Citation Nr: 18142806 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 15-32 416 DATE: October 16, 2018 ORDER An initial rating of 50 percent for posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing the payment of monetary awards. The appeal of the issue of a total disability rating for compensation based on individual unemployability (TDIU) is dismissed. REMANDED An initial rating in excess of 50 percent for PTSD is remanded. An initial compensable rating for left ear hearing loss is remanded. Service connection for right ear hearing loss is remanded. Service connection for a left knee disorder is remanded.   FINDINGS OF FACT 1. The Veteran’s PTSD has been productive of at least occupational and social impairment with reduced reliability and productivity. 2. During the May 2018 Board hearing, prior to the promulgation of a Board decision, the Veteran requested withdrawal of the appeal of the issue of entitlement to a TDIU. CONCLUSIONS OF LAW 1. The criteria for at least an initial 50 percent rating for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. 2. The criteria for withdrawal of the appeal of the issue of a TDIU have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to September 1970. He had additional service in the National Guard. The case is on appeal from an August 2013 rating decision. In May 2018, the Veteran testified at a Board hearing. 1. A TDIU. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn by the Veteran or representative on the record at a hearing, or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. In the May 2018 Board hearing, the Veteran indicated, and his representative confirmed, that he is withdrawing his appeal of the issue of a TDIU. The Board finds that the withdrawal of the appeal is “explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). The withdrawal of the TDIU appeal during the May 2018 hearing is an express statement made by the Veteran which clearly states such claim is withdrawn. Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to this appeal. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. 2. An initial rating in excess of 30 percent for PTSD. The Veteran’s service connection claim for PTSD was initially granted in the August 2013 rating decision and he was awarded a 30 percent rating. Thereafter, he filed an October 2013 notice of disagreement in which he indicated the assigned rating is inadequate based on the severity of his psychiatric symptoms. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Under 38 C.F.R. § 4.130, DC 9411, a 30 percent rating is assigned for PTSD for 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 rating is assigned when there is 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- 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; and difficulty in establishing and maintaining effective work and social relationships. Analysis The Veteran was afforded an August 2013 VA examination in which he was diagnosed with PTSD. The examiner indicated the Veteran’s PTSD approximates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. She stated the Veteran suffers symptoms of sleep trouble, including difficulty falling or staying asleep, avoidance, markedly diminished interest, irritability or anger, hypervigilance and exaggerated startle response. She further noted psychiatric symptoms of depression, anxiety, mild memory loss and disturbance of motivation and mood. Additionally, a July 2014 medical opinion was received. The examiner indicated the Veteran experiences PTSD symptoms, including hypervigilance, irritability, nightmares, flashbacks, startle reflex, avoidance, emotional numbing, anger and bouts of depression. Based on the above evidence, the Board finds that at least a 50 percent rating for PTSD is warranted. The August 2013 VA examination, along with the July 2014 psychiatric medical opinion, support at least moderate PTSD symptoms, which are more severe than the current 30 percent rating. The Veteran’s symptoms of sleep impairment, avoidance, anxiety, depression, hypervigilance and anger problems are suggestive of at least a 50 percent rating. Thus, the Board finds his PTSD symptoms at least manifest to the level of a 50 percent rating for occupational and social impairment with reduced reliability and productivity, under DC 9411. The Board is proceeding with this intermediary grant of benefits to the Veteran. In the remand portion of the decision, the issue of entitlement to an initial rating in excess of 50 percent for PTSD is addressed. The Veteran is not prejudiced by this action as it is a grant of benefits without any denial of greater benefits. The PTSD issue, as well as the remaining three issues, will be addressed further in the remand section. REASONS FOR REMAND 1. An initial rating in excess of 50 percent for PTSD. Since the August 2013 VA examination, evidence has been received suggesting a possible worsening of the Veteran’s service-connected PTSD. At the May 2018 Board hearing, the Veteran testified that his PTSD has worsened, with worsening sleep problems, including nightmares about his service in Vietnam, as well as flashbacks. He also stated he has increased isolation and is socially impaired. The most recent VA psychiatric examination was more than five years ago and there is an indication of worsening in the Veteran’s PTSD symptoms since that time. As such, a new VA psychiatric examination is warranted to determine the current nature and severity of his psychiatric disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).   2. Service connection for right ear hearing loss. 3. An initial compensable rating for left ear hearing loss. The Board initially points out that the Veteran served in combat during his service in Vietnam and was exposed to significant hazardous noise. As such, the Board finds in-service noise exposure is established as it is consistent with the conditions, circumstances and hardships of his combat service. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Additionally, the August 2013 rating decision granted service connection for left ear hearing loss and assigned a noncompensable rating. Service connection for right ear hearing loss was denied, as the July 2013 VA examiner found the audiology results did not support current hearing loss in the right ear under 38 C.F.R. § 3.385. The Board notes during the Veteran’s May 2018 hearing, he testified his hearing has worsened in both ears. He stated he has difficulty hearing others speaking to him, including his family. Therefore, with regard to the Veteran’s service-connected left ear hearing loss, it has been over five years since the July 2013 VA examination and he has asserted his hearing loss has increased in severity since that time. Thus, a VA examination is required to determine the current severity of his left ear hearing loss. With regard to the right ear hearing loss claim, an additional VA examination is required to determine if the Veteran currently suffers right ear hearing loss. As noted, in-service noise exposure has been established. 4. Service connection for left knee disorder. The Veteran contends that he initially injured his left knee during service and that the injury led to his current left knee disorder. During the May 2018 hearing, he indicated that while serving as a medic in an infantry unit in Vietnam, he was riding in a Chinook that was shot down. He reported “getting tossed around” and injuring his left knee. He stated he went to Da Nang hospital for treatment and his knee was wrapped up due to the swelling. He asserted it was not documented as there were not enough medics and his service was required back in the field. The Veteran was afforded an August 2013 VA examination in which the examiner diagnosed him with decreased muscle strength in the left knee and medial meniscus tear, status post-arthroscopic partial medial meniscectomy in April 1997. She stated the Veteran’s left knee causes pain every day, as well as popping, locking and giving out. She indicated the Veteran’s record does not show a left knee injury during service. However, the examiner provided no further nexus rationale for the left knee disorder. Therefore, the Board finds that while the Veteran’s service treatment records are silent for left knee injury or treatment, an additional VA examination is required to determine the nature and etiology of any current left knee disorder. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and severity of his service-connected PTSD. 2. Schedule the Veteran for a VA audiological examination to determine the current severity of his left ear hearing loss and the nature and etiology of any right ear hearing loss found. The examiner should conduct appropriate testing to determine the level of hearing impairment in both ears. The examiner should determine whether current right ear hearing loss is supported under 38 C.F.R. § 3.385. If so, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that any identified right ear hearing loss is related to service, to include the Veteran’s established in-service exposure to hazardous noise. 3. Schedule a VA examination by an appropriate medical professional to determine the nature and etiology of his left knee disorder. The examiner should identify any current left knee diagnosis. The examiner should opine whether it is at least as likely as not (50 percent probability or greater) that a current left knee disorder had its onset during, or is otherwise causally related to, service. The Veteran’s May 2018 hearing testimony should be considered as well as his combat service. A complete rationale should be provided for any opinions reached. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel