Citation Nr: 18143046 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 15-34 594 DATE: October 17, 2018 ORDER Service connection for post-infectious irritable bowel syndrome (IBS), as due to a qualifying chronic disability to include undiagnosed illness, is granted. From June 21, 2013 to February 19, 2015, a 100 percent disability rating for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. The Veteran had active service in the Southwest Asia theater of Operations during the Persian Gulf War. 2. The Veteran has a current disorder diagnosed as IBS that has manifested to a compensable degree. 3. For the rating period from June 21, 2013 to February 19, 2015, the severity, frequency, and duration of the symptoms of the service-connected PTSD have more nearly approximated total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for presumptive service connection for IBS as due to a qualifying chronic disability have been met. 38 U.S.C. §§ 1101, 1110, 1117, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. 2. Resolving reasonable doubt in the Veteran’s favor, for the rating period from June 21, 2013 to February 19, 2015, the criteria for a 100 percent disability rating for PTSD have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, served on active duty from May 2000 to November 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2014 and April 2015 rating decisions from the Regional Office (RO), which, in pertinent part, denied service connection for IBS, and continued a 50 percent disability rating for PTSD. During the course of the appeal, the RO awarded a 100 percent rating (the maximum rating allowable) for PTSD from February 19, 2015. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. 38 C.F.R. § 4.2; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Because a 100 percent rating has not been assigned from June 21, 2013, the date of receipt of the claim for increase, the staged 100 percent rating from February 19, 2015 is deemed a partial grant of benefits. As the Veteran has not expressed satisfaction with the earlier 50 percent staged rating assigned from June 21, 2013 to February 19, 2015, his claim remains before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In September 2018, the Veteran testified at a Board videoconference hearing from the RO in San Diego, California, before the undersigned Veterans Law Judge in Washington, DC. The hearing transcript has been associated with the record. The Board notes that in the September 2014 Notice of Disagreement (NOD), the Veteran expressed disagreement with the continuation of a 50 percent rating for PTSD, not the effective date for the grant of service connection. While the November 2015 rating decision assigned a 100 percent staged rating from February 19, 2015, a November 2015 statement of the case (SOC) characterized the issue on appeal as entitlement to a disability rating in excess of 50 percent and entitlement to an “earlier effective date” prior to February 19, 2015 for an increase rating for the service-connected PTSD, although the content of SOC adjudication addressed the appropriateness of the rating for the earliest stage of the rating. The Veteran submitted an April 2016 NOD requesting an “earlier effective date” for the 100 percent staged rating, and the November 2016 SOC continued to characterize the issue on appeal an entitlement to an earlier effective date than February 19, 2015 for the 100 percent rating for PTSD. In the December 2016 substantive appeal, the representative continued to request “an earlier effective date prior to February 19, 2015 for the grant of 100 percent” for PTSD. Because the 100 percent staged rating stems from disagreement with the continuation of a 50 percent rating assigned for the earlier stage of the increase rating appeal following the June 2013 claim for increase, the November 2015 and November 2016 SOC’s and the representative’s characterization of the issue as one for earlier effective date does not constitute an actual effective date appeal. Likewise, although the November 2015 and 2016 SOCs used the term “effective date,” the characterization of the appeal as one of effective date does not convert it into an actual effective date appeal where the substance of the adjudication addressed the appropriateness of rating for the earliest stage of the increased rating appeal period. Neither the Veteran nor the representative has contended that an effective date for increased rating should be prior to the date of claim for increase that was received on June 21, 2013; therefore, the disagreement is entirely with the rating assigned for the increased rating period beginning on June 21, 2013, that is, disagreement with the rating assigned for the stage of rating prior to receipt of the 100 percent rating. See September 2014 NOD. The Veteran and representative only asserted disagreement with the 50 percent stage of the rating assigned for the rating period from June 23, 2011 to February 19, 2015. Because the issue of a disability rating in excess of 50 percent from June 21, 2013 to February 19, 2015 has remained on appeal before the Board, and the Veteran’s main contention is that a higher rating up to 100 percent is warranted for this early stage of rating from June 21, 2013, the claim on appeal remains an increase rating appeal, and there is no actual earlier effective date appeal before the Board. Likewise, the RO’s labeling of the subsequent adjudications to include the phrase “earlier effective date” has not raised or adjudicated an actual effective date issue, and has not raised any due process concern or prejudiced the Veteran in any way because the same “questions” of appropriate are being addressed as increased rating rather rating (whether up to 100 percent rating is warranted from June 21, 2013) rather than earlier effective date (when entitlement to a 100 percent rating arose). While the RO later styled the appeal as one for earlier effective date, there can be no prejudice to the Veteran regarding the later styling of the issue as one for earlier effective date because the substance of the statement of the case