Citation Nr: 18156494 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 15-28 912 DATE: December 11, 2018 ORDER The appeal seeking entitlement to an initial compensable rating for allergic rhinitis is dismissed. The appeal seeking entitlement to an initial compensable rating for hypertension is dismissed. The appeal seeking entitlement to an initial compensable rating for erectile dysfunction is dismissed. The appeal seeking entitlement to an initial rating higher than 10 percent for glaucoma is dismissed. The appeal seeking entitlement to an initial rating higher than 10 percent for left volar wrist residual scar of excision of dermatofibroma is dismissed. The appeal seeking entitlement to an initial rating higher than 30 percent for sinusitis is dismissed. For the initial period on appeal from January 1, 2011, through March 20, 2011, a 70 percent rating for dysthymic disorder with PTSD is granted. From August 1, 2011, through September 16, 2012, a 70 percent rating for dysthymic disorder with PTSD is granted. From November 1, 2012, forward, a 70 percent rating for dysthymic disorder with PTSD is granted. REMANDED Entitlement to an initial rating higher than 10 percent for gastroesophageal reflux disorder (GERD) is remanded. Entitlement to a total disability rating based in individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. During the November 2018 Board hearing and prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal seeking entitlement to initial increased ratings for allergic rhinitis; hypertension; erectile dysfunction; glaucoma; left wrist scar residual; and sinusitis. 2. For the initial period on appeal through March 20, 2011, the Veteran’s PTSD has resulted in symptoms, to include suicidal ideation and inability to establish and maintain effective relationships, that approximate occupational and social impairment with deficiencies in most areas. 3. From March 21, 2011 through July 31, 2011, the Veteran was in receipt of a temporary total rating for his service-connected dysthymic disorder with PTSD. 4. For the period on appeal from August 1, 2011 through September 16, 2012, the Veteran’s dysthymic disorder with PTSD has resulted in symptoms that approximate occupational and social impairment with deficiencies in most areas. 5. From September 17, 2012 through October 31, 2012, the Veteran was in receipt of a temporary total rating for his service-connected dysthymic disorder with PTSD. 6. For the period on appeal from November 1, 2012, forward, the Veteran’s dysthymic disorder with PTSD has resulted in symptoms that approximate occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran seeking entitlement to an initial compensable rating for allergic rhinitis are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of an appeal by the Veteran seeking entitlement to an initial compensable rating for hypertension are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of an appeal by the Veteran seeking entitlement to an initial compensable rating for erectile dysfunction are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 4. The criteria for withdrawal of an appeal by the Veteran seeking entitlement to an initial rating higher than 10 percent for glaucoma are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 5. The criteria for withdrawal of an appeal by the Veteran seeking entitlement to an initial rating higher than 10 percent for residual of a left wrist scar are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 6. The criteria for withdrawal of an appeal by the Veteran seeking entitlement to an initial rating higher than 30 percent for sinusitis are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 7. Resolving any reasonable doubt in the Veteran’s favor, for the initial period on appeal, from January 1, 2011 through March 20, 2011, the criteria for disability rating of 70 percent, but no higher, for dysthymic disorder with PTSD are approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). 8. For the period on appeal from August 1, 2011 through September 16, 2012, the criteria for disability rating of 70 percent, but no higher, for dysthymic disorder with PTSD are approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, DC 9411 (2017). 9. For the period on appeal from November 1, 2012, forward, the criteria for disability rating of 70 percent, but no higher, for dysthymic disorder with PTSD are approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, DC 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1993 to December 2010. In November 2018, the Veteran testified before the undersigned Veterans Law Judge via videoconference. This decision is being processed under the “one-touch” program. A transcript of the hearing will be associated with the claims file at a later time. Dismissal 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 (2012). 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 (2017). 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, during his November 2018 hearing, has withdrawn his appeal seeking entitlement to initial increased ratings for allergic rhinitis; hypertension; erectile dysfunction; glaucoma; left wrist scar residual; and, sinusitis, hence, with regards to these issues, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues and the appeal with regard to these issues only is dismissed. Increased Rating for PTSD The criteria for rating psychiatric disabilities, other than eating disorders, are set forth in the General Rating Formula (General Rating Formula) for Mental Disorders. See 38 C.F.R. § 4.130. For the initial period on appeal from January 1, 2011 through March 20, 2011, from August 1, 2011 through September 16, 2012, and from November 1, 2012, forward, the RO has rated the Veteran’s dysthymic disorder with PTSD as 50 percent disabling under the General Rating Formula. From March 21, 2011 through July 31, 2011 and from September 17, 2012 through October 31, 2012, he is in receipt of a temporary total (100 percent). Under the General Rating Formula, a 50 percent rating 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- 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. Id. A 70 percent rating is warranted if the evidence establishes there is 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; obsessional 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); and/or inability to establish and maintain effective relationships. Id. A 100 percent rating (total occupational and social impairment) is warranted 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. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Board recognizes that the Court in Mauerhan, 16 Vet. App. 436, stated that the symptoms listed in VA’s general Rating Formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating; however, the Court further indicated that, without those examples, differentiating between rating evaluations would be extremely ambiguous. Rating Analysis In a March 2011statement in support of claim, the Veteran stated that he could not sleep at night due to constant nightmares, during which he heard voices of the Marines. He further indicated that hot weather made him relive the time he was in Iraq. He felt very insecure in large crowds, and got “jumpy” from loud noises. He also reported that he self-medicated with alcohol since his return from Iraq. Lastly, he reported having spent two weeks in a VA inpatient psychiatric clinic. VA treatment records dated in March 2011 reflect that the Veteran was diagnosed with PTSD manifested by symptoms such as of withdrawal, isolation, suicidal ideation, and depressed mood. In 2011, he was hospitalized for seven days due to his PTSD symptoms and alcohol dependence. As previously noted, the Veteran is in receipt of 100 percent rating from March 21, 2011 through July 31, 2011, and a higher schedular rating is not possible. However, the Board finds that the evidence showed that the symptoms leading to this period of hospitalization included social isolation and suicidal ideation. Given this, the Board finds that these symptoms more nearly approximate a 70 percent disability rating. Notably, the Veteran underwent a VA examination in May 2011, the examiner determined that the Veteran’s PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks, although generally, he was functioning satisfactorily with routine behavior, self-esteem, and normal conversations. Nevertheless, the examiner specifically identified psychiatric symptoms that were also present prior to the hospitalization, to include a depressed mood; anxiety; suspiciousness; chronic sleep impairment; difficulty establishing and maintaining work, school, and social relationships; difficulty in maintaining his family role functioning; intermittent inability to perform recreational or leisurely pursuits; poor motivation; detachment and estrangement from others; less interest in activities; low-grade depressive phenomena, which affected energy, interest, and interactions with others to the extent whereby he became withdrawn; and renouncement of many of his former hobbies. Moreover, the examiner stated, “The caveat to this answer [regarding the level of impairment] is that he is treated with medication in that, but for he is currently on medications, he would likely demonstrate a far lower level of psychosocial functioning than ascribed.” Therefore, the Board finds that these symptoms collectively, to include suicidal ideation, more nearly approximate a 70 percent disability rating for the initial period on appeal from January 1, 2011, through March 20, 2011. The Board additionally finds that the Veteran’s PTSD symptoms were not improved for the periods on appeal from August 1, 2011 through September 16, 2012 and from November 1, 2012, forward. As such, the Board finds that a 70 percent rating is warranted for these periods on appeal. During a January 2014 DRO hearing, the Veteran testified that his symptoms did not improve by medication. He continued to suffer from daily nightmares, which he described as hearing marines screaming. He further reported having panic attacks that occurred daily, where he felt anxious and needed to stop what he was doing. He stated that these panic attacks lasted approximately ten minutes and despite his ritual of trying to stop and say a prayer, he was only able to “keep it at bay” but the symptoms did not disappear. He further testified that he had been isolated socially and explained that his girlfriend thought he did not show enough affection. He indicated that he was not intimate with her. In this regard, he stated that although he was still with his girlfriend, he was struggling, and the relationship “had no meaning.” He also indicated that he usually was in another part of the house. He further reported that he felt irritable at times and had incidents where he yelled at his girlfriend and his therapist. Regarding his occupational impairment, the Veteran testified that he began his PhD program prior to his deployment to Iraq, and although he continued with his work study, he felt like he was not motivated and struggled with the course of his studies. Lastly, it was noted that he continued to have suicidal ideation. In February 2014, the Veteran underwent an additional VA examination for PTSD, at which time the examiner confirmed diagnoses of PTSD, persistent depressive (dysthymia), and alcohol use disorder, moderate, in early remission. The examiner explained that the Veteran continued to suffer from PTSD and depression, but the nomenclature was simply changed simply to comply with DSM-5. In addition, the examiner stated that alcohol abuse disorder was added because the Veteran continued to abuse alcohol intermittently. The Veteran reported that he had poor sleep quality due to nightmares at least once weekly and flashbacks during his waking hours. He became increasingly socially isolated and was hypervigilant in public places. He also indicated that he slept in his uniform every night because it gave him a feeling of comfort. He was quick to become irritable and agitated and reported having suicidal thoughts, but stated that he did not attempt to hurt himself or others. His depressive symptoms included depressed mood; spontaneous crying; diminished energy levels and participation in usual activities; and, feelings of inadequacy and anxiety. The examiner stated that there was no evidence of violence, psychotic, manic, obsessive, or compulsive behavior, and although the Veteran reported hearing voices, those were in his dreams, and not when he was awake. In terms of social impairment, it was noted that the Veteran lived at the house of his AA sponsor where he spent his free time. In terms of occupational impairment, it was noted that the Veteran attended college before, during, and after his military service, and completed his Master’s in Divinity prior to service. At the time of the examination, he continued to work on his PhD. He worked 30-hours per week in a work study program performing various jobs for the veterans at the Hampton VAMC, where he was in good standing. It was further noted that he was often irritable, anxious, and withdrawn, but was able to complete his work well. The examiner identified psychiatric symptoms of depressed mood; anxiety; suspiciousness; chronic sleep impairment; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and, increasing social isolation and irritability. The examiner concluded that the Veteran’s PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner further opined that the Veteran remained capable to perform work on a full-time basis, if necessary, as a result of his mental health problems, but was not able to provide a leadership role or perform executive functions. In a correspondence received by VA in May 2014, the Veteran’s girlfriend indicated that she knew him prior to going to service, where he was very loving, understanding, assertive, happy, easy to get along with, and very social. However, she noted that since his return from Iraq, his behavior drastically changed as evident by long periods of isolation, insomnia, and anger and rage at others. She stated that he became extremely unaffectionate and depressed and avoided anything that enforces positive pleasures and intimacy. She further stated that he would sit at home in the dark and pray and talk to himself. In a letter dated in June 2014, the Veteran’s treating psychologist/psychoanalyst in the previous year-and-a-half indicated that his PTSD had serious effects on his life. It was noted that as a result of the sustained trauma in-service, the Veteran was “psychologically assaulted and haunted by flashbacks [and] nightmares.” It was further noted that the Veteran felt isolated, alone, and misunderstood. The psychologist further stated that the Veteran continued to have difficulty with sleeping and slept for only three hours a night. In addition, when he had flashbacks, he was in such a confused state that he could not differentiate who or what was around him other than hearing the relentless sound of gun and mortar fire. It was further noted that the Veteran was unable to focus or attend to tasks and was not present in the moment with himself or others. The psychologist added that the Veteran had severely compromised his possibilities for intimate relationships, in the extreme, but also prevented him from sustaining attention to perform any occupational functions in any job situation. The psychologist concluded that the Veteran’s PTSD “tortured him on a continuing basis, impairing all his former capacities to perform occupational functions…suffering the consequences of this on a moment to moment, day to day, on a perpetual basis.” Significantly, during the November 2018 hearing, the Veteran indicated that he continued to have suicidal ideations throughout the pendency of the appeal and limited his interaction with others, to include his girlfriend. In this regard, he described the relationship as strained. In sum, the Board finds that the Veteran’s symptoms, specifically continuous endorsement of suicidal ideation more nearly approximate the criteria for a 70 percent rating during the periods on appeal from January 1, 2011, through March 20, 2011, from August 1, 2011, through September 16, 2012, and from November 1, 2012, forward. Nonetheless, during this period on appeal, the Veteran has not displayed symptoms comparable to gross impairment in thought process or communication; persistent delusions or hallucinations; inability to remember his own name; or grossly inappropriate behavior. He has continuously appeared oriented on examinations with normal speech. On mental status examinations, his concentration, attention, and memory has been regarded as generally intact. He has presented to examinations adequately dressed and groomed. Furthermore, although the Veteran tends to isolate himself, he is not totally socially impaired as required for a total rating. Total occupational and social impairment generally requires symptoms severe enough to severely distort the individual’s perception of reality, which is not shown by the record during these periods on appeal. Overall, the Veteran’s psychiatric symptoms, while severe, do not equate in severity, frequency, or duration to total occupational and social impairment, nor has he demonstrated a level of severity in symptomatology to approximate or equate to that in the symptoms listed for a 100 percent rating. The Board points out that the VA examiners concluded that the Veteran’s psychiatric disorder resulted in occupational and social impairment with only an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation, which is consistent with only a 30 rating. In addition, the Board notes that at least the May 2011 VA examiner indicated that Veteran’s use of psychotropic medications improved his symptoms. Generally, VA does not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56 (2012). However, DC 9411 expressly authorizes VA to take into account the ameliorative effects of medication when evaluating PTSD and other psychiatric disabilities. 38 C.F.R. § 4.130 DC 9411 (providing a noncompensable PTSD evaluation when, inter alia, “symptoms are not severe enough ... to require continuous medication” and a 10 percent PTSD evaluation when, inter alia, “symptoms [are] controlled by continuous medication”). As such, the Board finds that when rating psychiatric disabilities utilizing the General Rating Formula for Mental Disorders, the symptoms of a mental disorder are to be considered with the ameliorative effects of medication included. In summary, the evidence does not support the criteria for a rating higher than 70 percent for dysthymic disorder with PTSD for the periods on appeal from January 1, 2011, through March 20, 2011, from August 1, 2011 through September 16, 2012, and from November 1, 2012, forward, and as such, total (100 percent) schedular disability rating under DC 9411 is not warranted. At any rate, the Board recognizes that the Veteran testified that after his termination from his work study in late May 2015, he only had odd jobs including being a Walmart cashier, but reported that he did last at that job for a long time. Consequently, the Board considers entitlement to a TDIU, as discussed in the remand portion below. REASONS FOR REMAND A remand is necessary to provide the Veteran with an updated VA examination for his service-connected GERD and to further develop the newly raised claim for a TDIU. The Veteran was provided with a VA examination for his GERD in March 2012. Notably, however, subsequent to these examinations, to include during his November 2018 Board hearing, he reported that symptoms associated with his GERD have worsened in severity. As there is a suggestion of worsening, the Veteran should be scheduled for a new compensation examination to assess current severity of his disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). The United States Court of Appeals for Veterans Claims (Court) has held that a request for TDIU is part and parcel of a higher rating when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran’s November 2018 testimony raises the issue of unemployability. Remand is necessary to provide the Veteran with the requisite notice and application needed to substantiate a claim for a TDIU. Moreover, the issue of a TDIU is inextricably intertwined with the Board’s decision herein, as well as the issue being remanded. The matter is REMANDED for the following action: 1. Implement the Board’s increase herein regarding the rating to 70 percent for the Veteran’s dysthymic disorder with PTSD for the applicable periods. 2. Send the Veteran the appropriate notice as to how to substantiate his request for a TDIU, and provide him with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, for completion, with instructions to return the form to the RO. 3. Ensure that all outstanding VA treatment records are associated with the claims file. 4. Then, provide the Veteran with a VA examination to determine the current severity of his GERD. The claims file and a copy of this Remand must be made available to the examiner, and the examiner shall indicate in the examination report that the claims file was reviewed. After examining the Veteran and reviewing his claims file, the examiner is asked to: (a) Indicate all signs and symptoms of the Veteran’s GERD, and (b) Determine whether the Veteran's service-connected GERD causes any functional impairment that may affect his ability to function and perform tasks in a work or work-like setting. (Continued on the next page)   5. Thereafter, readjudicate the increased rating claim for GERD and the newly raised claim for entitlement to a TDIU. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel