Citation Nr: 21007463 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 10-13 574 DATE: February 9, 2021 ORDER Service connection for chronic obstructive pulmonary disease is granted. A 70 percent rating, but not higher, for posttraumatic stress disorder (PTSD) for the period prior to November 15, 2010, is granted. Entitlement to a rating in excess of 70 percent for PTSD as of after November 15, 2010, is denied. REMANDED Entitlement to service connection for hypertension, claimed as the result of herbicide agent exposure, is remanded. Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Chronic obstructive pulmonary disease originated during active service. 2. Prior to November 15, 2010, PTSD was manifested by recurrent Vietnam related nightmares and intrusive thoughts; anxiety; suicidal ideation; depression; irritability; weeping; social isolation; and an inability to interact with co-workers. 3. As of November 15, 2010, PTSD has been manifested by a depressed mood; anxiety; panic attacks; chronic sleep impairment; mild memory loss such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and suicidal ideation. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic obstructive pulmonary disease are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a 70 percent rating, but not higher, for PTSD for the period prior to November 15, 2010, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411. 3. The criteria for a rating in excess of 70 percent for PTSD as of November 15, 2010, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1965 to December 1967. He served in the Republic of Vietnam. The Veteran died in April 2016. The Veteran’s surviving spouse has been substituted as the Appellant in this appeal. The Veteran appeared at an April 2011 videoconference hearing before the undersigned Veterans Law Judge. The hearing transcript is of record. Service Connection for Chronic Obstructive Pulmonary Disease Service connection may be established for disability arising from disease or injury incurred in or aggravated by wartime service. 38 U.S.C. § 1110. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The service medical records do not refer to chronic obstructive pulmonary disease or other pulmonary disability. The service personnel records show that the Veteran served in the Republic of Vietnam and his military occupation was wheeled vehicle and tracked vehicle mechanic. A January 2009 written statement from J. Pascual, M.D., diagnosed the Veteran with chronic obstructive pulmonary disease and noted that doctor had treated the Veteran for that disability since June 2005. The Veteran presented a history of having served in the Republic of Vietnam from December 1966 to December 1967 and spending most of the time there riding in convoys. The Veteran clarified that “he rode in a large wrecker behind all of the dump trucks and tanks, both of which burned diesel fuel.” The doctor opined that “it is my opinion that his lung disease was most likely caused by excessive exposure to diesel smoke, dust particles, chemicals, and brake shoe dust (from convoys) as well as performing maintenance on trucks and tanks while serving in the United States Army.” The report of a January 2010 Department of Veterans Affairs (VA) respiratory examination states that the Veteran was diagnosed with chronic obstructive pulmonary disease. The examiner concluded that “the Veteran’s pulmonary condition is less likely than not (less than 50/50 probability) caused by or secondary to his exposure to dust, asbestos, and fumes as a wheeled vehicle mechanic during active duty.” The VA doctor commented that: “I am not in agreement with the letter from Dr. Pascual dated 1/29/2009;” “per review of multiple records from multiple physicians per c-file, the Veteran was smoking until year 2000;” “smoking as per literature review is the most likely cause of his pulmonary diagnosis;” and “case discussed with pulmonary.” The examiner provided no specific basis for dismissing the Veteran’s treating pulmonary physician’s opinion linking the diagnosed chronic obstructive pulmonary disease to active service. The Veteran’s military duties were consistent with extensive exposure to diesel smoke, dust particles, chemicals, and brake shoe dust. His private treating pulmonary physician opined that the diagnosed chronic obstructive pulmonary disease was caused by such exposure. The Board of Veterans’ Appeals (Board) concludes that the evidence is in at least equipoise as to whether the diagnosed chronic obstructive pulmonary disease arose during active service. Resolving all reasonable doubt in the Veteran’s favor, the Board concludes that service connection for chronic obstructive pulmonary disease is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Ratings for PTSD Disability ratings are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. A 30 percent rating is warranted for PTSD which is productive of occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although the individual is generally functioning satisfactorily with routine behavior and normal self care and conversation) due to symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). A 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks occurring 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 or 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. A 70 percent rating requires occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); and an inability to establish and maintain effective relationships. A 100 percent rating requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. Where there is a question as to which of two ratings shall be applied, the higher rating 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. Prior to November 15, 2010 A June 2008 psychiatric examination from L. Yason, M.D., notes that the Veteran complained of chronic nervousness; frequent Vietnam related nightmares and intrusive thoughts; and episodes of weeping. He reported that he was married and employed as a regional sales manager for a paint company. On mental status examination, the Veteran was observed to be alert; cooperative; and oriented to person, place, and time. He exhibited a restricted and appropriate affect; a very anxious and dysphoric mood; a coherent thought process; non pressured speech; decreased concentration; intact insight and judgment; decreased short term memory; intact long term memory; no suicidal or homicidal ideation; and no delusions or hallucinations. The examiner diagnosed PTSD. A September 2008 VA psychological evaluation states that the Veteran complained of stress and irritability directed towards his wife. The Veteran was observed to be alert, cooperative, dressed neatly, and oriented to person, place, time, and the nature of the appointment. On mental status examination, the Veteran exhibited a depressed mood, an anxious affect, and no auditory or visual hallucinations, sensory distortions, or suicidal or homicidal ideation. The report of an October 2008 VA psychiatric examination states that the Veteran complained of distressing dreams, intrusive recollections, poor sleep, irritability, hypervigilance, a startle response, diminished interest, and poor concentration. He reported that he was married and was employed as a regional sales manager for a paint company. The Veteran was diagnosed with PTSD and a Global Assessment of Functioning (GAF) score of 68 was made. The examiner commented that the PTSD was productive of “PTSD signs and symptoms that are transient or mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress.” An October 2008 VA psychological evaluation indicates that the Veteran reported that his supervisory job had been discontinued and he was now working as a sales representative with a reduced salary. The Veteran was observed to be alert, cooperative, dressed neatly, and oriented to person, place, time, and the nature of the appointment. On mental status examination, the Veteran exhibited a depressed mood, an anxious affect “appropriate to topic,” and no auditory or visual hallucinations, sensory distortions, or suicidal or homicidal ideation. A March 2009 VA psychological evaluation shows that the Veteran reported that he had been “let go” by his employer “because his health conditions no longer allowed him to perform his job” and was unemployed. The Veteran was observed to be alert, cooperative, dressed neatly, and oriented to person, place, time, and the nature of the appointment. On mental status examination, the Veteran exhibited a depressed mood, an irritable affect “restricted in range and appropriate to topic,” and no auditory or visual hallucinations, sensory distortions, or suicidal or homicidal ideation. An April 2009 VA psychiatric treatment record states that the Veteran’s “GAF scores have dropped from a high of 57 in April and May of 2008 to the current score of 50;” “this decrease in scores reflects a diminution in your ability to cope with mounting stressors and increased symptoms;” and “the recent termination from your job based upon your physical inability to perform that long held job has added to your stress resulting in an exacerbation of symptoms of PTSD most notably irritability and reexperiencing symptoms (e.g., increased frequency and intensity of nightmares of being under enemy attack).” At a December 2009 hearing before a VA Decision Review Officer (DRO), the Veteran testified that the PTSD had been found to be manifested by GAF scores “usually in the 40s.” He stated that he had suicidal thoughts which he never told anyone, including his wife, about lest he be “labeled as a crazy person.” A January 2010 VA psychiatric treatment record notes that the Veteran complained of irritability, moodiness, hypervigilance, and isolation. He denied “suicidal ideation at this time.” The Veteran was observed to be cooperative, dressed neatly, and oriented to person, place, and time. On mental status examination, the Veteran exhibited an anxious mood, a mood congruent affect, and no evidence of a thought disorder or suicidal or homicidal ideation. The Veteran was diagnosed with PTSD and an anxiety disorder due to general medical condition. A GAF score of 50 was assigned. An April 2010 VA psychiatric treatment record states that the Veteran complained of nightmares. The Veteran was observed to be cooperative, well-dressed, and oriented to person, place, and time. On mental status examination, the Veteran exhibited an “even” mood, a mood congruent affect, and no evidence of a thought disorder or suicidal or homicidal ideation. The Veteran was diagnosed with PTSD and anxiety disorder due to general medical condition. A GAF score of 50 was assigned. A November 2010 VA psychiatric treatment record states that the Veteran complained of “feeling as though he is losing his mind.” The Veteran was observed to be cooperative, neatly dressed, and oriented to person, place, and time. On mental status examination, the Veteran exhibited a dysthymic mood, a congruent affect, and no evidence of a thought disorder or suicidal or homicidal ideation. At the April 2011 Board hearing, the Veteran testified that the PTSD symptoms had increased in severity prior to his being let go by his employer. He stated that “I got to the point where the senior vice president of our company that runs the Florida stores, he, me and him got into it probably a dozen times in the last five years I worked” and “he said that I was on my way out if I didn’t change my attitude and I didn’t change my attitude, and I went out.” Prior to November 15, 2010, the service connected PTSD was manifested by recurrent Vietnam related nightmares and intrusive thoughts; anxiety; depression; suicidal ideation; irritability; weeping; social isolation; and an inability to interact with co-workers, including a supervising vice president which result in his termination from his long-term employment as a regional sales manager and a sales representative. The evidence shows that the Veteran had serious PTSD symptomatology and testified that he had suicidal thoughts. The record during the relevant period establishes deficiencies in most areas which resulted in the Veteran’s termination from work. Those symptoms warrant assignment of a 70 percent rating under Diagnostic Code 9411 prior to November 15, 2010. While the service-connected psychiatric symptoms were clearly significantly disabling, the record does not establish, and the Appellant does not allege, that