Citation Nr: 18142650 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 15-43 542 DATE: October 16, 2018 ORDER An increased rating in excess of 70 percent for an acquired psychiatric disability, to include non-specified anxiety disorder (NOS anxiety disorder), panic disorder and agoraphobia, is denied. Service connection for diabetes mellitus (type 2 diabetes), to include as due to Gulf War illness, is denied. REFERRED Service connection for memory problems due to Gulf War illness, a separate and distinct claim from the increased rating claim for an acquired psychiatric disability, is referred to the agency of original jurisdiction (AOJ) for a separate rating decision. REMANDED The issue of new and material evidence to reopen a claim for muscle joint pain due to Gulf War illness is remanded. The issue of new and material evidence to reopen a claim for problems with morning stiffness due to Gulf War illness is remanded. The issue of new and material evidence to reopen a claim for respiratory conditions, to include sinus and lung conditions, and to include as due to Gulf War illness is remanded. The issue of new and material evidence to reopen a claim for sleep disorder due to Gulf War illness is remanded. The issue of new and material evidence to reopen a claim for ischemic heart disease due to Gulf War illness is remanded. The issue of new and material evidence to reopen a claim for hypertension, to include as due to Gulf War illness is remanded. The issue of new and material evidence to reopen a claim for high cholesterol readings, to include as due to Gulf War Illness, is remanded. The issue of new and material evidence to reopen a claim for problems with leg circulation, now claimed as numbness in the legs (numbness in legs), due to Gulf War illness is remanded. The issue of new and material evidence to reopen a claim for gastro-esophageal reflux disease (GERD) due to Gulf War illness is remanded. The issue of new and material evidence to reopen a claim for tension headaches due to Gulf War illness is remanded. The claim for a total disability rating based on an individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s acquired psychiatric disability does not result in total occupational and social impairment. 2. There is no evidence of an in-service diagnosis of type 2 diabetes, or a diagnosis within one year of separation from service; type 2 diabetes is not an undiagnosed illness or a medically unexplained chronic multi-symptom illness; and there no evidence that the Veteran’s type 2 diabetes is otherwise related to his active service. CONCLUSIONS OF LAW 1. The criteria for an increased rating, in excess of 70 percent, for an acquired psychiatric disability have not been met. 38 U.S.C §§ 1155 (West 2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9413 (2017). 2. The criteria for service connection for type 2 diabetes, to include as due to Gulf War illness, have not been met. 38 U.S.C. §§ 1110, 1117, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1980 to September 1992. This appeal comes before the Board of Veterans’ Appeals (Board) from numerous rating decisions, including in pertinent part, July 2012, May 2013, and November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The July 2012 rating decision denied the issues of new and material evidence to reopen the claims for respiratory conditions, hypertension and high cholesterol readings; as well as the service connection claim for type 2 diabetes. The May 2013 rating decision increased a previously assigned 30 percent rating to 50 percent, for an acquired psychiatric disability, effective September 12, 2012; denied the service connection claims for ischemic heart disease, muscle joint pain, GERD, tension headaches, morning stiffness, and sleep disorder, due to Gulf War illness; and denied the issue of new and material evidence to reopen the claims for numbness in legs due to Gulf War illness. The November 2014 rating decision further increased the rating disability for an acquired psychiatric disability to 70 percent, effective February 12, 2014, but denied the claim of entitlement to a TDIU. In a NOD, the Veteran modified his claims for type 2 diabetes, lung condition, hypertension and high cholesterol readings to include as service connection claims for disabilities due to Gulf War illness. See September 2012 NOD. Thereafter, the Veteran filed another NOD in January 2015 for his Gulf War illness claims of morning stiffness, sleep disorder, ischemic heart disease, tension headaches, GERD, numbness in legs, and muscle joint pain; his claim for TDIU; and an increased rating in excess of 70 percent for an acquired psychiatric disability. After a duly executed Form VA 9 Board appeal in November 2015, in which the Veteran indicated that he is appealing all of the issues from a November 5, 2015 and November 10, 2015 statement of the case, the issues were certified for appeal in April 2016. In September 2012, the Veteran filed a claim for service connection for memory problems due to Gulf War illness. See September 2012 Statement in Support of Claim. In the May 2013 rating decision, the RO, merging this claim for memory problems with the increased rating claim for an acquired psychiatric disability, increased the rating for an acquired psychiatric disability to 50 percent, rated under diagnostic code (DC) 9413. However, the Board finds that the RO impermissibly merged the Gulf War illness-related service connection claim for memory problems with the acquired psychiatric disability increased rating claim. The Gulf War illness-related service connection claim for memory problems, which is ratable for a Gulf War illness, under diagnostic codes, including and not limited to, DC 8881, for an undiagnosed, miscellaneous neurological disability, is a separate and distinct claim from the increased rating claim for the acquired psychiatric disability. Accordingly, the Board has no jurisdiction over this Gulf War illness-related memory problems claim because it is not properly before the Board. Specifically, the RO has not issued a separate rating decision on this claim of service connection for memory problems due to Gulf War illness, the Veteran has not been afforded the requisite notice, with an opportunity to file a NOD on this issue, and accordingly, this issue has not been certified for an appeal. Therefore, this service connection claim for memory problems due to Gulf War illness is referred back to the AOJ for proper adjudication, with a separate rating decision for this claim. Increased Rating for an Acquired Psychiatric Disability Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The criteria for evaluating an acquired psychiatric disability, including a chronic adjustment disorder, depression and major depressive disorder, are found in the General Rating Formula for Mental Disorders, under 38 C.F.R. § 4.130, DC 9413 (2017). A 70 percent evaluation is warranted where there is 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); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation 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 symptoms listed above serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442 – 44 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a) (2014). The Veteran has been assigned a 70 percent disability rating for an acquired psychiatric disability, including NOS anxiety disorder, panic disorder and agoraphobia. The Board finds that while the Veteran has significant occupational and social impairment due to service-connected acquired psychiatric disability, total social and occupational impairment is not shown and thus the criteria for a 100 percent evaluation have not been met. Although post-service treatment records provide limited details about the symptoms and manifestations of his mental disability, they reflect that the Veteran consistently manifested chronic sleep impairment. The April 2013 VA examination included diagnoses of non-specified anxiety disorder; and panic disorder without agoraphobia. The examination did not show that the psychiatric disability resulted in total social impairment. Rather, they show that the Veteran was married to the same person, with two adult children, a 34-yr old son and a 28-yr old daughter; and spent his days caring for his grandson. While he did not feel comfortable going into crowds, he did not isolate in the house. The October 2014 VA examination for mental disorders also did not reveal total occupational and social impairment. It yielded diagnoses of generalized anxiety disorder; panic disorder; and agoraphobia. In terms of social impairment, the Veteran reported that he was an active member of a local church; participates in Breast Cancer walks; and enjoys being with his grandchildren. He avoided crowds and did not go out to eat at restaurants. He was apprehensive when he goes to see his son play semi-pro football, and at times, does not go, given his anxiety and resulting agoraphobia. Finally, an October 2015 examination yielded similar results. The Veteran reported that he continues to have panic attacks, mainly at night; increased irritability; and that he feels depressed on a daily basis. He also reported that he has decreased energy and motivation, and feels anxious most days. He further indicated that he has racing thoughts at times when he worries about what is going on in his life, but he denied having any suicidal thoughts. Manifestations and symptoms typically associated with a 100 percent rating such as, gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; disorientation to place or time; or a persistent danger of hurting self or others were not present. Therefore, for the foregoing reasons, an increased rating in excess of 70 percent is not warranted for an acquired psychiatric disability. Service Connection for Type 2 Diabetes, to Include as Due to Gulf War Illness Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). Specifically, service connection may be established for a Persian Gulf war veteran who has a qualifying chronic disability that became manifest during service or to a degree of 10 percent or more, not later than December 31, 2021. 38 U.S.C. § 1117 (West 2012); 38 C.F.R. § 3.317 (2017); 81 Fed. Reg. 71382 (Oct. 7, 2016). A “qualifying chronic disability” includes: (A) an undiagnosed illness, or (B) a medically unexplained chronic multi-symptom illness, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal disease). 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). The Veteran asserts service connection for type 2 diabetes, to include as due to Gulf War illness. See April 2011 Statement in Support of Claim; see also September 2012 NOD. The evidence of record reflects that while the Veteran served in the Southwest Asia Theater of Operations after August 2, 1990, during the Persian Gulf War, type 2 diabetes is not a qualifying chronic disability under the law or regulation. It is not an undiagnosed illness or a medically unexplained chronic multi-symptom illness. In addition, the Board finds that symptoms of diabetes were not shown in service and he was not diagnosed with diabetes until March 2010. The medical opinion evidence indicates that type 2 diabetes was not likely caused by exposure to environmental hazards during service in South-West Asia. There is no probative evidence linking the current diabetes disability to service. As such, the claim must be denied. REASONS FOR REMAND The Board regrets further delay, but finds that additional development is necessary before a decision may be rendered on the remaining issues on appeal. 1. New and Material Evidence to Reopen Gulf War Illness Disability Claims The Veteran’s seeks to reopen his claims for: (1) muscle joint pain; (2) morning stiffness; (3) respiratory conditions, to include sinus and lung conditions; (4) sleep disorder; (5) ischemic heart disease; (6) hypertension; (7) high cholesterol readings; (8) numbness in legs; (9) GERD; and (10) tension headaches, due to Gulf War illness. He asserts that the RO committed clear and unmistakable error (CUE) in earlier rating decisions that denied his Gulf War illness disability claims. See April 2011 Statement in Support of Claim (asserting that he is filing a CUE on the August 2009 rating decision that denied his new and material evidence claims to reopen the issues of lung conditions; hypertension; and high cholesterol readings); see also September 2014 Correspondence (filed in conjunction with the Veteran’s September 2014 Fully Developed Claim to reopen (1) lung and sinus conditions, (2) hypertension, (3) muscle joint pain, (4) tension headaches, (5) sleep disorder, (6) numbness in legs, (7) ischemic heart disease, (8) GERD, and (9) morning stiffness, due to Gulf War illness; and asserting that all of the items he initially claimed are on the Gulf War illness list of compensable conditions presumed to be associated with the Persian Gulf War, which he served in, requesting that these claims be adjudicated based on his initial submission date, and asserting that VA made a gross mistake adjudicating his claims). However, the Board does not have jurisdiction over these CUE claims because it has not been adjudicated in the first instance by the RO. The United States Court of Appeals for Veterans Claims has held that each new theory of CUE is a separate and distinct matter, and the Board lacks jurisdiction over any theory of CUE that has not been adjudicated by the RO in the first instance. Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002); Jarrell v. Nicholson, 20 Vet. App. 326, 332 – 33 (2006). Therefore, the Board must defer consideration of new and material evidence to reopen all the above-mentioned Gulf War illness disability claims to allow the RO to consider the Veteran’s CUE motions, as these CUE motions are inextricably intertwined with the new and material evidence claims. See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (holding that where the facts underlying separate claims are “inextricably intertwined,” the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also, Harris v. Derwinski, 1 Vet. App. 180 (1991). Specifically, if CUE is found in any claim from any of the prior rating decisions, which denied service connection for a Gulf War illness disability, it could have a direct impact on the out come of that claim. 2. Entitlement to a TDIU The Veteran asserts that his acquired psychiatric disability prevents him from securing or following any substantial gainful occupation. See August 2014 Form VA 21-8940 Application for Increased Compensation Based on Unemployability (TDIU Application); see also January 2015 Board Appeal. In an October 2015 VA examination and opinion, a VA examiner indicated that the symptoms associated with the Veteran’s psychiatric disability, included and were not limited to, chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent event; disturbances of motivation and mood; difficulty in establishing and maintaining effective work relationships; and difficulty in adapting to stressful circumstances, including work or a work-like setting. Nonetheless, the VA examiner opined that it is less likely than not the Veteran is unable to secure or maintain substantially gainful employment due to his unspecified anxiety disorder. However, the Board finds that this opinion is inadequate because the VA examiner did not provide a rationale for the basis of her opinion, even though she documented symptoms that may serve as challenges and impediments to the Veteran finding and maintaining employment. When VA undertakes to examine a Veteran, VA is obligated to ensure that the examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). In this regard, a remand is required for another opinion on unemployability, due to the Veteran’s service-connected psychiatric disability, with an adequate rationale to support the opinion. 3. Outstanding Treatment Records The Veteran asserted he moved from Georgia to North Carolina, he has medical records from 1994 to 1998, which are located in St. Petersburg, Florida, and that additionally, he has records from the Salisbury VA Medical Center (VAMC) from 1998 to October 1, 2002, that had not been associated with an August 2009 rating decision. See April 2011 Statement in Support of Claim. In August 2011, the RO notified the Veteran that there were no treatment records available for review from the Salisbury VAMC from November 1, 1998 to September 30, 2002, and that the Salisbury VAMC indicated that the Veteran first registered at the facility on October 1, 2002. However, in August 2011, the Veteran contacted VA and clarified that he was seen at Fort McPherson in Atlanta, Georgia, from the period of his separation from service (1992) until 1998 (presumably during the time he was living in Georgia). See August 2011 Form VA 21-820 Report of General Information. However, despite this development, the RO never undertook to obtain these outstanding treatment records, nor did it ever undertake to obtain the outstanding treatment records from St. Petersburg, Florida. Therefore, on remand, the RO must obtain all outstanding treatment records and associate them with the claims file. The matters are REMANDED for the following action: 1. Seek clarification from the Veteran to ascertain whether the outstanding treatment records in St. Petersburg, Florida were private or VA treatment records. 2. Then, obtain the requisite authorization and release from the Veteran, and obtain and associate with the claims file, all outstanding private and/or VA treatment records, including and not limited to, treatment records from Fort McPherson from 1992 to 1998, and treatment records from St. Petersburg, Florida from 1994 to 1998. a. All attempts to fulfill the development specified above, including the mandatory response to the request, must be documented in the claims file. b. If, after making as many requests as are necessary to obtain these records it is determined that the records sought do not exist or that further efforts to obtain these records would be futile, the AOJ must issue a Formal Finding on the Unavailability of Records Memorandum, consistent with 38 C.F.R. § 3.159(e)(1), identifying: (i) the identity of the records VA was unable to obtain; (ii) an explanation of the efforts VA made to obtain the records; (iii) a description of any further action VA will undertake regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the Veteran submits the records VA was unable to obtain; and (iv) a notice that the Veteran is ultimately responsible for providing the evidence. 3. Then, after obtaining all outstanding treatment records, to the extent possible, take all necessary steps to adjudicate the referenced motions concerning whether there was CUE in prior, pertinent rating decisions that denied the new and material evidence Gulf War illness-related claims of (1) muscle joint pain; (2) morning stiffness; (3) respiratory conditions, to include sinus and lung conditions; (4) sleep disorder; (5) ischemic heart disease; (6) hypertension; (7) high cholesterol readings; (8) numbness in legs; (9) GERD; and (10) tension headaches. 4. Also, an opinion on the Veteran’s unemployability must be obtained from a psychologist or psychiatrist (VA examiner). The VA examiner’s opinion must be supported by a clear, detailed rationale for the opinion. MATTHEW TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel