Citation Nr: 1427754	
Decision Date: 06/18/14    Archive Date: 06/26/14

DOCKET NO.  06-06 684	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to service connection for loss of use of a creative organ/sexual dysfunction (originally claimed as a decrease in libido), to include as secondary to posttraumatic stress disorder (PTSD).  

2.  Entitlement to service connection for a gastrointestinal disability (originally claimed as irritable bowel syndrome (IBS) and gastroesophageal reflux disease (GERD)), to include as secondary to PTSD.  

3.  Entitlement to a rating in excess of 50 percent for PTSD.  

4.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  

5.  Entitlement to an effective date prior to April 27, 2010 for the grant of service connection for ischemic heart disease.  



REPRESENTATION

Appellant represented by:	John S. Berry, Attorney


ATTORNEY FOR THE BOARD

M. Zawadzki, Counsel


INTRODUCTION

The Veteran served on active duty from September 1968 to September 1971.  His awards and decorations include the Combat Infantryman's Badge.
 
These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2005, April 2009, and October 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.  

The Board issued an earlier decision in regard to the claims for service connection and for TDIU, in May 2008, denying those claims.  However, the Veteran appealed the Board's May 2008 decision to the United States Court of Appeals for Veterans Claims (Court).  The Court vacated the Board's decision in a March 2010 Memorandum Decision and remanded these matters to the Board for readjudication. In December 2010, the Board remanded these claims, as well as the claim for an increased rating for PTSD to the RO for additional development.  In March 2012, the Board again remanded these claims.  The Board also remanded the issue of entitlement to an effective date prior to April 27, 2010 for the grant of service connection for ischemic heart disease for issuance of a statement of the case (SOC), pursuant to Manlincon v. West, 12 Vet. App. 238 (1999).  The RO issued an SOC regarding this issue in June 2012 and the Veteran, via his attorney, filed a timely VA Form 9 perfecting an appeal of that issue later that month.  

The Board has reviewed the Veteran's Virtual VA and Veterans Benefits Management System (VBMS) e-folders, each of which contains additional medical evidence that has been considered by the RO, as indicated in the June 2012 SOC and August 2013 supplemental statement of the case (SSOC).  Therefore, the Board's consideration of this evidence will not result in prejudice to the Veteran. 

In February 2005, the Veteran filed a claim for service connection for a foot condition, asserting that he believed he had a fungus disease from his feet being wet in Vietnam.  This claim has not yet been adjudicated.  The issue of entitlement to service connection for a foot condition, including a fungus disease, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over this matter, and it is referred to the AOJ for appropriate action.  

The issues of entitlement to a TDIU prior to August 24, 2011 and entitlement to an effective date prior to April 27, 2010 for the grant of service connection for ischemic heart disease are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  The evidence is in relative equipoise as to whether the Veteran has experienced loss of use of a creative organ, identified as sexual dysfunction, during the pendency of his claim, which was caused or aggravated by medication prescribed for his service-connected PTSD.

2.  A gastrointestinal disability was not manifest during service; is not attributable to service; and is not proximately due to or aggravated by service-connected PTSD or medication prescribed to treat that service-connected disability.    

3.  The Veteran's PTSD has been manifested by complaints of depression, sleep impairment, flashbacks, nightmares, anger, loss of interest, lack of energy, poor appetite, feelings of guilt, impaired concentration, feelings of paranoia, triggered panic attacks, difficulty remembering things, hypervigilance, exaggerated startle response, social isolation, avoidance of crowds, and intrusive thoughts and examinations have revealed impairment in mood and affect, occasional derailment of thought process, irritable and guarded attitude, psychomotor agitation, moderately severe physiological reactions, and speech which is, at times, slow or fast in rate; these symptoms are not indicative of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.  

4.  As of August 24, 2011, the Veteran's service-connected disabilities satisfied the criteria for schedular consideration of entitlement to a TDIU.  

5.  Resolving all doubt in his favor, since August 24, 2011, the Veteran's service-connected disabilities have precluded him from securing or following a substantially gainful occupation consistent with his education and work experience.  


CONCLUSIONS OF LAW

1.  Service connection for loss of use of a creative organ, identified as sexual dysfunction, is warranted.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.310 (2013).

2.  The criteria for the establishment of service connection for a gastrointestinal disability, to include as secondary to PTSD, are not met or approximated.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.310 (2013).

3.  The criteria for a rating in excess of 50 percent for PTSD have not been met or approximated.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.130, Diagnostic Code 9411 (2013).

4.  The criteria for a TDIU from August 24, 2011 are met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. 3.340, 3.341(a), 4.16 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction).  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

Duty to Notify and Assist

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159 (2013).  The VCAA notice requirements apply to all elements of a claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

Given the favorable disposition of the claim for service connection for loss of use of a creative organ and the claim for a TDIU from August 24, 2011, the Board finds that all notification and development actions needed to fairly adjudicate these claims have been accomplished.  

The Veteran filed his claim for service connection for a gastrointestinal disability in February 2005 and was advised of the information and evidence necessary to substantiate this claim, on a direct or secondary basis, in an April 2005 letter prior to the initial adjudication of his claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  Notice compliant with Dingess v. Nicholson, was subsequently provided in March 2006.  Although the March 2006 letter was not issued prior to the decision on appeal, the Veteran's claim was readjudicated in May, July, August, and December 2011 and August 2013 SSOCs.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect).  Regarding the claim for an increased rating for his PTSD, the Veteran filed his claimed in March 2009 and was provided with the relevant notice later that month, prior to the initial adjudication of this claim.  Pelegrini, 18 Vet. App. at 120-21.  

VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim.  Here, the Veteran's service records and VA treatment records have been obtained and associated with the claims file/e-folder.  Although the RO requested the Veteran's records from the Social Security Administration (SSA), SSA indicated in April 2006 that the Veteran was not entitled to disability or SSI benefits and SSA presently had no medical file.  The Veteran was provided VA examinations and medical opinions addressing the etiology of his claimed gastrointestinal disability in May 2005, January 2011, and June 2012.  The Veteran was provided with VA examinations which address the severity of his service-connected PTSD and provide findings responsive to the pertinent rating criteria in April 2009 and March 2011.  As will be elaborated on below, these examination reports and opinions, considered together, are adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  

The Board remanded the claim for service connection for a gastrointestinal disability in December 2010 to obtain a supplemental opinion from the VA examiner who conducted the May 2005 VA examination.  The examiner was asked to indicate whether the Veteran had IBS and/or GERD due to Fluoxetine or any other medication prescribed for PTSD or due to any incident of military service.  The examiner's attention was called to several articles cited by the Veteran in support of his claim.  Additionally, the RO was instructed to ask that the Veteran provide substantiation for his assertion that medications prescribed to treat his PTSD caused any gastrointestinal disorder and to invite him to submit copies of articles cited in pleadings before the Court.  In addition, the Board instructed the RO to schedule the Veteran for a VA examination to evaluate his service-connected PTSD.  

In January 2011, the RO sent the Veteran a letter asking that he provide substantiation for his assertion that medications prescribed to treat his PTSD caused any gastrointestinal disorder and to inviting him to submit copies of articles cited in pleadings before the Court.  The same month, the May 2005 VA examiner reviewed the claims file and provided a supplemental opinion.  While, as elaborated on below, this opinion adequately addressed whether the Veteran had a gastrointestinal disability related to service or medication prescribed to treat service-connected PTSD, it did not adequately respond to whether he had a gastrointestinal disability directly secondary to his PTSD.  The Veteran underwent a VA PTSD examination in March 2011.  

In March 2012, the Board again remanded the claims to allow the Veteran to submit a release to allow VA to obtain records regarding the receipt of disability unemployment benefits from Union Pacific Railroad.  The Board also instructed that the RO should gather any newly-generated VA treatment records dated since December 2011.  The Board found the gastrointestinal examiner's January 2011 opinion inadequate, as he did not address whether the claimed gastrointestinal disability was likely directly secondary to PTSD and did not indicate review of any supportive medical research submitted by the Veteran.  The Board noted that the Veteran had subsequently been diagnosed with GERD in October 2011 and had been hospitalized for gastrointestinal symptoms in October and November 2011.  The Board indicated that a clarifying opinion was needed in regard to whether the employability effects resulting from the Veteran's PTSD were distinct from the effects of depression.  The Board referred to the AOJ a claim for service connection for an acquired psychiatric disorder, other than PTSD, claimed as a depressive disorder.  

Additional VA treatment records, as identified in the March 2012 remand, have been uploaded to the Veteran's Virtual VA e-folder.  

In April 2012, the RO asked the Veteran to provide a release to allow it to obtain records from the Union Pacific Railroad regarding his grant of disability benefits and enclosed a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA).  The Veteran has not provided a release to allow VA to obtain these records.  VA is only obligated to obtain records that are adequately identified and for which necessary releases have been received.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  As the Veteran has not provided a release form for these disability unemployment records; it is not possible for VA to obtain them; hence, no further action in this regard is warranted.
  
In June 2012, a VA mental health examiner reviewed the claims file and provided an opinion indicating that the Veteran's PTSD and major depressive disorder were separate and independent and the depressive disorder was not secondary to or aggravated by PTSD.  He addressed comorbidity of PTSD and major depression in research articles and commented that literature often pointed out "association", "co-occurrence", and "comorbidity" indicating that two conditions occurred at the same time, but this did not prove causation.  Although the VA examiner did not provide a rationale for his opinion that the depressive disorder was not secondary to or aggravated by PTSD, in December 2012, the Veteran withdrew his claim for service connection for an acquired psychiatric disorder.  The examiner did provide an explanation for his statement pertinent to the claim for an increased rating, that is, the Veteran's PTSD and major depressive disorder were separate and independent as the PTSD was related to military service and the major depressive disorder was related to a post-service back injury.  As the opinion is adequate to evaluate the pertinent issue remaining on appeal, remand for a supplemental opinion would impose unnecessary additional burdens on adjudication resources, with no benefit flowing to the Veteran, and is, thus, unnecessary.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991).  

The examiner who provided the January 2011 opinion also reviewed the claims file in June 2012, acknowledged review of the articles submitted by the Veteran, and conducted his own search of the current literature.  This examiner opined that he could not find that the Veteran's gastrointestinal/esophageal disability was due to PTSD, and any commentary as to whether it was aggravated would be complete speculation.  The examiner provided an explanation for his opinion.  The Court has held that an examiner's conclusion that a diagnosis or etiology opinion is not possible without resort to speculation may be relied upon as long as well-supported by the facts and data of the case.  See Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010) (noting that the phrase, "without resort to mere speculation," must not become a mantra that short circuits the careful consideration to which each claimant's case is entitled and holding that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence).  As will be elaborated on below, because the June 2012 opinion was supported by an explanation, this opinion is adequate.  See Barr, 21 Vet. App. at 311.  

In December 2012, the Veteran, via his attorney, indicated that he wished to withdraw his claim for adjustment disorder with depressed mood, claimed as an acquired psychiatric disability.  

In light of the above, there was substantial compliance with the Board's remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

The January 2011 VA examiner's opinion regarding the relationship between the Veteran's claimed gastrointestinal disorder and service did not address the Veteran's microscopic colitis as this was not detected until he subsequently underwent random biopsies from colonoscopy later that year.  However, the Veteran has not presented, nor does the evidence suggest, a nexus between this now-diagnosed microscopic colitis and service.  Rather, as will be discussed below, the record suggests that this condition may be related to medication prescribed for the Veteran's service-connected PTSD.  This was addressed in the June 2012 VA examiner's opinion.  

VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The Veteran has alleged that he has a gastrointestinal disability related to service.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), determining the etiology and diagnosis of microscopic colitis falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also Waters v. Shinseki, 601 F.3d 1274, 1279 (Fed. Cir. 2010) (the Veteran's conclusory lay statement is insufficient to trigger VA's duty to provide an examination with an opinion).  The McLendon elements have not been satisfied with regard to obtaining a medical opinion addressing whether the Veteran's microscopic colitis is related to service and remand is not required to obtain a new examination/opinion addressing this claim.  

A May 2003 VA treatment record indicates that the Veteran was transferred to the Great Plains Regional Medical Center (GPRMC) by ambulance after presenting with chest pain.  In November 2005, the Veteran was transferred to the GPRMC emergency room by ambulance for evaluation of abdominal pain.  In June 2012, the Veteran was evaluated for dyspnea and chest pain and was transported to GPRMC by ambulance.  These treatment records from the GPRMC have not been associated with the claims file/e-folder.  There is no indication, however, that these records, regarding evaluation for chest pain, dyspnea, and abdominal pain, are pertinent to the claim for an increased rating for PTSD, nor would records regarding treatment for chest pain or dyspnea be pertinent to the claim for service connection for a gastrointestinal disability.  Even if records regarding November 2005 evaluation for abdominal pain were pertinent to the claim for service connection for a gastrointestinal disability, the Veteran has not submitted a release to allow VA to obtain these records.  In the April 2005 and March 2009 VCAA letters, the RO advised the Veteran that, if he wanted VA to obtain medical records on his behalf, he should complete and return an enclosed VA Form 21-4142.  However, the Veteran did not furnish a VA Form 21-4142 for these records.  Because VA is only obligated to obtain records that are adequately identified and for which necessary releases have been received, and the Veteran has not provided a release form for these private treatment records; it is not possible for VA to obtain them; hence, no further action in this regard is warranted.

The Veteran has not identified any additional, relevant evidence that has not been requested or obtained.  The Veteran has been notified of the evidence and information necessary to substantiate his claims, and he has been notified of VA's efforts to assist him.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002).  As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claims.

Analysis - Service Connection

Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013).  Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

A three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of 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 disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).  

Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard. See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases.").  When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id. 

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b).  Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Walker, 708 F.3d at 1338.  Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and the "nexus" requirement of the three-element test must be met. Id. at 1338-39.  

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  See 38 C.F.R. § 3.310(a) (effective before and after October 10, 2006).  The Court has held that when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  See Allen v. Brown, 7 Vet. App. 439 (1995).

Effective October 10, 2006, VA regulations were amended to include that any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  It was noted, however, that VA will not concede a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  See 38 C.F.R. § 3.310(b) (2013).  

The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation, specifically, in terms of establishing a baseline level of disability for the non-service-connected condition prior to the aggravation.  Because the new law appears more restrictive than the old, and because the Veteran's appeal was already pending when the new provisions were promulgated, the Board will consider this appeal under the law in effect prior to October 10, 2006.  See, e.g., Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (new regulations cannot be applied to pending claims if they have impermissibly retroactive effects).

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of the inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  Layno v. Brown, 6 Vet. App. 465 (1994).  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning which caused Veteran's death).

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Gober, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107.  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 


Loss of use of a creative organ/sexual dysfunction

Considering the pertinent evidence, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for loss of use of a creative organ/sexual dysfunction is warranted.  

In his February 2005 claim for service connection, the Veteran reported that he had "a difficult time getting an erection."  During a May 2005 VA examination, he mentioned erectile dysfunction.  He reported a decrease in libido for the past one to two years, although he still got some erections.  He mentioned some difficulty with use of a creative organ, but reported that, when possible, vaginal penetration with ejaculation could be performed.  The diagnosis was decrease in libido which appears to be leading to erectile dysfunction.  

In January 2011, the May 2005 VA examiner commented that, while sexual dysfunction was a remote side effect of the prescribed fluoxetine, the Veteran had so many numerous and intertwined medical comorbidities that it would be medically impossible to blame his loss of libido and erectile power on this medication use, which began in 2005 and appeared to have stopped in 2007.  He added that aggravation issues could not be determined because there were so many other medical comorbidities which could play into the claimed loss of libido and erectile power.  The examiner also reported that the Veteran had recently been on citalopram, a drug with erectile and ejaculatory issues mentioned in side effect profiles, but because of the many other medical comorbidities, it would be medically impossible to determine whether any current medications for mental health issues were causing his sexual dysfunction.  

In June 2011, the VA PTSD examiner reviewed the claims file and stated that the Veteran was taking sertraline, which had a side effect of lack of sexual drive or libido.  He opined that it was at least as likely as not that the sertraline, which was used to treat the Veteran's PTSD, did have an effect on the Veteran's libido or sex drive, meaning that, while taking this medication, his libidinal impulses would be lowered or reduced, although this was temporary.  He added that erectile dysfunction is not caused by sertraline and commented that the decrease in sexual drive was not "sexual dysfunction" which is defined as impotence.  He stated that there were no permanent or persistent effects on libido due to SSRI treatment for PTSD.  

In June 2012, a VA examiner reviewed the claims file and concluded that there was scientific literature indicating that PTSD can cause dissatisfaction with sexual functioning referred to as sexual dysfunction, but there was no scientific literature demonstrating that PTSD causes erectile dysfunction or aggravates it beyond its natural progression.  He commented that the Veteran had a number of physical conditions which were likely causes of erectile dysfunction but that he could not find records where the diagnosis of erectile dysfunction had been established.  The examiner added that the Veteran was not currently on psychiatric medications according to his medication profile and, therefore, psychiatric medications could not be causing erectile dysfunction or decreased libido, as there was no scientific evidence that the use of psychotropic medications causes permanent erectile dysfunction or decreased libido.  He did note that sexual dysfunction does occur in individuals with PTSD and sexual dysfunctions were treatable conditions, although there was no indication that the Veteran had been evaluated for sexual dysfunction or erectile dysfunction.  

In June 2013, the VA examiner provided a supplemental opinion in which he stated that, at the time of the June 2012 opinion, the Veteran was not on sertraline, although he had been on this medication in May 2011.  The examiner reiterated that the progress notes did not include a diagnosis of erectile dysfunction, although the Veteran had Peyronie's disease, which is a known cause of erectile dysfunction.  He noted that sertraline is a known cause of sexual dysfunction in some individuals, which means interference with sexual activity including decreased libido, delayed orgasm, and some interference with maintaining an erection, although there was no literature indicating that the sexual dysfunction caused by sertraline persisted once the medication was stopped.  He opined that, if the Veteran had erectile dysfunction caused by other conditions, such as Peyronie's disease, it is possible that sertraline could aggravate the condition, but not persistently aggravate it.  He summarized that sertraline is not a known cause (meaning causing a persistent as opposed to transient condition) or persistent aggravator of erectile dysfunction and, if sertraline caused sexual dysfunction, it was transient and stopped when the medication was stopped.  

Resolving all doubt in favor of the Veteran, the evidence shows the presence of sexual dysfunction during the pendency of the claim.  While poor sex drive was listed among non-PTSD psychiatric/medical symptoms in the April 2009 and March 2011 VA examinations, the May 2005 VA examiner diagnosed decrease in libido which appeared to be leading to erectile dysfunction and the June 2011 VA examiner indicated that sertraline, which was prescribed to treat the Veteran's PTSD, did have an effect on his sex drive.  

Although the June 2011 VA examiner indicated that the Veteran's decrease in sexual drive was not "sexual dysfunction" which is defined as impotence, the June 2013 VA examiner's opinion indicates that sexual dysfunction is a diagnosis, as he provided a definition of this disorder (interference with sexual activity including decreased libido, delayed orgasm, and some interference with maintaining an erection).  Sexual dysfunction is defined as any of a group of sexual disorders characterized by inhibition either of sexual desire or of the psychophysiological changes that usually characterize sexual response.  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (28TH Ed. 1994) at 515.   Sexual dysfunctions are also listed in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).  While the June 2013 opinion indicates that, if sertraline caused sexual dysfunction, it was transient and stopped when the medication was stopped, the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of the claim, even if the disability resolves prior to adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  Accordingly, resolving any reasonable doubt in favor of the Veteran, the first criteria of the successful service connection claim, a current disability, is satisfied.  

The Veteran has at times, reported erectile dysfunction.  In this regard, the Veteran reported that he had "a difficult time getting an erection" in February 2005 and mentioned erectile dysfunction during the May 2005 VA examination, but indicated during that examination that he still got some erections and, when possible, vaginal penetration with ejaculation could be performed.  During VA treatment in November 2005, the Veteran denied difficulties or change in his sexual function.  The June 2012 VA examiner commented that he could not find records where the diagnosis of erectile dysfunction had been established and reiterated in June 2013 that the progress notes did not include a diagnosis of erectile dysfunction.   A July 2013 VA urology note reflects that the Veteran complained of a crooked penis and indicated that if he had an erection, it pointed to the left.  The pertinent assessment was Peyronie's disease, quite severe.  While the evidence does not reflect diagnosed erectile dysfunction, the Veteran is competent to report erectile difficulties.  See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).  As indicated by the June 2013 VA examiner, sexual dysfunction includes some interference with maintaining an erection.  Therefore, his complaints of erectile difficulties are encompassed in his sexual dysfunction.  

Since sexual dysfunction has been present during the pendency of the claim, what remains to be established is whether the Veteran's sexual dysfunction was caused or aggravated by medication prescribed to treat his service-connected PTSD.  The record reflects that the Veteran has been on psychiatric medications at various points during the pendency of his claim.  A January 2009 VA treatment record reports that he was started on Celexa (citalopram) and trazodone.  A March 2011 VA PTSD examination report indicates that the Veteran was taking sertraline.  

The evidence on whether the Veteran's sexual dysfunction was caused or aggravated by medication prescribed to treat his service-connected PTSD is evenly balanced.  

Although the examiner who provided the January 2011 opinion opined that it was medically impossible to blame the Veteran's loss of libido and erectile power on the use of fluoxetine or citalopram, the June 2011 VA examiner opined that it was at least as likely as not that sertraline did have an effect on the Veteran's libido or sex drive, meaning that, while taking this medication, his libidinal impulses would be lowered or reduced.  

In light of the June 2011 opinion, supporting the claim for secondary service connection, the evidence as to whether the Veteran's sexual dysfunction was caused or aggravated by medication prescribed for his service-connected PTSD is at least evenly balanced.  In cases where the evidence is evenly balanced, the claimant prevails.  See Gilbert, 1 Vet. App. at 53-54.

Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for sexual dysfunction is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Gastrointestinal disability

The Veteran has been diagnosed with gastrointestinal disorders during the pendency of his claim.  In this regard, the diagnosis following VA examination in May 2005 was irritable bowel syndrome (IBS) in the form of ongoing constipation.  March and October 2011 VA treatment records reflect a diagnosis of GERD.  A November 2011 VA treatment record reflects that the Veteran was seen for consultation for chronic diarrhea and post-hospitalization follow-up.  It was noted that random biopsies from colonoscopy showed evidence of microscopic colitis, which was most likely the reason for his increased diarrhea.   In light of the diagnoses of IBS, GERD, and microscopic colitis, the first element of the service connection claim is satisfied.  Hickson, 12 Vet. App. at 253.  

There is also evidence of in-service treatment for gastrointestinal complaints.  Service treatment records reflect that, in November 1970, the Veteran reported one week of diarrhea.  The impression was diarrhea of questionable etiology.  In a December 1970 Report of Medical History, the Veteran denied having or ever having had frequent indigestion or stomach, liver, or intestinal trouble.  In June 1971, the Veteran complained of nausea and stomach cramps.  The impression was viral gastroenteritis.  Another June 1971 record includes an impression of eosinophilia of questionable etiology.  A July 1971 record indicates that the etiology of the increased eosinophils might be parasites, although two stool samples had been negative.  The clinician suggested that "tincture of time" was recommended.  In July 1971, the Veteran complained of a low grade, dull ache around his umbilicus.  He also reported pain with bowel movements and vomiting.  The impression was possible intestinal parasites and non-specific gastroenteritis.   On separation examination in September 1971, clinical evaluation of the mouth and throat and abdomen and viscera was normal.  

Although the Veteran reported in his February 2005 claim for service connection that he had experienced stomach problems for "years" and indicated in his July 2005 NOD and February 2006 VA Form 9 that he had been suffering from IBS for years, he has not specifically asserted a continuity of symptomatology since service.  In any event, service connection for the Veteran's claimed gastrointestinal disability based on chronicity or continuity of symptomatology is not for consideration, as neither IBS, GERD, nor microscopic colitis is a chronic disease listed in 38 C.F.R. § 3.309(a).  See Walker, 708 F.3d at 1338.  Service connection on a direct basis, then, must be established by evidence of a nexus.

Despite the presence of gastrointestinal disorders during the pendency of the claim, and complaints regarding and treatment for gastrointestinal disorders during service, direct service connection is not warranted as the preponderance of the evidence is against a nexus between the current gastrointestinal disorders and service.  

In January 2011, the May 2005 VA examiner indicated that he had been asked whether the Veteran had IBS and/or GERD due to fluoxetine or any other medication prescribed for PTSD and whether his IBS and/or GERD was due to any incident of service.  The examiner indicated that these questions were "extremely difficult to answer" and "would be speculation."  He explained that the Veteran had numerous issues which could "easily play into gastrointestinal complaints."  He reported that he could not find that the Veteran had any irritable bowel complaints due to any specific military service incident, even though he did appear to have some gastroenteritis findings while on active duty (the examiner indicated that these were likely isolated episodes which cleared).  He noted that the record was silent for many years concerning these gastrointestinal complaints, opining that, if his current gastrointestinal complaints were due to service, it was likely that he would have obtained health care over many, many years, which was not reflected in the records.  He opined that it was unlikely that the Veteran's irritable bowel complaints were due to any military service incident and added that, for the reasons indicated earlier, there were no aggravation issues.  He opined that it was very unlikely that the Veteran had reflux disease due to any incident of military service because he had not had care in many years, the examiner could not find a diagnosis of GERD in his problem list, and he could not find any medications taken for GERD being prescribed.  He added that there were no aggravation issues.  

While the January 2011 VA examiner indicated that his responses to the posed questions, including whether the Veteran had IBS and/or GERD was due to any incident of service, would be speculation, he nevertheless opined that it was unlikely that the Veteran's irritable bowel complaints were due to or aggravated by any military service incident and that it was very unlikely that the Veteran had reflux disease due to or aggravated by any incident of military service.  Regardless, the Court has held that an examiner's conclusion that a diagnosis or etiology opinion is not possible without resort to speculation may be relied upon as long as well-supported by the facts and data of the case.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).  

The January 2011 opinion was based on review of the claims file by an examiner who had previously examined the Veteran, and was supported by a rationale-specifically, the Veteran had numerous issues which could "easily play into gastrointestinal complaints" and his gastroenteritis findings during service were likely episodes which had cleared.  To the extent that the VA examiner's opinion was based on the absence of complaints regarding or treatment for gastrointestinal issues in the records for many years after separation from service, the Court has held that the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible.  See Buchanan, 451 F.3d at 1336.  In this case, however, the Veteran's reports do not conflict with the VA examiner's conclusions, as he reported in his February 2005 claim that he had been having stomach problems for "years" and indicated in his July 2005 NOD and February 2006 VA Form 9 that he had been suffering from IBS for years.  During his May 2005 VA examination he reported constipation, off and on, for about a year, with occasional abdominal pain.  During private treatment in October 2011, the Veteran reported having problems with cycles of constipation and diarrhea for over a year.  The first evidence of post-service treatment for gastrointestinal complaints is a June 2002 VA treatment record, reflecting that the Veteran reported that he had stomach aches at times, which he stated were caused by stress.  

The reports of symptoms for years in 2005 and 2006 do not necessarily conflict with the examiner's conclusion that the Veteran did not experience gastrointestinal symptoms requiring healthcare for many years after separation from service (in 1971).  While the VA examiner did not specifically address the Veteran's 2005 and 2006 reports of symptoms for years, there is no requirement that a medical examiner comment on every favorable piece of evidence in a claims file.  Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012); see Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners).  Examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion.  Monzingo, 26 Vet. App. at 105.  Thus, the examiner's failure to specifically discuss the Veteran's 2005 and 2006 assertions of stomach problems/IBS for years does not render his opinion inadequate.   

To the extent that the VA examiner noted that he could not find a diagnosis of GERD in the Veteran's problem list, he nevertheless opined that it was very unlikely that the Veteran had reflux disease due to any incident of military service.  During the VA examination performed by the same examiner in May 2005, the Veteran had described occasional heartburn.  For all the foregoing reasons, the Board finds that, to the extent the January 2011 opinion addresses direct service connection, it is adequate.  See Monzingo, supra.    

The January 2011 opinion is highly probative regarding the question of whether the Veteran's IBS/GERD are related to service.  See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); see also Guerrieri v. Brown, 4 Vet. App. 467, 470- 71 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board).  The examiner had previously examined the Veteran and formed his opinion after review of the claims file.  Significantly, this examiner, who acknowledged the Veteran's in-service gastroenteritis, concluded that that it was unlikely that the Veteran's irritable bowel complaints were due to any military service incident and it was very unlikely that the Veteran had reflux disease due to any incident of military service.  

Thus, the only competent, probative (persuasive) opinion on the question of whether the Veteran's IBS and GERD are directly related to service weighs against the claim for service connection.  While the Veteran was subsequently diagnosed with microscopic colitis, there is no competent, probative evidence indicating a link between this diagnosis and service.  The Veteran has not presented or identified any existing, contrary medical opinion that, in fact, supports the claim for service connection on a direct basis.  

Additionally, the preponderance of the evidence is against the claim for secondary service connection.  The Veteran has asserted that his gastrointestinal disability is related to his service-connected PTSD, to include medication prescribed to treat that disability.  

The Veteran has submitted various articles in support of his claim, including an internet article regarding PTSD which indicates that physical symptoms, such as gastrointestinal distress, are common in people with PTSD.  A National Center for PTSD Fact Sheet regarding PTSD and physical health submitted by the Veteran indicates that a growing body of literature had found a link between PTSD and physical health.  This sheet reports that there was some evidence to indicate that PTSD was related to gastrointestinal disorders.  It was noted that the gastrointestinal system had been shown to be associated with PTSD, but the relationship of PTSD to this system had not been as extensively researched as the relationship between PTSD and the cardiovascular system.  The Veteran also submitted May 2007 testimony before the House Committee on Oversight and Government Reform in which the Director of the National Institute of Mental Health indicated that significant health problems, including gastrointestinal problems, were more likely to occur in individuals with PTSD than those without the disorder.  

These articles and studies, however, are insufficient to establish a nexus between the Veteran's current gastrointestinal disorders and service, because they refer to gastrointestinal disorders generally, rather than the veteran's specific conditions.  These articles and studies, therefore, are simply too speculative to grant service connection.  See Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a medical nexus).   
 
The May 2005 VA examiner opined that it was less likely than not that the Veteran's gastrointestinal condition was due to his service-connected PTSD because it was an intermittent issue and the Veteran frequently blamed his times of abnormal bowel movements on his diet.  He added that, according to reviews of current medical literature, PTSD did not specifically cause changes in the gastrointestinal tract.  A May 2005 VA PTSD examiner commented that PTSD had not been shown to cause gastrointestinal conditions or GERD.  The Court found the May 2005 opinion addressing secondary service connection to be unclear and unsupported and, therefore, inadequate.  See Memorandum Decision, at p. 5.   

Accordingly, a supplemental medical opinion was obtained in January 2011.  As discussed above, the May 2005 VA examiner indicated that he had been asked whether the Veteran had IBS and/or GERD due to fluoxetine or any other medication prescribed for PTSD and whether his IBS and/or GERD was due to any incident of service.  The examiner indicated that these questions were "extremely difficult to answer" and "would be speculation."  He explained that the Veteran had numerous health issues which could "easily play into gastrointestinal complaints."  The examiner concluded that it would be speculation to state whether the Veteran's irritable bowel complaints were due to fluoxetine or any other medication prescribed for PTSD because he had so many numerous and intertwined medical comorbidities.  He added that he could not find that the fluoxetine or other medications prescribed for PTSD specifically caused reflux disease and added that there were no aggravation issues.  
A November 2011 VA treatment record reflects that the Veteran was seen for consultation for chronic diarrhea and post-hospitalization follow-up.  It was noted that random biopsies from colonoscopy showed evidence of microscopic colitis, which was most likely the reason for his increased diarrhea.  The physician noted that the Veteran had been on multiple medications, one of which was sertraline, which had been associated with microscopic colitis.  The Veteran was instructed to discuss possible cessation or change of sertraline to some other antidepressant medication because this had been associated with microscopic colitis.   

The examiner who provided the January 2011 opinion reviewed the claims file in June 2012, acknowledged review of the articles submitted by the Veteran, and conducted his own search of the current literature.  The examiner indicated that the articles submitted by the Veteran did not provide causation; rather, they merely stated possible associations between gastrointestinal disorders and PTSD.  The examiner emphasized that this was not specific causation proven by repetitive, well-researched studies over time, but were merely suggestions or associations.  He added that the articles themselves indicated that they were suggestions.  The examiner noted that the Veteran had been hospitalized for gastrointestinal symptoms and it was determined that he had microscopic colitis which was likely causing his symptomatology.  He indicated that whether PTSD causes microscopic colitis is essentially unknown.  The examiner noted that the VA gastrointestinal specialist did examine the Veteran and noted that there was a possibility of sertraline "playing into" his condition, but the VA examiner stated that any further comment on this point would be essentially unknown and resorting to speculation because of so many compounding and intertwining medical issues that can cause the type of gastrointestinal complaints experienced by the Veteran.  

Based on the above, the examiner indicated that he could not find that the Veteran's gastrointestinal/esophageal disability was due to PTSD, and any commentary as to whether it was aggravated would be complete speculation.  He indicated that the reasoning was as previously noted, and reiterated that the esophageal/ gastrointestinal disability was not likely directly secondary to PTSD, for the reasons and bases as noted.  In his June 2012 opinion, the VA examiner provided a medical resource regarding the causes of microscopic colitis, indicating that the cause was unknown.  This article indicated that no medications had been proven to cause microscopic colitis, although several, including sertraline, had been linked to it.  

The January 2011 opinion is highly probative of whether the Veteran has IBS or GERD which was caused or aggravated by medication prescribed to treat his service-connected PTSD and the June 2012 opinion is highly probative of the question of whether the Veteran has a current gastrointestinal disability which was caused or aggravated by his service-connected PTSD and whether his microscopic colitis is caused or aggravated by medication prescribed to treat PTSD.  See Hayes, 5 Vet. App. at 69-70; see also Guerrieri, 4 Vet. App. at 470- 71.  These opinions, provided by an examiner who had previously examined the Veteran, were based on review of the claims file and, in the case of the June 2012 opinion, the articles submitted by the Veteran in support of his claim, as well as the examiner's own review of current literature.    

Regarding the relationship between the Veteran's current gastrointestinal disability and medication prescribed to treat service-connected PTSD, the examiner opined in January 2011 that it would be speculation to state whether the Veteran's irritable bowel complaints were due to fluoxetine or any other medication prescribed for PTSD; however, this conclusion was based on a clearly stated rationale, specifically, the Veteran had so many numerous and intertwined medical comorbidities.  Therefore, this opinion may be relied upon.  See Jones, supra.  This examiner added that there were no aggravation issues in regard to his analysis of the Veteran's claimed IBS and that he could not find that the fluoxetine or other medications prescribed for PTSD specifically caused reflux disease, again adding that there were no aggravation issues.  While the examiner did not provide a clear rationale for these opinions, he had stated earlier that the posed questions were extremely difficult to answer and noted that the Veteran had numerous issues that could play into his gastrointestinal complaints.  Accordingly, reading the opinion as a whole, the opinion regarding the relationship between the Veteran's claimed IBS and GERD and medication prescribed to treat service-connected PTSD is supported by an explanation.  See Monzingo, 26 Vet. App. at 105.  

In June 2012, the same VA examiner noted that the VA gastrointestinal specialist did examine the Veteran and noted that there was a possibility of sertraline "playing into" his microscopic colitis, but the VA examiner stated that any further comment on this point would be essentially unknown and resorting to speculation because of so many compounding and intertwining medical issues that can cause the type of gastrointestinal complaints experienced by the Veteran.  He also included an article indicating that no medications had been proven to cause microscopic colitis, although several, including sertraline, had been linked to it.  Because the conclusion that any further comment regarding the relationship between the Veteran's sertraline use and microscopic colitis would be resorting to speculation was based on a rationale, specifically, there were so many compounding and intertwining medical issues that can cause the type of gastrointestinal complaints experienced by the Veteran, and was supported by the article noting that no medications had been proven to cause microscopic colitis, it may be relied on.  See Jones, supra.  

Regarding the relationship between the Veteran's claimed gastrointestinal disability and his service-connected PTSD, the June 2012 examiner opined that he could not find that the Veteran's gastrointestinal/esophageal disability was due to PTSD.  He supported this opinion by noting that whether PTSD causes microscopic colitis is essentially unknown, and included a medical article in support of this point.  In support of his conclusion, he also indicated that the articles submitted by the Veteran did not provide causation; rather, they merely stated possible associations between gastrointestinal disorders and PTSD and emphasized that this was not specific causation proven by repetitive, well-researched studies over time, but were merely suggestions or associations.  While the examiner stated that any commentary as to whether the Veteran's gastrointestinal/esophageal disability was aggravated by PTSD would be complete speculation, he indicated the reasoning for this conclusion, that is, the articles submitted by the Veteran merely stated possible associations between gastrointestinal disorders and PTSD.  Because a rationale was provided, this opinion may be relied on.  See Jones, supra.  

Thus, the only competent, probative (persuasive) opinions on the question of whether the Veteran's gastrointestinal disability is caused or aggravated by his service-connected PTSD, to include medication prescribed to treat that disability, weigh against the claim for service connection.  The Veteran has not presented or identified any existing, contrary medical opinion that, in fact, supports the claim for service connection on a secondary basis.  

In addition to the medical evidence, the Board has considered the Veteran's contention that he has a current gastrointestinal disability related to service or his service-connected PTSD, to include medications prescribed to treat that disability.  Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions, such as concerning a form of cancer.  See also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (discussing this axiom in a claim for rheumatic fever); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

The Veteran does not have or claim to have any specialized knowledge in the field of medicine.  The Board therefore finds that the etiology of his current gastrointestinal disability is beyond his competence.  Moreover, the question of etiology of this condition is complex in nature.   

Therefore, to the extent he has asserted that he has a gastrointestinal disability related to service or his service-connected PTSD, the Board finds such assertions to be of little probative value, especially in relation to the January 2011 and June 2012 VA examiner's opinions, as the Veteran is not competent to opine on this complex medical question.  His contentions regarding etiology of his current gastrointestinal disability are outweighed by the medical evidence of record, specifically the January 2011 and June 2012 VA examiner's opinions.

For all the foregoing reasons, the claim for service connection for a gastrointestinal disability is denied.  In arriving at this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Analysis - Increased Rating

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013).  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.  Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.

The veteran's entire history is to be considered when making disability evaluations.  38 C.F.R. § 4.1.  Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, 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.  Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).   

The Veteran was initially granted service-connection for PTSD, evaluated as 50 percent disabling, in a December 2004 rating decision.  The Veteran perfected an appeal of the assignment of this initial rating and, in an April 2006 decision, the Board denied an initial rating in excess of 50 percent.  The Veteran filed his current claim for an increased rating in March 2009.  "The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). 

The Veteran's PTSD is evaluated pursuant to Diagnostic Code 9411.  The criteria for rating psychiatric disabilities other than eating disorders are set forth in a general rating formula.  See 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders.

Under the formula, a 50 percent rating is assigned 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; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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 inability to establish and maintain effective relationships.

A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name.  38 C.F.R. § 4.130, Diagnostic Code 9411.  

Ratings are assigned according to the manifestation of particular symptoms. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association : Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV).

Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, GAF scores must be weighed alongside all additional relevant evidence. See, e.g., Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet App. 429, 433 (1995) (it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others).

Considering the pertinent evidence of record, the Board finds that a rating in excess of 50 percent for PTSD is not warranted.

During VA treatment in January 2009, the Veteran reported being depressed for 41 years and stated that he did not get any sleep.  He described experiencing flashbacks and nightmares and indicated that he wanted to hurt men who had threatened his life during service, though he could not remember their names.  He indicated that he was angry, had lost interest in many things, slept a lot, had a poor appetite, felt very guilty, and reported that his concentration was "gone."  He stated that his energy was "ok" when he was awake.  The Veteran indicated that he felt paranoid all the time and sometimes talked to himself, but denied hallucinations.  He described triggered panic attacks and an inability to remember things.  He denied excessive worry.  The Veteran denied hopelessness and stated that his last suicidal ideation was months earlier.  He denied a history of violence or assault and denied homicidal ideation other than the reference to wanting to hurt the non-specific men mentioned earlier.  

On mental status examination, speech was fluent and spontaneous with normal rate and volume.  Mood was anxious and affect was congruent with mood.  The Veteran was tearful.  There was occasional derailment of thought process.  Memory and cognition were grossly intact and the Veteran was oriented to person, place, time, and situation.  Insight and judgment were fair.  The psychiatrist indicated that the Veteran was divorced and lived with his son and reported numerous PTSD symptoms which severely impacted his function and also reported symptoms consistent with major depressive disorder.  The psychiatrist indicated that the Veteran had little to no support beyond his 13 year old son.  The Axis I diagnoses included PTSD and major depressive disorder, recurrent, moderate.  A GAF score of 51 was assigned.  

During treatment later in January 2009, the Veteran reported that he was sleeping better and his mood was better since starting citalopram and trazodone.  

In February 2009, a VA social worker called the Veteran to inquire regarding a mental health counseling appointment, but the Veteran reported that he was calming down and was sleeping better since his medicine was changed.  He indicated that he thought he was better.  

An April 2009 VA PTSD examination indicates that the Veteran exhibited major depressive disorder, recurrent, moderate to severe in impairment.  In discussing his non-PTSD symptoms, the Veteran described severe impairment in appetite, excessive sleep, depressed mood and affect, and lack of energy.  He reported that his sex drive was poor.  The Veteran stated that he had no ambition to partake in activities or hobbies and had no interest in other recreational activities.  The examiner indicated that the Veteran's major depressive disorder was secondary to his non-service connected spinal condition, related to railroad disability.  

The Veteran indicated that he had no contact with his siblings or father stating, "it's just me and my son."  He stated that he took his son skateboarding.  He reported a history of violence/assaultiveness, but denied episodes of violence.    

On examination, the Veteran was restless and tense and his attitude was irritable and guarded.  Speech was clear.  Affect was restricted.  Mood was anxious.  There was circumstantiality of thought process and thought content was unremarkable.  There were no delusions and, as regards judgment, the examiner noted that the Veteran understood the outcome of his behavior.  As regards insight, the examiner noted that the Veteran understood that he had a problem.  There was no evidence of hallucinations, inappropriate behavior, obsessive/ritualistic behavior, panic attacks, and suicidal or homicidal thoughts.  The Veteran had fair impulse control.  The Veteran was able to maintain minimum personal hygiene and memory was normal.  

The examiner discussed the frequency and severity of the Veteran's PTSD symptoms and commented that he had daily intrusive thoughts and images of combat and experienced nightmares and flashbacks.  The Veteran reported that he slept too much and had little energy.  He described moderate anger and reported that his hypervigilance, exaggerated startle response, and concentration impairment remained the same.  Psychometric testing indicated moderate PTSD symptoms and the examiner found these test results valid.  The Axis I diagnoses included major depressive disorder and PTSD.  A GAF score of 53 was assigned.  A separate GAF score of 48 for major depression was assigned.  The examiner indicated that the Veteran's PTSD did not result in total occupational and social impairment or deficiencies in the areas of judgment, thinking, family relations, work, mood, or school.  Rather, he indicated that there was reduced reliability and productivity due to PTSD symptoms, as these symptoms would lead to moderate impairments in productivity and reliability.  

During VA treatment later in April 2009, the Veteran displayed appropriate insight and judgment.  He was oriented with appropriate mood and affect.  

An April 2009 VA mental health treatment record from a week after the VA examination indicates that the Veteran reported disliked crowds but had been "trying to get out and do something."  His mood was depressed and he indicated that he felt hopeless about things getting better, but denied recent thoughts of suicide.  On mental status examination the Veteran was disheveled with poor dentition.  Speech was fluent and spontaneous with normal rate and volume.  Mood was anxious and affect was congruent with mood.  The Veteran was tearful.  There was occasional derailment of thought process.  Memory and cognition were grossly intact and the Veteran was oriented to person, place, time, and situation.  Insight and judgment were fair.  The psychiatrist indicated that the Veteran reported ongoing PTSD and depressive symptoms which severely impacted his function, with little or no improvement with the addition of Celexa and trazodone.  She again indicated that he had little to no support beyond his 13 year old son.  She adjusted his medication dosages.  

In July 2009, the Veteran reported to his VA psychiatrist that he was getting out more and his mood was better and he was happier.  He stated that his sleep was good, his medications were working well, and he had no hopelessness or recent suicidal ideation.  

In October 2009, the Veteran reported to his VA primary care physician that people around him had noticed his improved mood.  He indicated that he still had flashbacks and his mood could still be better.  

