Citation Nr: 21069825 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 16-41 603 DATE: November 19, 2021 REMANDED Entitlement to a disability rating in excess of 70 percent for major depressive disorder with anxious distress and traumatic brain injury (TBI), to include motion sickness, stuttering, and stammering is remanded. Entitlement to separate disability ratings under the code governing TBI and the code governing mental disorders is remanded. Entitlement to a separate rating for photophobia is remanded. Entitlement to a separate rating for motion sickness is remanded. Entitlement to a separate rating for speech impediment is remanded. Entitlement to service connection for chronic fatigue syndrome, also claimed as chronic daytime fatigue is remanded. Entitlement to service connection fibromyalgia, also claimed as myofascial pain syndrome is remanded. Entitlement to a disability rating in excess of 10 percent for right 5th metatarsal fracture, chronic tendonitis, bursitis, and pes planus of the right foot is remanded. REASONS FOR REMAND The Veteran had active service from November 1995 to August 1999. These current matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2013. Previously, in October 2017 and March 2021, the Board remanded this appeal for further development. Entitlement to a disability rating in excess of 70 percent for major depressive disorder with anxious distress and TBI, to include motion sickness, stuttering, and stammering The Veteran is currently in receipt of a 70 percent disability rating under the code governing mental disorders. VA documents recite that this has been the case since March 5, 2012. However, the Veteran's history reflects that he was previously compensated under both the code governing mental disorders (originally at a 50 percent disability rating) and under the code governing residuals of TBI (at a 40 percent disability rating). They were rated separately in this manner when this matter came before the Board originally in October 2017. After the Board remanded the issues in October 2017, the two disabilities were compensated together in a single rating under the rating code governing mental disorders by a November 2020 decision. The Veteran has asserted arguments that it was wrong to combine the two disabilities and alternatively that this condition is more properly rated under the code governing residuals of TBIs. The propriety of this rating turns in part on whether the symptoms of residuals of TBI and the symptoms of the Veteran's mental disorder can be distinguished. The Veteran urges that they can and cites older VA examinations such as the examination from July 2016 that indicated that the symptoms could be distinguished. However, while that examination indicates that the symptoms can be distinguished, it then blurs the line indicating the overlap of symptoms, especially sleep disorder related symptoms. The most recent examination from November 2020 resulted in an opinion from the examiner conducting the psychiatric portion of the examination that the two conditions could not be distinguished, and a statement that the examiner in question was only able to determine mental health symptoms and not to distinguish mental health symptoms from TBI symptoms. Consequently, an additional examination is required from an examiner with a skillset and training to make such a distinction in the event such a distinction is warranted by the evidence. Entitlement to a separate rating for TBI and mental health disorders This claim is related to the first one. As the history there recites, the TBI and mental disorder conditions were originally rated separately and only integrated into a single rating under the mental disorders rating after the Board's first remand. Consequently, the Board has restyled this issue for clarity, and it must be remanded as inextricably intertwined with the first. Entitlement to a separate rating for photophobia The Veteran alleges entitlement to a separate rating for photophobia as a residual of his TBI. This matter is therefore inextricably intertwined with the matter of entitlement to an increased rating for TBI above. Entitlement to a separate rating for motion sickness The Veteran alleges entitlement to a separate rating for photophobia as a residual of his TBI. This matter is therefore inextricably intertwined with the matter of entitlement to an increased rating for TBI above. Entitlement to a separate rating for speech impediment, also claimed as stuttering and stammering The Veteran alleges entitlement to a separate rating for speech impediment (or stuttering and stammering as a residual of his TBI). This matter is inextricably intertwined with the matter of entitlement to an increased rating for TBI above. Service connection for chronic fatigue syndrome, also claimed as chronic daytime fatigue The Veteran's claim for chronic fatigue syndrome has taken several forms throughout this appeal. When the claim began, he claimed entitlement to service connection for chronic daytime fatigue as a result of his sinus condition. Because his sinus claim was denied and an appeal was not yet completed, that claim was denied. To the extent that this is a claim for chronic daytime fatigue secondary to the sinus condition, it does not appear that the Veteran has been provided an opinion since the sinus condition was service connected. Therefore, it is remanded for an appropriate opinion. Later, as the development and the nature of the Veteran's TBI and mental disorder residuals became more apparent, it appeared that the chronic daytime fatigue might be an element of either the TBI or mental disorder (or both to the extent that they are overlapping and interrelated). To the extent that the Veteran's claim for service connection for chronic daytime fatigue is a symptom of either his TBI or mental disorder or both, it is inextricably intertwined with those claims above. Most recently, the Veteran's November 2020 correspondence appears to indicate that what he called "chronic fatigue syndrome" was actually coextensive with what was later determined to be and service-connected as bilateral sciatic nerve radiculopathy. The Veteran then made arguments addressing the amount of entitlement for these conditions and the effective date. To the extent that he is indicating that his claim for chronic fatigue syndrome is related to the symptoms of radiculopathy in his legs, that claim would appear moot. To the extent that he is addressing arguments that the amount of his award and its effective date were not appropriately set by the rating decision that granted service connection for those conditions, those are arguments that it is appropriate to make in a notice of disagreement with the relevant decision and are not the subject of this appeal. Service connection for fibromyalgia, claimed as myofascial pain syndrome The record does not suggest a diagnosis of fibromyalgia. However, the Veteran has reported chronic pain in many parts of his body that may be explained by service-connected disabilities. However, given the ambiguity of his claim for fibromyalgia or myofascial pain syndrome, an appropriate examination and opinion is necessary to clarify his claimed condition and its relation, if any, to his service. Entitlement to disability rating in excess of 10 percent for right 5th metatarsal fracture, chronic tendonitis, bursitis, and pes planus of the right foot In November 2020 correspondence, the Veteran has indicated that the most recent examination of his foot condition did not elicit a complete account of his foot condition during flareups. Consequently, the Board finds that an updated examination where the Veteran will have the opportunity to describe these flareups for an evaluation by an appropriate examiner. Accordingly, these matters are REMANDED for the following actions: 1. Schedule the Veteran for an appropriate examination to determine the current severity of his service-connected TBI residuals. The examiner(s) should provide a full description of this disability and report all signs and symptoms necessary for evaluating this disability under the rating criteria, including any residuals that are the result of the Veteran's TBI but may implicate other specialties, especially his psychiatric disabilities. a. A qualifying examiner(s) should opine as to whether symptoms of the two conditions (TBI residuals and psychiatric disorders) can be distinguished. b. A qualifying examiner(s) should opine as to whether the Veteran's complaints of motion sickness and speech impediment are symptoms of his TBI residuals or are separate and distinct disabilities. c. A qualifying examiner(s) should opine as to whether the Veteran's complaints of photophobia are symptoms of his service-connected migraine headaches or is a separate and distinct disability. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran has a disability resulting in chronic daily fatigue that is at least as likely as not related to proximately due to service-connected disability or aggravated beyond its natural progression by either the Veteran's service-connected sinusitis and rhinitis or his service-connected TBI or mental disorder conditions. Alternatively, the clinician should indicate if the Veteran's fatigue is merely a symptom of one of his service-connected conditions. 3. Schedule the Veteran for a VA examination for his claimed fibromyalgia or myofascial pain syndrome condition. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: a. Is the claimed fibromyalgia or myofascial pain syndrome at least as likely as not related to service? b. Is the claimed fibromyalgia or myofascial pain syndrome at least as likely as not proximately due to or aggravated by the Veteran's service-connected musculoskeletal disabilities? Provide a rationale to support the opinions. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right foot disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). Additionally, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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). 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, as are listed on the title page of this Remand. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven H. Johnston, 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.