Citation Nr: 18150119 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-52 069 DATE: November 14, 2018 ORDER An earlier effective date of March 20, 2015, but not earlier, for the establishment of service connection for posttraumatic stress disorder is granted, subject to the laws and regulations governing the award of monetary benefits. Service connection for multiple myeloma is denied. A total disability rating based on individual unemployability is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. On March 20, 2015, the Veteran filed a service connection claim for posttraumatic stress disorder (PTSD). 2. The weight of the evidence is against a finding that the Veteran’s multiple myeloma is due to or the result of her active service, to include as due to an undiagnosed illness. 3. The evidence of record makes it at least as likely as not that the Veteran’s service connected disabilities are of sufficient severity to preclude her from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an effective date of March 20, 2015, but not earlier, for the grant of service connection for PTSD have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for service connection for multiple myeloma have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.317. 3. The criteria for a total disability rating based on individual unemployability (TDIU) are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from January 1982 to January 1985 and December 1990 to April 1991, to include service in Southwest Asia. Effective Date The Veteran asserts that she is entitled to an earlier effective date for the grant of service connection for PTSD. Specifically, she has asserted that she should have an effective date consistent with the date VA received her service connection claim. For the reasons discussed below, the Board finds that the Veteran is entitled to an effective date of March 20, 2015, for the grant of service connection for PTSD. On March 20, 2015, the Veteran filed her service-connection claim for PTSD, which was denied by a December 2015 rating decision. In an April 2018 rating decision, the Veteran was granted service connection for PTSD and was assigned an effective date of June 30, 2017. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. In cases involving direct service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). The Veteran filed service connection claim for PTSD that was received on March 20, 2015. As such, the date of receipt for his claim of service connection for PTSD was March 20, 2015. Accordingly, the Veteran’s claim for earlier effective date for the grant of service connection for PTSD is granted. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may be awarded on a presumptive basis to a Persian Gulf veteran who (1) exhibits objective indications; (2) of a chronic disability such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and (4) such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. Gutierrez v. Principi, 19 Vet. App. 1, 7 (2004); 38 U.S.C. § 1117; 38 C.F.R. § 3.317; 76 Fed. Reg. 81834 -81836 (Dec. 29, 2011). Objective indications of a chronic disability include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA’s Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability referred to in this section shall be considered service-connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(3-5). Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headaches, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317(b). In addition to certain chronic disabilities from undiagnosed illness, service connection may also be given for medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs and symptoms, as well as for any diagnosed illness that the VA Secretary determines by regulation warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i)(B). In March 2015, the Veteran filed a service connection claim for multiple myeloma, which was denied by a December 2015 rating decision. She asserts that her multiple myeloma is due to her active service, to include an undiagnosed illness during her service in Southwest Asia. The Veteran’s military service records show she had service in Southwest Asia. As such, the Board finds that the Veteran’s active service qualifies as being stationed in Southwest Asia for the purposes of 38 C.F.R. § 3.317. However, multiple myeloma is a known, diagnosed, medical condition. As such, it is not considered to be an undiagnosed illness or an indicator of an unexplained multi-symptom illness, and it may not be presumed to be related to the Veteran’s service under provisions applicable to undiagnosed illness or unexplained chronic multi-symptom illness. 38 C.F.R. § 3.317. In cases in which a veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C. §§ 1110 and 1131 is warranted. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran’s STRs show she had normal physical examinations throughout both periods of active service and her reserve service. She had normal examinations in October 1977, November 1984, November 1985, August 1988, April 1991, and April 1996 with no reports of multiple myeloma. After her separation from service, the medical records show that she was diagnosed with multiple myeloma in February 2015, more than a decade after her last period of active service. In November 2015, the Veteran was afforded a VA examination. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner opined that the Veteran’s multiple myeloma was not incurred in or caused by her active service. The examiner reported that cervical dysplasia or metaplasia was not multiple myeloma. The examiner noted that the Veteran’s last cervical cytology in November 1983 was negative for any type of dysplasia/metaplasia, and therefore resolved. The examiner reported that cervical dysplasia or metaplasia that had resolved was not related to a person developing multiple myeloma. In August 2016, a VA examiner reviewed the Veteran’s claims file. The examiner opined that the Veteran’s multiple myeloma was less likely than not incurred in or caused by her service in Southwest Asia. The examiner reported that the medical record did not document a chronic disability resulting from an undiagnosed illness during her service in Southwest Asia. After weighing all the evidence, the Board finds great probative value in the November 2015 and August 2016 VA examiners’ opinions. These negative opinions are sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran’s position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). Consideration has been given to the Veteran’s personal assertion that her multiple myeloma was due to her active service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the etiology of multiple myeloma, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Multiple myeloma is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that physical examinations, and complex medical testing is needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That is, although the Board readily acknowledges that Veteran is competent to report perceived symptoms of multiple myeloma, she has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that she has received any special training or acquired any medical expertise in evaluating disorders such as multiple myeloma. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the Veteran’s assertions do not constitute competent medical evidence. Accordingly, as the criteria for service connection for multiple myeloma have not been met, the Veteran’s claim is denied. TDIU A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 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 disability or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Moreover, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. In this case, the Veteran meets the schedular criteria for a TDIU as her PTSD is rated at 70 percent. In March 2015, the Veteran asserted she was entitled to a TDIU as she was unable to work. On his claim form (VA Form 21-8940), she indicated that her PTSD prevented her from working. In April 2018, a VA examiner reviewed the Veteran’s claims file. The examiner indicated that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas. The examiner indicated that the Veteran’s PTSD symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once per week, chronic sleep impairment, impairment of short and long-term memory, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including a work or a work like setting. The evidence of record establishes that the Veteran’s service connected PTSD results a number of symptoms that would preclude substantial gainful employment, such as panic attacks more than once per week, impairment of short and long-term memory, disturbance of motivation and mood, suicidal ideation, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including a work or a work like setting. Accordingly, the Board finds that the Veteran is not able to obtain and/or sustain substantially gainful employment on account of her service connected disabilities. As such, the Board concludes that the evidence for and against TDIU is at least in relative equipoise, and given this conclusion, the Board will resolve any reasonable doubt in the Veteran’s behalf, and hold that TDIU is warranted. As such, the Veteran’s claim is granted MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berryman, Counsel