Citation Nr: 22017845 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-56 032A DATE: March 30, 2022 ORDER Entitlement to an initial rating higher than 70 percent for PTSD for the period beginning on August 12, 2016, is denied. REMANDED Entitlement to an initial rating higher than 30 percent for PTSD prior to August 12, 2016, is remanded. Entitlement to service connection for diabetes mellitus type 2 (DM2), to include as due to exposure to environmental hazards during the Persian Gulf War (PGW), is remanded. Entitlement to service connection for irritable bowel syndrome (IBS), to include as due to exposure to environmental hazards during the PGW or as due to an undiagnosed illness, is remanded. Entitlement to service connection for chronic fatigue syndrome (CFS), to include as due to an undiagnosed illness, is remanded. Entitlement to service connection for hypertension (HTN), to include as due to exposure to environmental hazards during the PGW is remanded. Entitlement to service connection for fibromyalgia, to include as due to an undiagnosed illness, is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), to include as due to service-connected PTSD, is remanded. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability is remanded. FINDING OF FACT The evidence of record persuasively favors a finding that since August 12, 2016, the Veteran's PTSD has manifested with occupational and social impairment in most areas but has not resulted in total social and occupational impairment. CONCLUSION OF LAW The criteria for an initial rating higher than 70 percent for PTSD since August 12, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1987 to June 1991. His service included a tour in Southwest Asia (SWA) during the PGW. The Veteran perfected an appeal of the initial rating of his PTSD as well as the other issues noted on the Title Page. See 10/25/2017 SOC; 11/20/2017 VA Form 9. His appeal also included the assigned effective date for grant of service connection for PTSD. In a rating decision dated in October 2017, the Agency of Original Jurisdiction (AOJ) granted the effective date the Veteran asserted he should have, May 5, 2015. See 11/20/2017 VA Form 9; 10/18/2017 Rating Decision Narrative. Hence, the Board deems that issue as resolved, and it will not be discussed in the decision below. The Veteran indicated on his VA Form 9 that he desired a Board hearing at the AOJ via video conference. In correspondence dated in April 2021 and December 2021, through his representative, The Veteran withdrew his request for a Board hearing and otherwise waived his right to a hearing. See 04/09/2021, 12/06/2021 Third Party Correspondence. Entitlement to an initial rating higher than 70 percent for PTSD for the period beginning on August 12, 2016, is denied. The AOJ granted service connection and assigned an initial 30 percent rating, which as noted earlier, the Veteran appealed. See 10/07/2015 Rating Decision. Following his appeal, the AOJ granted an increased initial rating from 30 percent to 70 percent, effective in August 2017. See 10/18/2017 Rating Decision. In his argument on behalf of the Veteran, the representative does not assert that the Veteran's disability more nearly approximates total occupational and social impairment. See 04/09/2021 Third Party Correspondence, P. 4-5. The Board agrees. Rating Criteria Under the General Formula for Mental Disorders (General Formula), 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); 38 C.F.R. § 4.130. 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, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent for the rating period that started on August 12, 2016. The Board concludes that the evidence of record persuasively shows that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. Rather, the Veteran's symptoms have more closely approximated the symptoms associated with a 70 percent rating and have resulted in a level of impairment that most closely approximates the level of impairment associated with a 70 percent rating. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 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 of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. Discussion As part of the development of the Veteran's appeal, the AOJ arranged another examination. The VA examination report (08/12/2016 C&P Exam, 1st Entry) reflects that the examiner conducted a review of the claims file as part of the examination. The Veteran reported that he had been married to his current wife for two years, and that he had recently relocated from another state. He had lost his job the prior March. He and his wife resided with his mother, and he reported further that he had not made any friends since his relocation. He also did not engage in any leisure activities. The examiner noted that the Veteran's PTSD manifested with the following symptoms: depressed mood; anxiety; Chronic sleep impairment; Mild memory loss, such as forgetting names, directions or recent events; Flattened affect; disturbances of motivation and mood; difficulty in adapting to stressful circumstances, including work or a worklike setting; obsessional rituals which interfere with routine activities; and, intermittent inability to perform activities of daily living (ADL), including maintenance of minimal personal hygiene. Id. P. 5. The examiner noted that the Veteran arrived early for his appointment, but she did not note whether he drove to the appointment alone. His mood and affect were flattened. He had not shaved that morning, but he was dressed appropriately for the season and setting, and his eye contact was good. The Veteran reported that he could no longer tolerate crowds, and he did not like anyone sitting behind him, so he must sit with his back to the wall. He complained of constant pain, and he had ruminating thoughts and significant anxiety. Although the examiner noted that the Veteran did not have any symptoms other than those already listed, she remarked that he was hypervigilant, had exaggerated startle response, and he was irritable with low frustration tolerance. Further, he experienced nightmares which cause him to wake in a panic, had intrusive thoughts and memories, low mood, and impaired memory with difficulty sustaining focus and attention. Id. The examiner had earlier noted that she opined that the level of the Veteran's impairment was occupational and social impairment with deficiencies in most areas. Id. P. 1. Also of record is a March 2017 private psychological evaluation by Jonathan Mangold, PhD, who evaluated the Veteran at his representative's request. See 04/27/2017 Medical Treatment-Non-Government Facility. Based on his review of the claims file and his telephonic evaluation of the Veteran, Dr. Mangold opined that the Veteran's depression and anxiety due to his PTSD are the primary debilitating symptoms of the Veteran's disability. Dr. Mangold's focus was the occupational impairment due to the Veteran's PTSD more so than the level of impairment for the Veteran's schedular rating. Nonetheless, he did note the findings in the August 2016 VA examination report. The Board finds that the evidence set forth above show that the Veteran's PTSD has manifested with symptoms associated with a 70 percent rating, such as flattened effect, disturbance of mood and motivation, difficulty in adapting to stressful circumstances, and a symptom associated with a 100 percent rating, intermittent ability to perform ADLs. As noted above, the examiner found that the Veteran also had symptoms that are not listed with a specific rating, such as hypervigilance, exaggerated startle response, intrusive thoughts, and nightmares. The Board finds, however, that the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The examiner noted that the intermittent ability to attend to ADL was based on the fact that the Veteran presented unshaved for that day. The Veteran was otherwise dressed appropriately. The totality of the evidence does not show that the Veteran is unable to maintain personal hygiene. Further, the evidence of record persuasively shows that the Veteran has consistently denied suicidal or homicidal ideation, he has been noted to be no threat to himself or others, and he has remained competent to handle his VA benefits throughout the reporting period. Further, while impaired, the Veteran has not entirely lost his ability to maintain effective relationships, as his current marriage is stable, and he and his wife reside with his mother. In short, the evidence of record persuasively weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. 38 C.F.R. § 4.130, DC 9411. The criteria for a 100 percent or higher rating are not met and the appeal must be denied. 38 C.F.R. § 4.1. Since the evidence of record persuasively favors no more than a 70 percent rating since August 12, 2016, there is no reasonable doubt to resolve. See Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to an initial rating higher than 30 percent for PTSD prior to August 12, 2016, is remanded. The Veteran's VA outpatient records and the VA examination reports note that his depression and anxiety are fueled by his physical ailments which, to date, are not service connected. Dr. Mangold could not determine whether the Veteran's occupational impairment is due to his PTSD or his other medical conditions. The Board is aware of the holding in Mitleider v. Brown, 11 Vet. App. 181 (1998). Nonetheless, since the service connection claims require additional development, the issue of the PTSD rating for the period prior to August 12, 2016, is intertwined. Hence, remand is necessary. 2. Entitlement to service connection for DM2 and HTN, to include as due to exposure to environmental hazards during the PGW, is remanded. A VA examiner opined that it is not at least as likely as not that the Veteran's DM2 or HTN is causally related to his exposure to specific environmental hazards while serving in SWA. See 10/02/2015 C&P Exam, 1st Entry. The examiner did not provide a rationale for the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Hence, an addendum is needed. 3. Entitlement to service connection for IBS, CFS, and fibromyalgia, to include as due to an undiagnosed illness, is remanded. The Veteran's representative asserts that the Veteran has in fact been diagnosed with IBS, CFS, and fibromyalgia. See 04/09/2021 Third Party Correspondence. Dr. Mangold also noted diagnoses of those conditions, as did an Administrative Law Judge of the Social Security Administration. See 04/27/2017 SSA Medical Records. The Veteran's representative submitted a copy of a March 2019 letter to the Veteran from the New Jersey War Related Injury and Illness Study Center (WRIISC) (Center) that relayed the results of his workup at the Center. The Board's review of the Veteran's records associated with his workup reveals prescriptions for fibromyalgia but no record of specific diagnoses of IBS, CFS, or CFS. For example, one entry notes that the Veteran's symptoms may be due to fibromyalgia, but that connective tissue disease must first be ruled out. (Emphasis added). A post-Center entry notes the Veteran's history rather than specific diagnoses. See 08/10/2016 CAPRI, 2nd Entry, P. 6; 4th Entry, P. 13. Nonetheless, the Center's records and report were not part of the record when the AOJ obtained the initial examinations and nexus opinions in 2015. The Center's report and other records may well show the Veteran's symptoms are due to an undiagnosed illness or a medically unexplained chronic multisymptom (MUCMI) illness. See 38 C.F.R. § 3.317. That determination will require an additional review by a medical professional, as the Board may not apply its own medical judgment. See Colvin v. Derwinski, 1 Vet. App. 171, 172 (1991). The Veteran's representative submitted documents that contain highlighted portions. The highlighting renders them unreadable by the Board. Hence, the AOJ must request copies that do not contain highlighting. 4. Entitlement to service connection for OSA, to include as due to service-connected PTSD, is remanded. A VA examiner opined that that there is no causal or aggravating relationship between OSA and the Veteran's PTSD, as PTSD is not an etiological feature of OSA. Instead, the most important risk factors are advancing age, male gender, obesity, and craniofacial or upper airway soft tissue abnormalities. See 11/24/2015 C&P Exam, 1st Entry. However, the examiner did not discuss the potential applicability of the medical literature submitted that notes a potential association between PTSD, and literature on combat veterans and sleep apnea. See 10/13/2015 Correspondence, 1st and 2nd Entries. Further, the examiner did not discuss how the noted risk factors apply to the Veteran's individual case. Hence, the examination report is inadequate for appellate review purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The AOJ must also ensure that the correct legal standard for secondary service connection is applied. See Ward v. Wilkie, 31 Vet. App. 233 (2019). 5. Entitlement to a TDIU due to service-connected disability is remanded. This issue is intertwined with the issues discussed above. The matters are REMANDED for the following action: 1. The AOJ shall ensure that all related treatment records not already in the claims file are obtained and added to the record. This action must include a request to the Veteran and his representative to provide records that do not contain highlighting. 2. After the above is complete, arrange a medical review of the claims file by physician. Ask the reviewer to opine whether it is at least as likely as not (at least a 50 percent probability) that the Veteran has specific diagnoses for any of the following: IBS, CFS, or fibromyalgia. For each diagnosis, is it at least as likely as not that the disorder had its onset during the Veteran's active service or is causally connected to his active service, to include his service in SWA? If the answer is, no, then is it at least as likely as not that the Veteran's documented symptoms are due to an undiagnosed illness or a medically unexplained chronic multi-symptoms illness (MUCMI)? The reviewer must provide a complete explanation for all opinions provided. 3. The AOJ shall send the claims file to the physician who conducted the 2015 DM2 and HTN examinations and provided the negative nexus opinions. Ask the physician to provide an addendum report wherein he provides a full rationale for the opinion that it is not at least as likely as not that either the Veteran's DM2 or his HTN is causally related to his exposure to environmental hazards during his tour in SWA. If the examiner is no longer available, then send the claims file to an equally qualified physician. If the substitute physician advises that he/she cannot provided the requested opinion without examining the Veteran, the AOJ shall arrange the examination. 4. The AOJ shall send the claims file to the physician who opined that the Veteran's OSA is not causally related to his PTSD, either via etiology or aggravation. Ask the physician to provide an addendum report wherein he explains whether the medical literature on the subject submitted by the Veteran changes his opinion in any way. The physician is also asked to address and fully explain how the risk factors noted in the 2015 examination report relate to the Veteran's individual case. If the physician adheres to his opinion that it is not at least as likely as not that the Veteran's OSA is due to his PTSD, then is it at least as likely as not that the Veteran's PTSD worsens his OSA? Inform the physician that any worsening of the OSA due to the PTSD need not be chronic or permanent. Instead, if there are flare-ups of the OSA that impair the Veteran's earning capacity that are caused by his PTSD, that is sufficient for a positive nexus opinion. The physician must provide a full explanation for the opinion. If the examiner is no longer available, then send the claims file to an equally qualified physician. If the substitute physician advises that he/she cannot provided the requested opinion without examining the Veteran, the AOJ shall arrange the examination. (Continued on the next page) 5. After all of the above is complete, the AOJ shall readjudicate the issues of entitlement to an initial rating higher than 30 percent for PTSD for the period prior to August 12, 2016, and entitlement to a TDIU as appropriate. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. T. Snyder 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.