Citation Nr: 18145669 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 11-27 977 DATE: October 29, 2018 REMANDED The claim of entitlement to service connection for chronic fatigue syndrome is remanded. The claim of entitlement to an initial disability rating in excess of 10 percent for tension-type headaches is remanded. The claim of entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD), major depressive disorder, and obsessive compulsive disorder, is remanded. The claim of entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Air Force from June 1989 to July 2009. The Veteran is a Gulf War Era Veteran with service in Southwest Asia. The Veteran also served during Peacetime. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This case was previously before the Board in January 2015 and April 2017. In January 2015, the Veteran’s tension-type headaches were awarded an initial disability evaluation of 10 percent, without precluding greater award on remand. The case was remanded to obtain outstanding treatment records, and obtain VA examinations to address the aforementioned issues. In a June 2015 Board Decision, the RO granted a disability rating of 70 percent for the Veteran’s PTSD, major depressive disorder, and obsessive compulsive disorder, effective March 25, 2015. In April 2017, the case was returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board granted an initial rating of 70 percent for PTSD, major depressive disorder, and obsessive compulsive disorder for the period prior to March 25, 2015. The Board denied the Veteran’s claim for entitlement to service connection for chronic fatigue syndrome; an initial disability rating in excess of 10 percent for tension-type headaches; and an initial disability rating in excess of 70 percent for the Veteran’s PTSD, major depressive disorder, and obsessive-compulsive disorder. In May 2017, pursuant to the Board’s April 2017 Decision, the RO afforded the Veteran an initial disability evaluation for his PTSD of 70 percent, effective August 1, 2009. The Veteran appealed the April 2017 Board decision to the United States Court for Veterans Claims (Court). In March 2018, the Court granted a Joint Motion for Partial Remand and remanded the claims of entitlement to service connection for chronic fatigue syndrome; an initial disability rating in excess of 10 percent for tension-type headaches; and an initial disability rating in excess of 70 percent for the Veteran’s PTSD, major depressive disorder, and obsessive compulsive disorder for further consideration. The appeal is REMANDED to the Agency of Original Jurisdiction. VA will notify the Veteran if further action is required. 1. Entitlement to service connection for chronic fatigue syndrome is remanded. In the March 2018 Joint Motion for Partial Remand, the Court found that the Board erred in its April 2017 Decision by not considering entitlement to service connection for chronic fatigue syndrome under the provisions of 38 C.F.R. § 3.317, undiagnosed and medically unexplained multi-symptom illnesses occurring in Persian Gulf War veterans. 38 C.F.R. § 3.317 (2018). The April 2017 Board Decision afforded significant weight to the Veteran’s VA examinations from March 2015. The examiner found that the Veteran did not have, nor had he ever had, the diagnosis of chronic fatigue syndrome. However, the VA examiner did not consider the possibility of complaints of chronic fatigue as an unexplained multisymptom illness pursuant to his service in Southwest Asia. Id. To be considered adequate, a VA examination should consider all raised theories of entitlement. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007). As the VA examination is not adequate, the Veteran should be afforded a new examination upon remand to specifically consider Gulf War Syndrome. 2. Entitlement to an initial disability rating in excess of 10 percent for tension-type headaches is remanded. In the March 2018 Joint Motion for Partial Remand, the Court found that the Board erred in not considering whether the Veteran’s headaches demonstrated severe economic inadaptability. The Board notes that the Veteran’s most recent VA examination to determine the severity of his tension-type headaches was in March 2015. The VA examination did not, specifically, address whether the symptoms of the Veteran’s service-connected tension-type headaches were sufficient to cause economic adaptability. The Board is not able to draw such conclusions, as to do so without proper medical evidence is beyond the scope of the expertise of the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Moreover, the Veteran continues to contend tension-type headache symptomatology. As such, the Board finds that the Veteran should be afforded a VA examination to determine the current severity of his tension-type headaches, to include consideration of economic inadaptability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). 3. Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD), major depressive disorder, and obsessive compulsive disorder is remanded. The Board notes that the last VA examination, to determine the severity of the Veteran’s PTSD, major depressive disorder, and obsessive compulsive disorder, was performed in March 2015. The Veteran continues to claim psychological symptoms. Moreover, the Court specifically found in the March 2018 Joint Motion for Partial Remand that TDIU and unemployability must be addressed. The Board finds that it is appropriate for a new VA examination to be conducted to address the severity of the Veteran’s psychiatric symptoms, specifically addressing employment related deficiencies. In light of the Joint Motion for Partial Remand’s findings, the Board finds that a new VA examination to determine the severity of the Veteran’s PTSD, major depressive disorder, and obsessive-compulsive disorder is appropriate. Peters, 6 Vet. App. at 542. The Board further notes that the TDIU claim is being remanded for further development. In Brambley v. Principi, the Court noted that the Board’s remand of a TDIU claim for additional record development was inconsistent with a finding that the record was sufficient to conclude that the Veteran’s service-connected disability did not produce a marked interference with employment for the purposes of extraschedular consideration. Brambley v. Principi, 17 Vet. App. 20 (2003). As such, the Board finds that the issues of TDIU and an increased rating for the Veteran’s PTSD, major depressive disorder, and obsessive-compulsive disorder, are inextricably intertwined and must be contemporaneously adjudicated. 4. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. With respect to a total disability rating based on individual unemployability (TDIU), the Veteran has appealed for higher schedular ratings for his posttraumatic stress disorder (PTSD), major depressive disorder, and obsessive-compulsive disorder, and his tension-type headaches, and he has alleged interference with his employment due to his service-connected disabilities in his correspondence with the VA. Thus, a claim for TDIU exists. Rice v. Shinseki, 22 Vet. App. 447 (2009) (if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether TDIU is warranted). In this case, the Court confirmed that the Veteran’s claims raised the issue of unemployability. See Joint Motion for Partial Remand, dated March 2018; Form VA 21-8940, dated June 2013. The Board has therefore added a TDIU claim to the title page to reflect the Board's jurisdiction over this matter. Further development is needed to properly adjudicate the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). The Board finds that the claims for increased disability ratings for his service-connected higher schedular ratings for his posttraumatic stress disorder (PTSD), major depressive disorder, and obsessive-compulsive disorder, and his tension-type headaches and the claim of entitlement to TDIU are inextricably intertwined. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2018). The claims of entitlement to increased disability ratings for his service-connected higher schedular ratings for his posttraumatic stress disorder (PTSD), major depressive disorder, and obsessive compulsive disorder, and his tension-type headaches are "intertwined" with the claim for TDIU because a decision on the disability ratings for his higher schedular ratings for his posttraumatic stress disorder (PTSD), major depressive disorder, and obsessive compulsive disorder, and his tension-type headaches will impact the claim for TDIU. See Harris, 1 Vet. App. at 183. Consequently, the claim of entitlement to increased disability ratings for higher schedular ratings for his posttraumatic stress disorder (PTSD), major depressive disorder, and obsessive-compulsive disorder, and his tension-type headaches, and the claim of entitlement to TDIU must be remanded for contemporaneous adjudication. The matters are REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records and all outstanding private treatment records, with all necessary assistance from the Veteran. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Provide the Veteran with VA Form 21-8940 with appropriate instructions on filing for TDIU. Obtain updated, relevant, employment and educational records with all necessary assistance from the Veteran. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. Schedule the Veteran for a Gulf War examination to determine the etiology of any unexplained multi-symptom illness. The examiner should, specifically, address the Veteran’s asserted fatigue and any relation to Gulf War related unexplained multi-symptom illness. It should be noted that the appellant is competent to attest to observable symptomatology. The examiner’s attention is invited to the appellant’s statements concerning the onset of his claimed disabilities. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the appellant’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation The examiner must provide a rationale for any proffered opinion. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Obtain a VA examination for the Veteran regarding the severity of his tension-type headaches, to include specific consideration of economic inadaptability due to the Veteran’s headache symptomatology. It should be noted that the appellant is competent to attest to observable symptomatology. The examiner’s attention is invited to the appellant’s statements concerning the onset of his claimed disabilities. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the appellant’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation The examiner must provide a rationale for any proffered opinion. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones, 23 Vet. App. at 382. 5. Obtain a VA examination for the Veteran regarding the severity of his PTSD. The examiner must review the entire claims file, and consider the lay statements provided by the Veteran regarding his daily symptoms. The examiner should opine as to the current nature and severity of the Veteran's PTSD, to include an assessment of his overall social and occupational impairment due to his disability. The examiner should specifically address the Veteran's self-reporting of observed symptoms. It should be noted that the appellant is competent to attest to observable symptomatology. The examiner’s attention is invited to the appellant’s statements concerning the onset of his claimed disabilities. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the appellant’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner must provide a rationale for any proffered opinion. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones, 23 Vet. App. at 382. 6. Readjudicate all of the issues on appeal, to include the claim for TDIU. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel