Citation Nr: 21075310 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 14-41 231 DATE: December 20, 2021 ORDER Service connection for shingles, to include any residuals therefrom, is denied. A 100 percent disability rating for posttraumatic stress disorder (PTSD) with depressive disorder and anxiety disorder is granted. A 30 percent (maximum) schedular rating for benign paroxysmal positional vertigo is granted. A 20 percent disability rating, but no higher, for left upper extremity paresthesia is granted. A total disability rating based on individual unemployability (TDIU) as due to the service-connected psychiatric disability is granted. Special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s) is granted. REMANDED Entitlement to service connection for a thoracolumbar spine disorder is remanded. Entitlement to service connection for a bilateral hip disorder is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to a compensable disability rating for bilateral hearing loss is remanded. Entitlement to a disability rating in excess of 20 percent for a left shoulder strain disability is remanded. FINDINGS OF FACT 1. The Veteran has not had a shingles disability, or residuals therefrom, at any time during or approximate to the pendency of the claim. 2. Throughout the appeal period, the Veteran's service-connected psychiatric disability more nearly approximates total occupational and social impairment. 3. Throughout the appeal period, the Veteran's vertigo was manifested by dizziness and occasional staggering. 4. The Veteran's ulnar nerve paralysis in the left upper extremity is manifested by, at worst, moderate incomplete paralysis. 5. The evidence is at least in equipoise as to whether the Veteran's service-connected psychiatric disability has prevented him from obtaining or maintaining a substantially gainful occupation. 6. The Veteran's TDIU, due to the service-connected psychiatric disability, is a service-connected disability rated as total, and his other service-connected disabilities combine to a 60 percent rating. CONCLUSIONS OF LAW 1. The criteria for service connection for shingles, to include any residuals therefrom, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a rating of 100 percent for PTSD with depressive disorder and anxiety disorder are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. The criteria for a 30 percent disability rating for benign paroxysmal positional vertigo are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6204. 4. The criteria for a disability rating of 20 percent, but no higher, for ulnar nerve paralysis in the left upper extremity are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.123, 4.124, 4.124a, Diagnostic Code 8516. 5. The criteria for a TDIU due solely to the service-connected psychiatric disabilities are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 6. The criteria for SMC at the housebound rate are met. 38 U.S.C. §§ 1114 (s), 5103, 5107; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1983 to August 1992. This matter comes before the Board of Veterans Appeals (Board) on appeal from the February 2013, September 2017, and December 2018 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). As it pertains to the Veteran's claims for service connection for shingles and for a compensable rating for hearing loss, those issues were adjudicated in a February 2013 rating decision (where the RO granted service connection for hearing loss and denied service connection for shingles). The Veteran filed a Notice of Disagreement (NOD) in July 2013, and a Statement of the Case (SOC) was issued in October 2014. A substantive appeal was submitted by the Veteran in November 2014. In March 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. In November 2019, the Board remanded the issues in order to obtain VA examinations regarding the severity of the Veteran's hearing loss and to assist in determining the nature and etiology of the Veteran's claimed shingles disability. These claims were subsequently readjudicated by the RO in an August 2020 Supplemental SOC (SSOC) and have been returned to the Board for readjudication. Regarding the Veteran's claims for service connection for COPD, OSA, a lumbar spine disorder, and bilateral hip disorder, a September 2017 rating decision denied these claims. The Veteran filed a NOD in October 2017 and a SOC was used by VA in March 2020. The Veteran filed a substantive appeal in March 2020. In February 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. The issues regarding increased ratings for the Veteran's psychiatric disability (PTSD, depressive disorder, and anxiety disorder), a left shoulder disability, vertigo, and left upper extremity paresthesia, were initially granted in a December 2018 rating decision. In April 2019, the Veteran filed a NOD with the initial ratings assigned for each disability. In November 2019, the Board remanded the issues for the sole purpose of issuing a SOC along with information about the process for perfecting an appeal. Manlincon v. West, 12 Vet. App. 238, 240 (1999). A SOC was issued by VA in November 2020 and the Veteran filed a substantive appeal to the Board in November 2020. The Veteran testified at a hearing before the undersigned Veterans Law Judge regarding these issues in February 2021. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Shingles Upon review of the evidence of record, both lay and medical, the Board finds that the Veteran does not have a current diagnosis of shingles, to include any residuals therefrom, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). During a January 2020 VA skin examination, the Veteran reported having shingles in service in 1992 and twice after service in 1997 and 2001. Notably, the Veteran filed a claim for service connection for shingles in 2012, more than 10 years after his most recent diagnosis of shingles in 2001. The Veteran has not been found to have any residuals following his shingles outbreaks, including scarring. See January 2020 VA skin examination report. The Veteran did not report any residuals symptoms associated with shingles during the February 2021 Board hearing. The Veteran has also not provided any evidence of any residuals associated with shingles that produces functional limitation or impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In order to warrant service connection, the threshold requirement is competent evidence of the existence of the claimed disability at some point during a Veteran's appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary's adjudication of the claim ); Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Here, while the Veteran believes he has current diagnoses of shingles, he is not competent to provide diagnoses in this case. Although the presence of a skin rash is readily observable by a lay person, the diagnosis of shingles requires specialized medical education, knowledge of the interaction between multiple organ systems in the body, and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. For these reasons, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for shingles. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim for service connection, that doctrine is not helpful to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Disability Ratings Laws and Regulations Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. PTSD with Depressive Disorder and Anxiety Disorder The Veteran's service-connected psychiatric disability (including PTSD, depressive disorder, and anxiety disorder) has been rated as 70 percent disabling throughout the entire rating period on appeal. Under Diagnostic Code 9411, a 70 percent disability rating is assigned 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 that is 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 inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent disability rating is assigned 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 of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, or for the veteran's own occupation or name. 38 C.F.R. § 4.130. In applying the above criteria, the Board notes that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so). In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV or DSM 5). See Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. See Mauerhan, 16 Vet. App. 436. Upon review of all evidence of record, both lay and medical, the Board finds that the evidence is in equipoise as to whether the Veteran's psychiatric disability results in total occupational and social impairment, warranting a 100 percent schedular rating. The relevant evidence includes VA examinations conducted in October 2012, November 2018, and September 2020. Symptoms reported during these evaluations included depressed mood and anxiety (see 2012 report); suspiciousness, panic attacks, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, flattened affect, impaired judgment, impaired abstract thinking, gross impairment in thought processes or communication, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, obsessional rituals which interfere with routine activities, impaired impulse control, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. See 2018 VA examination report. The Veteran has also been found to have significant occupational impairment due to his service-connected psychiatric disability. During the 2018 VA examination, it was noted that the Veteran had many different jobs since service discharge. At one job (in 1995) he had an overwhelming feeling of being trapped and walked off the job. Despite psychiatric treatment, the Veteran continued to have these feelings in work settings. The Veteran was fired from another job for having too many medical appointments and for a "bad attitude." During the 2020 VA examination, the Veteran indicated that his psychiatric disability would prevent him from working because he would have "trouble getting along with other people." In a November 2018 VA medical opinion, the examiner (who conducted the 2018 examination) indicated that the Veteran's psychiatric disorders resulted in "serious and life altering" impairments rendering him "unable" to maintain a marriage and family and unable to hold down a job. A September TDIU medical opinion indicated that the Veteran had "significant" difficulty functioning around other people, had difficulty functioning as a team member, and felt uncomfortable around others. The evidence also includes a private vocational assessment by S. H. (a vocational consultant) dated in February 2021. At that time, S. H. indicated that the Veteran's service-connected PTSD caused limitation in his ability to sleep, panic attacks 4-6 times a week, irritability, heightened startled response, flashbacks, and social isolation. Due to his impaired motivation, anxiety, panic attacks, and intrusive memories, the Veteran had difficulty focusing on tasks. The Veteran has also been noted to be single and living alone. During the February 2021 Board hearing, the Veteran described himself as a "loner." He has reported that he is not a member of any club or organization. See 2020 VA examination. During the psychiatric evaluation in 2018, it was noted that the Veteran avoided working because of his social anxiety, isolation, and hypervigilance. He also avoided shopping malls, and indicated that he had somebody drive him in heavy traffic because he was triggered by being in confined or overwhelming situations. The Veteran also reported losing many good jobs with major companies that had good potential because of his inability to be around people. The Veteran has also been found to have symptoms specifically considered in the 100 percent rating criteria, including grossly inappropriate behavior, and intermittent inability to perform activities of daily living. 38 C.F.R. § 4.130. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that a rating of 100 percent for the service-connected psychiatric disability is warranted for the entire rating period on appeal. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Vertigo The Veteran is currently in receipt of a 10 percent rating for his vertigo disability throughout the entire rating period on appeal. Diagnostic Code 6204 provides the rating criteria for peripheral vestibular disorders. A maximum 30 percent rating is provided if there are symptoms of dizziness and occasional staggering. See 38 C.F.R. § 4.87, Diagnostic Code 6204. After reviewing the record, the Board finds that the lay and medical evidence is at least in equipoise as to whether the Veteran's vertigo disability more nearly approximates the 30 percent rating throughout the appeal period. In making this determination, the Board is resolving reasonable doubt in favor of the Veteran based on his credible reports of dizziness and occasional staggering described during the February 2021 Board hearing, and his reports of ongoing issues with vertigo, including dizziness, described during the April 2018 VA examination. See February 2021 Board Hearing Transcript at pg. 21; see also April 2018 VA examination report (Veteran reported episodes of room spinning sensation about once a week every month). An October 2019 VA treatment record further indicated that the Veteran's dizziness was worse with moving his head in certain ways. A private medical report from Dr. Phelps, an orthopedic surgeon, dated in July 2021, indicated that, due to his vertigo, the Veteran had to be extremely careful with how he moved and had to grab safety rails to prevent falls. Resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence reveals findings that more nearly approximate vertigo manifested by dizziness and occasional staggering, such that a maximum 30 percent rating is warranted under Diagnostic Code 6204 throughout the appeal period. The Veteran is competent to report symptoms of dizziness and staggering. The Board has considered whether any other diagnostic code relating to vertigo would provide for a disability rating higher than 30 percent but finds that none apply in this case. The evidence does not show impairments associated with any other disease of the ear for which the Veteran is not already service connected. In this regard, the Veteran is separately rated for bilateral hearing loss and tinnitus, and pursuant to the Note to Diagnostic Code 6204, hearing impairment is to be separately rated and combined under Diagnostic Code 6204. See 38 C.F.R. § 4.87, Diagnostic Code 6204. Further, while ratings higher than 30 percent are provided for Meniere's syndrome under Diagnostic Code 6205, the medical evidence during the appeal period does not show the Veteran is diagnosed with Meniere's syndrome. Thus, a higher rating is not warranted. Accordingly, the Board finds that an increased disability rating of 30 percent, but no higher, for the Veteran's vertigo is warranted. Ulnar Nerve Paralysis of the Left Upper Extremity The Veteran's ulnar nerve paralysis of the left upper extremity has been assigned a 10 percent rating for mild, incomplete paralysis of the minor extremity under 38 C.F.R. § 4.124a, Diagnostic Code 8516. (Because he is right-hand dominant, the left hand is considered his minor extremity.) A 20 percent rating is warranted when there is moderate, incomplete paralysis. A 30 percent rating is warranted when there is severe, incomplete paralysis. A 50 percent rating is warranted for complete paralysis. Complete paralysis of the ulnar nerve results in "griffin claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers, cannot spread the fingers (or reverse), cannot adduct the thumb; and flexion of wrist weakened. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. The evidence includes a September 2020 VA peripheral nerves examination report, which specifically indicated that the Veteran had "moderate" incomplete paralysis of the ulnar nerve. An April 2018 VA examination report noted that the Veteran had mild incomplete paralysis of the sciatic nerve. The Veteran's symptoms of have remained relatively consistent throughout the rating period on appeal. See September 2020 and April 2018 VA examination reports (Veteran reported burning sensation to the posterior upper left arm and numbness and tingling in the 4th and 5th digits); see also February 2021 Board Hearing Transcript at pg. 25 (Veteran stated that he has burning and radiating pain). The Board will resolve reasonable doubt in favor of the Veteran and assign a 20 percent rating, which is consistent with moderate, incomplete paralysis of the left (minor) ulnar nerve. The Board further finds that a rating in excess of 20 percent is not warranted under DC 8516. The Board acknowledges a private medical opinion by Dr. Phelps (an orthopedic surgeon), submitted by the Veteran in July 2021. At that time, Dr. Phelps also concluded that the Veteran's paresthesia was of "moderate" severity. Although Dr. Phelps indicated that this warranted a 30 percent rating under DC 8516, a 30 percent rating for moderate incomplete paralysis of the ulnar nerve is only appropriate for the major extremity (i. e., the right extremity). Here, the Veteran's minor extremity is the service-connected disability; as such, a 20 percent rating is appropriate. Moreover, the medical evidence of record does not show that the Veteran has been found to have more than moderate symptoms. See e. g., July 2020 VA examination (noting, at worst, moderate intermittent pain and numbness). Accordingly, the Board finds that a rating in excess of 20 percent is not warranted. TDIULaws and Analysis The Veteran maintains that he is unable to work, in part, due to his psychiatric disability. He has indicated that he last worked in February 2012 and last worked as a rail car technician. A veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. After careful consideration of the record, to include both the lay and medical evidence, the Board resolves any reasonable doubt in the Veteran's favor and finds that he is deemed unemployable solely by reason of his service-connected psychiatric disabilities. In an October 2012 VA psychiatric examination, the Veteran reported that he was fired from three separate jobs due to having a "bad attitude" and for missing too much work. He also reported that he would "blow up with anxiety attacks." During a 2018 VA examination, it was noted that the Veteran had many different jobs since service discharge. At one job (in 1995) he had an overwhelming feeling of being trapped and walked off the job. Despite psychiatric treatment, the Veteran continued to have these feelings in work settings. The Veteran was fired from another job for having too many medical appointments and for a "bad attitude." During the 2020 VA examination, the Veteran indicated that his psychiatric disability would prevent him from working because he would have "trouble getting along with other people." In a November 2018 VA medical opinion, the examiner indicated that the Veteran's psychiatric disorders resulted in "serious and life altering" impairments rendering him "unable" to maintain a marriage and family and to hold down a job. A September TDIU medical opinion found that the Veteran had "significant" difficulty functioning around other people and difficulty functioning as a team member as the Veteran felt uncomfortable around others. The evidence also includes a private vocational assessment by S. H. (a vocational consultant) dated in February 2021. At that time, S. H. indicated that the Veteran's service-connected PTSD caused limitation in his ability to sleep, panic attacks 4-6 times a week, irritability, heightened startled response, flashbacks, and social isolation. Due to his impaired motivation, anxiety, panic attacks, and intrusive memories, the Veteran had difficulty focusing on tasks. Based on the foregoing, and with resolution of all reasonable doubt in favor of the Veteran, a TDIU is warranted as the evidence demonstrates the Veteran had been unable to secure or maintain a substantially gainful occupation due solely to his service-connected psychiatric disabilities. As noted above, the Veteran had been found to have weekly panic attacks, "significant" difficulty functioning around other people, and an inability to hold down a job. He has also been noted to have grossly inappropriate behavior and an intermittent inability to perform activities of daily living. See November 2018 VA examination report. The Board finds that these restrictions would significantly limit the Veteran's ability obtain or maintain gainful employment. As such, the Board resolves doubt in the Veteran's favor in finding that he is unable to obtain or maintain substantially gainful employment due solely to his service-connected psychiatric disabilities for the duration of the rating period on appeal. Therefore, the Veteran's TDIU claim is granted. Special Monthly Compensation - Laws and Analysis The Court has held that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement SMC under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. 280, 294 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). Special monthly compensation is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. The Court has held that although a TDIU may satisfy the "rated as total" element of section 1114(s), a TDIU based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of "a service-connected disability" because that requirement must be met by a single disability. The Court declared, however, if a Veteran were awarded a TDIU based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, that the order of the awards was not relevant to the inquiry as to whether any of the disabilities alone would render the Veteran unemployable and thus entitled to a TDIU rating based on that condition alone. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). In this case, the Board notes that as a result of this decision, a TDIU due to the Veteran's service-connected psychiatric disability has been granted for the rating period on appeal. Thus, for SMC purposes, this disability satisfied the requirement of a "service-connected disability rated as total." See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). Because the Veteran has a single service-connected disability rated as total (i.e., his TDIU due solely to service-connected psychiatric disability), and has additional service-connected disabilities (i.e., left shoulder strain, cervicalgia, vertigo, tinnitus, and left upper extremity paresthesia) that are independently rated as at least 60 percent disabling. Therefore, in light of the Court's decisions in Bradley and in Buie, entitlement to SMC at the housebound rate under 38 U.S.C. § 1114 (s) is granted. REASONS FOR REMAND Thoracolumbar Spine and Bilateral Hip Disorders The Veteran maintains that he first experienced back and hip pain in service as a result of driving cargo trucks and five-ton trailers while in Desert Storm. See Board Hearing Transcript at pgs. 3-4. The Veteran indicated that he was given ice packs and asprin in service. Following service, the Veteran reported that he continued to experience back and hip pain, but did not seek treatment because he did not have health insurance. The Veteran's DD Form 214 confirms that the Veteran served as a motor transport operator and served in Desert Storm. The Board notes that most of the Veteran's service treatment records are unavailable. See January 2013 memorandum (outlining efforts made by VA to obtain service records). Since the Veteran's service records are unavailable, the Board has a heightened obligation to explain its findings and conclusions and to carefully consider the benefit of the rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). VA treatment records include radiographs conducted in September 2020, which showed degenerative disc disease at L1-L3 of the spine and bilateral hip joint degenerative changes. The Board acknowledges a private medical opinion by Dr. Phelps (an orthopedic surgeon), submitted by the Veteran in July 2021. Although Dr. Phelps opined that the Veteran's back and hip conditions were "service connected," adequate rationales were not provided. In this regard, Dr. Phelps noted that the Veteran had back issues since 1982 (prior to service entrance) and continued to have back pain in service. Notably, there is no evidence of a pre-existing spine disorder at service entrance. See March 1983 Report of Medical Examination. As it pertains to the hips, Dr. Phelps indicated that the vehicles the Veteran drove had no shock prevention or seat belts, meaning that the Veteran bounced around all over the vehicles. The Veteran began experiencing back and hip pain in service and continued to have pain while working at the Post Office. The Veteran self-treated his symptoms as he did not have health insurance. The Board notes, however, that a review of VA treatment records shows complaints of right hip pain as due to the Veteran's lumbar spine disorder. There are no complaints of left hip pain despite a diagnosis of bilateral hip joint degenerative changes. It does not appear that Dr. Phelps properly reviewed and addressed the post-service VA treatment records. The Veteran has not been afforded a VA examination regarding his spine and hip disorders despite evidence of current diagnoses and some indication that they may be related to service. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, a remand is warranted. OSA The Veteran maintains that his OSA is related to service. During the February 2021 Board hearing, the Veteran indicated that he could not recall the first time he was told about his apneas in service, but he did indicate that his former wife had witnessed his apneas while he was stationed in Germany. The Veteran was first diagnosed with OSA in 2012. See September 2012 VA sleep medicine consult note. The evidence also suggests a possibility that the Veteran's OSA may be secondary to the Veteran's service-connected psychiatric disabilities. During the 2021 Board hearing, the Veteran stated that he used a CPAP machine but that it was "not really effective." He specifically stated that when he wakes up, the CPAP machine is "across the room." The Veteran believed that during sleep he tore it off because "I don't know if I panic." VA psychiatric examinations and VA treatment records show continued symptoms of chronic sleep impairment and insomnia due to the service-connected psychiatric disability. The Board acknowledges a private medical opinion by Dr. Phelps (an orthopedic surgeon), submitted by the Veteran in July 2021. Although Dr. Phelps opined that the Veteran's OSA was "service connected," an adequate rationale was not provided. The Veteran has not been afforded a VA examination regarding his spine and hip disorders despite evidence of current diagnoses and some indication that they may be related to service. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, a remand is warranted. COPD The Veteran maintains that his COPD is related to his duties while guarding oil fires and burn pits during service. VA treatment records confirm a diagnosis of COPD. The Board acknowledges a private medical opinion by Dr. Phelps (an orthopedic surgeon), submitted by the Veteran in July 2021. Although Dr. Phelps opined that the Veteran's COPD was "service connected," an adequate rationale was not provided. Dr. Phelps indicated that the Veteran began having breathing difficulties during his time guarding oil fires and burn pits; however, no medical evidence was provide showing a link between the Veteran's exposure in service and the development of COPD. The Veteran's smoking history was also not addressed by Dr. Phelps. The Veteran has not been afforded a VA examination regarding his spine and hip disorders despite evidence of current diagnoses and some indication that they may be related to service. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, a remand is warranted. Hearing Loss During the February 2021 Board hearing, the Veteran indicated that his hearing loss had worsened since his last VA audiological examination conducted in January 2020. Specifically, the Veteran stated that he had a procedure to his eustachian tubes that "didn't turn out so well." He testified that he had another appointment at VA to try to correct the issue. On remand, updated VA treatment records should be obtained and associated with he claims file. Additionally, the Veteran should be afforded a new VA audiological examination to assess the severity of his hearing loss disability. Left Shoulder The Veteran was most recently afforded a VA shoulder examination in September 2020; however, the Board finds this examination to be inadequate for rating purposes. In this regard, the examiner indicated that the Veteran had full range of motion in the left shoulder, but simultaneously indicated pain with flexion, abduction, external rotation, and internal rotation. The examiner did not indicate at which degree the Veteran's pain began. See VAOPGCPREC 9-98 (recognizing the motion effectively ends where pain begins). Moreover, the examiner indicated that the Veteran did not have flare-ups pertaining to the left shoulder. However, during the February 2021 Board hearing, the Veteran testified that he has flare-ups of the left shoulder "every day." See id at pg. 25. As such, a remand for a new VA examination is required. The matters are REMANDED for the following actions: 1. Obtain updated VA treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA thoracolumbar spine examination to assist in determining the nature and etiology of his claimed back disorder(s). Any indicated tests should be accomplished. The examiner should review the claims file prior to examination, to include any newly associated records obtained as a result of this remand. Then, the examiner is asked to provide an opinion as to the following: (a.) List all current thoracolumbar spine disorders. (b.) For each diagnosis, state whether it is at least as likely as not (50 percent or more probability) that the Veteran's spine disorder(s) first manifested in service, were incurred in service, or are otherwise related to service. **The examiner must address the Veteran's contentions of low back pain in service as a result of driving cargo trucks and five-ton trailers while in Desert Storm. The Veteran has reported that he did not seek medical attention following service as he did not have health insurance coverage. **The examiner is advised that most of the Veteran's service treatment records are unavailable. Therefore, the examiner may not rely solely on the lack of medical documentation during service as rationale for any opinion provided. (c.) The examiner should provide a complete rationale for each opinion. 3. Schedule the Veteran for a VA bilateral hip examination to assist in determining the nature and etiology of his claimed hip disorder(s). Any indicated tests should be accomplished. The examiner should review the claims file prior to examination, to include any newly associated records obtained as a result of this remand. Then, the examiner is asked to provide an opinion as to the following: (a.) List all current bilateral hip disorders. (b.) For each diagnosis, state whether it is at least as likely as not (50 percent or more probability) that the Veteran's bilateral hip disorder(s) first manifested in service, were incurred in service, or are otherwise related to service. **The examiner must address the Veteran's contentions of hip pain in service as a result of driving cargo trucks and five-ton trailers while in Desert Storm. The Veteran has reported that he did not seek medical attention following service as he did not have health insurance coverage. **The examiner is advised that most of the Veteran's service treatment records are unavailable. Therefore, the examiner may not rely solely on the lack of medical documentation during service as rationale for any opinion provided. (c.) The examiner should provide a complete rationale for each opinion. 4. Schedule the Veteran for a VA sleep apnea examination to assist in determining the nature and etiology of his diagnosed OSA. Any indicated tests should be accomplished. The examiner should review the claims file prior to examination, to include any newly associated records obtained as a result of this remand. Then, the examiner is asked to provide an opinion as to the following: (a.) State whether it is at least as likely as not (50 percent or more probability) that the Veteran's diagnosed OSA first manifested in service, was incurred in service, or is otherwise related to service. **The examiner is advised that most of the Veteran's service treatment records are unavailable. Therefore, the examiner may not rely solely on the lack of medical documentation during service as rationale for any opinion provided. (b.) If not related to service, state whether it is at least as likely as not (50 percent or more probability) that the Veteran's diagnosed OSA is either caused or aggravated by the Veteran's service-connected psychiatric disability. **The examiner MUST consider the Veteran's statements regarding the ineffectiveness of his CPAP machine. The Veteran specifically stated that when he wakes up, the CPAP machine is "across the room." The Veteran believed that during sleep he tore it off because "I don't know if I panic." VA psychiatric examinations and VA treatment records show continued symptoms of chronic sleep impairment and insomnia due to the service-connected psychiatric disability. **The examiner is advised that aggravation need NOT be permanent. See Ward v. Wilkie, 31 Vet. App. 233 (2019). (c.) The examiner should provide a complete rationale for each opinion. 5. Schedule the Veteran for a VA pulmonary/respiratory examination to assist in determining the nature and etiology of his diagnosed COPD. Any indicated tests should be accomplished. The examiner should review the claims file prior to examination, to include any newly associated records obtained as a result of this remand. Then, the examiner is asked to provide an opinion as to the following: (a.) State whether it is at least as likely as not (50 percent or more probability) that the Veteran's diagnosed COPD first manifested in service, was incurred in service, or is otherwise related to service. **The examiner is advised that most of the Veteran's service treatment records are unavailable. Therefore, the examiner may not rely solely on the lack of medical documentation during service as rationale for any opinion provided. **The Veteran has reported that he first experienced breathing problems in service as a result of guarding oil fires and burn pits. (b.) The examiner should provide a complete rationale for each opinion. 6. Schedule the Veteran for a VA audiological examination in order to assist in determining the current level of severity of the bilateral hearing loss disability. 7. Schedule the Veteran for a VA examination to evaluate the current severity of his service-connected left shoulder disability. (a.) Provide the range of motion of the right and left shoulders in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should provide an explanation for this determination in the report. (b.) If pain is found during the examination, the examiner should note when the pain begins. (c.) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion (d.) The examiner must estimate the Veteran's range of motion loss during flare-ups. ** If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion. 8. Then, readjudicate the remanded claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.