Citation Nr: 20034064 Decision Date: 05/15/20 Archive Date: 05/15/20 DOCKET NO. 17-28 638 DATE: May 15, 2020 ORDER Entitlement to service connection for acid reflux is dismissed. Entitlement to service connection for right ankle disability is dismissed. Entitlement to service connection for gastrointestinal condition is dismissed. A 70 percent disability rating for PTSD is granted. A 10 percent rating for residuals, trauma right hand (major) disability is granted. REMANDED Entitlement to a rating in excess of 10 percent for right knee is remanded. Entitlement to a rating in excess of 10 percent for right hand disability is remanded. Entitlement to service connection for hearing loss is remanded. Entitlement to a rating in excess of 70 percent for PTSD is remanded Entitlement to a TDIU is remanded. FINDINGS OF FACT 1. At the December 2019 Board hearing, prior to the issuance of a decision in the appeal, the Veteran and his representative withdrew the appeal for entitlement to service connection for acid reflux. 2. At the December 2019 Board hearing, prior to the issuance of a decision in the appeal, the Veteran and his representative withdrew the appeal for entitlement to service connection for right ankle disability. 3. At the December 2019 Board hearing, prior to the issuance of a decision in the appeal, the Veteran and his representative withdrew the appeal for entitlement to service connection for gastrointestinal condition. 4. The evidence demonstrates that the Veteran’s PTSD has been productive of suicidal tendencies and occupational and social impairment with deficiencies in most areas. 5. For the entire appeal period, the Veteran’s residuals, trauma right hand disability has manifested as painful motion. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to service connection for acid reflux have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal for entitlement to service connection for right ankle disability have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the appeal for entitlement to service connection for gastrointestinal condition have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55. 4. The criteria for a 70 percent disability rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. 5. The criteria for a 10 percent rating for residuals, trauma, right hand disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Code 5214. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 2002 to July 2005, including service in Iraq. The Veteran presented sworn testimony at a hearing before the undersigned in January 2020. Withdrawn Claims An appeal may be withdrawn by an appellant or his or her authorized representative as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. At the January 2020 hearing before the Board, the Veteran withdrew his appeal in connection with claims of entitlement to service connection for acid reflux, right ankle, and gastrointestinal condition. See January 2020 Hearing Tr. at 2. Accordingly, the Board does not have jurisdiction to review these appellate claims, and they are dismissed. 1. A 70 percent disability rating for PTSD. The Veteran’s PTSD is currently rated at 50 percent disabling, effective February 3, 2012. He contends that his PTSD is more severe than the currently assigned rating and that he is entitled to a higher rating. PTSD is evaluated under a general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted where there is an 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. Id. A 70 percent rating is warranted where there is an 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 inability to establish and maintain effective relationships. Id. A 100 percent disability rating contemplates 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. Ratings are assigned according to the manifestation of particular symptoms, but the use of the term “such as” in the General Rating Formula demonstrates that the symptoms after the 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). When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board’s “primary consideration” is the Veteran’s symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). At the December 2012 PTSD examination, the examiner summarized the Veteran’s impairment as 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 Veteran reported symptoms that included: depressed mood and uninterested in doing normal activities, feeling like he wanted to cry, feels tired, loss of appetite, disturbances in mood and motivation, difficulty concentrating, hypervigilance, depressed mood, anxiety, suspiciousness and difficulty falling, chronic sleep impairment and difficulty in establishing and maintaining effective work and social relationships. In May 2017, the Veteran reported he had considered suicide on occasion. See May 2017 VA Form 9, Appeal to Board of Veterans’ Appeal. The frequency, severity, and duration of the Veteran’s impairment and assessing his disability picture, the Board finds that the evidence of record demonstrates that disability due to the Veteran’s psychiatric disorder has approximated the schedular criteria for an initial rating of 70 percent. See Vazquez–Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). In so finding, the Board notes that the United States Court of Appeals for Veterans Claims has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (stating the language of 38 C.F.R. § 4.130 “indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas.”). Thus, resolving all reasonable doubt in the Veteran’s favor, the Board finds that the evidence supports an initial 70 percent disability rating for the Veteran’s PTSD. 2. Entitlement to a compensable rating for right hand disability. The Board finds that a 10 percent rating for the Veteran's right-hand disability is warranted. The Veteran competently and credible reports painful motion of his right hand and fingers. See January 2020 Hr’g r. at 6. The Veteran was diagnosed with right hand fifth digit fracture. At the VA examination, the Veteran reported excess fatigability and pain on movement. See May 2012 VA examination. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). As such, ratings of at least 10 percent for right wrist disability is warranted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for service-connected right knee and left knee disabilities are remanded. The Veteran asserts that his service-connected right knee and left knee have worsened since his most recent VA examination in May 2012. See January 2020 Hr’g Tr. at 5. Accordingly, the Board must afford the Veteran a contemporaneous examination to evaluate the severity of his right knee and left knee disabilities. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (VA regulations specifically require the performance of a new medical examination when evidence indicates that there has been a material change in a disability). 2. Entitlement to a rating in excess of 10 percent for right hand disability is remanded. The Veteran asserts that his service-connected hand disability has worsened since his last VA examination in May 2012. See January 2020 Hr’g Tr. at 6. Accordingly, the Board must afford the Veteran a contemporaneous examination to evaluate the severity of his right-hand disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (VA regulations specifically require the performance of a new medical examination when evidence indicates that there has been a material change in a disability). 3. Entitlement to service connection for hearing loss is remanded. The Veteran seeks service connection that he which he relates to his active duty service. In November 2012, the Veteran was afforded a VA examination. At that examination, the Veteran did not meet the criteria for hearing loss for VA purposes. At the January 2020 Board hearing, the Veteran testified that his hearing has worsened since his November 2012 VA examination. Based on his testimony at the January 2020 Board hearing, the Board finds that a new VA examination is warranted. Accordingly, the Board must afford the Veteran a contemporaneous examination to evaluate the nature, extent and severity of his PTSD. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (VA regulations specifically require the performance of a new medical examination when evidence indicates that there has been a material change in a disability). 4. Entitlement to a rating in excess of 70 percent for PTSD is remanded. VA’s duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. The Veteran last received a VA examination for PTSD in December 2012. However, the Veteran asserts that his PTSD symptoms have become has become so severe that he has considered suicide. Accordingly, the Board must afford the Veteran a contemporaneous examination to evaluate the nature, extent and severity of his PTSD. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (VA regulations specifically require the performance of a new medical examination when evidence indicates that there has been a material change in a disability). 5. Entitlement to a TDIU is remanded. The Veteran asserts his service-connected disabilities prevent him from securing or following any substantially gainful employment. See January 2020 Hr’g Tr. At the hearing, the Veteran raised a claim for TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In support, he testified that he had not worked since 2009 and had limited education and that a combination of his physical and psychiatric impairment rendered him unable to work. The Veeran indicated that he has anger and interpersonal problems that stem from his PTSD and that he was almost involved in a physical altercation with another employee, that he “threw his badge at his supervisor,” and that he was fired by his supervisor as a consequence of this action. The Veteran also cited pain, locking and instability in his knees as well as pain and loss of grip strength in his right hand. In addition, the Veteran reported that his education was limited to high school. The issue of entitlement to a TDIU is inextricably intertwined with the other pending claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Consideration of the claim for a TDIU must be deferred pending the resolution (development and readjudication) of the pending claims. The matters are REMANDED for the following action: 1. Identify and obtain all outstanding treatment records regarding the Veteran’s claim. 2. Contact the Veteran and request that he complete and return a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service symptomatology regarding his claimed hearing loss and the nature, extent and severity of his PTSD and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for a VA examination to determine the severity of his right knee and left knee disabilities. The examiner(s) should identify all right knee and left knee pathology found to be present. 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 non- weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint (in the case of the right shoulder). 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). 5. Schedule the Veteran for a VA examination to determine the current severity of his hand disability. In rendering the opinion, the examiner should report active and passive range of motion, and address the impact, if any, of neurological impairment. 6. Schedule the Veteran for a VA examination to determine the onset, nature and likely etiology of his claimed hearing loss. The entire claims file must be reviewed by the examiner. The examiner must conduct an audiological evaluation, including speech recognition testing, to determine whether the Veteran currently has a hearing loss disability. If hearing loss is identified, the examiner must provide an opinion as to whether it is at least as likely as not that any current hearing loss was incurred during the Veteran’s period of service or is the result of exposure to loud noise during his periods of service. In offering this opinion, please discuss the impact of any in-service acoustic trauma on the hair cells in the Veteran’s cochlea, and state whether it is at least as likely as not that his hearing loss occurred sooner or progressed to a greater degree of severity than it otherwise would have, as a result of any in-service acoustic trauma. 7. Schedule the Veteran for a VA examination to determine the current nature, extent and severity of his psychiatric disability. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jacquelynn M. Jordan, Associate Counsel 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.