Citation Nr: 18138985 Decision Date: 09/26/18 Archive Date: 09/26/18 DOCKET NO. 13-29 782 DATE: September 26, 2018 ORDER The petition to reopen a claim of entitlement to service connection for joint pain, to include as due to an undiagnosed illness, is granted. The petition to reopen a claim of entitlement to service connection for a low back disability is granted. The petition to reopen a claim of entitlement to service connection for night sweats, to include as due to an undiagnosed illness, is granted. The petition to reopen a claim of entitlement to service connection for a hysterectomy is granted. The petition to reopen a claim of entitlement to service connection for hair loss, to include as due to an undiagnosed illness, is granted. The petition to reopen a claim of entitlement to service connection for weight changes, loss and gain, to include as due to an undiagnosed illness is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. A rating in excess of 50 percent for migraine headaches with aura and mild cerebral dysfunction is denied. A rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with major depressive disorder is denied. REMANDED Entitlement to service connection for joint pain, to include as due to an undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117, is remanded. Entitlement to service connection for night sweats, to include as due to an undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117, is remanded. Entitlement to service connection for hair loss, to include as due to an undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117, is remanded. Entitlement to service connection for weight changes, loss and gain, to include as due to an undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117 is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left tennis elbow disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a disability manifested by angina is remanded. Entitlement to service connection for a hiatal hernia is remanded. Entitlement to service connection for a hysterectomy is remanded. Entitlement to service connection for heat stroke, claimed as rhabdomyolysis, is remanded. Entitlement to a rating in excess of 10 percent for chondromalacia patella, left knee is remanded. Entitlement to a rating in excess of 10 percent for chondromalacia patella, right knee, is remanded. Entitlement to a compensable rating for scar, status post removal of benign fibrous hystiocytoma, occipital scalp, is remanded. Entitlement to a compensable rating for scar, status post removal of dermatofibroma, left breast, is remanded. Entitlement to a compensable rating for facial acne is remanded. Entitlement to a rating in excess of 10 percent for right carpal tunnel syndrome is remanded. Entitlement to a rating in excess of 10 percent for left carpal tunnel syndrome is remanded. FINDINGS OF FACT 1. An August 2012 rating decision last denied service connection for joint pain, night sweats, hair loss, weight changes, low back, and a hysterectomy; evidence pertaining to the Veteran’s joint pain, night sweats, hair loss, weight changes, low back and hysterectomy disabilities since the last final rating decision was not previously submitted, relates to unestablished facts necessary to substantiate the claims, and is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claims. 2. The Veteran’s service-connected disabilities preclude her from securing or following a substantially gainful occupation. 3. Under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100 (“Migraine”), the maximum schedular rating for her migraine headaches with aura and mild cerebral dysfunction is 50 percent. 4. For entire appeal period, the Board finds that the Veteran’s PTSD with major depressive disorder has not resulted in total occupational and social impairment. CONCLUSIONS OF LAW 1. The August 2012 rating decision which denied the Veteran’s claims for joint pain, night sweats, hair loss, weight changes, low back, and a hysterectomy is final. 38 U.S.C. § 7105 (2012), 38 C.F.R. §§ 3.160(d), 20.1103 (2018). 2. The evidence received since the last final August 2012 rating decision is new and material, and the claims for service connection for joint pain, night sweats, hair loss, weight changes, low back, and a hysterectomy are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2018). 3. The criteria for a total disability rating based on individual unemployability have been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). 4. The criteria for an evaluation of in excess of 50 percent for migraine headaches with aura and mild cerebral dysfunction have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321(b), 4.7, 4.124(a), Diagnostic Code (DC) 8100 (2018). 5. The criteria for a rating in excess of 70 percent for PTSD with major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.130, DC 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1988 to June 1996, December 2003 to February 2004, July 2007 to November 2007, and March 2008 to September 2008. Although the Veteran requested a Board hearing in her substantive appeal associated with her increased rating claims for her service-connected right and left knees, she withdrew this request in a March 2017 statement submitted by her attorney. New and Material Evidence At the time of the last final denial of the Veteran’s claims for service connection for joint pain, night sweats, hair loss, weight changes, low back, and hysterectomy disabilities, in August 2012, evidence of record included service treatment records, VA treatment records, private treatment records and VA examinations. Evidence associated with the claims file since the previous August 2012 denial includes VA treatment records, Social Security Administration (SSA) records, and statements reflecting continued issues with her claimed disabilities. Based on this new evidence, the Board finds that the new and material criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claims for service connection for joint pain, night sweats, hair loss, weight changes, low back, and hysterectomy disabilities are reopened. TDIU Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). TDIU is granted where a Veteran’s service-connected disabilities are rated less than total, but prevent her from obtaining or maintaining all gainful employment for which her education and occupational experience would otherwise qualify her. 38 C.F.R. § 4.16 (2018). The Veteran has a combined disability rating of 90 percent, for the entire period on appeal, and meets the threshold schedular criteria for consideration of a TDIU. 38 C.F.R. § 4.16(a). Evidence of record reflects that the Veteran last engaged in substantially gainful employment in August 2015. See VA Form 21-8940. The evidence reflects that the Veteran suffers from service-connected PTSD with major depressive disorder, migraine headaches with aura and mild cerebral dysfunction, chondromalacia patella of the left knee, chondromalacia patella of the right knee, right carpal tunnel syndrome, left carpal tunnel syndrome, a scar of the occipital scalp (status post removal of benign fibrous hystiocytoma), a scar of the left breast (status post removal of dermatofibroma), and facial acne. In light of the Veteran’s occupational background and functional limitations, and giving her the benefit of the doubt, the Board finds that the Veteran’s service-connected disabilities are sufficient to render her unable to obtain and maintain any form of substantially gainful employment in accordance with her occupational background and education level. Accordingly, based on all of the foregoing, the Board finds that entitlement to a TDIU is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 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 (2018). Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2018). The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2018). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 50 percent for migraine headaches with aura and mild cerebral dysfunction. The Veteran seeks a higher rating for her service-connected migraine headaches with aura and mild cerebral dysfunction, which is currently assigned a 50 percent disability evaluation under DC 8100. The maximum schedular rating for this particular disability is 50 percent. 38 C.F.R. § 4.124a, DC 8100. The remaining question of whether an extraschedular rating is warranted is a component of an increased rating claim. Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). While the Board cannot assign an extraschedular rating in the first instance, it can specifically adjudicate whether to refer a case to the VA Director of Compensation and Pension Services for an extraschedular evaluation when the issue is either raised by the claimant or is reasonably raised by the record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). Here, however, the Veteran has not asserted, and the evidence of record has not suggested, that the service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. In fact, in a recently submitted August 2017 Headache Disability Benefits Questionnaire (DBQ), the physician noted that the Veteran’s headache disability did not impact her ability to work and did not result in severe economic inadaptability. The Board finds that referral for extraschedular adjudication pursuant to 38 C.F.R. § 3.321(b)(1) of the Veteran’s claim for an increased rating for her migraine headaches with aura and mild cerebral dysfunction is not warranted. As there is no legal basis upon which to award a higher schedular evaluation for her migraine headaches with aura and mild cerebral dysfunction under DC 8100, the Veteran’s appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 2. Entitlement to a rating in excess of 70 percent for PTSD with major depressive disorder. The Veteran’s PTSD with major depressive disorder is evaluated as 70 percent disabling under DC 9411, throughout the period on appeal, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. The Veteran maintains that her 70 percent rating should be increased to 100 percent disabling. Under Diagnostic Code 9411, a 70 percent rating is warranted when there is 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 that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting 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 inability to establish and maintain effective relationships. The maximum rating of 100 percent requires 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 inability 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 specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Thus, the analysis should not be limited solely to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the specific rating criteria in determining the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The classification outlined in the portion of VA’s Schedule for Rating Disabilities that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). 38 C.F.R. § 4.130 (2018). A review of the evidence during the period on appeal reflects that a rating in excess of 70 percent is not warranted for any period of the appeal. During the pendency of the claim the Veteran’s symptomatology does not manifest as total occupational and social impairment, due to such symptoms as (for example only): 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 (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Although the Board has determined that the Veteran has been unable to maintain substantial and gainful employment, her social functioning does not rise to the severity necessary for a total rating. For example, at the Veteran’s October 2015 VA examination the VA examiner noted that the Veteran’s acquired psychiatric disability results in occupational and social impairment with reduced reliability and productivity. The VA examiner noted that the Veteran had four suicide attempts in the past, with the most recent attempt being four months prior. The VA examiner indicated that the Veteran had symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, a chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran additionally submitted an August 2017 PTSD Disability Benefits Questionnaire (DBQ). The examiner stated that the Veteran’s psychiatric disability results in occupational and social impairment with occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner specifically did not characterize the Veteran’s acquired psychiatric disability as resulting in total occupational and social impairment. Symptoms associated with her diagnosis include: depressed mood, anxiety, chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events), difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. Persistent delusions or hallucinations were not reported, although the examiner noted that the Veteran reported hearing voices and seeing shadowy figures. The Veteran stated that she knows these are not real. The Board has additionally reviewed hundreds of pages of medical records. While some hallucinations have been self-reported by the Veteran during the period on appeal, the Board finds that the evidence as a whole is reflective of moderate symptomatology (providing the basis for the 70 percent rating). The Board notes that the Veteran’s reported social functioning has been consistent throughout the period on appeal, with some contact with close relatives. Thus, while limited she is still able to continue minimal relationships with some relatives. Moreover, although the Veteran is not employed, a rating of 100 percent is only warranted for both total social and total occupational impairment. Such has not been shown in this case. Therefore, the Board concludes the criteria for a 100 percent rating for an acquired psychiatric disability have not been met. See 38 C.F.R. § 4.130, DC 9411. The Veteran’s own statements, voluminous treatment records, and examinations, reflecting how her acquired psychiatric disability impacts her, overall, provide strong evidence against this claim, clearly indicating the problems cited within the 100 percent rating have not been met in this case. In summary, while the Veteran is significantly socially and occupationally limited by her service-connected PTSD with major depressive disorder, providing the basis, in part, for TDIU (granted above), the evidence fails to show that this impairment is “total” so as to warrant a 100 percent schedular rating. Based on the foregoing discussion, the Board finds that Veteran’s PTSD with major depressive disorder symptoms more nearly approximates the rating criteria for a 70 percent rating during the period on appeal. In reaching its decision, the Board has considered the benefit of the doubt rule. However, the preponderance of the evidence reflects the Veteran’s symptomatology more closely approximates that contemplated by a 70 percent evaluation. Therefore, the benefit of the doubt rule does not apply, and the claim for increase is denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND Further evidentiary development is required prior to reviewing the issues remaining on appeal. 1. Entitlement to service connection for joint pain, night sweats, hair loss and weight changes disabilities is remanded. The Veteran asserts that she suffers from joint pain, night sweats, hair loss, and weight changes disabilities that began in service. The Board finds that VA examinations and opinions are necessary to determine whether the Veteran has any joint pain, night sweats, hair loss, and weight changes disabilities related to service, to include as due to an undiagnosed illness or other qualifying chronic disability based on her Gulf War service. 2. Entitlement to service connection for left shoulder, right shoulder, left tennis elbow, low back, angina, hiatal hernia, hysterectomy, and heat stroke disabilities are remanded. Service treatment records reflect treatment for the Veteran’s left shoulder (February 1994), right shoulder (April 1995), left tennis elbow (April 1995), and low back (July 1991, April 1996). The Veteran continues to assert left shoulder, right shoulder, left tennis elbow, and low back disabilities. She additionally asserts that she suffers from angina, a hiatal hernia, hysterectomy, and heat stroke disabilities related to her time in service. The Board finds that the Veteran should be afforded VA examinations to determine the nature and etiology of any left shoulder, right shoulder, left tennis elbow, low back, angina, hiatal hernia, hysterectomy, and heat stroke disabilities found. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to increased ratings for (a) chondromalacia patella, left knee, (b) chondromalacia patella, right knee, (c) scar, status post removal of benign fibrous hystiocytoma, occipital scalp, (d) scar, status post removal of dermatofibroma, left breast, (e) facial acne, (f) right carpal tunnel syndrome, and (g) left carpal tunnel syndrome are remanded. The Veteran was last afforded VA examinations of her (a) chondromalacia patella, left knee, (b) chondromalacia patella, right knee, (c) scar, status post removal of benign fibrous hystiocytoma, occipital scalp, (d) scar, status post removal of dermatofibroma, left breast, (e) facial acne, (f) right carpal tunnel syndrome, and (g) left carpal tunnel syndrome in November 2015. The evidence of record indicates that her disabilities may have worsened since her last VA examinations. The Board finds that she should be afforded new examinations in order to determine the current nature and severity of these service-connected disabilities. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following actions: 1. Arrange for the Veteran to undergo VA examinations to determine the nature and etiology of any joint pain disability, night sweats disability, hair loss disability, and weight changes disability found to be present, and their relationship, if any, to her military service. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with such examinations, and the examiners must indicate that such review occurred. The examiner must first provide an opinion as to whether there is objective evidence that the Veteran suffers a (a) chronic joint pain disability, (b) chronic night sweats disability, (c) chronic hair loss disability, and/or (d) chronic weight changes disability. If a joint pain disability is identified, the examiner must state whether it is as least likely as not (a 50 percent probability or greater) the disability had its onset in service or is otherwise related to service (including to service in Southwest Asia). If a night sweats disability is identified, the examiner must state whether it is as least likely as not (a 50 percent probability or greater) the disability had its onset in service or is otherwise related to service (including to service in Southwest Asia). If a hair loss disability is identified, the examiner must state whether it is as least likely as not (a 50 percent probability or greater) the disability had its onset in service or is otherwise related to service (including to service in Southwest Asia). If a weight changes disability is identified, the examiner must state whether it is as least likely as not (a 50 percent probability or greater) the disability had its onset in service or is otherwise related to service (including to service in Southwest Asia). If the Veteran’s joint pain, night sweats, hair loss, or weight change symptoms cannot be ascribed to any known clinical diagnosis, the examiner must specify whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that have either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. All opinions offered must be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 2. Arrange for the Veteran to undergo a VA examination to determine the nature and etiology of her left shoulder, right shoulder, left tennis elbow, low back, angina, hiatal hernia, hysterectomy, and heat stroke disabilities. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with the examinations, and the examiner must indicate that such review occurred. The examiner should provide well-reasoned opinions on: a. Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed left shoulder disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to her period of active service. b. Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed right shoulder disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to her period of active service. c. Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed left tennis elbow disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to her period of active service. d. Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed low back disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to her period of active service. e. Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed angina disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to her period of active service. f. Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed hiatal hernia disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to her period of active service. g. Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed hysterectomy disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to her period of active service. h. Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed heat stroke disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to her period of active service. Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any requested opinions without resort to speculation, he or she should so indicate and explain why such a finding is made. 3. Schedule the Veteran for VA examinations to determine the nature and severity of her service-connected (a) chondromalacia patella, left knee, (b) chondromalacia patella, right knee, (c) scar, status post removal of benign fibrous hystiocytoma, occipital scalp, (d) scar, status post removal of dermatofibroma, left breast, (e) facial acne, (f) right carpal tunnel syndrome, and (g) left carpal tunnel syndrome. The Veteran’s claims file should be provided to the examiner(s). Each examiner must obtain a detailed clinical history from the Veteran and must note all pertinent pathology found on examination in the report of the evaluation. Any testing deemed necessary should be performed. The examiner must provide a full description of each disability and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.M. Clark, Counsel