Citation Nr: 21003810 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 18-40 246 DATE: January 22, 2021 ORDER Entitlement to service connection for a respiratory disability is denied. Entitlement to an initial 50 percent rating for posttraumatic stress disorder (PTSD), effective February 17, 2016, is granted. Entitlement to a rating in excess of 50 percent for PTSD is denied. FINDINGS OF FACT 1. The evidence is against a finding that a respiratory disability had onset in service or is otherwise related to an in-service event, injury, or disease, to include herbicide agent and asbestos exposure. 2. Throughout the appeal period, the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an initial disability rating for PTSD of 50 percent, but no higher, for the period from February 17, 2016 to May 22, 2018, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 3. The criteria for a disability rating for PTSD in excess of 50 percent for the period beginning May 22, 2018 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to September 1969, to include service in Republic of Vietnam. He was awarded the Purple Heart Medal, among other decorations. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a December 2020 letter, the Veteran’s representative requested a hearing. That request is denied. After notification of certification and transfer of records to the Board, a hearing can be requested for a period of 90 days. However, after 90 days the Board cannot accept a request for a personal hearing unless there is a demonstration of good cause for the delay in requesting a hearing. 38 C.F.R. § 20.1305(b)(1). In this case, the appeal was certified and transferred to the Board and the Veteran was notified of such by an April 2019 letter. The request for a hearing was not received until December 2020, well outside of the 90 day window, and contained no explanation as to the delay. The request for a personal hearing is referred to the Agency of Original Jurisdiction. 38 C.F.R. § 20.1305(b)(1)(i). Service Connection for a Respiratory Disability Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is presumed to have been exposed to herbicide agents during his service in the Republic of Vietnam. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases are presumed to have been incurred as a result of exposure to herbicide agents. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). In this case, service connection cannot be presumed based on the Veteran’s exposure to herbicide agents because the current respiratory disabilities do not appear on the list of diseases considered presumptively associated with herbicide agent exposure. Id. However, in addition to the presumptive regulations, a Veteran may establish service connection based on exposure to herbicide agents with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service treatment records (STRs) reflect the Veteran’s complaints related to coughing on two occasions. In January 1966, bronchitis was diagnosed. In April 1968, an upper respiratory infection was diagnosed. At time of separation, examination of the lungs and chest were normal; chest x-ray did not show any abnormalities. Review of the record reflects a history of smoking, although the extent of the reported smoking varies. For example, in February 2010 a 12-pack year history was noted, with the Veteran quitting 3 years ago. In November 2016, a history of smoking 20 cigarettes per day for 10 years was noted, with the Veteran quitting 12 years prior. The Veteran also reported having an extensive history of exposure to secondhand smoke. See July 2017 VA Medical Opinion. A December 2006 chest X-ray report notes a reported history of COPD, although the X-ray showed no acute disease. The July 2017 VA examiner diagnosed COPD and noted the date of diagnosis was 2014, but that the Veteran’s suspected COPD goes back to at least 2012. The examiner also noted asthma. The examiner opined the COPD, asthma, and bronchitis were less likely than not related to service. The examiner explained that it would be very unlikely for one episode of bronchitis to cause COPD and chronic asthma/bronchitis years later. According to the examiner, the Veteran’s current respiratory problems are most likely secondary to his smoking history, extensive exposure to secondhand smoke, and allergies. In February 2018, a VA physician opined that the Veteran did not have a chronic respiratory disorder that was at least as likely as not caused by asbestos exposure or herbicide agent exposure during service. The physician explained there was not peer reviewed evidence in the medical literature, consensus in the medical community, or evidence in this specific case that supports a causal/aggravation relationship between these conditions and asbestos exposure; instead, cigarette smoking cause greater than 90 percent. The Veteran presented for VA examination in May 2018, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The diagnosis was COPD with a date of diagnosis noted as 2008 or earlier.  In the May 2018 opinion, the examiner opined that the Veteran’s respiratory disabilities are less likely than not caused or aggravated by military service, to include the Veteran’s exposure to herbicide agents and asbestos.  In support of this conclusion, the examiner explained that there is no medical evidence that links herbicide agent exposure to COPD. The examiner further opined that there is no history of medical evidence or findings that are consistent with an asbestos related lung disease. The opinion links the respiratory disabilities to the Veteran’s history of smoking. In supporting the opinion that the Veteran’s condition was more likely than not related to the history of smoking and secondhand smoke exposure, the examiner stated that most cases of COPD are the result of smoking, which the Veteran has. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran.  There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinions.  Ultimately, it is unclear when the Veteran’s COPD onset, but it was sometime after his military service. While he was exposed to herbicide agents and asbestos during service, the preponderance of the evidence shows that no current respiratory disability onset during service or is related to service, to include these exposures. The Board has considered the Veteran’s statements, to include that he has respiratory disabilities related to herbicide agent exposure.  See August 2018 VA Form 9.  As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., shortness of breath; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis.  See Davidson v. Shinseki, 581 F.3d 1313 (2009).  The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues.  Thus, his lay assertions do not constitute evidence upon which service connection can be granted.  In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinions rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. Disability Rating for PTSD The Veteran is in receipt of a 30 percent initial disability rating for his service-connected PTSD prior to May 22, 2018, and a 50 percent rating thereafter. He asserts that the severity of his disability warrants higher ratings. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran’s PTSD is evaluated under Diagnostic Code 9411, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. A 30 percent rating is warranted when there is 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, weekly or less often panic attacks, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, recent events. Id. A 50 percent rating 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 such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is 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 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. Id. A maximum 100 percent rating is warranted 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; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Veteran was awarded service connection for a stress related disorder claimed as PTSD in December 2016 and was assigned an initial 30 percent disability rating effective the date of his initial service connection claim on February 17, 2016. For the purposes of this initial claim, a VA mental disorders examination was afforded in June 2016. Upon interview and examination, the Veteran described symptoms of anxiety, suspiciousness, and mild memory loss. While reporting a history of “interpersonal type” problems, he noted that he had been angry at his job for not getting promoted and had been counseled for having difficulty with authority and supervisors. He reported he is often concerned whether he will be able to remain temperate in his response to things, but has so far. Objectively, the examiner noted that the Veteran’s symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. The examiner found PTSD was not evidenced as the Veteran did not meet criteria C in avoiding stimuli associated with the trauma experienced. The Veteran submitted supporting buddy statements. The Veteran’s wife described popping bubble wrap in the Veteran’s presence and witnessing the Veteran “go absolutely ballistic.” In her statement, she described that her husband avoids crowds, and if they do attend an event with crowds, the Veteran surveys the event space, has anxiety the entire time, and prefers to stand or sit with his back to the wall. The wife also described episodes of anger, agitation, and memory loss. A former co-worker also submitted a statement on behalf of the Veteran. The buddy statement described the Veteran as having episodes of anger and then being “a different person the next day.” The Veteran submitted to another VA examination on May 22, 2018. The Veteran was found to meet the criteria for a diagnosis of PTSD. In assessing the symptoms, the examiner found the Veteran to have occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran had a hard time with a hurricane in Florida around September 2017 as it reminded him of his time in Vietnam. The Veteran reported having anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. Vet Center records beginning in February 2016 indicate that the Veteran exhibited symptoms similar to the symptoms found on examination in 2018. The consult notes that the Veteran reported sleep disturbances. The session notes indicate that the Veteran reported intrusions, such as anger and sadness, when reminded of Vietnam experiences, alterations in cognition and mood, hyperarousal, such as hypervigilance, and difficulty with relationships, both personal and professional. Given the Vet Center records suggest disturbances of motivation and mood, resolving reasonable doubt in the Veteran’s favor, the Board finds an initial 50 percent rating is warranted. A rating in excess of 50 percent is not warranted at any time. Again, a 70 percent evaluation requires deficiencies in most areas. See 38 C.F.R. §§ 4.16, 4.130, General Rating Formula for Mental Disorders. Here, the Veteran has not shown deficiencies in most areas. With his work, he had instances of problems however he was still able to produce efficient and effective work as he retired from his job after thirty-nine years. He has maintained relationships with his wife and kids, even though he has had some difficulty in doing so. Medical records and buddy statements do not reflect suicidal ideation. There is no evidence he has obsessional rituals which interfere with routine activities. At VA examinations, his speech was reported as normal. Records do not indicate the Veteran has had near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively. There is no evidence of impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran’s moments of irritability and anger appear to have been provoked and have not resulted in violence. The Veteran has not exhibited spatial disorientation or neglect of personal appearance and hygiene. In fact, at his most recent VA examination and in private treatment records, the Veteran was noted to be well groomed, neat, and cooperative, as well as oriented. He has not shown difficulty in adapting to stressful circumstances, including work or a work-like setting or an inability to establish and maintain effective relationships. The buddy statement from his coworker shows the Veteran may have been difficult to work for, but that he was still effective and able to handle work situations as a manager and the Veteran still maintains a relationship with his wife and son. Most importantly, the Veteran’s symptoms and description of impairment were relayed to the VA examiners who both found that overall his psychiatric disorder resulted in occupational and social impairment with reduced reliability and productivity or a lesser degree of impairment. In sum, the evidence is for a finding that the severity of the Veteran’s psychiatric disorder warrants a rating of 50 percent, but no higher, throughout the course of the appeal. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jarman, 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.