Citation Nr: 18160734 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 15-32 931 DATE: December 28, 2018 ORDER The appeal with respect to the issue of service connection for a right shoulder disorder is dismissed. The appeal with respect to the issue of service connection for instability of the left knee is dismissed. A rating is excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. REFERRED The issues of service connection for a sleep disorder and a temporary 100 percent rating were raised in June 2015 and July 2015 claims and are referred to the Regional Officer (RO) for appropriate action. REMANDED Entitlement to a rating in excess of 10 percent for status post lumbar strain with L4-5 and L5-S1 bulging discs with intervertebral disc syndrome (IVDS) is remanded. Entitlement to a compensable rating for post tibia tendonitis of the left shin is remanded. FINDINGS OF FACT 1. In an August 2018 correspondence, prior to the promulgation of a Board decision, the Veteran’s attorney requested withdrawal of the appeal with respect to the issues of service connection for a right shoulder disorder and instability of the left knee. 2. The Veteran’s PTSD results in no more than deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood; total occupational and social impairment due to PTSD is not shown. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal with respect to service connection for a right shoulder disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the appeal with respect to service connection for instability of the left knee have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 3. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1998 to February 2007 and from March 2008 to September 2009, earning the Combat Action Ribbon. This case comes to the Board from November 2014, December 2014, and June 2015 rating decisions. In the November 2014 rating decision, the rating for PTSD was increased to 70 percent. As the increase did not satisfy the appeal in full, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that the September 2015 statement of the case (SOC) addressed the increased rating claims for PTSD and a back disability. The Veteran filed a substantive appeal later that same month, and checked box 9.B on the VA Form 9, referencing the SOC and listing only the increased rating claim for the back disability. In October 2015, however, the appeal was certified, and a letter dated later that same month from the Veteran’s attorney addresses both the increased rating claim for PTSD and a back disability. Absent further clarification, the Board is not deprived of jurisdiction over the appeal with respect to an increased rating for PTSD. See Evans v. Shinseki, 25 Vet. App. 7 (2011) (VA must seek clarification when a submission is ambiguous as to the appellant’s intent). Based on the foregoing, any withdrawal with respect to the appeal was clearly not “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). As the claim has been effectively considered to be on appeal, the Board will address it. See, e.g., Percy v. Shinseki, 23 Vet. App. 37 (2009); Archbold v. Brown, 9 Vet. App. 124 (1996). In a January 2016, October 2016, and February 2018 rating decisions, service connection was granted for tinnitus, headaches, traumatic brain injury and radiculopathy of the right lower extremity, respectively. This represents a full grant of the benefits sought with respect to those issues. In an August 2016 correspondence, the Veteran’s attorney withdrew the issues of service connection for a lung disorder, bipolar disorder, and an increased rating for residuals of a right inguinal hernia repair. In August 2018 written submissions, the Veteran’s attorney withdrew the Veteran’s request for Decision Review Officer (DRO) hearing, and withdrew the issue of entitlement to a total disability rating based upon individual unemployability (TDIU). In a November 2018 written submission, the Veteran’s attorney withdrew the Veteran’s request for a Board hearing and waived initial Regional Office (RO) consideration of the evidence. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Dismissal 1. Entitlement to service connection for a right shoulder disorder. 2. Entitlement to service connection for instability of the left knee. 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 a November 2018 submission, the Veteran’s attorney submitted a signed statement withdrawing the appeals with respect to issues of service connection for a right shoulder disorder and instability of the left knee. The Board finds that the Veteran’s withdrawal of the appeal of the issues of service connection for a right shoulder disorder and instability of the left knee 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 November 2018 statement clearly shows that the Veteran wishes to withdraw the appeal of these two issues. Therefore, there remain no allegations of errors of fact or law for appellate consideration as to these issues. Accordingly, the Board does not have jurisdiction to review the appeal with respect to these issues and it is dismissed. Increased Rating 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, DC 9411, a 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). When evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Analysis The Veteran seeks a rating in excess of 70 percent for PTSD. Having considered the evidence, the Board finds that a rating in excess of 70 percent is not warranted at any time during the appeal. The evidence does not establish total social and occupational impairment due to PTSD at any time during the appeal. The evidence of record shows that the Veteran has been employed during the appeal period. The March 2013 VA examination report notes that the Veteran had been employed since April 2012, and was able to keep up with job responsibilities. No time lost from work due to psychiatric symptoms was reported. The November 2014 VA examination report reflects that the Veteran is employed. During a September 2016 VA orthopedic examination, he reported working at a used car dealership. VA treatment records in January 2018 reflect full-time employment, and it was noted that the Veteran was fired from his previous job based on admitted theft of $6,000 from his employer. Although the Veteran’s desire to reduce PTSD symptoms of irritability and anxiety was noted in July 2017, he was reported to be casually dressed and neatly groomed, and oriented to person, place, time, and situation. Further, and although his affect was anxious, it was noted that he spoke with normal rate, rhythm, and volume. In addition, thought process was reported to be logical and goal directed, and thought content was noted to be appropriate. No homicidal ideation was reported, insight and judgment were noted to be fair, and memory was intact. The record likewise does not show total social impairment during the appeal period. Although records note that the Veteran was divorced and estranged from his daughter, he reported during the March 2013 VA examination that he spends time with his brother and father. He described his relationship with his brother as “great.” VA treatment records in January 2018 reflect that the Veteran enjoys leisure pursuits such as working out at the gym. Moreover, there is no evidence that the Veteran suffered from symptoms such 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, or memory loss for names of close relatives, own occupation or own name, or an overall level of symptomatology supportive of a higher rating. Even in consideration of all psychiatric symptoms, to include symptoms noted to be consistent with major depressive disorder and passive suicidal ideation in August 2015 (See January 2018 VA treatment records), the Veteran does not manifest or nearly manifest the criteria for a 100 percent disability rating due to PTSD and associated symptoms for any time during the appeal period. The evidence does not establish total social and occupational impairment due to psychiatric symptoms. The Board notes that the 70 percent rating currently assigned contemplates loss of time due to exacerbations of PTSD. 38 C.F.R. § 4.1. As the preponderance of the evidence is against the claim for a rating in excess of 70 percent for PTSD, there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, a rating in excess of 70 percent for PTSD is not warranted. REASONS FOR REMAND 1. A rating in excess of 10 percent for status post lumbar strain with L4-5 and L5-S1 bulging discs with IVDS Disc L4-L5 and IVDS. The Veteran seeks a rating in excess of 10 percent for his service-connected lumbar spine disability. VA treatment records in January 2018 reflect physical therapy in association low back pain. As there is an indication that the Veteran’s lumbar spine disability is worse since VA examination in October 2014, a new VA examination is warranted to the assess the current severity of his lumbar spine disability, to include complying with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). 2. A compensable rating for post tibia tendonitis of the left shin. The Veteran seeks a compensable rating for service-connected post tibia tendonitis of the left shin (shin splints). In his NOD, he indicated that he seeks the maximum rating. The Board finds that VA examination is warranted to assess the nature and severity of left shin splints. Prior to the examinations, any outstanding records of pertinent medical treatment must be obtained and added to the record. The matters are REMANDED for the following action: 1. Obtain complete VA treatment records since October 2017. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected status post lumbar strain with L4-5 and L5-S1 bulging discs with IVDS and left shin splints. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. For the Veteran’s orthopedic disability(ies), the examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Taylor