Citation Nr: 1619895 Decision Date: 05/17/16 Archive Date: 05/27/16 DOCKET NO. 09-35 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a skin condition. 3. Entitlement to service connection for a lumbar spine condition. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Sauter, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2008 and May 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran was provided a November 2015 hearing via video teleconference before the undersigned Veterans Law Judge. The issues of entitlement to a higher initial rating for PTSD and entitlement to service connection for a lumbar spine condition and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT 1. On November 12, 2015, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal is requested of the appeal for entitlement to service connection for a skin condition. CONCLUSION OF LAW 1. The criteria for withdrawal of an appeal by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Withdrawal 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2015).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. At the November 2015 Board hearing, the appellant provided formal notice that he wished to withdraw the appeal of service connection for a skin condition. Thus, the appellant has withdrawn the appeal and there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. ORDER The appeal of service connection for a skin condition is dismissed. REMAND A remand is required to provide the Veteran with new VA examinations to assess his back condition and his service-connected PTSD. At a May 2009 VA PTSD examination, the diagnosis was posttraumatic stress disorder secondary to the Veteran's traumatic experiences in service. PTSD symptoms include panic attacks, alcohol abuse, social and interpersonal isolation, and a history of work difficulties. The examiner remarked that, "the Veteran's PTSD symptoms are frequent, chronic and severe." At the November 2015 Board hearing, the Veteran testified that his PTSD has worsened, noting that he has not spoken to his children for several years, has outbursts directed at his wife a few times a week, and has difficulty with concentration and memory. In light of his testimony, a remand is required to afford the Veteran a contemporaneous medical examination. See e.g. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). The Veteran contends that his current back condition is related to service. Specifically, he provided a March 2015 statement describing an in-service incident in which he slipped and fell on his back. He contends that, despite being in considerable pain, he did not go to sick call because his platoon leader told him that he needed to work. At the November 2015 Board hearing, he noted that he was the only person in his platoon qualified to operate certain pieces of equipment, and did not feel like he could take time off to go to sick call. A VA treatment record of May 2015 indicates that the current back condition is likely due to a fracture from a fall. The record notes the Veteran's report of falling during service, and does not rule out the in-service fall as the cause of the current condition. Upon VA examination in August 2007, the diagnosis was degenerative joint disease of the lumbosacral spine with chronic pain. The examiner noted in a November 2007 addendum that the Veteran was seen twice for back pain during service and then noted the separation examination did not mention back problems and there was no evidence the Veteran was treated for low back pain in the years following service. The examiner concluded that, "it will be mere speculation on my part to make a connection of his, current back condition to a few presentations of back pain during his active duty status in the U.S. Army without resorting to mere speculation. Thus I can not resolve this issue without resorting to mere speculation." The Court held in Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) that in order to rely upon a statement that an opinion cannot be provided without resorting to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. Here, the examiner did not adequately explain the reason for why an opinion could not be rendered, nor is it evident based on a review of the record why speculation would be required. To the extent the examiner implies he cannot provide an opinion as there is an absence of evidence, he has not explained what facts and data he requires to render such an opinion. In doing so, the examiner should also note that the Court has held that the absence of evidence goes to the weight and credibility of the Veteran's statements and does not in and of itself render lay testimony incredible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Accordingly, this case must be remanded so that the examiner can either provide the requested opinion or state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA takes action to furnish a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Concerning the claim for TDIU, it is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16(b). Rating boards are to refer to the Director of the Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service- connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The Veteran initially filed a claim for service connection for his PTSD, among other disabilities in February 2007. The AOJ granted service connection for PTSD in a May 2009 rating decision and assigned a 30 percent evaluation. The Veteran timely appealed the rating and in his September 2009 notice of disagreement the Veteran reported he was no longer employed as of April 2009 and even when he was employed he was in a protected environment because of his trouble dealing with people. The record reflects the Veteran is service connected for hearing loss, rated as 20 percent from February 2007, 30 percent from June 2008 and 60 percent from June 2014; ischemic heart disease rated as 10 percent from March 2007, 30 percent from February 2020, 60 percent from September 2010, 100 percent from July 2015 and 60 percent from October 2015; PTSD, rated as 30 percent from February 2007; and tinnitus rated as 10 percent from February 2006. The combined rating was 50 percent from February 2007, 60 percent from March 2007, 70 percent from February 2010, 80 percent from September 2010; 90 percent from June 2014; 100 percent from July 2015 and 90 percent from October 2015. Thus, the record reflects the Veteran did not meet the schedular criteria of 38 C.F.R. § 4.16(a) for the entire period on appeal. As noted above, the claims for service connection for the lumbar spine and an increased rating for PTSD are being remanded and the outcome of those claims could impact the above ratings. As such the claim for TDIU is intertwined with the other claims and must be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). Furthermore, in the event the ratings remain as outlined above, review of the record reflects the AOJ has never considered the claim on an extraschedular basis. Where a claimant does not meet the schedular requirements of 38 C.F.R. § 4.16(a), the Board has no authority to assign a TDIU rating under 38 C.F.R. § 4.16(b) and may only refer the claim to the Director of Compensation for extraschedular consideration. See Bowling v. Principi, 15 Vet. App. 1 (2001). Therefore, this claim must be remanded for such referral for any period during which the Veteran does not meet the schedular criteria. Additionally, the Veteran has indicated at the November 2015 hearing that he is currently in receipt of Social Security benefits. These records are not in the claims file and should be obtained. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA is required to obtain SSA records when they may be relevant to the claim). Accordingly, the case is REMANDED for the following action: 1. Contact the Social Security Administration and attempt to obtain records relating to Social Security Disability benefits provided to the Veteran. If the records do not exist or further attempts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. After the above development has been completed, arrange for the Veteran to undergo a psychiatric examination with a VA psychiatrist or psychologist, if possible. The examiner should review the claims file and conduct an in-person examination of the Veteran, and provide a medical opinion as to the nature and severity of the Veteran's service-connected PTSD. 3. Schedule the Veteran for a VA spine examination. The examiner is requested to review the records and should specifically provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current back condition is related to service. The examiner is specifically asked to address the Veteran's March 2015 statement describing his in-service injury and the May 2015 VA treatment record suggesting that the current back condition was caused by a fall. The examiner is also asked to address the Veteran's competent report of continuous lower back pain even since the in-service injury. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. For any period during which the Veteran does not meet the schedular criteria, the Veteran's claim should be reviewed and forwarded to the Director of VA's Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis in accordance with 38 C.F.R. § 4.16(b) . 5. After completing the above, and any additional development deemed necessary, readjudicate the claim. If any benefit sought on appeal remains denied, the appellant should be provided with an appropriate time for response. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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 2014). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs