Citation Nr: 22019799 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 16-39 065 DATE: April 3, 2022 ORDER Entitlement to an initial disability rating 30 percent, but not higher, for all times prior to January 19, 2021 for service-connected posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. FINDING OF FACT For all times prior to January 19, 2021, the Veteran's PTSD has manifested in symptoms most closely approximating occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, to include depressed mood, anxiety, suspiciousness, chronic sleep impairment, irritability, and mild memory loss. CONCLUSION OF LAW For all times prior to January 19, 2021, the criteria for entitlement to an initial rating of 30 percent, but no higher, for service-connected post-traumatic stress disorder (PTSD) have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1988 to February 1992 and is a recipient of the Combat Action Ribbon. These matters come before the Board of Veterans' Appeals ("Board") on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Waco, Texas. This rating decision established service connection for PTSD, effective July 31, 2012 at an initial rating of 10 percent, but denied a service-connection award, in pertinent part, for irritable bowel syndrome, fibromyalgia, and chronic fatigue syndrome. In March 2019, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. By way of background, the matters were remanded in October 2019 and June 2021 for further development, to include VA examinations. As the additional development has been completed, the matters are again before the Board for further adjudication. Increased Rating Disability evaluations are determined by the application of the facts presented to the VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. (1999); Hart v. Mansfield, 21 Vet. App. (2007). The Veteran is currently rated under Diagnostic Code 9411 for PTSD. For rating purposes, Diagnostic Code 9411 is included among the General Rating Formula for Mental Disorders ("Rating Formula") of 38 C.F.R. § 4.130. To be assigned a rating of 10 percent, the Veteran must demonstrate occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or symptoms that are controlled by continuous medication. To be assigned a rating of 30 percent, the Veteran must demonstrate 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). To be assigned a rating of 50 percent, the Veteran must demonstrate 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. To be assigned a rating of 70 percent, the Veteran must demonstrate 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 that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. To be assigned a rating of 100 percent, the Veteran must demonstrate 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. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). In Vasquez-Claudio v. Shinseki, F.3d 112, 117 (Fed. Cir. 2013), the Court also held that a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Indeed, considerations in evaluating 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. The evaluation 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. 38 C.F.R. § 4.126(a). Entitlement to an initial 30 percent disability rating, but no higher, for all times prior to January 19, 2021 for service-connected PTSD is granted. Here, the Board finds that the severity of the Veteran's condition most closely approximates a level contemplated by a disability rating of 30 percent throughout the entire rating period prior to January 19, 2021. As noted above, the agency of original jurisdiction (AOJ) assigned an initial 10 percent rating for the Veteran's PTSD, effective July 31, 2012. The Veteran disagreed with this initial rating and perfected this appeal. During the pendency of the appeal the AOJ increased the rating from 10 to 100 percent, effective January 19, 2021. At issue is whether a rating greater than 10 percent can be awarded prior to January 19, 2021. There is little medical evidence of record to assist in this inquiry. The Veteran was examined in May 2013, and it was recorded in the corresponding report that the Veteran indicated his PTSD was mild, and that he did not feel his symptoms had ever caused problems in his functioning at home, at work or in society, at that time or in the past. Both prior to, and subsequent to this examination, the Veteran has not sought treatment for a psychiatric disability. At his hearing before the Board in March 2019, the Veteran testified that he did not discuss many of the PTSD problems he was experiencing at the time of his 2013 examination, and that he didn't give the examiner an accurate picture of the severity level of his disability. The Veteran testified that he had problems sleeping, severe recurring nightmares, and memory problems. He testified that, at the time, he did not have a problem going to work because of his sleep issues and that he always went to work, but that if he did have problems, he would end up just going home. He testified that he had a problem keeping social relationships and that he was divorced once; however, he had now been married for a while and he had been trying to keep this marriage intact. The Veteran testified that he had instances of conflict with coworkers and, though he associated with a certain few, he stayed away from most of them. He testified that he did have a good relationship with his supervisor, and he tried to go to work every day, regardless of how he felt. He testified that at the time he was not receiving any medical treatment or medication for PTSD, he had never received any type of inpatient care of hospitalization, and that the sleep issues were probably the worst part of his problems. See March 2019 hearing transcript. The Board remanded the Veteran's appeal, and in a January 2021 examination report, the Veteran's symptoms and their impact on his social and occupational impairment were described as significantly worse. Based on the results of this examination, the AOJ awarded a 100 percent rating. However, the January 2021 examination report did not contain sufficient discussion of the severity of the Veteran's PTSD during the time period prior to that date, such that an informed decision could be made as to whether a 10 percent or higher rating was warranted since the effective date of service connection in 2012. The Court of Appeals for Veterans Claims has held that when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted. See Chotta v. Peake, 22 Vet. App. 80 (2008). The Board remanded the issue again in June 2021 to obtain an addendum opinion. In June 2021, the examiner opined that, given the medical literature reviewed, it was at least as likely as not that the Veteran did not seek treatment during the period of July 2012 to January 2021 due to a combination of possible denial (part of phase 2 of PTSD), as well as his willingly avoiding his symptoms for reasons noted in the literature. The examiner explained that the progression of the PTSD symptoms was at least as likely due to inadequate mental health treatment due to avoidance. See June 2021 VA examination report. In September 2021, the examiner noted that the Veteran was diagnosed with PTSD at two previous PTSD exams (April 2013 and January 2021). The examiner noted that the PTSD diagnosis was confirmed during the September 2021 PTSD DBQ and that there was no question that the Veteran meets DSM criteria for PTSD, and has done so consistently since his initial PTSD DBQ in April 2013. As to whether a rating greater than 10 percent can be awarded prior to January 19, 2021, the examiner opined that this question cannot be answered without resorting to speculation. The examiner explained that the Veteran admits to internalizing and minimalizing his symptoms when he has engaged with DBQ examiners and that he presented with different symptoms during each of the three PTSD DBQs (April 2013, January 2021, and September 2021). The examiner noted that the examiner who conducted the January 2021 examination reported the most symptoms, though the Veteran denied some of those symptoms during today's examination. The examiner explained that the different way the Veteran has presented with each of the three different examiners has led to differences in opinions regarding his occupational and social impairment, ranging from not severe enough either to interfere with occupational and social functioning in April 2014 to occupational and social impairment with deficiencies in most areas in January 2021 to occupational and social impairment with reduced reliability and productivity in September 2021. The examiner explained that the Veteran has never participated in mental health service (either outside or within the VA system) and thus there is little medical evidence of record to assist in this inquiry. The examiner explained that, based solely on the Veteran's self-report of symptoms, there has been a clear increase of symptoms between the April 2013 DBQ examination and the one conducted in January 2021. The VA examiner explained that a timeline for the increase in PTSD symptomatology cannot be determined, given the Veteran's presentation style and the lack of medical records documenting his symptoms and functioning between the three different PTSD DBQ exams. For these reasons, the examiner concluded that a retrospective opinion as to the severity of the Veteran's PTSD from July 2012 to January 2021 could not be provided. See September 2021 VA examination report. While the September 2021 examiner could not provide the requested opinion, the Board finds that the examiner provided sufficient and adequate reasoning as to why this was the case. Indeed, it clear that the procurable and assembled data was fully considered by the examiner, and given the lack of medical treatment reports during the time period under review, and the Veteran's inconsistent report as to the severity of his symptoms, a more definitive retrospective evaluation could not be provided. See Jones v. Shinseki, 23 Vet. App. 382 (2010). After consideration of the record as a whole, to include the Veteran's own testimony, the Board finds that during the period under review, the Veteran's PTSD symptoms most closely approximated those manifesting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, warranting the assignment of an increased initial rating to 30 percent, but no higher. As was noted above, the Veteran's symptoms such as chronic sleep impairment and mild memory loss, described at his Board hearing, are contemplated in the criteria for a rating of 30 percent. It is clear that, notwithstanding his PTSD symptoms, the Veteran was able to work during the time period under review, and he did not miss work often because of his disability. The Board also notes that the Veteran testified that, although he had been divorced once, he has a good relationship with his current wife of 10 years; additionally, although he has had some difficulty with coworker relationships, he maintained a good relationship with his supervisor at work. He did not seek out treatment for his disability. While the Board understands that there may be many reasons for this as discussed by the examiner above, the fact remains that there are no records of ongoing care the Board can look to, to help support a finding that the Veteran's disability warrants a higher rating over 30 percent prior to January 19, 2021. Accordingly, for the time period prior to January 19, 2021, the Board finds that the Veteran's PTSD manifested in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, thereby warranting a rating of 30 percent. To this extent only, the appeal is granted. REASONS FOR REMAND The Veteran asserts entitlement to service connection for irritable bowel syndrome, fibromyalgia, and chronic fatigue syndrome due to his Gulf War service. See March 2011 VA Form 21-526; see also July 2012 VA Form 21-526b. He contends that, since his return from Iraq, his health has declined; he feels tired constantly and lethargic through the day. He contends that he has chronic muscle and joint pain, especially in his elbows, shoulders, and back. He also contends that he has issues with his stomach and that, as he eats, he feels the need to evacuate his bowels within two to five minutes. See July 2012 VA Form 21-4138. 1. Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. 2. Entitlement to service connection for fibromyalgia is remanded. 3. Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. Through the course of the appeal period, the Veteran has been afforded numerous VA Gulf War, Intestinal Conditions, Fibromyalgia, and Chronic Fatigue Syndrome examinations. Unfortunately, the opinions and assessments of record, including those obtained after the Board's prior June 2021 remand, do not adequately address all of medical questions at issue. Though the Veteran has not been assessed as having diagnoses of IBS, fibromyalgia, or chronic fatigue syndrome, he has identified symptoms including joint pain, sleep issues, gastrointestinal symptoms, fatigue, and headaches that have either not been attributed to a particular diagnosis or underlying disability, or if attributed to a particular disability, the etiology of such has not been adequately addressed. Pursuant to the June 2021 Board remand, the Veteran was afforded additional VA Intestinal Conditions, Fibromyalgia, and CFS examinations in August 2021. As a result of the Intestinal Conditions examination, the VA examiner noted that the Veteran had never been diagnosed with an intestinal condition. She noted that the Veteran reported onset of diarrhea and stomach cramping symptoms during service while stationed in the Philippines and that his symptoms progressed after service. She noted that the Veteran had no treatment or evaluation by a GI specialist and that he denied recent hospitalization or ER visits for conditions. She noted that the Veteran reported daily diarrhea and stomach cramping a few minutes after eating meals, but that he denies nausea/vomiting, weight loss, and hematochezia. She remarked that there is no diagnosis of IBS in the service treatment records, the symptoms are subjective, and there is no ongoing treatment for the condition. As a result of the examination, the VA examiner opined that the Veteran's claimed condition of IBS was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. By way of rationale, the VA examiner explained that there is no chronic diagnosis made for IBS, the objective examination is normal, the symptoms are subjective only, and a nexus has not been established. See August 2021 VA examination report; see also August 2021 VA medical opinion. Regarding fibromyalgia, the August 2021 VA examiner noted that the Veteran does not have a current diagnosis of fibromyalgia, and that symptoms are subjective only. The VA examiner noted that the Veteran reported gradual onset of generalized muscle pain and tenderness after service, but no treatment or evaluation by a neurologist or pain specialist. The examiner noted there was no evidence of fibromyalgia or a test or EMG study, and that the Veteran denied recent hospitalizations or ER visits for the condition. The examiner noted that the Veteran reported since service a worsening of constant muscle and joint tenderness, aches and pains, daily fatigue syndrome, headaches, numbness and tingling in the bilateral hands, and also reported paresthesia symptoms in elbows, bilateral hands, and anterior aspect of bilateral lower extremities that last one minute, worse on the left leg. The examiner noted that the Veteran had no tender points. As a result of the examination, the VA examiner opined that the Veteran's claimed condition of fibromyalgia was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. By way of rationale, the VA examiner simply explained that there is no chronic diagnosis made for fibromyalgia, the objective examination is normal, the symptoms are subjective only, and a nexus has not been established. The VA examiner also explained that the four standard Gulf War disability patterns are not applicable for this case, and there is no evidence of persistent/recurrent symptoms or concern of a diagnosis for the claimed condition of fibromyalgia. See August 2021 VA examination report; see also August 2021 VA medical opinions. No further rationale was offered, and no further discussion about the symptoms reported in the prior May 2013 VA examination was provided. Regarding CFS, the VA examiner noted that the Veteran does not currently have CFS. The VA examiner noted that the Veteran reported onset of CFS after his last deployment in Desert Storm and that his main symptom is fatigue and worsens with activity but doesn't improve with rest. She noted that the Veteran denied evaluation or a diagnosis of CFS but reports daily fatigue, inability to exercise, forgetfulness, and lack of concentration at times. She also noted that the Veteran reported sleeping six hours per night, constant muscle and joint tenderness, aches and pains, and headaches. She remarked that no diagnosis was warranted, there was no diagnosis of CFS in the current service treatment records, and no treatment or diagnosis per the Veteran on today's visit. She also noted that other clinical conditions that may produce similar symptoms had been excluded by history, physical examination and/or laboratory tests to the extent possible. As a result of the examination, the VA examiner opined that the Veteran's claimed condition of CFS was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. By way of rationale, the VA examiner explained that no chronic diagnosis is made for CFS, the objective examination is normal, symptoms are subjective only, and a nexus has not been established. She additionally explained that the four standard Gulf War disability patterns are not applicable for this case and that there is no evidence of persistent/recurrent symptoms or concern of a diagnosis for the claimed condition of CFS. See August 2021 VA examination report; see also August 2021 VA medical opinions. No further rationale was offered, and no further discussion about the symptoms reported in previous February 2021 VA examination was provided. The August 2021 VA Intestinal Conditions examination indicates that the Veteran has never been diagnosed with an intestinal condition. However, the record, including earlier VA examinations, note that the Veteran had a 2012 diagnosis of celiac disease. As such, it appears the August 2021 VA opinion was based upon an inaccurate factual basis. Further, while the August 2021 VA examiner noted the Veteran did not have a diagnosis for IBS, the opinion did not adequately reflect consideration of the Veteran's history of symptoms, diagnosis of celiac disease, or that the symptoms may be attributable to celiac disease, as directed in the Board's June 2021 remand. Similarly, with respect to the fibromyalgia claim, the rationale offered for the August 2021 VA opinion did not adequately reflect consideration of the May 2013 examination report which identified symptoms of fibromyalgia as directed in the June 2021 remand. In addition, even if there is no fibromyalgia diagnosis, the opinion does not adequately address whether the symptoms described, albeit subjective, were manifestations of undiagnosed or medically unexplained chronic multisymptom illnesses (MUCMI). With respect to the CFS claim, the rationale offered for the August 2021 VA opinion did not adequately reflect consideration of the February 2021 VA examination report identifying symptoms attributable to CFS, also as directed in the June 2021 remand, and similarly did not provide a discussion as to whether such symptoms may or may not be manifestations of an undiagnosed illness or MUCMI. The Board finds that further medical clarification is needed before an informed decision can be made as to whether the Veteran's disabilities are undiagnosed illnesses or MUCMIs warranting an award of service connection on a presumptive basis. Moreover, notwithstanding the applicability of the presumption, an additional medical opinion addressing whether a direct relationship may exist between the Veteran's disabilities and service, to include his exposures to environmental hazards, is necessary, as the opinions currently of record do not include adequate explanation or rationale. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. 2. The Veteran should be afforded a new examination by a qualified medical professional, other than the August 2021 VA examiner, to determine whether any current intestinal disorder, to include celiac disease; any disorder manifested by joint and muscle pains; and/or any chronic fatigue disorder had its onset during, or is otherwise related to, his military service, to include his service in Southwest Asia. The record must be made available to, and reviewed by, the examiner. Any indicated evaluations, studies, and tests should be conducted, and the examiner should take a history from the Veteran as to the onset and progression of his claimed disabilities. Following a review of the entire record, to include the Veteran's lay statements concerning onset and continuity of symptomatology, the examiner(s) should address the following questions: a) If the Veteran's intestinal symptoms, joint and muscle pain symptoms, and chronic fatigue symptoms cannot be attributed to a known diagnosis, the examiner must provide an opinion as to whether any such symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness related to his service in Southwest Asia. The examiner must consider and discuss: i. The May 2013 examination report, which identified symptoms of fibromyalgia including widespread musculoskeletal pain, paresthesias, and headaches, while noting that the frequency of the fibromyalgia symptoms was episodic with multiple arthralgias of variable onset, intensity, and duration. ii. The February 2021 VA examination report, which identified symptoms attributable to CFS while noting that the Veteran experiences migraine-like headaches that last one hour and are accompanied by nausea; shoulder, knee, and elbow joint pain; generalized muscle aches; and sleep disturbances. iii. The April 1995 medical treatment record noting that the Veteran had served in Saudi Arabia and Kuwait from January to August of 1991 and that he first began having loose stools in the middle of 1993; the April 1995 medical treatment record noting that IBS was still questionable as a diagnosis in light of the long history of diarrhea prior to this date; and (3) the February 2021 examiner's report that the Veteran's symptoms may be attributed to celiac disease, only. b) For any intestinal disorder, joint and muscle pain disorder, and/or chronic fatigue disorder attributable to a known diagnosis, is it at least as likely as not (i.e., approximately 50 percent or greater probability) that such had its onset in, or is otherwise related to his period of active-duty service, to include directly due to any environmental exposures while serving in Southwest Asia? In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding in-service incurrence and progression of symptoms. If there is medical reason that supports or calls into question the Veteran's reported symptom history, this should be explained. A complete rationale must be provided for all opinions and must be based on consideration of all pertinent lay and medical evidence. (Continued on Next Page) 3. Thereafter, readjudicate the issues on appeal. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer, 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.