Citation Nr: 1604845 Decision Date: 02/09/16 Archive Date: 02/18/16 DOCKET NO. 13-24 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an evaluation higher than 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to an evaluation higher than 10 percent for bilateral hearing loss. 3. Entitlement to service connection for a gastrointestinal disorder. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability. REPRESENTATION Veteran represented by: Donald A. Donati, Esq. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to April 1970, to include in Vietnam. This case is before the Board of Veterans' Appeals (Board) from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. A Travel Board hearing was held November 2015, and further evidence was provided with waiver of Agency of Original Jurisdiction (AOJ) consideration. Claims for increase for hearing loss and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. At the hearing the Veteran through his authorized representative requested withdrawal of the claim for service connection for gastrointestinal disorder. 2. From May 31, 2011 to November 18, 2015, the Veteran's PTSD involved occupational and social impairment with reduced reliability and productivity, and from November 19, 2015 this worsened to occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran (or his or her authorized representative), on the claim of service connection for a gastrointestinal disorder, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 2. The criteria are met for a 50 percent evaluation for PTSD from May 31, 2011 to November 18, 2015, and for 70 percent since November 19, 2015. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim Withdrawn on Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). 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. § 20.204 (2015). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran, through his authorized representative, has withdrawn the claim of entitlement to service connection for a gastrointestinal disorder, and there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the claim it is dismissed. Claim Decided for Increased Rating for PTSD The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014) provides VA's duties to notify and assist a claimant with development of a claim for compensation. See also, 38 C.F.R. §§ 3.102, 3.159 and 3.326 (2015). VCAA notice must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. The Veteran has been provided satisfactory and timely VCAA notice in advance of the rating decision on appeal. VA's duty to assist has been fulfilled through obtaining medical records, along with VA examination. The Veteran provided a private psychological evaluation report and layperson statements. The Veteran testified at a Board hearing, during which he received proper assistance in developing the claim. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). There is sufficient basis upon which to issue a decision. Disability evaluations are determined by applying the VA rating schedule, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated under criteria identified by Diagnostic Codes. PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula for Mental Disorders. A 30 percent rating applies to 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term 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. A70 percent is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessed rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A100 percent rating is warranted for total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. These symptoms are not exclusive, but provide guidance on the levels of ratable mental disorder. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Veteran filed his claim for increased rating for PTSD in May 2011. Effective November 19, 2015, the Board grants the increased rating of 70 percent, this based on private psychologist's report Dr. W.L.F. The Veteran showed a depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, memory impairment, difficulty understanding complex commands, disturbances of motivation and mood. Specifically applicable to the criteria for 70 percent, the Veteran had inability to establish and maintain effective relationships, difficulty adapting to stressful circumstances (including work), and intermittent inability to perform activities of daily living (minimal personal hygiene included). The more detailed client interview clarified that the Veteran appeared capable of daily life activities, but still had significant and continuous social limitation brought upon by intrusive memories of his combat service in Vietnam. At times he would be distracted for hours. He felt a sense of estrangement from others recently, besides those he had met in treatment. There were depressive episodes that sometimes lasted for days. Occupational impairment was estimated as marked. The Veteran's substance abuse also had required episodes of hospitalization over the years, and the Board notes that at least one prior examiner attributed his substance abuse to already service-connected PTSD. Lay statements from the Veteran's spouse and sister provide corroboration of much of the above. On the whole, the Board finds the Veteran had occupational and social impairment with deficiencies in most areas from November 19, 2015, and a 70 percent rating is granted from that date. For the period before November 19, 2015, a 50 percent rating is granted. May 2013 VA examination indicated symptoms of depressed mood, suspiciousness, chronic sleep impairment, flattened affect, impaired judgment, disturbances in motivation and mood, difficulty in adapting to stressful circumstances including work or worklike setting, and inability to establish and maintain effective relationships. While the last two symptoms are often associated with a 70 percent rating, the VA examiner elsewhere noted the Veteran had effective relationships with member of his family and others, and was independent in activities of daily living, going to medical appointments and paying all of his expenses on time. It is not also directly shown that difficulty in maintaining employment reached the level of severe disability, outside of concentration difficulties and mood disturbance. These symptoms do not to rise to the level of severity suggested by the next higher 70 percent rating. Also, there are several VA outpatient evaluations, over the next two years on which the Veteran had a more or less normal mental health evaluation and his condition was stable. The Board acknowledges symptoms mostly displayed on the 2013 examination, of depressed affect and social avoidance, are sufficient for the assignment of a 50 percent evaluation. Thus a 50 percent rating is warranted from May 31, 2011 through November 18, 2015. The criteria for a 100 rating have not been met at any point, as the Veteran does not have total occupational and social impairment due to service-connected PTSD, without any symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; persistent danger of hurting self or others; inability intermittently to perform activities of daily living; or similar impairment. The Board has also considered an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). The evidence in this case does not show such an exceptional disability picture. Comparison between the Veteran's current rating and the criteria found in the rating schedule shows that the rating criteria reasonably describe disability level and symptomatology. The Veteran and representative have not identified any symptoms not recognized by the rating criteria, or alleged that the rating criteria are inadequate. Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. In this case, however, even after applying the doctrine of reasonable doubt, there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. The requirements for an extra schedular evaluation for service-connected disability under 38 C.F.R. § 3.321(b)(1) have not been met. ORDER A 50 percent rating is granted for PTSD from May 31, 2011 to November 18, 2015, subject to applicable law. A 70 percent rating is granted for PTSD effective November 19, 2015, subject to applicable law. The claim on appeal for service connection for a gastrointestinal disorder is dismissed. REMAND The Veteran alleges his hearing loss has worsened since he was last examined in 2013, and so a more recent evaluation will be scheduled. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998). Pending outcome of this claim, the TDIU can be resolved. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, these claims are REMANDED for the following action: 1. Obtain the Veteran's most recent VA outpatient records, and associate them with the Veterans Benefits Management System (VBMS) electronic file. 2. Schedule the Veteran for a VA audiological examination for his bilateral hearing loss. The VBMS and Virtual VA electronic claims files must be made available for the examiner to review, and the examiner should confirm this review was completed. All required tests and studies must be accomplished and all clinical findings reported in detail. Appropriate testing should include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. The examiner should specifically report the auditory thresholds in the frequencies 500, 1000, 2000, 3000, and 4000 Hertz for both ears. The examiner should further comment on the effects of the Veteran's hearing loss on occupational functioning and daily activities. 3. Schedule the Veteran for a VA general medical examination for purpose of his TDIU claim. The VBMS and Virtual VA electronic claims files must be made available for the examiner to review, and the examiner should confirm this review was completed. The examiner is then requested to provide an opinion as to whether the Veteran is incapable of securing and maintaining substantially gainful employment due to the severity of his service-connected disabilities. In providing the requested determination, the examiner must consider the degree of interference with ordinary activities, including capacity for employment, caused solely by the Veteran's service-connected disabilities, as distinguished from any nonservice-connected physical or mental condition. The requested opinion must also take into consideration the relevant employment history and educational history. Also note review of the prior opinion on employability from November 2008 VA examination. If an opinion cannot be rendered without resorting to pure speculation, please explain why this is not possible. 4. Review the claims file. If any directive specified in this remand has not been implemented, take proper corrective action before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 5. Then readjudicate the claims on appeal based upon all additional evidence received. If any benefit sought on appeal is not granted in full, the Veteran and his attorney should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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 claim must be afforded expeditious treatment. The law requires that all claims that is 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 2014). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs