Citation Nr: 1321777	
Decision Date: 07/08/13    Archive Date: 07/18/13

DOCKET NO.  06-22 561	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUES

1.  Entitlement to initial schedular ratings greater than 30 percent for service-connected post-traumatic stress disorder (PTSD) with associated alcohol abuse prior to February 14, 2009, and greater than 50 percent effective February 14, 2009.

2.  Entitlement to service connection for gastroesophageal reflux disease, to include as secondary to PTSD. 

3.  Entitlement to service connection for irritable bowel syndrome, to include as secondary to PTSD. 

4.  Entitlement to service connection for a respiratory disorder (claimed as asthma), to include as secondary to PTSD. 

5.  Entitlement to service connection for a bilateral hearing loss disability. 

6.  Entitlement to a total disability rating based on individual unemployability. 


REPRESENTATION

Appellant represented by:	John S. Berry, Esquire


ATTORNEY FOR THE BOARD

C. Fetty, Counsel


INTRODUCTION

The Veteran served on active duty from April 1966 to April 1969. 

This matter arises to the Board of Veterans' Appeals (Board) from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, that granted service connection for PTSD and assigned a 30 percent schedular rating effective December 4, 2003.  The Veteran appealed for a higher initial rating.  

In January 2012, the Board granted a higher, 50 percent, schedular rating for PTSD for a portion of the appeal period beginning on February 14, 2009.  The Board also granted service connection for a sleep disorder.  The Board then remanded several other service connection claims and a claim for a total disability rating based on individual unemployability for development.  The Veteran appealed the Board's decision concerning the initial ratings for PTSD to the United States Court of Appeals for Veterans Claims (hereinafter: the Court).  In August 2012, the Court remanded the case, pursuant to a joint motion for partial remand (JMR).  

In February 2013, the Board remanded the case for additional development.

The record before the Board consists of paper claims files and an electronic file known as Virtual VA.  
Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected PTSD; entitlement to service connection for irritable bowel syndrome (IBS), to include as secondary to service-connected PTSD; entitlement to service connection for a respiratory disorder (claimed as asthma), to include as secondary to service-connected PTSD; entitlement to service connection for a bilateral hearing loss disability, and entitlement to a total disability rating based on individual unemployability (TDIU) are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  PTSD has been manifested throughout the appeal period by severe occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as near-continuous depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); 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.  

2.  Total occupational and social impairment due to PTSD is not shown.

3.  The evidence does not contain factual findings that demonstrate distinct time periods in which PTSD exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal.  


CONCLUSION OF LAW

The criteria for an initial 70 percent schedular rating for PTSD are met for the entire appeal period.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has remanded the case for development.  When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  With respect to the appeal for a higher initial rating for PTSD, the RO has reasonably complied with the Board's remand instructions.  

VA must notify and assist claimants in substantiating claims for benefits.  38 U.S.C.A. § 5103A (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 and 3.326(a) (2012).  Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his or her representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide.  This notice must be provided prior to an initial unfavorable decision.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Initial notice was sent to the claimant in September 2004 and subsequent notice was sent in March 2006.

Regarding the claim for a higher initial rating for PTSD, the notice of disagreement as to the initial PTSD rating does not trigger additional notice obligations under 38 U.S.C.A. § 5103 (a).  See 38 C.F.R. § 3.159 (b) (3) (2012).  Rather, the claimant's appeal of an initial rating triggers VA's duty to develop that claim, as set forth at 38 U.S.C.A. §§ 5104, 7105; 38 C.F.R. § 3.103.  Under these, VA is required to advise the claimant of what evidence is necessary to obtain the maximum benefit allowed by the evidence and the law.  This has been accomplished in a statement of the case (hereinafter: SOC).  

The SOC provided the claimant with the rating criteria for PTSD.  The claimant was informed of the evidence needed to achieve the next-higher schedular rating, and also to obtain even higher ratings.  Thus, VA's duties to notify under 38 U.S.C.A. §§ 5104 and 7105 have been satisfied.
VA also has a duty to assist the Veteran in developing his claims.  All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  VA has obtained VA outpatient treatment records.  The claimant was afforded VA medical examinations at various times.  The VA examination reports contain sufficient details and are adequate for rating purposes.  38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Neither the claimant nor his attorney has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002).

Disability Ratings

Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012).  Diagnostic codes identify the various disabilities.  38 C.F.R. Part 4.  The entire medical history is reviewed when making disability evaluations.  38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995).  In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records.  38 C.F.R. § 4.2.  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.  38 C.F.R. § 4.7.  

The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  Whether the upper or lower extremities, the back or abdominal wall, the eyes or ears, or the cardiovascular, digestive, or other system, or psyche are affected, evaluations are based upon lack of usefulness, of these parts or systems, especially in self-support.  This imposes upon the medical examiner the responsibility of furnishing, in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of disability upon the person's ordinary activity.  In this connection, it will be remembered that a person may be too disabled to engage in employment although he or she is up and about and fairly comfortable at home or upon limited activity.  38 C.F.R. § 4.10 (2012).

In Fenderson v. West, 12 Vet. App. 119, 126-7 (1999), the Court distinguished a claim for an increased rating from that of a claim arising from disagreement with the initial rating assigned after service connection was established.  In another case, the Court held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.  Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).  

Under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012), PTSD is evaluated in accordance with the General Rating Formula for Mental Disorders.  Under that formula, a 30 percent evaluation for PTSD is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).  

A 50 percent rating for PTSD is warranted 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 for PTSD is warranted 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 worklike setting); and inability to establish and maintain effective relationships.  

A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusion or hallucination; 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.  

In March 2005, the Veteran was afforded a VA examination to assess the severity of PTSD.  The examination report reflects that he denied flashbacks, loss of interest, emotional numbing, and inability to complete daily tasks without assistance.  He reported that he maintained a relationship with a girlfriend and with his two daughters from prior marriages.  He reported intrusive recollections, nightmares, sleep disturbance, avoidance, memory impairment, difficulty being in crowds, social and occupational constriction, depression, difficulty concentrating, and decreased motivation.  He also reported suicidal ideation, but explained that he currently had no such thoughts. 

The March 2005 VA examining psychiatrist reported that the Veteran's appearance and clothing were "clean."  He exhibited socially appropriate behavior and no bizarre behavior.  His eye contact was appropriate and his attitude was cooperative and not defensive.  He offered appropriate information and his remote and recent memory was intact.  His speech was not pressured and he exhibited no delusion, grandiosity, hallucination, or paranoia.  He was oriented to time, place, and person, and his mood and affect were appropriate. 

The March 2005 diagnoses were PTSD; depression, not otherwise specified; and, alcohol abuse.  The psychiatrist explained that mild depression was more likely related to an alcohol-induced mood disorder and not caused by PTSD; however, because a June 2006 RO rating decision granted service connection for alcohol abuse secondary to PTSD, all symptoms of depression will be considered in the rating assigned for PTSD.  Mittleider v. West, 11 Vet. App.181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996).  

The psychiatrist assigned a Global Assessment of Functioning (GAF) score of 65 and explained that this score is due solely to PTSD [according to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (hereinafter referred to as DSM-IV), a GAF score of 61 to 70 is indicative of some mild symptoms, or some difficulty in social, occupational, or school functioning, but generally functioning pretty well.  See 38 C.F.R. § 4.125 (2012)]. 

A June 2006 VA PTSD compensation examination report, authored by a clinical psychologist, reflects that the Veteran denied suicidal or homicidal ideation, assaultiveness, obsessive or ritualistic behavior, inappropriate behavior, difficulties performing daily activities or maintaining minimal hygiene, or episodes of violence.  He reported intrusive recollections, nightmares, sleep disturbance, difficulty concentrating, irritability, outbursts of anger, hypervigilance, and exaggerated startle response. 

The June 2006 VA examining psychologist noted a restricted range of affect and a sense of foreshortened future.  The Veteran's appeared to be clean and neatly groomed.  His speech was unremarkable and spontaneous and his attitude was cooperative, friendly, relaxed, and attentive.  His attention was intact and he was oriented to time place and person, although his mood was anxious.  His thought processes and content were unremarkable and logical.  His insight and judgment were good.  He experienced moderate sleep impairment, but good impulse control and normal memory.  The examiner concluded that the Veteran had demonstrated mild-to-moderate PTSD symptomatology and assigned a GAF score of 62.  The psychologist further explained that this GAF is assigned for alcohol abuse and PTSD.  The psychologist found only mild or transient decreases in social and occupational functioning.

The Veteran was next afforded a VA examination in connection with his PTSD claim in February 2009, the report of which reflects that he denied any hospitalization, delusion, inappropriate behavior, obsessive or ritualistic behavior, panic attack, or suicidal or homicidal ideation.  The Veteran did report non-persistent auditory hallucinations, sleep disturbances, nightmares, avoidance, and a history of "beating people up who were disrespectful."  He refused to discuss previous suicide attempts.  He reported increasing isolation.  He maintained minimal hygiene and his clothing appeared to be disheveled.  His speech was spontaneous, his attitude was cooperative, and his affect was appropriate.  He demonstrated a depressed mood and unremarkable thought processes and content.  His impulse control was only fair.  His memory was moderately impaired. 

The examining psychiatrist specifically noted that the Veteran's PTSD symptomatology had worsened since his last VA examination, especially concerning difficulties with interpersonal relationships and concentration.  The psychiatrist rated the PTSD symptoms as severe, because the Veteran expressed a belief that he had little or no future.  The Veteran was unemployed.  His stated reason for unemployment was that he did not want to work for anyone.  

The psychiatrist determined that PTSD symptoms resulted in deficiencies in judgment, thinking, family relations, work, mood, or school.  Further, the psychiatrist opined that the Veteran's reliability and productivity were severely [emphasis added by the Board] impaired because of PTSD.  The psychiatrist assigned a GAF score of 55 [according to DSM-IV, a GAF score of 51 to 60 is indicative of moderate symptoms (flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (few friends, conflicts with peers or co-workers)].  Id.

In April 2009, the Veteran applied for SSA benefits.  A June 2009 clinical evaluation report reflects that the Veteran was "moderately limited" by his service-connected PTSD and he experienced difficulty with memory impairment and interactions with others.  

A March 2011 VA PTSD compensation examination report reflects that the Veteran denied treatment or hospitalization for PTSD.  He also denied suicide attempts, history of violence and assaultiveness, hallucination, obsessive or ritualistic behavior, suicidal and homicidal ideation, or past episodes of violence.  He reported increasing sleep difficulties, nightmares, and isolation.  The examining clinical psychologist observed that the Veteran was neatly groomed and casually dressed.  His speech was unremarkable, as were thought processes and content.  Although his affect was restricted, his attitude was cooperative, friendly, and attentive.  His mood was tired and alone, but he was oriented to time, place, and person.  The psychologist determined that the Veteran's insight, impulse control, and judgment were good, recent and remote memory was normal, and he was able to maintain minimal hygiene.  The psychologist reported that the Veteran did not interpret proverbs appropriately (the significance of this finding is unclear).  

The Axis I diagnoses were PTSD, alcohol abuse, and cannabis abuse.  The psychologist concluded that it is at least as likely as not that both alcohol abuse and cannabis abuse are, "...a manner of self medication for this veteran at this time."  While the psychologist noted recent unemployment, it was dissociated from PTSD.  The VA examiner explained, "It is my opinion that the veteran exhibits PTSD with a GAF of 55."  Elsewhere in the report, the psychologist explained (confusingly), "The combined GAF for the Alcohol abuse and PTSD is 62..."  The psychologist did not address whether PTSD and secondary alcohol abuse would produce unemployment.  

In a JMR, the parties agreed that, in its January 2012 decision, the Board did not provide adequate reasons for its determination that the rating criteria for a disability rating higher than 30 percent for PTSD with associated alcohol abuse had not been met prior to February 14, 2009, and that the rating criteria for a disability rating higher than 50 percent had not been met on and after that date.  In particular, the parties indicated that the Board did not adequately address and discuss the following symptoms:  (1) "disheveled clothes", noted by a VA examiner in a February 2009 examination report; (2) "some restriction" of affect, noted by a VA examiner in a June 2006 examination report; and (3) non-persistent auditory hallucinations, noted by a VA examiner in the February 2009 examination report.  See JMR, p. 5.  

In the JMR, the parties also indicated that the Board did not adequately address "vegetative signs of major depression," apparently referring to a notation by a VA examiner in a March 2005 examination report (see March 2005 VA examination report, p. 4).  However, in that report the VA examiner actually noted that the Veteran "does not [emphasis added by the Board] have vegetative signs of major depression."  The Board therefore concludes that this symptom, or lack thereof, need not be addressed further.  

Finally, the parties to the JMR noted that "the Board simply went through a laundry list of symptoms" in its January 2012 decision and "provided no analysis" of those symptoms in relation to the rating criteria (JMR, p 4). 

In December 2012, the Veteran's attorney requested that the case be remanded to the RO for a psychological examination to determine his current condition, as well as explain when particular symptoms became manifest.

The Veteran was re-examined in March 2013 by the clinical psychologist who had conducted the March 2011 VA compensation examination.  The psychologist changed the Axis I diagnosis to PTSD alone, with no other Axis I or II diagnosis.  The psychologist found that the Veteran did not meet the criteria for a diagnosis of alcohol and/or cannabis abuse.  His GAF score was 55.  The psychologist indicated that PTSD produced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation.  The psychologist reviewed previous examination reports and noted that the Veteran's unemployment continued and that arthritis precluded most manual labor.  The Veteran continued taking sertraline for PTSD.  Current symptoms included depressed mood, anxiety, suspiciousness, and chronic sleep impairment, which the psychologist related to PTSD.  

The VA psychologist mentioned that the Veteran also exhibited other symptoms found to be related to PTSD, but did not further identify those symptoms.  Concerning the date of onset of the current PTSD symptoms, the psychologist concluded, "...it is at least as likely as not the symptoms were present as early as his separation from the military in April 1969."  

In June 2013, the Veteran argued, through his attorney, that his PTSD symptoms were severe, as noted in a February 2009 VA examination report.  Furthermore, the Veteran argued, because the March 2013 examination report strongly suggests that these PTSD symptoms had existed during the entire appeal period, the level of impairment would meet the 70 percent criteria throughout the appeal period.  The Veteran also argued that the March 2013 examiner's finding of other unidentified PTSD symptoms complicated the question of whether PTSD results in an inability to adapt to stressful circumstances, including working and establishing and maintaining effective relationships.  

From the medical reports discussed above, it is apparent that service-connected PTSD has been manifested throughout the appeal period by severe occupational and social impairment with deficiencies in most areas, such as work, family relationships, judgment, thinking or mood, due to such symptoms as near-continuous depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); 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.  While the GAF scores assigned connote moderate severity of PTSD, some examiners have found severe symptoms.  

Although the examiners have observed varying levels of severity during the appeal period, the reports need not all agree with each other.  The Board must reconcile the variances in reported severity of PTSD into a consistent picture that accurately represents all elements of the disability.  38 C.F.R. § 4.2.  "It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the rating may accurately reflect the elements of disability present."  Therefore, comparing all reported manifestations with the rating criteria and taking into account those manifestations stressed in the JMR (disheveled clothes, restriction of affect, and persistent auditory hallucinations) the Board finds that the criteria for a 70 percent schedular rating under Diagnostic Code 9411 are more nearly approximated.  

The evidence does not contain factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal.  The assignment of staged ratings is therefore unnecessary.  Hart, 21 Vet. App. at 510.  

After considering all the evidence of record, the Board finds that the evidence is at least in relative equipoise.  The benefit of the doubt doctrine will therefore be applied.  See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra.  An initial 70 percent schedular rating for PTSD must therefore be granted for the entire appeal period.

Extra-schedular Consideration

The provisions of 38 C.F.R. § 3.321(b) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for the service-connected disability, an extra-schedular evaluation will be assigned.  Consideration of whether a claimant is entitled to an extra-schedular rating is a three-step inquiry.  Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed.Cir.2009).  

The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate."  Id.  If the adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization.  Id. at 116.  Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extra-schedular rating is warranted.  Id.

In this case, the Board finds the evidence in this case does not present such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Board notes that the rating criteria reasonably describe the claimant's disability level and symptoms.  Thun, 22 Vet. App. at 115.  Accordingly, referral for consideration of an extraschedular rating is not warranted.  


ORDER

An initial 70 percent schedular rating for PTSD is granted for the entire appeal period, subject to the laws and regulations governing payment of monetary benefits. 


REMAND

Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected PTSD; entitlement to service connection for irritable bowel syndrome (IBS), to include as secondary to service-connected PTSD; entitlement to service connection for a respiratory disorder (claimed as asthma), to include as secondary to service-connected PTSD; entitlement to service connection for a bilateral hearing loss disability, and entitlement to a total disability rating based on individual unemployability (TDIU) were previously remanded by the Board for specific development.  It appears that little of the development of these claims specified by the Board has been accomplished.  The Court has held that when the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance.  See Stegall v. West, 11 Vet. App. 268, 271 (1998). 

The Veteran has also appealed for TDIU.  TDIU may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a) (2012).  With consideration of the grant herein, the Veteran meets the schedular criteria for TDIU.  The TDIU claim is remanded for the procedural actions outlined in 38 C.F.R. § 4.16(a).   

Accordingly, the case is REMANDED to the RO for the following action:

1.  The RO must ascertain from the Veteran and/or his attorney whether there are VA and non-VA health medical records that have not yet been submitted to VA.  An attempt should be made to obtain any such record identified.  If any identified record is not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims files, and the Veteran and his attorney should be informed in writing. 

2.  The RO must schedule an appropriate VA compensation examination to determine the nature and etiology of any GERD, IBS, and/or respiratory disorder that may be present.  Any and all studies, tests, and evaluations deemed necessary should be performed.  The examiner is requested to review all pertinent records associated with the claims files, including the Veteran's service treatment records, post-service medical records, and lay statements and to review all relevant evidence contained in Virtual VA. 
The examiner(s) should elicit a history of relevant symptoms from the Veteran and identify all current GERD, IBS and/or respiratory disorder(s).  For each condition identified, the examiner(s) should state whether it is at least as likely as not (50 percent or greater possibility) that the disorder that is related to the Veteran's active service. 

The phrase "at least as likely as not" means that the medical evidence both for and against a link to active service is such that it is as medically sound to find in favor of service connection as it is to find against it.  Unless the examiner concludes that the disability is either likely or unlikely the result of an event, injury, or disease incurred in service, the examiner should state that it is at least as likely as not that the current disability is the result of an event, injury, or disease incurred in service as opposed to its being the result of some other factor or factors. 

A rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Because it is important that each disability be viewed in relation to its history, copies of all pertinent records in the Veteran claims files and in Virtual VA must be made available to the examiner for review.

3.  The RO must schedule an Audio examination to determine the nature and etiology of any hearing loss.  The examiner is requested to review all pertinent records associated with the claims files and with Virtual VA, elicit a history of relevant symptoms from the Veteran, examine the ears, an offer a diagnosis, if forthcoming. 

An absence of in-service evidence of a hearing loss disability is not fatal to a service connection claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

The examiner should address whether it is at least as likely as not that the Veteran's current bilateral hearing loss is etiologically-related to active service, to include his reports of exposure to excessive noise.  At least as likely as not means that the medical evidence both for and against a link to active service is such that it is as medically sound to find in favor of service connection as it is to find against it.  Unless the examiner concludes that the current disability is either likely or unlikely the result of an event, injury, or disease incurred in service, the examiner should state that it is at least as likely as not that the current disability is the result of an event, injury, or disease incurred in service, as opposed to its being the result of some other factor or factors.  

A rationale for any conclusion must be supplied and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), the Veteran's complete VA claims file, to include any additional records contained in Virtual VA, must be made available to the examiner for review. 

4.  Thereafter, the RO must review the VA examinations and opinions.  If such are deficient in any way, the RO should take appropriate steps to ensure compliance with the Board's remand instructions. 

5.  The RO should then arrange for appropriate examiner to determine the combined effect of all of the Veteran's service-connected disabilities (which as at this time (July 2013) include PTSD, tinnitus, and a sleep disorder (per the Board's January 2012 decision)) on his employability.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The Veteran may be examined for this purpose if necessary.  

The VA examiner must address the extent of functional and industrial impairment due to all of the Veteran's service-connected disabilities.  It is the examiner's responsibility to furnish a full description of the effects of the service-connected disabilities upon the Veteran's ordinary activities which include employment.  See 38 C.F.R. § 4.10.  This description may include an opinion on such questions as whether a claimant's condition precludes standing for extended periods, lifting more than a certain weight, sitting for eight hours a day, or performing other specific tasks.  Moore v. Nicholson, 21 Vet. App. 211, 219 (2007), rev'd on other grounds sub nom. Moore v Shinseki, 555 F.3d 1369 (Fed. Cir. 2009).  

Although an examiner may not be required to offer an opinion on the general employability of the Veteran in all cases, the examiner should, in this case, offer such an opinion as to whether it is at least as likely as not that the Veteran is unable to secure and follow a substantially gainful occupation solely as a result of his service-connected disabilities.  The examination report must include a complete rationale for all opinions and conclusions expressed.

Note: The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.

6.  If any benefit sought is not granted to the fullest extent, the Veteran and his attorney should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 

The purpose of this REMAND is to obtain additional development.  The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. 

The Veteran has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office.  Kutscherousky v. West, 12 Vet. App. 369 (1999). 

No action is required of the Veteran until he is notified.  Failure to report for a scheduled VA examination without good cause may have adverse consequences on the claims.  38 C.F.R. § 3.655.

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs