Citation Nr: 21025185 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 13-23 825 DATE: April 27, 2021 ORDER Prior to September 9, 2020, an initial disability rating of 50 percent for posttraumatic stress disorder (PTSD) is granted. From September 9, 2020, an increased disability rating in excess of 70 percent for PTSD with major depressive disorder, excoriation, and obsessive-compulsive disorder is denied. REMANDED Service connection for fibromyalgia and/or a disability characterized by pain and fatigue, to include as secondary to PTSD with major depressive disorder, excoriation, and obsessive-compulsive disorder, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to September 9, 2020, the severity, frequency, and duration of the Veteran’s symptoms most closely approximated as occupational and social impairment with reduced reliability and productivity, and did not more closely approximate occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. From September 9, 2020, the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to September 9, 2020, the criteria for an initial disability rating of 50 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434-9411. 2. From September 9, 2020, the criteria for a disability rating in excess of 70 percent for PTSD with major depressive disorder, excoriation, and obsessive-compulsive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code Diagnostic Code 9434-9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1962 until his honorable discharge in August 1965. This appeal has been advanced on the Board of Veterans’ Appeals’ (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c) and (d). This case has a long and relatively complicated procedural history that requires explanation for proper context. Psychiatric Disabilities and TDIU In November 2010, the Veteran filed a claim for service connection for PTSD. In an October 2011 decision, a Regional Office (RO) of the Department of Veterans Affairs (VA) denied service connection for PTSD from which the Veteran timely appealed. In a July 2013 decision, a RO of VA denied service connection for an acquired psychiatric disability other than PTSD from which the Veteran timely appealed. Following a Board hearing in December 2016, the Board issued a decision in October 2017 granting service connection for PTSD and remanding the claim for service connection for an acquired psychiatric disability other than PTSD for further development. In September 2018, the RO issued a rating decision effectuating the Board’s granted of service connection for PTSD. The RO assigned an initial disability rating of 30 percent effective November 10, 2010 (the date of the filing of the claim for service connection for PTSD). The Veteran timely appealed, and this is the rating decision currently on appeal before the Board. In May 2020, the Board remanded the claim for an increased initial disability rating for PTSD to the RO for further development, to include attempting to obtain medical records and an updated VA examination addressing the severity of the Veteran’s PTSD. In addition, in the Board’s May 2020 remand, it added a claim of entitlement to TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453‒55 (2009). In July 2020, the Board remanded the claim for service connection for an acquired psychiatric disability other than PTSD to the RO for further development, to include attempting to obtain a VA examination and medical opinion addressing whether the Veteran’s current psychiatric diagnoses were separate and distinct disabilities from the Veteran’s already service-connected PTSD. In an October 2020 rating decision, the RO granted service connection for major depressive disorder, excoriation, and obsessive-compulsive disorder secondary to PTSD, which was not separate and distinct from the Veteran’s service-connected PTSD. The RO assigned an increased disability rating of 70 percent effective September 9, 2020. The claims now return to the Board for adjudication. Fibromyalgia and/or Chronic Pain In January 2012, the Veteran filed a claim for service connection for fibromyalgia on a direct and secondary theory of service connection. In a July 2013 decision, the RO denied service connection for fibromyalgia. The Veteran timely appealed to the Board, and this is the decision currently on appeal. In December 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). In an October 2017 Board decision, the Board denied service connection for fibromyalgia. The Veteran subsequently appealed that portion of the Board’s decision to the Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Remand (JMR) in which they stipulated that the Board erred by failing to remand the claim for fibromyalgia for additional development. Consistent with the terms of the JMR, the Court entered an order in July 2018 vacating and remanding that potion of the Board’s decision. In February 2019 and May 2020, the Board issued orders remanding the claim for service connection for fibromyalgia to the RO for further development, to include attempting to obtain outstanding medical records and new VA examinations and medical opinions. Importantly, in the Board’s May 2020 remand order, the Board broadened the Veteran’s claim for service connection for fibromyalgia to include “a claim for a disorder characterized by chronic pain and fatigue, however diagnosed[.]” 1. Increased rating for psychiatric disabilities Evidentiary Standards In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence when rating disabilities. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 C.F.R. § 4.3. To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). An initial rating is one assigned at the time service-connection is granted. When an initial rating decision is on appeal, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at those times and should be the evidence used to decide whether an original rating was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Separate ratings can be assigned for separate periods of time based on the facts found—a practice known as “staged” ratings. Id. A staged rating is a rating that looks backwards and retroactively assigns specific ratings to discrete periods. See Reizenstein v. Shinseki, 583 F.3d 1331, 1337 (Fed. Cir. 2009). This practice accounts “for the possible dynamic nature of a disability while the claim works its way through the adjudication process.” O’Connell v. Nicholson, 21 Vet. App. 89, 93 (2007); see also 38 C.F.R. § 4.1. The effective date for a staged rating is when it is factually ascertainable that a particular rating is warranted. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In cases where staged ratings are appropriate, it is necessary to consider all “the evidence of record from the time of the veteran’s application.” Fenderson, 12 Vet. App. at 127. The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128‒29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Diagnostic Codes (DCs) are assigned to individual disabilities. Diagnostic Codes provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Id. Psychiatric Disabilities – Rating Criteria Under the General Formula for Mental Disorders (General Formula), 38 C.F.R. § 4.130, the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The symptoms listed in the VA’s general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, which would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114‒18 (Fed. Cir. 2013). Prior to September 9, 2020, the Veteran was only service connected for PTSD, which is rated under 38 C.F.R. § 4.130, DC 9411. As of September 9, 2020, the Veteran is service connected for PTSD with major depressive disorder, excoriation, and obsessive-compulsive disorder, which the RO chose to rate under 38 C.F.R. § 4.130, DC 9434-9411. The hyphenated DC is used to add information to help describe the origins of single disability. Diagnostic Code 9434 refers to depressive disorders and DC 9411 refers to PTSD. The rating criteria are the same for each of them under 38 C.F.R. § 4.130, as cited above. The General Formula, 38 C.F.R. § 4.130, DC 9434-9411, provides, in pertinent part, as follows: Rating (%) 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. 100 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. 70 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. 50 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). 30 38 C.F.R. § 4.130, DC 9434-9411 does provide for ratings lower than 30 percent. In this case, however, the Veteran received an initial disability rating of 30 percent. Thus, an analysis of the ratings lower than 30 percent is unwarranted, absent legal and factual bases to issue a reduction in the Veteran’s current rating. See 38 C.F.R. § 3.344. Considerations in rating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. Id. Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The United States Court of Appeals for the Federal Circuit held that evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Vazquez-Claudio, 713 F.3d at 116‒17. Analysis The Veteran has an extensive mental health treatment history. To discuss every individual record would be unduly burdensome in this case. The Board finds that it is in the interest of judicial economy to discuss the Veteran’s overall disability picture more broadly while still paying attention to particular evidence of record within the following analyses. Prior To September 9, 2020 From June 2010 through December 2010, the Veteran’s VA mental health records demonstrate that he reported experiencing symptoms of daily, intensive intrusive thoughts related to his service-connected PTSD. He reported sleep disturbances with nightmares, anxiety, avoidance of particular individuals, social isolation, trouble with interpersonal relationships, anger, irritability, loss of interest in things, and feeling numb and detached. He denied suicidal and homicidal ideations. He was properly attired and responsive during his treatment evaluations. He was not disabled due to his PTSD according to his 2010 VA mental health therapist. In 2011, the Veteran’s VA medical records documented substantial treatment for psychiatric disabilities. He generally reported experiencing sleep disturbances due to repetitive nightmares, loss of appetite, strained relationships with his marriage and daughter, anxiety, occasional thoughts of hopelessness, hypervigilance, paranoia, and depression. Beginning in April 2011, he endorsed obsessive-compulsive disorders (OCD), such as counting things and skin picking, but not repetitively. He denied experiencing panic attacks, hallucinations, and delusions. By December 2011, the Veteran reported less intrusive nightmares and less irritability. During his 2011 VA mental health treatments, the Veteran demonstrated organized cognition, appropriate grooming/hygiene, proper alertness/orientation, proper speech and engagement, normal attention and concentration, self-control, and intact judgment. His mood was generally characterized by VA treating professionals as restricted, anxious, and/or depressed. His cognition was organized. In June 2011, he reported speaking with his brother more often and having better contact with his daughter-in-law. He had guests over to his house at one point. In June 2011, he reported a passive “death wish” to his treating VA medical professional. Besides this report, he denied experience suicidal or homicidal ideations in 2011. In July 2011, he reported improvement with his appetite and family relationships and engaging in volunteer work. The Veteran attended an August 2011 VA examination to address his psychiatric disabilities. He reported experiencing flashbacks, intrusive thoughts, infrequent nightmares, limited social interactions due to distrust of people, hypervigilance, generalized anxiety, anger control issues, dysphoria, crying, difficulty maintaining sleep, and variable appetite. He reported working until 2008 as a deputy sheriff and environmental technician. He said he was capable of performing daily activities. The examiner documented a flattened affect during the examination. In 2012, the Veteran’s VA medical records indicated he experienced intrusive memories and flashbacks almost daily. He still felt depressed and anxious. He reported improved hypervigilance, anxiety, irritability, and a reduction in nightmares. He remained constantly “on guard” in public. In May 2012, he reported experiencing on-and-off passive suicidal thoughts in the prior month but denied suicidal or homicidal ideations otherwise in 2012. He continued to engage in volunteer programs and said he would look for a part-time job. His family relationships remained stable. During his 2012 VA mental health treatments, the Veteran demonstrated organized cognition, appropriate grooming/hygiene, proper alertness/orientation, proper speech and engagement, normal attention and concentration, self-control, and intact judgment. His mood was generally characterized by VA treating professionals as guarded, restricted, and anxious. He denied hallucinations, mania, and delusions. But in October 2012, he reported short-term memory problems, such as forgetting groceries, recent conversations, and names. He said this began two to three months prior. He continued to deny panic attacks, but he still experienced OCD symptoms. He also reported increased depression and stress in October 2012. From 2013 through 2015, the Veteran continued to report experiencing disturbing memories and thoughts daily, high levels of irritability and stress, avoidance of certain things that reminded him of his PTSD event, jumpiness, hypervigilance, trust issues, difficulty concentrating, and sleep disturbances. He was provided a VA examination in July 2013. The examiner documented the Veteran’s symptoms just mentioned and also documented depressed mood and anxiety. The examiner opined that the Veteran’s PTSD symptoms aligned with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In January 2015, the Veteran underwent a neuropsychological consult and the VA medical professional found the Veteran has attention issues that were secondary to his mood and pain. He endorsed feeling sad and hopeless most of the time and feelings of guilt. The Veteran also reasserted short-term memory issues, which his VA psychiatrist believed were due to his anxiety. He had difficulty repeating a phone number. From 2013 through 2015, the Veteran demonstrated organized cognition, appropriate grooming/hygiene, proper alertness/orientation, proper speech and engagement, normal attention and concentration, self-control, and intact judgment. His mood was generally characterized by VA treating professionals as restricted, anxious, and/or depressed. His cognition was organized. From 2016 through September 9, 2020, the Veteran’s symptomatology associated with his psychiatric disabilities seemingly worsened. Due to increased memory issues, he had a second neuropsychology consult in November 2016. According to the results of vast testing, the Veteran showed reduced response times when there were longer pauses between presented stimuli regarding attention, as well as reduced response times later in the task. The examiner opined that his results suggested difficulties with distractibility, sustained attention, and vigilance. This pattern of distractibility was also observed in a problem-solving task. His results on the verbal fluency tests ranged from average to low-average, and his ability to shift his focus was low-average. He did exhibit delayed responses in short, delayed free recall. On tasks of visual memory, his performance varied between superior and mildly impaired. The Veteran endorsed depressed mood, moderate anxiety, ongoing intrusive thoughts and hypervigilance, chronic pain, and situational stress surrounding the health of his wife. In January 2017, the Veteran reported that his depression came in waves, but he had his anxiety under control. He mentioned having feelings of guilt. In December 2017 he stated he felt depressed nearly every day and lost interest in things he once enjoyed. His depression carried through into 2018. His sleep once again became poor. He reported having “fair” energy to do housework. In July 2018, the Veteran reported having a passive suicidal ideation without intent. He also reported having “really bad” concentration. In November 2018, the Veteran reported worsened symptomatology, to include increased depression, frequent flashbacks, avoidance of public places, he continued to pick his skin, which a VA medical professional observed, and he endorsed thoughts hopelessness and fleeting suicidal ideations. He stated he experienced concentration issues every day. In 2019, his symptoms improved. He did not report any suicidal ideations. He reported increased communication with his daughters and constructive activities. In an April 2019 VA mental health assessment, the examiner documented poor attention, memory concerns, flashbacks, nervousness, anxiety, loneliness, low energy, dizzy spells, appetite loss, and sleep disturbances. In a May 2019 VA mental health note, the treating VA psychologist opined that the Veteran’s PTSD symptoms appeared to have a mild negative impact on social and occupational functioning. In August 2019, the Veteran was afforded a VA-contracted examination to address his psychiatric disabilities other than PTSD. At that time, he reported experiencing intrusive thoughts daily, triggered by public places. When he experienced intrusive thoughts, he felt anxious, shaky, and chills ran through him. He endorsed anxiety, depressed mood, picking at his hands until they bled, hypervigilance, suspiciousness, avoidance of public spaces, and exaggerated startle response. The examiner did not observe abnormal physical characteristics or mannerisms. The examiner opined the Veteran’s symptomatology resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. From 2016 through September 9, 2020, the Veteran demonstrated organized cognition, appropriate grooming/hygiene, proper alertness/orientation, proper speech and engagement, self-control, and intact judgment. His mood was generally characterized by VA treating professionals as restricted, anxious, and/or depressed. His cognition was organized. But, as discussed, his memory and concentration abilities had diminished. The Board finds the Veteran competent to report lay observations of his psychiatric symptomatology and experiences. Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms). The Board finds the Veteran’s statements to the various medical professionals, VA, and the Board, credible and probative. Absent evidence to the contrary, the Board finds the above-mentioned medical professionals were competent to exam and diagnose the Veteran and to provide medical judgments related to his psychiatric disabilities. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competency of medical professionals is presumed absent evidence to the contrary). The Board finds the medical professionals’ respective examinations, medical findings, and medical opinions are credible and probative unless otherwise indicated. The medical professionals conducted thorough examinations, relied on accurate facts, considered the Veteran’s relevant medical records, medical history, and lay statements, and provided well-reasoned medical judgments. During the appeal period prior to September 9, 2020, the Veteran’s psychiatric symptoms most closely manifested as occupational and social impairment with reduced reliability and productivity. 38 C.F.R. § 4.130, DC 9434-9411 (50 percent rating criteria). First, the Veteran’s mood was routinely described as guarded, restricted, sad, and depressed. When medical professionals addressed his affect, it too was generally flattened or dysphoric. The Veteran’s constant state of depression, hopelessness, intrusive thoughts, and sleep disturbances are best characterized as disturbances of mood in this case. The Board finds the severity, frequency, and duration of these symptoms more closely resembles occupational and social impairment with reduced reliability and productivity. Second, although the Veteran did not experience panic attacks, he consistently endorsed hypervigilance, being on guard, and avoidance of public spaces because of the event that led to his PTSD. The Board finds these symptoms had a more significant impact on his daily functioning than contemplated by the 30 percent disability rating criteria; they impaired his social skills, reliability, and productivity. As noted during almost all of his VA mental health consults, his relationships with his family had multiple high points and low points. Because of his psychiatric symptomatology, it was difficult to maintain effective family relationships, particularly in his marriage. Third, the Veteran’s memory issues became more apparent and significant beginning around 2015, leading to neuropsychological evaluations that showed decreased cognitive abilities. This too significantly contributed to the Veteran’s occupational and social impairment; he had difficulty remembering numbers and names. His short-term memory became progressively worse during the appeal period. Considering the relevant evidence in light of the governing legal authority, the Board finds that the evidence establishes a 50 percent disability rating is warranted for the appeal period prior to September 9, 2020. The preponderance of the evidence is against a rating higher than a 50 percent rating. Deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, are not shown by the record for this portion of the appeal period. Deficiencies in school were not shown. There are few deficiencies in family because although some marital discord and tension between the Veteran and his adult children were documented in multiple VA treatment notes, the record does not indicate any significant problems with the Veteran’s familial relationships during the appeal period, such violence, criminal behavior, or other troubling behavior. The treating VA medical professionals and VA examiners, likewise, made no such findings. Rather, the Veteran was shown to have maintained a long-term marriage and maintained relationships with his adult children. There were no deficiencies in judgment or thinking, as both were intact when assessed multiple occasions throughout the appeal period. The record contains no indication that the Veteran’s symptomatology resulted in obsessional rituals, or that he had intermittently illogical, obscure, or irrelevant speech. His symptomatology did not consist of near-continuous panic or depression that affected his ability to function independently, appropriately, and effectively. The Veteran reported to medical professionals that he functioned independently, as demonstrated by his housework and gardening activities. The Veteran did not report, nor did medical professionals document, impaired impulse control, spatial disorientation, or neglect of personal appearance and hygiene. Rather, the Veteran’s PTSD was shown to be primarily manifested by a depressed mood, anxiety, irritability, avoidant behaviors, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. All of these symptoms correspond to those contemplated by the 50 percent disability rating. The Board has also carefully considered the medical reports documenting isolated instances of suicidal ideation. See Bankhead, 29 Vet. App. 10 (holding that the language of the regulation indicates that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas, as contemplated by a 70 percent rating). Here, the Veteran was assessed for suicidal ideation throughout the appeal period. When viewing these isolated reports in the context of the entire disability picture, spanning over the course of approximately 10 years, combined with the absence of other symptomology contemplated by a 70 percent rating and the specific severity findings of the VA examiners, the Board finds the preponderance of the evidence is against a rating in excess of 50 percent. In sum, the overall symptomatology attributable to the Veteran’s PTSD prior to September 9, 2020, most closely approximated the level of severity contemplated by a 50 percent rating. From September 9, 2020 On September 9, 2020, the Veteran underwent a VA-contracted medical examination to assess the severity of his psychiatric disabilities. The examiner documented that the Veteran experienced involuntary and intrusive thoughts, recurrent nightmares, psychological and physiological reactions to stimuli, avoidance behavior, persistent and exaggerated negative beliefs, markedly diminished interest in things and activities, hypervigilance, exaggerated startle response, concentration problems, and sleep disturbances. He also experienced depression, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of mood, difficulty in establishing and maintaining effective work and social relationships, obsessional rituals that interfered with routine activities, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. During the examination, the examiner observed the Veteran’s mood was anxious and his affect was restricted. He denied suicidal and homicidal ideations. The Veteran reported an uncontrollable urge to pick at his skin on his fingers until they are bleeding. The Veteran also reported compulsivity with counting objects. Otherwise, the examiner did no observe or record additional abnormal behavior. The examiner opined that the Veteran’s symptomatology resulted in occupational and social impairment with reduced reliability and productivity. A November 2020 VA mental health note documented that the Veteran reported doing “really well.” He was sleeping and eating “okay.” He had planned to go to his daughter’s house for Thanksgiving. He denied suicidal ideations. The VA psychiatrist did not observe any abnormal behaviors during the evaluation. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the assignment of a 100 percent rating for the Veteran’s psychiatric disabilities since September 9, 2020. Significantly, in determining the overall severity of the Veteran’s psychiatric disabilities, the September 2020 VA examiner selected the severity statement corresponding with the 50 percent rating criteria. The November 2020 treating VA psychiatrist did not document any symptoms associated with the 100 disability rating criteria. No examiner or treating medical professional found that the Veteran’s psychiatric disabilities manifested by total occupational and social impairment. Total social impairment is not shown by the record. The Veteran is able to do daily activities, but he is physically limited due to other medical conditions not associated with his psychiatric disabilities. He stated he had planned to travel for Thanksgiving, thus indicating his ability to have family relationships and ambulate. Furthermore, nearly none of the symptoms typically associated with a 100 percent rating are shown by the record. The record does indicate that during the pertinent timeframe the Veteran’s psychiatric disabilities manifested by slight memory loss and hygiene issues, but these were not of the severity contemplated by the 100 percent disability rating criteria as they did not interfere with daily activities on a constant basis. In sum, the overall symptomatology attributable to the Veteran’s service-connected psychiatric disabilities has most closely approximated the level of severity contemplated by a 70 percent rating since September 9, 2020, and the preponderance of the evidence is against a higher rating. REASONS FOR REMAND 1. Service connection for fibromyalgia and/or a disability characterized by pain and fatigue, to include as secondary to PTSD with major depressive disorder, excoriation, and obsessive-compulsive disorder, is remanded. Consistent with the Board’s May 2020 remand directive, the RO obtained a VA examination and medical opinion in December 2020 addressing the nature and etiology of the Veteran’s asserted fibromyalgia. The examiner did not diagnose the Veteran with fibromyalgia but did confirm diagnoses of anemia, left upper extremity radiculopathy associated with the cervical spine/neck, and left lower extremity radiculopathy associated with lumbar spine. The conditions were cited by the Board as characteristics of chronic pain and fatigue, “however diagnosed,” in the Board’s May 2020 remand order, thus making them the subject of the Veteran’s claim for service connection for fibromyalgia. The examiner opined that Veteran’s PTSD aggravated these conditions. The examiner did not offer an opinion as to causation. A medical opinion regarding secondary service connection must address both causation and aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 138–40 (2013). As such, remand is required to obtain an addendum opinion addressing causation. In addition, the examiner opined that there was a lack of medical and objective evidence to diagnose the Veteran with fibromyalgia. The examiner did not explain what “medical” and “objective” evidence meant. The Board notes that a December 3, 2013, private medical record from Colorado Foot and Ankle “assessed” the Veteran with fibromyalgia, and an October 29, 2015, private medical record from Colorado Foot and Ankle reported “unchanged chronic pain and radicular pain.” Thus, remand is required for clarification from the examiner as to what medical an objective evidence means in this context. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. As part of the Board’s May 2020 remand, it instructed that “[i]f the schedular criteria for TDIU are not satisfied for any period on appeal, refer the matter of entitlement to TDIU on an extraschedular basis to the Director, Compensation Service.” (Emphasis added). There was a period during the appeal that the Veteran did not meet the schedular criteria for TDIU, but the RO did not refer the claim to the Director because the Veteran did not return VA Form 21-8940. Because the Board’s prior remand used broad language, “any period on appeal,” and did not qualify referral to the Director based on completion of VA Form 21-8940, the RO should have referred the claims to the Director. As such, remand is necessary for the RO to substantially comply with the Board’s May 2020 remand directive. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran’s outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain an addendum opinion from the December 2020 VA-contracted examiner, or another appropriately qualified clinician if that examiner is unavailable, to provide an opinion addressing the onset and etiology of the Veteran’s (i) anemia, (ii) left upper extremity radiculopathy associated with the cervical spine/neck, and (iii) left lower extremity radiculopathy associated with lumbar spine, which are associated with the Veteran’s current chronic pain and fatigue as addressed within the December 2020 VA-contracted examiner’s opinion. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding: (a.) Please explain what medical and objective evidence the examiner would expect to find in order to diagnose the Veteran with fibromyalgia and why there is a lack of such evidence in this case during the entire pendency of the claim. The examiner’s attention is directed to December 3, 2013, private medical record from Colorado Foot and Ankle “assessing” the Veteran with fibromyalgia, and an October 29, 2015, private medical record from Colorado Foot and Ankle reporting “unchanged chronic pain and radicular pain.” (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s disabilities associated with chronic pain and fatigue, to include (i) anemia, (ii) left upper extremity radiculopathy associated with the cervical spine/neck, and (iii) left lower extremity radiculopathy associated with lumbar spine, had their respective onset in or are otherwise etiologically related to an in-service event, injury, or disease. (c.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s disabilities associated with chronic pain and fatigue, to include (i) anemia, (ii) left upper extremity radiculopathy associated with the cervical spine/neck, and (iii) left lower extremity radiculopathy associated with lumbar spine, were caused by (proximately due to or as the result of) his service-connected posttraumatic stress disorder (PTSD) with major depressive disorder, excoriation, and obsessive-compulsive disorder. (d.) Whether it is at least as likely as not (a 50 percent probability or more) that the Veteran’s disabilities associated with chronic pain and fatigue, to include (i) anemia, (ii) left upper extremity radiculopathy associated with the cervical spine/neck, and (iii) left lower extremity radiculopathy associated with lumbar spine, were aggravated by his service-connected PTSD with major depressive disorder, excoriation, and obsessive-compulsive disorder. The examiner is advised “aggravation” means an increase in the severity of the underlying disability beyond its natural progression. The examiner is reminded to consider the Veteran’s lay statements regarding the nature and onset of his disability, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran’s assertion of a fibromyalgia and/or chronic pain and fatigue in service or the assertion that the Veteran’s service-connected PTSD with major depressive disorder, excoriation, and obsessive-compulsive disorder caused or aggravated such disabilities. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner should identify the treatises. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question(s). 3. Following completion of all necessary and reasonable development, the RO must comply with the Board’s May 2020 remand directive as to TDIU, which provides that “[i]f the schedular criteria for TDIU are not satisfied for any period on appeal, refer the matter of entitlement to TDIU on an extraschedular basis to the Director, Compensation Service.” The RO is informed that the Board’s May 2020 remand directive as to TDIU must be accomplished regardless of whether the Veteran returns certain forms or not. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, Associate 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.