Citation Nr: 21011304 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 13-02 076 DATE: March 1, 2021 ORDER New and material evidence has not been submitted to reopen a claim of service connection for fatigue, claimed as chronic fatigue syndrome and as an undiagnosed illness. New and material evidence has not been submitted to reopen a claim of service connection for muscle pain, claimed as an undiagnosed illness. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) and alcohol use disorder with sleep disturbance is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) effective August 16, 2018, subject to the laws and regulations governing the payment of monetary benefits. Special monthly compensation based on housebound status is granted effective August 16, 2018, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for obstructive sleep apnea, claimed as an undiagnosed illness and as secondary to PTSD and allergic rhinitis, is remanded. Entitlement to service connection for a respiratory disorder other than obstructive sleep apnea and allergic rhinitis, claimed as an undiagnosed illness and due to exposure to environmental toxins including asbestos, is remanded. Entitlement to service connection for a headache disorder other than sinus headaches, claimed as an undiagnosed illness and as secondary to PTSD and allergic rhinitis, is remanded. FINDINGS OF FACT 1. In a November 2015 decision, the Board denied service connection for fatigue, claimed as chronic fatigue syndrome and as an undiagnosed illness, based on the findings that the Veteran did not have chronic fatigue syndrome and that the symptom of chronic fatigue had been attributed to obstructive sleep apnea and insomnia. 2. The evidence received since the November 2015 Board decision, when considered by itself or in connection with evidence previously assembled, does not relate to unestablished facts necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim of service connection for fatigue, claimed as chronic fatigue syndrome and as an undiagnosed illness. 3. In the November 2015 decision, the Board denied service connection for muscle pain, claimed as an undiagnosed illness, based on the findings that the Veteran did not have fibromyalgia and that the symptom of muscle pain had been attributed to chronic lumbar strain. 4. The evidence received since the November 2015 Board decision, when considered by itself or in connection with evidence previously assembled, does not relate to unestablished facts necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim of service connection for muscle pain, claimed as an undiagnosed illness. 5. The weight of evidence is against a finding that the service-connected PTSD and alcohol use disorder with sleep disturbance has been manifested by a total occupational and social impairment since October 8, 2009. 6. The weight of evidence shows that the Veteran stopped working full time on August 16, 2018. 7. Since August 16, 2018, the Veteran’s psychiatric disorders have been rated 70 percent disabled. 8. The weight of evidence shows that the Veteran’s employment since August 16, 2018, has been marginal employment. 9. The evidence is in equipoise as to whether the Veteran’s service-connected psychiatric disorders have rendered him unemployable from performing all forms of substantially gainful employment that are consistent with her education and occupational experience since August 16, 2018. 10. From August 16, 2018, to September 9, 2019, the service-connected psychiatric disorders were now rated as 100 percent disabling and the other service-connected disabilities were now independently rated 60 percent disabling. 11. From September 10, 2019, to October 2, 2019, the service-connected psychiatric disorders were now rated as 100 percent disabling and the other service-connected disabilities were now independently rated 70 percent disabling. 12. From October 3, 2019, the service-connected psychiatric disorders are now rated as 100 percent disabling and the other service-connected disabilities are now independently rated 80 percent disabling. CONCLUSIONS OF LAW 1. The Board’s November 2015 decision denying the claims of entitlement to service connection for fatigue, claimed as chronic fatigue syndrome and as an undiagnosed illness, and for muscle pain, claimed as an undiagnosed illness, is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2020). 2. The evidence received since the November 2015 Board decision is not new and material, and the claim of entitlement to service connection for fatigue, claimed as chronic fatigue syndrome and as an undiagnosed illness, is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 3. The evidence received since the November 2015 Board decision is not new and material, and the claim of entitlement to service connection for muscle pain, claimed as an undiagnosed illness, is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for an initial disability rating in excess of 70 percent for PTSD and alcohol use disorder with sleep disturbance since October 8, 2009, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2020). 5. Resolving all reasonable doubt in the Veteran’s favor, the criteria for entitlement to TDIU since August 16, 2018, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19, 4.25, 4.26 (2019). 6. The criteria for special monthly compensation based on housebound status since August 16, 2018, have been met. 38 U.S.C. § 1114 (2012); 38 C.F.R. §§ 3.350, 4.25 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1986 to May 1993. These matters come before the Board of Veterans’ Appeals (Board) on appeal from May 2010 (denials of service connection for migraine headaches and sleep problems), September 2017 (grant of service connection for PTSD), and January 2018 (denial of service connection for respiratory problems and reopening of claims of service connection for chronic fatigue syndrome and muscle pain) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2014, the Veteran testified at a videoconference hearing in front of the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claim file. In February 2015, the Board remanded claims of entitlement to service connection for migraine headaches, fatigue, sleep problems, and muscle pain for further development. In a November 2015 decision, the Board denied the claims of entitlement to service connection for fatigue, claimed as chronic fatigue syndrome and as an undiagnosed illness, and for muscle pain, claimed as an undiagnosed illness. The Board also remanded claims of entitlement to service connection for migraine headaches and sleep problems for further development. In the January 2018 rating decision, a RO denied service connection for respiratory problems, claimed as an undiagnosed illness, and denied reopening of claims of entitlement to chronic fatigue syndrome and muscle pain. In March 2018, the Veteran filed a timely notice of disagreement with the three denials in the January 2018 rating decision. In April 2020, the RO issued a statement of the case on these three issues. In May 2020, the Veteran filed a timely VA Form 9 on these three issues. Though the RO did not certify these three issues for appeal, the Veteran has perfected an appeal of these three issues and these three issues are before the Board at this time. In a February 2021 written brief presentation, the representative asserted that chronic fatigue and chronic muscle pain are secondary to his now-service-connected PTSD. A new etiological theory for service connection does not constitute a new claim. See Ashford v. Brown, 10 Vet. App. 120, 123 (1997). New and material evidence is still required to reopen the previously denied claims of entitlement to service connection for fatigue and muscle pain. In a December 2018 rating decision, a RO granted service connection for a sleep disorder associated with a mental condition. The RO noted that the issue of entitlement to service connection for sleep disturbances as part of a diagnosed physical disability (sleep apnea) remains on appeal. Therefore, the issue of entitlement to service connection for sleep apnea is still in appellate status. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law, which will go into effect in February 2019, creates a new framework for veterans dissatisfied with the VA decision on their claim to seek review. In February 2020, a RO issued a supplemental statement of the case denying service connection for sleep problems, diagnosed as sleep apnea, to include as an undiagnosed illness. The RO informed the Veteran that if he wanted to participate in the modernized appeals system, he needed to submit a completed application form within 60 days of the date of this supplemental statement of the case. In July 2020, the Veteran filed a VA Form 20-0095 (decision review request: supplemental claim) in which he requested review of the May 2010 rating decision denying service connection for sleep problems. He did not request to opt into the modernized appeals system from the February 2020 supplemental statement of the case. In any event, the request to participate in the modernized appeals system was untimely. In an August 2020 rating decision, a RO confirmed and continued a previous denial of service connection for obstructive sleep apnea. In October 2020, the Veteran filed a VA Form 20-0096 (decision review request: higher-level review) as to the August 2020 rating decision. In February 2021 rating decision, a RO denied service connection for obstructive sleep apnea. As the Veteran did not timely opt into the modernized appeals system, the issue of entitlement to service connection for sleep apnea remains in the legacy appeal system. The Veteran has claimed that sleep apnea is secondary to the service-connected PTSD. In Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000), the United States Court of Appeals for the Federal Circuit (the Federal Circuit) held that VA’s duty to assist attaches to the investigation of all possible causes of a current disability, including those unknown to the claimant. Pursuant to Schroeder, the Board will consider whether sleep apnea is secondary to allergic rhinitis. In his May 2020 formal TDIU claim, the Veteran asserted that he is unemployed in part due to his PTSD. In an August 2020 rating