Citation Nr: 20032284 Decision Date: 05/07/20 Archive Date: 05/07/20 DOCKET NO. 17-04 805 DATE: May 7, 2020 ORDER The appeal with respect to the issue of entitlement to an initial rating in excess of 10 percent for a painful forehead scar has been withdrawn. REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT At the November 2019 Travel Board hearing, prior to the promulgation of a decision in the appeal, the Veteran stated he wished to withdraw his appeal with respect to the issue of entitlement to an initial rating in excess of 10 percent for a painful forehead scar. CONCLUSION OF LAW The criteria for withdrawal of the appeal with respect to the issue of entitlement to an initial rating in excess of 10 percent for a painful forehead scar have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from May 1995 to May 1998. This matter is before the Board of Veterans’ Appeals (Board) following Board Remands in June 2017 and November 2018. This matter was originally on appeal from a March 2010, October 2014, and September 2015 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in San Diego, California. In November 2019, the Veteran testified at a Travel Board hearing. A transcript of that hearing is of record. 1. Entitlement to an initial rating in excess of 10 percent for a painful forehead scar At the Travel Board hearing in November 2019, the undersigned noted that the two claims that were important to the Veteran that he wanted to pursue were service connection for a psychiatric disorder and entitlement to a TDIU; and the Veteran indicated that he wanted to withdraw the increased rating for the scar. The undersigned clearly identified the withdrawn issues and discussed the consequences of withdrawing an appeal, and the Veteran expressed that he fully understood those consequences. See Hearing Transcript at pages 2 and 3. 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. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant has withdrawn his appeal with respect to the issue of entitlement to an initial rating in excess of 10 percent for a painful forehead scar. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal with respect to this issue; and it is dismissed. REASONS FOR REMAND 2. Entitlement to service connection for an acquired psychiatric disability is remanded. The Veteran contends that he has an acquired psychiatric disability which began after a motor vehicle accident during his active duty service. The record indicates that at different times during the appeal period, the Veteran has been diagnosed as having various psychiatric disorders. The Veteran’s service treatment records indicate that on the clinical examination for entrance into service in March 1995, the Veteran’s psychiatric health was evaluated as normal. Further, on the Report of Medical History completed by the Veteran in conjunction with his entrance physical, he denied ever having frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, nervous trouble of any sort, or periods of unconsciousness. On Sunday, October 13, 1996, the Veteran was seen at the Emergency Department after being involved as a passenger in a motor vehicle accident on Friday night. On October 15, 1996, the Veteran was seen aboard the USS SCOTT (DDG-995) for follow up of head injury at which time it was noted that there were lacerations to the Veteran’s face due to a motor vehicle accident which occurred over the prior weekend. It was noted that the Veteran had been seen at Riverside Community Hospital and Sewells Patient Branch Medical Clinic and placed on quarters for a 24-hour period. At that time, the Veteran denied any blurred vision, headache, nausea, vomiting, an any other complaint. The Veteran had suffered three lacerations to the face – the right temple area laceration had 8 sutures, the forehead above the right eye had 7 sutures, the center forehead had 9 sutures, and the left eye had 5 sutures. All sutures were in place and healing well, there was no sign of infection in any wounds. The provider noted that the Veteran had been given pain medication by the civilian hospital. The assessment was “laceration face” and he was told to continue with present treatment and placed on light duty with no heavy lifting or working in dirty/dusty environment. Service treatment records also indicate that on June 23, 1997, the Veteran was seen aboard the USS WADSWORTH with complaints of right-hand pain after “punching a wall.” A brief examination revealed tender muscles at the lateral aspect of the right hand consistent with boxer’s fracture. He was sent to the hospital for x-ray and prescription. He was seen again aboard ship after returning from the hospital. It was noted that he had no paperwork but had a cast on his arm and stated that he was told that his hand was broken. On the clinical examination for separation from service in February 1998, the Veteran’s psychiatric health was evaluated as normal. Further, on the Report of Medical History completed by the Veteran in conjunction with his separation physical, he denied ever having frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, nervous trouble of any sort, or periods of unconsciousness. The examiner noted that the Veteran had been in an auto accident and received laceration to forehead and that he fractured his right hand in a fight without residual damage. Private treatment records indicate that the Veteran was seen by provider at Inland Psychiatric Medical Group, Inc. from October 2000 to July 2002. On October 30, 2000, he underwent an initial evaluation at which time he complained, “I can’t deal with things. I can’t handle or I get upset punch things.” The provider noted that the Veteran had rage attacks, mood swings, highs, racing of thoughts, reckless behavior such as getting into fights at work.” The provider noted that the Veteran reported feeling suspicious only toward people at work, having impulse control issues, having fear of commitments, being organized, not allowing his children out of his sight, and having social anxiety. The provider noted that the Veteran had shown disruptive behavior in school and had been by a psychologist at age 12 for one year. At that time the provider diagnosed the Veteran as having obsessive compulsive disorder (OCD) and social anxiety disorder. In August 2009, the Veteran stated, I feel I have not been able to handle situations correctly which I do not feel have been entirely my fault. As a result of this I have not been able to hold down a job, also never feel I am doing good enough. I will get agitated and angry very quickly. This would occur at certain times then not at all. I feel I can’t express myself correctly which would create a lot of tension which would cause me to be unsociable. I would have or feel a great deal of disrespect towards authoritative figures. I feel a lot of these conditions are due to the traumatic brain injury. The Veteran submitted a statement from his wife which notes in pertinent part, I … have seen the [e]ffects of [the Veteran’s] accident with increased anxiety, not able to cope with intense situations, not able to hand social environments … [The Veteran] also goes through depression. States even with medication, describing that no one likes him or seems to feel victimized during certain situations that shouldn’t be considered a negative intent. He also assumes that certain people “pick on him” or are “jealous” of him. … [The Veteran] also has a very had time being a passenger in a car, seems to always want to be the driver; when he is a passenger his anxiety level increases dramatically. As noted above, the Veteran and his wife testified before the undersigned in November 2019. The Veteran testified that during the in-service motor vehicle accident, he hit the windshield at a high rate of speed and that before he discharged from service, he was showing signs of anger and anxiety. The Veteran’s wife testified that she met the Veteran in January 1998 and that she and his family noticed that his anger issues were getting progressively worse. She testified that the first sign of anger she saw was when he threw a phone because the military had lost his mail. The Veteran has undergone several VA examinations and numerous opinions have been obtained. In December 2012, the Veteran reported that he was in a car accident in 1996 as a passenger while off duty in Virginia and that another car cut off his vehicle and his then ex-wife lost control and they hit a road divider. The Veteran stated that his next memory was that he found himself in the hospital and was released in a day and was placed on light duty for three days. The examiner found that the Veteran “was experiencing symptoms consistent with a chronic, severe anxiety disorder without agoraphobia,” and that “this condition appears to have been present since his time in the service.” The February 2018 VA examiner diagnosed the Veteran as having bipolar disorder, unspecified and noted, “This is a type of “Mood Disorder” which includes agi[t]ation/anxiety[y] and depression.” The examiner found that the bipolar disorder was less likely than not incurred or caused by the claimed in-service injury, event, or illness. The examiner noted that there did not appear to be evidence connecting bipolar disorder to his time spent in military service. VA sought a medical opinion as to whether social phobia was a DSM-5 diagnosis or a personality disorder; whether previous diagnoses including depressive disorder, anxiety disorder, and OCD were symptoms or earlier manifestations of bipolar disorder; and whether a diagnosis of bipolar disorder was warranted from October 2000. In response, on February 14, 2018, a VA psychologist noted that a social phobia was not a personality disorder and that the DSM-5 categorized a social phobia as a social anxiety disorder characterized by fear or anxiety about one or more social situations in which the person is exposed to possible scrutiny by others. In addition, the psychologist noted that although the Veteran had been diagnosed as having OCD & social anxiety disorder, the descriptors utilized pointed towards a diagnosis of a bipolar disorder (e.g., impulse control issues, mood swings, highs racing thoughts, etc.) The psychologist noted that it was pertinent to note that the private records that first diagnosed bipolar disorder also diagnosed the social anxiety. Further, the psychologist noted that the private provider from October 2000 described symptoms of a bipolar disorder within the intake form; that at that time, the OCD and social anxiety was noted; and that the bipolar disorder was, at least as likely as not, present at that time per the description of the Veteran’s complaints on the intake form. In May 2018, the psychologist who provided the February 14, 2018, opinion noted that she reviewed the 2012 VA opinion which found that the Veteran’s anxiety had existed since service; the June 2017 remand letter; the February 2018 VA examination and opinion; and her own February 2018 opinion and that no additional information was found which would alter her prior rendered opinions. In March 2019, VA obtained an additional opinion by a VA psychologist who, after a review of the record, opined that the Veteran’s unspecified bipolar disorder was less likely than not incurred in service and/or caused by active service. The psychologist noted that the 2018 C&P examiner assigned a diagnosis of bipolar disorder and asserted that symptoms described in the 10/30/00 intake evaluation were consistent with bipolar disorder. The examiner noted, Disputing a diagnosis based upon review of a historical, mostly illegible, handwritten intake evaluation is a slippery slope. Indeed, a review of the available records from the private doctor (with particular focus on the provider’s intake evaluation 10/30/00) lists symptoms consistent with the diagnosis assigned by that provider (OCD and social anxiety). The examiner, however, noted that documentations of diagnosis of bipolar disorder in 2014 and 2018 did not fit with the typical trajectory of the disorder, with average age of onset in the mid-20s range (claimant was in his 40s before he was assigned a bipolar disorder diagnosis). The examiner noted, Given that the claimant has been evaluated at the VA on several occasions prior to 2014 and 2018 and was not assigned a diagnosis of bipolar disorder AND that the private sector provider (see 10/30/00) treated the claimant for two years and did not assign a diagnosis of bipolar disorder, the onset of the claimant’s bipolar disorder cannot be presumed to have begun in 2000 (or even before that; i.e., in service). The examiner noted that the medical records did not support the claim that the claimant’s bipolar disorder was incurred in or caused by active service. The psychologist also noted that the Veteran was not assigned an anxiety disorder diagnosis and that his anxiety symptoms were subsumed under the unspecified bipolar disorder diagnosis. In January 2020, the Veteran submitted a statement from a VA staff psychiatrist who noted in pertinent part, Veteran has a mental health diagnosis of Major Depressive Disorder, Recurrent, Moderate, with anxious features … This is exacerbated by his General Medical Condition (h/o Traumatic Brain Injury) and Trauma-Induced Anxiety Disorder … He initiated care with our VA facility in 2012, and during his intake 08/29/2012 was noted to have his h/o TBI due to motor vehicle accident, and was previously following with non-VA provider Dr. Makelran. According to our mental health intake 08/23/2019, he gave h/o massive car accident during military service in 1999, after which he suffered from unstable moods and difficulty with cognition/memory loss, as well as headaches from the Traumatic Brain Injury with Loss of Consciousness. Unfortunately, the record is still absent a clear determination as to whether the Veteran’s current psychiatric disability, variously diagnosed, had its onset in service or is otherwise related to service. As such, the Board finds that the Veteran should be provided a VA psychiatric examination to determine the nature and etiology of any chronic psychiatric disability that the Veteran had at any time during the appeal period, July 2009 to present. Further, initial evaluation from Inland Psychiatric Medical Group dated October 30, 2000, shows that the Veteran had been referred for a psychiatric evaluation by his primary care provider, Dr. Oswald. Any available treatment records from Dr. Oswald dated from May 1998 to October 2000 should be obtained on remand.   3. Entitlement to a TDIU is remanded. Because a decision on the remanded issue of entitlement to service connection for an acquired psychiatric disorder could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. As such, a remand for this issue is also required. The matters are REMANDED for the following action: 1. Make arrangements to obtain the Veteran’s updated VA treatment records. 2. Make arrangements to obtain the Veteran’s treatment records from Dr. Oswald, dated from May 1998 to October 2000. 3. Make arrangements to obtain the Veteran’s complete treatment records from Orange Psychiatric. 4. Thereafter, schedule the Veteran for a VA Mental Disorders examination by an appropriate clinician. (a) The examiner must identify all chronic psychiatric disorders that have been present since July 2009, i.e., bipolar disorder, major depressive disorder with anxious features, etc. (b) For each such psychiatric disorder identified, the examiner should provide an opinion as to whether is it at least as likely as not (50% probability or more) that such psychiatric disorder had its clinical onset during service or is related to any incident of service, to include the Veteran’s in-service motor vehicle accident. In providing this opinion, the examiner must consider and discuss the following: • the Veteran’s service treatment records showing that he was involved in a motor vehicle accident in October 1996 and that he punched a wall in June 1997; • the treatment records from Inland Psychiatric Medical Group dated from October 2000 to July 2002, beginning approximately two years following the Veteran’s separation from service; • the lay statements of the Veteran and his wife (who knew him during service) concerning the Veteran’s symptoms of anger during service, i.e., his wife testified that there was an incident during service where he had thrown a phone because the military lost his mail; as well as his continuity of symptoms to include anger and anxiety following his separation from service. See Hearing transcript, dated November 8, 2019. The examiner must provide a complete rationale for all opinions. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.