South Korea, his duties placed him in the bottom of the ship near pipes with decayed insulation that was falling off. The Veteran has provided a November 2018 medical opinion by his private treatment providers, who opined that it was at least as likely as not that asbestos combined with other factors to cause his lung cancer. The record contains no medical opinion to the contrary. The medical evidence of record includes a diagnosis of lung cancer and a private opinion that asbestos exposure was at least as likely as not to be among its causes. In light of the totality of the circumstances, and after resolving all reasonable doubt in the Veteran’s favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran’s squamous cell carcinoma of the lung was caused, at least in part, by exposure to asbestos during his active duty service. Accordingly, the Board finds that granting service connection for lung cancer is the decision that is the most consistent with VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a). The Board notes that the Veteran has also contended that his squamous cell carcinoma of the lung was caused by exposure to herbicides but, because the Board is granting his claim based on exposure to asbestos, it is unnecessary to discuss this additional theory of causation further. 2. Specified Trauma and Stressor Related Disorder The Veteran contends that his specified trauma and stressor related disorder warrants a higher rating than that currently assigned. It is rated under 38 C.F.R. § 4.130, Diagnostic Code 9410, for a specified anxiety disorder, with a 30 percent rating on and after July 17, 2014. The full period of service connection is on appeal. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. “Staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Under 38 C.F.R. § 4.130, psychiatric impairment is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130 provides that a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent rating is warranted for 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted for 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 situations (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is in order when there is 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; 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, occupation, or own name. Id. When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. See Vazquez–Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). VA shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). During a March 2015 VA treatment appointment, the Veteran’s psychomotor activity was unremarkable, there was no observed impairment in visual-motor skills, his speech was of unremarkable rate, tone and volume with fluent rhythm, his mood was euthymic, his affect was congruent, stable and appropriate, his thoughts were goal-directed, he reported having no suicidal or homicidal ideation, hallucinations, illusions or delusions, there was no evidence of psychosis, his intellectual functioning and judgment were grossly intact, and his insight was good. The Veteran was afforded a VA examination in July 2015. The Veteran reported that he got along well with his family. He also reported that he had been married to his spouse for 51 years and that his marriage was going very well. He also reported that he had five children and fifteen grandchildren and great-grandchildren. He reported that “[e]verything is good with everyone” but that his grandchildren irritated him when he was feeling nervous. He reported having friends “scattered out around the country.” He reported that he had retired from his job in 1996 and denied any occupational impairment during that period. The examiner listed the Veteran’s symptoms for rating purposes as anxiety and chronic sleep impairment. The examiner opined that the Veteran did not appear to pose any threat of danger or injury to himself or others. The examiner characterized the Veteran’s overall level of functional impairment as occupational and social impairment due to mild or transient symptoms, which is consistent with a 10 percent rating. In his February 2016 Notice of Disagreement (NOD), the Veteran reported inability to concentrate or follow directions. He also reported that he had no social life and became agitated easily. The Veteran has submitted a February 2016 statement by his spouse, who reported that the Veteran had withdrawn to an increasing degree from social activities, including family events, and preferred to be by himself. She also reported that he had become very depressed and that it had become increasingly difficult for the Veteran to spend time with his children and even more so with his grandchildren. She also reported that he had become increasingly forgetful and had difficulty remembering and completing simple daily tasks, which in turn increased his irritability. In his April 2016 substantive appeal (VA Form 9), the Veteran reported having panic attacks three times a week, having a hard time understanding what people told him, difficulty remembering or understanding how to put things together, starting to do things and then forgetting what he was doing, frequent angry outbursts toward his spouse and grandchildren, and wanting to be alone. During the November 2018 hearing, the Veteran testified that he had become unable to get along with anyone in his household, that his irritability had affected his marriage, and that his children did not want to be around him. He also reported suicidal ideation and that he had no friends or recreational activities. He also reported that he had nightly sleep disturbances due to nightmares and that he tended to get lost due to inability to follow directions. Based on the evidence described above, the Board finds that, affording the Veteran the benefit of the doubt, his psychiatric symptoms and overall disability picture warrant an evaluation of 70 percent for a specified trauma and stressor related disorder. The Veteran and his spouse have credibly reported suicidal ideation, impaired impulse control, and inability to establish and maintain effective relationships. For this reason, the Board finds that Veteran’s symptoms most nearly approximate those that warrant a 70 percent rating throughout the period on appeal. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9410. The Board does not, however, find the criteria for a 100 percent evaluation are more nearly approximated by the Veteran’s symptoms at any point during the period on appeal. The Veteran has reported getting lost due to inability to follow directions, but that does not rise to the level of disorientation to place. The record contains evidence of danger of hurting himself. Self-harm is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). However, even the constant presence of some symptoms listed in the criteria for a 100 percent rating is insufficient because the overall guiding criterion for a 100 percent rating is that both total occupational and total social impairment be present. 38 C.F.R. § 4.130; see, e.g., Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). In this case, the Veteran’s symptoms have not been shown to be so severe that he has both total occupational and total social impairment. The Veteran’s level of occupational impairment is unclear, but the Veteran has been able to maintain some personal relationships, specifically with his spouse, children, grandchildren, and great-grandchildren. The Board acknowledges that these relationships are sometimes strained or distant, but that is reflected in the current 70 percent rating for “deficiencies in most areas,” including inability to establish and maintain effective relationships. Because the Veteran is not totally socially impaired, a 100 percent rating is not warranted even if he is totally occupationally impaired. The Board also notes that many of the Veteran’s reported symptoms throughout the period on appeal are included among those specifically listed in the General Rating Formula for Mental Disorders, pursuant to which a 70 percent disability rating has been assigned. See 38 C.F.R. § 4.130. Importantly, the Board notes that symptoms noted in the rating schedule 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 disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In other words, symptoms comparable to those listed in the General Rating Formula could be considered in evaluating the Veteran’s extent of occupational and social impairment. Accordingly, in this case, the Board finds that the existence and severity of the Veteran’s psychiatric symptoms are adequately contemplated by the 70 percent rating criteria. As noted above, many of the symptoms are specifically listed in the General Rating Formula for Mental Disorders, and the others are common psychiatric symptoms that-while not specifically listed-are comparable indicators of the type of occupational and social impairment contemplated in the Rating Formula. The Board has also considered the Veteran’s assertions regarding his psychiatric symptoms, which he is competent to provide, as well as those of his spouse. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The lay evidence is also credible. The symptoms described in those lay statements are the basis for the 70 percent rating that has now been assigned. However, these lay statements do not provide any basis upon which to assign a higher rating because they do not reflect total social impairment. In sum, the Board finds that, resolving reasonable doubt in the Veteran’s favor, his impairment due to his specified trauma and stressor related disorder has been most consistent with a 70 percent disability rating throughout the period on appeal. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ryan Frank, Counsel