Citation Nr: 1138121	
Decision Date: 10/13/11    Archive Date: 10/19/11

DOCKET NO.  08-15 011	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD).  

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  


REPRESENTATION

Appellant represented by:	Colorado Division of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

Appellant and his brother



ATTORNEY FOR THE BOARD

M. Zawadzki, Counsel


INTRODUCTION

The Veteran served on active duty from April 1965 to June 1968, with prior service in the Ohio Army National Guard.  His military decorations include the Combat Infantryman Badge and the Purple Heart.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado in which the RO, in pertinent part, continued a 30 percent rating for PTSD and denied entitlement to a TDIU.  

In June 2011, the Veteran testified during a hearing before the undersigned Veterans Law Judge sitting at the RO (Travel Board hearing); a transcript of that hearing is of record.  

The Board notes that, in his May 2006 claim, the Veteran asserted that he had quit his job before he was fired due to all of his disabilities.  Accordingly, in correspondence dated in June and September 2006, the RO advised the Veteran that it was working on his claim for individual unemployability and claims for increased ratings for each of his service-connected disabilities, including PTSD, a residual scar of the right shoulder, and erectile dysfunction.  As indicated above, in the January 2007 rating decision, the RO denied entitlement to a TDIU and continued a 30 percent rating for PTSD.  The RO also continued the assigned ratings for the Veteran's service connected diabetes mellitus; residual scars, status post shell fragment wound (SFW) of the abdomen; residual scar, right elbow; residual scar, right forearm, status post SFW; SFW, abdomen, muscle group XIX; residual scar, status post SFW, right thigh; SFW, right forearm, muscle group VI, with impaired function of the right elbow with degenerative joint disease; SFW right biceps, muscle group V, with impaired function of the right shoulder and degenerative joint disease; residual limitation of motion, right hip, status post SFW right thigh; residuals, fracture left fibula; and residual scar, status post fracture left tibia; and the Veteran has not appealed this decision. Despite the May 2006 claim and the June and September 2006 correspondence, the RO did not address claims for increased ratings for a residual scar of the right shoulder and erectile dysfunction.  Although, in its decision to continue a 20 percent rating for service-connected diabetes mellitus, the RO noted that the Veteran's erectile dysfunction was somewhat controlled by Viagra, the RO did not adjudicate the claim for an increased rating for erectile dysfunction.  

The claims for increased ratings for a residual scar of the right shoulder and erectile dysfunction have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over these matters, and they are referred to the AOJ for appropriate action.  

The issue of entitlement to a rating in excess of 30 percent for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

In June 2011, prior to the promulgation of a decision in the appeal, Veteran indicated that he wished to withdraw from appeal the claim of entitlement to a TDIU.  


CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the appellant as to the claim of entitlement to a TDIU have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2011).



REASONS AND BASES FOR FINDING AND CONCLUSION

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002).  A substantive appeal may be withdrawn on the record during a hearing, and at any time before the Board promulgates a decision.  See 38 C.F.R. §§ 20.202, 20.204 (2011).  Withdrawal may be made by the Veteran or by his or her authorized representative.  See 38 C.F.R. § 20.204.  On the date of the June 2011 hearing, the Veteran withdrew from appeal the claim of entitlement to a TDIU.  Thus, there remains no allegation of errors of fact or law for appellate consideration with respect to this matter.  Accordingly, the Board does not have jurisdiction to review this claim, and it must be dismissed.


ORDER

The appeal as to the claim of entitlement to a TDIU is dismissed.  


REMAND

The Board's review of the claims file reveals that further action on the claim remaining on appeal is warranted.  

The Veteran's PTSD was most recently evaluated during a VA examination in November 2009.  The Veteran reported that he had four grown children, living on their own, and added that his oldest and youngest daughters lived with him.  He stated that he was in a three year relationship, and reported that his mental health symptoms had no impact on his relationships with his girlfriend and children.  In discussing his current symptoms, the Veteran described depressed mood, most often occurring when he thought of the loss of his mother and his marriage; recurrent images or thoughts, if triggered by war news or television shows; nightmares, occurring approximately every other night; flashbacks, occurring approximately every other day; and occasional anger and irritation, with no angry or violent acting out.  The Veteran further described avoidant and hyperarousal symptoms, and indicated that he had limited social contact outside of his family.  He further endorsed hypervigilance, but denied any auditory or visual hallucinations.  He also denied any panic attacks.  The Veteran's orientation, long-term memory, attention, and concentration were intact.  The examiner opined that the Veteran was able to be employed from a psychiatric standpoint, and noted that the Veteran was currently maintaining part-time employment.  

The Axis I diagnoses following examination were PTSD and alcohol abuse, in full sustained remission, secondary to PTSD.  The examiner commented that the Veteran had mild to moderate symptoms of PTSD.  She opined that the Veteran experienced occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks due to his Axis I diagnoses.  She further noted that the Veteran was not currently receiving mental health treatment.  The examiner commented that the Veteran's thought processes, communication, and social functioning were not impaired, although his employment was mildly impaired.  

In an April 2010 statement, the Veteran reported that he had been separated since January 2010.  

During the June 2011 hearing, the Veteran's representative indicated that, although he spent time with his family, the Veteran was limited to about 30 minutes with them before he could "just snap."  The Veteran testified that he was having more nightmares and panic attacks.  He indicated that he experienced approximately eight panic attacks a week, maybe more.  He added that any loud noise upset him and he often lost his temper.  The Veteran reported that he currently lived with his brother.  He further testified that he talked to his friends, although he could not spend much time with them, approximately 30 minutes or less.  

The Veteran is entitled to a new VA examination where there is evidence (including his statements) that the condition has worsened since the last examination.  Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); VAOPGCPREC 11-95 (1995).  The aforementioned statement and testimony suggest a worsening of the Veteran's PTSD since the November 2009 VA examination.  

Accordingly, to ensure that the record reflects the current severity of the Veteran's PTSD, the Board finds that a more contemporaneous examination, responsive to the pertinent rating criteria, is needed.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination) and Caffrey, 6 Vet. App. at 381 (an examination too remote for rating purposes cannot be considered contemporaneous).

Prior to arranging for the Veteran to undergo VA examination, the AMC/RO should obtain and associate with the claims file all outstanding pertinent records.

Notably, during the June 2011 hearing, the Veteran indicated that he was going to see a VA psychiatrist later that month.  On the date of the hearing, he submitted a VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs (VA)) for records of treatment for PTSD from the VA Pueblo Outpatient Clinic (OPC), dated later that month.  During the hearing, the undersigned granted a 60-day abeyance period so that additional VA treatment records could be obtained and associated with the claims file.  However, no additional VA treatment records have been associated with the claims file.  Additionally, an August 2010 supplemental statement of the case (SSOC) indicates that the RO considered VA treatment records from the Denver VA Medical Center (VAMC), dated from February 2008 to August 2010.  A handwritten note in the claims file reflects that records from the Compensation and Pension Record Interchange (CAPRI) were reviewed through the date of issuance of the SSOC, but were not printed.  

The most recent VA treatment records currently associated with the claims file are dated in July 2009.  As any records of VA treatment since July 2009, to particularly include any records of psychiatric treatment dated in June 2011, are potentially pertinent to the appeal and within the control of VA, they should be obtained and associated with the claims file.  Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  

Accordingly, the case is REMANDED for the following action:

1.  Obtain any records of evaluation and/or treatment, pertinent to the claim remaining on appeal, from the Denver VAMC, to include the Pueblo OPC, since July 2009.  All records and/or responses received should be associated with the claims file.

2.  After all available records have been associated with the claims file, arrange for the Veteran to undergo VA psychiatric examination (by a psychologist or psychiatrist).  

The entire claims file, to include a complete copy of the REMAND, must be made available to the examiner designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented medical history and assertions.  All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail.  

The psychologist or psychiatrist should render specific findings with respect to the existence and extent (or frequency, as appropriate) of:  memory loss; depressed mood; anxiety; panic attacks; sleep impairment; impaired judgment, speech, impulse control and/or thought processes; neglect of personal hygiene and appearance; suicidal ideation; and delusions and/or hallucinations.  The examiner should specifically address the level of social and occupational impairment attributable to the Veteran's PTSD.  The examiner should provide a multi-axial diagnosis, including assignment of a GAF scale score that represents the level of impairment due to the Veteran's PTSD, and an explanation of what the score means.  

The examiner should set forth all examination findings, along with a complete rationale for any conclusions reached, in a printed (typewritten) report.

3.  After ensuring that the development is complete, re-adjudicate the claim.  If not fully granted, issue a supplemental statement of the case before returning the claim to the Board, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).




______________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs