Citation Nr: 1800064	
Decision Date: 01/03/18    Archive Date: 01/19/18

DOCKET NO.  14-20 991	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for right shoulder strain.

2.  Entitlement to an initial rating in excess of 10 percent for left knee strain.

3.  Entitlement to an initial rating in excess of 10 percent for right knee strain.

4.  Entitlement to an initial rating in excess of 10 percent for degenerative disc disease/degenerative joint disease of the lumbar spine.

5.  Entitlement to an initial rating in excess of 10 percent for traumatic brain injury (TBI) (includes claims for slurred speech/stuttering, short term memory loss, dyslexia, and sleep disorder).

6.  Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD).

7.  Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU).
REPRESENTATION

Veteran represented by:	C. Kempton Letts, Attorney at Law


WITNESSES AT HEARING ON APPEAL

The Veteran, his wife, and his father


ATTORNEY FOR THE BOARD

M. Young, Counsel


INTRODUCTION

The Veteran had active military duty from January 2007 to January 2011.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.  Jurisdiction has since been transferred to the RO in Waco, Texas.  

In February 2011 VA PTSD and TBI examination reports, the Veteran reported that he had not worked since his discharge from service in January 2011.  In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans' Claims (Court) held that a TDIU claim is part of an increased disability rating claim when such claim is raised by the record.  As such, a claim for a TDIU has been raised and is considered on appeal.

In June 2017, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing.  A copy of the hearing transcript is associated with the Veteran's record and has been reviewed.  At the hearing, the Veteran waived initial RO consideration of any additional evidence submitted after the hearing.  

During his hearing, the Veteran discussed the matter of service connection for a left shoulder disorder.  This claim is not on appeal right now, and is referred back to the agency of original jurisdiction (AOJ) for appropriate action.  

The issues of an initial rating in excess of 10 percent for TBI and in excess of 30 percent for PTSD, and a TDIU are REMANDED to the AOJ.


FINDING OF FACT

On the record at a June 2017 videoconference hearing before the Board, and prior to the promulgation of a decision on the appeal in the matters, the Veteran expressed his desire to withdraw his appeal seeking higher initial ratings for right shoulder strain, left knee strain, right knee strain and degenerative disc disease (DDD)/degenerative joint disease (DJD) of the lumbar spine.


CONCLUSION OF LAW

The criteria for withdrawal of an appeal are met with respect to the claims of entitlement to initial ratings in excess of 10 percent each for right shoulder strain, left knee strain, right knee strain and DDD/DJD of the lumbar spine; the Board has no further jurisdiction in these matters.  38 U.S.C. §§ 7104, 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has jurisdiction in any matter which under 38 U.S.C. § 511(a) is subject to a decision by the Secretary.  38 U.S.C. § 7104.  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. § 7105(b)(5).  An appeal may be withdrawn as to any or all issues, at any time before the Board promulgates a decision in the matter.  38 C.F.R. § 20.204.  Withdrawal may be made by the Veteran or by his authorized representative, but must be in writing or on the record at a hearing.  38 C.F.R. § 20.204.

On the record at a June 2017 videoconference hearing before the undersigned, the Veteran expressed his desire to withdraw his appeal seeking higher initial ratings for right shoulder strain, left knee strain, right knee strain and DDD/DJD of the lumbar spine.  Consequently, there remains no allegation of error in fact or law for the Board to consider regarding those issues.  Accordingly, the Board does not have jurisdiction to consider an appeal in the matters, and the appeal in the matters must be dismissed.


ORDER

The appeal seeking entitlement to an initial rating in excess of 10 percent for right shoulder strain is dismissed.

The appeal seeking entitlement to an initial rating in excess of 10 percent for left knee strain is dismissed.

The appeal seeking entitlement to an initial rating in excess of 10 percent for right knee strain is dismissed.

The appeal seeking entitlement to an initial rating in excess of 10 percent for degenerative disc disease/degenerative joint disease of the lumbar spine is dismissed.





REMAND

Based on a review of the record, the Board finds that additional development is needed prior to adjudication of the matters of entitlement to an initial rating in excess of 10 percent for TBI and in excess of 30 percent for PTSD and to a TDIU.  The Veteran essentially asserts that his service-connected TBI and PTSD have worsened since the last VA examinations in February 2011.

The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  See VAOPGCPREC 11-95.  A new examination, however, is appropriate when there is an assertion of an increase in severity since the last examination.  See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95.  At the June 2017 hearing the Veteran testified, in essence, that symptoms associated with his service-connected TBI and PTSD have worsened since he was examined by VA in February 2011.  In light of the assertions that the Veteran's service-connected disabilities are more severe, and mindful that the examinations 6 years old, current examinations must be afforded to accurately assess the current level of these disabilities.  See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Snuffer, 10 Vet. App. at 403.

Also, any additional relevant VA treatment records should be obtained and associated with the Veteran's record.  See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992).

At the time of the February 2011 VA TBI and PTSD examinations, the Veteran had been unemployed since his discharge from the military in January 2011.  He noted he was taking a hiatus to adjust to civilian life.  A TDIU claim is part of an increased rating claim when such claim is raised by the record.  Rice, 22 Vet. App. 447.  In this case, the issue of entitlement to a TDIU rating has been raised by the record and is inextricably intertwined with the issues being remanded in this case.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation).

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should secure for association with the record all outstanding records of VA treatment the Veteran has received for TBI and PTSD from July 2014 to the present.

2.  After the above has been completed to the extent possible, the AOJ should arrange for the Veteran to be examined by a psychiatrist or psychologist to assess the current severity of his PTSD.  The Veteran's record should be reviewed by the examiner.  All appropriate tests and studies should be conducted, and the results reported in detail.  The report should detail all subjective complaints and objective symptoms.  In addition to objective test results, the examiner should fully describe the practical effects caused by the Veteran's PTSD, including the effect of his disability on his occupational and daily functioning.  The examiner should include a rationale with all opinions.

3.  After the above has been completed to the extent possible, the AOJ should arrange for the Veteran to be examined by a neurologist to assess the current severity of his TBI residuals, as separate from his PTSD symptoms, to the extent feasible.  The entire record must be reviewed by the examiner in conjunction with the examination.  All appropriate tests and studies should be conducted, and the results reported in detail.  The examiner should comment on any restrictions on occupational and daily activity functions due to the TBI residuals.  The examiner should include a rationale with all opinions. 

4.  After completing the requested actions, the RO should readjudicate the issues in light of all evidence of record, to include the claim of entitlement to a TDIU.  If any benefit sought on appeal remains denied, the RO must furnish the Veteran and his attorney a supplemental statement of the case and afford a reasonable opportunity for response before returning the case to the Board.

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

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs