Citation Nr: 20009984 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 14-31 231A DATE: February 6, 2020 ORDER An initial 70 percent rating, but no more, for a dysthymic disorder, prior to August 28, 2007, is granted. A rating in excess of 70 percent for a dysthymic disorder, since August 28, 2007, is denied. Entitlement to a rating in excess of 20 percent for chronic lumbosacral strain with degenerative disc disease is denied. Entitlement to a rating in excess of 10 percent for a tender scalp scar, residual of cyst removal, is denied. REMANDED Entitlement to service connection for muscle 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 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 sleep apnea is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. From March 31, 2005, the Board finds that the Veteran’s dysthymic disorder resulted in occupational and social deficiencies in most areas. 2. For the entire appeal period, the Board finds that the Veteran’s dysthymic disorder has not resulted in total occupational and social impairment. 3. Throughout the period on appeal, the Veteran’s chronic lumbosacral strain with degenerative disc disease has been manifested by subjective complaints of pain; the objective findings include forward flexion greater than 30 degrees; incapacitating episodes having a total duration of at least 4 weeks, requiring hospitalization or bedrest as prescribed by a physician are not shown; neurological deficits associated with the Veteran’s back disability have not been demonstrated. 4. The Veteran has one painful, tender scalp scar; he does not have three or four scars that are unstable or painful. CONCLUSIONS OF LAW 1. From March 31, 2005, the criteria for an initial rating of 70 percent rating, but no higher, for dysthymic disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9433. 2. Since August 28, 2007, the criteria for a rating in excess of 70 percent for a dysthymic disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9433. 3. The criteria for a rating in excess of 20 percent for chronic lumbosacral strain with degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5243. 4. The criteria for a rating in excess of 10 percent for a tender scalp scar, residual of cyst removal have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1993 to January 2002. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2006 (dysthymic disorder) and August 2010 (all other issues) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a July 2017 videoconference hearing. A transcript has been associated with the file. This case was previously before the Board in March 2018, when the claims listed above were remanded for further development. A November 2019 supplemental statement of the case was most recently issued, and the claims are once again before the Board. 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. The veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of staged rating (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 1. Entitlement to an initial rating in excess of 50 percent, for a dysthymic disorder, prior to August 28, 2007. 2. Entitlement to a rating in excess of 70 percent, for a dysthymic disorder, since August 28, 2007. The Veteran’s dysthymic disorder is currently evaluated as 50 percent disabling from March 31, 2005 until August 27, 2007, and as 70 percent disabling since August 28, 2007, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under Diagnostic Code 9433, a 50 percent rating is warranted when there is occupational and social impairment, but with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, 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 task); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9433. 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. Id. 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. Id. 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. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996). Effective August 4, 2014, the DSM-IV was superseded by a new fifth edition that significantly changed diagnostic metrics for mental illnesses. In pertinent part, the DSM-5 eliminated the GAF scores used in the DSM-IV. It was recommended that the GAF be dropped from DSM-5 for several reasons, including its lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. A review of the evidence reflects that a rating of 70 percent is warranted throughout the appeal period. In a March 2005 VA treatment record, the Veteran requested an increase in his medication because the current amount was not really working. In March 2006, the Veteran reported to his VA treating psychiatrist that he had a “short fuse” and was struggling with ruminations about various neighbors. A July 2007 letter from a VA mental health clinic treating practitioner reflects that the Veteran had been placed on several different medications, had a general dismal outlook and chronic dysthymia. It was noted that the medication did not make him depression free. At a September 2007 VA examination, the Veteran reported that he had attempted suicide two weeks before the examination. He reported feeling detached or estranged from others, although he did report that he had friends. The VA examiner noted normal speech and no delusions or hallucinations. Although psychotic symptoms were reported during his teenage years, the Veteran denied any current problems associated with these symptoms. He reported depression all of the time and described himself as having a short temper. The VA examiner