adjudication was essentially a rating analysis for the early rating period; the same evidence would be weighed and considered in the same manner to resolve either the question of when the evidence showed that entitlement to a higher disability rating arose (an effective date criterion) or the appropriateness of the rating for a particular stage of increase rating (increase rating question). The analysis and result would be the same under either an “entitlement arose” analysis or whether a higher rating is warranted for early stage analysis. For these reasons, the issue remaining on appeal is entitlement to an increased disability rating for PTSD, in excess of 50 percent for the early stage of the rating period from June 21, 2013 (date of receipt of the claim for increase) to February 19, 2015. The Board finds that the duties to notify and assist the appellant in this case have been rendered moot by the grant of service connection for IBS and the grant of 100 percent rating for the service-connected PTSD from June 21, 2013 to February 19, 2015, which is a full grant of the benefits sought on appeal. 1. Service Connection for IBS The Veteran generally contends that service connection is warranted for IBS, as symptoms of IBS started during active duty service in Iraq and have continued since then. See September 2018 Board hearing transcript. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). In claims based on qualifying chronic disability, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Laypersons are competent to report objective signs of illness. The term “Persian Gulf Veteran” means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The DD Form 214 and service personnel records reflect that the Veteran received the Global War on Terrorism Service Medal, the Global War on Terrorism Expeditionary Medal, and served in Iraq from March 2003 to February 2004; therefore, the Veteran is a “Persian Gulf veteran” (i.e., had active military service in the Southwest Asian Theater of operations during the Gulf War) as defined by 38 C.F.R. § 3.317. A “qualifying chronic disability” for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or IBS) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). “Objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; and (12) abnormal weight loss. 38 C.F.R. § 3.317(b). As noted above, the Veteran had service in the Southwest Asian Theater of operations during the Persian Gulf War. Per October 2002 and March 2003 service treatment records, the Veteran sought treatment for nausea, vomiting, watery stool, constipation, and abdominal pain. The in-service examiner noted gastroenteritis. Subsequent private treatment records dated 2012 through 2014 reflect continued symptoms of worsening loose stools, constipation, and abdominal cramping that had been present since service in Iraq in 2003. See September 2012, October 2012, May 2014, October 2014 VA treatment records. VA treatment records dated October 2014 and May 2015 diagnosed post-infectious IBS that had been present since service. IBS is on the list of medically unexplained chronic multisymptom illnesses subject to presumptive service connection. 38 C.F.R. § 3.317. Nexus evidence is not required. Gutierrez, 19 Vet. App. at 10. The evidence also shows symptoms of IBS consistent with a compensable disability rating of 10 percent, which is based on moderate IBS with frequent episodes of bowel disturbance with abdominal distress. See 38 C.F.R. § 4.114, Diagnostic Code 7319. Per the October 2012, October 2014 and May 2015 VA treatment records, the Veteran’s longstanding IBS symptoms include alternating diarrhea and constipation, bloating, and abdominal discomfort, which had worsened over the years and occurred up to three times a week. While the April 2015 VA examiner opined that the current IBS or chronic diarrhea was not related to service, and was likely related to post-service gastroenteritis, such an opinion, which addresses direct service connection, is of little probative value because the Board is granting presumptive service connection on the basis of a qualifying chronic disability of chronic multisymptom illness; therefore, nexus evidence is not required. Gutierrez at 10. Based upon the above, presumptive service connection for IBS, as a qualifying chronic disability of chronic multisymptom illness, is warranted. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The grant of presumptive service connection as due to a qualifying chronic disability renders moot other theories of service connection. 2. Rating PTSD from June 21, 2013 to February 19, 2015 The service-connected PTSD is rated 50 percent from June 21, 2013 pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran generally contends that a 100 percent disability rating is warranted from June 2013 because of symptoms of severe depression, anxiety, suicidal ideation, and hallucinations. See September 2018 Board hearing transcript, December 2016 VA Form 9. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). The Veteran is in receipt of a 50 percent rating for PTSD from June 21, 2013 under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 50 percent rating will be assigned for a mental disability which is productive of occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks occurring more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material or forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent rating will be assigned for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 an inability to establish and maintain effective relationships. Id. A 100 percent rating will be assigned for total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an 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. In this decision, the Board considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has considered the symptoms indicated in the rating criteria as examples of symptoms “like or similar to” the Veteran’s PTSD symptoms in determining the appropriate schedular rating assignment, and has not required the presence of a specified quantity of symptoms in the Rating Schedule to warrant the assigned rating for major depressive disorder. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a veteran’s capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). The Secretary of VA, acting within his authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501 (2012); 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 psychiatric disorders, there can be no doubt that the Secretary of VA anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive. The Secretary’s use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997). See Mauerhan, 16 Vet. App. at 442. The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. The schedular rating criteria rate by analogy psychiatric symptoms that are “like or similar to” those explicitly listed in the schedular rating criteria. Mauerhan at 443. The Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” The Federal Circuit stated that “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.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” In Golden v. Shulkin, No. 16-1208 (U.S. Vet. App. April 19, 2017), the Court held that, given that the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) abandoned the Global Assessment of Functioning (GAF) scale and that VA has formally adopted the DSM-5, GAF scores are inapplicable to assign a psychiatric rating in cases where the DSM-5 applies when the appeal was certified after August 4, 2014. Because of the Court’s emphatic pronouncement in Golden that the GAF scores are methodologically flawed and are particularly unreliable as applied to an acquired psychiatric disorder, in this decision, the Board will place no reliance on GAF scores for rating this Veteran’s PTSD. After a review of all the evidence, both lay and medical, the Board finds that for the rating period from June 21, 2013 to February 19, 2015, PTSD has more nearly approximated total occupational and social impairment, which warrants a higher 100 percent rating under Diagnostic Code 9411. 38 C.F.R. § 4.130. A review of VA treatment records from 2013 reflects reported symptoms of deep depression with suicidal ideation, chronic sleep disturbance, recurrent nightmares, irritability, impaired concentration, paranoia, auditory and visual hallucinations. Diagnosis has remained severe PTSD, major depressive disorder (MDD), recurrent with psychosis. Psychiatric symptoms have been managed with psychotherapy and psychotropic medications such as Prazosin, Quetiapine, and Bupropion. See April 2013, June 2013, December 2013 VA treatment records. The December 2013 VA examination report also reflects symptoms of suicidal ideation, disturbance of motivation and mood, anxiety, chronic sleep impairment, depressed mood, nightmares two to three times per week, and increased anxiety and fear. The VA examiner assessed occupational and social impairment with reduced reliability and productivity due to PTSD symptoms. See December 2013 VA examination. Although the December 2013 VA examiner, assessed occupational and social impairment with reduced reliability and productivity, the Board finds this assessment to be inconsistent with and outweighed by the Veteran’s credible lay statements and the clinical medical evidence which reflects persistent symptoms of suicidal thoughts, hallucinations, paranoia, and severe depression and anxiety despite medication management, which indicates that symptoms of PTSD are more severe than the December 2013 VA examiner assessed. While a December 2014 VA treatment note reflects some improvement in suicidal thoughts with medication management, the Veteran continued to endorse weird visions and derogatory auditory hallucinations. Overall, VA clinical records and the December 2013 VA examination report reflects persistent symptoms of suicidal ideation, which is like or similar to persistent danger of hurting self or others, as well as persistent delusions or hallucinations, in addition to symptoms of depression, anxiety, and disturbance of mood and motivation. Moreover, the diagnosis of PTSD, which has been characterized as severe with recurrent psychosis, in addition to persistent suicidal thoughts and auditory and visual hallucinations, suggest some symptoms of gross impairment in thought processes. As such, the overall disability picture more nearly approximates total occupational and social impairment. The ultimate determination as to the level of occupational and social impairment is an adjudicative determination. For these reasons, the Board finds that, for the rating period from June 21, 2013 to February 19, 2015, the Veteran’s disability picture more nearly approximates the criteria for a 100 percent rating, that is, total occupational and social impairment. See 38 C.F.R. §§ 4.3, 4.7, 4.13, Diagnostic Code 9411. The Board has considered whether an increased disability rating was warranted at any point during the one-year period prior to June 21, 2013, the date of claim. See Hart, 21 Vet. App. 505. The evidence of record does not indicate that the Veteran became entitled to an increased disability rating for the PTSD disability between June 2012 and June 2013, the one-year period prior to receipt of claim for increased rating. See 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o) (2017); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Extraschedular Referral Consideration (Continued on the next page)   The Board has considered whether the Veteran or the record has raised the question of referral for an extraschedular rating adjudication under 38 C.F.R. § 3.321(b) for any period for the initial rating issue on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008). After review of the lay and medical evidence of record, the Board finds that the question of an extraschedular rating has not been made by the Veteran or raised by the record as to the issue on appeal. See Doucette v. Shulkin, 28 Vet. App. 366 (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); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not “specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted”). J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Moore, Associate Counsel