Citation Nr: 18141160 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 15-43 147 DATE: October 9, 2018 ORDER An increased rating of 100 percent for posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing the award of monetary benefits. The appeal for an increased rating for irritable bowel syndrome (IBS) is dismissed. The appeal to reopen a claim for service connection for fibromyalgia, to include as due to Gulf War service and exposures therein, is granted. The appeal to reopen a claim for service connection for chronic fatigue syndrome (CFS), to include as due to Gulf War service and exposures therein, is granted. REMANDED Service connection for fibromyalgia, to include as due to Gulf War service and exposures therein, is remanded. Service connection for CFS, to include as due to Gulf War service and exposures therein, is remanded. Service connection for sleep apnea, to include as secondary to service-connected PTSD, is remanded. The claim for entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. After a careful review, the Board finds that the evidence is evenly balanced for and against a finding (in “relative equipoise”) that the Veteran is totally occupationally and socially impaired due to PTSD. This evidence includes the Veteran’s March 2017 Board hearing testimony describing worsening PTSD symptoms including impaired anger management, poor concentration, low stress tolerance, and severe anxiety. The Veteran testified that these symptoms caused near-miss safety events at work, his suspension from work, and eventually prevented him from working. The Board also assigns significant probative weight to Witness L.T.’s testimony that the Veteran’s PTSD symptoms have significantly worsened because the witness has known the Veteran since service. The October 2015 VA examination report also reflects serious and worsening PTSD symptoms including depressed mood, anxiety, frequent panic attacks, sleep impairment, and difficulty establishing and maintaining effective work and social relationships. Testing administered during the examination showed impaired concentration and recall. Resolving reasonable doubt in the Veteran’s favor, the lay and medical evidence of record establishes that the Veteran’s symptoms have worsened to the point of total occupational and social impairment during the entire period on appeal. 2. On the record at a March 2017 Central Office Board hearing, the Veteran withdrew the appeal seeking an increased rating for IBS. As a matter of regular practice, the undersigned Veterans Law Judge discusses such a withdrawal in the pre-hearing conference to ensure that the Veteran has a full understanding of the consequences of withdrawing a claim. Thus, there is no question of fact or law in this matter remaining for the Board to consider. 3. An unappealed May 2011 rating decision denied service connection for fibromyalgia because the evidence did show currently diagnosed fibromyalgia. A November 2011 VA treatment added to the file within one year of this decision notified VA that additional VA treatment records may exist, meaning VA was in constructive possession of any such records. See Turner v. Shulkin, 29 Vet. App. 207 (2018). Additional records were added to the claims file and carefully reviewed by the Board. However, this evidence is not material because it does not relate to an unestablished fact (fibromyalgia diagnosis) necessary to substantiate the underlying claim. Thus, the May 2011 rating decision is final. However, the Veteran’s March 2017 Board testimony (that a physician friend told the Veteran that the Veteran may have fibromyalgia) was not of record at that time, relates to an unestablished fact necessary to substantiate the underlying claim of service connection, and raises a reasonable possibility of substantiating that claim. 4. An unappealed May 2011 rating decision denied service connection for CFS because the evidence did show currently diagnosed CFS. A November 2011 VA treatment added to the file within one year of this decision notified VA that additional VA treatment records may exist, meaning VA is constructive possession of any such records. See Turner v. Shulkin, 29 Vet. App. 207 (2018). Additional records were added to the claims file and carefully reviewed by the Board. However, this evidence is not material because it does not relate to an unestablished fact (CFS diagnosis) necessary to substantiate the underlying claim. Thus, the May 2011 rating decision is final. However, the Veteran’s March 2017 Board testimony that a physician friend told the Veteran that the Veteran may have CFS, was not of record at that time, relates to an unestablished fact necessary to substantiate the underlying claim of service connection, and raises a reasonable possibility of substantiating that claim. CONCLUSIONS OF LAW 1. The criteria have been met for an increased disability rating of 100 percent for PTSD. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria have been met for withdrawal by the Veteran of the appeal for an increased rating for IBS; the Board has no further jurisdiction in this matter. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204; see Acree v. O’Rourke, No. 2017-1749 (Fed. Cir. Jun. 4, 2018) (reiterating the holding in DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011), which established that withdrawal of a claim must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant). 3. New and material evidence has been received; the claim for service connection for fibromyalgia may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 4. New and material evidence has been received; the claim for service connection for CFS may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1977 to December 1981 and from January 1991 to June 1991. These matters are before the Board on appeal from May 2013 and March 2014 rating decisions. The Board construes the Veteran’s November 2013 statement as a notice of disagreement (NOD) with the May 2013 rating decision that denied an increased rating for PTSD and the petition to reopen the claim for fibromyalgia. Thus, the May 2013 rating decision is the rating decision on appeal for those two claims. In the November 2015 VA Form 9 (substantive appeal), the Veteran attempted to raise the issue of clear and unmistakable error with “all service connected ratings and denied claims.” However, effective March 24, 2015, claims must be made on a specific claim form, which is available online or at the local Regional Office (RO). The Veteran is advised that if he wishes to open a CUE claim, he should do so using the prescribed form either in person or online (https://www.ebenefits.va.gov/ebenefits/). In March 2017, the Veteran and Witness L.T. testified at a hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. 1. Increased disability rating higher than 50 percent for PTSD For the reasons outlined above, an increased disability rating of 100 percent is warranted. 2. Increased disability rating higher than 30 percent for IBS For the reasons outline above, the appeal is dismissed. 3. Whether new and material evidence has been received to reopen the claim for service connection for fibromyalgia For the reasons outlined above, the claim for service connection for fibromyalgia is reopened. 4. Whether new and material evidence has been received to reopen the claim for service connection for CFS For the reasons outlined above, the claim for service connection for CFS is reopened. [CONTINUED ON NEXT PAGE] REASONS FOR REMAND 1. Service connection for fibromyalgia, to include as due to Gulf War service and exposures therein, is remanded. 2. Service connection for CFS, to include due to Gulf War service and exposures therein, is remanded. 3. Service connection for sleep apnea, to include as secondary to PTSD, is remanded. These three claims are remanded to afford the Veteran VA examinations, pursuant to specific directives below. In addition, the record indicates that the Veteran is receiving Social Security Administration disability payments. The SSA records must be obtained and associated with the claims file. 4. The issue of entitlement to TDIU is remanded. This is issue is remanded for re-adjudication by the RO after review of obtained Social Security Administration records. The matters are REMANDED for the following action: 1. Obtain any updated VA (from September 2015 to the present) treatment records for association with the claims file. 2. Request from the Social Security Administration the records pertinent to the Veteran’s claim and/or award of Social Security Administration disability benefits. All efforts to obtain this evidence must be documented and associated with the claims file. 3. Ask the Veteran to identify any providers of private treatment relevant to the claims on appeal (especially relating to fibromyalgia and chronic fatigue syndrome symptoms and treatment) and to authorize VA to obtain those records for association with the claims file. In the same letter, invite the Veteran to submit any additional evidence supporting these claims, particularly any evidence showing diagnoses of fibromyalgia or CFS (to include a letter from Dr. A. M. as discussed during the Board hearing). 4. Then schedule the Veteran for an examination with an appropriate examiner to evaluate the nature and cause of the Veteran’s established obstructive sleep apnea. The Board recognizes that the detailed nature of the medical questions below require significant work on the part of the medical examiner and regrets the need to remand the matter to the RO; however, the Board is unable to adjudicate the Veteran’s case until it has the requested information. Therefore, the Board must ask the VA examiner and the RO to ensure compliance with these directives (that is, full and thoroughly explained answers to each of the questions) to avoid delays in adjudication. Examination Instructions The examiner should answer the following questions based on (1) a review of the claims file and (2) interview and examination of the Veteran. Please note that an opinion based solely on the lack of medical literature supporting a claim would not be legally adequate for the Board to decide the claim. a) Is it at least as likely as not (a 50 percent or better probability) that the Veteran’s sleep apnea had its onset in or is otherwise related to the Veteran’s service? b) Is it at least as likely as not (a 50 percent or better probability) that the Veteran’s sleep apnea was CAUSED by service-connected PTSD? c) Is it at least as likely as not (a 50 percent or better probability) that the Veteran’s sleep apnea was AGGRAVATED by service-connected PTSD? (Aggravation in this context means any increase in severity beyond the natural progression of the disability.) In answering these questions, the examiner MUST specifically consider and address 1) the Veteran’s reported symptoms and their onset AND 2) the Veteran’s belief that his PTSD has aggravated his sleep apnea because PTSD-related sleep problems prevent use of the prescribed CPAP machine. Finally, although sleep apnea is often diagnosed by overnight polysomnogram (sleep study), the Board notes that several other clinical predictors of sleep apnea have been developed, including questionnaires such as the STOP-BANG, a validated screening tool for sleep apnea (See, e.g. “STOP-Bang Questionnaire: A Practical Approach to Screen for Obstructive Sleep Apnea” published in the peer-reviewed medical journal Chest in March 2016 at 149(3):631-8 (noting 8 clinical predictors of sleep apnea, including Snoring, Tiredness during the day, Observed apnea during sleep, high blood Pressure, BMI (Body Mass Index) greater than 35 kg/m2, Age over 50 years, Neck circumference greater than 40 cm, and male Gender)). Therefore, while reviewing the claims file, the examiner should consider whether any clinical indicators of sleep apnea were present IN THE PAST, for example, during service or any time after service but before a formal sleep diagnosis. The examiner should identify any such clinical indicators and explain whether they might support a retrospective sleep apnea diagnosis. A detailed explanation (rationale) is requested and very much appreciated for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.) 5. Then schedule the Veteran for a VA Gulf War Examination with an examiner who must be a different examiner than the November 2010 examiner. An additional examination is necessary because the November 2010 examination report does not provide the Board with sufficient information to decide these claims. The Board recognizes that the detailed nature of the medical questions below require significant work on the part of the medical examiner and regrets the need to remand the matter for an additional examination; however, the Board is unable to adjudicate the Veteran’s case until it has the requested information. Therefore, the Board must ask the VA examiner and the RO to ensure compliance with these directives (that is, full and thoroughly explained answers to each of the questions) to avoid delays in adjudication. The examiner should answer the following questions based on (1) a review of the claims file, (2) interview and examination of the Veteran, and (3) any needed diagnostic testing. [The Board draws the examiner and RO’s attention to the March 2017 hearing testimony where the Veteran and his representative outlined pertinent evidence that will hopefully provide helpful information to the examiner and the RO.] a) Are the Veteran’s symptoms and disability pattern (including but not limited to fatigue and chronic muscle and joint pain) consistent with fibromyalgia, chronic fatigue syndrome, or another medically unexplained chronic multisymptom illness? b) Are the Veteran’s symptoms and disability pattern objective indications of a chronic undiagnosed illness? c) Are the Veteran’s symptoms and disability pattern consistent with: (1) a diagnosable chronic multisymptom illnesses with a partially explained cause or (2) a disease or disability with a clear and specific cause and diagnosis? d) If it is determined that the Veteran’s symptoms are manifestations of either (1) a diagnosable chronic multisymptom illness with a partially explained cause, or (2) a disease with a clear and specific cause and diagnosis, then please provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the disease or illness had its onset during the Veteran’s service, within one year of separation, or is otherwise causally related to any event or circumstance of service, including environmental exposures during service in Southwest Asia. The examiner should take into consideration that the Veteran is competent to report observable in-service and post-service symptoms and experiences. For purposes of this examination, the examiner must consider the following: “Medically unexplained chronic multisymptom illness” means a diagnosed illness without conclusive pathophysiology or cause that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. “Objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A detailed explanation (rationale) is requested and very much appreciated for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.) 6. The RO should then review the record, to include any newly obtained evidence (especially any Social Security Administration records), and re-adjudicate the Veteran’s TDIU claim). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel