Citation Nr: 21003287 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 18-39 246 DATE: January 21, 2021 ORDER Entitlement to a 100 percent disability rating for posttraumatic stress disorder (PTSD) from July 31, 2014 is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) from August 21, 2014 is granted. Entitlement to service connection for a foot disability is denied. Entitlement to service connection for abnormal weight loss is denied. REMANDED Entitlement to service connection for a back strain is remanded. Entitlement to service connection for migraines, to include as secondary to service-connected PTSD, is remanded. Entitlement to service connection for dizziness is remanded. FINDINGS OF FACT 1. The Veteran has suffered from total occupational and social impairment from his PTSD since July 31, 2014. 2. The Veteran has been unable to obtain and sustain substantially gainful employment due to his service-connected disabilities since August 21, 2014. 3. The preponderance of the evidence is against finding that the Veteran has a foot disability that began during active service, or is otherwise related to an in-service event, injury, or disease. 4. The preponderance of the evidence is against finding that the Veteran has a chronic disability manifesting as abnormal weight loss, other than PTSD, that began during active service, or is otherwise related to an in-service event, injury, or disease CONCLUSIONS OF LAW 1. The criteria for a 100 percent disability rating for service-connected PTSD from July 31, 2014 have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a TDIU from August 21, 2014 have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 3. The criteria for service connection for a foot disability have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for abnormal weight loss have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army National Guard from May 2011 to September 2011 and from June 2012 to June 2013, including service in Afghanistan. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that additional medical treatment records have been added to the claims file since the Statements of the Case (SOC) issued for these claims in May and November 2018. However, the Veteran waived initial Agency of Original Jurisdiction (AOJ) review of this additional evidence in a February 2020 correspondence. 38 C.F.R. § 20.1305. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. 1. Entitlement to an initial disability rating in excess of 50 percent for PTSD. The Veteran’s PTSD is evaluated as 50 percent disabling under Diagnostic Code 9411, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. A 50 percent rating is warranted when 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 such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. 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 suicidal ideation; obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or 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 the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when there is 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Treatment records from May 2015 note that the Veteran suffered from worsening PTSD, with poor sleep, social isolation, anxiety, restlessness, depressed mood, constant vigilance, difficulty adjusting to civilian life, insomnia, barely talking to family, and the Veteran reported he no longer has friends anymore because he does not like being around people. In July 2015, the Veteran reported passive thoughts of suicidal ideation but stated that his relationship with his mother prevents him from harming himself. The Veteran underwent a VA examination in September 2015 where he was found to suffer from occupational and social impairment with reduced reliability and productivity. He reported he lives between his parents and sisters house, tends to isolate from family, stays in his room, difficulty maintaining conversation with them, no social relationships, spends most of his time watching television, being easily offended, altercations but tends to have more verbal arguments, problems with authority, and being fired from his job in August 2014 due to trouble coming into work. The examiner noted depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, poor eye contact, psychomotor retardation, being very emotional during parts, tired, lethargic, slow and mumbled speech, blunted affect, decreased attention/concentration, sleep problems, bad dreams, no motivation, chronic anxiety, nervous when driving, and being restless. In September 2015, the Veteran submitted an examination from his treating physician who stated that the Veteran suffered from total occupational and social impairment. The Veteran reported having trouble getting along with others and maintaining social and personal relationships. The examined noted depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, circumstantial, circumlocutory, or stereotypes speech, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, impaired impulse control, persistent delusions or hallucinations, and neglect of personal appearance and hygiene. A second private physician submitted an examination in September 2015 and also stated that the Veteran suffered from total occupational and social impairment. The Veteran reported problems getting along with others and functioning in daily activities. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, circumstantial, circumlocutory, or stereotyped speech, speech intermittently illogical, obscure, or irrelevant, impaired judgment, impaired abstract thinking, gross impairment in thought process or communication, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals which interfere with routine activities, impaired impulse control, persistent delusions or hallucinations, grossly inappropriate behavior, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Veteran presented with lethargy/tiredness, speech muffled, low toned, slow, very emotional and tearful, attention and concentration decreased and low, panic attacks often and prevents daily living at times, flashbacks, dreams, hallucinations of deployment, feelings of helplessness, hopelessness, and being drained. His mental condition impacts his ability to obtain and maintain employment and functioning personal relationships. Treatment records from September 2017 noted the Veteran suffered from depressed mood half the time, anhedonia daily, guilt, low energy, poor concentration, reduced appetite, variable sleep, psychomotor agitation, suicidal ideation one month ago without plan or intent, daily anxiety, wanting to fight others when angry, nightmares, persistent negative beliefs, markedly diminished interest in significant activities, irritable or aggressive behavior, hypervigilance, and being paranoid. The Veteran underwent a VA examination in September 2018 where he was found to suffer from occupational and social impairment with deficiencies in most areas. The Veteran reported living with his parents, having no friends of hobbies, nightmares, being sad, loss of interest in socializing, poor sleep, lack of appetite, feeling worthless, lack of energy, and passive suicidal ideation. The examiner noted the Veteran suffered from symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, poor eye contact, and believing his name is being called. Finally, a private examination was submitted in November 2018 where he was found to suffer from occupational and social impairment in most areas. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, persistent delusions or hallucinations, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living. The Veteran complained of increased trouble with short- and long-term memory, struggles with remembering basic information, anxious and nervous mood, restricted affect, depression, living with his parents, socially isolated and withdrawn, hypervigilance, difficulty concentrating, and irritability. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran has suffered from total occupational and social impairment since July 31, 2014, his date of claim. The Veteran has suffered from gross impairment in thought processes or communication, persistent delusions or hallucinations, a persistent danger of hurting self or others, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, and memory loss. The Veteran has consistently been isolative, irritable, and suffered from disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals which interfere with routine activities, impaired impulse control, persistent delusions or hallucinations, and grossly inappropriate behavior. Accordingly, entitlement to an initial 100 percent disability rating for PTSD from July 31, 2014 is granted. 2. Entitlement to a TDIU. The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As “sedentary” is defined as “[r]equiring or marked by much sitting ” the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER’S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran meets the threshold schedular disability percentage requirement for TDIU consideration as a result of his service-connected PTSD, now rated as 100 percent. 38 C.F.R. § 4.16(a). Military personnel records reflect the Veteran’s military occupation specialty (MOS)/rating was that of infantryman. On his application for unemployability he reported his PTSD prevents him from following a substantially gainful occupation. The Veteran reported completing high school. He reported he last worked full-time in August 2014 as a teleservice claim representative. As described above, the Veteran’s PTSD cause total occupational and social impairment. The Board finds that the Veteran has been unable to obtain and maintain employment since August 21, 2014, the date the Veteran last worked, due to his PTSD. Thus, a TDIU is warranted from August 21, 2014. 3. Entitlement to service connection for a foot disability. The Veteran contends that he suffered from a foot disability as a result of his military service. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service treatment records are silent for any complaints, treatment, or diagnosis of a foot condition in service. Post-service treatment records demonstrate that the Veteran suffered from foot pain due to flexion deformity with clawing in March 2015. While the veteran attributed all of his original service connection claims in 2014 to his PTSD, there is no medical evidence indicating any relationship between a foot disability and an acquired psychiatric disorder, nor has the Veteran provided any argument. There is also no medical opinion indicating that the Veteran suffers from a foot condition as a result of his military service. Generally, a VA medical examination or opinion is necessary when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the veteran qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, as noted above, the second and third criteria are not met. As such, the Board does not find that remand for a VA examination and opinion are warranted. The Board has considered the Veteran’s statements, to include his assertions that a foot disability is related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., foot pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. As the evidence is against the Veteran’s claim, service connection for a foot disability must be denied. 4. Service connection for abnormal weight loss. The Veteran asserts that he has suffered form abnormal weight loss since service. While the record reflects that the Veteran has expressed an inability to gain weight to medical providers, and while he is certainly competent to report weight loss, weight loss alone is not a disability. “Disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. Instead, weight loss can be a symptom of an underlying chronic disability. Other than his already service-connected PTSD, however, the evidence does not reflect, nor has the Veteran asserted, that his weight loss is attributable to any other chronic condition. The Board also cannot address the Veteran’s weight loss as an undiagnosed illness or medically unexplained chronic multisymptom illness under 38 C.F.R. § 3.317, as he does not qualify as a Persian Gulf veteran under these provisions. Rather, the Veteran served in Afghanistan, which is not included as a qualifying location. See 38 C.F.R. § 3.317(e). Afghanistan can only be considered when a Veteran is seeking service connection for an infectious disease, which the record does no suggest. See 38 C.F.R. § 3.317(c). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1131. In the absence of proof of a current diagnosis of the claimed disability, service connection for that disability cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, service connection for abnormal weight loss must be denied. REASONS FOR REMAND 1. Service connection for a back strain. The Veteran has consistently complained that he injured his back in service, due to being thrown around a gunner’s hatch and from the carrying of his gear in service. The reflects that the Veteran had combat exposure for service-connection purposes, evidence by his Military Occupational Specialty as an Infantryman and service in Afghanistan. Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA), or from injury incurred or aggravated while performing inactive duty for training (INACDUTRA). 38 U.S.C. §§ 101(24), 106, 1131. His service treatment records show complaints of back pain during possible periods of ACDUTRA or INACDUTRA. An examination has not been conducted to determine if the Veteran’s current back strain is related to his military service, however, to include any period of ACDUTRA or INACDUTRA. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); see also McLendon, 20 Vet. App. at 83. The Veteran’s periods of ACDUTRA and INACDUTRA should be verified by the RO while on remand. 2. Service connection for migraines and dizziness. The Veteran contends that he suffers from migraines as a result of his military service, and that his service-connected PTSD aggravates his migraines. In December 2018, a private opinion was submitted. Based on review of the Veteran’s claim, his headaches more likely than not began during his time in the military, have continued uninterrupted to present, and are more likely than not further caused and permanently aggravated by his PTSD. However, service treatment records demonstrate that he sought treatment for a migraine during his inactive duty, and in September 2014, the Veteran reported that he was diagnosed with migraines as a child. Thus, the Board finds that remand is necessary for a VA examination and opinion. The examiner should first determine if the Veteran’s migraines clearly and unmistakable preexisted his military service. If they did, then the examiner should determine if the Veteran’s migraines were permanently aggravated by his military service. In the alternative, the examiner should determine if the Veteran’s PTSD aggravates his migraines. The Board also notes that symptoms of migraines can include dizziness, which the December 2018 private examination does indicate. As such, the Board finds the Veteran’s dizziness claim is intertwined with the claim for migraines, and the disposition of the dizziness disability claim must therefore be deferred pending the resolution of the preliminary matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to treatment for his back, dizziness, and migraine claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. Appropriate efforts should be made to verify the appellant's periods of ACDUTRA and INACDUTRA. All efforts to obtain additional evidence must be documented in the electronic record. 3. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current back disability onset during service (to include any qualifying period of ACDUTRA or INACDUTRA) or is otherwise related to an in-service injury, event, or disease, to include being thrown around a gunner’s hatch and from the carrying of his gear in service. 4. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current migraines clearly and unmistakably preexisted service. If the examiner determines that the migraines clearly and unmistakably preexisted his military service, the examiner should determine if the Veteran’s service aggravated his migraines (i.e., worsened beyond its natural progression). The examiner should also address whether any current disability of the migraines is at least as likely as not (a) caused, or (b) aggravated by his service-connected PTSD. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 5. Then, the record should again be reviewed. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond. Robert N. Scarduzio Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Hofmeister, Attorney Advisor 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.