Citation Nr: 20021248 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 18-32 101 DATE: March 25, 2020 ORDER As new and material evidence has not been received, the application to reopen a claim for service connection for Parkinson's disease is denied. As new and material evidence has been received, the application to reopen a claim for service connection for irritable bowel syndrome is granted. To this extent only, the appeal is allowed. A rating in excess of 30 percent rating for posttraumatic stress disorder (PTSD) is denied. REMANDED The appeal for service connection for irritable bowel syndrome, on its merits, is remanded. FINDINGS OF FACT 1. The agency of original jurisdiction (AOJ) denied service connection for Parkinson’s disease in May 2015 and notified the Veteran of its decision and of his right to appeal it within 1 year thereof in May 2015. The Veteran did not appeal, nor was new and material evidence received within 1 year of the notification of the decision at the time. 2. Since the final May 2015 decision denying service connection for Parkinson’s disease, evidence relating to an unestablished fact necessary to substantiate the claim and which is neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim has not been received. 3. The AOJ last denied service connection for irritable bowel syndrome in May 2015 and notified the Veteran of its decision and of his right to appeal it within 1 year thereof in May 2015. The Veteran did not appeal, nor was new and material evidence received within 1 year of the notification of the decision at the time. 4. Since the final May 2015 decision denying service connection for irritable bowel syndrome, evidence relating to an unestablished fact necessary to substantiate the claim and which is neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim has been received. 5. The Veteran’s service connected PTSD does not produce occupational and social impairment with reduced reliability and productivity or occupational and social impairment with deficiencies in most areas. No more than occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks is shown. CONCLUSIONS OF LAW 1. The May 2015 AOJ decision denying service connection for Parkinson’s disease is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria to reopen the claim for service connection for Parkinson’s disease based on new and material evidence are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The May 2015 AOJ decision denying service connection for irritable bowel syndrome is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. The criteria to reopen the claim for service connection for irritable bowel syndrome based on new and material evidence are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 5. The criteria for a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to October 1970 and from September 1990 to May 1991. He had service in Vietnam during his 1st period of service. Service in Southwest Asia during the Persian Gulf War has been claimed but not verified to date. The Board thanks the Veteran for both of his periods of wartime service. The Veteran withdrew a Board hearing request in January 2020. The Board has considered whether a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been raised by the Veteran during the pendency of this appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to TDIU in increased-rating claims when the issue of unemployability either is raised expressly or by the record. A review of the Veteran’s April 2018 VA psychiatric examination reflects that he retired from his position as an electrician in 2014 and that he did not attribute his retirement to his PTSD symptomatology. Furthermore, there is no indication from the record that he has ever contended that his PTSD symptomatology has precluded him from securing or maintaining substantially gainful employment. Accordingly, a claim for TDIU has not been raised by the record. Reopening Previously Denied Claims Prior unappealed AOJ rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Claims are to be reopened when new and material evidence is submitted. 38 U.S.C. § 5108. Applicable 38 C.F.R. § 3.156 provides that new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. For purposes of determining whether VA has received new and material evidence sufficient to reopen a previously denied claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Parkinson’s Disease The AOJ denied service connection for Parkinson’s disease/tremors in May 2015 and notified the Veteran of its decision and of his right to appeal it within 1 year in May 2015. He did not file an appeal of this denial and no additional evidence was received within 1 year of the May 2015 notice. Accordingly, the AOJ decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. At the time, it had been claimed in part as secondary to Agent Orange exposure, and the basis of the decision was in part that Parkinson’s disease was not shown. The tremors he had then were not shown in service and were not related to service. Also, Parkinson’s disease and tremors were not on the list of disorders presumptive to herbicide (including Agent Orange) exposure and were not caused or aggravated by a service connected disability (including diabetes mellitus and diabetic peripheral neuropathy). Since that decision, new and material evidence has not been received to reopen this claim. Medical records showing tremors are cumulative of medical records showing them previously. No competent evidence has been received, showing that tremors were manifest in service or to a degree of 10 percent within 1 year of active service separation, or that they are related to service or were caused or aggravated by a service connected disability. As new and material evidence has not been received, the claim may not be reopened. Irritable Bowel Syndrome The AOJ denied service connection for irritable bowel syndrome in July 2010 and again in May 2015 and notified the Veteran of its decisions and of his right to appeal them within 1 year, including in May 2015. He did not file an appeal of this denial and no additional evidence was received within 1 year of the May 2015 notice. Accordingly, the May 2015 AOJ decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The only relevant evidence that had been submitted was the Veteran's unsubstantiated report in December 2008 of irritable bowels beginning in 1991 and continuing treatment for them, and his wife’s June 2009 report that he had extremely loose stools. No competent evidence showed that he had irritable bowel syndrome or another functional gastrointestinal disability, or that it was manifest in service or is related to service, including presumptively to any Southwest Asia service, which he reported in December 2008. His medical records including his service treatment records did not mention bowel problems, and to the contrary, in January 1994, his bowel sounds were physiological, and all abdominal signs were negative. He also denied having or having had indigestion and intestinal trouble in November 1990, January 1993 and January 1998, and clinical evaluations were normal in January 1993 and January 1998. A VA examination report from May 2015 indicated that the Veteran had never been diagnosed with irritable bowel syndrome. There was no indication in the record that the Veteran had any current functional loss as a result of any gastrointestinal disability. Since that decision, new and material evidence has been received to reopen this claim. A July 2019 VA medical record indicates that the Veteran was felt to have either metformin contributing to loose stools, or that his loose stools may be from a diarrhea-predominant irritable bowel syndrome, since he had been experiencing it for many years. As new and material evidence has been received, the claim is reopened. Action on this appeal is being ordered in the remand section below. Entitlement to an Increased Rating for PTSD The Veteran is currently in receipt of a 30 percent disability rating for service-connected PTSD. He seeks a rating in excess of 30 percent for the entire period of the appeal, which extends back to January 24, 2017, one year prior to the date that he filed his claim seeking an increased rating. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55 (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). The 30 percent rating was assigned pursuant to 38 C.F.R. § 4.130’s General Rating Formula for Mental Disorders. Under that formula, a 30 percent rating is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Higher ratings under this Diagnostic Code require more severe symptomatology. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical obscure, or irrelevant speech; near-continuous panic or depression affecting the 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 worklike setting); inability to establish and maintain effective relationships. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112(Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. At the time of the April 2018 VA psychiatric examination, the Veteran indicated that he was living in a house with his wife, and that he was supported financially by his 2014 retirement from his profession as an electrician. He reported that he did not get along with his family. He had only Veteran friends. He got along with his wife, and with some neighbors, but not others. His wife put up with his short tempers. On a typical day, he got up at between 2 and 5am. In the summer, he had a garden and would travel with friends to concerts or to the casino. He could do all of the chores around the house. He would go to bed between 8 and 10pm. He reported temper control difficulties. He denied suicidal and homicidal ideation. He reported amotivation and not caring to eat healthy. He evidenced a naïve perception which elevated normal emotional and behavioral reactions into abnormal symptoms of pathology. He had had no arrests, DUIs, or incarcerations and denied substance abuse and use of alcohol and drugs or abuse of prescriptive medicines. Clinically, he had a depressed mood, and was annoyed, distrustful, and irritated, making a statement because he had been denied compensation. His interview followed precariously, with the examiner skipping follow-ups, allowing initial monosyllable responses to stand in order to avoid appearing to interrogate the Veteran, as he might view it as disagreement. As the interview proceeded, however, the Veteran became more compliant. He reported at the end of the interview that the examiner was easier to talk and open up to than he expected. He had been in combat in Vietnam and Desert Storm and had not been awarded the 70 percent compensation that most everyone else had. The examiner indicated that it was accurate to conclude that he displayed no significant evidence of impairment; and that others with the same absence of impairment are awarded 50, 70, and 100 percent compensation. The Veteran’s manner of presentation was cooperative, open, and honest, and he fully answered all questions. He was oriented to time and place. His appearance and hygiene were normal. His behavior was appropriate. Delusions and hallucinations were absent. He was not disoriented and no obsessive rituals were observed or confirmed. He had no gross impairment in thought processes or communication. His speech was logical and relevant. He was not a danger to self or others, he was able to do all of his activities of daily living without assistance, his memory was intact, and there was no evidence of memory dysfunction. The examiner checked a box indicating that occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood best summarized the Veteran's level of occupational and social impairment with regard to his PTSD. This was not explained or supported by the examination report data. The examiner noted that he had reviewed CPRS records and found no current mental health treatment records or diagnoses, and that a depression screen in April 2018 was negative. A review of available VA medical records pertaining to the period on appeal does not reflect that the Veteran has reported experiencing psychiatric symptomatology of significant severity. For example, August 2018 and December 2018 outpatient notes each indicate that he denied experiencing depression and suicidal ideation during both encounters. Based on the evidence, the Board concludes that a rating in excess of 30 percent for the Veteran's service connected PTSD is not warranted. The preponderance of the evidence indicates that the Veteran’s PTSD does not cause occupational and social impairment with reduced reliability and productivity, or with deficiencies in most areas. The evidence shows that the Veteran is married and gets along with his wife. He is retired and they live in a home together. He gets along with some of his neighbors. He has friends with whom he travels to concerts and casinos. He had normal speech at the time of his VA examination, and the preponderance of the evidence indicates that he is not currently receiving mental health treatment. Additionally, no psychotropic drug use for his PTSD has been reported. While he was depressed on VA examination, and was initially distrustful and irritated, he became more compliant as the interview went on, and the examiner indicated that he displayed no significant evidence of impairment. Indeed, he was cooperative, open, honest, oriented, and had normal appearance and hygiene. He was not disoriented and had no obsessive rituals. He was not a danger to self or others, he gardened and did numerous chores, and he was able to do all of his activities of daily living. Clearly, the Veteran does not demonstrate occupational and social impairment with reduced reliability and productivity. There is no evidence at all of reduced reliability, and it is unclear that he has reduced productivity, although he has reported a lack of motivation. He had a normal appearance and hygiene, and was cooperative and open and had appropriate behavior, suggesting that any lack of motivation did not inhibit him at least in this regard. Also, while the examiner indicated that occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood (coordinating with a 70 percent rating) best summarized the Veteran's level of occupational and social impairment with regard to his PTSD, this does not appear to be the case. The Veteran has no deficiencies in work, as he is retired, and has none in school, as he does not go to school. As for family and social relations, he lives with his wife and gets along with her, and with some neighbors, and he has friends which he travels to concerts and the casino with, so the Board concludes that these are not seriously impaired. Also, there is no indication of any deficiencies in judgment. To the contrary, he has not been arrested or incarcerated and denied substance abuse and use of alcohol or drugs or abuse of prescriptive medicines. There is no indication of any occupationally or socially impairing thought processes. To the contrary, the VA examination report shows that he had no gross impairment in thought processes, that his speech was logical and relevant, and that there is no evidence of any memory impairment or dysfunction. In summary, the Veteran's PTSD is consistent with no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, and so a rating in excess of 30 percent is not warranted. No symptoms, exemplary or otherwise, indicating a level of impairment higher than this, are present. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). REASONS FOR REMAND Service connection for irritable bowel syndrome is remanded. The Veteran is claiming service connection for irritable bowel syndrome. He has alleged that he served in Southwest Asia during the Persian Gulf War. If this is true and he has irritable bowel syndrome or another functional gastrointestinal disorder, then it is presumptively service connected under 38 C.F.R. § 3.317. He also has submitted a February 2017 article indicating that there is a relationship between PTSD and irritable bowel syndrome, and he is service connected for his PTSD, whose rating is discussed above. A VA examination and other action as indicated below is being ordered. The matters are REMANDED for the following action: 1. Make arrangements to verify that the Veteran served in Southwest Asia during the Persian Gulf War. 2. After the above development is completed, schedule a VA examination with a clinician who has the appropriate expertise to render the requested opinion. After reviewing the entire record and examination results, the clinician should a) First, please determine whether there is a diagnosable disability to account for the Veteran’s reported gastrointestinal symptomatology, to include loose stools and/or irritable bowel syndrome/any other functional gastrointestinal disorder. If a distinct diagnosable condition is appropriate, the examiner should also explain why this is so. b) If a diagnosable condition (known clinical diagnosis) is identified that accounts for some or all of the Veteran’s gastrointestinal symptomatology, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any such diagnosed condition is etiologically related to the Veteran’s military service, to specifically include as due to exposure to hazardous materials while serving in the Southwest Asia theater of operations. In addition, irrespective of the answer above, the examiner is also asked to opine as to whether it is at least as likely as not that any diagnosed gastrointestinal condition was caused or aggravated by one or more service-connected disabilities (as listed in a January 2020 rating decision). A separate opinion for both causation AND aggravation must be provided. Specifically, the examiner should evaluate the likelihood that any diagnosed gastrointestinal condition is secondary to the service-connected PTSD. In setting forth this opinion, the examiner should consider, and comment upon as necessary, a February 2017 article regarding the relationship between PTSD and the development of irritable bowel syndrome. If the opinion is that a service-connected disability or combination of service-connected disabilities aggravated a diagnosed gastrointestinal condition, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. c) If a diagnosable condition is not appropriate to account for any of the Veteran’s gastrointestinal symptomatology, please note whether the Veteran has a medically unexplained chronic multisymptom illness corresponding to the gastrointestinal symptomatology detailed by the Veteran for which there is no diagnosable condition that accounts for that symptomatology. d) Furthermore, if the answer to (c) is negative for any claimed gastrointestinal symptomatology, please describe whether any of those symptoms were chronic in nature since service and thus would constitute a qualifying chronic disability under 38 C.F.R. § 3.317(a)(2)(i)(B). If this question is answered in the negative, an explanation for this determination is needed. If this question is answered in the positive please address the possible etiologies of such chronic disability. If a chronic disability is found to be attributable to a supervening condition or event that occurred between the Veteran’s departure from active duty in the Southwest Asia theater of operations and the onset of the illness, the examiner should so state. A full rationale for all expressed opinions must be provided, preferably citing to evidence in the file supporting the responses and concluding opinions. C. M. COLLINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lawson 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.