During VA treatment in March 2011, the Veteran was evaluated for PTSD.  He reported ongoing feelings of depression and anxiety.  He described social isolation and feeling withdrawn and reported avoiding crowds and groups of people.  He described poor sleep and nightmares.  On mental status examination there was mild psychomotor agitation.  Speech was fluent and spontaneous with slow rate and normal volume.  Mood was mildly depressed and anxious.  Affect was flat and congruent with mood.  There was no suicidal ideation or homicidal ideation.  There was no paranoia, delusions, or hallucinations.  Thought processes were linear and goal-directed and memory and cognition were grossly intact.  Insight and judgment were fair.  The assessment was PTSD.  The Veteran's medications were changed, and he was started on sertraline and mirtazapine.  During treatment later that month, the Veteran reported that he usually stayed home and had sleep difficulties.  He reported sleeping until around noon after taking his son to school.  He reported talking with his sons in California weekly.  He indicated that his 15 year old son lived with him.  He reported shopping in the late evening to avoid crowds.  He indicated that he enjoyed riding his motorcycle and went to Sturgis, but usually only stayed for one or two days because of the crowds.  He added that he enjoyed fishing.  On mental status examination there was no psychomotor retardation or agitation.  Speech was fluent and spontaneous with fast rate and normal volume.  Mood was euthymic and affect was congruent with mood and in a normal range.  There was no suicidal ideation or homicidal ideation.  There was no paranoia, nor were there delusions or hallucinations.  Thought processes were linear and goal-directed and memory and cognition were grossly intact.  The Veteran was oriented to person, place, time, and situation.  Insight was fair and judgment was moderate.  The Axis I diagnosis was PTSD.  

The Veteran underwent another VA PTSD examination in March 2011.  In describing his non-PTSD symptoms he indicated that he had "just a bit more energy" but was not excited about anything.  He reported that his mood was agitated and depressed, he had poor sleep, and lack of sex drive.  He expressed feelings of apathy about his future and feelings of worthlessness and excessive guilt.  He denied being suicidal.  The Veteran stated that he liked his hobbies, but they no longer interested him; rather, the only things that excited him were riding his bicycle and fishing.  He stated that he felt he had a severe level of psychomotor agitation that could vary with psychomotor retardation.  The examiner commented that the major depressive disorder was severe, without psychosis.  

The Veteran reported that he saw his father about once a week and helped his father due to his medical issues.  He added that he did not like to go out and "be around people."  He reported watching "way too much" television and stated that he might go to the park or go to the tavern to play pool until it got crowded. 

On examination, the Veteran was tense and his speech was clear.  Affect was restricted and mood was anxious.  Orientation was intact to person, place, and time.  Thought process and content were unremarkable.  There were no delusions.  Regarding judgment, the Veteran understood the outcome of his behavior.  Regarding insight, he partially understood that he had a problem.  There was no evidence of sleep impairment, hallucinations, inappropriate behavior, obsessive/ritualistic behavior, panic attacks, or suicidal or homicidal thoughts.  Impulse control was good and there were no episodes of violence.  The Veteran was able to maintain minimum personal hygiene and there were no problems with activities of daily living.  Memory was normal.  

Regarding his PTSD symptoms, the examiner noted that the Veteran experienced daily intrusive thoughts, images, or memories of trauma; had nightmares nearly every night; experienced daily internal or external reminders; had moderately severe physiological reactions; had moderately severe difficulty in remembering important aspects of the trauma; severe startle response; severe hypervigilance; and difficulty staying asleep.  The degree of severity of PTSD symptoms based on psychometric data was severe and the examiner indicated that these psychological test results were valid.   The Axis I diagnoses were PTSD and major depressive disorder, severe, without psychotic features.  A GAF score of 53 was assigned for PTSD.  A GAF score of 48 for major depressive disorder not due to service was 48.  The examiner noted that the symptom reporting of PTSD did not exactly correlate with the exact amount of impairment ratings for social, occupational, or other areas of functioning; rather, the entire case was examined in totality, as compared to the subjective symptom reporting on CAPS (Clinician-Administered PTSD Scale) and PCL-M (PTSD Checklist Military).  

The examiner indicated that the Veteran's PTSD did not result in total occupational and social impairment or deficiencies in the areas of judgment, thinking, family relations, work, mood, or school.  Rather, he indicated that there was reduced reliability and productivity due to PTSD symptoms, as giving the Veteran the benefit of the doubt, his PTSD would equate with impairment in productivity and reliability.  

During VA treatment in April 2011, the Veteran reported that he felt less irritable and he and his son had a better relationship and were getting along.  On mental status examination there was no psychomotor retardation or agitation.  Speech was fluent and spontaneous with fast rate and normal volume.  Mood was euthymic and affect was congruent with mood and in a normal range.  There was no suicidal ideation or homicidal ideation.  There was no paranoia, nor were there delusions or hallucinations.  Thought processes were linear and goal-directed and memory and cognition were grossly intact.  The Veteran was oriented to person, place, time, and situation.  Insight was fair and judgment was moderate.  The Axis I diagnosis was PTSD.  

During treatment the following day, the Veteran indicated that his feeling of depression was improved and he had more energy and motivation and had tilled his garden.  On mental status examination there was mild psychomotor agitation.  Speech was fluent and spontaneous with slow rate and normal volume.  Mood was mildly depressed and anxious and affect was congruent with mood and flat.  There was no suicidal ideation or homicidal ideation.  There was no paranoia, nor were there delusions or hallucinations.  Thought processes were linear and goal-directed and memory and cognition were grossly intact.  The Veteran was oriented to person, place, time, and situation.  Insight and judgment were fair.  The Axis I diagnosis was PTSD.  During VA treatment in May 2011, the Veteran reported that his depression and moodiness were improved and he had more energy.  He indicated that he was sleeping well and was not having nightmares.  Mental status examination was the same as reported on the previous date of treatment in April 2011.  Numerous VA treatment records dated between June 2010 and August 2012 reflect that the Veteran had normal mood, judgment, and affect.  

The pertinent medical evidence reflects diagnoses of and treatment for PTSD as well as major depressive disorder.  Where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). 

In March 2012, the Board referred to the AOJ a claim for service connection for an acquired psychiatric disorder, other than PTSD, claimed as a depressive disorder.  The Veteran's attorney submitted an article indicating that, according to the majority of authors, the co-occurrence of PTSD and major depressive disorder was high although differential diagnosis was sometimes difficult.  This article references a study which found that, for 78 percent of subjects presenting a comorbidity of PTSD/major depressive disorder, the mood disorder was secondary to PTSD.  In August 2011, the Veteran's attorney argued that it was virtually impossible to separate the effects of one psychiatric condition from another, citing resources indicating that the practice of assigning separate GAF or PAF (partial assessment of functioning) scores to different mental health conditions presented clinical and analytical problems and that clinicians performing VA examinations had reported that it was difficult and speculative to try to separate the symptoms of PTSD from those of other disorders, such as major depression, as the clinicians were trained to parse diagnoses, not symptoms, and there was no precedence for parsing symptoms.  The attorney cited these resources for the premise that attempting to separately apportion symptoms and functional problems to each psychiatric disorder, as if they are mutually exclusive, exceeds both the intended purpose and the capability of the GAF scale, which is a "global" index of functioning.  

In June 2012, a VA examiner reviewed the claims file and opined that the history and course of the Veteran's PTSD and major depressive disorder indicated that they were separate and independent from each other, as the PTSD was related to military service and the major depressive disorder was more likely than not related to a post-military back injury.  He added that the records indicated that the depressive disorder was not secondary to or aggravated by the PTSD.  The examiner addressed the comorbidity of PTSD and major depression in research articles and commented that literature often pointed out "association", "co-occurrence", and "comorbidity" indicating that two conditions occurred at the same time, but this did not prove causation.  

Despite the arguments of the Veteran's attorney that it is virtually impossible to separate the effects of one psychiatric condition from another, the June 2012 VA examiner nevertheless reviewed the claims file, examined the Veteran, addressed the comorbidity of PTSD and major depression in research articles, and opined that his PTSD and major depressive disorder were separate and independent from each other.  This opinion, which was supported by a comprehensive explanation that the PTSD was related to military service and the major depressive disorder was more likely than not related to a post-military back injury and the references in the literature to "association", "co-occurrence", and "comorbidity" indicated that two conditions occurred at the same time, but did not prove causation.  In both the April 2009 and the March 2011 VA examination reports, the examiner described certain reported symptoms as being non-PTSD psychiatric symptoms and assigned separate GAF scores for the service-connected PTSD and major depressive disorder.   Thus, this is a case in which it is possible to distinguish the effects of the service-connected and nonservice-connected conditions.  

The Veteran's PTSD has been manifested by complaints of depression, sleep impairment, flashbacks, nightmares, anger, loss of interest, lack of energy, poor appetite, feelings of guilt, impaired concentration, feelings of paranoia, triggered panic attacks, difficulty remembering things, hypervigilance, exaggerated startle response, social isolation, avoidance of crowds, and intrusive thoughts.  Examinations have revealed impairment in mood and affect, occasional derailment of thought process, irritable and guarded attitude, psychomotor agitation, moderately severe physiological reactions, and speech which is, at times, slow or fast in rate.  

These symptoms are similar to many of those contemplated by the currently assigned 50 percent rating, or the even lower 30 percent rating.  In particular, the General Rating Formula lists, among other symptoms, panic attacks more than once a week, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, among the types of symptoms associated with a 50 percent rating.  38 C.F.R. § 4.130.  The General Rating Formula lists, among other symptoms, depressed mood, anxiety, mild memory loss, and chronic sleep impairment, among the types of symptoms associated with a 30 percent rating.  These are not unlike the symptoms associated with the Veteran's PTSD.  

The criteria for a 70 percent rating contemplate deficiencies in "most areas," including work, school, family relations, judgment, thinking, or mood; however, such deficiencies must be "due to" the symptoms listed for that rating level, "or others or others of similar severity, frequency, and duration."  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013).  Thus, while the evidence reflects that, at various times, the Veteran has experienced mood impairment as a result of his service-connected PTSD, such impairment does not demonstrate that his PTSD more nearly approximates the level of occupational and social impairment consistent with a 70 percent rating.  Indeed, the criteria for 30 and 50 percent ratings also contemplate some form of mood impairment.   The focus is on the frequency, severity, and duration of the impairment.  Id.  Here, despite mood impairment at various times during the pendency of the claim, the Veteran has, at other times, reported improved mood.  Mood was euthymic during VA treatment in March and April 2011 and was described as normal during VA treatment on numerous dates between June 2010 and August 2012.   Accordingly, the Veteran's mood impairment is adequately contemplated in the 50 percent rating presently assigned.  

Additionally, while the Veteran has reported social isolation; reported during VA treatment in April 2009 that he had no contact with his siblings or father; and the VA psychiatrist who evaluated the Veteran in January and April 2009 reported that he had little to no support beyond his 13 year old son; the Veteran has lived with his son during the pendency of his claim and, in March 2011, he indicated that he took his 15 year old son to school and spoke with his sons in California weekly.  During VA examination that month, the Veteran reported that he saw his father, whom he helped due to medical issues, about once a week.  In April 2011, he indicated that he and his son had a better relationship and were getting along.  Thus, while some impairment in family relations has been shown during the pendency of the claim, this appears to have improved, at least since March 2011.  Moreover, a 70 percent rating requires occupational and social impairment with deficiencies in most areas, which is not demonstrated.  The Veteran is not working or in school and, despite occasional derailment of thought process noted during VA treatment in January and April 2009, circumstantiality of thought process on VA examination in April 2009, and intrusive thoughts associated with the service-connected PTSD, thought content has been consistently described as unremarkable.  Thought processes were described as linear and goal-directed in March and April 2011 and unremarkable on VA examination in March 2011.  Judgment has been described as no worse than fair or moderate and numerous VA treatment records dated between June 2010 and August 2012 reflect that the Veteran had normal judgment.  

Given that the rating is to be assigned, not solely on the presence or absence of particular symptoms, but rather, the frequency, severity, and duration of such symptoms, the Board finds that the Veteran's level of impairment in family relations and thinking which has been present during the pendency of his claim is more closely analogous to that contemplated by his current 50 percent rating.  Vazquez-Claudio, 713 F.3d at 117.   

During VA treatment in January 2009, the Veteran reported that his last suicidal ideation had been months earlier.  To the extent that this implies suicidal ideation within one year prior to the March 2009 claim for an increased rating, subsequent pertinent treatment records document the Veteran's repeated denials of suicidal ideation, as evidenced by his denial of recent thoughts of suicide during VA treatment in April 2009 and findings of no suicidal ideation/thoughts on VA examination in April 2009 and March 2011 and during VA treatment in July 2009, March and April 2011.  

Because the focus is the frequency, severity, and duration of symptoms, not the presence or absence of particular symptoms listed in the rating criteria, the single reference to suicidal ideation months earlier in January 2009, considered in the context of the numerous subsequent denials of suicidal ideation/thoughts, does not demonstrate that the Veteran's PTSD has more nearly approximated the level of social and occupational impairment contemplated in the criteria for a 70 percent rating at any time pertinent to the present claim.  

The Veteran's PTSD symptoms cause occupational and social impairment to at least some degree; however, given the frequency, nature, and duration of those symptoms, the Board finds that they result in no more than occupational and social impairment with reduced reliability and productivity and do not more closely approximate the types of symptoms contemplated by a 70 percent rating.  Although the psychiatrist who evaluated the Veteran in January 2009 indicated that the Veteran reported numerous PTSD symptoms which severely impacted his function, and, after examining him in April 2009, indicated that the Veteran reported ongoing PTSD and depressive symptoms which severely impacted his function, the Veteran indicated in January and February 2009 that he was doing better.  In July 2009, the Veteran reported to his VA psychiatrist that he was getting out more and his mood was better and he was happier.  He stated that his sleep was good, his medications were working well, and he had no hopelessness or recent suicidal ideation.  In March 2011, the Veteran indicated that he took his 15 year old son who lived with him to school and spoke with his sons in California weekly.  He indicated that he enjoyed riding his motorcycle and fishing and, while he usually only stayed for one or two days because of the crowds, he reported going to Sturgis.  During VA examination that month, the Veteran reported that he saw his father, whom he helped due to medical issues, about once a week and indicated that he went to the park or to the tavern to play pool until it got crowded.  

While the degree of severity of PTSD symptoms based on psychometric data collected during the March 2011 VA examination was severe, the examiner noted that the symptom reporting of PTSD did not exactly correlate with the exact amount of impairment ratings for social, occupational, or other areas of functioning; rather, the entire case was examined in totality, as compared to the subjective symptom reporting on CAPS and PCL-M.  Significantly, this examiner indicated in both April 2009 and March 2011, after examining the Veteran, that the Veteran's PTSD did not result in total occupational and social impairment or deficiencies in the areas of judgment, thinking, family relations, work, mood, or school.  Rather, in April 2009 he indicated that there was reduced reliability and productivity due to PTSD symptoms, as these symptoms would lead to moderate impairments in productivity and reliability.  In March 2011 he indicated that there was reduced reliability and productivity due to PTSD symptoms, as giving the Veteran the benefit of the doubt, his PTSD would equate with impairment in productivity and reliability.  

The Veteran is competent to report what he observes or experiences as a layperson; for example, he is competent to report that he experiences symptoms such as depression, sleep impairment, flashbacks, nightmares, anger, loss of interest, lack of energy, poor appetite, feelings of guilt, impaired concentration, feelings of paranoia, difficulty remembering things, hypervigilance, exaggerated startle response, social isolation, avoidance of crowds, and intrusive thoughts. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran to be credible in his reports of the symptoms he experiences. However, in determining the actual degree of disability, the medical evidence prepared by a skilled neutral professional is more probative evidence and thus the examination findings are more probative of the degree of mental impairment.

Given the above, and the frequency, nature, and duration of the Veteran's PTSD symptoms, the Board finds that they result in no more than occupational and social impairment with reduced reliability and productivity.  They do not more closely approximate the types of symptoms contemplated by a 70 percent rating, and therefore, a 70 percent rating is not warranted.  See Vazquez-Claudio, 713 F.3d at 114 (holding that a veteran "may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration").  

This conclusion is further supported by the GAF scores assigned for PTSD during the pendency of the claim, ranging from 51 to 53.  GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  Thus, these GAF scores are consistent with the 50 percent rating presently assigned.  While the Veteran has been assigned lower GAF scores for his nonservice-connected major depressive disorder, because these are two distinguishable psychiatric disorders, such scores may not serve as the basis for an increased rating for his service-connected PTSD.  Moreover, a GAF score is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the veteran's disorder, which provide the primary basis for the rating assigned.  See 38 C.F.R. § 4.126(a).  As discussed, the evidence reflects that the Veteran's overall disability picture most closely approximates a 50 percent rating.  

The above determinations are based upon consideration of pertinent provisions of VA's rating schedule.  The Veteran's PTSD has not been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321.

The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c).  Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required.  See Thun v. Peake, 22 Vet. App. 111 (2008); VAOGCPREC 6-96 (Aug. 16, 1996).  

If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. 
§ 3.321(b)(1).  If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Thun, supra.

In this case, the Board finds that the schedular criteria are adequate to rate the service-connected PTSD.  The rating schedule contemplates the described symptomatology of disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and occupational and social impairment.  Moreover, the Court has held that the General Rating Formula also contemplates symptoms not explicitly mentioned therein.  Mauerhan, supra. Significantly, there is no medical indication or argument that the applicable criteria are inadequate to rate the disability.  The symptoms of the Veteran's service-connected PTSD are adequately compensated in the disability rating assigned and he does not have symptoms associated with PTSD that have been left uncompensated or unaccounted for the by the assignment of the schedular rating.  While the Veteran has reported that he has sexual dysfunction and a gastrointestinal disability related to medication prescribed to treat his service-connected PTSD, each of these claims has been separately adjudicated above.  The threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met.  See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
  
For all the foregoing reasons, the preponderance of the evidence is against assignment of a rating greater than 50 percent.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.

Analysis - TDIU

The Veteran contends that he is entitled to a TDIU since his service-connected disabilities render him unemployable.  A TDIU requires impairment so severe that it is impossible for the average person to obtain and maintain a substantially gainful occupation.  Consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or impairment caused by disabilities that are not service connected.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2013).  In making this determination, the critical inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

If there is only one service-connected disability, it must be ratable at 60 percent or more.  If there are two or more service-connected disabilities, at least one must be ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.  Id.

A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a).

Considering the pertinent evidence, and resolving all reasonable doubt in the Veteran's favor, the Board finds that a TDIU is warranted from August 24, 2011.  

The Veteran is service-connected for ischemic heart disease (rated 10 percent disabling from April 27, 2010 and 60 percent disabling from August 24, 2011); PTSD (rated 50 percent disabling from September 13, 2004); tinnitus (rated 10 percent disabling from February 17, 2005); and bilateral hearing loss (rated 0 percent disabling from February 17, 2005).  His combined disability rating was 50 percent from September 13, 2004, 60 percent from February 17, 2005, and has been 80 percent since August 24, 2011.  Therefore, as of August 24, 2011, the schedular criteria for a TDIU have been met.  38 C.F.R. § 4.16(a).  

During an October 2004 VA examination, the Veteran reported that he received his GED and has a college degree in welding and worked as a welder for a railroad for 13 years (from 1975 to 1988), with additional work as a carpenter and in construction.  In his February 2005 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, the Veteran reported that he had worked as a welder from 1999 to November 2003.  He indicated that he had a GED and four years of college education.  During a May 2005 VA audiological examination, the Veteran reported that he had performed mostly welding work as a civilian, but had also worked in construction and gardening.  During a March 2011 VA PTSD examination, the Veteran reported that he had studied horticulture, welding, and arts during college.  

In August 2011, a VA examiner opined that the Veteran's ischemic heart disease impacted his ability to work in that he got dizzy and had chest discomfort with exertion.  In October 2011, the VA examiner provided an addendum opinion regarding whether the Veteran's service-connected disabilities rendered him unable to secure and maintain gainful employment and how they impacted physical and sedentary employment.  The examiner referred to other examinations regarding the impact of the service-connected PTSD, hearing loss, and tinnitus.  The examiner opined that the Veteran's heart disease would not allow him to perform physical or exertional type work, due to the extent of his heart disease and medication taken for that; however, he could likely perform sedentary work, because this would not be exertional and would not cause any symptoms.  Therefore, the examiner opined that it was at least as likely as not that the Veteran's heart disease would interfere with his ability to work, especially if he had to do anything strenuous or exertional, but sedentary activity could likely be performed.  In March 2012, the Veteran reported that he was unable to work because of his service-connected heart condition "due to shortness of breath, fatigue, etc."  

In June 2012, a VA examiner reviewed the claims file and opined that the information available did not support that PTSD and major depressive disorder, together, would not cause the Veteran to be unemployable.  In light of the confusing language, the June 2012 VA examiner provided a supplemental opinion in June 2013, in which he stated that the PTSD and major depressive disorder, taken together, would not keep the Veteran from securing and maintaining substantially gainful employment.  

While the October 2011 VA examiner opined that the Veteran could likely perform sedentary work, because this would not be exertional and would not cause any symptoms, he also opined that the Veteran's heart disease would not allow him to perform physical or exertional type work.  It is significant in this case that the Veteran has work experience and education in physical fields, specifically, welding, carpentry, construction, and gardening.  Entitlement to TDIU is based on an individual's particular circumstances.  Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).  

With consideration of all the evidence of record, and resolving all doubt in his favor, the Board finds that the evidence is at least evenly balanced regarding the question of whether the Veteran has been precluded from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience since August 24, 2011.  A TDIU from that date is warranted.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.  The issue of entitlement to a TDIU prior to August 24, 2011, on an extraschedular basis, is being remanded for further development.  


ORDER

Service connection for loss of use of a creative organ/sexual dysfunction (originally claimed as a decrease in libido), to include as secondary to PTSD, is granted subject to the laws and regulations governing the award of monetary benefits.  

Service connection for a gastrointestinal disability (originally claimed as IBS and GERD), to include as secondary to PTSD, is denied.  

A rating in excess of 50 percent for PTSD is denied.  

A TDIU is granted from August 24, 2011, subject to the laws and regulations governing the award of monetary benefits.  


REMAND

Remand is required to obtain a retrospective medical opinion addressing when the Veteran's ischemic heart disease first arose.  Medical records pertinent to this question should be obtained on remand.  The issue of entitlement to a TDIU prior to August 24, 2011 must be remanded as it is inextricably intertwined with the earlier effective date issue and the issue of entitlement to service connection for a foot condition referred to the AOJ in the introduction.  

Accordingly, the case is REMANDED for the following action:

1.  Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his ischemic heart disease prior to April 27, 2010.  After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file/e-folder.  

A specific request should be made for: (1) May 2003 records from GPRMC regarding treatment for chest pain, as referenced in a May 2003 VA treatment record; and (2) April 2010 records from GPRMC regarding treatment for right arm pain/a heart disorder, as referenced in April and June 2010 VA treatment records.  The AOJ should ensure that any available pertinent records which have been scanned into VISTA, including these April 2010 records, are available for review in either the claims file or e-folder.  

If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented.

2.  After all available records have been associated with the claims file/e-folder, forward the claims file to an appropriate examiner to obtain an opinion as to when the Veteran's ischemic heart disease arose.  

The claims folder must be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report of the examiner.

The examiner must provide an opinion as to when the Veteran's ischemic heart disease first arose.  

As indicated above, the examiner should review the record in conjunction with rendering the requested opinion; however, his or her attention is drawn to the following:

* On separation examination in September 1971, clinical evaluation of the heart was normal.  

* A June 2002 VA treatment record indicates that the Veteran had a very strong family history of heart disease.  The Veteran described chest pains, mostly stabbing over the left nipple, while at rest.  He denied loss of exercise tolerance and reported smoking a pack per day for over 30 years.  He was to be scheduled for a stress test; however, a September 2002 record indicates that he did not keep his appointment.  

* In May 2003 the Veteran presented to a VA facility with complaints of severe left-sided chest pain.  He was diaphoretic and complained of nausea.  He was transferred to a private facility by ambulance.  

* A July 2004 ECG revealed sinus bradycardia.  

* A July 2004 chest X-ray revealed a healing nondisplaced left 9th rib fracture and an otherwise normal heart and lung. 

* A January 2005 private treatment record reports that the Veteran had a chief complaint of abdominal pain and also described chest pain for four days.  EKG revealed normal sinus rhythm.  The assessment was acute left lower quadrant abdominal pain of unknown cause, history of two episodes of near syncopy with weakness and severe sweat, lasting for 30 minutes to an hour, rule out dysrhythmia, costochondritis left chest.  

* In November 2008, the Veteran presented to the VA clinic with chest pain and left arm pain.  EKG demonstrated sinus bradycardia with possible old septal infarction when compared to a January 2008 EKG noted to have anterior lead changes.  The clinician reported that a treadmill stress test was normal in January 2008.  The primary diagnosis was angina and the Veteran was transported to the GPRMC emergency room by ambulance for full cardiac work-up and cardiac enzymes.  

* November 2008 private records report that the Veteran had chest discomfort in the left chest area, worsened by cough and deep breaths.  He denied having similar symptoms previously.  EKG showed normal sinus rhythm.  Chest X-ray showed mild hyperinflation.  No acute cardiopulmonary process was identified.   The impression was pleurisy, myofascial strain.  The physician commented that the clinical picture did not suggest myocardial infarction, unstable angina, pericarditis, aortic dissection, or pulmonary embolism.  

* A January 2009 chest X-ray revealed a normal appearing heart and lungs.  

* On April 27, 2010, the Veteran presented to the North Platte CBOC for acute onset of pain in his right arm with numbness in his fingers.  He was referred to the GPRMC emergency room for evaluation.  

* An April 29, 2010 VA treatment record reports that the Veteran had presented with severe right axillary and arm pain of acute onset and was found to have atypical cardiac ischemia.  

* A June 2010 VA treatment record reports that the Veteran had recently been seen for right arm and chest pain and had no history of coronary artery disease, myocardial infarction, coronary artery bypass graft (CABG) , or an abnormal stress test.  The physician noted that the Veteran had a strong, early family history of coronary artery disease, noting that his father had a myocardial infarction and died at 32 and his brother had CABG at age 50.  The assessment included chest pain, atypical in nature, with multiple cardiac risk factors and strong, early family history of coronary artery disease and positive apical perfusion defect on nuclear stress test.  Cardiac catheterization was recommended and the Veteran underwent this procedure later that month.  

* During an August 2011 VA examination, the Veteran reported that his ischemic heart disease was diagnosed in 2010.  

All findings, along with a complete explanation for all opinions expressed, should be set forth in the examination report.

3.  After all available records have been associated with the claims file/e-folder, a disability rating for the service-connected sexual dysfunction has been assigned, and the claim for an effective date prior to April 27, 2010 for the grant of service connection for ischemic heart disease and the claim for service connection for a foot condition, including a fungus disease, have been adjudicated, readjudicate the claim for a TDIU prior to August 24, 2011.  If the schedular criteria for a TDIU are not met prior to August 24, 2011, readjudication must include referral of the claim for a TDIU prior to that period to the Director, Compensation Service, for extraschedular consideration.  See 38 C.F.R. §4.16(b).

4.  Conduct any other appropriate development deemed necessary.  Thereafter, readjudicate the claims, considering all evidence of record.  If any benefit sought remains denied the Veteran and his representative should be provided an SSOC.  An appropriate period of time should be allowed for a response.

The appellant has the right to submit additional evidence and argument on the matters that the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).




______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs