Citation Nr: 23021589
Decision Date: 04/07/23	Archive Date: 04/07/23

DOCKET NO. 16-52 279
DATE: April 7, 2023

ORDER

The appeal of the denial for service connection for the deviated septum is dismissed.

As new and material evidence has been received, the service connection claim for a lumbar spine disability is reopened.

As new and material evidence has been received, the service connection claim for obstructive sleep apnea (OSA) is reopened. 

As new and material evidence has been received, the service connection claim for sinusitis is reopened. 

Service connection for a lumbar spine disability is granted.

Service connection for sciatica as a neurological manifestation of the low back disability is granted.

Service connection for gastroesophageal reflux disease (GERD) is granted.

Service connection for obstructive sleep apnea is granted.

Service connection for sinusitis is granted. 

Service connection for eczema is granted. 

Service connection for pseudofolliculitis barbae (PFB) scars, secondary to now service-connected eczema, is granted. 

Effective August 30, 2014, a 10 percent rating, but no higher, for allergic rhinitis is granted.

From August 30, 2014 to July 23, 2015, a 70 percent rating for the service-connected psychiatric disability is granted; an initial rating higher than the now uniform 70 percent initial rating is denied.

Effective August 30, 2014, a 100 percent rating for the narcolepsy with cataplexy is granted.

Effective August 30, 2014, a total disability rating due to individual unemployability (TDIU) due solely to the service-connected psychiatric disability is granted. 

Effective August 30, 2014, special monthly compensation (SMC) under 38 U.S.C. § 1114(s)(1) is granted. 

FINDINGS OF FACT

1. During the July 2022 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran explicitly and unambiguously withdrew his appeal for the service connection claim for a deviated septum with a full understanding of the consequences of his withdrawal. 

2. An unappealed April 1995 rating decision denied service connection for a low back disability.  The Veteran did not submit a timely notice of disagreement to the rating decision and additional relevant evidence was not received within one year of the notice of the rating decision.

3. Subsequently, a December 2004 rating decision, of which the Veteran was notified in January 2005, denied the request to reopen the service connection claim for the low back disability.  The Veteran submitted a timely notice of disagreement, but he did not submit a timely VA Form 9 to perfect his appeal to the Board.

4. New evidence received since the December 2004 final rating decision raises a reasonable possibility of substantiating the service connection claim for a low back disability.

5. A December 2004 rating decision, of which the Veteran was notified in January 2005, denied a service connection claim for obstructive sleep apnea.  The Veteran submitted a timely notice of disagreement, but he did not submit a timely VA Form 9 to perfect his appeal to the Board.

6. New evidence received since the December 2004 final rating decision raises a reasonable possibility of substantiating the service connection claim for obstructive sleep apnea.

7. A December 2004 rating decision, of which the Veteran was notified in January 2005, denied a service connection claim for sinusitis.  The Veteran submitted a timely notice of disagreement, but he did not submit a timely VA Form 9 to perfect his appeal to the Board.

8. New evidence received since the December 2004 final rating decision raises a reasonable possibility of substantiating the service connection claim for sinusitis.

9. The currently diagnosed low back disability is related to an in-service injury.  

10. The sciatica disability is a neurological manifestation of the low back disability.  

11. The GERD disability was incurred during the Veteran's last period of AGR (ACDUTRA) service. 

12. The Veteran had a preexisting diagnosis of sleep apnea that was aggravated during service.

13. The sinusitis was caused by or was aggravated by the service-connected allergic rhinitis. 

14. The eczema disability was caused by the service-connected allergic rhinitis.  

15. The right and left lateral chest and facial scars are due to the now service-connected eczema and PFB disabilities.  

16. Throughout the claim period, the Veteran's allergic rhinitis has more nearly manifested as greater than 50 percent obstruction of the nasal passage on both sides.

17. From August 30, 2014 to July 23, 2015, the service-connected psychiatric disability more nearly manifested in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood but the disability did not at any time from August 30, 2014 more nearly approximate total social impairment.

18. During the entire appellate period, the Veteran's narcolepsy with cataplexy as manifested as a severe disability with symptoms of narcoleptic attacks from nine to 10 or more per week, excessive daytime sleepiness, sleep paralysis, cataplectic episodes of up to 15 times per week, hypnogogic hallucinations, and frequent daily sleep attacks. 

19. During the entire appellate period, the service-connected psychiatric disability alone prevented the Veteran from obtaining and maintaining substantially gainful employment.

20. The Veteran's service-connected psychiatric disability alone resulted in TDIU, and the other service-connected disabilities are independently rated as at least 60 percent disabling.

CONCLUSIONS OF LAW

1. The criteria for the withdrawal of the appeal of the service connection claim for a deviated septum have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

2. A December 2004 rating decision denied reopening for the service connection claim for a low back disorder and is final.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103 (2004).

3. New and material evidence has been received since the last denial of service connection for a low back disorder, and the claim is reopened.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a).

4. A December 2004 rating decision denied service connection for obstructive sleep apnea and is final.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103 (2004).

5. New and material evidence has been received since the last denial of service connection for obstructive sleep apnea, and the claim is reopened.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a).

6. A December 2004 rating decision denied service connection for sinusitis and is final.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103 (2004).

7. New and material evidence has been received since the last denial of service connection for sinusitis, and the claim is reopened.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a).

8. The criteria to establish service connection for a low back disability are met.                38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.102, 3.303.

9. The criteria to establish service connection for sciatica are met.  38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.71a.

10. The criteria to establish service connection GERD are met.  38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.102, 3.303.

11. The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38C.F.R. §§ 3.102, 3.303. 

12. The criteria for service connection for sinusitis have been met.  38 U.S.C. §§ 1110, 5107; 38C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

13. The criteria for service connection for eczema have been met.  38 U.S.C. §§ 1110, 5107; 38C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

14. The criteria for service connection for PFB scars, secondary to now service-connected eczema, have been met.  38 U.S.C. §§ 1110, 5107; 38C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

15. The criteria for a 10 percent rating for allergic rhinitis have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.97, Diagnostic Code 6522.

16. Effective August 30, 2014, the criteria for a rating of 70 percent, but no higher, for psychiatric disability are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9434.

17. Effective August 30, 2014, the criteria for a rating of 100 percent for the narcolepsy with cataplexy and additional associated neurological symptoms are met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.124a, Diagnostic Codes 8108, 8911. 

18. Effective August 30, 2014, the criteria for a TDIU based solely on the service-connected psychiatric disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19.

19. Effective August 30, 2014, the criteria for SMC pursuant to 38 U.S.C. § 1114(s) are met.  38 U.S.C. § 1114, 5107; 38 C.F.R. § 3.350.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1990 to July 1994 in the Air Force.  The Veteran also served on active duty in the Coast Guard from September 2003 to October 2003.  Additionally, the Veteran served full time in the (State) National Guard (AGR) status from July 2008 to August 2014.  This duty was authorized under 32 U.S.C. § 502(f) and is considered as "active duty for training" (ACDUTRA) for VA compensation purposes.  See 38 C.F.R. § 3.6(c)(3).  

This case is before the Board of Veterans' Appeals (Board) on appeal from November 2014 and May 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).

As it pertains to the issues for depression, GERD, and OSA, the Veteran testified before a Veterans Law Judge (VLJ) during a September 2019 video conference hearing and a transcript is of record.  Subsequently, the VLJ who conducted the 2019 hearing became unavailable to decide the case.  In November 2020, the Veteran opted to testify at a second Board hearing, which was held with the undersigned VLJ in July 2022.  The VLJ complied with his duties as a hearing officer as outlined in Bryant v. Shinseki, 23 Vet. App. 488 (2010), and the Veteran has not asserted otherwise. 

Regarding the allergic rhinitis, the RO initially awarded service connection for allergic rhinitis and assigned a noncompensable rating effective August 30, 2014 in an August 2016 rating decision.  In the October 2016 NOD, the Veteran indicated that he was seeking at least a 10 percent rating for his allergic rhinitis disability, effective August 30, 2014. 

Notably, in the October 2017 VA Form 9, the Veteran requested a videoconference hearing before the Board on the issue of allergic rhinitis.  Unfortunately, due to miscommunication during the September 2019 and July 2022 Board hearings, the Veteran did not testify regarding the nature and severity of his allergic rhinitis disability.  However, he was erroneously afforded a hearing in April 2022 under the AMA system for the allergic rhinitis and sinusitis as secondary to the allergic rhinitis.  

At the April 2022 AMA Board hearing, the Veteran, and his representative, advocated for a 10 percent rating to be assigned effective August 30, 2014 for the allergic rhinitis, as well as a separate rating for sinusitis as secondary to his service-connected allergic rhinitis.  See Murphy v. Shinseki, 26 Vet. App. 510, 514 (2014).  The Veteran's contention that the allergic rhinitis warranted a 10 percent rating, and no higher effective August 30, 2014, was repeated throughout the appellate period.  See, e.g., April 2021 VA Form 10182. 

Although the Veteran has not been afforded a Board hearing under the legacy appellate system specifically related to his allergic rhinitis disability, this has not resulted in prejudice to the Veteran, as he has expressed satisfaction with the current 10 percent rating, and the Board is awarding an earlier effective date of August 30, 2014 for the 10 percent rating, as requested at the April 2022 AMA hearing.

In addition, the Board notes that Bailey v. Wilkie, 33 Vet. App. 188 (2021) (38 C.F.R. § 3.155(d)(2)) requires that, when entitlement to secondary service connection is raised, a formal claim for secondary service connection need not be filed.  Rather, VA must consider those "complications" in connection with the claim on appeal); DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011) (where the disability for which a veteran seeks service connection is not directly associated with service, but information obtained during the processing of the claim reasonably indicates that the cause of the disability is a disease that may be associated with service, VA must investigate whether the causal disability is related to service to determine whether the claimed disability is related secondarily to service).  Here, the Veteran and the record has raised several issues as secondary to the increased rating claim for the service-connected allergic rhinitis, to include chronic sinusitis, eczema, and scars due to the eczema.  Therefore, the Board has adjudicatory domain over these issues, and they are addressed herein.  

As to the increased rating claim for the narcolepsy with cataplexy disability, while this claim was pending in the legacy system, the Veteran asserted that a 60 percent rating should be assigned effective August 30, 2014, and that the narcolepsy disability had worsened over the appellate period.  

The Veteran requested a video conference hearing in the October 2017 VA Form 9 for the increased rating claim for the narcolepsy disability.  In the October 2017 VA Form 9, the Veteran asserted that he "agreed with the percentage awarded for my narcolepsy sleep disorder but I disagree with the effective date of June 29, 2015."  Of note, the Veteran was assigned a noncompensable rating prior to June 29, 2015 and a 60 percent rating beginning June 29, 2015 for the narcolepsy disability.

Subsequently, the Veteran was afforded a September 2019 Board hearing.  During the Board hearing, the Veteran characterized his claim as one for an earlier effective date for the narcolepsy.  The VLJ at that hearing indicated he could not hear that issue because there was no valid VA Form 9.  Nevertheless, after reviewing the record, the Board notes that the Veteran's claim is not really an earlier effective date claim warranting issuance of a statement of the case and separate adjudication. Rather, the Veteran is disagreeing with the date the RO chose to stage the rating for the narcolepsy disability. Thus, the Board has adjudicatory domain over this issue.  Unfortunately, the September 2019 VLJ did not take testimony on this issue.  After the September 2019 VLJ left the Board, a second Board hearing was held in July 2022, but due to the prior mischaracterization of the appeal, testimony was also not taken at this hearing. 

While the legacy claim was pending, the RO initiated a rating reduction for the narcolepsy disability in the AMA system.  The Veteran appealed the rating reduction and testified before the Board in an April 2021 AMA hearing.  During this hearing, the Veteran testified as to the severity of the narcolepsy disability.  The Board issued an April 2022 AMA decision restoring the assigned rating for the narcolepsy to 60 percent, effective August 21, 2019; nevertheless, the Board did not address the increased rating claim as it was still pending in the legacy system.  

Similarly, the Board is awarding a 100 percent rating to the Veteran with an effective date of August 30, 2014 for the narcolepsy disability.  Therefore, there is no prejudice in adjudicating the increased rating claim for narcolepsy without a hearing.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  

Preliminary Matters

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016).

1. The appeal for service connection for the deviated septum is dismissed.

The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees.  38 U.S.C. § 7105(d).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 19.55.  Withdrawal may be made by the appellant or by his or her authorized representative.  Id.  

An oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant.  DeLisio, 25 Vet. App. at 57; see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). 

Here, the Veteran withdrew his appeal for the service connection claim for a deviated septum at the July 2022 Board hearing.  Although 38 C.F.R. § 19.55 does not specifically provide for oral withdrawal at a hearing, it does not preclude such a withdrawal.   The oral withdrawal was explicit, unambiguous, and requested with the full understanding of the consequences of withdrawing the appeal.  The Veteran indicated on pages 2-3 of the transcript that he wanted to withdraw the appeal as to this claim and understood that if he changed his mind, he could file a new claim but that the effective date could be later as a result of the withdrawal.  Thus, there remains no specific determination with which the claimant disagrees with regard to this claim.  Thus, dismissal of the appeal as to this claim is warranted. 

New and Material Evidence - Pertinent Laws and Regulations

Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority.  38 C.F.R. § 3.104(a).  The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302.

If the Board issues a decision on appeal, confirming the RO's decision, then the Board's decision subsumes the RO's decision on the same issue at hand.  38 C.F.R. § 20.1104.  Moreover, if the Board's decision is not timely appealed, then it, too, is final and binding based on the evidence then of record.  38 C.F.R. § 20.1100.

An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim.

New evidence is defined as existing evidence not previously submitted to agency decision makers.  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 previously of record and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

In determining whether evidence is new and material, the credibility of the evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).  However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented.  Anglin v. West, 203 F.3d 1343, 1347 (2000).  In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis.  Evans v. Brown, 9 Vet. App. 273, 285 (1996).  The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).

1. As new and material evidence has been received, the service connection claim for a low back disability is reopened.

The RO initially denied the Veteran's service connection claim for a low back disability in an April 1995 rating decision, finding that there was no evidence of a nexus to service.  The evidence considered at the time included the Veteran's application for compensation, service treatment records, a statement from his spouse, and private treatment records.  The Veteran did not appeal, and new and material evidence was not received within one year of notice to the Veteran of the rating decision. Thus, the April 1995 rating decision became final. 

The RO subsequently denied the Veteran's petition to reopen the service connection claim for a low back disability in a December 2004 rating decision, of which the Veteran was notified in January 2005.  The Veteran submitted a timely notice of disagreement in September 2005, and a Statement of the Case (SOC) was issued in May 2006.  The Veteran submitted an untimely VA Form 9 and did not effectively perfect his appeal to the Board.  See also March 2009 Board decision.  Thus, the December 2004 rating decision became final.  See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (2019).

The evidence received after the December 2004 rating decision includes, in pertinent part, January 2010 private treatment records showing that the Veteran was involved in an automobile accident in 2009, during his last period of AGR service.  May 2014 lumbar spine x-ray studies showed straightening of the lumbar spine.  The Veteran also testified during a September 2019 Board hearing that his low back pain started during his first period of active duty service and had worsened throughout the years, to include following a 2009 motor vehicle accident (during AGR service). This evidence relates to the unestablished element of a nexus to service in the prior denial.  Thus, the additional evidence received since the December 2004 prior final denial is new and material, and the criteria for reopening the claim for service connection for the low back disability are met.

2. As new and material evidence has been received, the service connection claim for obstructive sleep apnea is reopened. 

The RO denied the Veteran's service connection claim for obstructive sleep apnea in a December 2004 rating decision, which was mailed to the Veteran in January 2005, finding that there was no evidence of a nexus to service.  The evidence considered at the time included the Veteran's application for compensation, service treatment records, a statement from his spouse, and private treatment records.  The Veteran submitted a timely notice of disagreement in September 2005, and a Statement of the Case (SOC) was issued in May 2006.  The Veteran submitted an untimely VA Form 9 and did not effectively perfect his appeal to the Board.  See also March 2009 Board decision.  Thus, the December 2004 rating decision became final.  See 38 U.S.C. § 7105 (d)(3); Bond, 659 F.3d at 1362; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (2019).

Relevant evidence received since the December 2004 denial of the claim includes additional private treatment records, statements from the Veteran and his spouse, and VA treatment records.  This evidence, specifically a December 2014 letter from Dr. M.D., relates to the unestablished element of a nexus to service in the prior denial.  The additional evidence received since the December 2004 prior final denial is new and material; therefore, the criteria for reopening the claim for service connection for the obstructive sleep apnea disability are met. 

3. As new and material evidence has been received, the service connection claim for sinusitis is reopened. 

The Veteran contends his currently diagnosed chronic sinusitis had onset during or was otherwise related to his active service, to include that it is a progression of the service-connected allergic rhinitis. 

The RO denied the Veteran's service connection claim for sinusitis in a December 2004 rating decision, which was mailed to the Veteran in January 2005, finding that there was no evidence of chronic disability, or nexus, to service.  The evidence considered at the time included the Veteran's application for compensation, service treatment records, a statement from his spouse, and private treatment records.  The Veteran submitted a timely September 2005 notice of disagreement, and a May 2006 SOC was issued.  The Veteran submitted an untimely VA Form 9 and did not effectively perfect his appeal to the Board.  See also March 2009 Board decision.  Thus, the December 2004 rating decision became final.  See 38 U.S.C. § 7105 (d)(3); Bond, 659 F.3d at 1362; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (2019).

Relevant evidence received since the December 2004 denial of the claim includes additional private treatment records, statements from the Veteran and his spouse, and VA treatment records.  This evidence, specifically a January 2015 and March 2020 private medical opinion, relates to the unestablished element of a nexus to service the prior denial.  The additional evidence received since the December 2004 prior final denial is new and material; therefore, the criteria for reopening the claim for service connection for the obstructive sleep apnea disability are met. 

Service Connection - Pertinent Laws and Regulations

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  

38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Regarding the Veteran's Active Guard Reserve (AGR) service, Title 32 activation of National Guard personnel creates entitlement to federal pay and benefits "as though they were in federal service" 32 U.S.C. § 502(f); see also CRS: Report of Congress, Operation Noble Eagle, Enduring Freedom, and Iraqi Freedom: Questions and Answers About U.S. Personnel, Compensation, and Force Structure (updated February 16, 2005), p. 3. Nevertheless, the benefits afforded to National Guardsman serving under Title 32 do not extend to Title 38 Veterans' Benefits. 

Under the law, a member of the National Guard only serves in the Federal military when the member is formally called into the military service of the United States. Under 38 C.F.R. § 3.6(c), (d), to have basic eligibility as a veteran based on a period of duty as a member of a State Army National Guard, a National Guardsman must have been ordered into Federal service under 32 U.S.C. §§ 316, 502, 503, 504 or 505. See Clark v. United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003).

National Guard duty is distinguishable from Reserve service in that a member of the National Guard may be called to duty by the governor of their state. Members of the National Guard only serve the federal military when they are formally called into the military service of the United States; at all other times, National Guard members serve solely as members of the State militia under the command of a state governor. Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States under Title 10 or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id.  In this case, the Veteran performed "full-time duty" for the State National Guard under 32 U.S.C. § 502(f) from July 2008 to November 2014.

Reserve and National Guard service generally means active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA).  ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505.  38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). That usually includes two weeks of annual training and/or an initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d).

With respect to National Guard service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101 (24), 106, 1110, 38 C.F.R. §§ 3.6, 3.303, 3.304. 

The presumptions of soundness and in-service incurrence for certain chronic disabilities do not generally apply to ACDUTRA.  See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991).  There is one exception to this rule: "once a claimant has achieved veteran status for a single disability incurred or aggravated during a period of ACDUTRA, that status applies to all disabilities claimed to have been incurred or aggravated during that period of ACDUTRA."  Hill v. McDonald, 28 Vet. App. 243, 252 (2016).

"In line of duty" means an injury or disease incurred or aggravated during a period of active military service unless such injury or disease was the result of the veteran's own willful misconduct.  A service department finding that injury or disease occurred in line of duty will be binding on the Department of Veterans Affairs (VA) unless it is patently inconsistent with the requirements of laws administered by VA.  Requirements as to line of duty are not met if, at the time the injury was suffered or disease contracted, the veteran was (1) avoiding duty by desertion, or was absent without leave which materially interfered with the performance of military duty; (2) confined under a sentence of court-martial involving an unremitted dishonorable discharge; or (3) confined under sentence of a civil court for a felony as determined under the laws of the jurisdiction where the person was convicted by such court. 38 C.F.R. § 3.1(m).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994).

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  The claimant is entitled to the benefit of the doubt when there is an "approximate" balance of positive and negative evidence regarding any material determination.  Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

4. Service connection for a low back disability is granted. 

The Veteran maintains that he has suffered from persistent back problems following a motor vehicle accident (MVA) during his last period of AGR service in 2009.

The Veteran testified at a September 2019 Board hearing that he was involved in a December 2009 motor vehicle accident (MVA).  

A January 2010 letter from the Veteran's representative to VA confirmed the Veteran's reports of an automobile accident in December 2009.  

May 2010 service treatment records show that the Veteran was involved in a December 2009 MVA.  The Veteran was treated by a private physician with medications and physical therapy for his back symptoms because of this accident. 

A May 2014 X-ray report, undertaken during his last period of AGR service, showed straightening of the lumbar spine "suggesting muscle spasm."  His lumbar spine was otherwise normal at that time.  

In a March 2016 VA treatment record, the Veteran specifically stated that he injured his back in 2009 and "that was when pain started."  He further noted that the injury "occurred in military."  The Veteran had a bulging disc in his lumbar spine.  A November 2018 lumbar spine MRI study confirmed that the Veteran had a "history of motor vehicle accident."  MRI study results showed L4-S1 bulging bilateral neural foraminal narrowing.  

Of note, the Veteran was already awarded service connection for a cervical spine disability that was the result of the same December 2009 MVA.  See May 2015 VA cervical spine examination and May 2015 rating decision. 

Upon review of the evidence of record, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's low back disability is related to the December 2009 MVA.  The Veteran has a currently diagnosed low back disability, and there is evidence confirming an MVA during his last period of AGR (ACDUTRA) service.  The lay and medical evidence of record also shows that the Veteran's low back symptomatology began at the time of the accident and has persisted since the 2009 injury.  

Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for a low back disorder is warranted. 

5. Service connection for sciatica as a neurological manifestation of the low back disability is granted. 

The scope of the Veteran's claim for a lumbar spine disability includes any disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Regardless of whether a claimant identifies a particular disorder upon filing the claim, the scope of the claim is considered a claim for any disability that is reasonably encompassed by the claim, including the description of the claim, the symptoms described, and the information submitted or that VA obtains in developing the claim.  Id.  Moreover, neurological disabilities are part and parcel of increased rating claims for impairments of the lumbar spine.  See 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note (1).  

As an initial matter, the Veteran has been diagnosed with bilateral low back pain with sciatica, and he has testified that he has pain radiating down both of his legs from his low back.  See May 2015 private treatment records; see also September 2019 and July 2022 hearing transcripts.  As discussed above, the Veteran is now service connected for the low back disability.  Therefore, service connection for the sciatica as a neurological manifestation of the low back disability is granted.  

6. Service connection for gastroesophageal reflux disease (GERD) is granted. 

The Veteran contends that the GERD disability had onset during his AGR (ACDUTRA) service. 

As an initial matter, the Veteran was diagnosed with GERD shortly before the appellate period.  See e. g., September 2013 service treatment records.

The Veteran testified that he began having symptoms of heartburn, regurgitation, and chest pain in December 2012 during his last period of AGR service.  In addition, September 2013 service treatment records (from a private physician) showed that the Veteran complained of occasional epigastric discomfort "for months" after eating certain foods.  He also had right upper-quadrant pain for the last 3 days.  The Veteran was assessed with GERD and was prescribed medication.   

Based on this evidence, and resolving all doubt in favor of the Veteran, the Board finds that the evidence is persuasively in favor of the claim.  The Veteran's GERD had onset during his last period of AGR service.  The Veteran's credible lay statements and the medical evidence discussed above indicate that the Veteran first manifested symptoms of GERD, and was treated for GERD, during his last period of AGR service.  

As such, service connection for GERD is warranted.  

7. Service connection for obstructive sleep apnea (OSA) is granted. 

February 2004 private treatment records show the Veteran was initially diagnosed with obstructive sleep apnea.  See February 2004 private treatment records; see also January 2004 statement

Service treatment records show that the Veteran was afforded an additional sleep study in November 2008 during his AGR period of service.  He was again diagnosed with obstructive sleep apnea in November 2008 and again at a sleep study in August 2012. 

An August 2012 Line of Duty Determination (LOD) shows that the Veteran was diagnosed with obstructive sleep apnea with CPAP at Keesler Air Force Base.  The OSA was not due to the Veteran's willful misconduct.  The LOD indicated the Veteran, at the time of diagnosis was an AGR member on temporary duty travel to Keeler Air Force Base when he was seen for trouble sleeping.  A sleep study was conducted, and the Veteran was diagnosed with obstructive sleep apnea.  He also had trouble staying awake in class.  The LOD found that the obstructive sleep apnea existed prior to service but was service aggravated.  

The sole question before the Board in this matter is whether the injury in service was incurred in line of duty. If so, the resulting disabilities may be service connected. 

At the outset, it is noteworthy that, under 38 C.F.R. § 3.1(m), a service department finding that an injury was incurred in line of duty is binding on VA unless it is patently inconsistent with the requirements of laws administered by VA.  The line of duty determination found that, although the sleep apnea existed prior to service, it was aggravated during service. The line of duty determination by the service department is not patently inconsistent with VA law, and the requirements for establishing service connection are met. 

Service connection for obstructive sleep apnea is granted.

8. Service connection for sinusitis is granted. 

As an initial matter, the Veteran was diagnosed with chronic sinusitis shortly before the appellate period.  See May 2013 private treatment record.  

Service treatment records show the Veteran was first diagnosed with sinusitis in 1993, during active duty and repeatedly since then.  See, e.g., August 1993, October 1993, and April 2014 service treatment records; see also March 2004, March 2006, and July 2006 private treatment records, and September 2005 National Guard enlistment examination. 

Thus, the question in this case is whether the sinusitis was caused by or was aggravated by the allergic rhinitis disability or whether it had onset during service. 

Turning to the evidence, the Veteran submitted a January 2015 private medical opinion and March 2020 DBQ completed by a private provider.  The January 2015 medical opinion from Dr. L.Q.E., the Veteran's primary care physician, reviewed his military and post-service VA medical records, and Dr. L.Q.E. was familiar with the Veteran's medical history as his treating physician.  Dr. L.Q.E. concluded that it was more likely than not that the service-connected allergic rhinitis and chronic sinusitis diagnosed between 1993 and 2014 were related to one another 

The March 2020 DBQ from Dr. W.A.D., a primary care physician, indicated that the allergies, rhinitis, and sinusitis had onset in 1993, during his active duty service, and had continued since that time. 

The Veteran also submitted numerous medical and internet articles that link allergic rhinitis to sinusitis.  

The Veteran was afforded an April 2021 VA medical examination. The examiner, a physician, noted that the Veteran's chronic and progressive rhinitis (both allergic and non-allergic) and chronic sinusitis were well-documented and reflected in both CT imaging and on endoscopy studies, with initiation of symptoms during service.  The physical examination confirmed both the existence and progression of these findings.  The evidence "clearly demonstrates worsening" of the rhinitis and sinusitis.  The examiner concluded it was at least as likely as not that the chronic sinusitis and non-allergic rhinitis were progressions of the service-connected allergic rhinitis.  

Of note, there are no negative medical opinions on the etiology of the sinusitis disability of record. 

Based on the above, the most probative evidence of record establishes that the Veteran's chronic sinusitis was a progression of his service-connected allergic rhinitis. See 38 C.F.R. § 3.303(d).  Together, these factors are sufficient to satisfy the medical nexus element of a successful secondary service connection claim.

Having resolved any reasonable doubt in the Veteran's favor, service connection for sinusitis is granted.

9. Service connection for eczema is granted. 

The Veteran contends that his eczema disability secondary to the service-connected allergic rhinitis. See February 2021 statement. 

As an initial matter, the Veteran has been diagnosed with eczema during the appellate period, and the Veteran is service connected for allergic rhinitis.  See December 2019 VA examination and January 2023 rating Codesheet.  

The question in this case is whether the currently diagnosed eczema disability is caused by or is aggravated by the service-connected allergic rhinitis.  

The Veteran submitted a March 2020 private DBQ from Dr. A.D., a physician.  Dr. A.D. explained that the Veteran had a long history of PFB, allergies, rhinitis, and sinusitis.  His allergy testing during active duty showed a histamine level of four with additional positive prick testing.  Dr. A.D. concluded that, with the Veteran's long history of allergies, rhinitis, and eczema and these conditions have been known to be allergic comorbidities.  

The Veteran also submitted several internet and medical abstracts supporting that eczema is a complication of allergies and allergic rhinitis.  See March 2021 articles. 

Of note, a December 2019 VA noted that the Veteran noticed changes in his skin during active service between 1991-1992, which was diagnosed as PFB.  Subsequently, the PFB progressed into acne and eczema.  

While the Board acknowledges these are competing medical opinions as to the etiology of the eczema, both etiologies (e.g., the allergic rhinitis and eczema) are service-connected disabilities.  These opinions are both highly probative and are afforded equal weight.  Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence is at least in approximate equipoise that the eczema was a complication or progression of the service-connected allergic rhinitis.  Thus, service connection for eczema is granted. 

10. Service connection for PFB scars, secondary to now service-connected eczema, is granted. 

The Veteran was afforded a VA skin examination in December 2019.  He was diagnosed with right and left lateral chest and facial scars due to the now service-connected eczema and PFB flareups.  Thus, as the PFB scars are caused by the now service-connected eczema, which is a progression of the allergic rhinitis, service PFB scars is warranted.  

Increased Rating - Pertinent Laws and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4.  38 U.S.C. § 1155.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.

Where there is a question as to which of two disability ratings could be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities.  38 C.F.R. § 4.14.  It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings.  Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin.  38 C.F.R. § 4.20.

Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  

A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303 (2007).

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination.  See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

11. Effective August 30, 2014, a 10 percent rating, but no higher, for allergic rhinitis is granted. 

Prior to February 24, 2021, the Veteran is currently in receipt of a noncompensable initial disability rating for allergic rhinitis under Diagnostic Code 6522.  Beginning February 24, 2021, a 10 percent rating was assigned for the allergic rhinitis disability.  See 38 C.F.R. § 4.97.  

As noted in the introduction section above, the Veteran has specifically requested a 10 percent rating for his allergic rhinitis disability.  See, e.g., October 2016 NOD, and April 2021 VA Form 10182.

After reviewing the evidence of record, the Board finds that the evidence is at least in relative equipoise as to whether he is entitled to a 10 percent rating for his allergic rhinitis disability throughout the claim period.

In this regard, a 10 percent disability rating is assigned for allergic rhinitis with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side.  38 C.F.R. § 4.97, Diagnostic Code 6522.

Notably, in a VA examination report conducted in May 2013, the Veteran was not found to have greater than 50 percent obstruction of both nasal passages or complete obstruction of one nasal passage.  However, private medical records indicate that the Veteran had a 20 year history of bilateral "nasal obstruction."   A CT-scan of the Veteran's sinuses in April 2013 showed partial opacification of the bilateral sinuses with thickening in the inferior frontal sinuses.  Mucosal thickening was also seen along the infundibulum of the maxillary sinus, bilaterally.  The Veteran was also found to have "moderate" (right greater than left) inferior turbinate hypertrophy.  Although no polyps were detected, the Veteran was noted to have 90 percent obstruction on the left side.  

For these reasons, the Board resolves reasonable doubt in the Veteran's favor.   As such, the Board finds that the evidence establishes symptomatology that more nearly approximates the criteria for a 10 percent disability rating, effective August 30, 2014, the day after he was discharged from AGR service.  See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.97.   The Veteran's claim for an initial compensable evaluation for allergic rhinitis is granted in full as the Veteran has specifically requested a 10 percent rating.  See Bernard, 4 Vet. App. at 394.

To the extent that the Veteran has asserted that he should be awarded a 10 percent rating for incapacitating episodes under 38 C.F.R. § 4.97, Diagnostic Codes 6510-6514 (applicable to sinusitis), the Board notes that it has a duty to acknowledge and consider all diagnostic codes that are potentially applicable when evaluating the Veteran's allergic rhinitis.  See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  However, the Veteran has been diagnosed with, and is in receipt of service connection for, allergic rhinitis, a condition that is specifically listed in the Rating Schedule, and it may not be rated by analogy. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). 

The Board notes that service connection for sinusitis is granted herein, and an initial rating for the sinusitis disability will be assigned in the first instance by the RO when this Board decision is implemented. 

Finally, the Board notes that neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017).  

12. Effective August 30, 2014, a 70 percent rating for the service-connected depression, but no higher, is granted. 

Prior to July 23, 2015, a 30 percent rating is assigned for the service-connected depression, and a 70 percent rating is assigned thereafter.

Depression is rated under the General Rating Formula for Mental Disorders, found at 38 C.F.R. § 4.130.  A 30 percent rating is assigned 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 assigned 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 where there is 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; 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 work-like setting); and inability to establish and maintain effective relationships.

A 100 percent rating is warranted where there is 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; and memory loss for names of close relatives, own occupation, or own name.

Private and VA medical evidence of record shows that the Veteran's depression has resulted in impairment in social and occupational functioning.  The Veteran has been found to manifest symptoms specifically contemplated by the 70 percent rating criteria.  See January 2014 report from Accessible Psychological Counseling Services (where the Veteran was noted to have problems at work, depression, paranoia, decreased energy, irritability, difficulty with multi-tasking, social isolation, and suicidal ideation).  In a March 2014 private psychiatric treatment record, the Veteran complained of depression and suicidal thoughts and a suicide attempt.  He testified that he exhibited obsessive ritualistic behavior during the entire appeal period, such as checking to make sure the doors were locked.  He also testified that throughout the entire appellate period, he had no social relationships outside of his immediate family, he hallucinated, and he experienced near constant panic attacks.  As time went on, he even withdrew from his children.  See July 2015 DBQ and July 2022 hearing transcript.  He only interacted with his wife, and she was "all he had."  See also October 2022 VA examination. 

The Board finds that, throughout the entire appellate period, several of the Veteran's psychiatric symptoms are specifically included in the 70 percent rating criteria under DC 9434.  His symptoms more nearly approximate occupational and social impairment, with deficiencies in most areas (e.g., suicidal ideation, near-continuous depression, difficulty in adapting to stressful circumstances (including work or a work-like setting), and an inability to establish and maintain effective relationships).  Accordingly, and resolving reasonable doubt in his favor, a 70 percent rating for depression is warranted for the entire period on appeal.

Nevertheless, while the Board finds that the Veteran had total occupational impairment due to depression during the appeal period (see TDIU section below), the evidence does not show that the symptoms and impairment more nearly approximated total social impairment.  In this regard, there is no heightened requirement for a 100 percent rating under the general rating formula for mental disorders; the standard of 38 C.F.R. § 4.7, that the symptoms and impairment more nearly approximate the total occupational and social impairment for this rating, applies.  See Del Valle v. Gober, No. 96-1116, 1997 U.S. Vet. App. LEXIS 960 (Oct. 1, 1997) (mem dec) (Holdaway, J.) (citing Giusti-Bravo v. United States Veterans Administration, 853 F. Supp. 34 (D.P.R. 1993) (discussing VA's San Juan Memorandum 82-3 which incorrectly advised rating board specialists to use heightened requirements for veterans seeking 100 percent disability ratings for psychiatric disorders).  See also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain).

Specifically, during the appeal period, the Veteran  had a relationship with his wife and for part of the appellate period, he had a relationship with his children.  He also identified having a meaningful relationship with his mother in the October 2022 VA examination.  Although he is shown to be significantly socially isolated, a high degree of social isolation and deficiency is adequately contemplated by a 70 percent rating (i.e., inability to establish and maintain effective relationships).   Total social impairment requires symptoms of severity, frequency, and duration on par with memory loss so severe that he forgets names of close relatives, own occupation, or own name.  The Veteran's reported symptoms of memory loss do not show a social impairment rising to this level.  Both total occupational and social impairment generally requires symptoms severe enough to severely distort the individual's perception of reality, which is not shown by the record.  He has not displayed gross impairment in thought processes or communication, disorientation to time or place, or grossly inappropriate behavior. 

The Veteran testified in the July 2022 hearing that he experienced hallucinations related to the service-connected depression; however, the treatment records indicate that the only times he reported hallucinations were related to his service-connected narcolepsy.  See, e.g., July 2019, June 2021, and August 2022 VA treatment records; but see, e.g., May 2013, July 2015, April 2018, and June 2019 private psychiatric treatment records.  The Veteran is already being compensated for hallucinations by the total rating assigned for the narcolepsy disability.  To assign an additional rating for this symptom under the psychiatric rating code is pyramiding, which is to be avoided.  38 C.F.R. § 4.14.   

There is also no evidence of persistent danger of hurting self or others.  Persistent is defined as "continuing without change in function or structure." https://www.merriam-webster.com/dictionary/persistent (last accessed March 20, 2023).  Although the Veteran reports being hospitalized for two suicide attempts, one attempt was accidental and before the appellate period began while he was still on AGR service.  Moreover, even considering that the Veteran has reported that he had two suicide attempts between 2014 and 2023, this frequency does not rise to the level of persistent danger to himself to warrant a 100 percent rating.  Similarly, the Veteran's difficulty with other people has not risen to the level of persistent danger of hurting others.  The Veteran has had repeated conflicts with a particular neighbor, as well as one argument with a stranger in a parking lot who threatened the Veteran with a gun.  See May 2013 private treatment record, April 2018 private treatment record, June 2019 private treatment record, October 2022 VA examination, and July 2022 Board hearing.  However, the lay and medical evidence does not show that he is a persistent danger to others.  Notably, these altercations were all verbal in nature and did not rise to the level of the Veteran posing imminent harm to the other person during the appellate period.    

Additionally, while there is evidence that the Veteran requires help with activities of daily living (including personal hygiene), the above evidence reflects that this functional impairment is due to other disabilities.  See July 2022 hearing transcript and October 2022 VA examination.  The Board finds that this description of the Veteran's functioning is consistent with neglect of personal appearance and hygiene, rather than an intermittent inability to perform activities of daily living. 

In sum, a 70 percent rating for the service-connected depression is granted from August 30, 2014, the day after the Veteran was discharged from AGR service, to July 23, 2015.  However, for the entire period on appeal, the criteria for an initial rating higher than 70 percent have not been met.  For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether an initial rating higher than 70 percent is warranted.  Rather, the evidence persuasively weighs against an initial rating higher than 70 percent.  The benefit of the doubt doctrine, see 38?U.S.C. §?5107(b), 38 C.F.R. § 4.3, is therefore not for application as to this claim.  Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

Finally, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

13. Effective August 30, 2014, a 100 percent rating for the service-connected narcolepsy with cataplexy is granted. 

The Veteran has been assigned a 10 percent rating prior to June 29, 2015, a 60 percent rating from June 29, 2015 to July 6, 2020, and an 80 percent rating thereafter for the service-connected narcolepsy with cataplexy.  The Veteran was rated under Diagnostic Code 8199-8108 prior to August 21, 2019 and under Diagnostic Code 8108-8911 thereafter.  

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned.  The additional code is shown after a hyphen.  As such, the Veteran's narcolepsy disability with cataplexy under Diagnostic Code 8108-8199 indicates that it is rated under narcolepsy pursuant to Diagnostic Code 8108 with unlisted miscellaneous neurological conditions and convulsive disorders that are not specifically listed in the schedule but are rated by analogy to similar disabilities under the schedule.  See 38 C.F.R. §§ 4.20, 4.27; Copeland v. McDonald, 27 Vet. App. 333, 337 (2015).

Narcolepsy is rated under Diagnostic Code 8108 which provides that the disability be evaluated as petit mal epilepsy.  Petit mal epilepsy is rated under the general rating formula for major and minor epileptic seizures. 38 C.F.R. § 4.124a, Diagnostic Code 8911. 

Under Diagnostic Code 8911, both the frequency and type of seizures that the Veteran experiences are considered in determining the appropriate rating.  A major seizure is characterized by generalized tonic-clonic convulsion with unconsciousness.  A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head (pure petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). 38 C.F.R. § 4.124a, Diagnostic Code 8911.

Narcolepsy consists of recurrent, uncontrollable, brief episodes of sleep, often associated with hypnagogic or hypnopompic hallucinations, cataplexy, and sleep paralysis. See Dorland's Illustrated Medical Dictionary (32nd ed. 2012). However, narcolepsy and cataplexy are separate disorders. Narcolepsy is a condition characterized by brief periods of sleep, while cataplexy is a condition in which there are abrupt attacks of muscular weakness and hypotonia triggered by an emotional stimulus such as mirth, anger, fear, or surprise.  See Dorland's Illustrated Medical Dictionary (32nd ed. 2012); see also, James v. Brown, 7 Vet. App. 495, 496 (1995) (citing Dorland's Illustrated Medical Dictionary (27th ed. 1988) for definition of cataplexy).

To warrant a rating for epilepsy, the seizures must be witnessed or verified at some time by a physician, and regarding the frequency of epileptiform attacks, competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted.  It is also provided that the frequency of seizures should be ascertained under the ordinary conditions of life while not hospitalized.  38 C.F.R. § 4.121.

Under the rating criteria for petit mal epilepsy, a 10 percent disability rating is assigned for a confirmed diagnosis of epilepsy with a history of seizures.  A 20 percent disability rating is assigned when there has been at least one major seizure in the last two years; or at least two minor seizures in the last six months. A 40 percent disability rating is assigned when there has been at least one major seizure in the last six months or two in the last year; or averaging at least five to eight minor seizures weekly. A 60 percent disability rating is assigned when there has been an averaging of at least one major seizure in four months over the last year; or nine to ten minor seizures per week. An 80 percent disability rating is assigned when there has been an averaging of at least one major seizure in three months over the last year; or more than 10 minor seizures weekly. A 100 percent disability rating is assigned when there has been an average of at least one major seizure per month over the last year. 38 C.F.R. § 4.124a, Diagnostic Code 8911.

Resolving all reasonable doubt in the Veteran's favor, the Board finds that he is entitled to a disability rating of 100 percent for narcolepsy with cataplexy, hypnogogic hallucinations, and sleep paralysis for the entire period on appeal beginning August 30, 2014. 

In making this determination, the Board acknowledges that he has had at least, and often more than, 9 to 10 narcoleptic episodes or more on average per week, which is consistent with a higher 80 percent disability.  The Veteran is only entitled to a disability rating of 80 percent based solely on his narcolepsy as narcolepsy is rated as petit mal epilepsy under Diagnostic Code 8911.

Nevertheless, Diagnostic Code 8911 provides for a 100 percent disability rating only in instances in which the seizure activity is characterized as major which contemplates tonic-clonic convulsions in addition to unconsciousness.  The medical evidence shows that, during the appeal period, the Veteran experienced narcolepsy with cataplexy, hypnogogic hallucinations, sleep attacks, and sleep paralysis.  VA and private examinations show he has more than 2 episodes of cataplexy in six months (the most severe category on the disability benefit questionnaire).  See August 2015, January 2016, and July 2020 private DBQs, and August 2015, August 3, 2020, August 18, 2020, and August 2022 VA examination DBQs.  VA and private clinicians have confirmed ongoing monthly cataplexy episodes, as often as 15 episodes per week, and the Veteran has been advised that he should avoid driving or any potentially dangerous activities due to his symptoms.  See January 2016 private DBQ and August 2022 VA examination DBQ.

In the case of this Veteran, the Board finds that the combination of narcolepsy and cataplexy with hypogenic hallucinations, sleep paralysis, and sleep attacks results in attacks that more nearly manifest as the same severity of a major seizure, including loss of muscle control, paralysis, and vivid hallucinations.  

Under these circumstances, the frequency of the Veteran's attacks warrants a 100 percent disability rating under the criteria in Diagnostic Code 8911. In making this determination, the Board has considered the VA examination reports and private DBQs, along with the lay evidence of record.  In this regard, those providing lay statements are competent to describe the lay-observable symptoms of the Veteran's narcolepsy and cataplexy.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Moreover, as to frequency of epileptic seizures, the Rating Schedule specifically provides that "competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted." 38 C.F.R. § 4.121.

As discussed in the introduction section above, the Veteran has not been afforded a Board hearing on this issue.  Nevertheless, the Board is granting the full benefit sought on appeal, effective the earliest date the Veteran requested of August 30, 2014 (the day after he was discharged from service).  Therefore, there is no prejudice in adjudicating the increased rating claim for narcolepsy without affording the Veteran the requested hearing.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  

The Board notes that the regulations also provide that "[w]hen there is doubt as to the true nature of the epileptiform attacks, neurological observation in a hospital adequate to make such a study is necessary."  The RO did not order neurological observation in a hospital, and the Board concludes that a remand is not necessary here to obtain such a study or to obtain another medical opinion to decide the claim as the evidence of record is sufficient for that purpose.

Accordingly, resolving the benefit of the doubt in favor of the Veteran, the Board will grant a 100 percent rating for the service-connected narcolepsy with cataplexy for the entire appeal period.  38 U.S.C. § 5107 (b).

14. A TDIU based solely on the service-connected psychiatric disability is granted.

It is the established policy of VA that all veterans who are unable to secure and maintain substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16.  A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15.

A TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16 (a).  For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable. The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or maintaining a substantially gainful occupation. Id. 

For the entire period on appeal, the Veteran in this case met the minimum threshold requirements for TDIU under 38 C.F.R. § 4.16 beginning August 30, 2014. 

The remaining question is whether these service-connected disabilities preclude the Veteran from securing and following a substantially gainful occupation. See 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. Id. at 363. Thus, the central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment.  Id.  Consideration may be given to a veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19.

In Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013), the Federal Circuit held that, when a veteran is claiming TDIU based upon the combined effects of multiple service-connected disabilities, VA's duty to assist "does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities." See also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA adjudicators, not a medical examiner's opinion. Geib, 733 F.3d at 1354; see also 38 C.F.R. § 4.16 (a).  The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009).

There is no regulatory definition of "substantially gainful employment." 38 C.F.R. § 4.16(a) provides guidance in that it states: "Marginal employment shall not be considered gainful employment." It also says definitively that marginal employment exists when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16 (a).

The Veteran's DD Forms 214 indicates that he served on active duty for approximately nine years of active service over three periods of service.  His military occupational specialties were medical laboratory journeyman, contracting craftsman, and knowledge operations.  The Veteran has not held substantially gainful employment since his discharge from AGR service in August 2014.  The Veteran completed his bachelor's degree and completed law school at the Charlotte School of Law, which closed due to accreditation issues in 2016.  It does not appear that the Veteran took the bar, and the Veteran contends that his law school education did not prepare him to successfully pass the bar.  See July 2022 VA Form 21-8940; see also, November 2014 and April 2015 private psychiatric treatment records.

A June 2019 letter from Dr. V.N., the Veteran's treating psychologist, indicated that the Veteran was removed from active duty due to anger issues, difficulty completing tasks, poor judgment, difficulty with interpersonal relationships with coworkers, and difficulty arriving on time.  Dr. V.N. noted that he did not work effectively under normal stress and could not tolerate the pressure of workplace demands.  Dr. V.N. concluded that the Veteran's psychiatric symptoms presented significant obstacles to productivity.  

Dr. V.N. completed an October 2021 medical statement for the Veteran's mental health disabilities for the period between July 2020 to December 2020.  Dr. V.N. treated the Veteran weekly since October 2010 for his psychiatric symptoms.  He was prescribed several medications, which caused headaches, sedation, fatigue, agitation, and interference with driving.  Generally, he was casually dressed with restricted affect, guarded thoughts, pressured circumstantial thought processes, and paranoia.  He was "void of hallucinations." His prognosis was that he could maintain stability but with limited progress toward improvement.  The Veteran's psychiatric symptoms included anhedonia or pervasive loss of interest in almost all activities; appetite disturbance with weight change; decreased energy; blunt, flat or ineffective affect; feelings of guilt or worthlessness; impairment in impulse control; generalized persistent anxiety; mood disturbance; difficulty thinking or concentrating; persistent disturbances of mood or affect; paranoid thinking or inappropriate suspiciousness; emotional withdrawal or isolation; intense and unstable interpersonal relationships and impulsive and damaging behavior; vigilance and scanning; memory impairment; sleep disturbance; recurrent severe panic attacks manifested by a sudden unpredictable onset or intense apprehension, fear, terror, and sense of impending doom occurring on the average of at least once a week.  He had marked limitations in remembering work-like procedures, maintaining attention for at least two hour periods, maintaining regular attendance and being punctual within customary expectations, completing a normal workday and workweek without interruptions from psychological based symptoms, responding appropriately to changes in routines at work, dealing with normal work stress, maintaining socially appropriate behavior, traveling to an unfamiliar place, or use public transportation.  He had extreme limitations working in coordination with or in proximity to others, interacting appropriately with the public, performing at a consistent pace without an unreasonable number and length of rest periods, accepting instructions and responding appropriately to a supervisor's criticism, and to get along with coworkers or peers without exhibiting behavior extremes.  Dr. V.N. also noted the Veteran would have moderate limitations in additional areas, such as understanding, remembering, and carrying out short, simple instructions, sustaining a routine without supervision, make simple work-related decisions, ask simple questions or request assistance, be aware of normal work hazards and take precautions, understand and carry out detailed instructions, setting realistic goals or make plans independently, dealing with stress of semiskilled or skilled work, and maintaining basic standards of cleanliness and neatness.  The Veteran would be unable to tolerate work stress related to deadlines, work within a schedule, make decisions, exercise independent judgment, complete tasks, work with others, deal with the public, deal with supervisors and their criticisms, arrive to work regularly, overcome fear of failure at work, or complete work that required speed, precision, or complexity.   Dr. V.N. concluded the Veteran would be absent from work four or more days per month due to his psychiatric symptoms, and he would be "off task" at least 25 percent of each workday.  Although Dr. V.N. believed he could tolerate low stress work, the Veteran's symptoms were exacerbated by environmental factors as well as interactions with unfamiliar people.

The Veteran testified before the undersigned VLJ in July 2022.  The Veteran asserted that his mental health was always more severe than the rating assigned.  His mental health symptoms manifested around 2011 during active service.  His command directed him to participate in a mental health evaluation during service, and the military psychiatrist suggested he seek consistent additional treatment.  In addition, his spouse told him he was acting "odd" and encouraged him to seek treatment.  Specifically, the Veteran's wife observed him compulsively checking whether the doors were locked and isolating himself more from her and their children.  His spouse felt that he might harm himself.  Additionally, because they had been arguing at that time, she feared things could get out of hand, and he could harm her or the kids.  She told him if he did not seek treatment, she would leave him because he was not himself.  As a result, the Veteran began treatment with Dr. V.N. in 2011.  He had not been employed since his discharge from service, and he believed that his psychiatric symptoms prevented him from being gainfully employed.  He testified that he was hospitalized for two suicide attempts, one prior to discharge from service.  He had near constant panic attacks and felt like a threat to himself or others.  His social circle had become dramatically smaller, he no longer had a relationship with his children, and he did not have friends.  He did not leave his home frequently.  His only relationship was with his spouse as she was his caretaker.   His psychiatric symptoms affected his ability to communicate with his wife, family, and friends.  His symptoms had been constant and consistently severe since he was discharged from service. 

After a review of the evidence, both lay and medical, the Board finds that the Veteran has been unable to secure or maintain substantially gainful employment due to his service-connected disabilities for the entire period on appeal.  Although the combination of the Veteran's service-connected disabilities certainly prevents the Veteran from obtaining and maintaining substantially gainful employment, the Veteran's psychiatric disability and associated symptoms alone would prevent the Veteran from obtaining or maintaining substantially gainful employment.  The Veteran's difficulty with appropriately interact with coworkers, supervisors, and the public make it substantially unlikely that he would maintain any type of employment.  Of note, the Veteran had significant difficulty maintaining appropriate relationships with his command and other coworkers during AGR service after 2011, and he credibly testified that his symptoms were the same immediately following discharge from service and throughout the appellate period as they were in the years leading to his discharge from service.

Therefore, as the competent and credible evidence is in favor of a finding of unemployability due to the service-connected psychiatric disability, entitlement to a TDIU is warranted for the entire period on appeal.

15. Special monthly compensation (SMC) under 38 U.S.C. § 1114(s)(1) is granted. 

VA has a "well-established" duty to maximize a claimant's benefits.  Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114.  Id. at 294.  As a result of the Board's decision herein, the Veteran will have been in receipt of a TDIU due to his service-connected psychiatric disability alone for the entire appellate period from August 30, 2014.  This satisfies the service-connected disability rated as total criterion of 38 U.S.C. § 1114(s)(1).  Bradley, 22 Vet. App. at 293 ("section 1114(s) does not limit 'a service-connected disability rated as total' to only a schedular rating of 100%, and the Secretary's current regulation permits a TDIU rating based on a single disability to satisfy the statutory requirement of a total rating").  The Veteran is also rated 100 percent for narcolepsy throughout the appeal period.  Moreover, from August 30, 2014, the other service-connected disabilities are independently rated as at least 60 percent disabling.  Considering the above, entitlement to SMC under 38 U.S.C. § 1114(s)(1) is established from August 30, 2014.

 

 

Jonathan Hager

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Harper, 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.