Citation Nr: 1336008	
Decision Date: 11/06/13    Archive Date: 11/13/13

DOCKET NO.  09-45 133	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire


THE ISSUES

1.  Entitlement to service connection for residuals of a traumatic brain injury (TBI).

2.  Entitlement to service connection for hearing loss.

3.  Entitlement to service connection for tinnitus.

4.  Entitlement to service connection for a gastrointestinal disorder, to include as a result of an undiagnosed illness or as a result of service-connected disability.

5.  Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated as 30 percent disabling.

6.  Entitlement to an effective date prior to September 28, 2007, for the assignment of a 60 percent rating for chronic fatigue syndrome.

7.  Whether new and material evidence has been submitted to reopen a previously denied claim of service connection for disability manifested by a positive mycoplasma test.
REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Neilson, Counsel


INTRODUCTION

The Veteran served on active duty from August 1988 to September 1992.  He had additional unverified service with a National Guard and/or Reserve unit.

The instant matters come before the Board of Veterans' Appeals (Board) on appeal from March 2008, December 2008, and May 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire.

The Board notes that the Veteran originally filed a claim of service connection for a head injury in September 1992, which claim was denied by the RO in February 1994, in part, because the available service treatment records (STRs) failed to document a head injury during service.  The Veteran did not pursue an appeal of that denial and it became final.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 19.129, 19.192 (1993).  Consequently, VA would ordinarily require the receipt of new and material evidence to reopen the previously denied claim.  38 C.F.R. § 3.156 (2013).

In this case, however, it was specifically noted that the Veteran's STRs were not complete.  (Copies of certain STRs had been associated with the claims folder, but the Veteran's official STRs had not been received.)  In September 2008 and January 2011, additional service treatment records were associated with the claims folder, which records showed that the Veteran was treated for a head injury in 1988.  Applicable regulations provide that if, after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records, to specifically include service records that are related to a claimed in-service event, injury or disease, that existed and had not been associated with the claims file when VA first adjudicated the claim, VA will reconsider the claim notwithstanding the provisions of 38 C.F.R. § 3.156(a).  38 C.F.R. § 3.156(c)(1)(i)-(iii).

Accordingly, because the evidence associated with the claims folder since the February 1994 RO decision includes copies of relevant service department records that existed and had not been associated with the claims file when VA first decided the claim, the Board will, as did the RO in its May 2012 decision, reconsider the Veteran's claim de novo.  38 C.F.R. § 3.156(c).  Accordingly, the issue has been re-characterized as noted on the title page.

In correspondence dated in December 2010 and received by the RO in April 2011, the Veteran stated his belief that he should be service connected for attention deficit hyperactivity disorder (ADHD).  As the issue of entitlement to service connection for ADHD, to include as a result of service-connected PTSD, has not been considered by the agency of original jurisdiction (AOJ), it is not properly before the Board at this time and that matter is referred to the AOJ for appropriate action.

In July 2013, the Veteran testified at a Board hearing via videoconferencing.  A transcript of that hearing has been associated with his Virtual VA file.  The Veteran also presented testimony relevant to certain claims at an RO hearing in November 2012. 

(The decision below addresses all appealed matters, save for the issue of entitlement to service connection for a gastrointestinal disorder, which claim is addressed in the remand that follows the Board's decision.)


FINDINGS OF FACT

1.  The evidence fails to demonstrate that the Veteran has hearing impairment as defined by VA.

2.  Resolving all doubt in the Veteran's favor, the Veteran suffers from tinnitus that is likely related to noise exposure in service.

3.  The Veteran does not have residual disability attributable to a TBI sustained during his active military service.

4.  The Veteran's service-connected PTSD has been manifested by nightmares, sleep disturbances, irritability, difficulty concentrating, memory loss, hypervigilance, exaggerated startle response, anger, and anxiety, which have resulted in occupational and social impairment no worse than that causing occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  

5.  An informal claim for an increased evaluation for chronic fatigue syndrome/Gulf War Syndrome was received on September 28, 2007; it is not factually ascertainable that an increase in disability occurred in the one-year period prior to September 28, 2007.  

6.  By an August 2000 rating decision, the RO denied a claim of service connection for a disability manifested by a positive mycoplasma test; the Veteran did not timely appeal.

7.  Evidence received since the RO's August 2000 decision is does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the mycoplasma claim; nor does it raise a reasonable possibility of substantiating that claim.


CONCLUSIONS OF LAW

1.  Bilateral hearing loss was not incurred or aggravated in service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303, 3.304, 3.385 (2013).

2.  Resolving all doubt in the Veteran's favor, tinnitus was incurred during active military service.  38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).

3.  The Veteran does not have a residual disability that is the result of a TBI incurred during active military service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).

4.  The criteria for a rating in excess of 30 percent for service-connected PTSD have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.16, 4.130, Diagnostic Code 9411 (2013). 

5.  The assignment of an effective date earlier than September 28, 2007, for the assignment of a 60 percent rating for chronic fatigue syndrome is not warranted.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.157, 3.400 (2013).

6.  The August 2000 rating decision that denied service connection for a disability manifested by a positive mycoplasma test is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2000).

7.  New and material evidence sufficient to reopen the previously denied claim of service connection for a disability manifested by a positive mycoplasma test has not been received.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Notice and Assistance

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim.  They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b).  As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.

The VCAA notice requirements apply to all five elements of a service connection claim.  These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

For increased rating claims, the VCAA requires only generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

Regarding VA's duty to notify with respect to a petition to reopen a previously disallowed claim, VA must also advise the claimant of the evidence and information necessary to reopen the claim and of the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought by the claimant.  Kent v. Nicholson, 20 Vet. App. 1 (2006).  This requires VA to look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial.  Id. at 9-10.

The Veteran has not disputed the contents of the VCAA notice in this case.  Further, the Board finds that the Veteran was adequately informed of the information and evidence necessary to substantiate his claims, as well as of VA's duty to assist and of his responsibilities in the adjudication of his claim, via letters dated in May and June 2008, September 2009, and April 2011.  The Board finds that these letters comply with the requirements of 38 U.S.C.A. § 5103(a) and Vazquez-Flores, Kent, and Dingess, all supra, and afforded the Veteran a meaningful opportunity to participate in the development of his claims.  Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied.

Regarding the duty to assist, the Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate the claims decided herein.  The evidence obtained or associated with the claims folder includes the Veteran's STRs, VA treatment records, private treatment records, VA examination reports, lay statements, internet articles, records related to the Veteran's participation in VA Cooperative Study #475, and statements from the Veteran, to include his RO and Board hearing testimony.  The Veteran has not alleged that there is any additional outstanding evidence pertinent to his claims and, in fact, indicated during his Board hearing that all relevant evidence had been submitted to VA.  The Board is also unaware of any such outstanding evidence.  

The Board also finds that the medical evidence of record is adequate for the Board to rely upon in this case.  The Veteran has been provided with multiple VA examinations in connection with his claims.  Also of record is the report of a private neuropsychological evaluation.  The VA examiners considered the Veteran's reported symptoms, reviewed the previous examination reports and other medical evidence of record, conducted the appropriate testing when necessary, and made all findings necessary to apply the rating criteria where required.  The Board is satisfied that the information contained in the VA examination reports, along with that which is contained in the VA and private records, is sufficient for the Board to evaluate the Veteran's service connection and increased rating claims.  Accordingly, the Board has properly assisted the Veteran by affording him an adequate VA examination.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

The Board notes that the last VA examination conducted in connection with the Veteran's claim for an increased evaluation for his service-connected PTSD was in June 2010.  The Veteran has not asserted and the evidence does not demonstrate that PTSD symptomatology has worsened or undergone a material change since that examination.  Further, the record contains relevant information dated since June 2010 that the Board can rely upon to evaluate the severity of the Veteran's PTSD since that time, which evidence does not indicate a material change since the time of the last examination.  Accordingly, the Board does not find that a new examination is warranted in this case.  Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination).  

The Board also notes that the June 2010 VA examiner indicated that the claims folder was not available for review, although the Veteran's electronic records were and the Veteran provided that examiner with a copy of a recent neuropsychological evaluation.  Failure to review the claims folder does not, by itself, automatically render the opinion inadequate.  See Nieves-Rodriguez v. Peake, 22 Vet. 295, 301 (2008) (noting that the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed).  Here, the Veteran provided the examiner with a detailed history of his disability, to include his current symptomatology.  Further, as the Veteran is seeking an increased disability evaluation for an already service-connected disability, "it is the present level of disability that is of primary concern."  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Thus, the Board finds any error in not providing the VA examiner with the claims folder to be nonprejudicial.  See Nieves-Rodriguez, supra; see also Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997) (review of claims file not required where it would not change objective and dispositive findings made during medical examination).

Lastly, the Board notes that the Veteran was not afforded a VA examination in connection with his petition to reopen.  The duty to provide a VA medical examination does not apply to a claim to reopen a finally adjudicated claim without the submission or receipt of new and material evidence.  38 C.F.R. § 3.159(c)(4)(iii) (2013).  In this regard, the Board has considered whether the evidence presented is sufficient to trigger VA's duty to provide the Veteran with a medical examination, but, as discussed below, finds that it is not.  Accordingly, as new and material evidence has not been submitted and the Veteran's claim of service connection for a disability manifested by a positive mycoplasma test has not been reopened; therefore, an examination is not required.  

II.  Service Connection

The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013).  In addition, certain chronic diseases, including organic disease of the nervous system such as sensorineural hearing loss, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013).  Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).  

Alternatively, for chronic diseases, as defined by regulation, shown in service, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) only applies to the listed chronic disabilities in 38 C.F.R. § 3.309(a)); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997).  Chronicity is established if the appellant can demonstrate (1) the existence of a chronic disease in service and (2) current or present manifestations of the same disease.  Id. at 495-97.  Continuity of symptomatology may be established if it is demonstrated that (1) a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Id.

A.  Hearing Loss

For purposes of a hearing loss claim, impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2012).

In December 2007, the Veteran applied for VA disability compensation seeking service connection for hearing loss.  During his June 2013 hearing, the Veteran reported the onset of his hearing loss to be during service, describing noise exposure in service due to his duties as a combat medic.  The Veteran stated that he had been diagnosed as having bilateral hearing loss approximately 18 months prior.

A review of the Veteran's STRs reveals normal hearing at the time of entry into service.  His August 1992 separation examination included the results of an audiogram that recorded the Veteran's pure tone auditory thresholds as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
0
0
5
LEFT
10
0
0
5
0

In October 1992, the Veteran denied ear trouble and/or hearing loss.  Audiometric testing conducted as part of the Veteran's December 1992 Reserve enlistment examination recorded the Veteran's pure tone auditory thresholds as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
0
0
LEFT
0
0
0
0
0

In June 2010, the Veteran was seen for a VA audiological evaluation.  The Veteran reported decreased hearing ability and the need to ask for repetition when speaking with family and friends, which he stated had been present since the 1990s.  Audiometric testing conducted at that time revealed the Veteran's pure tone auditory thresholds to be as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
5
0
10
LEFT
10
10
15
10
15

A Maryland CNC Test resulted in speech recognition scores of 100 percent bilaterally.  The VA audiologist assessed the Veteran as having essentially symmetrical normal hearing thresholds across all frequencies tested, with a slight mild loss at 6000 hertz.  

In September 2012, the Veteran presented to VA with complaints of hearing difficulties.  Audiometric testing conducted at that time documented the Veteran's pure tone auditory thresholds as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
0
15
LEFT
5
10
20
15
15

A Maryland CNC Test resulted in speech recognition scores of 100 percent bilaterally.  The VA audiologist diagnosed essentially symmetrical normal hearing thresholds across all frequencies tested, with a slight mild loss at 6000 and 8000 hertz only.  The audiologist indicated that the Veteran's hearing loss had not changed significantly since last tested in 2010.

Here, although the Veteran believes that he currently suffers from hearing loss related to acoustic trauma in service, the objective evidence of record fails to demonstrate that the Veteran has at any point since filing his claim in December 2007 met the requirements of 38 C.F.R. § 3.385.  See McClain v. Nicholson, 21 Vet. App. 319 (2007).  Although it was indicated that the Veteran had a mild degree of hearing at 6000 and 8000 hertz, frequencies above 4000 hertz are excluded when defining what constitutes a hearing disability for purposes of entitlement to VA disability compensation.  See Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007) (holding that "VA's interpretation of a hearing disability as expressed in the explanatory statement of § 3.385 is reasonable").  

The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a current disability.  See 38 U.S.C.A. § 1110.  The United States Court of Appeals for Veterans Claims (Court) has held that the provisions of 38 C.F.R. § 3.385 prohibit the award of service connection for hearing loss where audiometric test scores do not represent "impaired hearing" as defined by regulation.  Hensley v. Brown, 5 Vet. App. 155, 158 (1993) (citing Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992)); see also Palczewski, supra.  Hence, in the absence of evidence that the Veteran currently has hearing loss to an extent recognized as a disability under the governing regulation, there can be no award of service connection.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

The Board also finds that there is no objective evidence that sensorineural hearing loss manifested to a compensable degree within one year of the Veteran's separation from military service.  As noted above, hearing impairment has not been shown.  Consequently, service connection is not warranted for hearing loss on a presumptive basis.  See 38 C.F.R. §§ 3.307, 3.309.

The Board has considered the Veteran's contention regarding the onset of hearing loss in service and his assertions that he has difficulty hearing speech at a distance and must often ask people to repeat themselves.  While the Board does not dispute that the Veteran had noise exposure in service and experiences some hearing difficulty, there is no indication that his level of diminished hearing satisfies the auditory threshold requirements of 38 C.F.R. § 3.385, either in service or anytime thereafter.  Accordingly, as the objective evidence of record fails to reveal a level of hearing loss sufficient to be considered a disability for VA compensation purposes, the Board can find no basis upon which to award service connection.  Hensley, supra.  

In finding that service connection for hearing loss is not warranted, 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.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 C.F.R. § 3.102 (2013).

B.  Tinnitus

The Veteran contends that his tinnitus is a direct result of acoustic trauma sustained while serving as a combat medic during the Persian Gulf War.  During his October 2010 VA audiology consultation, the Veteran described ringing in his ears since 1991.  In January 2011, the Veteran submitted a statement from a fellow serviceman who described the type of noise they had been exposed to in service, indicated that he had been in communication with the Veteran since 1991, and stated that he had often heard the Veteran complain about a continuous ringing in his ears.  During his June 2013 hearing, the Veteran reported first experiencing ringing in his ears in service, immediately after being exposed to live fire.  He stated that although the ringing subsided somewhat, it has remained since service.

At the outset, the Board notes that the Veteran's DD Form 214 reflects that his primary specialty was as a medical specialist and that he was awarded the Combat Medical Badge, among other decorations.  In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of the VA shall accept as sufficient proof of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304.

Given that the evidence suggests that the Veteran engaged in combat and the fact that the Veteran is competent to testify as to the presence of ringing his ear, as it is a symptom "capable of lay observation," Charles v. Principi, 16 Vet. App. 370, 374 (2002), the Board finds that there is competent and credible evidence of tinnitus and noise exposure in service, as well as current tinnitus symptoms.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating the "[l]ay testimony is competent . . . to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection'" (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994))).  Thus, the question is one of nexus.

The Board is mindful that in mind that because tinnitus is not one of the conditions identified in 38 C.F.R. § 3.309(a), the recent holding in Walker, supra, would indicate that the nexus prong cannot be established by demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b).  That holding notwithstanding, in the instant case, the Board notes that the Veteran is a Licensed Practical Nurse (LPN).  While the Veteran indicated during his July 2013 hearing that he is not qualified to render an etiology opinion, the fact remains that the Veteran does have some medical training and is competent to testify as to his tinnitus symptomatology.  Given the uniquely self-observable nature of tinnitus symptoms, the fact that tinnitus first manifested in service immediately after the Veteran experienced an acoustic trauma, the continuous existence of tinnitus symptoms since that time, and the lack of evidence suggesting that the Veteran's tinnitus is related to something other than his in-service acoustic trauma, the Board finds that when reasonable doubt is resolved in favor of the Veteran, service connection for tinnitus is warranted as the preponderance of the evidence supports a finding that the Veteran's tinnitus is the result of his in-service acoustic trauma.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

C.  Residuals of TBI

The Veteran is seeking service connection for residual disabilities resulting from a head trauma sustained in service.  As noted in the introduction, the Veteran's STRs show that he was treated for a head injury in service.  Specifically, an April 1988 treatment entry notes that the Veteran hit his head on an ambulance that morning and was complaining of a stiff neck.  No associated neurological symptoms were noted.  During his June 2013 hearing, the Veteran reported a second head injury, stated to have occurred "in the beginning nights of the ground war" after his unit had "just crossed over the border into Iraq."  He stated that a six-pack of multiple launch rocket system rockets was launched within 75 feet of his vehicle while he was standing in the cupola.  He reported that the intensity of the blast caused him to fall down.  When asked about the nature of his alleged residuals, the Veteran indicated issues with cognition, memory loss, and headaches.  

A review of the Veteran's STRs fails to reveal any residuals related to a head trauma sustained in service.  On a June 1988 report of medical history, the Veteran denied periods of unconsciousness, memory loss, and frequent or severe headaches, which symptoms were also denied on an August 1992 report of medical history.  The Veteran did report a previous head injury on the August 1992 form.  The Veteran was evaluated in October 1992, during which he reported having sustained a head injury in 1988 after which he experienced light headedness, head pain, and some dizziness.  He reported some localized headaches over the several days following that trauma, but denied being troubled by headaches, light headedness, vertigo, or visual difficulty since that time.  In consideration of the Veteran's account, the VA examiner stated that the transient difficulties experienced after the trauma were consistent with a mild concussion, but found that there did not appear to be any long term difficulty.  

A VA progress note dated in October 1999 indicated that the Veteran had been in excellent health prior to being deployed to Iraq during service, but had begun to experience a multitude of symptoms upon his return.  The Veteran reported headaches occurring mainly when he smelled certain chemicals, such as diesel fumes, gasoline, or detergents.  He also reported memory loss and fatigue.  In March 2000, the Veteran underwent a VA general medical examination, during which he reported the onset of his headaches to be in 1991 or 1992.  It was noted that the Veteran's headaches were not of the migraine type.  In June 2002, the Veteran reported experiencing headaches so severe that he was unable to concentrate or do his work.  The Veteran underwent a brain magnetic resonance imaging scan in July 2002 for evaluation of his headaches, which scan was negative for lesions, hemorrhage, and aneurysms.  VA treatment records show that the Veteran was referred to a neurologist for treatment of his headaches; however, the treatment records do not relate the likely etiology of the Veteran's headaches, other than to note that they began approximately in 1992 after returning from overseas deployment during the Gulf War.  A January 2005 neurology consultation note indicated the presence of a subarachnoid cyst, not associated with the Veteran's headaches.  A private treatment record dated in May 2006 relates the Veteran's headaches and transient nausea to Gulf War Syndrome.

In May 2012, the Veteran was afforded a VA examination to specifically evaluate whether he experienced any residual disability from his reported in-service head trauma(s).  The examiner reviewed the claims folder and acknowledged the Veteran's reported history related to his in-service head traumas.  Regarding the facets of TBI-related cognitive impairments and subjective symptoms, it was noted that there was a complaint of mild memory loss, attention, concentration, or executive function, but without objective evidence on testing; judgment was normal; social interaction was routinely appropriate; the Veteran was oriented times four; motor activity was normal; and visual spatial orientation was normal.  The Veteran's subjective symptoms were noted to be near-daily headaches, intermittent sharp pains in his legs, and nausea, with or without headaches.  The examiner recorded a diagnosis of TBI and also completed a headache questionnaire, given the Veteran's subjective complaints.  In terms of potential residuals, headaches were the only identified possible residual of the Veteran's TBI.  

Upon consideration of the evidence of record and the Veteran's reported history related to his headaches, the examiner opined against an association between the Veteran's headaches and his TBI.  The examiner noted that headaches were not present when evaluated in October 1992 and that the Veteran's more persistent headaches did not begin until 1995, which were later diagnosed as migraine headaches.  The examiner explained that if the headaches were posttraumatic in nature, they would have began soon after the injury and would have persisted since that time.  

Upon review of the evidence, the Board can find no basis upon which to award service connection for residuals of a TBI as no residual disability has been identified.  Although the Veteran may believe that he suffers from cognition problems, memory loss, and headaches, as a result of his TBI, the objective evidence of record suggests otherwise.  Indeed, the VA examiner specifically stated that objective testing failed to indicate that memory loss was associated with the Veteran's TBI.  Further, as will be outlined below, a statement from J.F., Ph.D., a private licensed clinical psychologist, dated in October 2009 recorded Dr. J.F.'s impression that the Veteran's difficulties with short-term memory were related to his ADHD.  The VA examiner also opined against an association between the Veteran's TBI and headaches, noting the delayed onset of headaches after the sustained trauma weighed against such an association, and the VA examiner found no cognitive impairments related to the Veteran's TBI.  

Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a current disability.  See 38 U.S.C.A. § 1110.  Hence, because the evidence fails to establish that the Veteran has, at any point during the pendency of his claim, been diagnosed as having a specific disability resulting from his TBI, his claim must be denied.  See Brammer, supra.

In this regard, the Board notes that although the Veteran believes that his headaches and memory loss are related to his TBI, the etiology of dysfunctions and disorders is generally a medical determination.  See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir. 2007); see also 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).  Although the Veteran was a medic in service and has worked as a nurse, he is an LPN, and, as admitted during his July 2013 hearing, does not have the qualifications to determine the etiology of diseases, especially in light of the VA and private medical professionals' conclusions to the contrary.  See Jandreau, supra.  

II.  Disability Rating - PTSD

Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013).  "Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern."  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings.  Id.  For increased rating claims, staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2008).  Further, "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned."  38 C.F.R. § 4.7 (2013).

The Veteran's service-connected PTSD is evaluated as 30 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2013).  Under that DC, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as:  depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events).  38 C.F.R. 4.130, DC 9411 (2013).

A 50 percent rating is assigned when there is 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.  Id.

A 70 percent evaluation 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 the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships.  Id.

Lastly, 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 delusions or hallucinations; 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; memory loss for names of close relatives, own occupation, or own name.

Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission.  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  See 38 C.F.R. § 4.126(a) (2013).  Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126(b).  It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work.  38 C.F.R. § 4.2 (2013).

The Board has considered the evidence of record, but finds that it does not support the assignment of a disability rating greater than 30 percent at any point during the applicable time period.  Evidence relevant to this determination shows that in December 2007, the RO received the Veteran's claim for increased compensation for his PTSD.  In support of his assertion that his PTSD had increased in severity, such that a rating greater than 30 percent was warranted, the Veteran submitted a statement dated in November 2007 wherein he reported that media coverage of the Iraq War "has perpetuated [his] PTSD."  He endorsed frequent nightmares, night sweats, trouble sleeping, and extreme irritability.  The Veteran stated that he was currently employed as a nurse working in a professional capacity as a Business Account Executive, but that coverage of the war had affected his work performance in that he had difficulty focusing on work-related tasks.  He further indicated that in January 2007, he had attended the funeral of friend who was killed in Iraq and that a day after the funeral, he became so upset and enraged that he punched a door, resulting in a fracture to his right hand, necessitating surgery.  The Veteran stated that due to his increased stress secondary to exposure to the current war, he was separated from his wife of 10 years.  He also indicated addiction to opiate, requiring inpatient treatment, as a result of his Gulf War Illness.  (As discussed below, the Veteran is service-connected for chronic fatigue syndrome, previously characterized as Gulf War Syndrome.)  

A January 2, 2007, record from St. Joseph's Hospital indicates that he Veteran presented to the emergency room with an injury to the right hand, stated to have happened the day before.  Records from Parkland Medical Center and Rockingham Orthopedic Associates dated later in January 2007 show that the Veteran presented with complaints of right hand pain, stating that he had fallen from the back of his pick-up truck, "land[ing] with his fist closed" and "directly on the MCP [(metacarpophalangeal)] joints of his right hand."  He later underwent a closed reduction and percutaneous pinning and application of short arm splint, right hand.

A VA treatment record dated in June 2008 notes that the Veteran's wife had informed VA that the Veteran was taking oxycodone from an outside source and was also buying oxycontin from a friend, which he would crush and inhale.  She reported alcohol abuse, erratic behavior, and garbled speech, but indicated no evidence of homicidal or suicidal ideation.  She stated that she was in the process of getting a restraining order.

In a letter dated in July 2008, the Veteran stated that after he returned home from the January 2007 funeral of his friend, his wife had said something "rather insignificant in nature" to him, but he "completely lost all sense of control" and threw his mobile telephone at her and began to punch the basement door, while yelling and cursing at the top of his lungs.  He reiterated that he had sustained a fracture to his right hand and indicated that his wife had called the police at the time of the incident.  The Veteran reported frequently "abus[ing] alcohol and narcotics in a vain attempt to drown out the sadness and daily onslaught of over there."  He stated that his substance abuse had caused his wife to move out and file for divorce, but reported that they were still married at that time, although living in a platonic relationship.

In another July 2008 letter, the Veteran detailed his employment history, stating that in August 2005, he had left the company for which he had worked for 10 years for another medical sales company, where he remained for 2 years, after which he resigned and assumed a new position.  However, immediately after assuming the new position, he began to defy the Director of the company and started to avoid work, becoming distant and non-productive, which resulted in his termination in December 2007.  The Veteran then collected unemployment benefits until obtaining a new position in February 2008, where he worked until terminated in April 2008 for failing to adequately train.  He reported that he was then accepted into the VA Vocational Rehabilitation program and was attending a university in hopes of earning a degree in business.  

In January 2009, the Veteran underwent a VA PTSD review examination, during which he claimed an exacerbation of symptoms following his friend's funeral that led him to break his right hand.  The VA examiner noted that the Veteran's VA treatment records revealed an absence of complaints related to PTSD in the past year.  When asked about his symptomatology, the Veteran reported irritability and problems with sleep, focus, memory, and relationships, stating that he was going through a divorce.  He indicated not sleeping for three days every two weeks, during which period he experienced fatigue, and reported that at least once a week he thought about the trauma that he suffered during the Gulf War, which thoughts made him feel sadness.  He also endorsed nightmares once or twice a week, hypervigilance, exaggerated startle response, and a numbing of general responsiveness.  

The Veteran denied assaultive behavior or suicide attempts since his last VA examination in June 2004.  He reported attending school in pursuit of a business degree, and stated that he had lost his last job due to downsizing, noting that it was the third time in the previous few years that he had been with a company that had downsized.

Socially, the Veteran reported having some friends with whom he socialized.  He noted that he was in his second marriage, having known his wife since 2008, but was going through a divorce and was living in his own home.  He also indicated being involved in a relationship since October 2008, which was "going 'good,'" and stated that his relationship with his children was "'the best thing in the world.'"  The Veteran denied current hobbies. 

Mental status examination revealed some hyperactivity, normal speech, and an anxious and depressed mood, with affect appropriate to mood.  There were no indications of depersonalization or derealization, or of hallucinations or illusions.  His thought process tended to be circumstantial, but he was easily returned to the topic at hand.  Preoccupations, obsessions, and delusions were denied, as was suicidal or homicidal ideation.  The examiner noted mild problems with attention and concentration, resulting in mild short-term memory problems.  Long term memory appeared intact and ability for abstract and insightful thinking and for commonsense, reasoning, and judgment was within the normal range.  

The examiner determined that the Veteran did meet the criteria for a diagnosis of PTSD, as well as the criteria for a mood disorder and ADHD.  A GAF (Global Assessment of Functioning) score of 60 was assigned, and the examiner indicated that the Veteran's symptoms were moderate in nature and caused a moderate impact on social and occupational functioning, resulting in intermittent difficulties with performing occupational tasks.  

A May 2009 VA mental health outpatient consultation note indicates that the Veteran presented for Court-ordered therapy.  He reported having a problem with some medications, but stated that he was then in remission and noted his desire to be a good father to his children.  The clinician assigned a GAF score of 71 at that time.  

A statement from J.F., Ph.D., a private licensed clinical psychologist, dated in October 2009 recorded Dr. J.F.'s impression that the Veteran was experiencing significant difficulties with concentration and short-term memory, likely stemming from a pre-existing, but sub-clinical ADHD that was exacerbated during service.  In a December 2009 statement, Dr. J.F. reiterated his previous opinion and requested that the university that the Veteran attended make accommodations for the Veteran given his constellation of neuropsychological difficulties.  A final neuropsychological testing report was issued on January 15, 2009, which noted the results of the MMPI-2 suggested that the Veteran tended to "gloss through" psychological problems.  A GAF score of 60 was assigned.

An April VA 2010 treatment note shows that the Veteran desired to obtain Ritalin medication for his memory problem.  He again presented to a VA facility in May 2010 to be evaluated with regard to his medications.  At that time, his affect and mood were within a normal range, his speech was pressured, there was no evidence of a thought disorder, and homicidal and suicidal ideations were denied.  The Veteran reported ongoing issues with ADHD and GAF score of 60 was assigned.  In June 2010, the Veteran reported that he was recently fired from a job doing skilled home health care because he was "walking around and talking and failed an exam," was forgetting things, and was late for appointments.  A GAF score of 58 was assigned.  

Also in June 2010, the Veteran underwent another VA PTSD examination.  At that time, the Veteran indicated his psychiatric symptoms to include memory issues, recollections, exaggerated startle response, and problems with sleep, concentration, anxiety, and focus.  He reported getting divorced since his last VA examination, but denied any legal troubles since that time.  The Veteran stated that he was then a junior in college and that his grade point average had increased.  He reported living with his sister and indicated that he had joint custody of his children, who live with him one-half of the time.  He described his relationship with his children to be a good one and was noted to have one good friend in Tennessee.  The Veteran also reported seeing his family regularly.  His hobbies included yoga and the Veteran indicated a significant decrease in his alcohol consumption.

Mental status examination revealed that the Veteran was quite agitated and upset over the fact that he was again being examined.  His speech was rapid and pressured at times, his mood irritable and anxious, affect appropriate to mood but quite expansive.  There were no indications of depersonalization or derealization, or of hallucinations or illusions.  His thought process tended to be circumstantial, but he was easily returned to the topic at hand.  Preoccupations, obsessions, and delusions were denied, as was suicidal or homicidal ideation.  The examiner noted mild problems with attention and concentration, resulting in mild short-term memory problems.  Long term memory appeared intact and ability for abstract and insightful thinking and for commonsense, reasoning, and judgment was within the normal range.  The Veteran reported some depression, stated that he was sleeping for only one to three hours each night on account of back pain and nightmares, endorsed anxiousness, and indicated a diminished sex drive and low energy level.  He reported that daily thoughts of trauma made him feel remorseful and indicated that his wife had left him because he was emotionally distant.  The Veteran reported feeling numb inside.

The examiner assigned a GAF score of 60, which he stated was reflective of moderate symptoms.  The examiner noted moderate interference with employment, school, and social functioning, but it was felt that overall the Veteran was functioning relatively well, in that he was going to school and had good relationships with his family.  There was no indicated impairment of thought processes or communication.  The examiner stated his belief that the Veteran's PTSD symptoms resulted in an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  

VA treatment records dated from August 2010 to March 2011 reveal GAF scores ranging from 61 to 65.  Depression screens performed in March 2011 and July 2012 were negative and in July 2012, the Veteran denied nightmares, avoidance, hypervigilance, exaggerated startle response, and feeling numb or detached.  A September 2012 treatment entry indicated that the Veteran had finished his undergraduate degree and was starting on a Masters of Business Administration in Health Care Management.  At that time, his affect and mood were normal, there was no evidence of a thought disorder, and his speech was of normal rate and rhythm.  He also indicated that he would soon be starting a new job.  A GAF score of 60 was recorded.

In July 2013, the Veteran testified at a Board hearing.  He indicated treatment related to his PTSD, to include counseling, and stated that all relevant treatment records had been submitted to VA.  Regarding his symptomatology, the Veteran reported sleep disturbances, anxiety triggered by media coverage of the war, irritability/argumentativeness, flashbacks, and avoidance of large crowds.  He reported employment difficulties related to his symptomatology and indicated an inability to interact with people.  The Veteran stated that he was then currently employed doing sales.  He denied having many close friends, but stated that he spoke often with people from his unit.  

Based on the VA examination reports and treatment records, the private medical evidence, and the Veteran's lay statements the Board finds that the assigned 30 percent rating is appropriate and a higher rating is not warranted at any point during the relevant time period.  The identified symptoms, including nightmares, sleep disturbances, irritability, difficulty concentrating, memory loss, hypervigilance, exaggerated startle response, anger, and anxiety are the type of symptoms contemplated by a 30 percent rating.  See 38 C.F.R. § 4.130, DC 9411.  

Concerning the incident where the Veteran allegedly punched the wall and fractured his right hand after attending the funeral of a friend and soldier who was killed in action, the Board acknowledges that uncontrollable outbursts could be supportive of a rating greater than 30 percent.  However, in presenting for treatment related to the right hand fracture, the Veteran made no mention of becoming enraged and punching a wall.  Rather, treatment records indicate that the Veteran reported that he had fallen from his truck and landed on his right hand, which was clenched in a fist.  In a July 2008 statement, the Veteran relayed the story concerning his attendance at the funeral of a fellow soldier and subsequent outburst causing him to fracture his hand.  In that statement, the Veteran reported that he had informed doctors that he "had fallen down some stairs and landed on the hand," so as to "prevent the misjudgment of his character."  Duplicates of treatment records submitted in March 2009 contain the Veteran's handwritten note stating that he did not initially disclose that he punched a door because he was embarrassed about the uncontrolled outburst.  He therein reported that the funeral had occurred on January 1, 2007, in Wolfboro, New Hampshire.

The Board notes that an internet search confirms that the funeral of fallen soldier by the name given by the Veteran was held in Wolfboro, New Hampshire, not on January 1, 2007, as reported by the Veteran, but rather on December 29, 2006.  Regardless, however, of whether the Veteran indeed attended that soldier's funeral, the Board finds that the Veteran is an incredible historian as to his assertion of how he fractured his right hand.  Although the Veteran has offered a plausible explanation for why he failed to disclose the nature of injury at the time that he sought treatment, the inconsistencies in the evidence, the point in time at which the explanation was offered, and lack of any supporting evidence leads the Board to doubt the Veteran's credibility.  The treatment records at the time of the injury indicate that the Veteran stated that he injured his hand when he fell from the back of his pick-up truck.  In his July 2008 statement, however, the Veteran stated that he had informed doctors that he "had fallen down some stairs and landed on the hand."  Further, the Veteran did not offer an explanation for the inconsistency between his story and the medical records until after he was denied an increased rating in March 2008.  Moreover, the Veteran has submitted no supporting evidence, such as a police report or a statement from his then wife concerning the true nature of events leading to the right hand fracture, despite the fact that he says that the police were called to the scene by his wife.  

In consideration of the evidence presented, the Board finds the Veteran's allegation that he injured his right hand during an uncontrolled outburst is not credible.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006) ("[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character."), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  As such, the Board will not consider the incident as alleged by the Veteran in evaluating the severity of his PTSD.

The Board is aware that in evaluating the severity of the Veteran's PTSD, "it is not the symptoms, but their effects, that determine the level of impairment."  Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002).  Here, the Board finds that the Veteran's symptoms have had no more than a mild to moderate effect on his ability to function prior, which level of impairment is adequately compensated by a 30 disability rating.  In this regard, the Board finds particularly persuasive the fact that VA examiners in January 2009 and June 2010 assessed the severity of the Veteran's PTSD symptoms as resulting in occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but found that generally the Veteran was functioning satisfactorily.  The examiners' assessments correspond with the criteria for a 30 percent rating.  

Although the Veteran believes that his PTSD symptomatology has a greater impact on his social and occupational functioning, the Board finds that the evidence suggests otherwise.  In terms of the Veteran's occupational functioning, the Veteran has alleged losing several jobs due to his PTSD symptomatology, stating that his termination in December 2007 was the result of his defiance towards the Director of the company and avoidance of work duties, and that he was again terminated in April 2008 for failing to adequately train.  Employment information obtained from these employers does indicate that the Veteran was terminated in December 2007 for reasons of performance issues and lack of sales in his territory.  Documentation also shows that the Veteran displayed disruptive behavior and failed his first test during his February 2008 orientation.  A co-worker indicated that the Veteran "imploded" while working on a group project, for which he later apologized.  

Notably, however, while the Veteran believes these behaviors to be the result of his PTSD, upon examination of the Veteran and consideration of his history, neither VA examiner concluded that the Veteran's PTSD resulted in more than an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  The Board also finds probative regarding the occupational impact of the Veteran's PTSD the fact that, during the relevant time period, the Veteran enrolled in school, obtained a Bachelor's degree, and began pursuing a Master's degree.  Although the report of private neuropsychological testing indicates that the Veteran was placed on academic probation and certain accommodations were requested in the academic setting, the evidence shows that it is the Veteran's ADHD that caused problems in school and required certain accommodations.  Because the Veteran's is not service-connected for ADHD, the Board will not consider the impact of that disability in evaluating the Veteran's PTSD.  (The Board again notes that a claim of service connection for ADHD has been referred to the AOJ for appropriate action.)  The Board also notes that the evidence of record suggests that the Veteran's problems with memory loss, lack of focus, and difficulty concentrating are also related to this ADHD.  Regardless, however, of whether these symptoms are attributable to ADHD or PTSD, the fact remains that two VA examiners have, in their capacities as medical professionals, perceived the occupational impact of the Veteran's PTSD to be equivalent to the criteria for a 30 percent rating.  

Regarding the social impact of the Veteran's PTSD, the Veteran has asserted that he and his wife divorced due to his PTSD symptomatology.  The Board notes that any compensable level of disability contemplates some amount of social impairment.  In the Veteran's case, however, the Board finds that the evidence does not contemplate a rating greater than 30 percent based on social impairment.  Although in his July 2008 statement, the Veteran stated that it was his substance abuse that had caused his wife to move out and file for divorce, the evidence is not clear as to whether the Veteran's substance abuse was related to his PTSD.  While the Veteran at points suggests that he abused alcohol in order to drown out the sadness and onslaught of media coverage of the war, he also indicated opiate addiction as a result of his Gulf War Illness.  Regardless, however, of whether or not the Veteran's ex-wife divorced him due to his PTSD symptomatology, the evidence indicates that the Veteran is an another relationship, which he describes as good, and shows that he maintains relationships with his children and family, and with some members of his unit, at least via the telephone.  This does not suggest that the Veteran has difficulty establishing and maintaining social relationships, such that a 50 percent rating would be warranted.  

The Board further notes that in assessing the evidence of record, it is important to consider the GAF scores of record.  The GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed.1994) (DSM-IV).  A GAF score of 71-80 indicates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).  A GAF score of 61-70 is defined as: "Some moderate symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships."  A GAF score of 51-60 is defined as: "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)."

The Veteran's GAF scores during the relevant time period have ranged from 58 to 71, representing overall impairment in the mild to moderate range.  Even in assigning a GAF score of 60 and noting moderate interference with employment, school, and social functioning, the VA examiners felt that overall the Veteran was functioning relatively well and that his PTSD symptoms resulted in occasional decreased in work efficiency and intermittent periods of inability to perform occupational tasks.  

Overall, the Board finds that the Veteran's symptoms and level of impairment equate to the level set forth for a 30 percent rating.  The Veteran has not displayed the types of symptoms suggestive of higher ratings, including panic attacks more than once a week, impaired judgment, impaired abstract thinking, memory impairment, difficulty in understanding complex commands, circumstantial speech, suicidal ideation, obsessional rituals, disorientation, hygiene neglect, delusions, and hallucinations.  The lack of this type of symptomatology is supported by the VA and private examiners' descriptions of the Veteran's PTSD symptoms and the assigned GAF scores.  Moreover, it is the VA examiners' opinions, as medical professionals, that the Veteran's PTSD symptomatology has no more than a 30 percent disabling effect on his overall level of functioning, as evidenced by their conclusions that the Veteran's PTSD symptoms resulted in occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  In light of this evidence, the Board finds no basis upon which to assign a rating greater than 30 percent for the Veteran's PTSD at any point during the claims period.


In finding that an evaluation greater than 30 percent is not warranted, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits.  The Board is unable to identify a reasonable basis for granting a rating in excess of 30 percent during the relevant time period.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102 (2013).

The above determinations are also based upon consideration of applicable rating provisions.  The Board also finds that the Veteran's disability level and symptomatology is adequately described by the rating criteria.  Indeed, the Veteran's symptomatology, to include nightmares, sleep disturbances, irritability, difficulty concentrating, memory loss, hypervigilance, exaggerated startle response, anger, and anxiety, are exactly the type of symptomatology contemplated by the rating criteria set forth in DC 9411.  Without sufficient evidence reflecting that the Veteran's disability picture is so "exceptional or unusual," such that the "the available scheduler evaluations for [his service-connected psychiatric disability] are inadequate," referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted.  Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); 38 C.F.R. § 3.321(b)(1) (2012).  

Lastly, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) based on a single service-connected disability is part of an increased rating claim when that issue is raised by the record.  But see In re Leventhal, 9 Vet. App. 387, 389 (1996) (holding that TDIU is a separate claim where based upon multiple service-connected disabilities).  In this case, the Board notes that in January 2011, the Veteran specifically sought TDIU, which claim was being processed by the AOJ.  However, a May 2012 report of general information indicates that the Veteran did not intend to file for TDIU and requested that the matter be withdrawn from consideration.  In light of the fact that the Veteran has specifically indicated that he does not desire TDIU and because the evidence shows that the Veteran is currently employed and has previously been employed or in school, and does not suggest unemployability on account of PTSD, the Board finds that it need not address entitlement to TDIU as part of the increased rating claim, as that issue has not been raised by the Veteran or by the record.  See Comer v. Peake, 552 F .3d 1362, 1366 (Fed.Cir.2009) (the issue of entitlement to TDIU is raised whenever there is "cogent evidence of unemployability, regardless of whether [the claimant] states specifically that he is seeking TDIU benefits"). 

III.  Effective Date

By way of background, the record shows that the Veteran was initially awarded service connection for an undiagnosed illness manifested by joint and muscle pain, fatigue, and headaches in January 2001, which disability was evaluated as 20 percent disabling, effective from August 31, 1999.  The Veteran disagreed with the assigned disability rating and appealed to the Board.  After once remanding the matter for further development, the Board issued a June 2006 decision wherein it denied a rating greater than 20 percent for the Veteran's undiagnosed illness manifested by joint and muscle pain, fatigue, and headaches.  The Veteran did not appeal the June 2006 Board decision to the Court and that decision therefore constitutes a final appellate determination as to the rating issue decided therein.  See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2013).

By letter dated in August 2007, the Veteran was informed that VA was required to periodically re-evaluate certain disabilities and an examination was scheduled for August 20, 2007, to assess the severity of his service-connected undiagnosed illness.  The Veteran failed to report for that examination and by rating action dated on August 30, 2007, the RO proposed to reduce the Veteran's undiagnosed illness disability rating to zero percent (noncompensable).  In response to that proposed action, the Veteran indicated that he was mistaken about the date of the examination and requested that the examination be rescheduled.  The Veteran submitted to his review examination on September 28, 2007, and in December 2007, the RO received from the Veteran a claim for an increased rating for his service-connected undiagnosed illness.  

By rating action dated in March 2008, the RO determined that the Veteran's disability was more appropriately rated under the diagnostic criteria pertaining to chronic fatigue syndrome, as the September 2007 VA examiner had determined that the Veteran met the criteria for a diagnosis of chronic fatigue syndrome at that time.  The RO thus recharacterized the Veteran's service connected disability as chronic fatigue syndrome and assigned a 60 percent rating based on the September 2007 VA examiner's findings and in light of the diagnostic criteria.  The 60 percent rating was made effective September 28, 2007, which the RO stated was the date upon which the evidence of record showed that his disability had increased in severity.  The Veteran disagreed with the assigned effective date for his 60 percent rating for chronic fatigue syndrome.  He maintains that he is entitled to an effective dated prior to September 28, 2007, because the symptoms associated with his service-connected disability have been of the same severity since the August 1999 effective date of his award of service connection.

Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.  See 38 U.S.C.A. § 5110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.400 (2013).  That is, the effective date of an award "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."  38 U.S.C.A. § 5110(a).  However, in a claim for increased compensation, the effective date may date back as much as one year before the date of the application for increase if it is factually "ascertainable that an increase in disability had occurred" within that timeframe.  38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2) (2013); see Gaston v. Shinseki, 605 F.3d 979, 982-83 (Fed. Cir. 2010).

Applicable regulations provide that a claim may be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit."  38 C.F.R. § 3.1(p) (2013).  Further, under VA regulations, "[a] report of examination or hospitalization" may constitute an "informal claim for benefits . . . if the report relates to a disability which may establish entitlement."  38 C.F.R. § 3.157(a) (2013).  Once a formal claim for compensation has been allowed, an informal claim for an increased disability rating "'will' be initiated by a report of examination or hospitalization for previously established service-connected disabilities."  Norris v. West, 12 Vet. App. 413, 417 (1999); see 38 C.F.R. § 3.157(b); see also Massie v. Shinseki, 25 Vet. App. 123, 132 (2011) ("It is self-evident that the purpose of § 3.157(b)(1) is to avoid requiring a veteran to file a formal claim for an increased disability rating where the veteran's disability is already service connected and the findings of a VA report of examination or hospitalization demonstrate that the disability has worsened"), aff'd Massie v. Shinseki, 724 F.3d 1325 (Fed. Cir. 2013).

Here, although the RO determined that the Veteran's increased rating claim stemmed from his December 2007 filing, application of 38 C.F.R. § 3.157(b) to the facts of the Veteran's case, as outlined above, necessitates a finding that the September 28, 2007, VA examination report constituted an informal claim for increase.  See Massie, 25 Vet. App. 134 (requiring, among other things, that a report of examination or hospitalization indicate that the service-connected disability worsened since the time it was last evaluated to be considered an informal claim under 38 C.F.R. § 3.157(b)).  Thus, the date of receipt of the Veteran's increased rating claim is September 28, 2007.  38 C.F.R. § 3.51(b)(1).  As such, the Veteran is only entitled to an effective date prior to September 28, 2007, for the assignment of a 60 percent rating if it is factually "ascertainable that an increase in disability had occurred" within the one-year period prior to September 28, 2007.  In this regard, the Board notes that the claims folder fails to contain any VA or private treatment records dated between September 28, 2006, and September 28, 2007, that show an increase in disability.  Given the absence of evidence relevant to the severity of the Veteran's chronic fatigue syndrome in the one-year period prior to receipt of his informal claim for increased compensation, it cannot be said that it is factually "ascertainable that an increase in disability had occurred" within the one-year period prior to September 27, 2007, such that effective date earlier than the date of his claim may be assigned.  38 U.S.C.A. § 5110(b)(2).

To the extent that the Veteran is arguing that his undiagnosed illness, now characterized as chronic fatigue syndrome was always more disabling than initially rated, the United States Court of Appeals for the Federal Circuit has stated: "It is clear from the plain language of 38 U.S.C. § 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim."  Gaston, 605 F. 3d. at 983.  Based upon the evidence in this case, the exact onset of the current level of disability of the chronic fatigue syndrome cannot be determined with any certainty.  The earliest that that it can be factually ascertained that he met the criteria for a 60 percent rating for chronic fatigue syndrome is September 28, 2007, the date he was examined by VA. Thus, based on a review of the evidence, there is simply no basis upon which to assign an effective date for the assignment of the 60 percent disability rating for the Veteran's chronic fatigue syndrome earlier than the date of his September 28, 2007, VA examination report.  38 U.S.C. § 5110(b)(2); 38 C.F.R. §§ 3.157, 3.400; see Gaston, supra.

IV.  Petition to Reopen Previously Denied Claim

The Veteran was originally denied service connection for a disability manifested by a positive mycoplasma test by way of an August 2000 rating decision.  In that decision, the RO determined that although laboratory results confirmed the presence of mycoplasma in the Veteran, the evidence failed to identify a disability of known or unknown etiology related to the positive mycoplasma test.  ("Mycoplasma" is defined as "a genus of bacteria" that are "parasites and pathogens widely distributed on the mucus membranes of humans, animals and birds."  See Dorland's Illustrated Medical Dictionary 1235 (31st ed.2007).)  The Veteran did not timely file a notice of disagreement (NOD) as to that decision and the August 2000 RO decision therefore became final.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2000).  

As a result of the finality of the August 2000 RO decision, a claim of service connection for a disability manifested by a positive mycoplasma test may now be considered on the merits only if new and material evidence has been received since the time of the last final denial.  38 U.S.C.A. § 5108 (West 2002); Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); 38 C.F.R. § 3.156 (2013).  Section 3.156(a) of title 38, Code of Federal Regulations provides the following definitions of new and material evidence:  

New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

38 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1356, 1359 (Fed. Cir. 1998).  In making the determination of materiality, the "credibility of the evidence is to be presumed."  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

To determine whether new and material evidence has in fact been submitted, the Board first must compare the evidence submitted since the previous final denial with evidence previously of record.  If the newly submitted evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not merely cumulative of other evidence that was then of record, it will be considered "new evidence" under 38 C.F.R. § 3.156(a).  If the evidence is in fact new, the Board will then consider whether it is also material.  

In this regard, the Board notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement.  See id. at 118, 124 (Lance, J. concurring).

In this case, the relevant evidence of record at the time of the August 2000 RO decision included:  certain STRs; VA outpatient treatment records; the reports of several VA examinations; lay statements; and a VA research study note.  In October 1999, the Veteran underwent a medical evaluation for the Persian Gulf Registry.  It was noted that prior to deployment the Veteran was in excellent health, but had developed a number of symptoms within several months of his return from Iraq.  The assessment was undiagnosed illness, with worsening of symptoms such as memory loss, joint pain, and fatigue.  In November 1999, the Veteran presented to VA with interest in participating in VA Cooperative Study #475.  He had blood drawn for mycoplasma and routine blood work and it was determined that he met the inclusion/exclusion criteria for the study.  A general medical examination was conducted in March 2000, the report of which noted that the Veteran had tested positive for mycoplasma and was part on an ongoing study for Gulf War veterans who had positive mycoplasma tests.  The examiner indicated that at that time, no disability could be identified based on the positive test.  As there existed no evidence of a current disability, the RO denied service connection for a disability manifested by a positive mycoplasma test.

Since the August 2000 RO decision, the relevant evidence that has been added to the record includes:  additional STRS; VA treatment records; private medical records; VA examination reports; lay statements from the Veteran, to include his RO and Board hearing testimony; records related to VA Cooperative Study #475; articles discussing mycoplasma; and information from the Under Secretary for Benefits in response to a congressional inquiry.  

In a November 2000 statement, the Under Secretary for Benefits discussed the fact that a positive test for mycoplasma incognitus did not represent the presence of disease.  The Under Secretary explained that mycoplasma is a type of organism present in numerous global locations and could be found in healthy individuals.  He further stated that mycoplasma could give rise to symptoms such as fever, diarrhea, and blood abnormalities in certain individuals and that the relationship of mycoplasma and service in the Gulf War was being studied in a large percentage of Gulf War veterans.  A November 2001 letter to the Veteran regarding VA Cooperative Study #475 indicated that he had received a placebo during his participation in the study.  It was noted that VA was working to determine whether a one-year course of doxycycline could improve the symptoms of Gulf War Illness.  The Veteran also submitted an article excerpt indicating the more than 60 percent of patients with chronic fatigue syndrome were found to have mycoplasmal blood infections.

The Veteran's VA treatment records reveal evidence of various symptoms, to include gastrointestinal symptoms, joint pain, and headaches, but none of the treatment record suggest that any such symptoms are related to the presence of mycoplasma in the Veteran.  The newly associated records also contain a diagnosis of chronic fatigue syndrome, for which the Veteran is receiving service-connected disability compensation.  

During his November 2012 RO hearing, the Veteran alleged that his chronic fatigue syndrome, memory loss, and decreased concentration are related to his positive mycoplasma test.  During his July 2013 Board hearing, the Veteran discussed his positive mycoplasma test and suggested that mycoplasma could have caused his chronic fatigue syndrome, headaches, and/or fibromyalgia-like symptoms, but stated that no doctor had ever linked of those disabilities to the presence of mycoplasma.

Concerning the Veteran's previously denied claim of service connection for a disability manifested by a positive mycoplasma test, the Board finds that the evidence associated with the claims folder since the August 2000 RO decision does not constitute new and material evidence sufficient to reopen that claim.  Notably, while the evidence may be new in that it was not previously before the AOJ, none of the evidence suggests that the Veteran indeed has a disability resulting from the presence of mycoplasma.  As noted by the Under Secretary, mycoplasma itself does not represent the presence of a disease and may be found in healthy individuals.  Although the Veteran alleges a variety of symptoms and diagnoses to be related to his positive mycoplasma test, the Veteran himself has stated that no medical professional has ever attributed any diagnosed disability to mycoplasma.  Further, the Veteran is already service-connected for chronic fatigue syndrome, so the question of whether that disability is possibly related to mycoplasma is moot.  Moreover, while the Under Secretary noted that mycoplasma could give rise to various symptoms, as discussed in other parts of this decision and in the remand that follows, the evidence suggests that those symptoms are or may be manifestations of Gulf War Syndrome and does not indicate a relationship to the positive mycoplasma test.

Accordingly, because the evidence associated with the claims folder since the August 2000 RO decision fails to suggest that the Veteran has a disability, or symptoms of a disability, that is the result of mycoplasma, the newly associated evidence cannot be considered new and material evidence sufficient to reopen the claim because it does not relate to an unestablished fact necessary to substantiate the claims of service connection for a disability manifested by a positive mycoplasma test.  

The Board has also considered whether the newly associated evidence triggers VA's duty to assist, but finds that it does not.  Although the Veteran's symptomatology may be indicative of a disability, there is simply no evidence to suggest that any symptomatology for which the Veteran is not already receiving service connected disability compensation "may be associated" with a positive mycoplasma test.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (discussing when duty to provide a medical examination is triggered).  Indeed, the Veteran himself has stated that no doctor had ever suggested a link between any symptoms/disability and the presence of mycoplasma.

In sum, the evidence associated with the claims folder since the August 2000 RO decision does not relate to an unestablished fact necessary to substantiate the claim of service connection for a disability manifested by a positive mycoplasma test.  The evidence also does not trigger VA's duty to assist.  Accordingly, the Board finds that new and material evidence has not been submitted.  Thus, the petition to reopen the claim of service connection for a disability manifested by a positive mycoplasma test must be denied.  See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).  As new and material evidence to reopen the finally disallowed claim has not been received, the benefit-of-the-doubt doctrine is not applicable.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).


ORDER

Entitlement to service connection for tinnitus is granted, subject to the law and regulations governing the payment of VA benefits.

Entitlement to service connection for hearing loss is denied.  

Entitlement to service connection for residuals of a TBI is denied.

Entitlement to a rating in excess of 30 percent for PTSD is denied.

Entitlement to an effective date earlier than September 28, 2007, for the award of a 60 percent rating for chronic fatigue syndrome is denied.

As new and material evidence to reopen a claim of service connection for disability manifested by a positive mycoplasma test has not been received, the claim to reopen is denied.

REMAND

In filing his claim of service connection for a gastrointestinal disorder, the Veteran stated that he was seeking compensation benefits for a "gastrointestinal condition, to include GERD [(gastrointestinal reflux disease)], acid reflux, hiatal hernia, and any other intestinal problem as a direct service-connected disability, and also possibly secondary to a mental condition/PTSD."  Notably, in its December 2008 decision, the RO denied service connection for a gastrointestinal condition, to include GERD, acid reflux, hiatal hernia, irritable bowel syndrome, and diarrhea, upon finding that the evidence failed to reflect a clinically diagnosed gastrointestinal condition related to service.  The RO failed, however, to adjudicate the Veteran's claim on a secondary basis.  In his NOD, the Veteran asserted, among other things, that the RO failed to consider all theories of entitlement raised.  In no subsequent adjudicative action does the AOJ consider whether service connection for a gastrointestinal disorder may be warranted secondary to the Veteran's service-connected PTSD.  

Further, the Veteran's VA treatment records contain multiple complaints of gastrointestinal symptoms, as well as an indication that the Veteran may have GERD.  The treatment records do not, however, suggest an etiology of the Veteran's gastrointestinal symptoms, nor has the Veteran been afforded a VA examination in connection with his claim.  As noted above, the Veteran is a Persian Gulf War veteran.  With regard to claims based on service in the Southwest Asia theater of operations during the Persian Gulf War, service connection for chronic, undiagnosed illness (or a medically unexplained chronic multisymptom illness such as fibromyalgia, chronic fatigue syndrome, or irritable bowel syndrome) arising from service in Southwest Asia during the Gulf War may be established under 38 U.S.C.A. § 1117 (West 2002) and 38 C.F.R. § 3.317 (2011).  An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis.  Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R. § 3.317(b).

Although the Veteran is service connected for chronic fatigue syndrome, previously characterized as an undiagnosed illness manifested by joint and muscle pain, fatigue, and headaches, it does appear as though his gastrointestinal complaints have been considered as part of a service-connected disability.  Accordingly, in light of the Veteran's service in the Southwest Asia theater of operations during the Persian Gulf War, and as it is unclear whether the Veteran's gastrointestinal symptoms are attributable to any known clinical diagnosis, the Board finds that the evidence of record raises a question as to whether the Veteran's symptoms are manifestations of an undiagnosed illness, as those symptoms are precisely the type of symptoms mentioned in 38 C.F.R. § 3.317(b).  Accordingly, the Board finds that the Veteran's claims of service connection for a gastrointestinal disability must be remanded for the Veteran to be afforded a VA examination that fully assesses the nature and etiology of the claimed disability, as the evidence of record does not contain sufficient medical evidence to decide these claims.  38 U.S.C.A § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013).  As part of the examination to be afforded on remand, if the Veteran is diagnosed as having GERD or some other disability manifested by gastrointestinal symptoms, the examiner should consider whether his PTSD has caused or made chronically worse his gastrointestinal disability.  

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

1.  The AOJ should send to the Veteran a new VCAA notice letter with regard to the issue of entitlement to service connection for a gastrointestinal disability.  The letter should notify the Veteran the information and evidence necessary to substantiate a claim of service connection on a direct basis, a secondary basis, and as a result of an undiagnosed illness.  The Veteran should be given an opportunity to respond to the notice, and any additional information or evidence received should be associated with the claims file.

2.  Then, schedule the Veteran for an examination with an appropriate specialist to determine the nature and etiology of any disability manifested by gastrointestinal symptoms, to include, but limited to reflex, diarrhea, and irritable bowels.  The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner in conjunction with the examination.  All studies, tests, and evaluations should be performed as deemed necessary by the examiner and the results of any testing must be included in the examination report.  

All pertinent pathology shown on examination should be annotated in the evaluation report and the examiner should provide clear diagnoses of any identified disability manifested by the complained of gastrointestinal symptoms.  

After a careful review of the claims folder, including consideration of physical examination and any objective testing results, the examiner should identity whether the Veteran's complaints of gastrointestinal symptoms can be attributed to any diagnosed disability and, if so, opine as to whether it is at least as likely as not, i.e. 50 percent probability or greater, that any currently diagnosed disability manifested by gastrointestinal symptoms had its onset during the Veteran's active duty or is otherwise causally or etiologically related to his active service or any incident therein.  

The examiner should also indicate whether it is at least as likely as not that any diagnosed gastrointestinal disability was caused, or aggravated (chronically worsened), by the Veteran's PTSD.

If the Veteran's complaints of gastrointestinal symptoms cannot be attributed to any known clinical diagnosis, the examiner should indicate whether such symptomatology represents an objective indication of a chronic disability resulting from an undiagnosed illness related to the Veteran's confirmed Persian Gulf War service.

The examiner should also provide an opinion as to whether the Veteran's claimed symptoms, regardless of diagnosis, can be collectively linked with other complained of symptoms to a medically unexplained chronic multisymptom illness, such as irritable bowel syndrome.

If the examiner determines that he/she cannot provide an opinion on any issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined.  In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion.  (The AOJ should ensure that any additional evidentiary development suggested by the examiner is undertaken so that a definite opinion can be obtained.)

A full and complete rationale for all opinions expressed is required.  Regardless of whether the examiner's opinion is favorable or negative, he/she must provide support for all opinions rendered that includes reference to lay or medical evidence contained in the claims file, if appropriate, or to known medical principles relied upon in forming his opinion. 

3.  After undertaking any other development deemed appropriate, the AOJ should review the record and re-adjudicate the issue of entitlement to service connection for a gastrointestinal disorder, to include as a result of an undiagnosed illness or as a result of service-connected disability.  The AOJ's readjudication must include consideration of whether the Veteran has a gastrointestinal disorder that was caused or made chronically worse by his PTSD.  If any benefit sought is not granted, the Veteran should be furnished with an SSOC and afforded an opportunity to respond before the record is returned to the Board for further review.

Thereafter, the case should be returned to the Board for further appellate review.  By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified.  The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

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.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs