Citation Nr: 18149399 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 15-28 363 DATE: November 9, 2018 ORDER 1. New and material evidence having been received, a claim of service connection for skin rashes is reopened. 2. New and material evidence having been received, a claim of service connection for chronic headaches is reopened. 3. New and material evidence having been received, a claim of service connection for Chronic Fatigue Syndrome (CFS) is reopened. 4. New and material evidence having been received, a claim of service connection for a lower gastrointestinal disorder, claimed as internal bleeding, is reopened. 5. New and material evidence having been received, a claim of service connection for sleep apnea is reopened. 6. New and material evidence having been received, a claim of service connection for insomnia is reopened. 7. Service connection for skin rashes is granted. 8. Service connection for chronic headaches is granted. 9. An initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) with major depressive disorder and alcohol use disorder is granted, subject to the laws and regulations governing the payment of monetary awards. 10. Since January 25, 2018, a total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the payment of monetary awards. REMANDED 1. Service connection for CFS is remanded. 2. Service connection for a lower gastrointestinal disorder, claimed as internal bleeding, is remanded. 3. Service connection for sleep apnea is remanded. 4. Service connection for insomnia is remanded. FINDINGS OF FACT 1. The Veteran has had recurrent skin rashes since service. 2. The Veteran has had chronic headaches since service. 3. Since the date of service connection, the Veteran’s PTSD with major depressive disorder and alcohol use disorder has resulted in occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 4. Since January 25, 2018, the Veteran has been prevented from securing and following substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria to establish service connection for skin rashes are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to establish service connection for chronic headaches are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for an initial rating of 70 percent for PTSD with major depressive disorder and alcohol use disorder, but no higher, have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 4. Since January 25, 2018, the criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1991 to June 1991, including service in the Persian Gulf. The case is on appeal from a January 2010 rating decision. In June 2018, the Veteran testified at a Board hearing. The Veteran claim of service connection for internal bleeding has been recharacterized as a claim of service connection for a lower gastrointestinal disorder to more broadly to encompass all disorders reasonably raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In July 2015, the RO granted an increased rating of 70 percent for the Veteran’s PTSD with major depressive disorder and alcohol use disorder as of May 20, 2015. Additional evidence was received since to the most recent supplemental statement of the case issued in November 2017. In September 2018, the Veteran waived initial RO consideration of the additional evidence. See 38 C.F.R. § 20.1304(c). Furthermore, additional evidence was received since the Veteran’s September 2018 waiver of initial RO consideration is not pertinent to the claims decided herein, a remand for RO consideration of such evidence is not necessary. Id. I. New and Material Evidence 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for skin rashes. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for chronic headaches. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for CFS. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for lower gastrointestinal disorder, claimed as internal bleeding. 5. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for sleep apnea. 6. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for insomnia. By a December 2004 rating decision, the Veteran’s claims of service connection for skin rashes, headaches, CFS, internal bleeding, sleep apnea, and insomnia were denied. He was notified of these decisions by letter later that month. Thereafter, nothing further regarding the claim was received until the present claims to reopen in January 2009. No new evidence or notice of disagreement was received by VA within one year of the issuance of the December 2004 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In conjunction with the claims to reopen, the Veteran submitted additional evidence in March 2009 and testified at an August 2012 RO hearing and the June 2018 Board hearing in regard to these claims. In addition, the RO verified the Veteran’s exposure to Scud missile attacks during his Gulf War service in September 2009. New evidence having been received, the claims are reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). II. Service Connection 7. Entitlement to service connection for skin rashes. 8. Entitlement to service connection for chronic headaches. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Facts and Analysis The Veteran contends that he has experienced skin rashes and chronic headaches that began during service or just after his discharge from service. In this regard, during the June 2018 Board hearing, he reported that he has had skin rashes on his chest, back, stomach, and face since his discharge from service. He also reported that he began having chronic headaches began during his service in the Gulf War that have persisted since his discharge from service. The Veteran was afforded a VA examination in regard to his skin in August 2009. The examiner found that the Veteran had chronic, recurrent folliculitis, tinea versicolor in remission, and tinea pedis. Thereafter, the Veteran was afforded another VA skin examination in March 2013. The Veteran reported onset of a skin disorder after his Gulf War service. The examiner reported that the Veteran has had dermatitis since 1991. The Veteran was also afforded VA examinations in regard to his chronic headaches in August 2009. During the examination, the Veteran reported experiencing headaches three times per week that last several hours. The examiner diagnosed the Veteran with vascular headaches. The Board finds the Veteran’s reports of having onset of headaches during service and skin rashes directly after discharge from service to be competent and credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Accordingly, resolving reasonable doubt in the Veteran’s favor, service connection for skin rashes and chronic headaches is warranted. 38 C.F.R. § 3.303(a); see Flynn v. Brown, 6 Vet. App. 500, 503 (1994). III. Higher Initial Rating 9. Entitlement to an initial rating in excess of 30 percent from January 6, 2009 to May 19, 2015, an in excess of 70 percent thereafter, for PTSD with major depressive disorder and alcohol use disorder. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Under 38 C.F.R. § 4.130, most service-connected mental health disabilities are rated pursuant to the General Rating Formula for Mental Disorders. Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. Evaluations will be assigned 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. The extent of social impairment shall also be considered, but an evaluation may not be assigned based solely on the basis of social impairment. 38 C.F.R. § 4.126. Under DC 9411, a 30 percent rating is assigned for PTSD for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks 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, 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. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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 an inability to establish and maintain effective relationships. A 100 percent evaluation is warranted for 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 ability 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. The Board notes that the records contain various global assessment of functioning (GAF) scores. However, GAF scores have been found to be unreliable and not sufficient evidence for rating a psychiatric disorder. See Golden v. Shulkin, 29 Vet. App. 221, 226 (2018). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. 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 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Facts and Analysis The Veteran contends that his service-connected psychiatric disorder should have a higher initial disability rating. In this regard, during the June 2018 Board hearing, the Veteran reported experiencing irritability and anger resulting in arguments with family members and his supervisor at work. He also reported experiencing hypervigilance, panic attacks, and impaired memory and concentration. The Veteran reported that he is separated from his wife and has no social life due to his psychiatric symptoms. He further reported that he lost his job January 24, 2018 due to extended periods of alcohol abuse. The Veteran’s VA treatment records include a psychiatric consultation from January 2009. The Veteran reported experiencing impaired sleep, avoiding people and crowds, hypervigilance, memory loss, increased startle response, and angry outbursts when drinking alcohol. The treatment provider noted that the Veteran was well groomed, oriented to person, place, and time, and denied experiencing hallucinations, delusions, paranoia, suicidal ideation, and homicidal ideation. The treatment provider also found that the Veteran’s judgment and insight appeared to be good. Thereafter, the Veteran was afforded a VA psychiatric examination in April 2009. The Veteran reported being married and getting along with a few friends. The examiner reported that the Veteran was well groomed and denied experiencing suicidal or homicidal thoughts. Subsequently, the Veteran was afforded additional psychiatric examinations in July 2015, August 2017, and May 2018. These examiners reported that the Veteran experiences an inability to establish and maintain effective relationships and difficulty in adapting to stressful circumstances. However, they did not report that the Veteran exhibits total occupational or social impairment, 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, disorientation to time or place, or memory loss for names of close relatives, occupation, or his own name. After engaging in a holistic analysis assessing the severity, frequency and duration of the signs and symptoms of the Veteran’s PTSD with major depressive disorder and alcohol use disorder, recognizing that the symptoms listed in the rating criteria are non-exhaustive examples and when looking at the effects determining the impairment level, the Board finds that an initial rating of 70 percent is warranted. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013); Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); Mauerhan v. Principi, 16 Vet. App. 436 442 (2002). In this regard, during VA treatment in January 2009, the Veteran competently reported experiencing symptoms of indicative of a 70 percent rating including impaired impulse control and inability to establish and maintain effective relationships. This level of impairment is supported by the July 2015, August 2017, and May 2018 psychiatric examinations, which found that the Veteran has symptoms of difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships. Furthermore, the Veteran reported during the June 2018 Board hearing that his wife left him and he lost his job due to his psychiatric disability. While an initial 70 percent rating is warranted, the Veteran’s PTSD does not warrant a higher rating at any time during the period on appeal. In this regard, the evidence of record does not show that the Veteran has experienced gross impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting self or others, or memory loss for names of close relatives, occupation, or his own name. To the extent that the Veteran’s PTSD prevents him from working, as discussed below, the Board is granting a TDIU due to his PTSD symptomatology since the date he became unemployed. In sum, an initial 70 percent rating is warranted for PTSD with major depression and alcohol use disorder. However, as the preponderance of the evidence is against an even higher initial rating at any point during the appeal, the benefit-of-the-doubt doctrine is not further applicable, and any additional grant of benefits is not warranted for such disability. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate a rating in excess of 70 percent. See 38 C.F.R. § 3.159(d). 10. Entitlement to a TDIU. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). For the purpose of meeting these schedular criteria, disabilities affecting a single body system, e.g. orthopedic, will be considered as one disability. Id. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. at 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). A veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Facts and Analysis The Veteran contends that he is unable to work due to his service-connected PTSD with major depressive disorder and alcohol use disorder. In this regard, he reported that he has worked as a truck driver for 30 years and that he does not have any other employable skills. The Veteran reported that in his last job he worked from August 2017 until April 2018, but that, on January 25, 2018, he was placed on short term disability due to his PTSD after losing his commercial driver’s license. He reported that he was not paid for work performed after January 24, 2018. The Veteran further reported having frequent arguments with his supervisor prior to losing his last job. The Veteran submitted an application for a TDIU in April 2018. On the application, he indicated that he worked 70 hours per week as a truck driver since at least April 2012 until he left his last job in 2018. The Board finds that, since January 25, 2018, the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his PTSD with major depressive disorder and alcohol use disorder. In this regard, the psychiatric evaluations of record show that the Veteran has difficulty in adapting to stressful circumstances and an inability to establish and maintain effective relationships. In addition, the Veteran’s work experience is limited to driving commercial vehicles and he lost his commercial driver’s license due to his psychiatric disability in January 2018. Furthermore, the Veteran’s psychiatric disability prevents him from working in occupations requiring regular interactions with others and from adapting to a new field of employment. However, prior to January 25, 2018, the Veteran held substantial, gainful employment. In addition, the Veteran has met the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) since January 6, 2009. In this regard, he is granted an initial 70 percent rating for his service-connected PTSD with major depressive disorder and alcohol use disorder herein. Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected PTSD with major depressive disorder and alcohol use disorder since January 25, 2018, but not earlier. Thus, entitlement to a TDIU is warranted as of such date. Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate a TDIU prior to January 25, 2018. See 38 C.F.R. § 3.159(d). REASONS FOR REMAND 1. Entitlement to service connection for CFS is remanded. 2. Entitlement to service connection for a lower gastrointestinal disorder, claimed as internal bleeding, is remanded. 3. Entitlement to service connection for sleep apnea is remanded. 4. Entitlement to service connection for insomnia is remanded. The Veteran claims that these conditions were caused by his exposure to toxins while serving in the Gulf War in 1991. In this regard, the RO found in a September 2009 decision that the Veteran was exposed to Scud missile attacks and chemical attack warnings during his service in Saudi Arabia in 1991. In addition, during the June 2018 Board hearing, the Veteran competently reported being exposed to smoke during service in Saudi Arabia, including from burning batteries. Given this record, the Board finds that VA has a duty to obtain a medical opinion as to the relationship, if any, between the Veteran’s military service, to include his presumptive exposure to toxins while serving in Southwest Asia during the Persian Gulf War. See Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014) (holding that the Board must consider the potential application of 38 U.S.C. § 1117; 38 C.F.R. § 3.317 in all claims for service connection made by Veteran’s who served in the Persian Gulf during the Persian Gulf War). In addition, on remand, the RO should obtain an opinion as to whether the Veteran has insomnia separate and distinct from his service-connected psychiatric disorders and sleep apnea. Thus, the Board finds that remand is also required for procurement of an examination and opinion as to the presence and etiology of a distinct insomnia diagnosis. Furthermore, while VA treatment records since January 2009 have been associated with the record, it is unclear if there are VA treatment records for the Veteran prior to such time. Therefore, on remand, all VA treatment records should be associated with the file. These matters are REMANDED for the following actions: 1. Obtain complete VA treatment records. 2. After completing the records development indicated above, provide the Veteran with an examination to obtain medical opinions as to the diagnosis and origins of his CFS, lower gastrointestinal disorder, sleep apnea, and insomnia to include any qualifying chronic disability under 38 C.F.R. § 3.317. The claims folder should be made available to and reviewed by the examiner. The examiner should respond to the following questions: (a.) Provide all current diagnoses (since January 2009). (b.) Specifically state whether the Veteran has an insomnia disorder separate and distinct from his service-connected psychiatric disorder and sleep apnea. (c.) For each diagnosed disorder, is it at least as likely as not that it had its onset directly during the Veteran’s service or is otherwise related to any event or injury during his service including his documented service in the Southwest Asia theater of operations? (d.) Is it at least as likely as not that the disorder manifested itself in the first post-service year? (e.) If a nexus to his service cannot be established for any abnormality, please provide an opinion as to whether the disability pattern is consistent with: (i) an undiagnosed illness, (ii) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, (iii) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis. (f.) If, after reviewing the claims file, you determine that the Veteran’s disability pattern is consistent with either (iii) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion as to whether it is at least as likely as (i.e., at least equally probable) that the disability pattern or diagnosed disease is related to environmental exposures experienced by the Veteran during his service in the Southwest Asia theater of operations, including exposure to Scud missile attacks and smoke from burning batteries. In answering all questions, please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. In providing the requested opinions, the examiner should comment on the Veteran’s competent lay reports. If the examiner feels that any of the requested opinions 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). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Jimerfield, Associate Counsel