decision, a RO determined that the issue of TDIU is moot because a 100 percent schedular disability rating has been assigned effective October 3, 2019. In years past, if a veteran received a 100 percent schedular rating for his service-connected disability, the issue of entitlement to a TDIU became moot since a veteran could not have a 100 percent schedular rating while concurrently having a TDIU. 38 C.F.R. § 4.16(a); VAOPGCPREC 6-99 (June 7, 1999); 64 Fed. Reg. 52,735 (1999). Nonetheless, in view of the decision of the United States Court of Appeals for Veterans Claims (the Court) in Bradley v. Peake, 22 Vet. App. 280, 294 (2008), which took a position contrary to the one reached in the Office of General Counsel precedent opinion, the General Counsel took action to withdraw that prior opinion. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court’s decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. As explained below, the Board is granting TDIU based on his service-connected psychiatric disorders alone effective October 8, 2009. The Board observes 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 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that special monthly compensation “benefits are to be accorded when a Veteran becomes eligible without need for a separate claim” and remanding, pursuant to VA’s duty to maximize benefits, for VA to determine whether the Veteran’s posttraumatic stress disorder, rated 70 percent disabling, would entitle him to a TDIU and, therefore, to special monthly compensation). Given that TDIU could be granted based on the psychiatric disorders alone, the issue of entitlement to special monthly compensation based on housebound status is before the Board at this time. The Board is granting special monthly compensation based on housebound status effective October 8, 2009. In February 2021, the representative waived initial agency of original jurisdiction consideration of additional evidence obtained by the RO since the February 2020 statement of the case and February and June 2020 supplemental statements of the case. 38 C.F.R. § 20.1305(c) (2020). The record reflects that the Board wrote to the Veteran in October 2020 indicating that he could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, the Veteran does not have a pending hearing request. He provided testimony in a hearing with a Veterans Law Judge in March 2014. VA’s duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375 (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 duty to assist argument). 1. Whether new and material evidence has been submitted to reopen a claim of service connection for fatigue, claimed as chronic fatigue syndrome and as an undiagnosed illness 2. Whether new and material evidence has been submitted to reopen a claim of service connection for muscle pain, claimed as an undiagnosed illness Governing law and regulations A decision of the Board becomes final and binding and is not subject to revision on the same factual basis. 38 U.S.C. § 7104; 38 C.F.R. §§ 20.1100. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active duty. See 38 U.S.C. §§ 1110, 1131 (2012). Service connection may also be warranted 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) (2020). In order to establish service connection for a claimed disorder, there must be (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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may also be established for a chronic disability resulting from an undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2021. See 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317 (2020). The term “Persian Gulf veteran” means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(d)(1). The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(d)(2). A ‘qualifying chronic disability’ means a chronic disability resulting from any of the following (or any combination of any of the following): an undiagnosed illness; a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; and any diagnosed illness that the Secretary determines. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1)(i). Objective indications of a chronic disability include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA’s Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability referred to in this section shall be considered service-connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a) (2-5). Analysis In the November 2015 decision, the Board denied service connection for fatigue, claimed as chronic fatigue syndrome and as an undiagnosed illness, based on the findings that the Veteran did not have chronic fatigue syndrome and that the symptom of chronic fatigue had been attributed to obstructive sleep apnea and insomnia. The Board also denied service connection for muscle pain, claimed as an undiagnosed illness, based on the findings that the Veteran did not have fibromyalgia and that the symptom of muscle pain had been attributed to chronic lumbar strain. The evidence of record at the time of the November 2015 Board decision included service treatment records, VA treatment records, and VA examination reports. An April 2010 VA chronic fatigue syndrome examination report shows that there was no evidence of fibromyalgia or chronic fatigue syndrome. A June 2015 VA muscles injuries examination report reveals that it is less likely than not that the Veteran had a disability pattern related to a muscle disorder. The examiner noted that the Veteran had complaints of muscular strain related to a previous back injury caused by a motor vehicle accident in 1989. The examiner stated that the Veteran’s claimed muscle pain is related to his diagnosed low back strain and that the muscle pain is not a separate disability. A June 2015 VA chronic fatigue syndrome examination report reflects that there was no diagnosis of chronic fatigue syndrome. The examiner stated that the Veteran’s claimed problems are at least as likely as not related to his obstructive sleep apnea and history of chronic insomnia. The evidence received since the November 2015 Board decision includes VA treatment records, VA examination reports, and a February 2021 written brief presentation. VA treatment records reveal that in December 2019 a review of systems showed there was no fatigue or muscle pain. An August 2020 VA sleep apnea examination report reflects that residual daytime fatigue is a symptom of sleep apnea. In the February 2021 written brief presentation, the representative cited medical treatises showing a relationship between chronic fatigue syndrome and PTSD. The representative also cited medical treatise evidence showing numerous health problems result in skeletal muscle weakness and fatigue. The representative asserted that the Veteran suffers from multiple service-connected disabilities that can accelerate the progression of muscle atrophy. The representative cited medical treatise evidence that muscle atrophy is associated with increased morbidity and mortality. VA treatment records and VA examinations do not show a diagnosis of chronic fatigue syndrome or fibromyalgia or an assessment of an undiagnosed illness manifested by fatigue or muscle pain. While the representative presented medical treatise evidence of a relationship between chronic fatigue syndrome and PTSD and medical treatise information on the causes of muscle weakness and fatigue and consequences of muscle atrophy, the representative did not present competent medical evidence showing a diagnosis of chronic fatigue syndrome or fibromyalgia or an assessment of an undiagnosed illness manifested by fatigue or muscle pain. Therefore, the evidence received since the November 2015 Board decision, when considered by itself or in connection with evidence previously assembled, does not relate to unestablished facts necessary to substantiate the claims and does not raise a reasonable possibility of substantiating the claims of service connection for fatigue and muscle pain. The claims to reopen are denied. 3. Entitlement to an initial disability rating in excess of 70 percent for PTSD and alcohol use disorder with sleep disturbance Governing law and regulations Where the issues involve the assignment of an initial rating for a disability following the initial award of service connection for that disability, as is the case respect to the Veteran’s claim for an increased initial rating, the entire history of the disability must be considered and, if appropriate, staged ratings may be applied. Fenderson v. West, 12 Vet. App. 119 (1999). PTSD and alcohol abuse are evaluated under the general rating formula for mental disorders. Under those criteria, a 70 percent 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 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); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent rating is assigned 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Analysis In the September 2017 rating decision, a RO granted service connection for PTSD effective April 7, 2017, and assigned a 70 percent disability rating effective that same date. In a December 2018 rating decision, the RO assigned an effective date of October 8, 2009, for the grant of service connection for PTSD and alcohol use disorder with sleep disturbance. A 70 percent disability rating was assigned effective October 8, 2009. There is no evidence of any of the following: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The VA treatment records and a July 2017 VA examination report do not show these symptoms. For example, VA treatment records and the VA examination report reflect that the Veteran denied suicidal and homicidal ideations. The July 2017 VA examiner stated that the Veteran only had an occupational and social impairment with reduced reliability and productivity. The July 2017 VA examination report reveals that the Veteran was currently married and that he was friends with his colleagues. The Veteran was working at the time of the examination. Though the Veteran reported in his May 2020 formal TDIU claim that he last worked full time in August 2018, VA treatment records reflect that he was working full time in December 2019. In his TDIU claim, he reported that he earned $12,000 in the past twelve months. In his August 2020 statement, he indicated that he earned $9,500 in December 2019. In summary, the weight of evidence is against a finding that service-connected PTSD and alcohol use disorder with sleep disturbance has been manifested by a total occupational and social impairment since October 8, 2009. 4. Entitlement to TDIU Governing law and regulations Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation without regard to advancing age as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Substantially gainful employment suggests a living wage. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore v. Derwinski, 1 Vet. App. 356, 358-59 (1991). Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist on facts found basis (including but not limited to employment in a protected environment such as a family business or sheltered workshop) when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor, which takes this case outside the norm. The simple fact that a claimant is currently unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993) (A high rating is recognition that the impairment makes it difficult to obtain or keep employment.). Age cannot be considered as a factor in evaluating a service-connected disability. Unemployability associated with advancing age or intercurrent disability cannot be used as a basis for a total disability rating. 38 C.F.R. § 4.19. Analysis In his May 2020 formal TDIU claim, the Veteran reported that he last worked full time on August 15, 2018. Therefore, the Board will consider whether TDIU is warranted since August 16, 2018. The Board will consider whether TDIU is warranted for the service-connected psychiatric disorders only because the other service-connected disabilities have been rated as at least 60 percent disabling combined since August 15, 2018, and, therefore, entitlement to TDIU for service-connected psychiatric disorders makes the Veteran eligible for special monthly compensation based on housebound status. Since August 16, 2018, the Veteran has been service-connected for the following psychiatric disorders – PTSD and alcohol use disorder with sleep disturbances. Since August 16, 2018, these service-connected psychiatric disorders have been rated 70 percent disabling. This makes him eligible for consideration under 38 C.F.R. § 4.16(a) since August 16, 2018. In his May 2020 formal TDIU claim, the Veteran reported that his service-connected disabilities first affected his ability to work full time in November 2009 and that he became too disabled to work on August 15, 2018. He reported that he had four years of a high school education and that he had additional training as a heavy equipment operator and a driver. He indicated that he had no additional education or training since he became too disabled to work. The first matter is whether the Veteran has engaged in substantial gainful employment. The Veteran reported in his formal TDIU claim that he stated that he earned $12,000 in the past 12 months. In his August 2020 statement, he indicated that he earned $9,500 in December 2019. VA treatment records show that he was working full time during December 2019. The income earned in December 2019 or during the 12-month period prior to the May 2020 formal claim was slightly below the annual amounts established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person for 2019 and 2020. Thus, the weight of evidence shows that the Veteran’s employment since August 16, 2018, has been marginal employment. Turning to the employment impairment from PTSD, the August 2017 VA PTSD examination report reveals that the Veteran has an occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran has near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; difficulty in adapting to stressful circumstances, including work or work-like setting; an inability to establish and maintain effective relationships; and obsessional rituals that interfere with routine activities. The examiner indicated that while he continues to work as a truck driver, he likes work alone though that job gives him too much time to think. Based on the findings in the VA examination report and the Veteran’s work history of having working alone, the evidence is in equipoise as to whether since August 16, 2018, the service-connected PTSD and alcohol abuse with sleep disturbance have rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience. Accordingly, entitlement to TDIU for the period since August 16, 2018, in order. 5. Entitlement to special monthly compensation based on housebound status Special monthly compensation is available when, “as the result of a service-connected disability,” a Veteran suffers additional hardships above and beyond those contemplated by the rating schedule. Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011); see also 38 U.S.C. § 1114(k)-(s). A claim for increased disability compensation may include the “inferred issue” of entitlement to special monthly compensation even where the Veteran has not expressly placed entitlement to special monthly compensation at issue. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); see Buie, 24 Vet. App. at 250-51 (requiring VA to assess all of the claimant’s disabilities to determine whether entitlement to SMC under 38 U.S.C. § 1114(s) is established whenever a Veteran with a total disability rating is subsequently awarded service connection for any additional disability or disabilities even in the absence of an express claim for special monthly compensation). A common scenario in which this arises is if the existing record or the Board’s actions (e.g., granting an increased rating for a service-connected disability) result in the implication of 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i). TDIU since August 16, 2018, based on his service-connected psychiatric disorders has been granted. From August 16, 2018, to September 9, 2019, the other service-connected disabilities were now independently rated 60 percent disabling. From September 10, 2019, to October 2, 2019, the other service-connected disabilities were now independently rated 70 percent disabling. From October 3, 2019, the other service-connected disabilities are now independently rated 80 percent disabling. 38 C.F.R. § 4.25. Accordingly, special monthly compensation at the housebound rate under 38 U.S.C. § 1114; 38 C.F.R. § 3.350(i) is warranted since August 16, 2018. REASONS FOR REMAND An August 2020 medical opinion addressed whether the sleep apnea was caused by PTSD but did not address whether the sleep disorder was aggravated by that service-connected disorder. Moreover, a medical opinion is necessary to determine whether the sleep apnea is secondary to the service-connected allergic rhinitis. VA treatment records reveal that a sleep study was performed at Lake Charles Memorial Hospital in December 2019 through the VA choice program. The RO should obtain those treatment records. A December 2017 VA examination report reveals that the Veteran reported that during service he was exposed to asbestos from brake pads while serving as a diesel mechanic. His DD Form 214 reflects that his primary specialty was light vehicle mechanic. The Veteran is competent to report his exposure to asbestos, and the Board finds him credible. The December 2017 VA examination report reflects that the pulmonary function tests showed that forced vital capacity (FVC) results were 100 percent predicted pre-bronchodilator and 98 percent post-bronchodilator and that forced expiratory volume in one second (FEV-1) results were 97 percent predicted pre-bronchodilator and 95 percent post-bronchodilator. However, the FEV-1/FVC ratios were 77 percent pre-bronchodilator and 78 percent post-bronchodilator. Given that the ratios appear inconsistent with the underlying data (FVC and FEV-1) and given that the FEV-1/FVC ratio would warrant a compensable rating under 38 C.F.R. § 4.97 for diseases of the trachea and bronchi, another VA examination is warranted. Furthermore, in a March 2020 addendum to the December 2017 VA examination, the examiner noted that the respiratory symptomatology could be attributed to sleep apnea and a history of smoking. A more definitive opinion is needed on whether any respiratory symptomatology is due to post-service smoking. In its November 2015 remand, the Board directed the RO to obtain a medical opinion on whether migraine headaches were secondary to the service-connected allergic rhinitis. A December 2018 VA medical opinion regarding migraine headaches is predicated on a lack of current diagnosis of migraine headaches. Headaches not otherwise specified was diagnosed by the October 2012 VA examiner, and migraine headaches were diagnosed by the June 2015 and April 2010 VA examiners. To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore, the RO did not comply with the directives of the Board remand since the opinion did not address the prior diagnosis of migraine headaches. Stegall v. West, 11 Vet. App. 268 (1998). Moreover, a VA examination addressing whether a headache disorder is secondary to PTSD is necessary. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all treatment for sleep apnea, allergic rhinitis, any other respiratory disorder, a headache disorder, and PTSD, and obtain any identified records. Obtain the December 2019 sleep study that was performed at Lake Charles Memorial Hospital through the VA choice program. The RO should obtain those records directly from that provider or from the Alexandria VA Medical Center. 2. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any respiratory disorder, to include sleep apnea and other disabilities manifested by shortness of breath, productive cough, and wheezing with exertion. The examiner should offer an opinion as to the etiology of the symptoms of shortness of breath, productive cough, and wheezing with exertion, to include commenting on whether it is attributable to a known clinical diagnosis. If that examiner cannot identify a disease or disability that causes shortness of breath, productive cough, and wheezing with exertion, the examiner should so state. For any respiratory disease or disability identified other than sleep apnea and allergic rhinitis, the examiner should specifically opine on whether it is at least as likely as not (50 percent or greater probability) that such a disability is related to an in-service injury, event, or disease, including exposure to asbestos and exposure to environmental hazards during service in the Persian Gulf region. If the examiner identifies smoking as being the cause of the symptom of shortness of breath, productive cough, and wheezing with exertion rather than a respiratory disorder being the cause of the shortness of breath, productive cough, and wheezing with exertion, the examiner should specifically opine on whether it is more likely than not (51 percent or greater probability) that shortness of breath, productive cough, and wheezing with exertion were caused by smoking between his separation from active duty in May 1993 and the onset of shortness of breath, productive cough, and wheezing with exertion. The examiner should specifically opine on whether it is at least as likely as not (50 percent or greater probability) that that sleep apnea is related to an in-service injury, event, or disease, including exposure to environmental hazards during service in the Persian Gulf region. The examiner must opine on whether it is at least as likely as not that sleep apnea was (1) caused by or (2) aggravated by PTSD. If the medical provider finds that sleep apnea was aggravated by PTSD, then the examiner should quantify the degree of aggravation. The examiner must opine on whether it is at least as likely as not that sleep apnea was (1) caused by or (2) aggravated by allergic rhinitis. If the medical provider finds that sleep apnea was aggravated by allergic rhinitis, then the examiner should quantify the degree of aggravation. 3. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of a headache disorder other than sinus headaches. For any current headache disorder other than sinus headaches, the examiner should specifically opine on whether it is at least as likely as not (50 percent or greater probability) that such a disability is related to an in-service injury, event, or disease, including exposure to environmental hazards during service in the Persian Gulf region. For any current headache disorder other than sinus headaches, the examiner must opine on whether it is at least as likely as not that the headache disorder was (1) caused by or (2) aggravated by PTSD. If the medical provider finds that a current headache disorder was aggravated by PTSD, then the examiner should quantify the degree of aggravation. For any current headache disorder other than sinus headaches, the examiner must opine on whether it is at least as likely as not that the headache disorder was (1) caused by or (2) aggravated by allergic rhinitis. If the medical provider finds that the headache disorder was aggravated by allergic rhinitis, then the examiner should quantify the degree of aggravation. If the examiner does not diagnose migraine headaches, the examiner should specifically opine on whether it is at least as likely as not (50 percent or greater probability) that the migraine headaches diagnosed by the June 2015 and April 2010 VA examiners are related to an in-service injury, event, or disease, including exposure to environmental hazards during service in the Persian Gulf region. If the examiner does not diagnose migraine headaches, the examiner must opine on whether it is at least as likely as not that the migraine headaches diagnosed by the June 2015 and April 2010 VA examiners were (1) caused by or (2) aggravated by PTSD. If the medical provider finds that the migraine headaches were aggravated by PTSD, then the examiner should quantify the degree of aggravation. If the examiner does not diagnose migraine headaches, the examiner must opine on whether it is at least as likely as not that the migraine headaches diagnosed by the June 2015 and April 2010 VA examiners were (1) caused by or (2) aggravated by allergic rhinitis. If the medical provider finds that the migraine headaches were aggravated by allergic rhinitis, then the examiner should quantify the degree of aggravation. If the examiner does not diagnose a headache disorder not otherwise specified, the examiner must opine on whether it is at least as likely as not that the headache disorder not otherwise specified diagnosed by the October 2012 VA examiner was (1) caused by or (2) aggravated by PTSD. If the medical provider finds that the headache disorder not otherwise specified was aggravated by PTSD, then the examiner should quantify the degree of aggravation. If the examiner does not diagnose the headache disorder not otherwise specified, the examiner must opine on whether it is at least as likely as not that the headache disorder not otherwise specified diagnosed by the October 2012 VA examiner was (1) caused by or (2) aggravated by allergic rhinitis. If the medical provider finds that the headache disorder not otherwise specified was aggravated by allergic rhinitis, then the examiner should quantify the degree of aggravation. 4. After development above has been completed, the RO should readjudicate the Veteran’s claims. If any claim remains denied, the Veteran should be issued a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cherry, 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.