Citation Nr: 21003858
Decision Date: 01/25/21	Archive Date: 01/25/21

DOCKET NO. 17-42 014
DATE: January 25, 2021

ORDER

New and material evidence having been received, the previously denied claim of service connection for a left shoulder disability is reopened. 

New and material evidence having been received, the previously denied claim of service connection for a right shoulder disability is reopened. 

New and material evidence having been received, the previously denied claim of service connection for a skin disorder is reopened. 

New and material evidence having been received, the previously denied claim of service connection for a left knee disability is reopened. 

New and material evidence having been received, the previously denied claim of service connection for a right knee disability is reopened. 

New and material evidence having been received, the previously denied claim of service connection for obstructive sleep apnea (OSA) is reopened. 

New and material evidence having been received, the previously denied claim of service connection for a heart disorder is reopened. 

Service connection for OSA, as secondary to service-connected posttraumatic stress disorder (PTSD) and bronchitis is granted.  

A higher rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) is denied.

A higher rating in excess of 40 percent for service-connected fibromyalgia is denied.

An earlier effective date prior to August 17, 2016, for the award of a total disability rating based on individual unemployability (TDIU) is denied.

An earlier effective date prior to August 17, 2016, for the award of educational assistance benefits under Chapter 35, Title 38, U.S.C., also known as the Dependents Educational Assistance (DEA) is denied.

REMAND

Service connection for a left shoulder disability.

Service connection for a right shoulder disability.

Service connection for a left knee disability.

Service connection for a right knee disability.

Service connection for a low back disability.

Service connection for a skin disorder.

Service connection for a heart disorder.

A higher rating in excess of 30 percent for service-connected bronchitis. 

 

FINDINGS OF FACT

1. The Veteran’s OSA is related to the Veteran’s service-connected PTSD and bronchitis.

2. The severity, frequency, and duration of the Veteran’s PTSD symptoms have not more closely approximated total occupational and social impairment. 

3. The Veteran’s fibromyalgia approximates widespread musculoskeletal pain and tender points with associated fatigue, sleep disturbance, stiffness, irritable bowel syndrome, depression, and anxiety that are constant or near constant.

4. The Veteran’s fibromyalgia does not present such an exceptional disability picture that it renders the rating schedule inadequate. 

5. Prior to August 17, 2016, the Veteran’s service connected disabilities did not preclude him from securing or maintaining substantially gainful employment.  

6. The Veteran has been found to have a permanent and total evaluation due to service-connected disabilities effective August 17, 2016.  Accordingly, that is earliest possible date for eligibility for DEA benefits under Chapter 35. 

CONCLUSIONS OF LAW

1. The criteria for service connection for OSA, as secondary to PTSD and bronchitis, are met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

2. The criteria for a higher rating in excess of 70 percent for service-connected PTSD are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, DC 9411.

3. The criteria for a higher rating in excess of 40 percent for service-connected fibromyalgia are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321(b), 4.1, 4.3, 4.7, 4.71a, DC 5025.

4. The criteria for entitlement of a TDIU prior to August 17, 2016 are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16. 

5. The criteria for entitlement to DEA benefits under Chapter 35, for the period prior to August 17, 2016, are not met.  38 U.S.C. §§ 3500, 3501, 3510, 5113; 38 C.F.R. § 3.807.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1990 to October 1993.  

The case is on appeal from December 2013, November 2017, and August 2018 rating decisions. 

In a May 2019 decision, the Board remanded the service connection claims and increase rating claims herein addressed for further development in compliance with 38 C.F.R. § 3.159(e).  Thereafter, in a separate December 2019 decision, the Board remanded the issues of an earlier effective date for the awards of a TDIU and DEA benefits as these were intertwined with the previously remanded claims pursuant to Harris v. Derwinski, 2 Vet. App. 180, 183 (1991).  As there has been substantial compliance with the previous remand directives, the claims are ready for appellate review.  

Following the April and June 2020 supplemental statements of the case (SSOCs), the Veteran’s representative submitted additional medical evidence in support of these claims and expressly waived initial RO consideration.  See Brief in Support of Claim received on August 12, 2020.  See 38 C.F.R. § 20.1304(c).   

An August 2018 SOC indicates that the increase rating claim for fibromyalgia arises from a November 2017 rating decision.  However, the Board notes that at the time of the Veteran’s August 2017 increase rating claim based on a TDIU, an informal claim for a higher rating in excess of 40 percent for fibromyalgia had been pending disposition.  See August 2014 Board remand.  Thus, with respect to the increase rating claim for fibromyalgia, the Board will consider it as stemming from the May 13, 2014 claim.  

In August 2017, the Veteran filed a claim for a TDIU contending his fibromyalgia rendered him unemployable.  In light of the fact that the Veteran’s TDIU claim is premised, at least in part due to the manifestations of his fibromyalgia, the Board finds it is part and parcel of his fibromyalgia increased rating claim.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Thus, the Board will consider the TDIU issue as also stemming from the May 13, 2014 claim.  

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

Reopening Previously Denied Claims

The Board will first address whether the following previously denied claims should be reopened. 

1. Whether new and material evidence has been received to reopen the previously denied claim of service connection for a left shoulder disability. 

2. Whether new and material evidence has been received to reopen the previously denied claim of service connection for a right shoulder disability.

By a September 2003 rating decision, the claims of service connection for left and right shoulder disabilities were denied on the basis of no current disability and no in-service event or injury.  The Veteran was notified of the decision by letter dated in September 2003, which was mailed to the then current mailing address of record.  No new and material evidence or notice of disagreement (NOD) was received within one year of the issuance of the September 2003 rating decision.  As the Veteran did not perfect an appeal as to the decision, that rating decision is final.  See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302(a), 20.1103.

In a December 2013 rating decision, the RO denied the Veteran’s January 2013 petition to reopen his claims of service connection for the left and right shoulder disabilities because VA was not in receipt of any new and material evidence in support of the claim.  The Board notes, however, that pain alone may constitute functional impairment for which service connection may be granted, and thus, the Veteran’s current complaints of pain constitute new and material evidence for possibly substantiating the current disability element.  See Saunders v. Wilkie, 886 F.3d 1356, 1363-64 (Fed. Cir. 2018) (holding that the term “disability” refers to the functional impairment of earning capacity, rather than the underlying cause of the impairment, and pain alone may be a functional impairment).  Additionally, while not clearly ascertainable, medical evidence of record shows some indication of possible inflammatory arthritis of the shoulders.  See May 2007 VA examination.

Therefore, the Veteran’s claims are reopened based on the receipt of new and material evidence.  See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  The reopened claims are further addressed in the remand section.  

3. Whether new and material evidence has been received to reopen the previously denied claim of service connection for a skin disability.

The September 2003 rating decision also denied the Veteran’s skin disability claim, this one on the basis that his skin disability is not considered an “undiagnosed illness” pursuant to 38 C.F.R. § 3.317, and on the lack of evidence of an in-service event.  The Veteran was notified of the decision by letter dated in September 2003, which was mailed to the then current mailing address of record.  No new and material evidence or notice of disagreement (NOD) was received within one year of the issuance of the September 2003 rating decision.  As the Veteran did not perfect an appeal as to the decision, that rating decision is final.  See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302(a), 20.1103.

In the December 2013 rating decision, the RO denied the Veteran’s January 2013 petition to reopen his claim of service connection for a skin disability because VA was not in receipt of any new and material evidence in support of the claim.  However, the Board notes that in July 2006, VA providers assessed the Veteran’s skin conditions as rashes and other “nonspecific” skin eruptions.  See also December 13, 2007 Statement in Support of Claim (I also had been treated for strange rashes on my arms and face). 

Given the Veteran’s service in Southwest Asia (SWA) and the potential applicability of the provisions set forth in 38 C.F.R. § 3.317, evidence of “non specific” skin eruptions constitutes new and material evidence in consideration of the particular circumstances of this case and the claim is reopened accordingly.  See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  The reopened claim will be further addressed in the remand section.

4. Whether new and material evidence has been received to reopen the previously denied claim of service connection for a left knee disability.

5. Whether new and material evidence has been received to reopen the previously denied claim of service connection for a right knee disability. 

By a September 2003 rating decision, the claims of service connection for left and right knee disabilities were denied on the basis of no current disability and no in service event or injury.  The Veteran was notified of the decision by letter dated in September 2003, which was mailed to the then current mailing address of record.  No new and material evidence or notice of disagreement (NOD) was received within one year of the issuance of the September 2003 rating decision.  As the Veteran did not perfect an appeal as to the decision, that rating decision is final.  See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302(a), 20.1103.

In September 2008 and December 2013 rating decisions, the RO denied the Veteran’s March 2008 and January 2013 petitions to reopen his claim of service connection for bilateral knee disabilities because VA was not in receipt of any new and material evidence in support of the claims.  The Board notes, however, that VA treatment records show the Veteran has been diagnosed with right knee sprain (see October 4, 2006 progress notes); and there is evidence of bilateral knee inflammatory arthritis (see May 2007 VA examination) and bilateral knee arthrosis (see February 2009 progress notes).  See also December 2009 VA examination report (injured both knees after forced participation in hazing ritual sometime between 1991-1992).  The foregoing constitutes new and material evidence as to the current disability and in-service elements of the claim.  Accordingly, the claims are reopened.  See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  The reopened claims will be also addressed in the remand section. 

6. Whether new and material evidence has been received to reopen the previously denied claim of service connection for OSA. 

By a May 2005 rating decision, the claim of service connection for obstructive sleep apnea was denied on the basis of no causal link between his service connected PTSD and OSA.  The Veteran was notified of the decision by letter dated in June 2005, which was mailed to the then current mailing address of record.  No new and material evidence or notice of disagreement (NOD) was received within one year of the issuance of the May 2005 rating decision.  As the Veteran did not perfect an appeal as to the decision, that rating decision is final.  See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302(a), 20.1103.

In a December 2013 rating decision, the RO denied the Veteran’s January 2013 petition to reopen his claim of service connection for OSA, to include on a secondary basis, because VA was not in receipt of any new and material evidence in support of the claim.  Thereafter, in August 2017 the Veteran submitted a private medical opinion from Dr. H.S. indicating that contemporaneous medical research and literature has shown that PTSD and other psychiatric disorders are “commonly associated” with OSA.  Alternatively, the physician cited medical research that supports a direct link between OSA and the Veteran’s service-connected bronchitis.  The Board finds that new and material evidence has been received to reopen the previously denied claim.  See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).    

7. Whether new and material evidence has been received to reopen the previously denied claim of service connection for a heart disorder. 

Ultimately, by a March 2010 rating decision, the claim of service connection for a heart disorder was denied on the basis of no current disability and no nexus to his military service.  The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record.  A timely notice of disagreement (NOD) was received in March 2010.  A Statement of the Case (SOC) was issued in September 2010.  No new and material evidence or a VA Form 9 to perfect the appeal was received within sixty days from the September 2010 SOC or within one year of the issuance of the March 2010 rating decision.  As the Veteran did not perfect an appeal as to the decision, that rating decision is final.  See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302(a), 20.1103.

In a December 2013 rating decision, the RO denied the Veteran’s January 2013 petition to reopen his claim of service connection for a heart disorder because VA was not in receipt of any new and material evidence in support of the claims.  During the pendency of the appeal, the Veteran submitted a private medical opinion from Dr. H.S. indicating, among other things, that the Veteran’s congestive heart failure is secondary to his service-connected hypertension, which, in turn, has been found to be secondary to his service-connected PTSD.  See private medical opinion from Dr. H.S. received on August 10, 2017.  This secondary theory constitutes new and material evidence for possibly substantiating the Veteran’s claim.  Therefore, the claim is reopened.  See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).     

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  A veteran seeking compensation under these provisions must establish three elements: “(1) the existence of a present disability; (2) 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.”  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury.  See 38 C.F.R. § 3.310.

When there is approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Analysis

8. Service connection for OSA, to include as secondary to service-connected PTSD and/or bronchitis.

The Veteran contends that service connection for OSA must be warranted as it is secondary to his service-connected PTSD.  Alternatively, the Veteran contends that his OSA must also be considered as secondary to his service-connected bronchitis.  See February 28, 2005 lay statement; see also August 12, 2020 attorney’s brief.  

Initially, the Board notes that the Veteran has a current diagnosis of OSA.  See February 11, 2004 Sleep Study from Medical Center Hospital; see also February 2019 VA examination.  As such, the current disability element of the claim has been established.  

Thus, the remaining question is whether the Veteran’s OSA is proximately due to or the result of his service-connected PTSD or his service-connected bronchitis.  Relevant to this question, the Board notes that obesity is not a disability for purposes of VA benefits; hence, the onset of obesity cannot qualify as an in-service “event” for the purposes of establishing service connection or cannot be the subject of service connection.  See VAOPGCPREC 1-2017 (Jan. 6, 2017); see also Marcelino v. Shulkin, 29 Vet. App. 155 (2018).  However, obesity may in fact act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a).  Id. 

VA treatment records reflect that in March 2005, the Veteran requested a pulmonology evaluation as he was concerned about his breathing problems, to include his sleep apnea.  The VA provider noted that the Veteran was oriented to lose weight and engage in diet and exercise.  In February 2010, private pulmonary laboratory results from Hendrick Medical Center reflect that it was difficult to get reproduceable pulmonology results as the Veteran’s was on morphine for his fibromyalgia.    

The Veteran was afforded a VA examination in March 2005.  The VA examiner noted that the Veteran is service-connected for bronchitis and other respiratory problems.  The Veteran reported that he first experienced OSA symptoms in 1991, but it was not until 13 years later that a formal diagnosis was made.  The VA examiner concluded that the contributing factors for the Veteran’s OSA include a “history of low grade respiratory infections,” but no due to PTSD.  The examiner added that the major contributing factor for the Veteran’s OSA symptoms is being grossly overweight for his height with subsequent pressure on the diaphragm during nighttime.  

A February 2010 VA respiratory examination report reflects that the Veteran experiences chronic bronchitis accompanied by productive cough multiple times a day, shortness of breath (SOB) while being active, and that the Veteran’s treatment includes oxygen.  The Veteran was then afforded a VA General examination in May 2011.  Under the pulmonary history, the VA examiner indicated that the Veteran has a history of productive cough, wheezing, non-anginal chest pain and sleep apnea.  

In August 2017, the Veteran submitted an October 2016 private medical opinion from Dr. H.S.  The physician indicated that the Veteran is service-connected for PTSD, fibromyalgia, and bronchitis.  With respect to the Veteran’s bronchitis and its possible role as the underlying disability for his OSA, the examiner indicated that as bronchitis is an inflammation of the lining of the bronchial tubes, which carry air to and from the lungs, medical research supports a direct link between breathing impairments such as bronchitis and how they relate to the development of OSA due to an individual’s breathing impairments while sleeping.  See Choudhart, S. Et. Al., Sleep effects on breathing and respiratory disease. Lung India. 2009 Oct-Dec; 26(4): 117-122.  With respect to the Veteran’s PTSD and its possible role as another possible underlying disability for the Veteran’s OSA, the private examiner indicated that contemporaneous research has shown that PTSD and other psychiatric disorders are commonly associated with OSA.  To that effect, the physician indicated that a recent study found an arousal-based mechanism initiated by posttraumatic stress that promotes the development of OSA in trauma survivors.  Lastly, the examiner noted that another study found that with CPAP treatment, both OSA and PTSD symptoms decreased, providing further evidence of the co-morbidity of these conditions.  See Sharafkhaneh, A. Et. Al., Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort. J Sleep, 2005; 28:11 1409.  In addressing the March 2005 VA examiner’s opinion against a causal relationship between PTSD and OSA, the private examiner indicated that the connection between PTSD and OSA was just being medically explored at the time of the VA examination.  Now, with respect to the Veteran’s service-connected fibromyalgia and its possible role as another cause for the Veteran’s OSA, the examiner indicated that the Veteran is prescribed morphine which is a narcotic pain medication used to treat the pain caused by his fibromyalgia.  To that effect, the examiner indicated that opioids result in increased respiratory pauses, irregular breathing, and shallow breaths.  He added that medical literature states abnormal sleep architecture has been reported during the process of opioids induction, maintenance and withdrawal and that opiates are the most commonly used opioids and are recognized as respiratory depressants that cause abnormal awake ventilator responses to hypercapnia and hypoxia.  See Want, Et. Al., Opioids, sleep architecture and sleep-disordered breathing. February 2007, Vol. 11, issue 1, Pages 35-46.  In sum, the private physician concluded that it is as likely as not that the Veteran’s service-connected PTSD, bronchitis, and fibromyalgia have caused and permanently aggravated his sleep apnea.   

The Veteran was afforded a second VA OSA examination in February 2019.  The VA examiner opined that the claimed disability was less likely than not incurred in or caused by the Veteran’s service.  In support of his opinion, the examiner stated that while the Veteran has a current diagnosis of OSA, this condition was not shown in service.  Additionally, the examiner indicated that obesity, as in the Veteran’s case, is a risk factor for chronic diseases such as respiratory problems. 

The Board has reviewed and considered the evidence in favor and against this claim.  As to the February 2019 VA opinion, the Board notes that while the examiner provided a direct nexus opinion, he failed to provide an opinion of service connection on a secondary basis; the actual contention in the present claim.  While the March 2005 VA opinion indicated that a relationship between the Veteran’s sleep apnea and his PTSD does not exist, the Board finds that the October 2016 private medical opinion is more persuasive and assigns it probative value since, when considered along with medical literature reviewed and submitted in support of the opinion, it raises a reasonable doubt that the Veteran’s sleep apnea was partially caused by his service-connected PTSD.  Moreover, the March 2005 VA examiner, and the October 2016 private examiner, both agreed that the Veteran’s respiratory problems, such as his service-connected bronchitis, contributed to the development of the Veteran’s OSA.  As to the Veteran’s service connected fibromyalgia, the October 2016 private examiner also found that, according to medical literature, the Veteran’s constant use of opioids eventually acted as respiratory depressants which contributed to the development of his OSA.  This theory appears to find support by the February 2, 2010 private pulmonary lab results which reflect that reproductible pulmonology results could not be obtained as the Veteran was on morphine for his pain.    

With respect to the Veteran’s obesity, despite additional competent medical evidence of record suggests that the Veteran’s obesity could potentially maintain a relationship with the development of his OSA, there is not a definite medical answer at this time to confirm the foregoing suggestions.  In fact, the March 2005 VA examiner who suggested the connection between obesity and OSA also acknowledged the Veteran’s respiratory problems contributed to the development of OSA.  Accordingly, the Board has found that the remaining medical evidence is still at least to an equipoise standard as to whether his OSA is proximately due to or caused by his PTSD, bronchitis, and the use of opioids to treat his fibromyalgia, all three conditions service-connected.      

As such, the Board determines that the evidence has reached a level of equipoise and all reasonable doubt is resolved in the Veteran’s favor.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  Thus, the Board finds that his sleep apnea was caused by and is therefore proximately due to his service-connected PTSD and bronchitis.  Hence, service connection for sleep apnea, as secondary to service connected PTSD and bronchitis, is warranted. 

Increased Ratings

General Criteria

Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries.  The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations.  38 U.S.C. § 1155.  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.

Where there is a question as to which of two evaluations shall be applied, 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3.

9. Whether a higher rating in excess of 70 percent for PTSD is warranted.

PTSD Rating Criteria

VA evaluates PTSD under the General Rating Formula for Mental Disorders provided in 38 C.F.R. § 4.130, DC 9411.  Under that DC:

A 10 percent rating is assigned when there is occupational and social impairment due to mild and transient symptoms which decrease work efficiency and ability to perform occupational tasks only during episodes of significant stress, or symptoms controlled by continuous medication. 

A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation).

A 50 percent rating is assigned when symptoms such 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity.

A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, including work, school, family relationships, 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 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.

A 100 percent is warranted where 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 or place; memory loss for names of close relatives, own occupation, or own name.

The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation.  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  See also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists).

Analysis

Through his procedural appeal documents and statements, the Veteran contends that a higher rating in excess of 70 percent is warranted for his PTSD as symptoms have gradually caused him significant social and occupational impairment, resulting in social distancing, concentration problems, inability to establish and maintain effective relationships, and suicidal ideation. 

The Board has considered the Veteran’s statements, the relevant treatment records and the VA examination afforded in October 2017.  After engaging in a holistic analysis assessing the severity, frequency and duration of the signs and symptoms of the Veteran’s PTSD throughout the appeal period, recognizing that the symptoms listed in the rating criteria are non-exhaustive examples and when looking at the effects determining the impairment level, the Board finds that his PTSD his PTSD has manifested in no worse than occupational and social impairment with deficiencies in most areas, including work, family relationships, judgment, thinking or mood.  That level of impairment is contemplated by the already assigned 70 percent rating.  The next highest 100 percent level is not approximated since a total occupational and social impairment has not been shown.  See Vazquez-Claudio, 713 F.3d at 117 (Fed. Cir. 2013); Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); Mauerhan, 16 Vet. App. at 442.  

In August 2017, the Veteran submitted a private functional capacity evaluation completed in November 2016 by Dr. R.W., a clinical psychologist.  For purposes of PTSD evaluation, the report reflects that the Veteran experienced problems with focus and concentration due to his depressed mood and anxiety problems.  The examiner also indicated that at least once a month the Veteran would react with anger or in “an angry manner” but not would actually become violent.  

The Veteran was afforded a VA PTSD examination in November 2017.  The examination report reflects that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and mood. This characterization of the level of impairment corresponds to the currently assigned 70 percent rating.  The examiner noted that the Veteran is less involved socially and that he finds he does not have much in common with others.  However, the examiner pointed out that he is still married and attends church pretty often.  The examiner further noted that the Veteran has had at least one episode of suicidal ideation within the last year; however, without a plan or intent.  The examiner acknowledged symptoms such as depressed mood, anxiety, markedly diminished interest or participation in significant activities, feeling of detachment and estrangement from others, persistent inability to experience positive emotions, hyper-vigilance, exaggerated startle response, problems with concentration, mild memory loss, chronic sleep impairment, flattened affect, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and passive suicidal ideation that cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.  These symptoms, again, more nearly approximate the criteria required for the currently assigned 70 percent rating.    

VA treatment records dated from May 2017 to April 2020, reflect that medication to control his mental health symptoms have kept the Veteran’s depression and PTSD symptoms stable.  In fact, during a February 26, 2018 primary care visit, the Veteran denied low mood, agitation, anxiety, homicidal thoughts or suicidal ideation or intent.       

The Board notes that the relevant medical evidence of record, to include the November 2016 private functional assessment and the November 2017 VA examination report, do not include findings or report of symptoms such as gross impairment in thought processes, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time and place, or memory loss for names of close relatives, own occupation, or own name.  Moreover, the Veteran has been married for many years and acknowledged to visit his church very often.  No reasonable reading of total social impairment, which is a requirement for a 100 percent rating, would encompass being married and willingly attend church on a regular basis.  Rather, the social level of impairment is contemplated by the 70 percent rating for which there is an inability to establish and maintain effective relationships.  The Board has weighed all the evidence and finds that the November 2017 VA examination is persuasive and probative towards the severity level of the Veteran’s PTSD.  The VA examiner conducted and interviewed with the Veteran, performed a medical status examination and reviewed his history.  This is particularly so when more recent VA treatment records confirm that indeed, the Veteran’s PTSD and associated depression are currently stable.      

In light of the foregoing and the other evidence of record, the frequency and severity of the manifestations of the Veteran’s PTSD have resulted in impairment equating to no more than the 70 percent level.

As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and a higher rating in excess of 70 percent for service connected PTSD and associated symptoms is not warranted.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim.  See 38 C.F.R. § 3.159(d). 

10. Whether a higher rating in excess of 40 percent for fibromyalgia is warranted.

Fibromyalgia Rating Criteria

The Veteran fibromyalgia has been assigned a disability rating under DC 5025 of 38 C.F.R. § 4.71a.  Fibromyalgia is evaluated as widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud’s-like symptoms based on the frequency and severity of these symptoms.

A 10 percent is warranted when the disability requires continuous medication for control;

A 20 percent is warranted for symptoms that are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time; and

A 40 percent is warranted for symptoms that are constant, or nearly so, and refractory to therapy.  40 percent is the maximum schedular rating for fibromyalgia. 

Analysis

The Veteran is currently assigned a 40 percent rating for his service-connected fibromyalgia which, as noted above, is the maximum schedular rating for fibromyalgia.  Thus, a higher schedular rating is not permissible. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).  The question for the Board is, therefore, whether extraschedular consideration for a rating in excess of 40 percent is warranted in the present case. 

By way of background, the present claim stems from a May 2014 informal claim raised by an Appellate brief.   However, at that time of the Brief the Veteran’s attorney did not raise any specific contentions as to why, or what unique disability picture or circumstances rendered the Veteran entitled to a higher rating in excess of a 40 percent rating, the maximum benefit allowed under DC 5025.  The attorney’s brief is limited to indicate that VA should consider any other applicable diagnostic code that would also acknowledge the functional loss of motion and movement of the Veteran’s joints. 

The United States Court of Appeals for Veterans Claims has held that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The first element requires the Board to determine whether the “evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.” Id.  This requires the Board to compare a veteran’s specific symptoms and their severity with those contemplated by the rating schedule.  King v. Shulkin, 29 Vet. App. 174, 178-79 (2017).  If the Board determines that a Veteran’s symptoms or their severity is not contemplated by the rating schedule, the second element requires the Board to “determine whether the claimant’s exceptional disability picture exhibits other related factors,” such as marked interference with employment or frequent periods of hospitalization.  Thun, 22 Vet. App. at 116.  Finally, if the first two elements are met, the final element mandates that the Board refer the claim to the Director of Compensation Service for a determination about whether an extraschedular rating is warranted. Id.  See also 38 C.F.R. § 3.321 (b). 

A review of the medical records in connection with this claim reflect that the Veteran’s fibromyalgia manifests by symptoms such as joint pain in the knees, ankles, shoulders, back, neck, to include pain on motion (see May 2007 VA examination); muscle pain, stiffness, fatigue, irritable bowel syndrome and sleep problems (see June and August 2007 statements in support of claim); depression and paresthesias (see January 2011 VA examination); and widespread pain in the muscles and joints (see November 2017 CVA examination) which altogether, have been described by VA examiners as constant or near constant and they interfere with the Veteran’s ability to perform physical activity.  First, the Board notes that these symptoms are all contemplated under the provisions set forth under DC 5025 for a maximum 40 percent rating.  As to the Veteran’s attorney argument in reference to the Veteran’s loss of motion and movement, the Board notes that such symptomatology is already encompassed under the “stiffness” set forth in the rating criteria.  See https://www.merriam-webster.com/dictionary/stiff which defines stiffness as “lacking in suppleness or flexibility; impeded in movement.”  Moreover, these symptoms and their severity do not represent an exceptional disability picture that render the available and applicable schedular evaluation inadequate.  As such, the extraschedular process is not triggered here.  See Morgan v. Wilkie, 31 Vet. App. 162, 167-68 (2019) (noting that VA’s duty to maximize benefits requires it to first exhaust all schedular alternatives for rating a disability before the extraschedular analysis is triggered).  

Here, the Board finds that the first Thun element is not satisfied for the claimed disability, as the symptoms and their severity described by the Veteran are contemplated by the rating criteria.  In sum, there are no reports or evidence of other symptoms not contemplated by the corresponding rating criteria.  Thus, in the present case the Board finds that extraschedular consideration is not warranted.  See Spellers v. Wilkie, 30 Vet. App. 211 (2018) (Noting that under Thun, there are three necessary elements of an extraschedular rating analysis and if either the first or second elements are not met, then referral for extraschedular consideration is not appropriate).   

In reaching the above-stated conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against a higher rating on an extraschedular basis, that doctrine is inapplicable.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim.  See 38 C.F.R. § 3.159(d). 

11. A TDIU prior to August 17, 2016.

Legal Criteria

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more 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). Marginal employment shall not be considered substantially gainful employment. Id. 

Marginal employment is not considered substantially gainful employment and is deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold.  Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop.  38 C.F.R. § 4.16(a); see Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016); Cantrell v. Shulkin, 28 Vet. App. 382 (2017).  

In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to:

The veteran’s history, education, skill, and training;

Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and

Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity.

Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).

Analysis

At the outset, the Board notes that a TDIU is in effect from August 17, 2016.  The Veteran contends that a TDIU is warranted for the period prior to that date; however, without supporting arguments or a specific contention.  See November 8, 2018 NOD; see also October 7, 2019 VA Form 9. 

As previously noted, the present claim stems from a May 13, 2014 informal claim for a higher rating for service-connected fibromyalgia.  See Rice; see also April 22, 2011 statement in support of claim (The veteran asserts that he was not only forced to resign from his position as a correctional officer due to his fibromyalgia associated pain, but his fibromyalgia symptoms continued to interfere with his functional ability in subsequent jobs).  As such, the question for the Board is whether the Veteran’s service-connected disabilities precluded him from securing or maintaining substantial gainful employment at any time, but only from May 13, 2014.   

The Veteran has a combined rating evaluation of 90 percent effective February 25, 2010, with at least one disability rated at 40 percent.  From that date, the Veteran is service-connected for posttraumatic stress disorder (PTSD) rated at 70 percent; fibromyalgia rated at 40 percent; bronchitis rated at 30 percent; and a noncompensable hypertension disorder.  Accordingly, the criteria for a TDIU on a schedular basis is met for the period in question.  See 38 C.F.R. § 4.16(a). 

First, during a December 2013 VA thoracolumbar spine examination, the VA examiner noted that the Veteran was in fact employed full-time and was able to perform his full-time job at the Texas Parks and Wildlife department.  A May 5, 2016 VA progress note reflects that the Veteran reported knee issues when walking in uneven surfaces at work.  However, the VA provider noted that his knees were doing better as the Veteran had engaged in strengthening exercises, was walking more and had been losing weight.      

In the August 2017 VA Form 21-8940 (Application for Increased Compensation Based on Individual Unemployability), the Veteran reported the he last worked full-time as a Labor Maintenance Technician for the Texas Parks and Wildlife Department on August 16, 2016, a position he held since March 11, 2013.  The Veteran noted in his signed TDIU application that it was on August 16, 2016, that his service-connected disabilities rendered him too disabled to work as he could no longer perform the duties his job entailed.  

The Board notes that in a claim for disability insurance benefits from the Social Security Administration (SSA), the Veteran indicated that he was terminated from his job with the Texas Parks and Wildlife in August 2016 “for refusing to follow directions.”  The Veteran noted that up that that date, he struggled to accomplish the required tasks of his job, which consequently resulted in his termination.  See October 4, 2019, SSA Form 3373.  

As previously stated, a TDIU requires evidence that the Veteran is unable to pursue a substantially gainful occupation due to his service-connected disabilities.  The Board has reviewed the evidence of record and, for the reasons set forth below, finds that for the period prior to August 17, 2016, the Veteran’s service-connected disabilities did not preclude him from securing or following substantially gainful employment.  

The Board has considered the Veteran’s claim as to whether a TDIU is warranted prior to August 17, 2016.  Although the claim for a TDIU stems from a May 13, 2014 increase rating claim for his fibromyalgia, the evidence reflects that such entitlement is not warranted as the Veteran was employed full-time until August 16, 2016, as he self-acknowledged in the August 2017 TDIU application. 

Notwithstanding the above, and on further consideration, the Board notes that marginal employment shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  Marginal employment may also be held to exist, on a fact found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.  Consideration shall be given in all claims to the nature of the employment and the reason for termination.  See Cantrell v. Shulkin, 28 Vet. App. 382, 388 (2017).  In other words, “a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case.”  See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016).  Regardless of the method, “if the evidence or facts reflect that a Veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if [his or her] service-connected disabilities are the cause of that incapability.”  Id.  

Here, marginal employment does not exist on an objective basis.  To that effect, while the Veteran did not report specific earnings per month in his TDIU application, SSA records received in July 2019 reflect that from March 2013 to August 2016, the Veteran received earnings in the amount of $2,812 per month.  See SSA Disability Report, exhibit 2E.  This represents yearly earnings in the amount of $33,744.  According to the U.S. Department of Commerce, Bureau of the Census, the poverty threshold for one person was $11,670 in 2014; $11,770 in 2015; and $11,880 in 2016.  As noted, while there is evidence that the Veteran was terminated from his work due to his service-connected disabilities in 2016, marginal employment on the basis of an income less than the poverty threshold cannot established.  As such, the question turns as to whether the evidence in the present case reflects employment in a protective environment in order to establish marginal employment on a facts found basis.

Here, the evidence of record shows that prior to his termination in 2016, the Veteran was able to maintain his job despite the Veteran’s statements as to the difficulty in performing the required tasks.  Therefore, the evidence does not establish a protected work environment.  This finding is supported by the December 2013 VA examination report, which indicated that the Veteran was able to work full-time without the mention of any concessions by his employer.  Moreover, neither the Veteran nor his representative have advanced at any time throughout the appeal period that the Veteran was working in a protected environment.  While the record reflects some limitations occasioned by his service connected disabilities prior to August 17, 2016, to include that the Veteran’s termination of his employment in 2016, during his employment the Veteran was not only able to perform duties in a substantially gainful position until 2016, but also exceeded the poverty thresholds set forth above.  With respect to the loss of work-time and other work impairments during this period, the record reflects that he was adequately compensated by the schedular rating then in effect for any loss of earning capacity. 

Therefore, the Board finds that prior to August 17, 2016, the preponderance of the evidence supports that the Veteran’s service connected disabilities did not preclude him from securing or following substantially gainful employment.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  Thus, a TDIU prior to August 17, 2016, is not warranted.       

Although the Board is remanding another claim for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim.  See 38 C.F.R. § 3.159(d).

12. DEA benefits prior to August 17, 2016.

Basic eligibility for Chapter 35 benefits for the child or surviving spouse of a veteran may be established if: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service connected disability was in existence at the date of the veteran’s death; or (4) the veteran died as a result of a service-connected disability.  38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807.

The Veteran contends that entitlement to an earlier effective date prior to August 17, 2016, for the award of DEA benefits under Ch. 35, is warranted as his TDIU should have been assigned prior to that date.  As the Board has determined that an earlier date is not warranted for a TDIU, an earlier date for DEA benefits is also not warranted.  Therefore, DEA benefits prior to August 17, 2016, are not warranted.

Although the Board is remanding another claim for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim.  See 38 C.F.R. § 3.159(d).

REASONS FOR REMAND

13. Service connection for a right shoulder disability.

14. Service connection for a left shoulder disability

The Veteran contends that service connection for a bilateral shoulder disability is warranted as it is related to his military service.  The Veteran reports a history of shoulder bursitis and attributes his bilateral shoulder disability to “minor injuries” sustained while on active duty.  See July 7, 2003 VA examination report. 

STRs reflect reports of painful joints throughout the Veteran’s service.  See June 1990; July 1991; and September 1992 dental progress notes.  During a September 1993 separation medical examination, the Veteran reported a painful or trick shoulder or elbow.  While the examiner noted a history of shoulder bursitis, he indicated that the condition appeared to be within normal limits at the time of separation.    

The Veteran was afforded a general VA Joints examination in July 2003 in connection with his initial claim.  The Veteran reported a history of bursitis of the shoulders with a history of minor injuries while on active duty.  The VA examiner concluded that while the Veteran experiences chronic joint pain on both shoulders, x-rays taken during the exam did not demonstrate significant bony degenerative changes and that the joint spaces were intact.  The examiner added that there is no history of an obvious injury during service.  

Post-service treatment records reflect that the Veteran has complained for several years of pain and stiffness, including his shoulders.  See March 2007 VA progress notes.  During a May 2007 VA examination in connection with the Veteran’s claim of service connection for fibromyalgia, the VA examiner noted objective evidence of bilateral shoulder pain and evidence of inflammatory arthritis in several joints, to include the shoulders.  The VA examiner diagnosed the Veteran with fibromyalgia which manifests by multiple joint pain in the Veteran’s ankles, knees, back, shoulders and neck.  

