Citation Nr: 21010071 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-25 146 DATE: February 24, 2021 ORDER From December 5, 2012 to September 8, 2015, a rating of 70 percent for posttraumatic stress disorder (PTSD) is granted. From September 9, 2015, a rating greater than 70 percent for PTSD is denied. REMANDED Entitlement to service connection for a cervical disorder is remanded. Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a blood disorder, to include as due to environmental exposure and/or as part of a chronic multi-symptom disability under 38 C.F.R. § 3.317, claimed as Gulf War Syndrome, is remanded. FINDING OF FACT From December 5, 2012, the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas, but it did not cause total occupational and social impairment. CONCLUSION OF LAW From December 5, 2012, the criteria for a rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1988 to August 1992. The Veteran participated in Operation Desert Shield from December 1990 to January 1991 and in Operation Desert Storm from January 1991 to February 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The Veteran requested a Board hearing in his July 2015 VA Form 9. He subsequently withdrew his request in May 2016 and February 2017. For clarity, the Board will address its characterization of the appellate issues. As background, the Veteran claimed service connection for six disabilities on September 20, 2005. These included, as relevant here, a cervical disorder, a low back disorder, and a blood disorder. The AOJ denied service connection for all six disabilities in June 2006, and each denial included the following statement: Your service medical records are not available for consideration. If complete service medical records are obtained subsequent to this determination, they will be considered. If entitlement is established based on the records, benefits will be awarded retroactively from September 20, 2005. The Veteran did not appeal the AOJ's decision, nor did he submit new and material evidence within one year of its decision. The Veteran again claimed service connection, as relevant here, for a cervical disorder, a low back disorder, and a blood disorder in December 2012. The AOJ denied service connection for these disabilities in June 2013. It found that, pursuant to 38 C.F.R. § 3.156(a), it was not required to reopen the Veteran's claims because he had not submitted new and material evidence since the June 2006 rating decision. The Board finds the AOJ erred. The AOJ did not possess the Veteran's service treatment records when it decided the claim. It expressly stated in the "Evidence" section of the decision: We have been unable to obtain your complete service treatment records. A formal finding of the unavailability of these records was completed on May 13, 2006. We requested your records from the National Personnel Records Center (NPRC) on December 29, 2005. They responded that your medical records were unavailable. If your service treatment records are subsequently received, your claim will be reconsidered as though the evidence was of record at the time of the original claim. If you have service treatment records in your possession, you should submit them to us as soon as possible. Originals are preferable to copies. The AOJ subsequently obtained the Veteran's service treatment records in August 2014. Pursuant to the statements above, which are based on 38 C.F.R. § 3.156(c), the June 2006 rating decision never became final. This means that the Veteran was not required to submit new and material evidence to reopen his claims for a cervical disorder, a low back disorder, and a blood disorder. As such, the Board does not need to perform such an analysis. To the extent the Board characterized these issues as requiring new and material evidence when it considered this appeal in November 2018, it has now revised to clarify that these claims are now before the Board on the merits. Issue 1: From December 5, 2012 to September 8, 2015, a rating greater than 30 percent for PTSD Issue 2: From September 9, 2015, a rating greater than 70 percent for PTSD Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Merits The Veteran claimed service connection for PTSD on December 5, 2012. The AOJ service connected the Veteran’s PTSD in June 2013. It rated it as 30 percent disabling, effective December 5, 2012. The Veteran appealed the rating the AOJ assigned in August 2013. As the appeal was pending, the AOJ, in April 2020, increased the Veteran's rating to 70 percent disabling, effective September 9, 2015. The regulations for mental disorders are found in 38 C.F.R. §§ 4.125-4.130. The Board notes that psychiatric disabilities evaluated under Diagnostic Code 9411 are rated according to the General Rating Formula for Mental Disorders. The rating criteria for psychological disorders such as PTSD provide a 10 percent rating for occupational and social impairment due to mild or transient symptoms which decreases work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating is provided for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal, due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is provided for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is provided for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: Suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is provided for total occupational and social impairment, due to such symptoms as: Gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. §§ 4.125-4.130. As noted above, the AOJ initially rated the Veteran's PTSD as 30 percent disabling. The AOJ, based on an April 2013 VA examination, found that the Veteran's PTSD manifested as: • Chronic sleep impairment • Depressed mood • Mild memory loss • Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, and • Panic attacks (less than weekly) Additionally, as noted above, the AOJ increased the Veteran's rating to 70 percent disabling in April 2020. The AOJ, based on VA examinations in September 2015 and October 2018, found that the Veteran’s PTSD manifested as: • Forgetting names • Unprovoked irritability with periods of violence • Suspiciousness • Depressed mood • Suicidal ideation • Disturbances of motivation and mood • Impaired judgment • Forgetting recent events • Impaired impulse control • Chronic sleep impairment • Impaired abstract thinking • Panic attacks (weekly) • Difficulty in adapting to stressful circumstances • Difficulty in adapting to work • Flattened affect • Panic attacks (less than weekly) • Difficulty in adapting to a worklike setting • Anxiety • Difficulty in establishing and maintaining effective work and social relationships • Occupational and social impairment with reduced reliability and productivity, and • Forgetting directions No medical professional has treated the Veteran for his PTSD, so the AOJ relied exclusively on the three VA examinations cited above to rate the disability. However, this was not the only relevant evidence. Indeed, V.D., the Veteran's spouse, submitted a statement in October 2015. In it, she wrote: I understand he was awarded benefits due to his PTSD and Tinnitus, but I do not know if the extent to which he suffers was understood. First, he continues on a weekly basis to wake up in the sweats and tries to cover up by saying he is just hot. Sometimes, he cries and will not speak to me. When he finally opens up, he says he is so confused and cannot keep his thoughts together. He has confirmed on more than one occasion that he had to leave work due to these issues. I have tried to ask him to seek help, but he denies needing help. These issues have been a tremendous strain on our marriage, as he sometimes takes it out verbally on our family. He has recently been given ultimatums by his employer about his sudden attitude issues that almost cost his job. He has lost any friends he had due to his temper. V.D., who has been in a relationship with the Veteran since 1994, submitted a copy of this statement again in November 2018. Notwithstanding this, the AOJ did not consider this statement in either the April 2020 rating decision or September 2020 Supplemental Statement of the Case. If it had, it would have seen that V.D., whom the Board finds credible, identified many of the symptoms the AOJ used to justify the 70 percent rating as existing since the grant of service connection. These include, for example, weekly panic attacks; impaired impulse control; impaired abstract thinking; difficulty in adapting to a worklike setting; difficulty in adapting to stressful circumstances; and difficulty in establishing and maintaining effective work and social relationships. Consequently, the Board finds that the symptoms the AOJ used to justify the 70 percent rating manifested earlier than the AOJ found. Indeed, the Board will, resolving doubt in favor of the Veteran, find they manifested as of December 5, 2012. That said, the Board finds the Veteran is not entitled to a 100 percent rating during the appeal period. Specifically, during the time period in question, the frequency, severity, and duration of the PTSD symptoms affecting occupational and social impairment were not total in nature. His PTSD has strained relationships with his wife, his employer, and his social circle. Notwithstanding this, he continues to reside and interact with his wife and children and he has maintained employment. He also did not have symptoms such 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; disorientation to time or place; or other equally disabling symptoms. As such, entitlement to an initial disability rating in excess of 70 percent for the Veteran’s service-connected PTSD is not warranted. REASONS FOR REMAND Remand is warranted for the three remaining issues. Blood disorder The Veteran is deficient in the enzyme glucose-6-phosphate dehydrogenase (G6PD). As Cedars-Sinai Hospital in Los Angeles explains on its website (https://www.cedars-sinai.org/health-library/diseases-and-conditions/g/g6pd-deficiency.html#:~:text=G6PD%20deficiency%20is%20an%20inherited,faster%20than%20they%20are%20made): What is G6PD deficiency? G6PD deficiency is an inherited condition. It is when the body doesn’t have enough of an enzyme called G6PD (glucose-6-phosphate dehydrogenase). This enzyme helps red blood cells work correctly. A lack of this enzyme can cause hemolytic anemia. This is when the red blood cells break down faster than they are made. What causes G6PD deficiency? G6PD deficiency is inherited. This means it is passed down from parents through their genes. Women who carry one copy of the gene can pass G6PD deficiency to their children. • Men who get the gene have G6PD deficiency. • Women who get the gene are carriers. They often don’t have symptoms. But they can pass the gene onto their children. Under VA's regulatory framework, congenital or developmental diseases are eligible for service connection, but congenital or developmental defects are not. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; VAOGCPREC 82-90. Defects are defined as “structural or inherent abnormalities or conditions that are more or less stationary in nature.” VAOPGCPREC 82-90. A disease, on the other hand, is defined broadly as “any deviation from or interruption of the normal structure or function of any part, organ, or system of the body...” and “a condition considered capable of improving or deteriorating. Id. “Any worsening, any change at all might demonstrate that the condition is a disease, in that VA considers defects to be ‘more or less’ static and immutable.” Quirin v. Shinseki, 22 Vet. App. 390, 395 (citing VAOGCPREC 82-90). Given that G6PD deficiency is congenital, remand is needed to determine if it is a disease or defect. Additionally, the Veteran stated during his September 2020 VA exam for this claim that VA treated him at the Temple, Texas facility "around 1994." In this regard, the Board notes that the Central Texas Veterans Health Care System includes the Olin E. Teague Veterans' Medical Center in Temple, Texas, and the Doris Miller Department of Veterans Affairs Medical Center in Waco, Texas. It highlights this because June 1997 VA records in the claims file show the Waco facility as the "institution" and the Temple facility as the "division" in the same records. It is not clear what this distinction means, so the Board will remand to attempt to obtain records from both facilities from 1994 to insure it has all relevant records. Low Back and Cervical Disorders First, the Veteran contends that he repeatedly injured his back in service and that he has had continuous symptoms since service. In this regard, the Board highlights an October 2015 statement from V.D., the Veteran's spouse. She noted, for purposes of these claims, that "he has visited many different chiropractors and other types of treatments that only give minimal relief for all his pain." The AOJ did not inquire about this statement, and as such, did not attempt to obtain these records. This violates the AOJ's duty to assist the Veteran in prosecuting his claim, so remand is warranted to correct this. To be clear, the Board recognizes that the AOJ obtained treatment records from Horine Chiropractic, but V.D.'s statement of "many different chiropractors and other types of treatments" suggests there are additional records that bear on these claims. Second, the AOJ examined the Veteran for the cervical claim, but not the low back claim, based on the Horine Chiropractic records. The Board finds the Veteran's reports of continuous low back pain since service credible. When viewed together with his May 2013 report of his in-service injuries and V.D.’s 2015 statement that the Veteran told her of several instances of back and neck strain in service, the Board finds the AOJ should have examined the Veteran for the low back claim. As such, it will order an examination. Third, the Board finds the September 2020 cervical examination nexus opinion inadequate. The examiner did not find a causal connection between the Veteran's service and his current cervical strain because "records do not indicate a chronic neck condition while on active duty." This opinion is flawed as it doesn’t consider the Veteran’s May 2013 contention that he injured his neck due to the cumulative effects of recurring actions, i.e., "the continual weight on my back" or his statements to V.D. that he had several in-service instances of back and neck strain. It also relies solely upon the absence of treatment in violation of Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Remand is warranted for an addendum opinion. Remaining Records The Veteran, in May 2013, noted that he was treated at Texas State University while he was a student and that these records may bear on these claims. The AOJ did not inquire about this statement, and as such, did not attempt to obtain these records. This violates the AOJ’s duty to assist the Veteran in prosecuting his claim, so remand is warranted to correct this. The matters are REMANDED for the following action: 1. Attempt to obtain all VA treatment records from the Olin E. Teague Veterans’ Medical Center in Temple, Texas from January 1994 to present. 2. Attempt to obtain all VA treatment records from the Doris Miller Department of Veterans Affairs Medical Center in Waco, Texas from January 1994 to present. 3. Attempt to obtain all treatment records from the Veteran's time as a student at Texas State University, as detailed in a statement received May 23, 2013. 4. Ask the Veteran to identify the "many different chiropractors and other types of treatments" he used, as detailed in a statement received May 23, 2013. If he responds, attempt to obtain these records. 5. Schedule the Veteran for an examination to determine the nature and etiology of his claimed low back disorder. Please instruct the examiner, pursuant to Saunders v. Wilkie, to answer: a) Please identify any low back disability by either (1) diagnosis or (2) functional impairment. b) As to each low back disability identified, is it at least as likely as not (50 percent probability) that the Veteran’s low back disorder began during or were otherwise caused by the Veteran’s military service? Why or why not? The examiner should address whether the Veteran’s low back disability is related to the fall from a 20-foot cliff during Jungle Warfare School; or back spasms following a 25-mile march carrying a 95-pound pack. In responding to the above, the examiner is requested to address the following c) What types of symptoms would have been caused by either of these in-service incidents? d) Is there any medical reason to accept or reject the proposition that these in-service back issues could have led to the current back disability? 6. Obtain an addendum opinion from the examiner who conducted the September 2020 cervical examination. The examiner must answer: a) Is it at least as likely as not (50 percent probability) that the Veteran’s cervical strain began during, or was otherwise caused by, his military service? Why or why not? In answering this question, the examiner MUST expressly address the impact, if any, of the Veteran’s May 2013 contention that he injured his neck due to the cumulative effects of recurring actions, i.e., “the continual weight on my back.” In answering this question, the examiner CANNOT rely SOLELY on the absence of treatment to find a negative causal relationship between the claimed cervical strain and service. 7. Obtain an addendum opinion from the examiner who conducted the September 2020 cervical examination. The examiner must answer: a) Is the Veteran's G6PD deficiency a congenital defect or disease? Regardless of the answer, please explain why. For VA purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating. (As an example, VA considers sickle cell anemia as congenital "disease" for VA purposes, whereas refractive error is considered a congenital "defect.") b) If the G6PD deficiency is a congenital DEFECT, is it at least as likely as not that there was a superimposed disease or injury during service? Why or why not? c) If, however, the G6PD deficiency is a congenital DISEASE, is there clear and unmistakable evidence (medically undebatable) that the G6PD deficiency preexisted service? Why or why not? d) If the answer to (c) is yes, is there clear and unmistakable evidence (medically undebatable) that the G6PD deficiency was not aggravated to a permanent degree in service beyond that which would be due to the natural progression of the disease? Why or why not? Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, 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.