noted that the Veteran had just been discharged from an acute psychiatric unit for an attempted suicide. The examiner noted that his current degree of occupational impairment is significant, although it was noted that he was still working two jobs. At a March 2010 VA general examination, it was noted that the Veteran was working part time. The VA examiner stated that the Veteran’s depression was likely a major factor limiting his employability. In a mental examination at that time the Veteran reported that his marriage of nine years was okay but not the best. He reported problems with anger and irritability. The VA examiner noted that the Veteran had low energy and no motivation to get out of bed in the morning. He denied any feelings of suicide or homicide. No evidence of psychotic or delusional processes were observed. The Veteran’s mood and affect were described as sad and depressed. His thoughts were noted to be clear, logical, goal-directed and linear. His insight and judgment appeared to be within normal limits. No bizarre or unusual behaviors were observed during the interview. The Veteran reported social isolation and limited social skills. Activities of daily living were within normal limits. The VA examiner noted that the Veteran worked as a mortuary driver and seemed to get along okay with people at work. The Veteran reported that he was going to be stopping work very shortly because of his severe symptoms of depression. The VA examiner noted that the Veteran had difficulty establishing and maintaining social relationships and finds himself socially isolated. The Veteran reported in June 2013 that he was no longer working. The Veteran underwent an additional VA examination in July 2015. The VA examiner noted that his service-connected psychiatric disability results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported stopping work due to his back pain. It was noted that the Veteran had depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work or a worklike setting. The Veteran reported that he spends most of his time taking care of household chores. He reported that he talks to his friend or calls his mom when he is feeling depressed. The Veteran reported that he loses his temper almost daily and when angry he yells at his family members and can become quite mean. He denied any episodes of violence. At an October 2019 VA examination the VA examiner opined that the Veteran’s acquired psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity. The Veteran reported that he attends family functions sometimes and that he had some friends. He reported that his marriage of twenty years had been up and down. Symptoms of his acquired psychiatric disability included: depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining work and social relationships, difficulty in adapting to stressful circumstances, and impaired impulse control. Following a review of the evidence, to include the statements and testimony of the Veteran, the Board finds that the Veteran’s dysthymic disorder has been most consistent with a 70 percent disability rating, not the 50 percent disability rating currently assigned (prior to August 28, 2007). Although some treatment records appear to reflect milder psychiatric symptomatology, the majority of the treatment records are most consistent with a 70 percent disability rating. Accordingly, and based on these findings, the Board finds that a 70 percent rating is warranted, throughout the period on appeal. Nevertheless, the Board finds that a rating in excess of 70 percent is not warranted for any period during the pendency of the claim, as 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. The Veteran’s reported social functioning has been fairly consistent throughout the period on appeal, with social isolation and some interaction. Thus, while limited, he was still able to continue relationships with some people, including his family. Although he experienced unemployment during the appeal period, a rating of 100 percent is only warranted for both total social and total occupational impairment due to his dysthymic disorder. Moreover, any symptoms of hallucinations were reported to have occurred during his teenage years and not since then. The Board concludes the criteria for a 100 percent rating for a dysthymic disorder have not been met at any point during the period on appeal. 38 C.F.R. § 4.130, DC 9433. His own reports at various evaluations regarding how his dysthymic disorder impacts him, overall, would provide additional evidence against this claim, clearly indicating the level of symptomatology cited within the 100 percent rating have not been met in this case. In summary, while the Veteran is significantly socially limited by his service-connected dysthymic disorder, the evidence during the period on appeal fails to show that this impairment is “total” so as to warrant a 100 percent rating, at any point during the appeals period. Based on the foregoing discussion, the Board finds that Veteran’s dysthymic disorder more nearly approximates the rating criteria for a 70 percent rating during the entire period on appeal. As such, a rating of 70 percent is granted prior to August 28, 2007, but a rating in excess of 70 percent is not warranted at any time during the period on appeal. 