As noted above, the Veteran’s bilateral shoulder pain has been medically attributed to his fibromyalgia, for which an award of service connection is in effect.  However, the medical evidence of record suggests the “possible” existence of a separate and distinct bilateral shoulder disability (i.e. inflammatory arthritis), and for which a final diagnosis and a medical opinion have not yet been provided.  Additionally, while the July 2003 VA examiner indicated “no obvious injury during service,” during a December 2013 VA thoracolumbar spine examination the Veteran reported that in 1991, during sea maneuvers, his ship rolled while he was on a ladder and fell on the ground receiving a back contusion.  Although the Veteran has not expressly attributed his bilateral shoulder pain to this in-service event, when considered along with the Veteran’s reports of joint pain throughout his service, which also include his shoulders, it raises a possible nexus theory that should be addressed on remand.  Furthermore, the Board notes that while the Veteran’s shoulders have been occasionally discussed in other VA examinations (see July 2003 general joints VA examination and May 2007 VA fibromyalgia examination), an individual VA examination to specifically assess his claimed bilateral shoulder disability has not been afforded.  

Given that STRs account for multiple in-service complaints of joint pain, which include his shoulders, the Veteran’s lay statements as to the onset of his bilateral shoulder pain during service, post-service treatment records showing some indication of a bilateral shoulder disability, to include inflammatory arthritis, and the fact that he has not yet received an individual VA examination to properly assess the claimed disabilities, an individual VA examination is warranted with a medical opinion to determine the etiology and clarify the nature and extent of the Veteran’s bilateral shoulder disability.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).    

15. Service connection for a left knee disability

16. Service connection for a right knee disability

The Veteran asserts that service connection for his bilateral knee disabilities is also warranted as he injured his knees while on active duty. 

The Veteran’s bilateral knee pain has been partially attributed to his service connected fibromyalgia.  In a July 2003 VA joints examination, the VA examiner acknowledged the Veteran experiences chronic joint pain in both knees.  Radiography reports at the time did not reflect osseous abnormalities.  However, additional medical evidence of record shows that separate diagnoses, besides chronic pain, have been provided for his knees.  See October 4, 2006 VA progress notes (right knee sprain); February 26, 2007 VA progress notes (pain and stiffness of the joints, including his knees); April 30, 2007 VA psychology note (torn right knee meniscus); May 11, 2007 VA examination (inflammatory arthritis of the joints, including his knees); November 28, 2007 VA progress notes (complaints of chronic knee pain for 15 years); January 9, 2009 VA x-ray report (right knee abnormality; attention needed); February 2, 2009 VA progress notes (bilateral knee arthrosis); December 10, 2009 VA fibromyalgia examination (bilateral knee instability (giving away), edema, stiffness and degenerative joint disease (DJD)); and May 5, 2011 VA general examination (bilateral knee swelling).  

STRs show that in December 1990, the Veteran sought treatment for a left shin trauma.  The health provider noted tenderness to light palpation over any part of his left tibia.  During his September 1993 separation medical examination, the Veteran ticked the boxes for swollen and painful joints and arthritis, rheumatism, or bursitis.  The separation examination does not specifically mention knee problems.  

Post-service treatment records from Cogdell Memorial Hospital reflect that in February 2001, the Veteran was involved in a motor vehicle accident (MVA) in which he injured his left knee with the arm of the window crank.  See February 26, 2001 emergency treatment report.  In addition, an October 4, 2006 VA progress note reflects that the Veteran sought treatment for right knee pain that had been present for a month but worsened after he fell down a week earlier.  An April 2007 treatment note from the Veteran’s private physician, indicates that he has had pain in his right knee for several years and that the Veteran has a history of a twisting injury to his knee of remote origin, but has been bothering somewhat for the last couple of years.  The Veteran was diagnosed with a meniscus tear.  See April 25, 2007 treatment note from Dr. R.P.H.   

In a lay statement received in March 2008, the Veteran indicated that he first injured his right knee during Operation Desert Storm while aboard the USS Vreeland.  The injury was assessed as a right knee sprain and he was prescribed pain medication and light duty for 2 days.  The Veteran also asserts that thereafter, while carrying onboard heavy equipment from the pier to his ship at Mayport Naval Station, he experienced a sharp stabbing pain in his right knee, and he fell down.  He asserts that he was taken to the Mayport Clinic, given intravenous pain medication and bed rest for 3 days.  He also indicated that at some point between July 1992 and October 1993, while aboard the USS Underwood, while running during a drill through a passageway with equipment his boot got caught up and he fell down on his knees very hard.  The Veteran indicated that during his separation medical examination in 1993, he reported to the examiner the pain he was experiencing on both knees.  However, no treatment was provided.  Shortly thereafter he was separated from service.  In the statement the Veteran indicated that following his discharge from service in 1993, he sought treatment for his bilateral knee pain.  He added that x-rays ordered by his private physician at the time did not reveal any breaks or fractures.  However, he asserts that he was told by his physician that the problem could be related to cartilage damage. 

In a separate lay statement received in April 2009, the Veteran’s mother indicated that upon his release from the Navy she has witnessed her son’s health problems, to include his knees which “are the worst.”    

During a December 2009 VA fibromyalgia examination, the Veteran also reported that he developed severe knee pain after being forced to participate in a hazing ritual in 1991, which consisted of nonstop crawling on a steel deck for approximately 750 feet on his hands and knees.  The examination report reflects that the condition has progressively gotten worse since its onset.  

The Board notes that again, although the Veteran’s bilateral knee symptoms have been discussed in other VA examinations (see July 2003 Joints exam; see May 2005 and December 2009 VA fibromyalgia examinations; see also May 2011 VA general examination), an individual VA examination to specifically assess the foregoing claimed disabilities has not been afforded. 

Given that STRs show some indication of a possible painful and swollen joint problem which may include the Veteran’s knees, his statements as to the multiple in-service events, onset and progression of his disability, post-service treatment records showing some indication of a bilateral knee disability separate and distinct from his fibromyalgia, and the fact that he has not yet received an individual VA examination to properly assess the claimed disabilities, an individual VA examination is warranted with a medical opinion to determine the etiology and clarify the nature and extent of the Veteran’s bilateral knee disability.  See McLendon, 20 Vet. App. 79.          

17. Service connection for a back disability. 

The Veteran seeks service connection for a back disability as he asserts it is related to his military service. With respect to this claim, although a June 1989 entrance medical examination reflects that the Veteran appeared to be sound at entrance, the Board notes that the provisions set forth in 38 C.F.R. § 3.306, with respect to preexisting conditions, are also of potential applicability.    

To that effect, STRs reflect that in September 1993 the Veteran sought emergency treatment for lower and upper back pain following a back twist while carrying furniture.  The health provider assessed his symptoms as musculoskeletal sprain/muscle spasm.  The Veteran was prescribed Motrin 800 Mg and Valium for pain.  The provider also noted, per the Veteran’s report, that there is a history of back pain due to weightlifting in high school for which he had been seen by a back specialist for complaints of numbness and tingling in both feet.  Thereafter, the Veteran continued to report pain and tightness in the mid lumbar spine area that radiates to his mid upper back.  See March 28, 1993 follow up notes.  During his September 1993 separation medical examination, the Veteran reported “recurrent back pain” which the examiner described as “none currently.”      

Post-service treatment records reflect multiple complaints of low back pain.  See February 26, 2007 VA progress notes (complaints of pain and stiffness in multiple joints, to include his back); May 11, 2007 VA examination (symptoms of fibromyalgia include back pain); August 23, 2007 (chronic low back pain); May 5, 2011 VA General examination (intense low back pain).   

The Veteran was afforded a VA thoracolumbar spine examination in December 2013.  The examination report contains diagnoses of a back strain (1990) and lumbar contusion/strain (1991).  The Veteran reported that he first injured his back while stepping of a ship in 1990.  He also indicated that in 1991, while he was up on a ladder, his ship rolled during sea maneuvers and he fell and landed on his back receiving a contusion.  The VA examiner noted that the Veteran is currently prescribed morphine and codeine to ease his painful joints, including his back.  He also indicated that the Veteran “has had no CT or MRI of his back.”  The examiner opined that the claimed disability was less likely than not incurred in or caused by the claimed in-service injury or event.  In support of his opinion, the examiner indicated that a lumbar sprain/strain is a self-limited diagnosis that is not anticipated to cause a permanent disability.  In support of the opinion, the examiner cited to medical literature and research which indicate that findings such as degenerative disc disease, disk bulging, disk protrusion, disk herniation and foraminal stenosis are “common MRI findings in people without back pain.”  He also added that current literature reflects that strains are usually self-limited and heal within the first 4-6 weeks post injury. 

The Board notes that the December 2013 VA examination and opinion is not adequate to decide the Veteran’s claim.  While the examiner stated that diagnoses such as degenerative disc disease, disk bulging, disk protrusion, disk herniation and foraminal stenosis are “common MRI findings in people without back pain,” in the present case the Veteran has not undergone an MRI or CT, has not been diagnosed with any of the foregoing conditions, and has consistently claimed back pain.  Additionally, the examiner’s opinion appears to have been based solely on the Veteran’s accounts as to the 1990 and 1991 injuries, without consideration of additional evidence in his STRs accounting for similar complaints in 1993 towards the end of his service and his report of “recurrent back pain” noted in his September 1993 separation medical exam.  Moreover, the March 1993 statements from the Veteran as to the possible preexistence of a back disability raises an aggravation theory that has not yet been addressed. 

In light of the above, the Board finds that a remand is warranted for a new VA examination and opinion to determine whether a current disability exists and, if so, to determine its nature and etiology, to include consideration on the basis of service aggravation.    

18. Service connection for a skin disorder. 

The Veteran seeks entitlement to service connection for a skin disorder which he contends had its onset after his service in the Persian Gulf War in 1991.  See November 2007 statement in support of claim. 

Service personnel records (SPRs) reflect that the Veteran worked in the U.S. Navy as a Damage Controlman.  SPRs also show that the Veteran had service in SWA.  As such, the provisions set forth in 38 C.F.R. § 3.317 are of potential applicability to the present case.  

In a July 2003 VA skin examination, the Veteran reported a history of recurring dyshidrotic eczema of both hands.  The Veteran added that he has been experiencing outbreaks for the past 10 years (1993), and that such outbreaks initially occurred while on active duty.  The VA examiner noted that this is believed to be due to recurring exposure to petroleum products, which is a significant factor for onset of eczema, and to which the Veteran was exposed to while in service as part of his duties, and after active duty while employed as a petroleum safety instructor.  While no specific nexus opinion was included in the report, the VA examiner indicated that the Veteran’s complaints are consistent with well-known medical conditions and, therefore, it is not considered an “unexplainable condition.”  In light of the foregoing, in a September 2003 rating decision, the RO denied the benefit sought. 

Nevertheless, VA treatment records has not only referred to the Veteran’s skin disorder as dyshidrotic eczema and seborrheic dermatitis, but also as “nonspecific” skin rashes and eruptions on face, hands, posterior back, shoulders with small areas of excoriation and peeling of the epidermis at bilateral palmar hand.  See July 27, 2006 progress notes; January 9, 2009 progress notes; and May 5, 2011 VA General Medical Examination.  In the November 2007 statement in support of claim, the Veteran indicated that ever since his release from active duty service he has been treated for strange rashes on his arms and face. 

In light of the medical evidence showing some indication of a current skin disorder with nonspecific etiology, the Veteran’s statements as to the onset of his skin disability while in service, and the fact that the July 2003 VA examination report does not contain a specific nexus opinion, the Board finds that a remand is warranted for a VA examination and opinion by a dermatology specialist to clarify whether a current disability exists and, if so, to comment as to the nature and etiology of the claimed skin disorder.          

19. Service connection for a heart disorder, to include as secondary to service connected PTSD and hypertension.  

The Veteran also seeks entitlement to service connection for a heart disorder, to include as secondary to his service-connected PTSD and hypertension. 

VA treatment records reflect that an echocardiogram performed on November 28, 2007, revealed no evidence of congestive heart failure (CHF).  However, a subsequent January 9, 2009 progress note, reflects that the Veteran was on Lasix for CHF.     

A May 2005 VA General Examination reflects that there is no evidence of CHF.  However, a December 2009 VA fibromyalgia examination report indicates that the Veteran was diagnosed with CHF in 2005, for which he was treated with diuretics.  In a subsequent May 2011 VA General examination, the VA examiner stated that while the Veteran requires continuous medication for control of hypertension, no continuous medication is required for a heart disease.  The examiner added that besides hypertension, there is no history a cardiac disease, to include congestive heart failure (CHF).  

In an October 2016 private medical opinion, Dr. H.S. indicated that, according to VA treatment records from the Big Spring VA Medical Center (VAMC), the Veteran takes spironolactone in the mornings for his CHF.  The examiner also added that the Veteran’s PTSD led to his uncontrolled hypertension, which in turn led to his heart conditions.  Accordingly, the physician then opined that based on his experience, interview with the Veteran on October 2016, and review of the medical records and supporting literature, it is at least as likely as not the Veteran’s uncontrolled hypertension aided in the development of and permanently aggravate his CHF. 

The Veteran was afforded a VA heart conditions examination in February 2019.  The VA examiner first indicated that the Veteran does not have or has ever been diagnosed with a heart condition.  However, later in the report indicated that the Veteran has chronic CHF with at least 1 episode of acute CHF within the last year.  The VA examiner also noted the Veteran has a mitral valve condition which was diagnosed in 2003.  The examiner then opined that the claimed condition is less likely than not proximately due to or the result of the Veteran’s service-connected condition as obesity and uncontrolled blood pressure “are the most likely culprits of Congested Heart Failure.”  The examiner ultimately indicated that there is “no evidence that [the] Veteran was ever diagnosed with congestive heart failure in his medical problems list.”   

The Board notes that the medical evidence of record is conflictive as to whether the Veteran has a current diagnosis of heart disorder, other than hypertension.   Accordingly, a remand is warranted for a new VA examination and opinion by a cardiology specialist for clarification as to the current disability element of the claim and to determine the etiology and nature of the claimed disability, to include consideration on a secondary basis as raised by the Veteran’s attorney and the record.   

20. Whether a higher rating in excess of 30 percent for bronchitis is warranted.

The Veteran asserts that the severity of his bronchitis warrants a higher rating in excess of 30 percent.  For the reasons set forth below, the Board finds that a remand is warranted. 

The Veteran was afforded a VA examination in connection with the present claim in November 2017.  The examination report confirms a diagnosis of bronchitis and also included a diagnosis for nonservice-connected chronic obstructive pulmonary disease (COPD).  The report also reflects that the Veteran is on daily bronchodilator therapy as needed and that his current symptoms include daily cough, SOB with activity and humid days, with exacerbations 3 to 4 times per year.  The Veteran’s pulmonary function test (PFT) revealed that his pre bronchodilator FVC was 48 percent predicted; FEV-1 was 32 percent predicted; and his FEV 1/FVC was 65 percent.  His DLCO was not tested.   

First, the Board notes that it is not clear whether such results were provided by only considering the Veteran’s service-connected bronchitis or in combination with his nonservice-connected COPD.  In addition, while the FEV-1 resulted in 32 percent of predicted value, and the FEV-1/FVC resulted in 65 percent, the examiner indicated that it was the FVC percent (FVC%), in this case 48 percent, the value that more accurately reflects the Veteran’s level of disability.  However, the criteria set forth in DC 6600 of 38 C.F.R. § 4.97, does not provide for an evaluation of bronchitis solely based on the FVC predicted percent.  

Moreover, in September 6, 2006, the schedule for evaluating respiratory disabilities was amended to provide that certain respiratory diseases be evaluated by requiring post-bronchodilator studies when pulmonary function tests (PFTs) are done for disability evaluation purposes except when the result of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies “should not be done and states why.”.  Thus, when evaluating based on PFTs, the adjudicator must use post-bronchodilator results in applying the evaluation criteria unless the post-bronchodilator results were poorer than the pre-bronchodilator results.  See 38 C.F.R. § 4.96(d)(4), (5).  

Here, the examiner noted that post-bronchodilator testing was not indicated in the Veteran’s particular case.  However, his explanation was limited to indicate that the FEV-1 was less than 80 percent predicted which confirms a diagnosis of COPD.  

For the reasons set forth above, the Board finds that the November 2017 is not adequate for rating purposes and a remand is warranted for a new VA examination and opinion to clarify the severity and extent of the Veteran’s claimed disability in compliance with the regulations herein discussed.  See Bar v. Nicholson, 21 Vet. App. 21 Vet. App. 303 (2007) (Once VA undertakes to provide the Veteran with a VA examination; it must provide the Veteran with an adequate one and sufficiently detailed to ensure that the Board’s evaluation is a fully formed one).     

In light of the above remanded issues, updated VA treatment records should be obtained. 

The matters are REMANDED for the following action:

1. Obtain any updated VA treatment records dated since April 2020. 

2. Request from the Veteran any outstanding private medical records in connection with all the claims.  

3. Thereafter, schedule the Veteran for a VA examination (or telehealth interview, records review, etc., if an in person examination is not feasible) by an appropriate medical professional with respect to his claim for a right and left shoulder disability, right and left knee disability, and a back disability.  All necessary tests, to include update imaging studies should be conducted. 

(a) With respect to the claimed bilateral shoulder disability:

The examiner should first determine whether the Veteran has a current diagnosis manifested by bilateral shoulder pain (other than fibromyalgia which is already service connected), which may include bursitis, inflammatory arthritis, or pain alone that rises to the level of functional impairment.  If only pain is diagnosed, but there is no functional impairment present, it should be explained why this is so. 

The examiner should then provide an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that any identified disorder manifested by bilateral shoulder pain had its onset during, or is otherwise related to, service.

(b) With respect to the claimed bilateral knee disability:

The examiner is asked to identify any bilateral knee disability (other than fibromyalgia which is already service-connected), which may include status-post meniscus tear of the right knee, bilateral knee degenerative joint disease, bilateral knee arthrosis and/or inflammatory arthritis of both knees.  

The examiner should then provide an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that any identified knee disability had its onset during, or is otherwise related to, service.

Consideration should be given to the Veteran’s statements as to the onset of his knee pain and with respect to the in service events described in the reasons for remand portion of this decision.

(c) With respect to the claimed back disability:  

The examiner should first determine whether the Veteran has a current diagnosis manifested by thoracolumbar spine pain (other than fibromyalgia which is already service-connected), which may include pain alone that rises to the level of functional impairment.  If only pain is diagnosed, but there is no functional impairment present, it should be explained why this is so.  Any clinically or imaging diagnostic testing should be performed. 

(i) The examiner should then provide an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that any identified thoracolumbar spine disability had its onset during, or is otherwise related to, service.

(ii) if no to (i), the examiner should provide an opinion as to whether it is clear and unmistakable (i.e., undebatable from a medical standpoint) that the Veteran had a back disability prior to service.

(iii) If so, the examiner should then provide an opinion as to whether is it clear and unmistakable (i.e., undebatable from a medical standpoint) that the Veteran’s preexisting back disability was not aggravated by service.  

Consideration should be given to: (1) STRs accounting for multiple in-service complaints of back pain and stiffness: (2) the September 1993 emergency treatment report showing some indication of a preexisting condition; and (3) the Veteran’s statements as to an in-service fall from a ladder resulting in a back contusion. 

A complete rationale and explanation should be provided for any opinion reached.

4. Thereafter, schedule the Veteran for a VA examination (or telehealth interview, records review, etc., if an in person examination is not feasible) by a dermatologist with respect to the Veteran’s claim for a skin disorder. 

Based on the examination results and after review of the entire claims file, the physician is asked to address each of the following.

The physician should first determine whether the Veteran has a current skin disorder(s), which may include dyshidrotic eczema, seborrheic dermatitis and/or any other nonspecific” skin rashes and eruptions of the skin. 

The examiner should then provide an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that any identified skin disorder had its onset during, or is otherwise related to, service, to include the Veteran’s service in Southwest Asia. 

If nonspecific rashes or eruptions are confirmed, the examiner should comment on whether the Veteran’s skin disorder pattern is consistent with: (1) a condition of unknown etiology and pathophysiology, (2) a condition with a partially explained etiology and pathophysiology, or (3) a condition with a clear and specific etiology and pathophysiology.

Consideration should be given to: (1) the Veteran’s statements as to have been treated for strange rashes following his military service in SWA; and (2) VA treatment records describing his skin disorder as “nonspecific” rashes and eruptions of the skin. 

A complete rationale and explanation should be provided for any opinion reached.

5. Thereafter, schedule the Veteran for a VA examination (or telehealth interview, records review, etc., if an in person examination is not feasible) by a cardiologist with respect to the Veteran’s claim for a heart disorder. 

The physician should first identify the Veteran’s current heart condition, to include whether he has congestive heart failure and/or a mitral valve condition.  If no heart condition is diagnosed, it should be explained why this is so.  

(i) For any identified heart condition, the examiner should provide an opinion as to whether it is as at least as likely as not (a 50 percent or greater probability) that any identified heart condition was incurred in, or is otherwise related, to the Veteran’s active service.

(ii) If no to (5)(i), is it at least as likely as not (50 percent or greater probability) that any identified heart condition was caused, or aggravated by, the Veteran’s service connected hypertension? 

(iii) If not to (5)(ii), is it at least as likely as not (50 percent or greater probability) that any identified heart condition was caused, or aggravated by, any other service-connected disability, to include PTSD?

Consideration should be given to the submitted medical literature in support of the claim accompanied by the October 2016 private medical opinion by Dr. H.S.   

6. Ultimately, schedule the Veteran for a VA examination (or telehealth interview, records review, etc., if an in person examination is not feasible) to assess the severity of his service-connected bronchitis. 

(i) If the Veteran is diagnosed with other respiratory disorders, differentiate between the symptoms of his bronchitis and any other diagnosed respiratory disorders to the extent possible. 

(ii) If the Veteran is unable to complete PFTs, the examiner should explain why this is so.  

(iii) Post-bronchodilator studies must be performed in compliance with 38 C.F.R. § 4.96.  If this is not possible, the examiner should state why this is so. 

A complete rationale and explanation should be provided for any opinion reached.

 

 

E. BLOWERS

Acting Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	William Pagan, Associate 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.