Citation Nr: 21069231 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 16-24 767 DATE: November 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), due to a service-connected disability is granted. Entitlement to service connection for obstructive sleep apnea (OSA) is granted. Entitlement to service connection for gastroesophageal reflux disease (GERD) is granted. Entitlement to service connection for a right hand/wrist disability is granted. REMANDED Entitlement to service connection for a gastrointestinal disability, also claimed as diarrhea and constipation is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a penile abrasion is remanded. INTRODUCTION The Veteran served on active duty in the Navy from October 1978 to October 1982. When this case was previously before the Board in April 2019, the above-noted issues were remanded for additional development. The case has since been returned for further appellate review. FINDINGS OF FACT 1. During the period of this appeal, the Veteran has met the threshold percentage requirements and has been unable to maintain any form of substantially gainful employment consistent with his education and occupational background as a result of his service-connected disability. 2. The Veteran's OSA was caused by his service-connected PTSD. 3. The Veteran's GERD was caused by his service-connected PTSD. 4. The Veteran has a right hand fifth metacarpal fracture, which originated in service. CONCLUSIONS OF LAW 1. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. 2. Obstructive sleep apnea is proximately due to or the result of a service-connected disability. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. GERD is proximately due to or the result of a service-connected disability. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for a right hand/wrist disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist As explained below, the Board has determined the evidence currently of record is sufficient to grant entitlement to a TDIU, as well as service connection for OSA, GERD, and a right hand/wrist disability. Therefore, no further development is required under 38 U.S.C. §§ 5103, 5103A or 38 C.F.R. § 3.159. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Legal Criteria-TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340 (a)(1), 4.15. "Substantially gainful employment" is that employment, "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, it is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. Legal Criteria-Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310 (a). Factual Background and Analysis TDIU Claim As a threshold matter, the Board notes service connection has been established for PTSD, rated as 70 percent disabling; as well as erectile dysfunction which is noncompensably evaluated. The combined rating is presently 70 percent. As such, the Veteran has satisfied the scheduler criteria for a TDIU under 38 C.F.R. § 4.16 (a). After consideration of the record and resolving all reasonable doubt in favor of the Veteran, the Board finds the service-connected PTSD alone has been sufficiently disabling as to render the Veteran unable to maintain substantially gainful employment consistent with his education and occupational background. The Veteran has predominantly worked in low-wage unskilled labor jobs. These jobs, and virtually any other job, require the Veteran to be able to attend a normal 8-hour work day, as well as interact with others, moderate his temperament, and concentrate on work matters. The Board also observes the Veteran has participated in two years of college courses, with no higher-level education or training. In the course of the appeal period, the Veteran has experienced significant manifestations to include: a chronically depressed mood, anxiety, sleep impairments, memory loss, concentration impairments, difficulty with stressful circumstances including work and worklike settings, weekly panic attacks, disturbances of motivation, an inability to maintain effective relationships, and impaired impulse control with periods of unprovoked violence. During his most recent April 2021 VA psychiatric examination, the examiner stated the Veteran's PTSD affects his ability to effectively follow/remember instructions, maintain adequate pace or persistence to perform tasks, adapt to changes in job routines, and interact appropriately with others including coworkers, supervisors, and the public. Likewise, by way of a comprehensive May 2021 functional assessment, the Veteran's treating Psychologist of several years concluded the Veteran is unable to work as a result of his PTSD manifestations. His treating clinician also chronicled the Veteran's years of struggle in both obtaining and maintaining even marginal employment as a result of his PTSD. In sumaffording the Veteran the benefit of all reasonable doubtthe Board is satisfied the evidence establishes his service-connected PTSD alone is sufficiently severe to render him unable to maintain any form of substantially gainful employment consistent with his education and occupational background. Accordingly, a TDIU is warranted. Service Connection Claims The Veteran seeks service connection for a right hand/wrist disability, which he asserts was incurred in a fight in service. He also seeks service connection for OSA and GERD, which he contends were caused by his service-connected PTSD. Initially, the Board notes the resolution of these issues involves the application of similar facts to congruent laws, and as such, for the sake of judicial economy and brevity the Board will address these issues together. The Board notes that to date the RO has not obtained a complete copy of the Veteran's STRs. In light of the absence of the STRs, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (the Board has a heightened duty in a case where the service treatment records are presumed destroyed). The Board next observes a June 2013 letter from a retired Navy Master Chief Petty Officer, who reported serving with the Veteran in Alaska. In his statement, J.S. recalled having personally witnessed the Veteran in a right-hand cast. At that time the Veteran notified J.S. that he had broken his hand in a fight and would not be able to participate in a Command basketball game. The Veteran recently underwent a VA hand and fingers examination in October 2020. At that time, he was diagnosed with status-post right fifth metacarpal fracture. The examiner found the Veteran experienced his metacarpal fracture in service. As such, the Board finds service-connection is warranted for this disability. With respect to his claimed OSA and GERD disabilities, the Veteran also underwent VA sleep apnea and esophageal conditions examinations in October 2020. Following those examinations, he was diagnosed with OSA and GERD. As such, the central issue is whether those disabilities were caused or aggravated by his service-connected PTSD. The Board observes the Veteran has provided a medical study suggesting psychiatric manifestations can cause both a functional decrease in serotoninergic neurotransmission, resulting in a reduction in dilator muscle activity and pharyngeal collapsibility, as well as weight gain. In addition, the RO obtained medical opinions from a VA examiner in July 2021, wherein the examiner agreed the Veteran's sleep apnea was related to his PTSD. The examiner explained that studies indicate those who experience PTSD are more likely to experience a more severe OSA. The Board observes the RO obtained other VA medical opinions addressing this matter in October 2010, March 2021, and August 2021. In sum, these opinions found no causal relationship between the Veteran's PTSD and his OSA. However, these examiners wholly failed to acknowledge or discuss the medical articles provided by the Veteran or the July 2021 VA examiner. As such, and affording the Veteran all reasonable doubt, the Board finds service connection for OSA is warranted as the evidence in favor of the claim is in equipoise with the evidence against the claim. With regard to the Veteran's claim for GERD, the Board initially notes numerous clinicians and a December 2014 VA examiner have concluded the Veteran's abuse of alcohol is a manifestation associated with his PTSD. In an October 2020 medical opinion, a VA examiner found the Veteran's GERD was likely aggravated by his alcohol abuse. Likewise, a January 2021 VA examiner also found the Veteran's alcohol abuse to be the "most important" risk factor in the development and severity of his GERD. Based on the foregoing, the Board finds service-connection for GERD is also warranted. REASONS FOR REMAND For several reasons, the Board finds additional development is required before the Veteran's remaining claims are decided. As noted above, the RO has not yet obtained a complete copy of the Veteran's service treatment records. It appears the RO has attempted to obtain those records on several occasions; however, to date the RO has not prepared a formal finding of unavailability explaining why those records do not exist or why additional attempts to obtain those records would be futile. These records are in the possession of a federal agency, and as such, VA must attempt to obtain those records until it determines the records either do not exist or that any additional attempts to obtain those records would be futile. See 38 C.F.R. § 3.159 (c)(1). In such instances, VA must prepare a formal finding of unavailability for the record. Since these records may contain relevant and material evidence, the RO should determine whether additional development can be initiated to obtain the Veteran's STRs, and if unavailable, a formal finding of unavailability should be completed and associated with the record. Next, the Board notes the Veteran underwent VA back, knee, intestinal conditions in October 2020. However, the examiner failed to conduct a VA scars examination to properly assess the Veteran's claimed penile abrasion. As such, a remand is required to obtain a comprehensive examination and medical opinions with regard to that disability. The October 2020 examiner found the Veteran did not warrant a diagnosis of a gastrointestinal disability, as he concluded the Veteran only reported experiencing constipation, but the Veteran has reported experiencing fluctuating diarrhea and excessive gas, as well as constipation throughout the appeal period. The examiner failed to consider these additional manifestations in his assessment, which calls into question his medical conclusions. An opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Finally, with respect to the Veteran's claimed back and knee disabilities, the October 2020 VA examiner diagnosed the Veteran with a chronic lumbosacral strain, left knee patellofemoral syndrome, and a right knee strain. In sum, the examiner found "insufficient active duty medical records" pertaining to the above-noted disabilities to establish service connection. However, as noted above, the Veteran's STRs are chiefly missing. Moreover, examiners cannot wholly rely on a lack of contemporaneous treatment or diagnosis and ignore a veteran's statements related to lay observable symptoms. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007). Based on the foregoing insufficiencies, the Board finds a remand is necessary. Accordingly, this case is REMANDED for the following actions: 1. Undertake appropriate development to any other appropriate source to obtain the Veteran's complete service treatment records. If any requested records are deemed unavailable, the record should be annotated to reflect such and the Veteran notified. If unavailable, a formal finding should be prepared, outlining all efforts made to obtain those records. 2. Thereafter, afford the Veteran a VA back, knee, intestinal conditions, and scars examination by an examiner with sufficient experience, who has not previously examined the Veteran, to determine the nature and etiology of the claimed back disability, bilateral knee disabilities, intestinal disorder, and penile abrasion. The electronic records should be made available to and reviewed by the examiner. Following an examination of the Veteran and a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether any diagnosed back disability, bilateral knee disabilities, intestinal disorder, or penile abrasion at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service. If the examiner finds the Veteran's current gastrointestinal disability did not originate in service, the examiner should state whether the Veteran's disability at least as likely as not (a 50 percent probability or greater): a) was caused by his service-connected PTSD to include medications taken therefor; or b) was worsened to any degree by his service-connected PTSD to include medications taken therefor. The examiner(s) must specifically address the Veteran's reports relative to the etiology of the claimed disabilities. If the examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.