Citation Nr: 18155632
Decision Date: 12/04/18	Archive Date: 12/04/18

DOCKET NO. 16-55 425
DATE:	December 4, 2018
ORDER
Entitlement to service connection for traumatic brain injury (TBI) residuals is granted.
Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, and posttraumatic stress disorder (PTSD), is granted.
Entitlement to a 30 percent rating for irritable bowel syndrome (IBS) is granted.
Entitlement to a total disability rating based upon unemployability (TDIU) is granted.
FINDINGS OF FACT
1. The Veteran sustained an in-service TBI with continuing residuals including memory, balance, and behavioral health issues.
2. The Veteran has chronic PTSD attributed to military combat.  
3. For the entire appeal period, the Veteran has experienced diarrhea and constipation with more or less constant abdominal distress. 
4. The Veteran is unable to obtain or maintain gainful employment due to his service-connected disabilities.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for a TBI have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
2. The criteria for entitlement to service connection for an acquired psychiatric disorder have been met.  38 U.S.C. §§ 1131, 1154(b) (2012); 38 C.F.R. §§ 3.303, 3.304 (2017).
3. The criteria for entitlement to an increased rating for IBS have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7319 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had qualifying service from March 1982 to June 1995, May 1997 to September 1997, and July 1998 to September 2012 (including combat).
VA treatment records reflect multiple mental health diagnoses, including anxiety, depression, and PTSD.  These collective diagnoses are construed as a single claim for entitlement to service connection for a psychiatric disability.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).
Service Connection
1. TBI
Service connection generally requires 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).  The Veteran is diagnosed with TBI residuals including memory, balance, and behavioral health issues.  See September 2013 VA examination (experienced mild TBI in service); September 2015 Olin E. Teague Vet Center records (brief loss of consciousness following 2007 IED blast constitutes TBI; visited TBI clinic at Fort Bliss several times in 2011 for memory and balance issues; clinical symptom presentation is most consistent with behavioral health conditions); August 2016 Olin E. Teague Vet Center record (positive screen for TBI); September 2017 Southern Arizona HCS record (history of TBI and loss of consciousness in 2007); November 2016 VA Form 9 (continues having balance issues).  Although the September 2013 VA examiner determined that the Veteran had no TBI residuals, that determination is inconsistent with the aforementioned VA treatment records and lay statements.  Based on the indisputable medical nexus between the TBI residuals and the in-service blast, the Board grants the claim.   
2. Acquired Psychiatric Disorder
Service connection for PTSD generally requires: (1) medical evidence diagnosing the condition in accordance with VA regulations; (2) credible supporting evidence that a claimed in-service stressor occurred (however, credible supporting evidence is not required if the claimed stressor is related to the Veteran’s participation in combat); and (3) a medical nexus between current symptoms and the in-service stressor.  38 C.F.R. § 3.304(f).  The Veteran is diagnosed with chronic PTSD following military combat with manifestations including, but not limited to, trauma-related: nightmares, insomnia, anxiety, depression, mood disturbances, and avoidance.  See September 2017 Southern Arizona HCS record (DSM-5 diagnosis of PTSD; positive for depression, anxiety, anger, irritability, nightmares, mood issues, avoidance, re-experiencing, hypervigilance); November 2017 Southern Arizona HCS record (chronic PTSD following military combat); December 2017 Southern Arizona HCS record (DSM-5 diagnosis of PTSD, nightmares, insomnia).  The Veteran generally contends that his PTSD resulted from various in-service experiences related to fear of hostile military or terrorist activity (details omitted to avoid retraumatization) which are consistent with the circumstances, conditions, and hardships of his service.  See July 2014 Notice of Disagreement (NOD); November 2016 VA Form 9.  Although the October 2013 VA examiner determined that the Veteran did not meet the full diagnostic criteria for PTSD (based on a lack of persistent avoidance of trauma-associated stimuli), that determination is inconsistent with in-service and post-separation treatment records.  See September 2010 post-deployment health re-assessment (avoiding situations involving upsetting experiences); September 2017 Southern Arizona HCS record (avoidance).  Based on the indisputable medical nexus between the disability and the in-service trauma, the Board grants the claim. 
Increased Rating  
3. IBS
In determining the severity of a disability, the Board applies the criteria set forth in the Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  If the disability more closely approximates the criteria for the higher of two ratings, the higher rating is assigned.  38 C.F.R. § 4.7.  The Veteran has been assigned a 10 percent rating under DC 7319 since the effective date of service connection on October 1, 2012.  38 C.F.R. § 4.114, DC 7319; November 2017 Codesheet.  Under DC 7319, a 10 percent rating is warranted for: moderate; frequent episodes of bowel disturbance with abdominal distress.  A 30 percent rating is warranted for: severe; diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress.  For the entire appeal period, the Veteran has experienced diarrhea and constipation with more or less constant abdominal distress.  See April 2013 Sierra Vista CBOC record (diarrhea); July 2014 NOD and November 2016 VA Form 9 (diarrhea and constant stomach distress); September 2017 Southern Arizona HCS record (diarrhea and constipation).  The Veteran is competent to report his pain level (because it is lay-observable) and he has consistently reported constant stomach distress.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994).  As the Veteran’s symptoms are consistent with a 30 percent rating, the Board grants the claim.
4. TDIU
The Veteran generally contends that he is unable to obtain and/or maintain a substantially gainful occupation due to service-connected disabilities.  See November 2016 VA Form 9 (TBI residuals and PTSD); September 2017 VA Form 21-8940 (migraines, sleep apnea with exercise-induced asthma, and PTSD-related anxiety).  Even before the grants contained herein are assigned disability ratings, the Veteran meets the schedular criteria for a TDIU.  38 C.F.R. § 4.16.  In addition, given the Veteran’s work history and high school education, the Board finds that his disabilities prevent him from obtaining substantially gainful employment.  The issue is granted.

 
R. FEINBERG
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	H. Daus, Associate Counsel