the service connected PTSD was productive of total occupational and social impairment warranting assignment of a 100 schedular rating. While the Veteran was terminated from a job, the evidence does not show that he would have been unable to perform any job such that he had total occupational impairment, or that he had total social impairment. Both are required to assign a 100 percent rating. Therefore, the Board concludes that the weight of the evidence demonstrates that a 70 percent schedular rating and no higher was warranted for PTSD prior to November 15, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411. As of November 15, 2010 The report of a May 2011 VA psychiatric examination shows that the Veteran complained of nightmares, anxiety, panic attacks, depression, irritability, weeping, and social isolation. He reported that he was married and had been unemployed for two years. The Veteran was observed to be cooperative, dressed neatly, and oriented to person, place, and time. On mental status examination, the Veteran exhibited a good mood; an appropriate affect; a circumstantial thought process; no hallucinations; and no suicidal or homicidal ideation. The Veteran was diagnosed with PTSD and anxiety disorder due to general medical condition. A GAF score of 55 was assigned. The examiner commented that “symptoms of PTSD including nightmares, irritability also appear to have worsened somewhat, but unable to distinguish effects of medical condition vs. PTSD on worsening of psychiatric symptoms.” An August 2011 VA psychiatric treatment record states that the Veteran was seen “for anxiety and psychogenic tremor” which “occurs most days and gets worse with stressors like coughing with chest pain, driving in traffic, being in crowds, or anything that gets him nervous.” The Veteran was diagnosed with PTSD and an anxiety disorder due to general medical condition. A GAF score of 50 was assigned. The report of a September 2013 VA psychiatric examination states that the Veteran reported that he was married and had been unemployed for three years. On mental status examination, the Veteran exhibited a depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and suicidal ideation. The examiner commented that “although the Veteran’s work options are significantly limited due to his PTSD, in the opinion of the examiner, it is less likely than not (less than 50% probability) that there is sufficient total symptomatology relating to PTSD symptoms only in terms of duration and intensity to preclude all types of employment.” A February 2014 VA psychiatric treatment record shows that the Veteran reported that “his PTSD symptoms are exacerbated by his limited lung capacity.” The Veteran was reported to be well-groomed. On mental status examination, the Veteran exhibited a varied mood, but congruent with interview; normal speech; and no suicidal or homicidal ideation. The Veteran was diagnosed with PTSD, depression, and anxiety. A November 2014 VA psychiatric treatment record indicates that the Veteran complained of nightmares which were exacerbated by his use of a C-PAP machine. The Veteran was reported to be well-groomed. On mental status examination, the Veteran exhibited a varied mood, but congruent with interview; normal speech; and no suicidal or homicidal ideation. The Veteran was diagnosed with PTSD, depression, and anxiety. An April 2015 VA psychiatric treatment record states that the Veteran complained of nightmares and a short temper. He stated that his “feelings of not being able to breathe causes his PTSD symptoms to intensify.” The Veteran was reported to be well-groomed. On mental status examination, the Veteran exhibited a varied mood, but congruent with interview; normal speech; and no suicidal or homicidal ideation. The Veteran was diagnosed with PTSD, depression, and anxiety. For the period on and after November 15, 2010, the service-connected psychiatric disability was manifested by a depressed mood; anxiety; panic attacks; chronic sleep impairment; mild memory loss such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and suicidal ideation. The record does not establish, and the Appellant does not allege, that the service-connected PTSD was productive of total occupational and social impairment warranting assignment of a 100 schedular rating. The September 2013 VA psychiatric examination shows that examiner expressly determined that there was not sufficient evidence to establish total occupational impairment. Therefore, the Board finds that a rating in excess of 70 percent for PTSD for the period on and after November 15, 2010, is not warranted and the claim for increase must be denied. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, claimed as the result of herbicide agent exposure, is remanded. At the April 2011 Board hearing, the Veteran testified that he had initially experienced elevated blood pressure readings when he was diagnosed with bladder cancer and underwent excision of seven bladder tumors. VA clinical documentation dated in December 2013 indicates that the Veteran was diagnosed with “carcinoma in situ of bladder.” The provisions of 38 U.S.C. § 1116 were recently amended to add bladder cancer to the list of diseases for which there is a presumption of service connection associated with exposure to certain herbicide agents. Because of this change in the law and the Veteran’s contentions as the relationship between bladder cancer and hypertension, the Agency of Original Jurisdiction should readjudicate the issue of service connection for hypertension. 2. Entitlement to TDIU. Entitlement to TDIU requires an accurate assessment of the impairment associated with all of the service connected disabilities. Because of the grant of service connection for chronic obstructive pulmonary disease above and as the claim is inextricably intertwined with the other issue being remanded, the issue of TDIU must be remanded. The matters are REMANDED for the following action: Readjudicate the issues of entitlement to service connection for hypertension with consideration of 38 U.S.C. § 1116 as amended and TDIU. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Hutcheson, 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.