Citation Nr: 1801329 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 11-23 838A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to a rating higher than 50 percent for PTSD prior to December 12, 2014. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD A. Gibson INTRODUCTION The Veteran served on active duty from January 1968 to January 1970. This appeal to the Board of Veterans' Appeals (Board) is from April 2010 and February 2011 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In August 2013, the Board remanded these issues for additional development. In this decision, the Board is dismissing the Veteran's claim for hearing loss, and granting a 100 percent rating for PTSD effective from January 5, 2009. FINDINGS OF FACT 1. In October and December 2017, the Veteran filed statements indicating his desire to withdraw his claim for service connection for hearing loss. 2. It is factually ascertainable that the Veteran's PTSD manifested with total social and occupational impairment since January 5, 2009. CONCLUSIONS OF LAW 1. The criteria are met for a withdrawal of his claim for service connection for hearing loss. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. § 20.204 (2016). 2. The criteria are met for a 100 percent rating for PTSD effective from January 5, 2009. 38 U.S.C. §§ 1155 (West 2014); 38 C.F.R. §§ 3.321, 3.400, 4.1, 4.3, 4.7, 4.126-4.130, DC 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of claims A withdrawal of an appeal must be made in writing and include the name of the claimant, the claim number, and a statement that the appeal is being withdrawn. The statement must be received by the Board prior to issuance of a decision regarding the claim or claims being withdrawn. 38 C.F.R. § 20.204(b). In October and December 2017, the Veteran filed statements that indicated he wished to withdrawal his claim for service connection for hearing loss. His statements complied with the requirements of Section 20.204(b). As the Board had not yet issued a decision concerning this claim upon receipt of the statement, the criteria are met for withdrawal of the appeal. See id. When a pending appeal is withdrawn, there is no longer an allegation of error of fact or law with respect to the determination that had been previously appealed. Consequently, dismissal of the pending appeal is the appropriate disposition. 38 U.S.C. § 7105(d). Accordingly, further action by the Board concerning this claim is unwarranted, and the appeal is dismissed. Id. Increased rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's PTSD is currently rated as 100 percent effective from December 12, 2014. 38 C.F.R. § 4.130, DC 9411. Prior to that, his rating is 50 percent. He argues that he is entitled to 100 percent for the entire period on appeal. A 100 percent evaluation requires 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; and, memory loss for names of close relatives, own occupation, or own name. Id. After review of the record, and in resolving all doubt in the Veteran's favor, the Board finds that his 100 percent should be effective from January 5, 2009. This is the date at which it is factually ascertainable that the Veteran's PTSD had increased in severity, within the one-year period preceding the receipt of his claim for an increased rating (on December 23, 2009). See 38 C.F.R. § 3.400(o). Indeed, on January 5, 2009, his GAF was assessed at 41, significantly lower than it had been at the previous August 2008 VA examination, when it was assessed as 60. In January 2010, he was noted to have intrusive memories and thoughts "all the time," depression, and that he frequently thought of suicide. He was also noted to have had violent road rage incidents, including punching out windows and trying to pull someone off of a bus. He also reported that his energy had gone down in the previous year, as well as his interest in outside activities, causing him to stop participating in community activities that he had previously enjoyed. It was noted that he had gotten into shoving matches with strangers at a concert and at a restaurant, which he was only able to get away from because his friends were able to assist. The examiner found that his judgment was poor and clearly vulnerable to stress. Aside from his frequent anger, he also showed emotional lability, frequently breaking down into tears. The record shows multiple panic attacks on a weekly basis. In September 2011, his GAF had returned to 41, and his therapist found him unemployable. In February 2013, his GAF was assessed at 35. That examiner found him to be totally occupationally impaired, and extremely impaired when managing social interactions. Although the record shows that he has been married for over 40 years and that his family is supportive, he has difficulty spending any time with people and prefers to be by himself. The Veteran's symptoms more closely approximate the criteria for a 100 percent rating, which is granted. ORDER The claim of entitlement to service connection for hearing loss is dismissed. A 100 percent rating is granted for PTSD effective from January 5, 2009. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs