Citation Nr: 21076220 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 19-00 370A DATE: December 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted due solely to the Veteran's unspecified depressive disorder on and after October 6, 2017. Service connection for other specified trauma and stressor related disorder is granted. REMANDED Entitlement to an effective date earlier than September 14, 2017 for a separate rating for radiculopathy of the right lower extremity is remanded. Entitlement to an effective date earlier than September 14, 2017 for a separate rating for radiculopathy of the left lower extremity is remanded. Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity prior to September 30, 2021 and to a compensable rating on and after October 1, 2021 is remanded. Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity prior to September 30, 2021 and to a compensable rating on and after October 1, 2021 is remanded. Service connection for fibromyalgia is remanded. Service connection for chronic fatigue syndrome is remanded. FINDINGS OF FACT 1. The Veteran's service-connected unspecified depressive disorder has met the percentage requirements for the award of a schedular TDIU, and the evidence indicates that the nature and severity of this disability has prevented him from performing gainful employment for which his education and occupational experience would otherwise qualify him since October 6, 2017. 2. The probative evidence of record is at least in equipoise as to whether the Veteran's other specified trauma and stressor related disorder is etiologically related to his active duty service. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, the criteria for the award of a TDIU based solely on unspecified depressive disorder have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2021). 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for a grant of service connection for other specified trauma and stressor related disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from May 1990 to April 1997, including service in Kuwait. These matters are on appeal from July 2018 and January 2019 rating decisions. The issue of entitlement to service connection for post-traumatic stress disorder (PTSD) was remanded by the Board in July 2020 to afford the Veteran an additional VA medical opinion. The Agency of Original Jurisdiction (AOJ) has done so. Because the Board is granting this claim as recharacterized below, the adequacy of this medical opinion is moot. In its July 2020 decision, the Board also denied service connection for chronic diarrhea, respiratory insufficiency, chronic fatigue syndrome, and fibromyalgia, as well as increased disability ratings for unspecified depressive disorder, lumbosacral strain, and radiculopathy of the right and left lower extremities. The Board also granted earlier effective dates for radiculopathy and granted entitlement to a TDIU. The Veteran appealed the Board's decisions with regard to the TDIU, radiculopathy, fibromyalgia, and chronic fatigue syndrome claims to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Partial Remand (JMPR), the parties agreed to vacate the Board's decision with regard to those issues and remand the case to the Board for additional development. The JMPR was incorporated by reference in a Court order dated in June 2021. In a November 2021 statement, the Veteran's representative attempted to raise issues of entitlement to service connection for "residuals of radiation exposure" and diabetes. VA has not received a claim for service connection for those issues and they are not currently before the Board. The Veteran's claim for service connection for PTSD has been recharacterized as a psychiatric disability other than unspecified depressive disorder, to include PTSD and other specified trauma and stressor related disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In a September 2020 rating decision, the AOJ implemented the Board's July 2020 grant of earlier effective dates for service connection for left and right lower extremity radiculopathy. In May 2021, the Veteran submitted a Notice of Disagreement in the modernized appeals system with regard to the September 2020 rating decision; the objection raised was to the rating assigned for the left lower extremity. In a May 2021 letter, the Board informed the Veteran that it had docketed the May 2021 appeal. Because the September 2020 rating decision only implemented the Board's grant of an earlier effective date, the rating referenced in that decision was not an appealable issue and the May 2021 appeal was docketed in error. The Board will confirm the removal of the May 2021 appeal from its docket in a separate letter. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. TDIU In its July 2020 decision, the Board granted entitlement to a TDIU based on the collective impact of the Veteran's service-connected disabilities. In a September 2020 rating decision, VA assigned an effective date of October 6, 2017, the day after the Veteran's last day of full-time employment. In their JMPR, the parties before the Court instructed the Board "to address whether Appellant is entitled to TDIU based solely on his psychiatric condition." VA will grant a total disability rating when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the purposes meeting the requirement of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). The Veteran's service-connected unspecified depressive disorder is rated 70 percent disabling on and after March 13, 2017. The criteria for consideration of a schedular TDIU based solely on unspecified depressive disorder are therefore met. The Veteran was afforded a VA examination for mental disorders in May 2017, by a psychologist who listed the Veteran's symptoms for rating purposes as including difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships. The Veteran reported that he had worked in corrections for sixteen years after his separation from active duty service, that he had no education beyond high school, and that his only post-service training was as a correctional officer. In his March 2018 claim for a TDIU, the Veteran reported that he had most recently worked in institutional security at a psychiatric hospital. That employer has reported that the Veteran's employment with them ended on March 31, 2018, but that his last day of work was October 5, 2017. The Veteran has submitted a November 2017 medical opinion by a private diagnostic consultant. In a February 2018 opinion submitted to the Florida Retirement System, the same diagnostic consultant opined that the Veteran was permanently disabled from gainful employment as a result of his psychiatric disabilities. The Veteran has also submitted a December 2017 medical opinion by a private psychologist, who opined that the Veteran's "clinical symptoms preclude his ability to sustain employment." The Veteran was afforded an additional VA examination by a psychologist in July 2018. That psychologist listed the Veteran's symptoms for rating purposes as including difficulty in adapting to stressful circumstances and difficulty in establishing and maintaining effective work and social relationships. The private diagnostic consultant and private psychologist opined that the Veteran was permanently disabled from gainful employment as a result of his psychiatric disabilities. VA psychologists have found that the Veteran's symptoms include difficulty or inability in establishing and maintaining effective relationships and difficulty adapting to stressful circumstances. The Veteran has reported that his only post-service experience and training is in security at a psychiatric facility and as a corrections officer at a correctional facility, highly stressful occupations that necessarily require effective relationships. The Board therefore finds that the Veteran's service-connected psychiatric symptoms are sufficient to preclude employment in the only fields in which he has reported that he has experience or training. The Board therefore finds that the evidence is at least evenly balanced as to whether the Veteran's service-connected psychiatric disability has rendered him unemployable under the applicable regulations on and after October 6, 2017. As reasonable doubt must be resolved in favor of the Veteran, entitlement to a TDIU based on a single service-connected disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Psychiatric Disability Other Than Unspecified Depressive Disorder The Veteran's unspecified depressive disorder is already service-connected. He contends that he has an additional psychiatric disability that is etiologically related to his active duty service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has submitted a November 2017 examination report by a private diagnostic consultant. The consultant diagnosed PTSD and opined that it was "directly and causally related" to the Veteran's military service but note that this was "in the process of being confirmed by the evaluation of the appropriately credentialed and licensed mental health professional who will publish an independent report which will be tendered in this case via addendum." The Veteran has also submitted the evaluation referenced above, a December 2017 examination report by a private psychologist. The Veteran reported multiple stressors during his 1991 deployment to Kuwait. The psychologist diagnosed PTSD due to those reported stressors and depressive disorder. The Veteran was afforded a VA examination by a psychologist in July 2018. The psychologist diagnosed unspecified depressive disorder and other specified trauma and stressor related disorder. The psychologist noted that the Veteran "reported a number of symptoms related to a stressful event which occurred while station[ed] in Kuwait in July 1991" and opined that, because those symptoms "are associated with significant distress and impairment" but only met four of the five criteria for a diagnosis of PTSD, the appropriate diagnosis was other trauma and stressor related disorder. Although the psychologist did not provide an overt nexus opinion, a positive nexus opinion is implied by this rationale. The Veteran was afforded an additional medical opinion by a different VA psychologist in July 2020. The psychologist opined that it was at least as likely as not that the Veteran's other specified trauma and stressor related disorder was "attributed to work related stressors as a correction officer." The record contains three medical opinions by psychologists. Two of those opinions found that the appropriate diagnosis, other than unspecified depressive disorder, was other specified trauma and stressor related disorder and the other found that the appropriate diagnosis was PTSD. Two of those opinions found that the diagnosed disorder, other than unspecified depressive disorder, was attributable to the Veteran's stressors while deployed to Kuwait and the other found that it was attributable to post-service occupational stressors. In light of the totality of the circumstances, and after resolving all reasonable doubt in the Veteran's favor, the evidence of record supports a finding that it is at least as likely as not that at the Veteran has other specified trauma and stressor related disorder that is etiologically related to his active duty service. Accordingly, the Board finds that granting service connection for other specified trauma and stressor related disorder is the decision that is the most consistent with VA's policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a). REASONS FOR REMAND 1. Entitlement to an effective date earlier than September 14, 2017 for a separate rating for radiculopathy of the right lower extremity is remanded. 2. Entitlement to an effective date earlier than September 14, 2017 for a separate rating for radiculopathy of the left lower extremity is remanded. 3. Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity prior to September 30, 2021 and to a compensable rating on and after October 1, 2021 is remanded. 4. Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity prior to September 30, 2021 and to a compensable rating on and after October 1, 2021 is remanded. In their JMPR, the parties before the Court agreed that the Board must ensure that attempts are made to obtain any relevant outstanding records from the Social Security Administration (SSA). The parties also agreed that these records were relevant to the Veteran's radiculopathy, fatigue, fibromyalgia, and TDIU claims. (As the TDIU claim has been granted above, those records are no longer necessary for that claim.) A remand is warranted to attempt to obtain the Veteran's SSA records in accordance with the JMPR. 5. Service connection for fibromyalgia is remanded. 6. Service connection for chronic fatigue syndrome is remanded. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA Gulf War General Medical examination in April 2019. The clinician opined that "[d]iagnosing Chronic fatigue syndrome and Fibromyalgia at a one time disability exam is medically inappropriate." In their JMPR, the parties before the Court agreed that the Board must "address whether it would be reasonable to seek additional medical information in determining whether Appellant currently has CFS or fibromyalgia." Because the clinician, instead of filling out a disability benefits questionnaire pertinent to either of these claims to describe how the Veteran's symptoms do or do not meet the relevant criteria to determine whether a diagnosis was warranted, rejected the concept that a VA examination could result in such a diagnosis, a remand is warranted to seek additional VA examinations. The matters are REMANDED for the following action: 1. Contact the Social Security Administration, obtain the Veteran's complete Social Security records, including all decisions and any medical records relied upon in making those decisions, and associate them with the claims file. If the records cannot be obtained or do not exist, notify the Veteran and document their unavailability in the claims file. 2. Schedule the Veteran for an examination with an appropriate clinician who has not previously examined the Veteran for fibromyalgia. The entire claims file and a copy of this remand must be made available to the clinician for review. The clinician must provide an opinion as to whether it is as likely as not (a probability of 50 percent or greater) that any current fibromyalgia had its origin in service or is related to the Veteran's active service, including as a manifestation of an undiagnosed illness or medically unexplained chronic multi symptom illness. The clinician is advised that a disability is considered current if present at any point during the period on appeal, which began on January 11, 2018. The clinician is further advised that, even if there is no diagnosis of fibromyalgia, he or she must consider pain to constitute a disability if it has caused functional impairment during the period on appeal. Although an independent review of the claims file is required, the Board calls the clinician's attention to the November 2017 private diagnostic consultant's examination report diagnosing fibromyalgia. The rationale for any opinion expressed should be provided. Note that a lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why this is so. 3. Schedule the Veteran for an examination with an appropriate clinician who has not previously examined the Veteran for chronic fatigue syndrome. The entire claims file and a copy of this remand must be made available to the clinician for review. The clinician must provide an opinion as to whether it is as likely as not (a probability of 50 percent or greater) that any current chronic fatigue syndrome had its origin in service or is related to the Veteran's active service, including as a manifestation of an undiagnosed illness or medically unexplained chronic multi symptom illness. The clinician is advised that a disability is considered current if present at any point during the period on appeal, which began on January 11, 2018. The clinician is further advised that, even if there is no diagnosis of chronic fatigue syndrome, he or she must consider fatigue to constitute a disability if it has caused functional impairment during the period on appeal. Although an independent review of the claims file is required, the Board calls the clinician's attention to the November 2017 private diagnostic consultant's examination report diagnosing chronic fatigue syndrome. The rationale for any opinion expressed should be provided. Note that a lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why this is so. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.