3. Entitlement to a rating in excess of 20 percent for chronic lumbosacral strain with degenerative disc disease. Generally, in evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 (“functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded”); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). The Veteran’s service-connected chronic lumbosacral strain with degenerative disc disease has been evaluated under Diagnostic Code (DC) 5243 and is currently rated as 20 percent disabling throughout the period on appeal, pursuant to the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The General Rating Formula for Diseases and Injuries of the Spine provides for the assignment of a 20 percent rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, when the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A rating of 40 percent is assigned for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine. A rating of 100 percent is awarded for unfavorable ankylosis of the entire spine. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Moreover, “chronic orthopedic and neurological manifestations” means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months warrants the assignment of a 20 percent rating. Intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months is assigned a 40 percent rating. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note (1): For purposes of evaluations under diagnostic code 5243 an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If intervertebral disc syndrome is present in more than one spinal segment provided that the effects in each spinal segment are clearly distinct evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board has reviewed the extensive evidence of record and finds that the weight of the evidence does not support the next-higher 40 percent rating. At a March 2010 VA examination it was noted that the Veteran had mild to moderate kyphoscoliosis. The Veteran’s flexion was to 45 degrees with moderate pain throughout motion. It was noted that the Veteran had decreased range of motion made worse by muscle spasm. At a July 2015 VA examination the Veteran reported being treated with epidural injections. Range of motion testing revealed forward flexion to 40 degrees. The VA examiner noted that there was no additional loss of function or range of motion after repetitive testing. The VA examiner noted no radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis of the spine found. Although intervertebral disc syndrome was diagnosed, the VA examiner noted that the Veteran had not had any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The VA examiner stated that the Veteran had stopped working 3 years prior because of back pain. Since then, it was noted that the Veteran had been helping a friend with his business on a volunteer seasonal basis. He did report that he does housework and mows the grass. The Veteran underwent an additional VA examination in October 2019. The Veteran reported constant dull to sharp pain over his low back with intermittent radiation and pain and numbness and tingling to the bilateral feet. Range of motion testing revealed forward flexion to 70 degrees. It was noted that the Veteran was able to perform repetitive-use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. The VA examiner noted no radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis of the spine. No other neurological abnormalities or findings related to the thoracolumbar spine were noted. The VA examiner noted that the Veteran was limited from bending, stooping, and lifting and carrying heavy loads. The Board has additionally reviewed the Veteran’s extensive treatment records. After a review of all the evidence, the Board finds that a 20 percent rating is warranted for the entire period on appeal. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. A part that becomes painful on use must be regarded as seriously disabled. Id.; see also DeLuca. The Veteran has complained about back pain, but even considering pain, the Veteran’s forward flexion is not limited to 30 degrees or less. As such, the Board concludes that the back pain is not of such severity as to merit a rating in excess of 20 percent even when contemplating pain, repetitive motion, and flare-ups, as these symptoms do not cause sufficient functional limitation. Based on an extensive review of the available evidence, the Board finds that the Veteran’s painful range of motion symptoms have been most consistent with a 20 percent disability rating, throughout the period on appeal. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. With regard to a rating under the criteria considering incapacitating episodes, the Board notes that IVDS having a total duration of at least 4 weeks in the past 12 months warrants a 40 percent disability rating. However, there is no evidence that the Veteran was prescribed bedrest for at least 4 weeks. As such, a higher disability rating is not warranted on the basis of incapacitating episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Additionally, neurological findings warranting separate ratings have not been demonstrated. 4. Entitlement to a rating in excess of 10 percent for a tender scalp scar, residual of cyst removal. The Veteran is currently rated 10 percent for a tender scalp scar, residual of a cyst removal, for the entire period on appeal, under Diagnostic Code 7804. Under Diagnostic Code 7804, unstable or painful scars are evaluated as follows: five or more scars that are unstable or painful (30 percent); three or four scars that are unstable or painful (20 percent); and one or two scars that are unstable or painful (10 percent). 38 C.F.R. § 4.118, Diagnostic Code 7804. Diagnostic Code 7804, Note (2) allows for an extra 10 percent rating for a single scar that is both unstable and painful. Diagnostic Code 7804, Note (1) defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. In a March 2010 VA examination report, it was noted that the Veteran had a 2 cm linear surgical scar on the right parietal area with a slight visible lump. On palpation the examiner noted that the area is a 2 cm by approximately 1.2 cm. nodule, mildly tender. The Veteran was diagnosed with a scalp lesion status post cyst removal while in the military in 2000 with planned resection by plastic surgery. A July 2014 VA skin examination focused on the Veteran’s tinea pedis. The Veteran underwent a VA scar/disfigurement examination in October 2019. He was diagnosed with a scar of the scalp after cyst removal. The Veteran reported mild tenderness over the scar. Only one painful scar was noted. No unstable scars were observed. The VA examiner noted that the scar was 2.3 by 0.3 cm in size. There was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. The Board finds that a rating in excess of 10 percent is not warranted for the Veteran’s tender scar. He has only complained that one scar is painful and tender. The presence of one painful scar aligns with a 10 percent disability rating under Diagnostic Code 7804. Further, this scar has not been found to also be unstable, which would garner an additional separate 10 percent rating. In sum, a rating in excess of 10 percent for the Veteran’s tender scalp scar, residual of cyst removal is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for muscle pain, to include as due to an undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117, is remanded. 2. 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. The Veteran’s claims were remanded in March 2018 so that a VA examination and opinion could be provided to determine if the Veteran has any muscle or joint pain disabilities related to service, to include as due to an undiagnosed illness or other qualifying chronic disability based on Gulf War service. The VA examiner in October 2019 failed to consider whether the Veteran had an undiagnosed illness. Hence, the examination failed to substantially comply with the Board’s remand directives, necessitating further remand. Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008). 3. Entitlement to service connection for sleep apnea is remanded. The Board finds the October 2019 VA examiner’s opinion is inadequate for several reasons. First, the VA examiner did not discuss the Veteran’s credible statements that he has suffered from sleep problems since service or the August 2017 statement from his friend attesting that he began noticing the Veteran’s sleep problems in service when formulating his opinion. Additionally, the examiner’s opinion is not supported by the evidence of record. Specifically, the examiner indicated that there is no evidence of treatment for a sleep disorder in service. However, a review of the Veteran’s service treatment records reveals that the Veteran reported periodic insomnia in April 2001. Additionally, the Board finds the rationale provided for his negative nexus opinion is inadequate. A new VA opinion should be provided to the Veteran. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Following the above development including adjudication of the service connection claims the subject of remand, a new assessment should be obtained of functional impacts of service-connected disabilities, pursuant to the prior remand instructions. The matters are REMANDED for the following actions: 1. Arrange for the Veteran to undergo a VA examination to determine the nature and etiology of any muscle pain disability and joint pain disability found to be present, and their relationship, if any, to his 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. Regarding the Veteran’s muscle and joint pain disabilities, the examiner must first provide an opinion as to whether there is objective evidence that the Veteran suffers a chronic muscle pain disability and/or a chronic joint pain disability. If a muscle 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 (to include anthrax shots and exposure to burning refineries in the Persian Gulf). If the Veteran’s muscular 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. If a joint 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 (to include anthrax shots and exposure to burning refineries in the Persian Gulf). If the Veteran’s joint 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. Forward the Veteran’s claims folder to an examiner for an addendum opinion regarding the Veteran’s sleep apnea disability. The examiner is requested to review the claims folder, to include this remand. Following review of the claims file the examiner should provide an opinion on the following: Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran’s sleep disability, claimed as sleep apnea began in, or is otherwise etiologically linked to, his time in service. In providing an opinion, the examiner should consider the Veteran’s statements of continuity of symptoms related to his sleep apnea since service. Rationale for the requested opinion must be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After the above development is complete, obtain an assessment by a VA examiner of the functional impacts of the Veteran’s service-connected disabilities. A complete explanation for the findings should be provided. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. M. Clark, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.