Citation Nr: 1802623	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  12-15 483	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for sleep apnea, to include as due to exposure to environmental hazards and/or posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to exposure to environmental hazards.

3.  Entitlement to service connection for a disorder manifested by fatigue to include as secondary to sleep apnea, PTSD, or as due to an undiagnosed illness under 38 C.F.R. § 3.317.

4.  Entitlement to an initial evaluation in excess of 30 percent for chronic headaches. 

5.  Entitlement to an evaluation in excess of 50 percent for PTSD.

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

7.  Entitlement to an effective date earlier than March 30, 2012, for the award of service connection for chronic headaches.


REPRESENTATION

Veteran represented by:	Sean Cuddigan, Attorney


WITNESSES AT HEARING ON APPEAL

Veteran and S.M.


ATTORNEY FOR THE BOARD

Leanne M. Innet, Associate Attorney


INTRODUCTION

The Veteran served on active duty from October 1983 to September 1991, including receipt of the Southwest Asia Service Medal with two Bronze Stars.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from the following rating decisions of the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska (RO), in pertinent part: an October 2011 rating decision denying service connection for sleep apnea; a July 2012 rating decision denying service connection for fatigue and GERD; a September 2015 rating decision denying an increase disability evaluation for service-connected PTSD and denying TDIU; and a January 2016 rating decision granting service connection for chronic headaches evaluated as 30 percent disabling effective March 30, 2012.

In January 2014, a videoconference hearing was held before a Veterans Law Judge (VLJ) who is no longer employed with the Board, and a transcript is of record.  As the VLJ who presided at a hearing must participate in the decision on the claim, the Veteran was offered the opportunity for another hearing before the VLJ who would decide his case.  38 U.S.C. § 7107(c) (2012); 38 C.F.R. § 20.707 (2017).  By letter dated in October 2017, the Veteran's attorney waived the right to such hearing.

On the Veteran's April 2016 VA Form 9, the Veteran requested a hearing by videoconference, which the Veteran withdrew through his attorney's December 2017 brief.

When the case was returned to the Board after its October 2014 remand, in August 2016, the Board remanded again for further development of the issues of service connection for sleep apnea, GERD, and fatigue.  Those issues have been returned for appellate consideration, and as discussed below, the Board finds that there has not been substantial compliance with its August 2016 remand.  As such, the Board may not proceed with a determination on the merits of these issues at this time.  See  Stegall v. West, 11 Vet. App. 268, 271 (1998).

Generally, the Board may not consider evidence not previously reviewed by the Agency of Original Jurisdiction (AOJ) unless a waiver of initial AOJ review is obtained from the veteran.  Disabled Am. Veterans v. Sec'y of Veterans Aff., 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304(c) (2017).  If, however, a veteran files a substantive appeal on or after February 2, 2013, as occurred here on the Veteran's chronic headaches, PTSD, and TDIU claims, an automatic waiver of initial AOJ review is implied for new evidence submitted to the AOJ or the Board.  38 U.S.C. § 7105(e) (2012).  Because the Veteran filed his substantive appeal after February 2, 2013, and neither he nor his representative has specifically requested initial AOJ consideration of the evidence, such waiver is presumed for the following evidence presented by the Veteran:  September 2016 headaches disability benefits questionnaire presented February 2017; January 2017 PTSD disability benefits questionnaire; and November 2017 private psychological assessment.

This appeal was processed using the Virtual VA (VVA) and Veterans Benefits Management System (VBMS) paperless claims processing systems.  Accordingly, any future review of this Veteran's case should take into consideration the existence of these electronic records.

The issues of service connection for sleep apnea, GERD, and fatigue are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


 FINDINGS OF FACT

1.  The Veteran experienced prostrating headaches with characteristic attacks more frequently than once a month but which were not completely prostrating and prolonged attacks productive of severe economic inadaptability.

2.  Throughout the appellate period, the Veteran's symptoms of PTSD have been manifested by occupational and social impairment with deficiencies in most areas.

3.  The evidence of record shows that the Veteran's service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation.

4.  VA received the Veteran's claim for service connection for chronic headaches on March 30, 2012.

5.  A formal or informal claim for service connection for chronic headaches was not received prior to March 30, 2012.


CONCLUSIONS OF LAW

1.  The criteria for a disability rating in excess of 30 percent for chronic headaches have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R.        §§ 3.159, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8100 (2017).

2.  The criteria for a 70 percent evaluation, but no higher, for PTSD have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2017).

3.  The criteria for a TDIU have been met.  38 U.S.C. § 1155 (2012); 38 C.F.R.     §§ 3.340, 3.341, 4.16, 4.18, 4.19, 4.25 (2017).

4.  The criteria for an effective date earlier than March 30, 2012, for the grant of service connection for chronic headaches have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400, 3.816 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating claims for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159(b) (2017).  The Veteran has not raised any 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 such, the Board will now review the merits of the Veteran's claims.

Law and Analysis

In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied.  See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

Here, the Board reviewed all evidence in the claims file, with an emphasis on that which is relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claims.

INCREASED RATINGS

Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran's symptoms to the criteria in the rating schedule.  38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017).  Disability evaluations are determined by assessing the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the ratings schedule.  Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity.  See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2 (2017).  If there is a question as to which evaluation should be applied to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).

The primary focus in a claim for increased rating is the present level of disability.  Although the overall history of the veteran's disability shall be considered, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal.  Fenderson v. West, 12 Vet. App, 119, 125-126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Chronic Headaches

The Veteran contends that his service-connected chronic headaches are more disabling than contemplated by the initial 30 percent evaluation.  The Veteran's chronic headaches are rated as 30 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017).

Under Diagnostic Code 8100, a rating of 50 percent is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; a 30 percent rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months; a 10 percent rating is warranted for migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months; and a noncompensable rating is warranted for less frequent attacks.  See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2016).

Neither the rating criteria nor the United States Court of Appeals for Veterans Claims (Court) has defined that which constitutes a "prostrating" attack.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999) (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack).  By way of reference, in Dorland's Illustrated Medial Dictionary 1531 (32d ed. 2012), "prostration" is defined as "extreme exhaustion or powerlessness."  The rating criteria also do not define "severe economic inadaptability."  However, nothing in Diagnostic Code 8100 requires that the Veteran be completely unable to work to qualify for a 50 percent rating.  Pierce v. Principi, 18 Vet. App. 440, 446 (2004).

In an October 2011 statement in support of claim, in which the Veteran provided a notice of disagreement to the evaluation of disability assigned for his service-connected PTSD, the Veteran stated that he had not been able to work for three years due to PTSD.

In a May 2015 Social Security Administration (SSA) Decision, an administrative law judge found that the Veteran had the following severe impairments:  PTSD, type II diabetes mellitus with neuropathy, degenerative joint disease of the right knee, obesity, sleep apnea, and a history of multiple traumatic brain injuries.

In an August 2015 statement in support of claim, the Veteran stated that the reasons he was not working were problems interacting with people, mood swings, being laid off followed by deterioration of his health.

In January 2016, the Veteran was afforded a VA examination for headaches, which included an in-person examination and complete review of the claims file.  It was noted that the Veteran was diagnosed as having chronic headaches that were service-connected.  It was noted that the Veteran was taking Topamax daily, which the Veteran reported provided some degree of benefit.  The Veteran reported experiencing headaches on average of two times a month, lasting hours up to a day in duration.  The pain occurred in the temples and produced frontal pain on both sides of the head.  He reported that the headaches may be accompanied by light and sound sensitivity, nausea, and some vomiting on occasion.  He reported that bumping of the head and quick head movements can trigger a headache.  The Veteran reported that his headaches are always incapacitating to some nature.  He reported seeing a neurologist on a monthly basis.  The examiner indicated that the Veteran experienced a prostrating attack of once a month during the last several months.  It was opined that these prostrating attacks were not productive of severe economic inadaptability.  But the examiner did indicate that the Veteran's headaches impacted his ability to work.

In September 2016, the Veteran's treating neurologist prepared a headaches disability benefits questionnaire, which was presented February 2017.  The clinician indicated that the Veteran had been diagnosed as having migraines in February 2015.  It was indicated that the Veteran was prescribed three medications for his migraines.  The clinician indicated that the Veteran experienced constant head pain; pulsating or throbbing head pain; pain that was on both sides of the head; pain worsened with activity.  The clinician also indicated that the Veteran's chronic headaches were daily and that he experienced nausea, light and sound sensitivity, and changes in vision, including flashes of light.  The clinician indicated that the Veteran's headaches were often unilateral but would alternate sides.

The clinician indicated that the Veteran had characteristic prostrating attacks of migraine pain more frequently than once per month, and responded affirmatively that the Veteran had very frequent prostrating and prolonged attacks of migraine headache pain.  The clinician also indicated that the Veteran had very frequent prostrating and prolonged attacks of non-migraine headache pain.  The clinician assessed that the Veteran also had depressed mood secondary to his frequent debilitating headaches.

The clinician noted that the Veteran's headaches were markedly aggravated by head movement, especially when abrupt.  The clinician related that the headaches were very incapacitating and that the Veteran took prophylaxis medication to help with their frequency and severity.  The clinician related that the Veteran's headaches are frequently completely incapacitating, lasting 12 to 18 hours and occurring on a daily basis.  The clinician opined that this has reduced the Veteran's ability to sustain economic gain.  The clinician related that in addition to the pain of the headaches, the Veteran was irritable because of them, which interfered with competitive employment as well as social life.

The clinician noted that VA has not approved the use of Botox for migraine prophylaxis so the Veteran will remain reliant upon oral medications, which is not a completely successful approach to preventing headaches.

The Veteran's VA medical records show that on his recurrent list of current medications he has been prescribed medication to be taken twice a day to prevent headaches.

In September 2015, the Veteran was afforded a VA examination for PTSD, during which the Veteran's chronic headaches were not significant to his mental health and ability to function.  The Veteran presented a January 2017 PTSD disability benefits questionnaire prepared by his treating psychiatrist in which, again, the Veteran's chronic headaches were not noted as being relevant to the Veteran's mental health and ability to function.

The Board notes that the Veteran is competent to report that which he perceives through the use of his senses, including the occurrence of prostrating headaches.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses).  He is not, however, competent to state whether his symptoms warrant a specific rating under the General Rating Formula.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

The Board has the responsibility of weighing the medical evidence, and in doing so, the Board may place greater weight on one physician's opinion over another depending upon factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-04 (2008).

Based upon a careful review of the foregoing, the Board finds that an increased initial evaluation in excess of 30 percent disabling is not warranted.  The preponderance of the evidence of record shows that the Veteran's chronic headaches were not manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  The evidence shows that the Veteran experiences painful headaches on a daily basis, which last for hours, despite taking medication to prevent them.  But the record does not show that the Veteran's headaches resulted in severe economic inadaptability.

In the January 2016 VA examination report, the examiner clearly indicated that the Veteran's prostrating attacks were not productive of economic inadaptability.  In the September 2016 report of the private examination, the examiner stated that the Veteran's prostrating headaches would reduce his ability to sustain economic gain but the examiner did not indicate that the severity was productive of economic inadaptability.

Furthermore, the record shows that headaches have not been generally included as a factor limiting the Veteran's ability to work as seen by the SSA's May 2015 decision, the Veteran's January 2017 PTSD evaluation, and the Veteran's own statements in October 2011 and August 2015.

Additionally, the evidence of record shows that medical experts have attributed the Veteran's employment challenges to his PTSD.  The September 2015 VA PTSD examination report and the January 2017 private opinion on PTSD did not note the Veteran's chronic headaches as being a significant medical issue in relationship to his ability to function occupationally and socially.  As such, the Board finds that the record does not support the assignment of a disability rating in excess of 30 percent during the rating period on appeal.

Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied.  See 38 U.S.C. §§ 501, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

PTSD

In its October 2014 decision and remand, the Board found that the issue of entitlement to a disability rating higher than 50 percent for service-connected PTSD was raised by the record and referred the issue to the AOJ for adjudication.  In a September 2015 rating decision, the AOJ denied an increase disability evaluation.  In a November 2015 notice of disagreement, the Veteran requested total disability for his service-connected PTSD.

The nomenclature used in the rating schedule for mental disorders is based upon the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5).  38 C.F.R. § 4.130 (2017).  Although certain symptoms must be present in order to establish the diagnosis of PTSD, it is not the symptoms but their effects that determines the level of impairment.  Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002) (quoting 61 Fed. Reg. 52,695, 52,697 (Oct. 8, 1996)).  "A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration."  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013).

When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission.  The rating agency must assign a rating 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.  38 C.F.R. § 4.126(a) (2017).  While the extent of social impairment must be considered, an evaluation shall not be assigned solely on the basis of social impairment.  38 C.F.R. § 4.126(b) (2017).

An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a global assessment of functioning (GAF) score, is to be considered, but it is not determinative of the percentage disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment.  See 38 C.F.R. § 4.126 (2017); VAOPGCPREC 10-95 (Mar. 1995); 60 Fed. Reg. 43186 (1995).  GAF scores correlate to a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  Richard v. Brown, 9 Vet. App. 266, 267 (1996) (quoting American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), 32 (4th ed. 1994)).

Under the DSM-IV, a GAF score of 31 to 40 reveals some impairment in reality testing or communications (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school).  A GAF score between 41 and 50 indicates that a veteran has serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job).  A score of 51-60 is appropriate where there are 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).  A score of 61-70 indicates mild 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.

Here, the Veteran's disability was evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017), for which in pertinent part the General Rating Formula for Mental Disorders delineates:

A 70 percent rating is warranted when there is 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 that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.  Id.

The maximum rating of 100 percent requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name.  Id.

The Board observes 38 C.F.R. §§ 3.384, 4.125, 4.126, 4.127, and 4.130 were updated via an interim final rule, made immediately effective August 4, 2014, in part to substitute references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) for the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5).  The Secretary directed that the changes be applied to applications for benefits received by VA or pending before the AOJ on or after August 4, 2014, but not to claims certified to or pending before the Board, the United States Court of Appeals for Veterans Claims (Court), or the United States Court of Appeals for the Federal Circuit.  79 Fed. Reg. 45, 093, 45,094-096 (Aug. 4, 2014); Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991).  Since the Veteran's claim was certified to the Board in August 2016, the DSM-5 applies.

In addition to PTSD, for which service connection has been established, the record shows an additional diagnosis of major depressive disorder, which is not currently service-connected. The Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability, in the absence of medical evidence which does so.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996).  Some of the medical evidence in the instant case does differentiate between the symptomatology associated with the Veteran's PTSD and that resulting from his nonservice-connected major depressive disorder.  Where a mental health professional has attempted to distinguish between said symptomatology, the Board will so note.  In all other cases, and for the purposes of this decision, the Board will attribute all of the Veteran's psychiatric symptoms to his service-connected PTSD

In September 2015, the Veteran was afforded a VA PTSD examination, during which he met the DSM-5 criteria for PTSD.  The examiner based the opinion on an in-person examination and review of the claims file.  In addition, the Veteran brought a copy of a Residual Functional Capacity Questionnaire that his treating psychiatrist had prepared for his SSA disability claim.

It was noted that the Veteran had been diagnosed as having a traumatic brain injury (TBI), but because there were no findings of associated cognitive disorders, all symptoms could be attributed to PTSD.  The examiner assigned a GAF score of 55.

The Veteran reported that he had been married to his wife for 30 years.  He reported not having contact with his extended family but having monthly contact with his adult child, trying to mend ways.  The Veteran reported that he did not have any friends; did not like people; did not go out; and did not travel.  He explained that the only way he was able to travel when his mother was dying was the use of medication.

The Veteran reported that during the day he slept, because he did not sleep well at night and because he takes pain medication; watched television; and made coffee.  He reported that his wife made sure that he brushed his teeth and maintained grooming.  The Veteran reported that his wife oversaw his mental health medications, which he took daily.  The Veteran reported that he had put up an eight-foot security fence around his house; he would not go into a movie theatre due to "the psychos out there;" and grocery stores were tough.  He reported sleeping with the window open; needed windows in rooms and commented that he was glad the examination room had a window; he would not go out to eat with his wife except to a small bar in a particular town with a population of 50; and his wife had to travel with him, reporting that his wife was downstairs during the examination.  The Veteran explained that coming to the examination in the city with a lot of people was a chore for him, causing him to sweat even though he took his medication.  He reported that he did not have a cell phone because he did not want anyone tracking him or know where he was, plus he did not have any friends.

The examiner noted that the Veteran appeared to be angry and gruff, and that his responses were brief and non-elaborative.  The examiner noted that the Veteran was oriented in all spheres; his judgment and insight were intact; and his memory was intact.  The examiner indicated that the Veteran had the following symptoms:  depressed mood, anxiety, suspiciousness, flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships.

In one location on the report, the examiner indicated that the Veteran had occupational and social impairment with reduced reliability and productivity.  In a second location, the examiner indicated that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  In a third location, the examiner opined that the "Veteran's service connected symptoms related to Posttraumatic Stress Disorder can be expected to provide occupational impairment with reduced reliability and productivity, when under stressful situations."

In January 2017, the Veteran's treating psychiatrist prepared a PTSD disability benefits questionnaire.  In addition to PTSD, it was noted that the Veteran has major depressive disorder.  Additional diagnoses noted were TBI, hypertension, and fibromyalgia.  The psychiatrist indicated that the core mood symptoms could be attributable to major depressive disorder while the trauma symptoms could be attributable to PTSD.  The psychiatrist indicated that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood.  The psychiatrist indicated that the Veteran had the following symptoms:  depressed mood; anxiety; chronic sleep impairment; memory impairment; flattened affect; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; and impaired impulse control, such as unprovoked irritability with periods of violence (irritability underlined).

As stated previously, the Veteran is competent to report his symptoms but he is not competent to state whether his symptoms warrant a specific disability rating, which requires medical expertise that the Veteran has not been shown to have.  See 38 C.F.R. § 3.159(a)(1)-(2) (2017); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses).

In weighing evidence, the Board may place greater weight on one physician's opinion over another depending upon factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-04 (2008); see also Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion).  Here, the Board finds the symptomatology reported in the September 2015 and January 2017 examination reports to be consistent with each other, but the Board gives more probative weight to the January 2017 treating psychiatrist's opinion of severity of disability and list of symptoms because it is broader and based upon a long-standing relationship with the Veteran, which afforded a greater opportunity for observation.

Accordingly, the Board finds that the Veteran's disability more nearly approximates an evaluation of 70 percent disabling for the entire period on appeal.  The record shows that the Veteran has occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood.  The Veteran's stress reaction to attending the September 2015 VA examination as well as going out in public shows that he suffers from near continuous panic affecting his ability to function independently.  The Veteran stated that he could not go anywhere without his wife accompanying him.  This also supports a finding of an inability to adapt to stressful circumstances.  His treating psychiatrist indicated that the Veteran had impaired impulse control, such as unprovoked irritability with periods of violence.  This is supported by the examiner's observation in the September 2015 VA examination report that the Veteran's demeanor appeared angry and gruff.  Although the Veteran has been appropriately groomed at examinations, the Veteran reports that this is the result of his wife overseeing that he grooms himself.  The Veteran summed up his inability to establish and maintain effective relationships by describing the lengths to which he avoids contact with others:  built an eight-foot security fence around his house and refused to have a cell phone.  Therefore, an evaluation of 70 percent disabling is warranted.  Because the evidence shows that the Veteran's symptoms have been consistent since the Board's referral of this issue, staged ratings are not warranted.

The Board finds that a rating in excess of 70 percent is not warranted since at no point during the appeal has the Veteran demonstrated total occupational and social impairment.  The evidence shows that he does not have 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; or memory loss for names of close relatives, own occupation, or own name.  In fact, during the September 2015 VA examination, it was noted that he was oriented in all spheres; his judgment and insight were intact; his memory was intact.  The Veteran does not have a history of inappropriate behavior and has demonstrated an ability to perform daily activities.  Therefore, an increase to 70 percent, and no higher, most appropriately reflects the Veteran's disability picture.

The Board has considered the Veteran's increased ratings claims and decided entitlement based on the evidence.  Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

TDIU

Since his April 2015 application for TDIU, the Veteran essentially contends that he is unemployable due to his service-connected PTSD.  In an August 2015 statement in support of claim, the Veteran stated that he was not working because he had problems interacting with people and that he had a lot of mood swings.  He stated that he had had an argument with a foreman on his last job and he wanted to throw him off the roof of the building.

When the schedular rating is less than total, a total disability rating for compensation may be assigned, when in the judgement of the rating agency, the claimant is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. § 4.16(a) (2017).  Such assignment may be assigned if there is only one disability ratable at 60 percent or more or if there are two or more disabilities such that at least one disability is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  Id.  The existence or degree of non-service-connected disabilities or previous unemployment status will be disregarded where the percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the claimant unemployable.  Id.  Marginal employment shall not be considered substantially gainful employment.  Id.; see Cantrell v. Shulkin, 28 Vet. App. 382 (2017).

In the event the claimant is unable to secure or follow a substantially gainful occupation due to service-connected disabilities but fails to meet the percentage standards, the matter should be submitted for extra-schedular consideration by the Director, Compensation Service.  38 C.F.R. § 4.16(b) (2017).  The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue.  38 C.F.R. § 4.16(b) (2017).

To be granted a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2017).  Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances."  Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).  Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history.  Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (noting that the level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's eighth grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor).

In this case, the Veteran is service-connected for:  PTSD previously evaluated as 50 percent disabling; chronic diarrhea evaluated as 30 percent disabling; chronic headaches evaluated as 30 percent disabling; fibromyalgia evaluated as 20 percent disabling; left hand/finger tendonitis with X-ray evidence of old avulsion fracture, left third middle phalanx evaluated as 10 percent disabling; right hand/finger tendonitis with X-ray evidence of old avulsion fracture, right fifth proximal phalanx evaluated as 10 percent disabling; tinnitus evaluated as 10 percent disabling; left knee anterior cruciate ligament with degenerative arthritis and strain claimed as left knee injury evaluated as 10 percent disabling; and residual scar associated with left knee anterior cruciate ligament with degenerative arthritis and strain claimed as left knee injury evaluated as non-compensable.  Since March 1, 2012, the Veteran's evaluation for PTSD was 50 percent disabling and his combined rating was 70 percent; therefore, the Veteran's service-connected disabilities satisfy the schedular criteria for TDIU.  See 38 C.F.R. § 4.16(a) (2017).

The question for the Board, then, is whether the Veteran is able to secure or follow a substantially gainful occupation as a result of the aggregate effect of his service-connected disabilities.  The Board finds that the preponderance of the competent, credible, and probative evidence of record establishes that the Veteran's service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation.

In August 2012, the Veteran and his wife testified at a hearing before a Decision Review Officer (DRO).  The Veteran testified that after fifteen years as a plumber, getting work through the plumbers' union local, he had become unhireable by contractors because of his disposition and his inability to get work done since he would forget and stop.  Because the union would not place him with any contractors anymore, the Veteran stated he had not worked since.  In July 2015, the plumbers' union local provided a statement explaining that it was a fraternal organization that operated as a "hiring hall;" it was not an employer.

In October 2013, the Veteran's wife prepared a third-party function report as it pertained to the Veteran.  She indicated that they had been married for thirty years.  She reported that the Veteran was aggressive with subjects that bothered him.  She reported that the Veteran's only friend was his dog.  She reported that the Veteran had panic attacks, sweats, and had a bad and overall mean demeanor.  She reported that the Veteran did fine with an employer or criticism, "unless agitated."  She explained that the Veteran did not like being hovered over and told what to do.  She reported that the Veteran responds to changes by becoming aggressive and seeing and hearing only one side.  She reported that the Veteran had a short attention span; although he might appear to be concentrating, he would be someplace else.

In December 2013, a psychological report was prepared as part of SSA's disability determination.  The examiner noted that the Veteran had not graduated high school, rather he obtained a GED while in service.  The Veteran reported a fairly stable work history for about ten years as a member of the plumbers' union.  He reported a history of domestic violence and other violence toward others and objects.

In February 2015, the Veteran was medically evaluated by Dr. R.V.A.  In the report, it was noted that the Veteran sleeps poorly, being awake every two to three hours and moving quite a bit.  It was noted that the Veteran napped at least one to two hours daily.  The Veteran reported that he was extraordinarily intolerant of any frustrations at all; at best, he has a difficult time coping with day-to-day activities of daily living.

In April 2015, the Veteran's treating psychiatrist prepared a Mental Residual Functional Capacity Statement in support of the Veteran's SSA disability claim.  He  opined that the Veteran's prognosis was guarded given his history of TBI and chronic PTSD.  It was observed that the Veteran had chronic anxiety syndrome, marked hypervigilance from PTSD, and cognitive impairment from depression, and TBI, which could significantly impact the Veteran's ability to work and interact with people.  It was opined that the Veteran would be "off task" 30 percent of the time in a competitive work environment and that he would likely be absent from work five days or more per month.

In a May 2015 SSA decision, the administrative law judge considered whether the Veteran was disabled due to his service-connected PTSD as well as non-service-connected type II diabetes mellitus with neuropathy, degenerative joint disease of the right knee, obesity, sleep apnea, and history of multiple TBIs.  It was found that the Veteran could not have contact with the general public and that he could have only occasional contact with others, such as a supervisor or co-worker.  It was found that due to fatigue or mental symptoms, the Veteran would be off task 15 percent of the workday and absent from work 3 days per month.  It was concluded that, considering the Veteran's age, education, work experience, and residual functional capacity, he was disabled and had been since March 8, 2013.

In April 2015, the Veteran's medication reconciliation summary was a page-and-a-half long.  During his September 2015 VA examination for PTSD, the Veteran reported that his wife oversaw the administration of his medications.  He reported that he did not travel unless his wife accompanied him.  The Veteran reported that he slept during the day because he did not sleep well during the night and because he took pain medication.  In January 2014, the Veteran testified at a Board hearing that the he did not sleep well during the night and was physically combative in his sleep when he did sleep.

The Veteran is service-connected for his left knee, which was reported during a June 2017 VA examination as having increased pain and reduced mobility.  The Veteran was taking Tramadol for his symptoms.

Since the impact the Veteran's service-connected disabilities had on his employability was within his personal observation, the Board finds that the Veteran's statements on this matter (i.e., why he was unable to work as a plumber due to his service-connected disabilities) to be competent and credible.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  In this regard, the Veteran reported candidly that he stopped getting hired by contractors because of his disposition, which is attributable to his service-connected PTSD.  He admitted to wanting to throw a supervisor off the roof.  The evidence of record supports the Veteran's self-assessment that his disposition is problematic, and thus, to this extent, the Board finds the Veteran's statements on this matter to provide competent, credible, and highly probative evidence, tending to support the claim.  See also Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (finding that it is the Board's responsibility, as fact-finder, to determine the credibility and weight to be given to the evidence).

The Veteran's wife of thirty years stated that the Veteran could have a bad and overall mean demeanor.  She reported that the Veteran did not like being told what to do and that he could become aggressive over subjects that bothered him.  She also reported that the Veteran's response to change is aggression.  Because these are matters within the wife's personal knowledge, the Board finds these statements competent, credible, and highly probative.  See 38 C.F.R. § 3.159(a)(2) (2017); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that competent lay evidence requires facts perceived through the use of the five senses); Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Caluza v. Brown, 7 Vet. App. 498, 511 (1995).

The December 2013 SSA psychological report also references the Veteran's disclosure of acts of domestic violence and violence toward others and objects.  Additionally, in the report of the Veteran's September 2015 VA PTSD examination, the examiner noted that the Veteran appeared angry and gruff and that his responses were brief and non-elaborative.

The Board finds that the effects of some of the Veteran's other service-connected disabilities contribute to the Veteran's ability to secure or follow a substantially gainful occupation.  The Veteran's PTSD results in his inability to be employable. 
 
As discussed above, the Veteran suffers from service-connected severe headaches, which require daily medication.  The Veteran takes daily pain medication for his service-connected left knee, which makes him drowsy during the day.  The Veteran is a plumber by trade, which requires strenuous physical activity and interaction with others.  The evidence of record shows that the Veteran is limited in his ability to engage in physical labor, both due to physical limitation as well as the effects of medication, and he does not interact well with others.  The Veteran's education level is equivalent to a high school education.  Because the evidence of record shows that the Veteran's wife must manage his extensive medication needs and that the Veteran will not go out into the community without her, the Board finds that the Veteran would not be a candidate for re-training.

Based on the foregoing, the Board finds that the competent and credible evidence, medical and lay, shows that the aggregate symptoms associated with the Veteran's service-connected disabilities are of such severity that he is rendered unable to secure or follow a substantially gainful occupation.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000) (stating that the Board's decision must enable the claimant to understand the precise basis for the decision as well as to facilitate judicial review); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  Thus, resolving all reasonable doubt in his favor, the Board finds that the Veteran is entitled to TDIU rating, and the claim is granted.  See 38 U.S.C. § 5107 (2012).

EARLIER EFFECTIVE DATE

The Veteran seeks an effective date earlier than the currently assigned March 30, 2012, for service connection for chronic headaches.

The effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, it will be the date of receipt of the claim or date entitlement arose, whichever is later.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400(b) (2017).

A claim is a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.  38 C.F.R. § 3.1(p) (2017).  Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, a duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim.  Such an informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155 (2017); Norris v. West, 12 Vet. App. 413, 416-17 (1999).

Here, in a statement in support of claim received March 30, 2012, the Veteran amended his applications for disability compensation by adding a service connection claim for headaches, secondary to, and as a residual of, traumatic brain injury.  In a July 2012 rating decision, the RO denied service connection for chronic headaches and in an October 2011 notice of disagreement, the Veteran appealed.  After the Board's October 2014 remand, in a January 2016 rating decision, the RO granted service connection for chronic headaches evaluated as 30 percent disabling effective March 30, 2012.  In a May 2015 notice of disagreement, the Veteran appealed the assigned effective date.

The Board has considered whether any evidence of record prior to March 30, 2012, could serve as an informal claim in order to entitle the Veteran to an earlier effective date.  See 38 C.F.R. § 3.155 (2017).  In July 2011, the Veteran filed a supplemental claim adding a claim for service connection for TBI.  In August 2011, the Veteran was afforded a VA neurological examination, during which headaches were not mentioned as a symptom of a possible TBI.  The examiner opined that the Veteran's assessment was within normal limits.  In a July 2012 rating decision, the RO denied service connection for TBI.  The Veteran appealed with an October 2011 notice of disagreement and, in its October 2014 decision, the Board denied service connection for TBI.

The record shows that in the Veteran's July 2011 claim for TBI, during the August 2011 VA neurological examination, as well as the other contemporaneous evidence of record, he did not complain of headaches in the context of seeking service connection.  The Board finds, therefore, that no informal claim for chronic headaches exists.  In this case, the only cognizable date that could serve as a basis for the award of service connection is the date of receipt of the Veteran's claim on March 30, 2012.  There is no legal entitlement to an earlier effective date.

The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority.  Accordingly, the Board finds that the March 30, 2012, effective date for the grant of service connection for chronic headaches was proper as a matter of law.  As the law and not the facts are dispositive, the benefit of the doubt rule does not apply, and the claim must be denied.  See 38 U.S.C. §§ 501, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).


ORDER

Entitlement to an evaluation in excess of 30 percent for chronic headaches is denied.

Entitlement to an evaluation of 70 percent, but no higher, for PTSD is granted, subject to the regulations governing disbursement of VA monetary benefits.

A TDIU is granted, subject to the regulations governing disbursement of VA monetary benefits.

Entitlement to an effective date earlier than March 30, 2012, for the award of service connection for chronic headaches is denied.


REMAND

The Veteran seeks service connection for sleep apnea, GERD, and fatigue.  Although the Board regrets the additional delay, a remand is necessary to ensure that due process is provided and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.  38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017).

The Board remanded these three issues in August 2016 for the purpose of obtaining addendum opinions from the examiner who prepared the July 2015 addendum to prior VA examinations afforded to the Veteran.  The resulting September 2016 addendum medical opinions are inadequate since they are not responsive to the questions posed by the Board, and they are not supported by cogently articulated rationales.

Furthermore, the examiner directed the Board to resources at the Mayo Clinic, National Institute of Health, National Heart, Lung, and Blood Institute, and the National Library of Medicine to obtain its own explanations.  While trying to be helpful, the suggestion that the Board do its own independent research is problematic because the Board is prohibited from exercising its own independent judgment to resolve medical questions.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  Furthermore, development of medical evidence by the Board would unnecessarily delay the decision in a case because the Board is required to provide notice of the evidence to the claimant and provide an opportunity for response.  See Thurber v. Brown, 5 Vet. App. 119, 126 (1993).  In other words, the Board is dependent upon VA medical examiners to provide thorough, well-articulated opinions that connect the dots of the examiner's thinking by citing to specific pieces of evidence in the record and supporting its significance by explaining the underlying science with appropriate citation to recognized authorities so that the Board's determinations on the merits are fully-informed ones.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  It is not enough for the examiner to puzzle out the answer; the examiner must explain in detail how the answer was derived.

A remand by the Board confers on the Veteran, as a matter of law, the right to have compliance with the remand directives, and the Board has a duty to ensure such compliance.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  In light of the foregoing incomplete development in this claim, again, the Board must remand this matter for addenda medical opinions concerning the Veteran's claims for service connection of sleep apnea, GERD, and fatigue.

Accordingly, the case is REMANDED for the following actions:

1.  Obtain and associate with the claims file all updated treatment records.

2.  Using a different examiner than the C&P Certified Physician Examiner who provided medical opinions in July 2015 (entered August 2015) and September 2016, obtain an addendum medical opinion for the Veteran's sleep apnea.  If deemed necessary by the examiner, afford the Veteran a VA examination for his sleep apnea.  Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished.

Based on a full review of the record, to include the Veteran's lay statements regarding the incurrence and symptomatology of the disorder, offer comments and an opinion as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that: 

a) the Veteran's obstructive sleep apnea is due to exposure to environmental hazards, to include burning oil smoke, during service or had an onset during service; and,

b) the Veteran's obstructive sleep apnea is proximately due to or aggravated (beyond a natural progression) by his PTSD.

The claims folder must be provided to the examiner for review.  The examiner must state in the examination report that the claims folder has been reviewed.

In providing this opinion, the examiner must acknowledge and discuss any lay evidence of a chronicity of symptoms.  It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation.

All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved.  In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.

If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case, e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.  If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion.

3.  Using a different examiner than the C&P Certified Physician Examiner who provided medical opinions in July 2015 (entered August 2015) and September 2016, obtain an addendum medical opinion for the Veteran's GERD.  If deemed necessary by the examiner, afford the Veteran a VA examination for his GERD.  Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished.

Based on a full review of the record, to include the Veteran's lay statements regarding the incurrence and symptomatology of the disorder, please offer comments and an opinion as to whether the Veteran's current GERD is at least as likely as not (i.e. a 50 percent or greater probability) due to his time in service, to include documented exposure to environmental hazards, or had an onset during service.

The examiner should explain and discuss the Veteran's "risk factors for developing GERD" indicated in the August 2015 opinion.

The claims folder must be provided to the examiner for review.  The examiner must state in the examination report that the claims folder has been reviewed.

In providing this opinion, the examiner must acknowledge and discuss any lay evidence of a chronicity of symptoms.  It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation.

All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved.  In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.

If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case, e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.  If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion.

4. Using a different examiner than the C&P Certified Physician Examiner who provided medical opinions in July 2015 (entered August 2015) and September 2016, obtain an addendum medical opinion for the Veteran's fatigue.  If deemed necessary by the examiner, afford the Veteran a VA examination for his fatigue.  Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished.

Based on a full review of the record, to include the Veteran's lay statements regarding the incurrence and symptomatology of the disorder:

a) The examiner should specifically state whether the Veteran's symptoms of fatigue are attributed to a known clinical diagnosis, other than fibromyalgia.

If so, please specify each such diagnosis. 

b)  If any symptoms of fatigue have not been determined to be associated with a known clinical diagnosis, the examiner should indicate whether the Veteran has objective indications of a chronic disability resulting from a medically unexplained chronic multisymptom illness, as established by history, physical examination, and laboratory tests, that has either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. 

c) For each diagnosed fatigue disorder, other than fibromyalgia, please opine whether it is at least as likely as not (i.e., probability of 50 percent) that the diagnosed disorder manifested during service or is causally or etiologically due to service.

d)  Is the Veteran's fatigue proximately due to or aggravated (beyond a natural progression) by his PTSD;

e) Is the Veteran's fatigue proximately due to or aggravated (beyond a natural progression) by his sleep apnea.

All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved is required.

The claims folder must be provided to the examiner for review.  The examiner must state in the examination report that the claims folder has been reviewed.

In providing this opinion, the examiner must acknowledge and discuss any lay evidence of a chronicity of symptoms.  It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation.

All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved.  In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.

If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case, e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.  If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion.

5.  After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claims should be readjudicated.  If any of the claims remain denied, the Veteran and his attorney must be provided a supplemental statement of the case.  After the Veteran and his attorney  have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

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. §§ 5109B, 7112 (2012).




______________________________________________
LANA K. JENG
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs