Citation Nr: 18145019
Decision Date: 10/26/18	Archive Date: 10/25/18

DOCKET NO. 16-09 750
DATE:	October 26, 2018
ORDER
A total disability rating due to individual unemployability (TDIU) is granted.
REMANDED
1. Entitlement to service connection for exophoria (claimed as amblyopia) is remanded.
2. Entitlement to service connection for bilateral upper extremity carpal tunnel syndrome is remanded.
3. Entitlement to an initial increased rating in excess of 70 percent for service-connected major depressive disorder with anxiety disorder NOS is remanded.
4. Entitlement to an initial increased rating in excess of 50 percent for service-connected obstructive sleep apnea (OSA) is remanded.
5. Entitlement to an initial increased rating in excess of 10 percent for service-connected tinea versicolor is remanded.
6. Entitlement to an initial increased rating in excess of 10 percent for a sebaceous cyst is remanded.
7. Entitlement to a compensable rating for a service-connected scar, status post cesarean section surgery, is remanded.
8. Entitlement to a compensable rating for service-connected hemorrhoids is remanded.
9. Entitlement to a compensable rating for service-connected bulimia nervosa is remanded.
10. Entitlement to an earlier effective date for grant of service connection for a scar, status post cesarean section surgery, is remanded.
11. Entitlement to an earlier effective date for grant of service connection for hemorrhoids is remanded.
12. Entitlement to an earlier effective date for grant of service connection for major depressive disorder is remanded.
13. Entitlement to an earlier effective date for grant of service connection for obstructive sleep apnea is remanded.
14. Entitlement to an earlier effective date for grant of service connection for tinea versicolor is remanded.
15. Entitlement to an earlier effective date of grant of service connection for a sebaceous cyst is remanded.
16. Entitlement to an earlier effective date of grant of service connection for bulimia nervosa is remanded.
FINDING OF FACT
The Veteran is precluded from maintaining regular and substantially gainful employment because of her service-connected major depressive disorder with anxiety disorder NOS. 
CONCLUSION OF LAW
The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16 (2018). 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran honorably served on active duty from September 2001 to September 2012. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. 
The record reflects that the Veteran’s service-connected major depressive disorder with anxiety disorder not otherwise specified (NOS) prevents her from working. See July 2014 Private Psychological Evaluation. Because a TDIU rating is inherent in any claim for an increased rating, see Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board assumes jurisdiction over this claim and will adjudicate it herein.
Total Disability Rating Due to Individual Unemployability (TDIU)
I.	Legal Criteria
It is the established policy of VA that all veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. 
Entitlement to a TDIU rating requires that service-connected disabilities cause an impairment severe enough that the Veteran is precluded from obtaining and maintaining a substantially gainful occupation. 38 C.F.R. § 3.340. Substantially gainful employment is defined as work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In making this determination, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19.
A schedular TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more; or if there are two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 
II.	Factual Background and Legal Analysis
Service connection has been established for major depressive disorder with anxiety disorder NOS, rated 70 percent disabling from September 2, 2012; obstructive sleep apnea (OSA), rated 50 percent disabling from September 2, 2012; a sebaceous cyst, rated 10 percent disabling from September 2, 2012; tinea versicolor, rated 10 percent disabling from September 2, 2012; and other, currently non-compensable disabilities. Because the Veteran has a single service-connected disability rated greater than 40 percent and a total combined rating of 70 percent since September 2, 2012, the ratings requirements for a schedular TDIU rating is met. 38 C.F.R. § 4.16(a). Therefore, the remaining issue is whether Veteran is unable to obtain and maintain a substantially gainful occupation due to her service-connected disabilities.
The Veteran’s competent and credible reports during treatment are highly probative to the issue of TDIU and support a finding that she is unable to obtain and maintain a substantially gainful occupation due to her service-connected major depressive disorder with anxiety disorder NOS. The Veteran reported symptoms of depression, lack of motivation, irritability, difficulty maintaining sleep, passive suicidal ideation, inability to consistently perform activities of daily living, and crying excessively with corresponding mental status examinations frequently reflecting tearfulness and constricted affect. See e.g., March 2013 Psychiatry Note by M.K, N.P.; May 2013 VA Examination by M.R., Ph.D.; July 2014 Private Psychological Evaluation; January 2015 Primary Care Mental Health Intervention Note; April 2015 Primary Care Note; August 2015 Psychiatry Note by B.D., M.D.
Based on the medical evidence of record and a clinical interview with the Veteran, a private psychologist opined that the Veteran’s mental health-related symptoms would cause her to miss work three or more days a month. See July 2014 Private Psychological Evaluation. This medical opinion is highly probative as to the Veteran’s mental-health related occupational functioning capabilities, in large part because of the consistency between the private provider’s report and the longitudinal medical record. 
The Veteran also submitted a vocational rehabilitation specialist opinion that, in pertinent part, included a notation that the number of absences resulting from her mental health impairment would not be tolerated in a competitive work environment, citing to a study in a business journal and a presentation by fellow vocational expert summarizing the relevant studies for excessive absences. See August 2016 Vocational Expert Report. This opinion by a vocational expert is also highly probative as to the ability of the Veteran to maintain a substantially gainful occupation. 
Considering the foregoing, the Board finds that the preponderance of the evidence supports a finding that the Veteran’s service-connected major depressive disorder with anxiety NOS reduce her mental-health related occupational functioning to such an extent as to make her unable to obtain and maintain substantially gainful employment. Accordingly, a TDIU rating is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  
REASONS FOR REMAND
Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran’s claim so that every possible consideration is afforded.
1. Entitlement to service connection for exophoria (claimed as amblyopia) is remanded.
The Board finds that further development of the record is necessary to meet VA’s duty to assist the Veteran in developing evidence to substantiate her claim. See 38 C.F.R. § 3.159. The Board cannot make a fully-informed decision on the claim at this time because there is no rationale included with the opinion that the Veteran’s exophoria is “not likely to be related to her service-related duties.” See April 2013 VA Examination; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion… must support its conclusion with an analysis that the Board can consider.”). The opinion also provides the incorrect standard because the Veteran need not prove that it is likely to be related to her service-related duties; she must merely prove that the disability was at least as likely as not incurred in service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that it is an error to rely on a medical opinion that does not apply the appropriate legal standard). VA must provide a Veteran with a medical examination and opinion when it is necessary to decide a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Whenever VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).
Further, the Veteran’s claims file does not appear to contain her complete service records because there is no entrance examintion contained within the record. Although the RO made a formal finding of unavailability of the records in November 2013, it appears that there was a separate file of service department records in a VA envelope added to the file after. This suggests that her records may have been located after the formal finding of unavailability was made. Because outstanding service records may contain information regarding the Veteran’s exophoria, a remand is required to obtain them.
2. Entitlement to service connection for bilateral upper extremity carpal tunnel syndrome is remanded.
The Board finds that further development of the record is necessary to meet VA’s duty to assist the Veteran in developing evidence to substantiate her claim. See 38 C.F.R. § 3.159. The Board cannot make a fully-informed decision on the claim at this time because the VA examiner opined that the Veteran required an EMG in order to confirm a diagnosis of carpel tunnel syndrome, but it appears that there was no diagnostic testing performed. VA must provide a Veteran with a medical examination when it is necessary to decide a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In this case, this would include appropriate diagnostic testing for carpal tunnel syndrome. 
3. Entitlement to an initial increased rating in excess of 70 percent for service-connected major depressive disorder with anxiety disorder is remanded.
Throughout the Veteran’s medical records, there are indications that she sees a private primary care physician, who appears to have treated her for her service-connected mental health disabilities and other conditions as late as 2015. However, the last received medical records were from 2013. A remand is required to obtain these records. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994) (“The duty to assist may arise when a claimant simply refers to the private medical examinations or treatments without making a specific request.”); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that evidence of record before VA may “raise[] enough notice of pertinent private medical records to trigger the duty to assist”).
4. Entitlement to an initial increased rating in excess of 50 percent for service-connected obstructive sleep apnea (OSA) is remanded.
A remand is required for the same reasons addressed above with respect to the claim for an initial increased rating for the Veteran’s service-connected major depressive disorder with anxiety disorder NOS.  
5. Entitlement to an initial increased rating in excess of 10 percent for service-connected tinea versicolor is remanded.
A remand is required for the same reasons addressed above with respect to the claim for an initial increased rating for the Veteran’s service-connected major depressive disorder with anxiety disorder NOS.  
6. Entitlement to an initial increased rating in excess of 10 percent for residuals of a sebaceous cyst is remanded.
The Veteran was afforded a VA examination for her scar, status post cesarean section surgery, but the Veteran’s sebaceous cyst, which is rated under a diagnostic code for a painful or unstable scar, was not the subject of a VA examination. Because the Veteran may be able to receive an additional 10 percent if the scar is both painful and unstable, see 38 C.F.R. § 4.118, DC 7804, Note 2, a remand for a VA examination for the Veteran’s service-connected sebaceous cyst is required.
A remand is also required for the same reasons addressed above with respect to the claim for an initial increased rating for the Veteran’s service-connected major depressive disorder with anxiety disorder NOS.  
7. Entitlement to a compensable rating for a service-connected scar, status post cesarean section surgery, is remanded.
A muscle injury VA examination is warranted for this disability. The scar tissue VA examination reported included that the Veteran has nerve damage characterized by numbness over the abdomen due to the surgeon cutting through the fascia of the abdomen. See May 2013 VA Examination by D.H., M.D.  This suggests permanent injury of the fascia, which would appear to be more appropriately rated as a muscle injury. See 38 C.F.R. § 4.56 (discussing severity of ratings in part based upon the level of objective findings of fascial defect). 
Additionally, because a remand is required for evaluation of a scar related to a sebaceous cyst and because it is not clear if the numbness related to this scar is due to the nature of its depth and/or relation to underlying soft tissue damage, this should be the subject to another scar tissue VA examination for clarification of the cause of the Veteran’s numbness.
A remand is also required for the same reasons addressed above with respect to the claim for an initial increased rating for the Veteran’s service-connected major depressive disorder with anxiety disorder NOS.  
8. Entitlement to a compensable rating for service-connected hemorrhoids is remanded.
A remand is required for the same reasons addressed above with respect to the claim for an initial increased rating for the Veteran’s service-connected major depressive disorder with anxiety disorder NOS.  
9. Entitlement to a compensable rating for service-connected bulimia nervosa is remanded.
The Veteran was afforded a VA examination for her now service-connected major depressive disorder with anxiety disorder NOS, but she was not afforded a VA examination for her bulimia nervosa. A remand is required to obtain a medical opinion on her level of functioning with bulimia nervosa. 
A remand is also required for the same reasons addressed above with respect to the claim for an initial increased rating for the Veteran’s service-connected major depressive disorder with anxiety disorder NOS.  

10. The issues of entitlement to earlier effective dates for the grants of service connection for a sebaceous cyst, hemorrhoids, tinea versicolor, bulimia nervosa, major depressive disorder with anxiety, OSA, and a scar, status post cesarean section surgery, are remanded. 
Regarding the issues of entitlement to earlier effective dates for the grants of service connection for a sebaceous cyst, hemorrhoids, tinea versicolor, bulimia nervosa, major depressive disorder with anxiety, OSA, and a scar, status post cesarean section surgery, the Veteran submitted a timely notice of disagreement with a December 2013 rating decision specifically disagreeing with the effective date of each of these awards, but a statement of the case has not yet been issued.  A remand is required for the AOJ to issue a statement of the case.  38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).
The matters are REMANDED for the following action:
1. Perform exhaustive efforts to obtain the Veteran’s complete service records, to include her entrance and exit examinations. If attempts to obtain the records are not successful, she MUST be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 
2. Send a letter to the Veteran requesting that she identify any relevant outstanding private treatment records and any other relevant evidence pertaining to her claims of entitlement to service connection for carpal tunnel syndrome and exophoria or her claims of entitlement to initial increased ratings for her service-connected major depressive disorder with anxiety disorder NOS, obstructive sleep apnea, tinea versicolor, sebaceous cyst, bulimia nervosa, hemorrhoids, and a residual scar, status post cesarean section. She should be invited to submit this evidence herself or to request that VA to obtain it on her behalf. Authorized release forms (VA Form 21-4142) should be provided for this purpose.
If the Veteran properly fills out and returns any authorized release forms for private records identified by her, reasonable efforts should be made to obtain such records and associate them with the claims file. At least two such efforts should be made unless it is clear from the private provider’s response to the first request that a second effort would be futile.
If attempts to obtain any records identified by the Veteran are not successful, she MUST be notified of this fact and all efforts to obtain them must be documented and associated with the claims file.
3. Obtain the Veteran’s VA treatment records for the period from January 2016 to the present.
4. After completion of directives one through three, schedule the Veteran for an examination by an appropriate clinician to determine the nature and cause of the Veteran’s carpal tunnel syndrome condition(s). Based on the factual evidence of record and the examination, the examiner must provide an opinion that responds to the following:
(a.) Please identify the Veteran’s carpal tunnel syndrome or carpal tunnel syndrome-like condition(s) by diagnosis(es). 

If diagnostic studies are required to diagnose the Veteran, then the pertinent studies should be obtained for the Veteran.
(b.) For EACH of the diagnosed carpal tunnel syndrome or carpal tunnel syndrome-like conditions(s), is it at least as likely as not (defined as a 50% or better probability) that the Veteran’s current carpal tunnel syndrome or carpal tunnel syndrome-like condition(s) was incurred in active military service, to include beginning in service?
In forming any opinions, the Board emphasizes that the Veteran is competent to report what her symptoms are and when they began. If the Veteran’s statements are inconsistent with the medical evidence, the examiner must provide a comprehensive report including a complete explanation (rationale) for all opinions and conclusions reached, citing the objective medical findings or other evidence leading to the conclusion that her statements are inconsistent with the medical evidence.
Detailed rationale and reasoning for all opinions and conclusions provided is required BY LAW. Providing an opinion without a thorough explanation will delay processing of the claim and may result in a clarification being requested.
If it is not possible to provide any of the requested information, the examiner must state whether this is because of a deficiency in the state of general medical knowledge (that is, no one could respond, given medical science and the known facts), a deficiency in the record (that is, additional facts are required), or the examiner (that is, the examiner does not have the required knowledge or training).
If the examiner cannot provide answers because further information or diagnostic studies are required, all reasonable steps to obtain this information or diagnostic studies should be exhausted before concluding that the answer cannot be provided. 
5. After completion of directives one through three, provide the complete record to an appropriate clinician and schedule the Veteran for an examination determine the nature and cause of the Veteran’s exophoria. Based on the factual evidence of record, the examiner must provide an opinion that responds to the following:
(a.) Please identify the Veteran’s exophoria or exophoria-like condition(s) by diagnosis(es) and include ALL pertinent diagnoses, even if they are merely alternative names for the same diagnosis.
(b.) For EACH of the diagnosed exophoria or exophoria-like conditions(s), is it at least as likely as not (defined as a 50% or better probability) that the Veteran’s current exophoria or exophoria-like condition(s) was incurred in active military service, to include as beginning in service?
(c.) For EACH of the diagnosed exophoria or exophoria-like conditions(s), is is there clear and unmistakable (obvious, manifest, and undebatable) evidence that this condition pre-existed service?
(d.) If it is determined that the Veteran’s exophoria pre-existed service, is there clear and unmistakable (obvious, manifest, and undebatable) evidence that this condition WAS NOT aggravated during service OR that it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in symptoms was due to natural progress?
The examiner is advised that AGGRAVATION is defined as a permanent increase in severity of the disability beyond its natural progression.
The examiner’s attention is drawn to the following records (the following is a brief factual background and not intended to be a substitute for your review of the Veteran’s claims folder):
*A September 2001 optometry examination reflecting “obvious strab” and noting that the Veteran was positive for diplopia. 
*A March 2005 ophthalmological operative report reflecting operation on the Veteran’s left superior oblique palsy. 
*A July 2008 optometry examination reflecting the Veteran’s post-surgical state of eye and adnexa with objective signs of “DLP 7 exophoria.”
In forming any opinions, the Board emphasizes that the Veteran is competent to report what her symptoms are and when they began. If the Veteran’s statements are inconsistent with the medical evidence, the examiner must provide a comprehensive report including a complete explanation (rationale) for all opinions and conclusions reached, citing the objective medical findings or other evidence leading to the conclusion that her statements are inconsistent with the medical evidence.
Detailed rationale and reasoning for all opinions and conclusions provided is required BY LAW. Providing an opinion without a thorough explanation will delay processing of the claim and may result in a clarification being requested.
If it is not possible to provide any of the requested information, the examiner must state whether this is because of a deficiency in the state of general medical knowledge (that is, no one could respond, given medical science and the known facts), a deficiency in the record (that is, additional facts are required), or the examiner (that is, the examiner does not have the required knowledge or training).
If the examiner cannot provide answers because further information or diagnostic studies are required, all reasonable steps to obtain this information or diagnostic studies should be exhausted before concluding that the answer cannot be provided.
6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected bulimia nervosa. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria.  The examiner must attempt to elicit information regarding the severity, frequency, and duration of any episodes, and the degree of functional loss during episodes. To the extent possible, the examiner should identify any symptoms and functional impairments due to bulimia nervosa alone and discuss the effect of the bulimia nervosa on any occupational functioning and activities of daily living.  

If it is not possible to provide an opinion regarding the Veteran’s episodes or binging and/or purging, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).
7. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected sebaceous cyst and scar, status post cesarean section surgery, which are both currently rated as scars. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria, both the pre-2018 version and the current, 2018 version.  The examiner must attempt to elicit information regarding the severity, frequency, and duration of any episodic symptoms, and the degree of functional loss during episodes.  To the extent possible, the examiner should identify any symptoms and functional impairments due to the scar or cyst alone and discuss the effect of the Veteran’s sebaceous cyst and scar, status post cesarean section surgery, on any occupational functioning and activities of daily living. 

In terms of the Veteran’s symptoms of numbness on her abdomen, the examiner should explain whether this is due to the depth of the scar and/or whether it is associated with underlying soft tissue damage. 

If it is not possible to provide a specific measurement, or an opinion regarding symptoms or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).
8. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected scar, status post cesarean section surgery in terms of any residual or remaining MUSCLE INJURY. This will require a MUSCLE INJURY examination. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the muscle injury rating criteria.  The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  To the extent possible, the examiner should identify any symptoms and functional impairments due the scar, status post cesarean section surgery, alone and discuss its effect on any occupational functioning and activities of daily living.  

If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).
9. After reviewing newly obtained evidence and undertaking any additional development deemed appropriate, readjudicate the Veteran’s pending claims. If any benefits sought on appeal remain denied, the Veteran and her representative should be furnished with a Supplemental Statement of the Case and should be afforded the opportunity to respond before the record is returned to the Board for further review.
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10. Send the Veteran and her representative a statement of the case that addresses the issues of entitlement to earlier effective dates for the grants of service connection for a sebaceous cyst, hemorrhoids, tinea versicolor, bulimia nervosa, major depressive disorder with anxiety, OSA, and a scar, status post cesarean section surgery. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration.
 
VICTORIA MOSHIASHWILI
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Lambert, Associate Counsel