Citation Nr: 1754312 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 14-00 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Prior to February 3, 2014, entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Beginning February 3, 2014, entitlement to an evaluation in excess of 70 percent for PTSD. 3. Entitlement to service connection for residuals of exposure to hazards in the Gulf War, claimed as chronic fatigue syndrome. 4. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD N. Brown, Associate Counsel INTRODUCTION The Veteran had active duty in the Army from October 2004 to December 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2010 and December 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In January 2016, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ), and this case has been returned for appellate consideration. This appeal was processed using the VBMS and Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issues of service connection for residuals of exposure to hazards in the Gulf War, now claimed as chronic fatigue syndrome, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. Prior to February 3, 2014, the Veteran's PTSD was manifested by nightmares, anxiety, panic attacks, depressed mood, discomfort in crowds, and mild memory loss, which are adequately contemplated by the 30 percent disability evaluation. 2. Beginning February 3, 2014, the Veteran's PTSD was manifested by obsessional rituals which interfere with routine activities; depressed mood; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships, which are adequately contemplated by the 70 percent disability evaluation. CONCLUSIONS OF LAW 1. Prior to February 3, 2014, the criteria for an initial evaluation in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. Beginning February 3, 2014, the criteria for an evaluation in excess of 70 for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). As noted above, the Board remanded this matter in January 2016. The Board instructed the AOJ to obtain any outstanding treatment records and to readjudicate the claim. Subsequently, additional treatment records were obtained, and his claims were readjudicated in a January 2017 supplemental statement of the case (SSOC). While there is no indication that the records from the Alexandria, Virginia Community Based Outreach Center (CBOC) were obtained, the VA requested a VA Form 21-4142, Authorization to Disclose Information, from the Veteran in September 2016. A review of the claims file indicates that this authorization was never returned. In January 2017, the Veteran was contacted and asked whether he had any additional evidence to submit regarding his claim, to which he replied no. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Disability Evaluations Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7 (2017). Although the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. PTSD In December 2013, the RO assigned an initial 30 percent evaluation for PTSD under DC 9411, effective December 19, 2008. In February 2014, the initial disability rating assigned to the Veteran's PTSD was increased to 70 percent, effective February 3, 2014. Under DC 9411, a 30 percent disability rating is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted where 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. A 70 percent rating is warranted where the psychiatric condition produces occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A maximum 100 percent rating is warranted where there is total occupational or social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place, memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411 (2017). The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the United States Court of Appeals for Veterans Claims (Court) also pointed out in that case, "[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. Furthermore, with specific regard to the 70 percent rating, the Federal Circuit has recently held that such rating "requires sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Prior to February 3, 2014 The Veteran, in a statement accompanying his January 2014 Appeal, asserted that he is entitled to at least a 50 percent disability rating for PTSD. The Veteran stated that he had panic attacks on average 3 times a week, disturbances of motivation and mood, forgetting to complete tasks, difficulty in establishing and maintaining effective work and social relationships, and difficulty in understanding complex commands. The Veteran reported that since beginning the disability process, he has attended four different colleges, worked with four different employers (the only stable job was with his father), and had to reschedule numerous VA PTSD meetings, business meetings, and social meetings due to decreased reliability and productivity. In a November 2012 VA treatment record, the Veteran was noted to have PTSD with nightmares, anxiety, avoidance of crowds, and startle hypervigilance. The Veteran reported that he was married, and worked for his father. His hobbies included hiking and playing with dogs. The treating physician noted a history of depression. In a January 2013 VA treatment record, the Veteran reported having anxiety attacks 2-3 times per day during the past week, and nightmares almost nightly. He had a prescription for Hydroxyzine for anxiety, and reported that it was ineffective. The Veteran stated that this time of year was more difficult as it was the anniversary of deaths that occurred in his company during the war. The Veteran was started on Paroxetine for depression/anxiety and Prazosin for nightmares. On a September 2013 VA examination, the Veteran reported being married for two years, but that it had been rough because of him and they were attending marriage counseling. He and his wife attended church, as his faith is important to him. The Veteran stated that he had some friends and socialized on occasion, but added that he only saw one other person other than his wife. The Veteran found that he could not relate to a lot of people and did not care about the same things. He was still close to his older brother and parents, and enjoyed fishing, hiking, and coaching youth lacrosse. The Veteran reported working from home doing paralegal work for his father's law office. He also worked as a realtor, but his abrasiveness lost him a few clients. The examiner noted that the Veteran had recurrent and distressing recollections of his traumatic events, including images, thoughts, or perceptions. There was also physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. The Veteran made efforts to avoid thoughts, feelings, or conversations associated with the trauma. He also made efforts to avoid activities, places or people that arouse recollections of the trauma. The Veteran experienced a feeling of detachment or estrangement from others, difficulty falling or staying asleep, irritability or outbursts of anger, hypervigilance, and exaggerated startle response. He also showed signs of anxiety, suspiciousness, chronic sleep impairment, discomfort in crowds, and mild memory loss (such as forgetting names, directions, or recent events). In a December 2013 lay statement, the Veteran's mother provided an overview of changes that she noticed in the Veteran upon his return from service. She stated that the Veteran was unable to put sentences together in the correct order, stammering and hesitating constantly while formulating what he was going to say. (see November 2012 VA treatment record - since experiencing a head injury in service, the Veteran has had slurring speech which was worse during anxiety, memory lapses, and cannot continue sentences). The Veteran consistently suffered from terrible migraine headaches, anxiety attacks, restlessness, interrupted concentration, and nightmares. She stated that it was almost impossible for the Veteran to be in a crowded setting. She noted that the Veteran jumped from one job to another, and attempted to work for several other companies but none of those jobs lasted more than a few weeks. The Veteran's mother mentioned that he had been fortunate enough to work for his father, as he displayed an inability to build and maintain work and personal relationships. A January 2014 lay statement from the Veteran's wife detailed his anxiety in large crowds, his overall alertness, nightmares, night sweats, and insomnia. She stated that his lack of sleep led to tiredness, a lack of energy, short-temperedness, and lack of focus on daily tasks, jobs, etc. A fellow comrade, who resided with the Veteran since November 2013, wrote a statement in January 2014, where he spoke of the Veteran's difficulty in large crowds, anxiety, and difficulty sleeping at night. The comrade observed the Veteran have nightmares and night sweats, and on several occasions, heard him wake up grunting, screaming, or moaning. Based on the evidence, the Board finds that the Veteran does not meet the criteria for an evaluation in excess of the 30 percent evaluation prior to February 3, 2014. He does meet two of the criteria for a 50 percent evaluation as he was noted to have panic attacks more than once a week, and difficulty in establishing and maintaining effective work and social relationships. However, the Veteran has not been shown to have flattened effect; circumstantial, circumlocutory, or stereotyped speech; 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; or disturbances of motivation and mood. His main PTSD symptoms were nightmares, anxiety, panic attacks, depressed mood, discomfort in crowds, and mild memory loss, which are adequately contemplated by the 30 percent disability evaluation. While the examiner noted that the Veteran had difficulty establishing and maintaining effective relationships, the Veteran has had a stable job working for his father, and is close to his older brother and parents. He also has some friends and socializes on occasion. The Veteran expressed some difficulty in his marriage, but noted that he and his wife are going to marriage counseling. Beginning February 3, 2014 In a February 2014 private examination, the examiner noted that the Veteran had difficulty relating to teachers and to clients. Educationally, he would become stuck on issues. The Veteran displayed PTSD symptoms of insomnia, nightmares, frightening dreams, intrusive memories, and flashbacks. He also suffered from short-term memory loss, and found it difficult to retain material, forgetting to complete tasks. The Veteran showed apathy and moodiness, with disturbances in motivation. The examiner noted efforts to arrange marriage counseling and stated that the Veteran changed work at realty companies. In evaluating the Veteran, the examiner noted that he showed the following PTSD symptoms: depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events), flattened affect, difficulty in understanding complex commands, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances (including work or a work like setting), inability to establish and maintain effective relationships, obsessional rituals which interfere with routine activities, impaired impulse control (such as unprovoked irritability with periods of violence), neglect of personal appearance and hygiene, and disorientation to time or place. The examiner remarked that the Veteran suffered from impairment of short and long-term memory loss, retaining only highly learned material. Based on the evidence, the Board finds that the Veteran does not meet the criteria for an evaluation in excess of the 70 percent evaluation beginning February 3, 2014. He does not meet any of the criteria for a 100 percent evaluation. His main PTSD symptoms included obsessional rituals which interfere with routine activities; depressed mood; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships, which are adequately contemplated by the 70 percent disability evaluation. The Board has considered whether a higher rating might be warranted for any period of time during the applicable period. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the weight of the credible evidence demonstrates that prior to February 3, 2014, the Veteran's PTSD did not warrant a disability rating in excess of 30 percent, and beginning February 3, 2014, the Veteran's PTSD did not warrant a disability rating in excess of 70 percent. As the preponderance of the evidence is against the claim for an increased disability rating, the benefit of the doubt rule does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Prior to February 3, 2014, an initial evaluation in excess of 30 percent for PTSD is denied. Beginning February 3, 2014, an evaluation in excess of 70 percent for PTSD is denied. REMAND Residuals of Exposure to Hazards in the Gulf War The Veteran asserts that he is entitled to service connection for residuals of exposure to hazards in the Gulf War. He specifically reported daytime fatigue and somnolence in October 2013, and a January 2014 Statement of the Case included these symptoms in its evaluation, recharacterizing the issue to include chronic fatigue syndrome. In January 2016, the Board remanded the claim, finding that there were no medical opinions addressing the etiology of the Veteran's fatigue. The remand instructions requested that the Veteran undergo a VA examination to determine whether his symptoms of fatigue were related to his military service, or to a service-connected disability, including PTSD, traumatic brain injury (TBI), and sleep apnea. In a September 2016 VA examination report, the Veteran was not diagnosed with chronic fatigue syndrome. However, the Veteran did report feeling tired all the time, and in the Findings, Signs, and Symptoms Section, the examiner noted that the symptoms were nearly constant. The examiner referenced the Veteran's two prior sleep studies in 2013 and 2014, and concluded that the Veteran should be on continuous airway pressure (CPAP). In an associated opinion, the same examiner noted that the Veteran had never been seen or evaluated for chronic fatigue so diagnosis of the condition was not present. The examiner stated that fatigue was one of the most common complaints associated with sleep apnea, and the Veteran would need to get a new sleep study with titration to see if the fatigue resolves before a diagnosis of chronic fatigue can be made or even evaluated. In January 2017, the examiner issued an addendum opinion, finding that the VA was unable to have the Veteran complete a sleep study due to time constraints. Further, in order to rule out fatigue caused by chronic fatigue syndrome, the examiner stated that the Veteran would need to use a CPAP machine for a minimum of six months. Finally, the Veteran would need to start seeing a physician for the fatigue and begin a comprehensive workup. On remand, all of these steps should be taken. TDIU Consideration of the claim for a TDIU is inextricably intertwined with the pending claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (noting that issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). On remand, an opinion regarding the Veteran's employability should be obtained. Accordingly, the case is REMANDED for the following actions: 1. After receiving the necessary authorization, obtain and associate with the claims file all of the Veteran's relevant outstanding private and VA Medical Center treatment records. If after making such a request, a negative response is received, this must be documented in the claims file and the Veteran must be properly informed. 2. After any additional records are associated with the claims file, schedule the Veteran for a sleep study with titration. Please inform the Veteran of any additional tests, evaluations, or studies that must be conducted, and the possible wait time involved. If the results of the sleep study indicate that the Veteran needs to be on CPAP, then inform the Veteran that his fatigue can be further evaluated once he has been on CPAP for a minimum of six months. 3. Once these actions have been taken, provide an examination to determine the nature and etiology of the Veteran's fatigue. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. The Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation. The examiner must determine the following: * Whether it is as likely as not (50 percent or greater probability) that the Veteran's fatigue manifested in service or is otherwise related to his military service. * Whether it is as likely as not (50 percent or greater probability) that the Veteran's fatigue is caused by or permanently aggravated by his service-connected PTSD. * Whether it is as likely as not (50 percent or greater probability) that the Veteran's fatigue is caused by or permanently aggravated by his service-connected TBI. * Whether it is as likely as not (50 percent or greater probability) that the Veteran's fatigue is caused by or permanently aggravated by his service-connected sleep apnea. * If, and only if, the examiner finds that the Veteran's symptoms of fatigue are not due to his active duty service or any service-connected disability, the examiner must provide an opinion as to the etiology of the Veteran's symptoms of fatigue. A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to offer the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 4. The AOJ should obtain an addendum opinion for the Veteran's TDIU claim. The claims file should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. The examiner should elicit and set forth pertinent facts regarding the Veteran's medical history, education and employment history, day-to-day functioning, and social and industrial capacity, to include his current enrollment in a vocational rehabilitation program. Specifically, the examiner should determine whether the Veteran's service-connected disabilities (PTSD, migraine headaches, obstructive sleep apnea, left knee sprains and strains, tinnitus, traumatic brain injury, lumbar strain, right ankle sprain/strain, left foot sprain/strain, right foot sprain/strain, and folliculitis) render him unable to secure or follow a substantially gainful occupation. In providing the opinion, the examiner should describe the Veteran's employment history, and provide a full description of the effects, to include all associated limitations, of each of the Veteran's service-connected disabilities on his daily activities, to include his employability, taking into consideration his level of education, any special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities, and ascertain the combined impact of the Veteran's service-connected disabilities on his ability to work. A written copy of the report should be associated with the claims folder. 5. Once the above actions have been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be adjudicated. 6. If the benefits sought on appeal are not granted in full, the Veteran should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs