Citation Nr: 21063836 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 16-55 790 DATE: October 18, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include persistent depressive disorder, is granted. Entitlement to service connection for PTSD is denied. Entitlement to an initial compensable rating for bilateral sensorineural hearing loss (SNHL) is denied. Entitlement to an initial compensable rating for pseudofolliculitis barbae is denied. Entitlement to an initial rating in excess of 10 percent for temporomandibular joint dysfunction with bruxism is denied. REMANDED Entitlement to service connection for joint pain, to include as due to undiagnosed illness attributable to service in the Southwest Asia theater of operations, is remanded. Entitlement to service connection for chronic fatigue syndrome, to include as due to undiagnosed illness attributable to service in the Southwest Asia theater of operations, is remanded. Entitlement to service connection for a medically unexplained chronic multisymptom illness attributable to service in the Southwest Asia theater of operations is remanded. Entitlement to service connection for right hand carpal tunnel syndrome is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to the question of whether there is a causal link between the service-connected hypertension and the development of the Veteran's currently diagnosed acquired psychiatric disorder. 2. The competent evidence does not demonstrate that the Veteran currently has PTSD, nor has a diagnosis been warranted during the pendency of the appeal or recent to the filing of the claim. 3. During the entire pendency of the appeal the Veteran's bilateral SNHL was not manifested by a compensable level of hearing acuity in either ear. 4. For the entire period of the appeal, the Veteran's pseudofolliculitis barbae has affected less than five percent of his entire body, less than five percent of exposed areas, and has not been treated by systemic therapy either administered on a large scale affecting the body as a whole, or using corticosteroid or immunosuppressive drugs, or corticosteroid or immunosuppressive-like drugs; furthermore, there is no evidence that the condition has resulted in scars or skin lesions. 5. The Veteran's temporomandibular joint dysfunction with bruxism has not manifested in interincisal range of motion limited to 21 to 30 millimeters; or 30 to 34 millimeters of maximum unassisted vertical opening with dietary restrictions to soft and semi-solid foods, as recorded or verified by a physician, or 21 to 29 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder other than PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310; Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). 2. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. § 3.303. 3. The criteria for a compensable rating for bilateral SNHL have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. 4. The criteria for a compensable initial rating for pseudofolliculitis barbae have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Codes 7806, 7813. 5. The criteria for entitlement to an initial rating in excess of 10 percent for temporomandibular joint disorder with bruxism have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.150, Diagnostic Code 9905. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1981 to November 2003, to include service in the Southwest Asia theater of operations. These matters were last before the Board in August 2020, whereupon they were remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. Following the issuance of a May 2021 supplemental statement of the case continuing the denial of each service connection claim as well as the denial of increased ratings for the remaining claims, the case was returned to the Board for its adjudication. In view of the facts found, and to provide broader consideration on appeal, the Board has recharacterized the claim of entitlement to service connection for a psychiatric disorder, to include PTSD, that is currently on appeal as one for an acquired psychiatric disorder other than PTSD, to include persistent depressive disorder, and bifurcated the separate claim of entitlement to service connection for PTSD. Specifically, as will be discussed below, the evidence of record is against a finding that the Veteran has diagnosable PTSD or had had the condition during the appeal period. However, as the Veteran has specifically pursued a claim of entitlement to service connection for PTSD, the Board finds it necessary to adjudicate the PTSD claim separately in order to best accord with the Veteran's intentions. The Board notes that it has considered whether a claim for a total rating based on individual unemployability (TDIU) has been raised by the Veteran during the pendency of this appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to TDIU in increased rating claims when the issue of unemployability either is raised expressly or by the record. The Board's review of the relevant evidence of record as it pertains to the three increased rating claims on appeal does not reflect that the Veteran's bilateral SNHL, pseudofolliculitis barbae, or TMJ syndrome, either separately or when considered together, would preclude the Veteran from securing and following substantially gainful employment. The Board also finds that the evidence of record does not establish that the newly service-connected psychiatric disorder precludes the Veteran from securing and following substantially gainful employment, especially in light of the Veteran's own testimony during the most recent February 2021 examination wherein he indicated that he was still employed full-time. Accordingly, the Board will not address the issue of entitlement to a TDIU, as it has not been raised by the Veteran or by the record. Service Connection Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Secondary service connection is permitted based on aggravation, such that compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. 38 C.F.R. § 3.310 (b); Allen v. Brown, 7 Vet. App. 439 (1995). Consequently, there exist two potential theories of entitlement to secondary service connection namely, causation under § 3.310(a) and instead aggravation under § 3.310(b). 1. Acquired Psychiatric Disorder other than PTSD The Veteran contends that he has an acquired psychiatric disorder, to specifically include PTSD, that was incurred during his active service. In the alternative, he asserts that he has an acquired psychiatric disorder that is secondary to his service-connected disabilities. He seeks service connection for an acquired psychiatric disorder on either basis. The Veteran initially raised his claim seeking entitlement to service connection for PTSD in April 2013. During the appeal period, the Veteran underwent two examinations to specifically determine whether he had diagnosable PTSD for VA compensation purposes, once in November 2014 and again in January 2015; the examiners who administered both examinations declined to endorse diagnoses of PTSD or any other psychiatric disorder. During both examinations the Veteran denied any history of psychiatric symptomatology and did not report experiencing any current symptomatology. As such, both VA examiners noted that the Veteran did not meet the criteria for a diagnosis of any psychiatric disorder, let alone PTSD. Pursuant to the Board's August 2020 remand instructions, the Veteran was afforded a new VA psychiatric examination in February 2021, during which he reported a history of experiencing poor mood, depressive thinking, insomnia, irritability, and social withdrawal that began in service and continued therefrom; he also noted that his symptoms were aggravated by his other physical ailments. After a review of the claims file, which revealed some history of post-service treatment for psychiatric symptomatology through VA, the examiner declined to diagnose the Veteran with PTSD but did endorse a diagnosis of persistent depressive disorder, and noted the following symptoms: depression, chronic sleep impairment, and difficulty adapting to stressful circumstances. The examiner then opined that it was less likely than not that the persistent depressive disorder was incurred in or was attributable to service. Instead, the examiner attributed the conditions to the symptoms of the Veteran's other physical ailments, to include lower back pain, hypertension, hyperlipidemia, and type II diabetes. Without necessitating further review of the record or continued development, the Board finds that the February 2021 examiner's opinion is sufficient to substantiate the Veteran's claim seeking service connection on a secondary basis. To begin, as no prior examiner set forth an etiology opinion due to the continued denial of a diagnosis, there is no evidence in the claim file which serves to contradict the February 2021 examiner's determination that the Veteran's acquired psychiatric disorder is attributable in part to his service-connected hypertension. Moreover, the Board finds the February 2021 examiner's opinion, as it applies to the question of secondary service connection, to be highly probative, in light of the claims file review and reference to the Veteran's medical history. Sklar v. Brown, 5 Vet. App. 140 (1993). Resolving all doubt in favor of the Veteran, the Board concludes that the evidence is at least in equipoise as to the question of whether the currently diagnosed acquired psychiatric disorder developed as secondary to the service-connected hypertension. Consequently, service connection is warranted for an acquired psychiatric disorder. Allen, supra. 2. PTSD As detailed above, the Board is adjudicating the claim of entitlement to service connection for PTSD separately from the claim of entitlement to service connection for an acquired psychiatric disorder (other than PTSD). Without delving into the question of the potential etiology of the condition, the Board finds that the Veteran has never been diagnosed with PTSD and there is no evidence to suggest that such a diagnosis is appropriate or would have been appropriate at any time during the appeal period; as such, entitlement to service connection must be denied. To summarize the prior VA psychiatric examinations afforded to the Veteran during the pendency of the appeal, all three of the examiners (in November 2014, January 2015, and most recently in February 2021) found that the Veteran did not meet the criteria for a diagnosis of PTSD. Specifically, each examiner reviewed the claims file and interviewed the Veteran in person, and none of the examiners found that the Veteran met the threshold number of diagnostic criteria to substantiate a diagnosis of PTSD. A review of available post-service medical records, pertaining to the Veteran's medical care that he has received from VA as well as other government sources, does not reflect that he has ever been diagnosed with PTSD. Ultimately, there is no competent evidence that the Veteran has PTSD or symptomatology that would support a diagnosis of PTSD separate and distinct from the symptomatology supporting his diagnosis of persistent depressive disorder. Accordingly, without supportive evidence, the Board concludes that the Veteran does not have PTSD and has not had the condition during the appeal period. Although the Board recognizes that the Veteran has submitted statements concerning the in-service stressors that he contends resulted in his development of PTSD, he does not have the medical training or credentials to offer an opinion as to a diagnosis or its etiology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection is denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Increased Rating Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Bilateral SNHL The Veteran is in receipt of a noncompensable evaluation for his bilateral SNHL. He contends generally that he is entitled to a compensable rating for the condition for the entire period of the appeal. The Rating Schedule establishes 11 auditory hearing acuity levels based upon average pure tone thresholds and speech discrimination. See 38 C.F.R. § 4.85. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz (cycles per second). The audiometric test results are then translated into a numeric designation ranging from Level I to Level XI, in order to evaluate the degree of disability from bilateral service-connected defective hearing. Id. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Even if an audiologist's description of the functional effects of a veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. The Veteran was first afforded a VA audiology examination during the appeal period in June 2014. Audiometric testing revealed the following pure tone thresholds: 1000 2000 3000 4000 RIGHT 25 15 25 50 LEFT 25 15 70 85 The average pure tone threshold in the right ear was 29 and in the left ear was 49. Speech audiometry using the Maryland CNC test revealed a speech recognition score of 100 percent in the right ear and 96 percent in the left ear. As for the functional impact of the hearing loss, the Veteran reported that he had to increase the volume on the TV in order to hear it and leaned in closer to people when they were speaking to him so that he could hear them better. Applying the results from the June 2014 examination to Table VI under the criteria shows Level I hearing impairment in both ears. See Table VI, Diagnostic Code 6100. Applying these findings to Table VII of the Rating Schedule results in a noncompensable evaluation for bilateral hearing loss under Diagnostic Code 6100. Pursuant to the Board's August 2020 remand instructions, the Veteran was afforded a new VA audiology examination in March 2021. Audiometric testing revealed the following pure tone thresholds: 1000 2000 3000 4000 RIGHT 20 15 45 60 LEFT 20 25 70 90 The average pure tone threshold in the right ear was 35 and in the left ear was 51.25. Speech audiometry using the Maryland CNC test revealed a speech recognition score of 90 percent in both ears. As for the functional impact of the hearing loss, the Veteran reported that he had difficulty hearing conversation at work and people talking. Applying the results from the June 2014 examination to Table VI under the criteria shows Level II hearing impairment in both ears. See Table VI, Diagnostic Code 6100. Applying these findings to Table VII of the Rating Schedule results in a noncompensable evaluation for bilateral hearing loss under Diagnostic Code 6100. He has been followed for bilateral hearing loss through his local VA medical center as well as through his employer for the entirety of the appeal period and has consistently reported difficulty in understanding conversation. Audiometric testing in May 2015 revealed the following pure tone thresholds: 1000 2000 3000 4000 RIGHT 20 10 30 55 LEFT 25 20 65 80 Thereafter, audiometric testing in April 2019 revealed the following pure tone thresholds: 1000 2000 3000 4000 RIGHT 20 10 30 55 LEFT 25 20 65 80 The Board highlights that these audiometric testing results do not warrant a compensable rating under the applicable guidelines. The Board notes that the Rating Schedule provides for rating exceptional patterns of hearing impairment under 38 C.F.R. § 4.86. However, the Veteran does not meet the criteria for exceptional hearing impairment, and so the Board need not further consider the possibility of an alternative rating pursuant to 38 C.F.R. § 4.86. In addition to the medical evidence above, the Board has considered any available lay evidence provided by the Veteran. A layperson's testimony is competent evidence in regard to the symptoms he experiences. Heuer v. Brown, 7 Vet. App. 379, 384 (1995). However, disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). As such, the medical evidence is considered the most probative evidence with regard to the level of severity of the Veteran's service-connected hearing loss. Moreover, both the June 2014 and March 2021 examiners considered the functional effects of the Veteran's bilateral hearing loss during the examination. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Based on the foregoing discussion, the evidence of record showed no distinct periods of time during the appeal period when the Veteran's service-connected bilateral SNHL varied to such an extent that a compensable rating would be warranted. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board also notes that the Veteran has not specifically contended that the rating criteria are insufficient for evaluating the severity of his bilateral hearing loss disability and/or that he is entitled to an extraschedular rating for the disability, and thus the Board will not address whether such an extraschedular rating is warranted. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In summation, the preponderance of the evidence is against the Veteran's claim for a compensable disability rating, and the claim must be denied. 38 C.F.R. § 4.7. 2. Pseudofolliculitis Barbae The Veteran is in receipt of a noncompensable rating for pseudofolliculitis barbae, and he seeks a compensable rating for the condition. The pseudofolliculitis barbae is rated pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7813-7806. VA recently amended the rating criteria for skin conditions, effective August 13, 2018. See 83 Fed. Reg. 32,597 (July 13, 2018); 83 Fed. Reg. 38,663 (Aug. 7, 2018). In cases where rating criteria are amended during the course of the appeal, the Board must consider both the former and current schedular criteria. Should an increased rating be warranted under new, revised criteria, the award may not be made effective before the effective date of change. See Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003). Under the prior regulations, Diagnostic Code 7806 provided for a 10 percent rating when affecting at least 5 but less than 20 percent of the entire body, or at least 5 percent but less than 20 percent of exposed areas; or where intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected; or where systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating was warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected; or where constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the past 12-month period. The United States Court of Appeals for the Federal Circuit (Federal Circuit) addressed the meaning of "systemic" and "topical" for rating skin disabilities under the regulatory criteria prior to August 31, 2018. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). For these purposes, systemic therapy means treatment pertaining to or affecting the body as a whole, whereas topical therapy means treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied. Id. at 1355. The Federal Circuit acknowledged that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, but the Court emphasized that this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. Id. Rather, the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the facts of each case. Id. at 1356. Under the revised VA regulations, it is explicitly stated that for the purposes of the skin disability ratings, "systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin." 38 C.F.R. § 4.118 (a). Additionally, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. Under this formula, a maximum 60 percent rating requires at least one of the following: (1) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (2) constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. A 30 percent rating requires at least one of the following: (1) characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (2) systemic therapy such as those listed under the 60 percent criteria required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. Id. A 10 percent rating requires at least one of the following: (1) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or (2) at least 5 percent, but less than 20 percent, of exposed areas affected; or (3) intermittent systemic therapy such as those listed under the 60 percent criteria required for a total duration of less than 6 weeks over the past 12-month period. Id. During the appeal period, the severity of the Veteran's pseudofolliculitis barbae was first evaluated in a June 2014 VA skin examination, during which the Veteran reported that he treated the condition with the use of Magic Shave, a topical anti-inflammatory product. The examiner did not note that the Veteran utilized any systemic treatments for his skin disorder. A physical evaluation revealed no skin conditions, although the examiner did detail that the Veteran exhibited occasional papules on the hair-bearing area of the anterior upper neck, impacting less than five percent of exposed areas and less than five percent of the total body area. The examiner did not note any scarring or disfigurement as due to the pseudofolliculitis barbae. In summation, it was the examiner's impression that the skin disorder did not result in any functional occupational impairment. Pursuant to the Board's August 2020 remand instructions, the severity of the Veteran's pseudofolliculitis barbae was next evaluated in a May 2021 VA skin examination, during which the Veteran reported that he was required to shave for work which increased the frequency that he experienced symptoms of the condition. According to the Veteran, he treated the pseudofolliculitis barbae with over-the-counter medication but still experienced symptoms of irritation along with raised pustules, redness, itching and swelling. The examiner did not note that the Veteran utilized any systemic treatments for his skin disorder but did record that the Veteran used topical antihistamines. A physical evaluation confirmed that the Veteran did exhibit signs and symptoms of pseudofolliculitis barbae that impacted less than five percent of exposed areas and less than five percent of the total body area. The examiner did not note any scarring or disfigurement as due to the pseudofolliculitis barbae. In summation, the examiner related that the Veteran believed that the condition resulted functional occupational impairment in the form of severe facial irritation due to shaving for work. A review of available post-service medical records reflects that the Veteran has not specifically sought treatment for pseudofolliculitis barbae through any of his treatment providers. Indeed, he has consistently denied any history of experiencing skin issues on repeated evaluations, and physical examinations have not revealed any lesions or scarring. Upon review of the evidence, the Board does not find that there is sufficient documentation of either the skin coverage or systemic therapy usage necessary to warrant a compensable rating at any point during the appeal period, even when considering the applicability of both generations of the diagnostic criteria. Indeed, there was no specific detailing of the severity of the skin disorder reflected in the available VA medical records. On both VA examinations the Veteran was evaluated as having less than five percent of skin coverage, both of his entire body as well as exposed areas. Moreover, there is no documentation of any usage of systemic therapy. Although the Board acknowledges the Veteran's report that he was exhibiting more severe symptomatology during the May 2021, there is simply no objective evidence to support this contention. Ultimately, the Board finds that the preponderance of the evidence is against a determination that a compensable rating is warranted for the service-connected pseudofolliculitis barbae, and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Temporomandibular Joint Dysfunction The Veteran is in receipt of a 10 percent rating for temporomandibular joint dysfunction, effective May 28, 2013, and he seeks a compensable rating for the condition. The condition is rated under 38 C.F.R. § 4.150, Code 9905. During the appeal period, the rating criteria for dental and oral conditions under 38 C.F.R. § 4.150 were amended, effective September 10, 2017, and the revised schedular criteria are applicable as of that date. See 82 Fed. Reg. 36080, 36,083 (August 3, 2017). As stated previously, when an increase is based solely on the revised criteria, the effective date for the increase cannot be earlier than the effective date of the revised criteria. See 38 U.S.C. § 5110(g); see also Kuzma, supra. Under Diagnostic Code 9905, in effect prior to September 10, 2017, a 10 percent rating is warranted when interincisal range of motion is limited to 31 to 40 millimeters; a 20 percent rating from 21 to 30 millimeters; a 30 percent rating from 11 to 20 millimeters; and a maximum 40 percent rating for 0 to 10 millimeters. Limited motion of the range of lateral excursion from 0 to 4 mm warrants a 10 percent rating. Ratings for limited interincisal movement shall not be combined with ratings for limited lateral excursion. 38 C.F.R. § 4.150. Under Code 9905, in effect from September 10, 2017, a 10 percent rating is warranted for 30 to 34 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods; or, for limited motion of the range of lateral excursion from 0 to 4 millimeters. A 20 percent rating is warranted for 30 to 34 millimeters of maximum unassisted vertical opening with dietary restrictions to soft and semi-solid foods, and for 21 to 29 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. A 30 percent rating is warranted for 30 to 34 millimeters of maximum unassisted vertical opening with dietary restrictions to full liquid and pureed foods, for 21 to 29 millimeters of maximum unassisted vertical opening with dietary restrictions to soft and semi-solid foods, and for 11 to 20 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. A 40 percent rating is warranted for 21 to 29 millimeters of maximum unassisted vertical opening with dietary restrictions to full liquid and pureed foods, for 11 to 20 millimeters of maximum unassisted vertical opening with dietary restrictions to all mechanically altered foods, and for 0 to 10 mm of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. Finally, a maximum 50 percent disability rating is warranted for 0 to 10 mm of maximum unassisted vertical opening with dietary restrictions to all mechanically altered foods. Ratings for limited interincisal movement shall not be combined with ratings for limited lateral excursion. Id., Diagnostic Code 9905 Note (1). For VA compensation purposes, the normal maximum unassisted range of vertical jaw opening is from 35 to 50 mm. Id., Note (2). Mechanically altered foods are defined as altered by blending, chopping, grinding or mashing so that they are easy to chew and swallow. There are four levels of mechanically altered foods: full liquid, puree, soft, and semisolid foods. To warrant elevation based on mechanically altered foods, the use of texture-modified diets must be recorded or verified by a physician. Id., Note (3). The severity of the temporomandibular joint dysfunction was first evaluated in a December 2014 VA examination, during which the Veteran reported experiencing jaw pain. He also endorsed experiencing flare-ups of increased symptomatology to include an occasional open lock while chewing. On range of motion testing right lateral excursion was measured at eight millimeters on the right side and six millimeters on the left side, with inter-incisal distance measured at 50 millimeters. The examiner noted that the Veteran experienced pain but did not find that it resulted in functional loss. It was also noted that the Veteran exhibited localized tenderness as well as severe crepitus bilaterally. Following repetitive use testing, the examiner found that there was no additional loss of function. Similarly, the examiner found that after repeated use over time or during a flare-up, the Veteran would not experience additional loss of function. In support thereof, the examiner stated that it was impossible to make an estimate as to any additional loss of function without resorting to speculation. In summation, the examiner did not find that the temporomandibular joint dysfunction resulted in any impairment of occupational functioning. Pursuant to the Board's August 2020 remand instructions, the Veteran underwent a March 2021 VA temporomandibular joint examination, during which he reported experiencing difficulty opening and closing his jaw due to a crunching sound in the jaw area. He also endorsed experiencing flare-ups of increased symptomatology on both sides of his mouth that occurred daily and were caused by eating on either side of his mouth. He detailed that these flare-ups of symptoms would subside if he relaxed his jaw. On range of motion testing right lateral excursion was between zero to four millimeters on both sides of his mouth, with inter-incisal distance measured at 30 to 34 millimeters. The examiner noted that the Veteran experienced pain but did not find that it resulted in functional loss. It was also noted that the Veteran exhibited localized tenderness as well as severe crepitus bilaterally. Following repetitive use testing, the examiner found that there was additional loss of function as due to pain, fatigue and weakness. However, testing did not reveal a measurable loss of function. Similarly, the examiner found that after repeated use over time or during a flare-up, the Veteran would experience additional loss of function. However, this would not translate to any additional loss of range of motion, as the inter-incisal distance and lateral excursion stayed the same. The examiner further commented that there was objective evidence of pain on passive range of motion and on non-weight bearing testing bilaterally. In summation, the examiner found that the temporomandibular joint dysfunction resulted in impairment of occupational functioning in the form of limited communication skills and chronic pain. Based on a review of the subjective and clinical evidence, the Board finds that, during the entire rating period on appeal, the Veteran's temporomandibular joint dysfunction did not warrant a rating higher than 10 percent pursuant to Diagnostic Code 9905 under either the prior or the amended rating criteria. The evidence does not reflect that the Veteran's disability manifested in inter-incisal range of motion limited to 21 to 30 millimeters; 30 to 34 millimeters of maximum unassisted vertical opening with dietary restrictions to soft and semi-solid foods, as recorded or verified by a physician; or 21 to 29 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. The Board also finds that there is no basis for assigning a higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). As noted above, the Veteran has reported increased pain during flare-ups, but he did not describe any additional functional loss or lost range of motion, during a flare-up. Moreover, neither VA examiner found that the Veteran would exhibit any additional loss of functioning during a flare-up of symptomatology. The competent medical evidence reflects that the assigned 10 percent rating properly compensates the Veteran for the extent of functional loss resulting from any such symptoms. Accordingly, the preponderance of the evidence is against the assignment of an initial rating in excess of 10 percent for the Veteran's service-connected temporomandibular joint dysfunction. REASONS FOR REMAND 1. Entitlement to service connection for joint pain, chronic fatigue syndrome, and a medically unexplained chronic multisymptom illness due to undiagnosed illness is remanded. The Veteran contends that he experiences a cluster of symptoms that are manifestations of a medically unexplained chronic multisymptom illness that itself is due to his exposure to hazardous materials while in service in the Southwest Asia theater of operations. Those symptoms include joint pain and chronic fatigue. He seeks service connection for those symptoms individually or together. The Board most recently remanded these three distinct claims to the AOJ in order to secure an examination and opinion to evaluate whether his symptomatology was attributable to a diagnosable disorder or if his symptomatology was instead a manifestation of the purported medically unexplained chronic multisymptom illness that in turn was due to his exposure to hazardous materials in Southwest Asia. In a series of VA examinations each dated in May 2021, the same examiner both declined to diagnose a disability to account for the Veteran's claimed joint pain and chronic fatigue and also did not attribute the Veteran's symptomatology to the purported medically unexplained chronic multisymptom illness. Specifically, with regard to joint pain, the VA examiner in a May 2021 fibromyalgia examination found no evidence that the Veteran experienced any symptoms of joint pain, despite the Veteran's own testimony asserting that he had experienced right-sided pain and weakness that began in service and continued intermittently since then. The examiner declined to diagnose the Veteran with fibromyalgia or any other disability to account for the claimed joint pain symptoms, and also found that it was less likely than not that the Veteran had joint pain that was a manifestation of the purported medically unexplained chronic multisymptom illness. In support thereof, the examiner noted that the Veteran was diagnosed with carpal tunnel syndrome which accounted for his right wrist pain. Furthermore, the examiner referred to the lack of in-service treatment for joint pain. As for the chronic fatigue, the VA examiner in a May 2021 chronic fatigue syndrome examination found no evidence that the Veteran experienced any chronic fatigue symptoms. The examiner declined to diagnose the Veteran with chronic fatigue syndrome or any other disability to account for the claimed fatigue symptoms, and also found that it was less likely than not that the Veteran had chronic fatigue that was a manifestation of the purported medically unexplained chronic multisymptom illness. In support thereof, the examiner referred to the lack of in-service treatment for fatigue and stated that it would be mere speculation to attribute the Veteran's current claims of fatigue to his service. Finally, with regard to the separately claimed medically unexplained chronic multisymptom illness, the May 2021 examiner discussed the diagnosed carpal tunnel syndrome and cervical spine arthritis, but did not detail any of the Veteran's claimed symptomatology for which he did not have a diagnosed condition, that is, his joint pain and chronic fatigue. The examiner opined only that it was less likely than not that the Veteran's carpal tunnel syndrome was due to an undiagnosed illness or medically unexplained chronic multisystem illness resulting from service in Southwest Asia. The May 2021 VA examinations, concerning together as they do the Veteran's claimed joint pain and chronic fatigue and the potential attribution of those symptoms to the purported medically unexplained chronic multisystem illness, are insufficient because the examiner did not address the operative questions underlying the Veteran's claim. Specifically, despite the fact that the examiner acknowledged that the Veteran has consistently claimed to have experienced joint pain and chronic fatigue since service, the examiner failed to either diagnose the Veteran with a condition to account for those symptoms or explain whether those symptoms were manifestations of the purported medically unexplained chronic multisystem illness. Proper attribution of the Veteran's claimed symptomatology is the first prong of the analysis before the Board, and as the May 2021 examiner did not account for the Veteran's symptoms, the Board cannot proceed with its adjudication. As such, remand is necessary to afford the Veteran a new VA examination that complies with the prior remand instructions, that is, the examination must evaluate the nature and likely etiology of his claimed joint pain and chronic fatigue symptomatology and must further elicit opinions as to whether this symptomatology is a manifestation of an undiagnosed illness attributable to the Veteran's service in the Southwest Asia theater of operations. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to service connection for right hand carpal tunnel syndrome is remanded. The Veteran contends that he has right hand carpal tunnel syndrome that was incurred in service or is otherwise attributable to service. To that end, the Board remanded this claim in August 2020 in order to secure an addendum opinion addressing the likely etiology of the claimed condition. Specifically, the Board noted that there was documented instances of the Veteran having complained of experiencing right hand and arm pain and numbness in service, and that prior VA examinations dated in June 2014 and in January 2020 did not discuss these in-service complaints when considering whether the Veteran's right hand carpal tunnel syndrome was incurred in or otherwise attributable to service. In a May 2021 VA examination, a VA examiner confirmed a diagnosis of carpal tunnel syndrome dating from 2011. After a review of the claims file and an in-person evaluation, the examiner opined that it was less likely than not that the right hand carpal tunnel syndrome was incurred in or otherwise attributable to service. In support thereof, the examiner acknowledged the Veteran's in-service complaints of right hand and arm pain and stiffness but stated that it would be a mere speculation to attribute the Veteran's symptoms of hand numbness and pain to the carpal tunnel syndrome diagnosed in 2011. The examiner also cited to medical literature concerning the development of carpal tunnel syndrome. The Board cannot rely on the May 2021 etiology opinion, as the examiner did not provide a sufficient rationale for her conclusion that it was less likely than not that the carpal tunnel syndrome was incurred in or otherwise attributable to service. Rather than provide an explanation as to why she disregarded the evidence of the Veteran having experienced symptomatology in service that was potentially attributable to right hand carpal tunnel syndrome, the examiner stated only that it would be speculative to do so. On remand, if the examiner does find that it would be too speculative to opine as to whether the right hand carpal tunnel syndrome was incurred in or is otherwise attributable to service, they must explain whether the speculative nature of the request is due to the limits of medical knowledge or simply the lack of available information in the claims file. Without this needed clarification, the Board cannot proceed with its adjudication. As the Board's original remand directives were not fulfilled, remand is necessary. Those remand instructions are copied in large part below. See Stegall v. West, 11 Vet. App. 268 (1998). 3. Entitlement to service connection for obstructive sleep apnea is remanded. The Board in August 2020 remanded the claim of entitlement to service connection for obstructive sleep apnea in order to secure an opinion as to the likely etiology of the claimed obstructive sleep apnea. Of note, the Board did not request that the Veteran be afforded a VA examination to determine whether he currently had diagnosable obstructive sleep apnea or had the condition at any point during the appeal period. In a September 2020, a VA examiner reviewed the claims file and found no evidence to support a diagnosis of sleep apnea. The examiner correctly identified that a diagnosis of sleep apnea must be substantiated by a positive sleep study, which the Veteran has never undergone. As such, she declined to offer an opinion as to the likely etiology of the claimed sleep apnea, stating instead that to set forth such an opinion for a nonexistent diagnosis would be speculative. Although the Board acknowledges that its prior remand instructions did not specify that a full VA examination with sleep study was required to adjudicate the sleep apnea claim, nevertheless, once VA has engaged in development in support of the Veteran's sleep apnea claim it cannot proceed without providing the Veteran with an opportunity to secure all potentially positive evidence. The Board notes that the sleep apnea claim was the subject of a prior VA opinion dated in August 2017. However, that opinion did not address the threshold question of whether the Veteran actually had a diagnosis of obstructive sleep apnea or had one during the pendency of the appeal. The Board further notes that the Veteran reported experiencing sleeping difficulties in service at the time of his separation and has intermittently endorsed experiencing sleep disturbances attributable to his service-connected temporomandibular joint syndrome. This positive evidence satisfies the low threshold for triggering VA's duty to provide the Veteran with a VA examination in support of his claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, remand is necessary in order to first offer the Veteran an opportunity to undergo a sleep study and then schedule him for a new VA examination pending the results of that sleep study (or in the absence of those results if he does not agree to undergo the sleep study). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate clinician for the purpose of evaluating the nature and likely etiology of his distinct joint pain, chronic fatigue symptomatology, and claimed medically unexplained chronic multisymptom illness. The examiner must review the claims file and address the following matters: A) First, please determine whether there is a diagnosable disability to account for the Veteran's reported joint pain and chronic fatigue symptomatology. If a distinct diagnosable condition is appropriate, the examiner should also explain why this is so. B) If a diagnosable condition (known clinical diagnosis) is identified that accounts for one or both of these distinct groupings of symptoms, the examiner must provide an opinion as to whether it is at least as likely as not (an approximate balance of positive and negative evidence) that any such diagnosed condition is etiologically related to the Veteran's service. In setting forth these opinions, the examiner should consider, and comment upon as necessary, in-service evidence of the Veteran having complained of right sided pain. C) If a diagnosable condition is not appropriate to account for either of the distinct groupings of symptoms detailed by the Veteran, please note whether the Veteran has a medically unexplained chronic multisymptom illness corresponding to both distinct groupings of symptoms detailed by the Veteran for which there is no diagnosable condition that accounts for that symptomatology. D) Furthermore, if the answer to (C) is negative for any or all of these three claimed groupings of symptoms, please describe whether any of those distinct groupings of symptoms were chronic in nature since service and thus would constitute a qualifying chronic disability under 38 C.F.R. § 3.317(a)(2)(i)(B). If this question is answered in the negative, an explanation for this determination is needed. If this question is answered in the positive, for each grouping of symptoms, please address the possible etiologies of such chronic disability. If a chronic disability is found to be attributable to a supervening condition or event that occurred between the Veteran's departure from active duty in the Southwest Asia theater of operations and the onset of the illness, the examiner should so state. The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed. 2. Provide the claims file to the VA examiner who issued the May 2021 etiology opinion, or to another qualified VA medical professional if she is not available, for the purpose of eliciting an addendum opinion regarding the likely etiology of the claimed right hand carpal tunnel syndrome. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions relating to his right hand carpal tunnel syndrome. The examiner is asked to opine as to whether it is at least as likely as not (an approximate balance of positive and negative evidence) that the right hand carpal tunnel syndrome was incurred in or is otherwise related to the Veteran's active service. The examiner should address the Veteran's complaints of right hand and arm pain and finger numbness during service and the notation that he had right hand arthritis for six months. If it is not possible to provide the requested opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). It is essential the examiner discusses the underlying rationale of all opinions expressed, preferably citing to relevant evidence in the file supporting conclusions and/or medical literature or authority. 3. Schedule the Veteran for a VA examination to evaluate the nature and likely etiology of the claimed obstructive sleep apnea condition. The complete electronic claims file, to include this remand, must be reviewed in conjunction with the examination, and the examiner must note that they reviewed the claims file. All necessary diagnostic testing and evaluation must be performed. First, the chosen examiner must determine whether the Veteran has diagnosable obstructive sleep apnea for VA benefits purposes. To that end, the Veteran must be offered the opportunity to undergo a sleep study. Furthermore, in determining whether the Veteran has diagnosable obstructive sleep apnea, the examiner must consider and comment on as necessary evidence in the claims file indicating that the Veteran reported experienced sleeping difficulties in service at the time of his separation as well as multiple instances of the Veteran reporting experiencing sleep disturbances after his separation for service. If a diagnosis of obstructive sleep apnea is not endorsed by the examiner, he or she must provide a thorough rationale to account for any discrepancy with the earlier evidence of record that does suggest that the Veteran has obstructive sleep apnea. Regardless of whether a diagnosis of obstructive sleep apnea is endorsed, the examiner must opine as to whether it is it at least as likely as not (an approximate balance of positive and negative evidence) that obstructive sleep apnea had its onset during service or is otherwise related to active service. Finally, the examiner must also provide an opinion as to whether it is at least as likely as not that obstructive sleep apnea was caused or aggravated by one or more service-connected disabilities (as listed in an April 2020 rating decision). If the opinion is that a service-connected disability or combination of service-connected disabilities aggravated obstructive sleep apnea, the examiner must specify, so far as possible, the degree of disability resulting from such aggravation. All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.