Citation Nr: 21072037 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-30 142 DATE: December 2, 2021 ORDER Entitlement to a disability rating of 70 percent, but no higher, is awarded for service-connected acquired psychiatric condition to include posttraumatic stress disorder (PTSD). Entitlement to service connection for muscle joint pain and cramps, to include as due to Gulf War Syndrome, is granted. Entitlement to service connection for disability manifested by abdominal pain with nausea and vomiting (claimed as a pancreatic condition), to include as due to Gulf War Syndrome, is granted. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's service-connected acquired psychiatric disorder symptoms most closely approximates occupational and social impairment with deficiencies in most areas. 2. The Veteran's muscle joint pain and cramps, which first began in service, is due to an undiagnosed illness. 3. The Veteran's abdominal pain with nausea and vomiting, which first began in service, is unexplained by any structural, endoscopic, laboratory or other objective signs of injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 70 percent disability rating for service-connected acquired psychiatric condition to include PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.14, 4.124a, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to service connection for muscle joint pain and cramps have been met. 38 U.S.C. §§ 1110, 1117; 38 C.F.R. §§ 3.317. 2. The criteria for entitlement to service connection for disability manifested by abdominal pain with nausea and vomiting (claimed as a pancreatic condition) have been met. 38 U.S.C. §§ 1110, 1117; 38 C.F.R. §§ 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 1997 to July 2001 and from February 2003 to June 2004. This matter before the Board of Veterans' Appeals (Board) is on appeal from a July 2017 rating decision and a November 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina (Agency of Original Jurisdiction (AOJ)). The Veteran testified at a virtual hearing before the undersigned in May 2021. A transcript of the proceeding is of record. 1. Entitlement to a disability rating in excess of 30 percent for service-connected acquired psychiatric condition to include PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 12627 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Veteran's acquired psychiatric disorder is rated under 38 C.F.R. § 4.130, DC 9411. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. A 30 percent disability rating for mental disorders is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but generally functioning satisfactorily, with routine behavior, self-care, and normal conversation, due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, and/or recent events). 38 C.F.R. § 4.130, DC 9411. A 50 percent disability rating for an acquired psychiatric disorder is warranted when the Veteran's symptoms manifest as follows: 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 (i.e. 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. Id. Acquired psychiatric disorders evaluated at 70 percent disabling require the following manifestations: 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 that 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 the inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for mental conditions manifesting with total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The Veteran seeks a disability rating in excess of 30 percent for the entirety of the period on appeal, i.e., since December 2016 for his acquired psychiatric disorder to include PTSD. A review of the Veteran's file reveals the following evidence as it relates to his claim. The Veteran filed his claim for entitlement to an acquired psychiatric disorder to include PTSD in December 2016. In support of his claim, he provided CAPRI VA treatment records, which documented that he received treatment for mental health beginning in November 2013 (though the Board acknowledges that he made calls to the Veteran Crisis Hotline on several occasions prior to that date). In July 2017, the Veteran received a VA examination for his psychiatric condition. The examiner recorded a diagnosis of PTSD and indicated his symptoms manifest with occupational and social impairment that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or that his symptoms are controlled by medication. He noted the Veteran's symptoms primarily included anxiety and chronic sleep impairment. Thereafter, additional CAPRI VA treatment records were associated with the file, spanning dates from February 2017 through June 2017. A mental health outpatient note dated April 2017 recorded that the Veteran endorsed experiencing frequent nightmares, night sweats, flashbacks, intrusive thoughts, and hypervigilance. He also reported difficulty sleeping and concentrating. The Veteran subsequently underwent a three-hour VA evaluation for PSTD, the results of which concluded that he did, in fact, have a diagnosis of PTSD. He denied current or past suicidal and/or homicidal ideation at that time; he further denied experiencing hallucinations or delusions. A detailed mental health report was also provided in May 2017. This report included endorsements from the Veteran of regular irritability and avoidance behaviors at work to avoid conflict. He denied suicidal/homicidal ideation, plan, or intent. In the past, he had substance abuse issues; at the time of the report, he was in remission. His judgment and insight were intact. Other CAPRI VA treatment notes include evidence that he received individual therapy for PTSD until August 2017 when he requested his treatment be placed on hold while he engaged in couples therapy. Based on the evidence of record, the AOJ granted entitlement to an acquired psychiatric disorder to include PTSD in a July 2017 rating decision and awarded a 30 percent disability rating. He subsequently appealed this disability rating in a November 2017 Notice of Disagreement; his appeal was perfected in May 2018. Prior to the Veteran's hearing, additional CAPRI VA treatment records were associated with the file. VA psychiatry notes consistently reported that the Veteran had appropriate affect and his thoughts were linear and goal-directed. He denied suicidal and homicidal ideation. In May 2018, his records indicate a shift in his mental health. He endorsed experiencing multiple stressors that exacerbated his PTSD symptoms and sought to reengage in specialty mental health treatment. His insight and judgment were fair, and he was oriented x3. He denied suicidal and/or homicidal ideations and hallucinations. A Disability Benefits Questionnaire (DBQ) was performed in April 2020 by a psychologist, Dr. P.W. He documented the Veteran's diagnosis of PTSD and also included major depressive disorder, generalized anxiety disorder, and somatic symptom disorder, pain, severe. He reported that the Veteran suffers from occupational and social impairment with deficiencies in most areas due to his symptoms, which included depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, near-continuous panic or depression, chronic sleep impairment, memory loss, flattened affect, impaired abstract thinking, disturbances in motivation and mood, difficulty/inability in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, suicidal ideation, obsessional rituals interfering with routine activities, impaired impulse control, spatial disorientation, persistent delusions or hallucinations, and disorientation to time or place. In conjunction with the DBQ, Dr. P.W. also provided a thorough psychological analysis. The assessment describes how the Veteran experiences nightmares, startled response, hypervigilance, flashbacks, intrusive thoughts, sleep disturbance, mood disturbances including anger and irritability, weekly panic disorder, restricted affect, poor social interactions, and immediate and short-term memory problems. He also exhibits avoidant behaviors and prefers isolation. Notably, Dr. P.W. acknowledged the prior VA examination performed in July 2017, but found that it was merely cursory and informational. Following the administration of a battery of tests, Dr. P.W. concluded that the Veteran's PTSD was severe and will likely continue in severity throughout the course of his life. The Veteran testified during his March 2021 virtual hearing that his PTSD symptoms have gotten worse, especially in light of his profession as a nurse during the Covid-19 pandemic. In fact, he left his previous employment because he experienced a lot of triggers; he is now employed at a new medical facility. He testified that while his CAPRI VA treatment records noted his symptoms worsened in 2018, they were difficult to manage prior to then; he explained that his peak severity occurred between 2016 and 2018. According to Dr. P.W.'s report, the Veteran experiences difficulty adapting to stress, suicidal ideations, obsessional rituals, and impulse control; the Veteran testified that these symptoms have been present since 2016. Based on the evidence of record and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran is entitled to a 70 percent disability rating for the entirety of the period on appeal. The Veteran has credibly testified that he experienced peak-severity PTSD symptoms from 2016 through 2018; thereafter, he learned coping mechanisms, but still experienced them. While his July 2017 VA examination noted only anxiety and chronic sleep impairment, the Board agrees with Dr. P.W. in finding that this examination appears to have been cursory and introductory, not fully assessing the level of impairment caused by the Veteran's PTSD. The Board does not find that the frequency, severity, and duration of the Veteran's symptoms warrants a 100 percent disability rating. He is able to maintain employment and does not suffer from gross impairment in thought processes or communication, display grossly inappropriate behavior, or appear unable to perform activities of daily living. The Board acknowledges that evidence of record suggests he suffers from memory loss and disorientation, but the evidence does not suggest it rises to the level warranting a 100 percent disability rating. Resolving reasonable doubt in favor of the Veteran, the Board will award a 70 percent disability rating for the entirety of the period on appeal. 2. Entitlement to service connection for muscle joint pain, to include as due to Gulf War Syndrome. 3. Entitlement to service connection for disability manifested by abdominal pain with nausea and vomiting (claimed as a pancreatic condition), to include as due to Gulf War Syndrome. Service connection may be established for a chronic disability manifested by certain signs or symptoms which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2021, and which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: (1) Chronic fatigue syndrome; (2) Fibromyalgia; (3) Functional gastrointestinal disorders (FGID); or (4) Any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness; or any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a). An FGID is defined as a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. 38 C.F.R. § 3.317(a)(2)(i)(3). Note. Specific FGIDs include IBS and functional constipation. Id. The Veteran contends that he experiences muscle and joint pain due to his active duty service. He argues that the muscle cramps in his thighs and feet as well as ankle pain are symptoms of an undiagnosed illness based on his exposure to environmental hazards during his service in Southwest Asia. He reportedly began experiencing join issues during his first year on active duty after completing airborne school in 1998. His ankles would swell, resulting in him elevating them for relief; he was subsequently deployed, where he later experienced muscle cramps and swelling in his legs, feet, and thighs. A VA examiner in August 2018 determined that the Veteran's muscle cramps were symptoms of an undiagnosed illness. However, the AOJ denied the Veteran's claim because the examination "failed to reveal any compensable symptoms." However, compensable symptoms are not legally necessary if the symptoms first began in service. 38 C.F.R. § 3.317(a)(1)(i). The credible lay statements place the onset of muscle cramps and pain during service. As such, the criteria for service connection for muscle pain and cramps have been met. The Veteran contends that he manifests a pancreatic condition that is etiologically related to his active duty service. Specifically, he testified during his virtual Board hearing that he first began experiencing gastrointestinal problems while on active duty; he asked his family to send him TUMs in his care packages and experienced acute attacks of vomiting and severe pain. He ultimately ended up in the hospital for several days after separation due to 'acute pancreatitis." The Veteran reports that he experiences the same symptoms today that he did during his active duty service. A VA examination was performed in August 2018 that recorded a diagnosis of pancreatitis with a date of diagnosis as "2000 possibly, 2013." According to the VA examiner, the diagnostic studies performed in conjunction with the examination do not support ongoing pancreatitis; rather, the endoscopic diagnosis was revealed to be gastroparesis with retained food/bezoar. She concluded that pancreatitis is a diagnosable condition with a known etiology in this case (alcohol use, stemming from the Veteran's prior substance abuse) and therefore, was not due to an environmental exposure in Southwest Asia. She also opined gastroparesis with bezoar is a diagnosable condition, though the etiology was not known at that time. The Veteran disagrees with the findings of this examination based on his medical training. He explained during his virtual hearing that he had mistakenly eaten a bite of food prior to this testing when he was supposed to fast for 24 hours; he believes this mistake resulted in an inaccurate diagnosis. Moreover, prior to the case coming before the Board, additional treatment records were associated with the file that reflected the Veteran was seen at the Durham VA in July 2021 for recurrent nausea, vomiting, and abdominal pain. The Veteran was provided the following summary of his visit: Your main problem treated during this hospital stay (discharge diagnosis) was: Abdominal pain with nausea/vomiting. You have had recurrent episodes of abdominal pain with nausea and vomiting without a clear cause. This admission an EGD (upper scope) showed some mild inflammation of stomach lining and distal eshophagus but nothing that would explain your symptoms. You gradually improved w/ nausea and pain meds and have been able to tolerate a regular diet. You have close follow-up with the GI doctors on 7/28/21. Given that you had worsening of your GI symptoms when you experienced stressors you are being referred to outpatient mental health clinic to follow up on your prior mental health diagnoses to see if this helps. Additionally we recommend you abstain from using CBD products in case this is contributing. Additionally, an outstanding endoscopic report from Duke Health dated February 2019 was also provided following the hearing which indicated an impression of findings being indeterminate for chronic pancreatitis. Here, the 2018 VA examiner stated that diagnostic studies did not support ongoing pancreatitis but did reveal gastroparesis with retained food/bezoar. However, subsequent diagnostic studies by VA found that the Veteran manifested recurrent episodes of abdominal pain with nausea and vomiting without a clear cause and that diagnostic studies, while showing some mild inflammation of stomach lining and distal eshophagus, did not explain his symptoms. The diagnostic studies from Duke Health were indeterminate for chronic pancreatitis. Overall, the Board finds that the Veteran's abdominal pain with nausea and vomiting, which first began in service, is unexplained by any structural, endoscopic, laboratory or other objective signs of injury or disease. This meets the definition of an FGID subject to presumptive service connection under 38 C.F.R. § 3.317(a)(2)(i)(B)(3). T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Victoria A. Banis, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.