Citation Nr: 21023411 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-00 514 DATE: April 20, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder other than depressive disorder not otherwise specified (NOS) with cannabis abuse and alcohol dependency is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for chest pain is granted. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability is granted. REMANDED Entitlement to service connection for a sleep disorder, claimed as insomnia, is remanded. Entitlement to service connection for a disability manifested by memory problems is remanded. FINDINGS OF FACT 1. A personality disorder is generally not considered a disability subject to VA compensation, and the preponderance of the evidence is against the Veteran’s personality disorder having been aggravated during military service and/or by superimposed disease or injury. 2. The preponderance of the evidence is against the Veteran having posttraumatic stress disorder (PTSD), bipolar disorder, or any other acquired psychiatric disorder as a result of his active service other than the already service-connected depressive disorder. 3. The Veteran does not have a left shoulder disability. 4. The Veteran has recurrent chest pain secondary to his service-connected depressive disorder. 5. The Veteran is service-connected for depressive disorder NOS, evaluated as 70 percent disabling from November 20, 2009; migraine headaches, evaluated as 30 percent disabling from November 20, 2009; a right shoulder disability, evaluated as zero percent (noncompensable) from November 20, 2009, and 20 percent disabling from June 27, 2019; lumbosacral strain, evaluated as 10 percent disabling from November 20, 2009; and right shoulder scar, evaluated as noncompensable from November 20, 2009. 6. It is at least as likely as not that the Veteran’s service-connected disabilities preclude his ability to obtain and/or maintain substantially gainful employment consistent with his education and work history. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for an acquired psychiatric disorder other than depressive disorder NOS with cannabis abuse and alcohol dependency have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for a grant of service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for chest pain have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 4. Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.7, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2006 to November 2009, to include service in Iraq. He also had active duty for training (ADT) from May 2005 to October 2005. These matters are before the Board of Veterans’ Appeals (Board) originally on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Although that decision did not explicitly adjudicate entitlement to a TDIU, the Board has previously determined that claim is part of the appeal in accord with Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board previously remanded the current appellate claims for additional development in June 2016 and April 2020. With the exception of the sleep and memory claims, there has been at least substantial compliance with the Board’s remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Although the Board regrets the additional delay, further development is still required regarding the sleep and memory claims. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In adjudicating the Veteran's claims, the Board observes that nothing of record shows that he has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). However, in making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). As discussed in greater detail below, the Veteran has been afforded multiple VA examinations over the course of this appeal. Nothing in the record causes the Board to doubt the qualifications of these examiners to provide competent medical evidence, to include the Veteran’s own contentions. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). This case warrants consideration of the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. In pertinent part, these provisions provide that compensation may be granted for disability due to undiagnosed illness of a Veteran who served in the Southwest Asia Theater of Operations during the Persian Gulf War. Under 38 U.S.C. § 1117(a)(1), as amended, compensation is warranted for a Persian Gulf Veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. The period within which such disabilities must become manifest to a compensable degree in order for entitlement to compensation to be established is currently December 31, 2021. See 38 C.F.R. § 3.317(a)(1)(i). In order to qualify, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a), (b). The term "objective indications of a qualifying chronic disability" include both "signs," in a medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or a chronic multi-symptom illness include the following: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 U.S.C. § 1117(g). The term "medically unexplained chronic multi symptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). 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. 38 C.F.R. § 3.317(a)(4). 1. Acquired psychiatric disorder other than depressive disorder NOS with cannabis abuse and alcohol dependency At the outset, the Board notes that service connection has already been established for depressive disorder NOS with cannabis abuse and alcohol dependency. The Board acknowledges, however, that the law does not preclude establishing service connection for a separately diagnosed acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board previously recognized in the 2016 and 2020 remands that the record contains various post-service psychiatric diagnoses, to include major depressive disorder, mood disorder due to HIV diagnosis, unspecified personality disorder, PTSD, and bipolar disorder. Given the complex nature of the Veteran’s claim, particularly as service connection is already established for an acquired psychiatric disorder, the Board finds competent medical evidence is required to resolve this matter. As detailed below, VA examinations in 2019 and 2020 are against a finding that the Veteran currently has an acquired psychiatric disorder that was incurred in or otherwise the result of active service, other than his already service-connected depressive disorder. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). The Board notes, as a general rule, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). Service connection may still be warranted if there has been aggravation of a constitutional or developmental abnormality, to include personality disorder, by superimposed disease or injury. This is of particular importance in this case as the record, including VA examinations in May 2010, September 2019, and June 2020, include findings his personality disorder pre-existed service. The Board remanded this case in 2016 and 2020, in pertinent part, to obtain a competent medical opinion to clarify this matter. The August 2019 VA examiner explained that personality disorders are a lifelong and enduring pattern of inflexible, pervasive, and maladaptive thoughts, feelings, and behaviors that markedly deviate from the cultural norm and result in clinically significant distress or impairment. The pattern is stable and lifelong and can be traced back to at least adolescence or early adulthood. However, that opinion did not fully address whether the personality disorder had been aggravated by a superimposed disease or injury. A June 2020 VA examiner’s opinion found that it was less likely than not (50 percent less probability) that the Veteran’s personality disorder and a psychiatric disability aggravated the Veteran's personality disorder by superimposed disease or injury related to military service. The Board notes the examiner was familiar with the Veteran’s medical history, and the opinion was supported by stated rationale. In pertinent part, the examiner noted the Veteran attributed his difficulties to the death of his uncle. The examiner stated that personality difficulties are long-standing and an engrained behavior which develops in childhood. In this case, the Veteran did not describe any events in the military which exacerbated these behaviors. It was noted that he received five article 15s during his time in the military. These reveal long-standing acting out behaviors and not a singular response to the loss of another. The Board finds the June 2020 VA examiner’s opinion on the personality disorder matter to be adequate, persuasive, and entitled to significant probative value. With respect to the other diagnoses in the record, the Board notes, to the extent the Veteran has a mood disorder due to HIV diagnosis, that service connection has not been established for that HIV diagnosis. The law does not provide service connection may be established for disability that is secondary to another nonservice-connected disability. The Board further notes that the August 2019 VA examiner found the Veteran did not meet and has never met the full criteria for diagnosis of PTSD. His diagnoses were indicated to be major depressive disorder, antisocial personality disorder and alcohol use disorder. The examiner differentiated the symptoms associated with the Veteran’s personality disorder, to include lack of empathy, focus on self, impulsivity, risky behaviors, manipulation and callousness. Moreover, the examiner stated all other symptoms were related to the depression (i.e., the service-connected acquired psychiatric disorder). In other words, the examiner did not find such symptoms were due to PTSD, bipolar disorder, or any other acquired psychiatric disorder during the course of this appeal. Although the Board remanded the case on the basis this examiner did not fully address the etiology of the Veteran’s personality disorder, no deficiency was found regarding the findings he had never satisfied the criteria for a diagnosis of PTSD, nor that the Veteran did not have psychiatric symptoms that were due to condition(s) other than the already service-connected depressive disorder and/or his personality disorder. The June 2020 VA examiner essentially found the Veteran did not satisfy the criteria for PTSD, bipolar, and/or any other acquired psychiatric disorder other than the service-connected depressive disorder. As noted, the examiner also found the personality disorder was not aggravated by service or a superimposed disease or injury. Moreover, while the 2019 VA examiner found that symptoms could be differentiated from the depressive disorder and personality disorder, the June 2020 VA examiner found it was not possible to differentiate which symptoms were due to each diagnosis. Further, a review of the record reflects the RO attributed all of the Veteran’s psychiatric symptomatology to the service-connected disability in assigning disability rating(s). In light of the foregoing, the Board finds the preponderance of the evidence is against the Veteran having PTSD, bipolar disorder, or any other acquired psychiatric disorder as a result of his active service other than the already service-connected depressive disorder. Therefore, this appellate claim must be denied. 2. Left shoulder disability Initially, the Board notes that the Veteran’s complaints of left shoulder pain have not been attributed to a diagnosed disability. However, service connection may be established for an undiagnosed illness manifested by objective indications of a qualifying chronic disability including signs and symptoms of pain. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The Board further notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has found that pain alone can be a disability. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Board notes, however, that the Federal Circuit held that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. The Federal Circuit did emphasize that they were not holding a veteran could demonstrate service connection "simply by asserting subjective pain . . . . To establish the presence of a disability, the veteran will need to show that her pain reaches the level of functional impairment of earning capacity." Id. In other words, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. Here, the record does not reflect the Veteran’s complaints of left shoulder pain have resulted in functional impairment of earning capacity as to constitute a qualifying disability, to include under the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. In pertinent part, the report of a June 2019 VA examination indicated normal range of motion of the left shoulder, no evidence of painful motion on examination, and normal muscle strength. A subsequent August 2020 VA examination found no evidence of left shoulder injury, or muscle injury. Moreover, that examiner stated the evidence of record is sufficient to establish the Veteran does not have a diagnosed left shoulder disorder, to include pain that causes functional loss. These findings are consistent with other evidence on file, including medical treatment records. In light of the foregoing, the Board finds the Veteran has not had a left shoulder disability during the pendency of this case. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131; and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C. § 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C. § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, in the absence of proof of present disability there can be no valid claim. For these reasons, the Board finds the preponderance of the evidence is against the Veteran’s claim for service connection for a left shoulder disability, and it must be denied. 3. Chest pain In this case, the record reflects the Veteran has had complaints of recurrent chest pain throughout the pendency of this case. The Board further notes that the August 2020 VA examination includes an opinion that the Veteran’s chest pain is at least as likely as not related to military service. In making this determination, the examiner noted that episodes of chest pain and subsequent shortness of breath occur three to five times per year, lasting two to three hours, and are relieved by taking a nap. Although a musculoskeletal and cardiac etiology was ruled out based examination findings, the examiner found that the chest pain was due to anxiety. Symptoms of anxiety are recognized as part of the service-connected depressive disorder. Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Here, the record, including the August 2020 VA examination, reflects the condition of chest pain is a separate and distinct condition from the service-connected depressive disorder including being manifested by physical symptoms of pain and shortness of breath. In light of the foregoing, and resolving reasonable doubt in the Veteran’s favor, the Board finds service connection is warranted for chest pain. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. A total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. 38 C.F.R. § 3.340(a). A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing 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, 4.16(a). Here, the Veteran is service-connected for depressive disorder NOS, evaluated as 70 percent disabling from November 20, 2009; migraine headaches, evaluated as 30 percent disabling from November 20, 2009; a right shoulder disability, evaluated as noncompensable from November 20, 2009, and 20 percent disabling from June 27, 2019; lumbosacral strain, evaluated as 10 percent disabling from November 20, 2009; and right shoulder scar, evaluated as noncompensable from November 20, 2009. His overall combined rating was 80 percent from November 20, 2009; and 90 percent from June 27, 2019. As such, he satisfies the schedular requirements for consideration of a TDIU. In addressing the merits of the Veteran's TDIU claim, the Board notes that unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual's particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering the veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering the veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering the veteran’s master's degree in education and his part-time work as a tutor). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) provided a list of potentially relevant factors to be considered in determining whether a veteran can secure and follow a substantially gainful occupation under 38 C.F.R. § 4.16. The Court found that consideration of a veteran's physical ability is necessary, with possible relevant factors including limitations as to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as audio and visual limitations. The Court also indicated that a decision on TDIU should address whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Neither a claimant's age nor the impairment caused by nonservice-connected disabilities is for consideration in determining whether a TDIU is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board notes that the record, including an August 2015 VA Form 21-8940, reflects the Veteran completed high school and has one year of college. His work history includes his military service where his military occupational specialty was listed as automated logistical. A February 2015 letter from a Dr. Law notes that he worked for a construction company as a tool pusher and concrete worker for 6 months in 2009 following separation from service. At a May 2010 VA examination he reported a work history of cook and delivery at Pizza Hut at age 19. That examination also noted that his usual occupation was construction/warehouse manager/mechanic. The record also reflects that the Veteran is not currently employed, and such has been the case for many years. The May 2010 VA examination noted that he was unemployed, and had been so for less than one year. On his VA Form 21-8940 he reported that he had not worked since his separation from service in November 2009, while the February 2015 report from Dr. Law reflects he worked for 6 months in construction after service. A March 2015 Social Security Administration decision found he had not engaged in substantially gainful activity since December 2011. The Board further notes that the record reflects the Veteran does experience limitations as to lifting, bending, sitting, standing, and walking due to his service-connected disabilities, particularly the right shoulder and lumbosacral strain. See Ray, supra. For example, at a June 2019 VA back examination, he reported that there were times his back hurt so much he could barely walk. At a June 2019 VA shoulder examination, he reported that the more he used his right shoulder, especially for lifting overhead or reaching for things above his head, the more his shoulder hurt until he could barely move it. The Board also notes that a VA headaches examination reflects he experiences monthly prostrating attacks. In addition to the physical impairments, the Veteran’s service-connected depressive disorder has symptomatology reflective occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood to include as noted on VA examinations dated in 2010 and 2019. The 2019 examinations, and one in August 2020, also noted he had difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a work like setting. Id. The findings on the aforementioned VA examination are consistent with other evidence of record during the pendency of this case, to include medical treatment records. The combined impairment of these service-connected disabilities reflects significant difficulty engaging in substantially gainful employment consistent with the Veteran’s education and work history. The Board also notes that the March 2015 SSA decision found the Veteran was entitled to disability benefits from that agency, and the Veteran’s attorney has consistently referred to that decision in support of the TDIU claim. The Board is not bound by that decision, but it is probative evidence for consideration. In pertinent part, the Board observes that while various service-connected and nonservice-connected disabilities were noted in that SSA decision, the underlying rationale focused upon the impairment associated with the service-connected depressive disorder. Moreover, that decision accurately referred to pertinent evidence of record in support of that finding. Other evidence in support of the Veteran’s TDIU claim includes Dr. Law’s February 2015 statement. Dr. Law stated that due to the Veteran’s low back, right shoulder, and psychiatric disabilities, he was unable to perform past occupations and did not have transferrable skills. A review of this statement indicates Dr. Law had an accurate understanding of the Veteran’s medical history. In light of the foregoing, the Board finds it is at least as likely as not that the Veteran’s service-connected disabilities preclude his ability to obtain and/or maintain substantially gainful employment consistent with his education and work history. Therefore, a TDIU is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a sleep disorder, claimed as insomnia, is remanded. 2. Entitlement to service connection for a disability manifested by memory problems is remanded. None of the pertinent 2020 VA examinations included an opinion as to whether the Veteran’s insomnia and/or memory loss represents an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to the Veteran's Persian Gulf War service, as requested in the previous Board Remand. As such, a new remand is required to correct these deficiencies. See Stegall, supra. The matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his attorney should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. Then, schedule the Veteran for VA examinations to address the nature and etiology of his claimed sleep disorder and memory loss. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner/s should offer an opinion as to whether the Veteran's claimed sleep problems and memory loss are attributable to a known clinical diagnosis, to include whether he has such symptoms separate and distinct from those associated with his service-connected depressive disorder. The examiner(s) should also offer an opinion as to whether the Veteran's disability pattern with respect to the foregoing symptoms is most consistent with: (1) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, (2) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis. 4. If after examining the Veteran and reviewing the claims file, the examiner determines that the Veteran's disability pattern with respect to any of the symptoms at issue is most consistent with a diagnosable chronic multi-symptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis, the examiner should offer a further opinion as to whether it is at least as likely as not that any such illness or disability is related to service, to include environmental exposures experienced by the Veteran during service in Southwest Asia. The examiner’s opinion regarding the nature and etiology of the Veteran’s claimed sleep disorder should reflect consideration of the fact his service treatment records noted problems with insomnia in 2008; and that in August 2009 he was on medication to regulate sleep and believed he had a sleeping disorder. The examiner’s opinion regarding the nature and etiology of the Veteran’s claimed memory loss should reflect consideration of the fact there is evidence of memory impairment in medical treatment records, including in January 2010; as well as the fact that examination in July 2019 noted memory impairment was possible from the migraine medication prophylaxis. A complete rationale for all opinions expressed should be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his attorney should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Roya Bahrami Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John Kitlas, 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.