Citation Nr: 21029333 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-40 804A DATE: May 13, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to asbestos exposure and/or herbicide agent exposure, is denied. Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD), prior to January 23, 2020, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that COPD began during active service, or is otherwise related to an in-service injury or disease, including asbestos exposure and/or herbicide agent exposure. 2. Prior to January 23, 2020, the Veteran's PTSD symptoms were productive of occupational and social impairment with reduced reliability and productivity; and the severity, frequency, and duration of the Veteran's PTSD symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD, to include as due to asbestos exposure and/or herbicide agent exposure, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an evaluation in excess of 50 percent for PTSD, prior to January 23, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1974 to September 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a video conference hearing before a Veterans Law Judge who is no longer with the Board. While the Veteran was informed of this fact and offered the opportunity to testify at a new hearing, he declined. See 38 C.F.R. § 20.700. A transcript of this hearing is of record. In February 2020, the Board remanded this matter for additional evidentiary development. The RO subsequently obtained outstanding VA treatment records and scheduled the Veteran for VA examinations to address whether the Veteran's COPD is related to his inservice asbestos exposure; and to determine the severity of the Veteran's PTSD. The Board finds these actions to be in substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance with remand directives is required). In August 2020, the RO issued a rating decision which, in pertinent part, awarded an increased evaluation of 100 percent for the Veteran's PTSD, which it recharacterized as PTSD with somatic symptom disorder, effective January 23, 2020. This was a partial grant because it did not cover the entire period on appeal. Therefore, the Board shall address the remaining issue of entitlement to an evaluation in excess of 50 percent for PTSD, prior to January 23, 2020. The RO's August 2020 rating decision also granted service connection for dermatitis, effective July 5, 2013. This rating decision represents a total grant of benefits sought on appeal for this issue. As such, the issue is resolved. 1. Entitlement to service connection for COPD, to include as due to asbestos exposure and/or herbicide agent exposure. The Veteran asserts that he has COPD as a result of his inservice exposure to herbicide agents. Alternatively, he contends these conditions developed as a result of his inservice exposure to asbestos. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 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 disorder, COPD, does not appear on the list of diseases considered presumptively associated with herbicide agent exposure. Id. Despite this, the Veteran is not precluded from establishing service connection based on exposure to herbicide agents with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). With regard to asbestos related disorders, the VA Adjudication Procedure Manual, M21-1 (M21-1), provides guidance on how to adjudicate claims based on exposure to some environmental hazards, as well as specific guidance in adjudicating asbestos-related claims. M21-1, Part IV.ii.1.I.3 (November 19, 2015). In this case, the Board concedes that the Veteran had asbestos exposure based upon his inservice duties in the United States Navy. Initially, the Board concludes that the Veteran currently has COPD. Accordingly, the Board's decision shall focus on whether this condition is related to his military service. A review of the Veteran's service treatment records was silent as to any complaints of or treatment for a respiratory disorder. The Veteran's September 1976 separation examination noted that his lungs and chest were normal, as was an x-ray examination of his chest. On a medical history report completed at that time, the Veteran denied any history of asthma, shortness of breath, or chronic cough. In July 2013, the Veteran filed his present claim seeking service connection for COPD. An August 2013 report noted the Veteran's contentions that he witnessed planes, set up like crop dusters, which were used to spray Agent Orange on opium fields in Sicily. In a March 2014 statement, the Veteran reported that he was exposed to asbestos while serving onboard the U.S.S. John F. Kennedy (CV 67). In August 2014, a VA examination for respiratory conditions was conducted. The examination report noted the Veteran's complaints of shortness of breath while walking and climbing stairs. He reported noticing shortness of breath during service, and that this condition started worsening in the past 10 years. The report noted that the Veteran's history of smoking cigarettes, at varying levels, since the age of 17. A September 2014 x-ray examination of the chest revealed normal findings. A September 2014 CT scan of the thorax revealed an impression of clear lungs. A pulmonary function test was also conducted in September 2014 and revealed FEV-1/FVC of 73 percent. The VA examiner in September 2014 opined that the Veteran's claimed respiratory disorder was less likely than not incurred in or caused by his service. In support of this conclusion, the examiner noted that there is no objective evidence to support that the Veteran was diagnosed with an asbestos exposure lung condition. An August 2019 x-ray examination of the chest revealed mild chronic lung changes without acute findings. A December 2019 pulmonary function test noted findings of FEV-1/FVC at 68 percent predicted. In April 2020, the Veteran underwent a VA respiratory examination. The examination report listed a diagnosis of COPD, beginning in November 2019. The report noted the Veteran's complaints of shortness of breath, nasal congestion, and cough. It also noted that the Veteran uses a Spiriva inhaler to treat this condition. In an April 2020 addendum, the VA examiner opined that it was less likely than not that the Veteran's COPD was related to his military service. In rendering this opinion, the examiner considered the evidence of record, including the Veteran's statements, prior to forming this opinion. The examiner physically examined the Veteran and also supported the opinion provided with a sufficient rationale. The VA examiner noted that the Veteran's diagnostic studies continue to show no indication of asbestos related pathology. The VA examiner also noted that a review of the Veteran's medical records revealed no imaging studies of asbestosis. His September 2014 chest x-ray was normal, as was his September 2014 CT scan of the thorax. The examiner also noted the Veteran's long history of being a smoker; and while his more recent diagnostic testing studies show findings of COPD, there is no indication of an asbestos related pathology. Ultimately, the evidence of record establishes the onset of the Veteran's COPD decades after his military service. The Veteran has not submitted any competent evidence linking the Veteran's COPD to his claimed inservice herbicide agent exposure. Moreover, while he was exposed to asbestos during service, the preponderance of the evidence is against finding that his COPD is related to his military service, to include these exposures. The Board has considered the Veteran's statements, to include that he has COPD related to inservice asbestos and herbicide agent exposure. As the Veteran is not shown to have medical education or experience, he 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. Moreover, while he is competent to report symptoms that are observable to a lay person, his lay assertions of ongoing shortness of breath since his military service are not credible. He denied having any history of shortness of breath or chronic cough at the time of his separation examination in September 1976. Moreover, he denied shortness of breath, chronic cough, and wheezing in June 2013. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. As the only evidence linking the Veteran's COPD to his claimed inservice herbicide exposure are the bare contentions of the Veteran, the Board finds that the evidence is not sufficient to trigger VA's duty to obtain a medical opinion regarding the Veteran's COPD and his claim inservice herbicide agent exposure. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that while competent evidence is not required to trigger VA's duty to provide a VA examination or opinion, a mere conclusory generalized lay statement that a service event or illness, or service-connected disability, caused the claimant's current condition is insufficient to require the Secretary to provide an examination). VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which it has not specifically determined a presumption of service connection is warranted. 61 Fed. Reg. 41,446 (1996); 59 Fed. Reg. 341-46 (1994). Accordingly, the preponderance of the evidence is against the Veteran's claim for service connection for COPD. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an initial evaluation in excess of 50 percent for PTSD, prior to January 23, 2020. Disability ratings are determined by applying the criteria set forth in the VA Schedule of 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. Separate diagnostic codes identify the various disabilities. 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 disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that his service-connected PTSD warrants an evaluation in excess of 50 percent prior to January 23, 2020. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher at any point prior to January 23, 2020. The Veteran's symptoms more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. A 50 percent rating is assigned when symptoms such 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; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. In this case, the Veteran's VA medical records show that throughout the appeal period he has suffered from anxiety, depression, suspiciousness, sleep impairment, mild memory loss, nightmares, and disturbances of motivation and mood. In June 2016, the Veteran underwent a VA examination for PTSD. The VA examiner noted that the Veteran's claims file had been reviewed and a mental status examination of the Veteran conducted. The Veteran reported that he was living in an apartment that he built inside of a warehouse. He noted that he was in a relationship with his girlfriend for the past ten years. He described the relationship as strong, and that he plans to get married in the future. The Veteran reported having an outstanding relationship with his daughter, and that he communicates with one of his sons through email. The Veteran indicated that he was currently taking classes to study architecture, and that he was also employed part time doing maintenance for his landlord in exchange for housing. The VA examiner noted the Veteran's symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. Mental status examination revealed that the Veteran's appearance was normal, and he was fully oriented, neatly dressed and groomed. His speech was normal, he was polite and cooperative, and his thought content and processes were normal. His psychomotor activity was normal, his insight and judgment were adequate, and he denied any delusions or hallucinations. The Veteran described passive suicidal ideation, saying maybe he would be better off dead, but denied any intent or plan. He was future oriented and reported that he looks forward to graduating from college and marrying his girlfriend. He denied any homicidal ideation, intent, or plan. The Board notes that the Veteran expressed suicidal ideation at times, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 70 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during the June 2016 VA examination for PTSD. Moreover, prior to January 23, 2020, the Veteran has not exhibited symptoms similar to those warranting a higher evaluation, such as 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board finds the severity, frequency, and duration of the Veteran's symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. Accordingly, the preponderance of the evidence is against the Veteran's claim for an evaluation in excess of 50 percent for his PTSD prior to January 23, 2020. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the preponderance of the evidence is against an evaluation in excess of 50 percent for his PTSD at any time prior to January 23, 2020. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Yates, 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.