Citation Nr: 21071665 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 20-13 574 DATE: December 1, 2021 ORDER Entitlement to service connection for gastroesophageal reflux disorder (GERD) as secondary to the service-connected acquired psychiatric disorder, to include unspecified anxiety disorder, recurrent depressive disorder, and posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for irritable colon syndrome (IBS) as secondary to the service-connected acquired psychiatric disorder, to include unspecified anxiety disorder, recurrent depressive disorder, and posttraumatic stress disorder (PTSD) is granted. Entitlement to an initial rating in excess of 30 percent disabling prior to March 11, 2019, is denied. From March 11, 2019, a rating of 100 percent disabling, but no higher, for service-connected acquired psychiatric disorder, to include unspecified anxiety disorder, recurrent depressive disorder, and PTSD is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for major depressive disorder (MDD) is denied. REMANDED Entitlement to service connection for myofascial pain in back, to include as secondary to the service-connected acquired psychiatric disorder is remanded. Entitlement to service connection for myofascial pain in chest, to include as secondary to the service-connected acquired psychiatric disorder is remanded. Entitlement to service connection for myofascial pain in head, to include as secondary to the service-connected acquired psychiatric disorder is remanded. Entitlement to service connection for myofascial pain in neck, to include as secondary to the service-connected acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran's GERD was caused and aggravated by his service-connected psychiatric disorder. 2. The Veteran's IBS was caused and aggravated by his service-connected psychiatric disorder. 3. Prior to March 11, 2019, the Veteran's psychiatric disorder resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. 4. From March 11, 2019, the Veteran's psychiatric disorder resulted in total social and occupational impairment. 5. The symptoms of the Veteran's PTSD are accounted for under his service-connected acquired psychiatric disorder. 6. The symptoms of the Veteran's MDD are accounted for under his service-connected acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for GERD as secondary to the service-connected psychiatric disorder are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for IBS as secondary to the service-connected psychiatric disorder are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. Prior to March 11, 2019, the criteria for an initial rating in excess of 30 percent disabling for service-connected acquired psychiatric disorder, to include unspecified anxiety disorder, recurrent depressive disorder, and PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9413. 4. From March 11, 2019, the criteria for a rating of 100 percent disabling, but no higher, for service-connected acquired psychiatric disorder, to include unspecified anxiety disorder, recurrent depressive disorder, and PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9413. 5. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.14. 6. The criteria for service connection for MDD are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.14. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the U.S. Navy from January 2005 to March 2005. This case comes before the Board on appeal of rating decisions from April 2018, August 2018, and November 2018. Service Connection Generally, to establish service connection a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, service connection may be granted on a secondary basis. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2019). To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b) (2012). 1. Entitlement to service connection for gastroesophageal reflux disorder (GERD) as secondary to the service-connected acquired psychiatric disorder, to include unspecified anxiety disorder, recurrent depressive disorder, and posttraumatic stress disorder (PTSD) 2. Entitlement to service connection for irritable colon syndrome (IBS) as secondary to the service-connected acquired psychiatric disorder, to include unspecified anxiety disorder, recurrent depressive disorder, and posttraumatic stress disorder (PTSD) Here, the Veteran contends that his GERD and IBS were caused or aggravated by his service-connected psychiatric disorder. Based on a preponderance of evidence, the Board agrees. At the outset, the Veteran has a current diagnosis of GERD and IBS. See May 2020 VA examination ; see also May 2020 VA examination. Thus, the first element of service connection has been met. Additionally, the second element of secondary service connection is met as the Veteran is service-connected for his psychiatric disorder. Therefore, to warrant service connection, there must be evidence that the Veteran's GERD and IBS was either caused or aggravated by his service-connected psychiatric impairment, which is generally proven by medical evidence. In that regard, in the May 2020 medical opinion, the examiner explained that the Veteran developed and was diagnosed with IBS and GERD as a direct result of his anxiety and its treatment. The examiner added that it was a well noted connection found in medical literature and supported in the Veteran's medical records. Therefore, the examiner stated, that it is at least as likely as not that IBS and GERD are due to or a result of the Veteran's unspecified anxiety disorder. The Board finds the examiner's opinion to be competent, credible, and highly probative. The examiner reviewed the pertinent evidence, accounted for the Veteran's statements, and provided an opinion based on the evidence and medical literature. Accordingly, as the preponderance of the evidence supports that the Veteran's GERD and IBS was caused or aggravated by his service-connected psychiatric disorder, service connection is warranted. 38 C.F.R. §§ 3.102, 3.310. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). As in the instant case, separate ratings for distinct periods of time, based on the facts may be for consideration. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has reviewed all the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. 3. Entitlement to an initial rating in excess of 30 percent disabling prior to March 11, 2019, and in excess of 70 percent disabling thereafter for service-connected acquired psychiatric disorder, to include unspecified anxiety disorder, recurrent depressive disorder, and PTSD Here, the Veteran contends that he is entitled to higher evaluations for his psychiatric condition. Based on the evidence, the Board agrees. At the outset, the Veteran was assigned an initial rating of 30 percent from February 15, 2018 to March 10, 2019, and a 70 percent rating from March 11, 2019, for unspecified anxiety disorder, under DC 9413. Under Diagnostic Code 9413, which is governed by a General Rating Formula for Mental Disorders, a 30 percent rating is warranted for 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 conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and/or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and/or difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, 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/or inability to establish and maintain effective relationships. A 100 percent rating is warranted for 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126; see Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. Id. The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 11617 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. In this instance, in the April 2018 VA examination, the Veteran was diagnosed with unspecified anxiety disorder with no other mental disorders diagnosed. The neuropsychologist Dr. K.K. explained that the Veteran's psychiatric condition resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. At that time, the Veteran endorsed anxiety. The Veteran explained that he was coping well through the day but had increased fatigue at the end of the day. On behavioral observations, the Veteran was oriented in all spheres, his appearance was within normal limits, eye contact was good, speech was appropriate, clear, and coherent. His mood was anxious, affect was congruent, thought process was linear and thought content was relevant. The Veteran denied auditory and visual hallucinations. His attention and concentration were within normal limits. Insight and judgment were good. Psychomotor was within normal limits. Overall, the Veteran was engaged, cooperative and had a pleasant demeanor. Then, in a private examination from April 2018, the examiner diagnosed the Veteran with PTSD but no other mental disorders. The examiner explained that the Veteran's condition caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, intermittently illogical speech, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. In an August 2018 treatment record, the Veteran explained that he was internally irritable and agitated for no reason. He stated that little things brew inside, and he zones out when angry. The Veteran stated he was not sleeping well most nights and tries to keep busy. He denied suicidal thoughts, plans, attempts or self-harming behavior. Similarly, he denied homicidal thoughts. His anxiety caused hypervigilance and alertness that the Veteran described as hearing things outside. There was no evidence of psychosis, auditory/visual hallucinations, paranoia, or delusional thinking. In a January 2019 VA examination, the Veteran was diagnosed with unspecified anxiety disorder but no other diagnoses. The psychologist explained that the Veteran's condition resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The psychologist indicated that the Veteran's mood remains up and down. He is depressed at times with trouble focusing and concentrating, anger, irritability, frustration, loss of interest in pleasurable or fun activities, and sleep issues. The Veteran denied suicidal thoughts. However, he was hypervigilant, always on alert, with physical symptoms about three to four times a week. The Veteran endorsed symptoms of depressed mood, anxiety, mild memory loss, and disturbances of motivation and mood. On behavioral observations, the Veteran was well-groomed and neatly dressed. He was fully oriented to person, place, time, and circumstance. The Veteran was fully engaged and exhibited good eye contact throughout the assessment. His mood appeared mildly anxious, with congruent affect. His speech was clear and of normal rate and tone. Thought processes were congruent and goal directed. There was no evidence of psychosis, delusions, or perceptual disturbance. The Veteran denied active suicidal/homicidal ideations, plan, or intent. Overall, his judgment and insight appeared intact. Based on the foregoing, prior to March 11, 2019, the Veteran's psychiatric condition did not warrant a rating in excess of 30 percent disabling. The Veteran's condition was often summarized as causing occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. That level of psychiatric impairment does not warrant a rating in excess of 30 percent disabling. Prior to March 11, 2019, the Veteran's condition did not warrant a higher evaluation as there was little evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; or impaired judgment or impaired abstract thinking; among other issues. Conversely, from March 11, 2019, the Veteran's psychiatric condition warranted a rating in excess of 70 percent disabling. Specifically, in the July 2020 VA examination, the Veteran was diagnosed with unspecified anxiety disorder and recurrent depressive disorder. However, the psychologist indicated that there was a significant overlap of symptoms among the diagnoses which prevents her from being able to differentiate without resorting to speculation. The psychologist summarized the Veteran's mental condition as causing total occupational and social impairment. The Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stress circumstances, including work or a work like setting, suicidal ideation, and obsessional rituals which interfere with routine activities. The psychologist remarked that the Veteran's depressed mood, sleep disturbance and decrease motivation are likely to hinder his ability to attend work on a full-time basis. She continued that the Veteran's memory problems are likely to impair his ability to learn and retain work related information. She explained that the Veteran's panic attacks were likely to hinder his ability to complete a full workday on consistent basis. Likewise, his suspiciousness of others would likely hinder his ability to develop and maintain effective work relationships. Based on the foregoing, from March 11, 2019, the Veteran's psychiatric condition most closely approximated a 100 percent disability. Accordingly, a rating of 100 percent, but no higher, for the Veteran's psychiatric condition is warranted. 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9413. 4. Entitlement to service connection for posttraumatic stress disorder (PTSD) 5. Entitlement to service connection for major depressive disorder (MDD) Here, the Veteran contends that he is entitled to service connection for PTSD and MDD. Due to rule against pyramiding, a separate compensable rating for PTSD and MDD is prohibited. As shown above, the Veteran has diagnoses of PTSD and depressive disorder along with his unspecified anxiety disorder. His PTSD and MDD were caused by the same in-service occurrence that caused his unspecified anxiety disorder. However, as discussed above, the Veteran's PTSD and MDD symptoms are already rated under his service-connected psychiatric condition. Under 38 U.S.C. § 1155 and 38 C.F.R. § 4.130, VA ratings for mental disorders, including unspecified anxiety disorder, major depressive disorder, and PTSD, are evaluated together under the same general formula. Under 38 C.F.R. § 4.14, the VA rule against the pyramiding of claims, compensation to a Veteran for more than one disability that results from the same manifestation of symptoms is prohibited. See also Brady v. Brown, 4 Vet. App. 206 ("the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology"). Accordingly, the Veteran's PTSD and MDD are subsumed under his unspecified anxiety disorder, as an acquired psychiatric disorder, to include unspecified anxiety disorder, PTSD and MDD. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). REASONS FOR REMAND 1. Entitlement to service connection for myofascial pain in back, to include as secondary to the service-connected acquired psychiatric disorder is remanded. 2. Entitlement to service connection for myofascial pain in chest, to include as secondary to the service-connected acquired psychiatric disorder is remanded. 3. Entitlement to service connection for myofascial pain in head, to include as secondary to the service-connected acquired psychiatric disorder is remanded. 4. Entitlement to service connection for myofascial pain in neck, to include as secondary to the service-connected acquired psychiatric disorder is remanded. Here, the Veteran contends that his myofascial pain was incurred in service or was caused or aggravated by his service-connected psychiatric disorder. Based on the evidence, a remand is necessary. Specifically, private treatment records showed the Veteran has a diagnosis of myofascial pain syndrome. Likewise, the Veteran contends that his psychiatric condition is related to his myofascial pain syndrome. As delineated in 38 C.F.R. § 3.159 (c)(4), a VA examination to address the question of etiology as related to service is required when the Veteran presents a claim for service connection in which there was a pertinent event, injury, or disease in service; there is evidence of current disability; the medical evidence of record does not contain sufficient competent medical evidence to decide the claim; and the Veteran indicates that the claimed disability or symptoms may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, a remand is necessary to determine the etiology of the Veteran's chronic pain syndrome. The matters are REMANDED for the following action: 1. Obtain all relevant outstanding VA treatment records, and any private treatment records identified by the Veteran. All records and/or responses received should be associated with the claims file. 2. After all outstanding treatment records have been associated with the claims file, schedule the Veteran for a VA examination to determine the etiology of his myofascial pain syndrome. The VA examiner must review the complete claims file and must note that review in the report. A copy of this REMAND must also be provided to the VA examiner. All necessary tests and studies should be accomplished, and all clinical findings reported in detail. The VA examiner should address the following: (a.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's myofascial pain syndrome had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service? (b.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's myofascial pain syndrome is caused by his service-connected psychiatric condition. (c.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's myofascial pain syndrome was aggravated (i.e., worsened beyond normal progression) by his service-connected psychiatric condition. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as "any increase in disability." See Allen v. Brown, 7 Vet. App. 439, 448 (1995). 3. The examiner should cite to the pertinent medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated, and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 4. Thereafter, readjudicate the claims on appeal. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umo, 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.