Citation Nr: 21030944 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 07-38 053A DATE: May 20, 2021 ORDER Entitlement to service connection for asthma is granted. Entitlement to a 70 percent disability evaluation for posttraumatic stress disorder (PTSD) from April 8, 2005, is granted. Entitlement to a 100 percent disability evaluation for PTSD is denied. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) from April 8, 2005, is granted. FINDINGS OF FACT 1. Currently diagnosed asthma is caused by service-connected diabetes and/or rhinitis. 2. For the entire appeal period, psychiatric symptoms due to PTSD, and the severity of such, more nearly approximated a rating based on occupational and social impairment with deficiencies in most areas, such as work, family relations, and mood. 3. The Veteran's PTSD did not result in total social and industrial impairment at any time during the appeal period. 4. The Veteran's service-connected disabilities have precluded substantially gainful employment consistent with his education and occupational experience since April 8, 2005. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for asthma as secondary to service-connected diabetes and/or rhinitis have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 2. The criteria for a 70 percent disability evaluation for PTSD have been met from April 8, 2005. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.126, 4.130 (Diagnostic Code 9411) (2019). 3. The criteria for a 100 disability evaluation for PTSD have not been met at any time. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.126, 4.130 (Diagnostic Code 9411) (2019). 4. The criteria for entitlement to TDIU have been met from April 8, 2005. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to June 1970 and from November 2001 to May 2002. He served in Vietnam from June 1969 to June 1970. He also had National Guard service. This matter was previously before the Board in May 2018, at which time it was remanded for further development. The requested development has been completed and the matter is now ready for appellate review. Asthma Service connection is granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran asserts that his diagnosed asthma is related to service. His STRs do not show asthma, or symptoms suggesting the presence of this disability. He separated from service without any diagnoses of asthma. The Veteran argues that his AO exposure in service lead to his asthma. In the alternative, he contends that his service-connected disabilities, to include diabetes and rhinitis caused and/or aggravated his current asthma. Initially, the Board notes that service connection may be established on a presumptive basis for certain chronic diseases, asthma is not considered chronic under this method. 38 C.F.R. § 3.309(a). The Veteran's exposure to herbicides (or Agent Orange) during the Vietnam Era has been conceded. Certain diseases are deemed associated with herbicide agent exposure under VA law and are presumed to be service connected if there was exposure to an herbicide agent during active service, if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service. 38 C.F.R. § 3.309(e). The Board notes that asthma is not listed among the presumptive diseases, and thus, the presumptive provisions regarding herbicide exposure do not apply. A presumption of service connection is not warranted for any disease not affirmatively named in the presumptive list. See 77 Fed. Reg. 47,924 (Aug. 10, 2012). If the criteria to presume service connection from such exposure are not met, service connection may still be established with competent evidence of a relationship to the disability. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, at 448 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). To establish secondary service connection, the law states that there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In conjunction with the Veteran's claim, a VA medical opinion was obtained in March 2019. The examiner was requested to render the following opinions: Does the Veteran have a diagnosis of bronchial asthma that is at least as likely as not (50 percent or greater probability) (a) had its onset during his 1968 to 1970 period of service, (b) is otherwise related to events, including herbicide exposure, during that service period, (c) is proximately due to or the result of his allergic rhinitis and sinusitis, or (d) is aggravated by his allergic rhinitis and sinusitis? The examiner opined that it was less likely as not that the Veteran's current respiratory condition was caused or aggravated to any degree by his military service, agent orange exposure, or his allergic rhinitis/sinusitis. As rationale, the examiner indicated that the available SMRs were silent for any chronic respiratory symptoms or diagnoses, including the periodic physical exams and the later guard/reserve exams. Therefore, there was no current objective evidence that the Veteran's currently reported chronic respiratory condition such as bronchial asthma was caused or aggravated directly by his military service. It was noted that although agent orange was conceded to be an agent of lung cancer, the current medical literature did not support a cause and effect relationship between agent orange exposure and any other persisting or subsequently developing chronic respiratory conditions such as bronchial asthma. It was further indicated that although sinusitis and allergic rhinitis also shared some respiratory symptoms with some chronic respiratory conditions, the current medical literature had not established a cause and effect relationship between these conditions. There was no current objective evidence that in the Veteran's case his documented sinus and/or allergic rhinitis symptoms or conditions represented or contributed in any clinically significant way to any current chronic respiratory condition such as his bronchial asthma In a September 2020 letter, A. A., M.D., indicated that he had been asked to write a medical opinion regarding the Veteran's claim for service connection for asthma. He opined that it was more likely than not that the Veteran's asthma was due to his service-connected DM and allergic rhinitis. He noted that the Veteran's mother's affidavit stated that he had no respiratory symptoms prior to going into service. He indicated that in the cited medical literature accompanying his opinion, both DM and allergic rhinitis pre-disposed an individual to the development of asthma. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against the conclusion that the Veteran's current asthma had its onset in service. The Veteran's service treatment records contain no complaints or findings asthma. As to the Veteran's reports that he has had asthma since service, the Board finds that the contemporaneous evidence shows that the Veteran did not report that he had asthma in service. Asthma was first reported subsequent to the Veteran's period of service. This contemporaneous evidence outweighs and is more probative than are his assertions voiced years later and in connection with a claim for disability benefits. For these reasons, the Board concludes that the assertions of asthma in service and since service are not credible. As to the Veteran's belief that his asthma is related to his period of service, the question of causation of a complex medical condition, such as asthma, extends beyond an immediately observable cause-and-effect relationship, and, as such, the Veteran is not competent to address etiology in the present case. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). It has not been shown that he has the requisite training to diagnose the cause of his current asthma. Next, service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. The Veteran was afforded the opportunity to provide medical evidence and/or an opinion relating his current asthma to his period of service. He has not provided either medical evidence or an opinion to support this proposition. The VA examiner, following a comprehensive review of the record and examination, opined that the Veteran's current asthma was less likely than not caused by or a result of an incident in service or to have begun in active service, to include exposure to agent orange. The Board is placing greater weight on this opinion as it was rendered after a thorough review of the record with detailed rationale being set forth to support the opinion. There was no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. As to the question of secondary service connection, as noted above, the Veteran is not competent to render an opinion as to whether his current asthma is proximately due to or aggravated by a service-connected disorder. As to whether the Veteran's current asthma is caused by a service-connected disability, the Board notes that there are conflicting opinions as to whether the Veteran's service-connected disorders caused his asthma. The private and VA examiners have provided detailed rationale to support their opinions. The Board finds that these opinions are in equipoise. Given that the opinions are in equipoise, and resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for asthma as secondary ot the Veteran's service-connected diabetes and/or rhinitis is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2019). PTSD At the outset, the Board is in agreement with the Veteran's attorney that the issue for an increased disability evaluation for PTSD has been pending since April 8, 2005. In this regard, the Board notes that the initial rating was assigned in February 2007. In August 2007, the Veteran's representative submitted a request for an increased evaluation for PTSD. The Board finds that the request was akin to an informal notice of disagreement as it was received within the one-year period of the rating decision and expressed implied disagreement with the assigned disability evaluation by seeking a higher disability evaluation. In addition, to the above, additional evidence was received within the one-year period in the form of an April 2006 Social Security Administration award effective June 21, 2004, which was based in part upon the Veteran's PTSD. The material information was received within the one-year period, allowing the claim to reopen open. As such, the Board will address the Veteran's PTSD claim from April 8, 2005 to the present. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2019). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The General Formula for Rating Mental Disorders, Diagnostic Code 9411, provides that a 30 percent rating is assigned 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). A 50 percent evaluation requires 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 abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is assigned 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 circumstances (including work or a work like setting); inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent evaluation is assigned for 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 or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms cited above follow the phrase "such symptoms as" which indicates 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. Accordingly, the Board has not required the presence of all or most of the enumerated symptoms for any particular rating. The list of symptoms merely provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. The Board must consider all symptoms of the veteran's condition which affect the level of occupational and social impairment. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. 436, 441-443 (2002). The Veteran maintains that the symptomatology associated with his service-connected PTSD warrants disability evaluations higher than those which are currently assigned. Resolving reasonable doubt in favor of the Veteran, the Board will find that his PTSD symptoms have warranted a 70 percent disability evaluation since April 8, 2005. The Board notes that at the time of a September 2005 SSA psychiatric evaluation, the Veteran was found to have moderate to severe major depression. The Veteran was noted to have taken early retirement in April 2004 due to significant depression. Moreover, the Veteran's PTSD symptoms were described as moderate to severe at the time of his January 2007 VA examination. As such, the criteria for a 70 percent disability evaluation, requiring severe symptoms, have been met since April 8, 2005. The Board has reviewed all of the evidence of record, lay and medical, and finds that the Veteran has not met the criteria for a higher 100 percent disability rating for PTSD. See 38 C.F.R. § 4.130. The record does not indicate total occupational and social impairment, due to symptoms of such a severity as described for a 100 percent evaluation for PTSD. The examiners, both VA and private, have indicated that the Veteran has had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. These are the criteria associated with a 70 percent disability evaluation. Moreover, the Board finds that total social impairment has not been indicated as the Veteran has been able to maintain relationships with his wife and other family members. As noted above the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan v. Principi, at 443. The Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Ultimately, in Mauerhan, the Court upheld the Board's decision noting that the Board had considered all of the veteran's psychiatric symptoms, whether listed in the applicable rating criteria or not, and had assigned a rating based on the Veteran's level of occupational and social impairment. Mauerhan v. Principi, at 444. Applying this analysis to the criteria for the 100 percent rating, it follows that the Veteran would be entitled to that rating if PTSD caused total occupational and social impairment, regardless of whether he had some, all, or none of the symptoms listed in the rating formula, and regardless of whether his symptoms were listed or not. The Board concludes that the Veteran's disability picture does not more nearly approximate the criteria for a 100 percent rating criteria under DC 9411 for any period. 38 C.F.R. § 4.130. The weight of the evidence shows that the Veteran has not had 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; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name for any period. The Board is keenly aware of the Veteran's memory loss problems and his inability to handle his funds; however, the symptoms more closely approximate those associated with a 70 percent disability evaluation throughout the appeal period. Moreover, as will be discussed in greater detail below, the Board has assigned a TDIU, of which the Veteran's PTSD, now classified as periventricular microangiopathy with neurocognitive disorder due to diabetes and PTSD, played the predominant role in the assignment of the TDIU. TDIU A TDIU may be assigned when a Veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities with at least one rated at 40 percent or more and he has a combined rating of at least 70 percent. 38 C.F.R. § 4.16(a). In calculating whether a Veteran meets that 60/70 percent schedular criteria, disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system, are considered one disability. The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or following a substantially gainful occupation. 38 C.F.R. § 4.16(a). In any event, it is the policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b); see 38 C.F.R. §§ 3.340, 3.341, 4.15 (2019). In this regard, in Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated that there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon a Veteran's actual industrial impairment. In a pertinent precedent decision, VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria for determining unemployability include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (O.G.C. Prec. 75-91); 57 Fed. Reg. 2317 (1992). The Court has also held that a Veteran's advancing age and nonservice-connected disabilities may not be considered in the determination of whether a Veteran is entitled to a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a)(b), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places him in a different position than other Veterans with the same disability rating. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. Additionally, it is noted that a high rating in and of itself is recognition that the impairment makes it difficult to obtain and keep employment. Thus, the question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Furthermore, marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Based upon the above actions, as of April 8, 2005, service connection was in effect for PTSD, rated as 70 percent disabling; scoliosis of the back, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; chloracne, rated as noncompensable; and bilateral sensorineural hearing loss, rated as noncompensable. Thus, the Veteran met the criteria for consideration of 4.16(a) at the time of his request for service connection for PTSD. At the time of a September 2005 SSA psychiatric evaluation, the Veteran was found to have moderate to severe major depression. The Veteran was noted to have taken early retirement in April 2004 due to significant depression. PTSD was also listed as having had an impact on the Veteran's employment in the SSA disability award decision. Based upon the above findings, it is evident that the Veteran cannot work in the field in which he has training and experience. The Board finds that the weight of the evidence, including the examiners' findings, along with the Veteran's statements and work history, demonstrate that he has met the criteria set forth in § 4.16, and that a TDIU based upon service-connected disabilities from April 8, 2005, is warranted. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.