Citation Nr: 18160638
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 13-30 668
DATE:	December 27, 2018
ORDER

The application to reopen a claim of service connection for bilateral hearing loss is granted.
The application to reopen a claim of service connection for chronic sinusitis, to include as due to Gulf War illness, is granted.
The application to reopen a claim of service connection for a gastrointestinal condition (claimed as duodenal ulcer), to include as due to Gulf War illness, is granted.
Entitlement to service connection for H. pylori is granted.
Entitlement to service connection for migraine headaches is granted.
Entitlement to service connection for left ear hearing loss is granted.
Entitlement to service connection for right ear hearing loss is denied.
Entitlement to service connection for hypotension, to include as due to Gulf War illness, is denied.
Entitlement to an initial rating in excess of 30 percent prior to May 21, 2014 for an acquired psychiatric disability initially diagnosed as adjustment disorder with depression and anxiety is denied.
Entitlement to an initial rating of 70 percent, but no higher, from May 21, 2014 to March 24, 2016 for posttraumatic stress disorder (PTSD) with alcohol dependence is granted.
Entitlement to an initial rating in excess of 70 percent from March 24, 2016 is denied.
REMANDED
Entitlement to service connection for a gastrointestinal condition (other than irritable bowel syndrome (IBS) and H. pylori), to include duodenal ulcer, to include as due to Gulf War illness, is remanded.
Entitlement to service connection for a sinus condition, to include as due to Gulf War illness, is remanded.
Entitlement to service connection for a respiratory condition, to include as due to Gulf War illness, is remanded.
Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.
FINDINGS OF FACT
1. In June 2006, the RO denied service connection for bilateral hearing loss, chronic sinusitis, and duodenal ulcer; the Veteran did not appeal that determination and no new and material evidence was received within one year from its issuance.
2. Evidence received since the June 2006 rating action is not cumulative or redundant and raises a reasonable possibility of substantiating the claims for service connection for hearing loss, sinusitis, and duodenal ulcer.
3. The evidence of record is at least in relative equipoise with respect to whether the currently diagnosed H. pylori is related to active service.
4. The Veteran’s current migraine headaches are as likely as not related to active service.
5. The Veteran’s current left ear hearing loss is as likely as not related to acoustic trauma sustained during active service.
6. The Veteran does not have a right ear hearing loss disability as defined by VA regulation.
7. The Veteran has no current disability manifested by chronic low blood pressure (hypotension).
8. Prior to May 21, 2014, the Veteran’s service-connected adjustment disorder with depression and anxiety was manifested by occupational and social impairment with no more than 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).
9. Since May 21, 2014, the Veteran’s service-connected psychiatric disability has more closely approximated manifestations of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; but not total occupational and social impairment. 
CONCLUSIONS OF LAW
1. The June 2006 rating decision that denied a claim for bilateral hearing loss is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 30.302, 20.1103 (2018).
2. The June 2006 rating decision that denied a claim for a sinus condition is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 30.302, 20.1103 (2018).
3. The June 2006 rating decision that denied a claim for a gastrointestinal condition is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 30.302, 20.1103 (2018).
4. Evidence received since the June 2006 rating decision denying service connection for bilateral hearing loss is new and material and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017).
5. Evidence received since the June 2006 rating decision denying service connection for a gastrointestinal condition is new and material and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017).
6. Evidence received since the June 2006 rating decision denying service connection for a sinus condition is new and material and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017).
7. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for H. pylori have been met. 38 U.S.C. §§ 1110, 5107(b) (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014).
8. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 5107(b) (2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018).
9. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2018).
10. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. §§ 3.303, 3.385 (2018).
11. The criteria for service connection for hypotension have not been met. 38 U.S.C. §§ 1110, 5107(b) (2014); 38 C.F.R. §§ 3.303, 3.317 (2018).
12. Prior to May 21, 2014, the criteria for an initial rating in excess of 30 percent for adjustment disorder with depression and anxiety have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9411 (2018).
13. From May 21, 2014 to March 23, 2016, the criteria for a 70 percent rating, but no higher, for adjustment disorder with depression and anxiety have been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9411 (2018).
14. Since March 24, 2016, the criteria for an initial rating in excess of 70 percent for PTSD with alcohol dependence have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.21, 4.126, 4.130, DC 9411 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran has National Guard service, with active duty from July 2004 to January 2006, and from May 2009 to May 2010. He was stationed in the Persian Gulf from January 2005 to December 2005, and from June 2009 to March 2010. Thus, he is considered a Persian Gulf Veteran. See 38 C.F.R. § 3.317 (a)(1).
In a March 2014 VA Form 9, the Veteran requested a hearing. He was scheduled for a Travel Board hearing in April 2017, but did not appear. Therefore, his hearing request has been withdrawn. See 38 C.F.R. § 20.704 (d) (2018).
New and Material Evidence
A finally denied claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156 (a), new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). 
1. Whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss
2. Whether new and material evidence has been received to reopen a claim of service connection for a gastrointestinal condition
3. Whether new and material evidence has been received to reopen a claim of service connection for a sinus condition
In June 2006, the RO denied service connection for bilateral hearing loss, a duodenal ulcer, and chronic sinusitis. The Veteran did not appeal this decision and no new and material evidence was received within one year of this decision. As such, it became final. See Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011).
The Board acknowledges that, in the April 2011 rating decision, the RO addressed the merits of the service connection claims. However, the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).
Since the June 2006 rating decision, new evidence has been received. The record now contains STRs from the Veteran’s second period of active service, which show bilateral hearing loss for VA purposes in March 2009 - one year prior to filing the application to reopen – and left ear hearing loss for VA purposes since that time. In addition, November 2012 VA examination reports contain diagnoses of sarcoidosis and H. pylori. Finally, a separate November 2012 VA examination notes that the Veteran was diagnosed with chronic sinusitis in 2005. The evidence relates to a previously unestablished element of the claims (current disability) and raises a reasonable possibility of substantiating the claims. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence is considered both new and material. Thus, these claims are reopened. As discussed below, the H pylori claim is granted. The bilateral hearing loss claim has been bifurcated; service connection for left ear hearing loss is granted and service connection for right ear hearing loss is denied. The remaining underlying claims warrant further development and are addressed in the remand section below.
Service Connection
Generally, service connection will be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303 (a). Service connection requires evidence demonstrating: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
4. Hearing Loss
As an initial matter, the Veteran is service-connected for tinnitus. Thus, noise exposure has been conceded.
For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
Certain chronic diseases, such as sensorineural hearing loss, may be presumed to be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 C.F.R. §§ 3.307, 3.309.
Sensorineural hearing loss is considered to be “organic diseases of the nervous system,” and are therefore chronic diseases for VA purposes. 38 C.F.R. § 3.309 (a); see also Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). As such, service connection may be awarded based on continuity of symptomatology.
The Veteran filed his claim for bilateral hearing loss in March 2010. 
STRs include a July 2004 audiogram, which shows normal hearing in both ears. A December 2005 audiogram conducted shortly after the Veteran returned from his first deployment shows left ear hearing loss for VA purposes and normal hearing in the right ear.
An August 2006 National Guard retention examination contains an abnormal evaluation of the ears. The Veteran reported problems hearing out of his left ear. The audiogram shows hearing loss for VA purposes in both ears.
An April 2008 National Guard audiogram shows left ear hearing loss for VA purposes, while a March 2009 National Guard audiogram shows hearing loss for VA purposes in both ears. 
A March 2010 audiogram shows left ear hearing loss for VA purposes and normal right ear hearing.
The Veteran submitted to an April 2010 VA audiological examination. He reported that hearing in his left ear had decreased. He denied any noise exposure prior to military service. During service he was exposed to field artillery and tanks. Occupational noise exposure included working at a metal products company for 4 years and law enforcement for 13 years. Recreational noise exposure included hunting. The audiogram reveals normal hearing in both ears. Speech recognition scores were 94 percent in both ears. 
The Veteran submitted to a November 2012 VA audiological examination. The audiogram reveals normal hearing in both ears. CNC word recognition was 94 percent in the right ear and 92 percent in the left ear. The RO obtained an addendum opinion from the same examiner in December 2012. She noted that the Veteran had normal hearing when he was discharged from active service in 2010. She stated that “92% is considered to be within normal limits according to audiology standards and should not be considered a hearing loss.” 
Left Ear
During the course of the appeal, the Veteran has generally asserted that his left hearing loss has been persistent since service. These statements are competent and there is no evidence that they are not credible. As such, they are entitled to significant probative weight as to the continuity of the Veteran’s left ear hearing loss since service.
Unfortunately, the November 2012 VA opinion is not adequate. The Board notes that the examiner failed to consider the Veteran’s lay statements regarding the onset and continuity of his hearing loss disability. The examiner heavily based the negative opinion on the fact that the Veteran had normal hearing at separation. That alone is not a sufficient basis for a negative conclusion. Further, the examiner’s finding with respect to the word recognition score of 92 percent contradicts Section 3.385.
The competent and credible evidence concerning a nexus consists of the Veteran’s statements, which establish that he has continuously experienced left ear hearing loss since its onset during his first period of active service, and audiograms from the Veteran’s National Guard and second period of active service, which show consistent left ear hearing loss for VA purposes. Thus, the Board finds that the evidence reasonably establishes that the current left ear hearing loss disability had its onset in service and that it has been continuous since. Therefore, service connection for left ear hearing loss disability is granted. See 38 C.F.R. § 3.303 (b).
Right Ear
Right ear hearing loss must be denied based on lack of current disability. Audiograms from the Veteran’s first period of active service, dated in July 2004 and December 2005, reflect normal hearing in the Veteran’s right ear. August 2006 and March 2009 National Guard audiograms show that he had a disability for VA purposes. However, audiograms from the Veteran’s second period of active service, dated in March 2010 and April 2010, reflect normal hearing in the right ear. A post-service audiogram conducted in November 2012 also reflects normal hearing in the right ear. Thus, the weight of the evidence is against the claim.
5. Entitlement to service connection for H. pylori
The Veteran contends that he experienced gastrointestinal symptoms during both periods of active service and has continued to experience chronic symptoms.
The Board finds that the Veteran has two current gastrointestinal disabilities: irritable bowel syndrome (IBS) and H. pylori. The Veteran is currently service-connected for IBS. 
The Veteran submitted to a blood test as part of a November 2012 VA examination and was subsequently diagnosed with H. pylori. The examiner noted that the Veteran had received ongoing care during service for gastrointestinal complaints, but had never been tested for H. pylori. She noted that the positive serum antibody test “now points to ongoing H. pylori infection as the cause on his ongoing, unresolved gastrointestinal problems.” The examiner opined that it is “as least as likely as not” that the Veteran’s stomach condition was incurred in or related to active service.
In a December 2012 letter to the Veteran, the November 2012 VA examiner wrote: “Since you have no specific prior testing or diagnosis of H. pylori, there is strong reason to believe [] this bacteria is the cause of your ongoing symptoms and gastrointestinal issues.” 
It appears that the Veteran was subsequently treated for H. pylori with antibiotics. A February 2013 VA treatment record shows that H. pylori was not identified in a biopsy that was taken during an upper gastrointestinal endoscopy.
The Board next finds that the Veteran experienced gastrointestinal symptoms in service. A November 2005 service treatment record indicates the Veteran presented with complaints of stomach pain, which the clinician indicated was “possibly a duodenal ulcer.” An August 2006 National Guard treatment record notes a history of stomach aches since September 2005. A January 2010 STR shows the Veteran reported stomach pain that had started during his previous deployment and had continued “off and on” since that time. The clinician did not provide a diagnosis and recommended that the Veteran be evaluated state-side. In February 2010, the Veteran again reported stomach pain. Post-service VA treatment records show that the Veteran was diagnosed with abdominal pain in September 2012.
The Board further finds that the weight of the evidence is at least in relative equipoise on the question of whether some of the Veteran’s current gastrointestinal complaints are related to service. The November 2012 VA examiner noted the Veteran’s history of abdominal pain. She opined that the Veteran’s current H. pylori is at least as likely as not related to his active service. The VA examiner indicated that H. pylori was only identified when the Veteran was specifically tested in 2012. The examiner appears to imply that the Veteran’s continued chronic abdominal pain, which was documented in service and has continued since service, is consistent with the Veteran having H. pylori for an extended period of time.
The Veteran has presented with consistent and continual upper gastrointestinal symptoms during active service and following service separation. The Board finds the Veteran competent to report that, in service and continuing since service, he experienced these recurrent symptoms, as the reporting of these symptoms requires only personal knowledge that comes to him through his senses. Layno, 6 Vet. App. at 470. The November 2012 VA examiner provided a diagnosis of H. pylori and provided a positive nexus opinion. The in-service complaints, together with the Veteran’s VA treatment records, the November 2012 VA examination report, and the Veteran’s lay contentions, tend to show that the H. pylori was “incurred coincident with” active service. See 38 C.F.R. § 3.303 (a). For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for H. pylori have been met. 
 
6. Entitlement to service connection for headaches
Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third elements of service connection is through a demonstration of continuity of symptomatology. However, the continuity and chronicity provisions of 38 C.F.R. § 3.303 (b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Migraine headaches should be recognized as an organic disease of the nervous system. Organic diseases of the nervous system are chronic diseases. 38 C.F.R. § 3.309 (a). The Veteran has a current diagnosis of migraine headaches. Thus, as migraines qualify under 38 C.F.R. § 3.309 (a) as a chronic disease, the continuity and chronicity provisions of 38 C.F.R. § 3.303 (b) must be considered. See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015).
The Veteran has competently and credibly reported that he has experienced headaches since returning from his second deployment to Iraq in 2010.
A February 2010 Post-Deployment Health Assessment shows that the Veteran reported headaches.
The Veteran submitted to a VA headaches examination in November 2012. The examiner noted that STRs reflect diagnosis and treatment for headaches during active service. She determined that the Veteran had clinical findings consistent with migraine headaches. The examiner opined that “it is as least as likely as not that headaches are service-related.” She did not provide a rationale for her opinion.
In any event, under 38 C.F.R. § 3.303 (b), medical nexus evidence demonstrating an etiological link is not necessary to prove service connection when evidence shows that a veteran had a chronic disease in service and that he still has the same chronic disease. Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008). Here, headaches were noted in service, the Veteran has testified to experiencing headaches since service and he has been diagnosed with migraine headaches post-service.
 
7. Entitlement to service connection for hypotension
An April 1994 National Guard medical examination report contains a blood pressure reading of 102/70.
Service treatment records (STRs) contain numerous normal blood pressure readings.
During a period of ACDUTRA in November 2002, the Veteran’s blood pressure was 146/81.
A February 2006 VA examination contains a blood pressure reading of 122/78.
A November 2012 VA examiner reviewed the claims file and examined the Veteran. His blood pressure was 150/91, 152/93, and 155/102. The examiner noted several instances of elevated blood pressure in the Veteran’s post-service VA treatment records. However, he found no evidence of hypotension.
An October 2013 VA examiner reviewed the claims file and examined the Veteran. Repeated blood pressure readings were normal. He noted a history of intermittent elevated blood pressure readings, but stated that repeat checks were always normal. 
The Veteran’s blood pressure was 136/80 and 124/86 in February 2014 and May 2015, respectively. 
The record does not contain any evidence that the Veteran currently has, or has had at any point since discharge from active service, a disability characterized by low blood pressure (hypotension).
To the extent the Veteran alleges this condition, it appears to be based on self-diagnosis and not on any statement from qualified medical professionals. The Veteran is a layperson, lacking any specialized medical knowledge or training, and is not competent to render a diagnosis. See Kahana v. Shinseki, 24 Vet. App. 428 (2011).
Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. “In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There is no objective indication of hypotension. Therefore, given the lack of a current disability, service connection cannot be awarded.
Increased Rating
The Veteran’s psychiatric disability is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. Ratings are assigned according to the level of occupational and social impairment caused by the disability. The use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013).
Under DC 9411, a 30 percent rating is warranted for 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).
A 50 percent rating is warranted for 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. 
A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals that 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.
A 100 percent rating is warranted 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; memory loss for names of close relatives, own occupation, or own name.
It is noted that by recent rating a 70 percent rating was assigned for the Veteran’s psychiatric impairment effective March 24, 2016.
The Board has evaluated the Veteran’s service-connected psychiatric disabilities together throughout the entire rating period. See Mittleider v. West, 11 Vet. App. 181 (1998).
8. Entitlement to an initial rating in excess of 30 percent prior to May 21, 2014 for the Veteran’s psychiatric disability.
The Board finds that prior to May 21, 2014, a rating in excess of 30 percent is not warranted because the evidence shows that the severity, duration, and frequency of the Veteran’s symptoms produced occupational and social impairment with reduced reliability and productivity due to such symptoms as: chronic sleep impairment, occasional nightmares, irritability, hypervigilance, depression and anxiety, avoidance, intrusive thoughts, and difficulty establishing and maintaining effective work and social relationships. Both the April 2010 and October 2011 VA examiners found the Veteran’s symptoms to be mild.
The Veteran received periodic VA psychiatric treatment during this time period. He consistently reported trouble sleeping, hypervigilance, isolation, irritability, and lack of motivation. He consistently denied suicidal/homicidal ideation. Mood and affect were generally congruent, speech was fluent, and judgment was intact. Although the Veteran reported short-term memory loss to a clinician in October 2011, the April 2010 and October 2011 VA examiners found the Veteran’s memory to be normal. As to social relationships, although the Veteran reportedly did not like to socialize, the examiners noted his long-term relationship and regular contact with his children and at least one friend.
The Board finds that the frequency, duration, and severity of these symptoms as reported by the Veteran and evaluated by the April 2010 and October 2011 VA examiners are consistent with the level of social and occupational impairment contemplated by a 30 percent rating.
A higher rating of 50 percent is not warranted for this stage because the evidence does not show occupational and social impairment with reduced reliability and productivity. The rating schedule provides examples of the symptom frequency, severity, and duration commensurate with a higher rating. Rather than demonstrating symptoms of this caliber, the record shows normal judgment and unremarkable, clear, coherent speech. Affect was not flattened. There were no panic attacks and no impaired abstract thinking. Rather, the Veteran’s thought processes were logical and thought content was unremarkable. There was no obsessive behavior, hallucination, delusion, or suicidal/homicidal ideation. 
 
9. Entitlement to an initial rating in excess of 30 percent from May 21, 2014 to March 24, 2016, and in excess of 70 percent thereafter, for the Veteran’s psychiatric disability
Following a review of the evidence of record, the Board finds that an initial rating of 70 percent is warranted from May 21, 2014 to March 24, 2016. The disability picture, to include the severity, frequency, and duration of his symptoms, as well as the resulting impairment of social and occupational functioning, is consistent with a 70 percent rating. During this time period, the Veteran endorsed symptoms of chronic sleep impairment, occasional nightmares, irritability, violence, memory loss, hypervigilance, depression and anxiety, avoidance, intrusive thoughts, and difficulty in establishing and maintaining effective work and social relationships. 
The May 2014 VA examiner noted the Veteran’s report of homicidal ideation without intent and the use of excessive force as a police officer, to include property destruction and combativeness. The Veteran had broken up with his girlfriend and lived with his sister. He was not close with his children.
The April 2016 VA examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, nightmares, flashbacks, mild memory loss, impairment of short- and long-term memory, impaired judgment, impaired abstract thinking, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation “off and on”, and impaired impulse control. His thought processes were logical and goal oriented. He did not display any signs of paranoia or delusions or hallucinations. He did not endorse symptoms consistent with mania, hypomania, OCD, self-injurious behaviors, eating disorders, or psychosis. There was no evidence of disorganized speech, or bizarre behaviors. He was found to be capable of managing his financial affairs.
The Board acknowledges that the Veteran is unemployed from being a highway patrol officer and currently cuts grass for a living. See April 2016 VA Examination. Nevertheless, the Board finds that a 100 percent rating is not warranted at any time during the appeal period because the evidence of record does not show the Veteran demonstrates total occupational and social impairment due to his service-connected psychiatric disability. 
During the appeal period, the Veteran does not demonstrate symptoms to include gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; intermittent inability to perform activities of living (including maintenance of minimal hygiene); or, disorientation to time or place; and/or any other symptoms of similar equivalence required for a total rating. Moreover, although the record reflects irritability, anger issues, and one occasion of homicidal ideation, the medical evidence does not indicate that the Veteran is a persistent danger to himself or others. Although the Veteran notes mild memory loss, the record clearly indicates that he is not disoriented to time or place and that he does not experience memory loss for names of closest relatives, occupation, or own name. Finally, there is no indication that the Veteran’s PTSD is characterized by gross impairment in thought processes or communication, grossly inappropriate behavior, or intermittent inability to perform the activities of daily living. Thus, the evidence does not demonstrate that his symptoms are of the severity, frequency, and duration as contemplated in a 100 percent rating. 
REASONS FOR REMAND
The Veteran contends that service connection is warranted for a sinus condition, a respiratory condition, and a gastrointestinal condition (other than service-connected H. pylori and IBS), to include duodenal ulcer. Specifically, the Veteran contends that he developed these conditions as a result of exposures incurred during his service in the Persian Gulf. 
The Board notes that duodenal ulcer is a presumptive service-connected condition. See 38 C.F.R. 3.309 (a).
Service connection may also be established for a Persian Gulf Veteran who exhibits objective indications of chronic disability that cannot be attributed to any known clinical diagnosis, but instead results from an undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1)(i). 
For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A. § 1117 (d) warrants a presumption of service-connection.
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 multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii).
Signs or symptoms that may be a manifestation of an undiagnosed illness or a chronic multi-symptom illness include: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs and 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, and menstrual disorders. 38 U.S.C. § 1117 (g); 38 C.F.R. § 3.317 (b).
As noted above, the Veteran has confirmed service in the Persian Gulf.
1. Entitlement to service connection for a sinus condition, to include as due to Gulf War illness, is remanded.
The Veteran submitted to a VA general medical examination in February 2006. He gave a history of sinus symptoms since being in Iraq in 2005, although he noted that this condition had improved. The examiner diagnosed allergic rhinosinusitis (inactive). The Veteran submitted to a VA sinus examination in November 2012. He gave the same history of sinus problems and stated that the symptoms had continued since 2005. X-rays showed no evidence of sinusitis. The examiner opined that there is no evidence of acute or chronic sinusitis. Remand is necessary to obtain an adequate VA Gulf War examination and opinion.
2. Entitlement to service connection for a respiratory condition, to include as due to Gulf War illness, is remanded.
The Veteran submitted to a VA respiratory examination in November 2012. The examiner noted that X-rays showed a “possibility of some old sarcoidosis” and recommended a follow-up study in six months. He made a finding of “mild possible hilar lymphadenopathy not diagnostic of sarcoidosis at this point.” He opined that the Veteran had “no specific respiratory diagnosis at this time.” A February 2016 VA treatment record contains a finding of “stage 1 sarcoidosis radiographic evidence of adenopathy dating back to 2012.” Remand is necessary to obtain an adequate VA Gulf War examination and opinion.
3. Entitlement to service connection for a gastrointestinal condition (other than irritable bowel syndrome (IBS) and H. pylori)), to include duodenal ulcer, to include as due to Gulf War illness, is remanded.
The February 2006 VA general medical examiner noted that the upper gastrointestinal series revealed normal gastroesophageal junction with no abnormalities of the duodenal bulb, C loop, or small bowel. Gastric mucosa was thought to be slightly thickened. The examiner diagnosed duodenal ulcer, inactive. The Veteran submitted to a November 2012 VA stomach and duodenal conditions examination. The examiner reviewed the STRs and noted that the Veteran had been diagnosed with a “possible” duodenal ulcer in November 2005 while deployed to Iraq, and “possible stomach ulcer” in December 2005. She noted that the pain had “never fully resolved over years.” As discussed above, the examiner attributed the Veteran’s gastrointestinal complaints to the H. pylori diagnosis. Remand is necessary to obtain an adequate VA Gulf War examination and opinion. 
 
4. Entitlement to TDIU
In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a claim for TDIU is part and parcel of an increased rating claim when such claim is raised by the record. The April 2016 VA PTSD examination indicates that the Veteran had been fired from his job due to altercations and that he currently cuts grass with a friend. In light of the Court’s holding in Rice, the Board has considered the TDIU claim as part of his pending increased rating claim. 
The AOJ has not developed or adjudicated the matter of whether the Veteran’s service-connected psychiatric disability or combined disabilities, renders him unemployable. Therefore, the TDIU claim must be remanded to the RO for development and adjudication. See Rice, 22 Vet. App. 447.
The matters are REMANDED for the following action:
1. A notice letter pertaining to the TDIU claim should be issued. The Veteran should also be sent a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, for him to complete, with instructions to return the form to the AOJ.
2. Obtain an examination to determine the etiology of any currently diagnosed respiratory disability. The entire claims file should be made available to and be reviewed by the examiner. The requested medical opinion must address each of the following:
a. For any respiratory disability identified, to include sarcoidosis, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the disability began during or is otherwise related to the Veteran’s active service?
b. If the Veteran has any respiratory symptomatology that is not attributable to a known clinical diagnosis, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that these symptoms are due to an undiagnosed illness or medically unexplained chronic multi-symptom illness resulting from service in Southwest Asia during the Persian Gulf War? If so, the examiner should also comment on the severity of the symptomatology and report all signs and symptoms necessary for evaluating the illness under the rating criteria. 
The examiner should address the November 2012 VA respiratory examination and the February 2016 VA treatment record discussed above.
A complete rationale for all opinions must be provided.
3. Obtain an examination to determine the etiology of any currently diagnosed gastrointestinal disability (other than IBS and H. pylori), to include duodenal ulcer. The entire claims file should be made available to and be reviewed by the examiner. The requested medical opinion must address each of the following:
a. For any such gastrointestinal disability identified (other than those noted), the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the disability began during or is otherwise related to the Veteran’s active service? 
b. If duodenal ulcer is diagnosed, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the duodenal ulcer manifested in service or within one year after service, or is otherwise etiologically related to service.
c. If the Veteran has any gastrointestinal symptomatology that is not attributable to a known clinical diagnosis, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that these symptoms are due to an undiagnosed illness or medically unexplained chronic multi-symptom illness resulting from service in Southwest Asia during the Persian Gulf War? If so, the examiner should also comment on the severity of the symptomatology and report all signs and symptoms necessary for evaluating the illness under the rating criteria. 
The examiner should address the November 2005 and December 2005 STRs, the February 2006 VA general medical examination, and the November 2012 VA stomach and duodenal conditions examination discussed above.  If no gastrointestinal disorder other than those diagnosed is found, that should also be set out in detail.
A complete rationale for all opinions must be provided.
4. Obtain an examination to determine the etiology of any currently sinus disorder. The entire claims file should be made available to and be reviewed by the examiner. The requested medical opinion must address each of the following:
a. For any sinus disorder identified, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the disability began during or is otherwise related to the Veteran’s active service?
b. If the Veteran has any sinus symptomatology that is not attributable to a known clinical diagnosis, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that these symptoms are due to an undiagnosed illness or medically unexplained chronic multi-symptom illness resulting from service in Southwest Asia during the Persian Gulf War? If so, the examiner should also comment on the severity of the symptomatology and report all signs and symptoms necessary for evaluating the illness under the rating criteria.  If no chronic sinus disorder is found, that should be set out in detail.
A complete rationale for all opinions must be provided.

 
MICHAEL D. LYON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R.N. Poulson, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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