Citation Nr: 19106922 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 17-06 623 DATE: January 29, 2019 ORDER Entitlement to service connection for disability manifested by fatigue is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to an initial rating of 30 percent but no higher for gastroesophageal reflux disorder (GERD) is granted. REMANDED Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. Entitlement to a rating in excess of 30 percent for generalized anxiety disorder (GAD) is remanded. FINDINGS OF FACT 1. The Veteran’s fatigue is shown to be a symptom of his service-connected psychiatric disability and not a separate, independent disability. 2. The evidence does not establish that the Veteran has PTSD. 3. The Veteran’s GERD has been manifested by persistently recurrent epigastric distress with dysphagia, pyrosis and regurgitation accompanied by substernal pain and productive of considerable impairment of health; however pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia or other symptom combinations productive of severe impairment of health have not been shown. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for disability manifested by fatigue have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.317. 2. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. 3. The criteria for entitlement to an initial 30 percent, but no higher, rating for GERD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1988 to November 1994, including service in Southwest Asia. This matter is on appeal before the Board of Veterans Appeals (Board) from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a claimed disorder, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Under 38 C.F.R. § 3.317, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest 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 not later than December 31, 2021. See 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. 1117(d) warrants a presumption of service-connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 38 C.F.R. § 3.117, unlike those for ‘direct service connection,’ there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5). A medically unexplained, chronic, multi-symptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness. A “medically unexplained chronic multi-symptom illness” means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.” Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). ‘Objective indications of 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. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 3.317, 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. 38 C.F.R. § 3.317(a)(4). 1. Entitlement to service connection for disability manifested by fatigue. In a January 2011 VA report of general information, it was noted that the Veteran was claiming service connection for fatigue, noting that he felt that the condition was related to his Gulf War military service. In an April 2011 statement, the Veteran indicated that he was tired all the time, including when he got up in the morning for work. In turn, this affected his ability to concentrate and get his work done. He indicated that at night he sometimes would eat dinner and then go straight to bed. At a January 2013 VA examination, the examiner noted that the Veteran had duty in Saudi Arabia, Kuwait and Iraq from January 1991 to May 1991. The Veteran reported that he had had symptoms of fatigue since early 1992, with a sudden onset occurring while he was stationed in Germany. He noted that he was getting 8 hours of sleep per night and took a daily 15-minute nap but still felt tired during the day. Following the examination, the examiner determined that the Veteran did not meet the diagnostic criteria for chronic fatigue syndrome. The examiner noted that the Veteran had been diagnosed with GAD, including problems with sleep and that there was no evidence for any organic disorder causing excessive sleepiness. Therefore, the examiner opined that the Veteran’s sleepiness was at least as likely as not due to the Veteran’s GAD, which was a diagnosable condition with a partially explained etiology. In his December 2014 notice of disagreement, the Veteran indicated that during guard duty in Southwest Asia he was in close proximity to oil wells that were on fire and had to breathe in petroleum and whatever other chemicals were in the air at the time. He also indicated that he would get completely covered in petroleum and whatever other chemicals were burning. He noted that he had spoken to several of his former unit members who stood guard near him and also became sick. He indicated that he was often so tired at work that he could barely function and that he had even nodded off at times. He reported that he could sleep the entire weekend if his partner did not get him up and keep him busy. Even then he could not resist napping several hours. The above summarized evidence does not show that the Veteran has chronic fatigue syndrome or an undiagnosed or medically unexplained chronic multi-symptom illness manifested by fatigue. Rather, the Veteran’s symptom of fatigue/sleepiness has been specifically found to be associated with his service-connected GAD, as indicated by the January 2013 VA examiner. There is no medical opinion of record to the contrary (i.e. a medical opinion tending to indicate that the Veteran has a disability separate than GAD, which is manifested by fatigue). Consequently, the medical evidence of record weighs against a finding that the Veteran has a current disability manifested by fatigue other than his already service-connected GAD. Additionally, although the Veteran is competent to report experiencing fatigue/tiredness, he is a layperson with no demonstrated specialized knowledge concerning the etiology of fatigue. Accordingly, his assertion that he has a disability separate from his psychiatric disability, which is manifested by fatigue, cannot be afforded more than minimal probative value. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, the weight of the evidence is against a finding that the Veteran has a disability manifested by fatigue other than his already service-connected psychiatric disability. Consequently, neither direct service connection nor service connection based on the presence of an undiagnosed illness or chronic multi-symptom illness can be granted. 38 C.F.R. § 3.303, 3.317. Accordingly, the appeal for service connection for disability manifested by fatigue must be denied. 2. Entitlement to service connection for PTSD. To establish service connection for PTSD, the record must contain: (1) a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); (2) a link between current symptoms and an in-service stressor, as established by medical evidence; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f), 4.125(a). In this case, the Veteran reported an in-service stressor of experiencing a friendly fire incident where two of his fellow service members were killed. See April 2011 stressor statement. Also, in a January 2014 statement, the Veteran’s platoon sergeant indicated that both he and the Veteran witnessed the two fellow service members being killed in the friendly fire incident. However, at a January 2013 VA psychological evaluation, the examining psychologist diagnosed the Veteran with GAD and determined that he did not meet the full criteria for a PTSD diagnosis. The examiner then confirmed this finding in an August 2014 addendum opinion. Similarly, although the Veteran was diagnosed with PTSD early in the course of his VA mental health treatment (See e.g. December 2013 VA mental health progress note), his treating psychiatrist subsequently determined that after knowing the Veteran for some time, he had not exhibited PTSD symptoms and had exhibited somewhat mild obsessive symptoms, which fit better into his existing GAD diagnosis rather than into a separate anxiety disorder diagnosis (such as PTSD). Thus, he corrected the Veteran’s psychiatric diagnosis to GAD alone. See October 18, 2016 VA psychiatric progress note. Given the specific determinations of the VA examiner and the treating psychiatrist that the Veteran does not have PTSD, the weight of the medical evidence is against a finding that the Veteran suffers from this disorder. Also, as a layperson without any demonstrated expertise pertaining to diagnosis of psychiatric disability, the Veteran’s assertion that he has PTSD cannot be afforded significant probative value. See Jandreau, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Consequently, the weight of the overall evidence is against a finding that the Veteran has PTSD. Accordingly, service connection for this disorder is denied. 38 C.F.R. § 3.303, 3.304. However, the Veteran is advised that GAD and PTSD are both considered anxiety disorders and disability ratings for these disorders are determined by applying the same criteria to assess the severity of the Veteran’s symptoms. Consequently, even if he were service connected for PTSD in addition to GAD, he would still be assigned a rating for service-connected psychiatric disability in the same manner. In short, the severity of his underlying psychiatric symptoms is taken into account in his VA disability rating whether he is diagnosed with both GAD and PTSD or with GAD alone. Increased Rating Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations apply, 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. 3. Entitlement to an initial rating in excess of 10 percent for GERD. Service connection for GERD was granted by an August 2014 rating decision. A 10 percent rating was assigned effective January 11, 2011. The Veteran’s GERD is rated under Diagnostic Code 7399-7346. Under Code 7346, a 10 percent rating is warranted for hiatal hernia with two or more of the symptoms listed in the criteria for a 30 percent rating, but of less severity. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis and regurgitation accompanied by substernal or arm or shoulder pain and productive of considerable impairment of health. Symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia or other symptom combinations productive of severe impairment of health equate to the highest rating of 60 percent. 38 C.F.R. § 4.114, Diagnostic Code 7346. In his December 2014 notice of disagreement, the Veteran indicated that he had persistent and recurring heartburn. He noted that his symptoms never subsided and even with taking two proton pump inhibitor pills per day, most days he still had to supplement with over the counter antacid tablets because his heartburn was so severe. He reported that sometimes it got so bad that he felt nauseous. However, he tried not to vomit because his throat would burn for hours afterward. He indicated that there was never a day where he did not have severe heartburn. At a November 2016 VA examination, the examiner diagnosed the Veteran with GERD. The examiner noted that the Veteran’s GERD was manifested by symptoms of dysphagia, pyrosis, reflux, regurgitation, substernal pain and sleep disturbance. The examiner noted that the Veteran did not have an esophageal stricture, spasm of the esophagus or acquired diverticulum of the esophagus and did not have any other pertinent physical findings, complications, signs or symptoms related to the GERD. On his Form 9 received in February 2017, the Veteran indicated that he did not believe that his GERD symptoms were adequately considered. He noted that his symptoms were so severe that he had restricted himself to foods that had no spice, salt, or taste. He reported that if he ate anything other than the few types of meals that had proven to produce only minor distress, he became violently ill. Regurgitation was an ever-present danger, which caused burning not only in his stomach but also in his esophagus and mouth. He noted that he had even developed blisters in his mouth from the acid regurgitation. He reported that he was currently taking three proton pump inhibitor pills per day but still having heartburn every day. He indicated that no one he had ever met had had heartburn to the degree that he experienced it. The above summarized evidence shows that the Veteran has GERD with persistently recurrent epigastric distress with dysphagia, pyrosis and regurgitation accompanied by substernal pain. From his reporting, these symptoms are productive of considerable impairment of health. Accordingly, a higher, initial 30 percent rating is warranted for the Veteran’s GERD. The Board is not able to assign a higher, 60 percent rating for the GERD. In this regard, the Veteran is not shown to have material weight loss due to GERD, nor is he shown to have hematemesis or melena with moderate anemia due to GERD. Thus, he is not shown to have a combination of GERD symptoms productive of severe impairment of health within the meaning of Diagnostic Code 7346. The Board empathizes with the consistently large amount of distress the Veteran experiences due to the GERD. However, in referring to severe impairment of health, Code 7346 contemplates acutely severe symptoms such as hematemesis (i.e. vomiting of blood), melena (partially digested stool in blood) with moderate anemia, weight loss, and GERD symptoms of this level of severity have not been shown. In an April 2011 letter, the Veteran’s partner noted that the Veteran experienced significant weight loss when the partner was traveling for work but the partner attributed this to a fear of cooking not to the Veteran’s GERD. In sum, in the absence of a showing of the level of severe impairment of health contemplated by Code 7346, the Board is not able to assign the highest 60 percent rating for this disability. 38 C.F.R. § 4.114, Diagnostic Code 7346. REASONS FOR REMAND 1. Entitlement to service connection for IBS is remanded. 2. Entitlement to rating in excess of 30 percent for GAD is remanded. The Veteran was most recently afforded a VA examination to assess the current severity of his GAD in November 2016. Subsequently, the Veteran’s partner submitted a February 2017 statement, which alleges symptoms, which are more severe than those noted by the November 2016 examination, including symptoms of significant cognitive decline. Additionally, the evidence indicates that the Veteran has been receiving ongoing VA treatment for his GAD but VA psychiatric records associated with claims file only date until November 2016. Given that the Veteran’s partner’s statement indicates potential worsening of the GAD and given the apparent presence of outstanding pertinent VA treatment records, a remand is required prior to final adjudication of the Veteran’s claim for increased rating for GAD. On remand, any available updated VA treatment records should be obtained and the Veteran should be afforded an updated VA mental health examination. Regarding the claim for service connection for IBS, at a January 2013 VA examination, the examiner concluded that the Veteran did not meet the criteria for a diagnosis of this disability. The examiner reasoned that there was no evidence of any chronic pattern of disability and the Veteran’s symptoms were mild and generally within normal variation, causing no functional impairment. However, VA treatment records include a diagnosis of chronic constipation. See December 2013 VA nurse practitioner’s progress note. Additionally, on his Form 9 received in February 2017, the Veteran reported following an extremely restrictive and bland diet, indicating that if he ate anything outside of these restrictions, he would experience abdominal pain, bloating and spasms, all of which can be symptoms of IBS. Additionally, the most recent VA treatment records associated with the claims file in relation to any lower gastrointestinal symptomatology are from November 2016. Accordingly, a remand is required to obtain any updated VA treatment records and to afford the Veteran an updated VA examination to assess the likely etiology of any current IBS. The matters are REMANDED for the following action: 1. Obtain any updated records of VA psychiatric and gastrointestinal treatment dated since November 2016. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and likely etiology of any current irritable bowel syndrome (IBS). The examiner should review the claims file in conjunction with the examination. This review should include the service treatment records; post-service VA treatment records; any pertinent post-service private medical treatment records; the Veteran’s partner’s April 2011 statement; January 2013 VA gastrointestinal examination; January 2013 statements from the Veteran’s brother, sister and mother; the Veteran’s February 2013 statement; the Veteran’s December 2014 notice of disagreement; a November 2018 statement from a fellow service member; and any other information of record deemed pertinent. The examiner should then provide medical opinions in answer to the following questions: A) Does the Veteran meet the criteria for a diagnosis of IBS? B) Does the Veteran meet the criteria for another gastrointestinal illness (other than IBS or GERD)? C) It at least as likely as not that the Veteran’s gastrointestinal complaints are due to an illness that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis? D) Is it at least as likely as not that the Veteran’s gastrointestinal complaints are due to a medically unexplained chronic multi-symptom illness? E) Is it at least as likely as not that any current gastrointestinal disability (other than GERD) has been caused by the Veteran’s service-connected generalized anxiety disorder (GAD) or GERD? F) Is it at least as likely as not that any current gastrointestinal disability (other than GERD) has been aggravated by the Veteran’s service-connected generalized anxiety disorder (GAD) or GERD? If aggravation is found, the examiner should identify, to the extent possible, the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the gastrointestinal disability. A specific rationale for each opinion should be provided. If the examiner is unable to offer any requested opinion, it is essential that he or she provide a specific explanation as to why the opinion could not be provided without resort to speculation. This explanation should address whether there is additional evidence that could enable an opinion to be provided; whether the inability to provide the opinion is based on the limits of medical knowledge; or whether the inability to provide the opinion is based on the limits of the examiner’s expertise. 3. After the development in #1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected acquired psychiatric disability. The claims file should be reviewed by the examiner in conjunction with the examination. This review should include the VA treatment records; the Veteran’s partner’s April 2011 statement; January 2013 VA psychological evaluation; January 2013 statements from the Veteran’s brother, sister and mother; the Veteran’s December 2014 notice of disagreement; November 2016 VA psychological evaluation; the Veteran’s partner’s statement received in February 2017; the Veteran’s statement received in February 2017; the Veteran’s Form 9 received in February 2017; and any other information of record deemed pertinent. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dan Brook, Counsel