Citation Nr: 1303976 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 10-37 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for carpal tunnel syndrome. 2. Entitlement to an initial evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had active service from April 1986 to April 2006. This matter comes before the Board of Veterans Appeals (Board) following the October 2007 and July 2008 rating actions of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The October 2007 rating action granted service connection for PTSD, evaluating it as 50 percent disabling, effective May 1, 2006, and the July 2008 rating action denied service connection for carpal tunnel syndrome. The Board notes that the July 2008 rating decision also denied service connection for closed head injury with fluid on brain, hand tremors and loss of sense of smell, and in his July 2008 Notice of Disagreement (NOD), the Veteran initiated an appeal of the denial of service connection for this issue. The Veteran also filed an NOD in November 2008 in connection to the October 2008 rating action that denied service connection for migraines. However, before either matter was certified to the Board, and specifically in a July 2010 rating action, a Decision Review Officer (DRO) combined these issues and granted service connection for traumatic brain injury with noncommunicating hydrocephalus, headaches, cognitive impairment and balance/gait disorder (previously claimed as closed head injury with fluid on brain, hand tremors, migraines, loss of time and loss of sense of smell), evaluating it as 10 percent disabling from March 31, 2008 to October 22, 2008, and 70 percent disabling from October 23, 2008. The Board finds that this grant of service connection constitutes a full award of the benefits sought on appeal with respect to the above-referenced issues. See Grantham v. Brown, 114 F. 3d 156, 1158 (Fed. Cir. 1997). The record on appeal contains no indication that the Veteran has appealed the downstream elements of effective date or initial rating for these disabilities; thus, these matters are no longer in appellate status. During the current appeal, and specifically in October 2011, the Veteran and his wife testified at a videoconference hearing conducted before the undersigned Veterans Law Judge (VLJ), who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107 (c) (West 2002 & Supp. 2011). A transcript of the testimony has been associated with the Veteran's claims file. (The issue of entitlement to an initial increased rating in excess of 50 percent for service-connected PTSD is addressed in the remand that follows the decision below.) FINDING OF FACT Prior to the promulgation of a decision on appeal, the RO received notification from the Veteran to the effect that he no longer intended to appeal his claim of service connection for carpal tunnel syndrome. CONCLUSION OF LAW The criteria for withdrawal of an appeal of the claim of service connection for carpal tunnel syndrome have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION A veteran may withdraw his appeal in writing at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204 (2012). When a veteran does so, the withdrawal effectively creates a situation in which an allegation of error of fact or law no longer exists. In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. §§ 20.101, 20.202 (2012). As previously noted, a July 2008 rating decision denied service connection for carpal tunnel syndrome. In his July 2008 NOD, the Veteran disagreed with the RO's denial of his claim, and in November 2008, he perfected a timely appeal with respect to this issue and requested a hearing before a Veterans Law Judge either through videoconference or at the RO. Thereafter, in statement received at the RO on March 8, 2010, the Veteran expressed his desire to withdraw from appellate review his appeal for service connection for carpal tunnel syndrome. In view of the Veteran's expressed desire, the Board concludes that further action with regard to his claim of entitlement to service connection for carpal tunnel syndrome, is not appropriate. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. § 20.204 (2011). The Board does not have jurisdiction over this withdrawn issue and, as such, must dismiss the appeal of this claim. See 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2012). ORDER The appeal of a claim of service connection for carpal tunnel syndrome is dismissed. REMAND The Veteran is service connected for PTSD, which is currently evaluated as 50 percent disabling. After a complete and thorough review of the claims folders, the Board finds that a remand of the Veteran's claim for a higher rating for his service-connected PTSD is required. Specifically, further development of the record is required. At a September 2008 VA psychiatric examination, the Veteran described a worsening in the severity of his PTSD symptoms and reported that he had recently been fired from his job as a safety director at a local factory because he was considered "too unreliable" to remain employed in that position. According to the Veteran, he and his wife of more than twenty years were experiencing a difficult time in their marriage due to her fear of him. The Veteran also described the degree and quality of his social relationships as "terrible" and stated that he only socialized with immediate family members. The Veteran described his activities and leisure pursuits as fairly limited and stated that he spent of the majority of his time "walking the parameter of his property, making sure that there are no intruders." Upon conducting a mental evaluation of the Veteran, the VA examiner noted that the Veteran's thought processes "demonstrated a rapid rate of flow and a tendency towards perseveration towards his experiences in Iraq and the loss of his brother." The VA examiner also noted that while the Veteran occasionally experienced impairment of his thought processes and communications, his thought content was essentially appropriate and he did not experience any overt delusions or hallucinations. The VA examiner further noted that while the Veteran continued to have suicidal and homicidal thoughts and ideations, he denied any plans or intent. According to the VA examiner, the Veteran's PTSD symptoms had worsened in some areas, and the Veteran continued to demonstrate significant avoidance behaviors, emotional numbness, a heightened physiological arousal, and occasional associated features such as disillusionment and demoralization. Based on his discussion with, as well as his evaluation of, the Veteran, the VA examiner diagnosed the Veteran with chronic PTSD and assigned him a Global Assessment of Function (GAF) score of 39. The Veteran's more recent VA treatment records reflect ongoing treatment for PTSD and varying GAF scores ranging between 41 to 50. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) [the GAF scale reflects the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness, and a GAF score ranging from 41 to 50 reflects more serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)]. While a majority of these treatment records reflect his continual struggle in dealing with, and attempting to alleviate, his psychiatric symptoms, a few of the records show that he ventured on a few social outings with his son, taking him out to lunch and to meet members of the Steelers football team. See VA treatment records dated October 2008 and March 2010. During his October 2011 videoconference hearing, the Veteran described symptoms of irritability and impaired sleep, and stated that he feels the "safest" when he is inside his home. According to the Veteran, his main priority is keeping his family members safe, and he constantly worries that something bad will happen to them when they leave the house. The Veteran's wife testified that the Veteran attempts to barricade the house so nobody can enter, and he spends his nights patrolling the perimeter of the house. See October 2011 Hearing Transcript, pp. 9-12. According to the Veteran, he continued to receive treatment for his psychiatric symptoms with his VA social worker on a bi-monthly basis. See Hearing Transcript, p. 8. Further review of the claims file reveals that the Veteran has not been afforded another VA psychiatric examination since the September 2008 evaluation, over four years ago. The duty to assist includes providing a thorough and contemporaneous examination, especially where it is necessary to determine the current level of a disability. See Peters v. Brown, 6 Vet. App. 540, 542 (1994). As it has been over four years since the Veteran's last VA examination and the Board is precluded from reading its own unsubstantiated medical conclusions and is instead bound by the medical evidence of record on these matters, further development is required. See Jones v. Principi, 16 Vet. App. 219, 225 (2002), citing Smith v. Brown, 8 Vet. App. 546, 553 (1996) (en banc); Colvin v. Derwinski, 1 Vet. App. 171 (1991). In addition, on remand, an effort should be made to obtain any records pertaining to ongoing psychiatric treatment the Veteran has received that are not already on file. 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. Request records of relevant psychiatric treatment provided by the Veteran's social worker, J.Grove, at the VA Medical Center (VAMC) in Altoona, Pennsylvania, since July 2010. Copies of such records which are available should be associated with the claims folder. 2. Thereafter, make arrangements with the appropriate VA medical facility for the Veteran to be afforded a psychiatric examination to determine the current extent of his service-connected PTSD. The claims file, including a copy of this remand, must be made available to the examiner for review. The examiner should identify the nature, frequency, and severity of all current manifestations of PTSD. The examiner should also assign a GAF score and provide an explanation of the assigned score. Also, the examiner should specifically comment on the impact of the Veteran's PTSD upon his social and industrial activities. A rationale for all opinions expressed must be provided. 3. The agency of original jurisdiction should ensure that all requested development is completed. Thereafter, re-adjudicate the issue on appeal. If a benefit sought is not granted, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2011). The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans' Claims (Court) 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). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs