Citation Nr: 21063534 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-32 441 DATE: October 14, 2021 ORDER 1. Dismissal of the appeal for entitlement to an evaluation in excess of 40 percent for radiculopathy, left leg L-5 nerve root sciatic nerve associated with lumbosacral spine strain and degenerative disc disease is granted. REMANDED 1. Entitlement to an evaluation in excess of 50 percent, and 70 percent from April 2019, for posttraumatic stress disorder is remanded. 2. Entitlement to total disability due to individual unemployability is remanded. FINDING OF FACT On September 3, 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, that a withdrawal of his appeal for an increased rating for radiculopathy, left leg L-5 nerve root sciatic nerve associated with lumbosacral spine strain and degenerative disc disease is requested. CONCLUSION OF LAW The criteria for withdrawal of an appeal of the issue of entitlement of an evaluation in excess of 40 percent for radiculopathy, left leg L-5 nerve root sciatic nerve associated with lumbosacral spine strain and degenerative disc disease by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marine Corps from July 1968 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2014 and June 2019 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Although the Board sincerely regrets the additional delay, a remand is again necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The issue of entitlement to a TDIU has been raised by the record and added to the appeal. At the July 2021 hearing, the Veteran indicated that he retired early due to symptoms of his service-connected PTSD. Thus, the Board of Veterans' Appeals (Board) finds that the issue of entitlement to a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009); see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). 1. Entitlement to an evaluation in excess of 40 percent for radiculopathy, left leg L-5 nerve root sciatic nerve associated with lumbosacral spine strain and degenerative disc disease In a September 2019 statement, prior to the promulgation of a decision in this appeal, the Veteran expressly withdrew his appeal on the claim for entitlement to an evaluation in excess of 40 percent for radiculopathy, left leg L-5 nerve root sciatic nerve associated with lumbosacral spine strain and degenerative disc disease. The Veteran further confirmed his withdrawal of his appeal of this issue at the July 2021 hearing. Therefore, the Board finds that there remains no allegation of error of fact or law remaining for appellate consideration, and it has no jurisdiction to review those matters. Accordingly, they are dismissed. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 50 percent, and in excess of 70 percent from April 2019, for posttraumatic stress disorder is remanded. The Veteran contends that he is entitled to a higher evaluation for his service-connected posttraumatic stress disorder. As evidence, the Veteran submitted a disability benefits questionnaire dated April 2019 and treatment notes from a private psychiatrist. The private psychiatrist opined that the Veteran had total occupational and social impairment but was able to manage his financial affairs. The private psychiatrist also assessed the Veteran with a GAF score of 70. (The Board notes that for cases certified to the Board after August 2014, GAF scores are no longer considered probative as the DSM V criteria applies, however, the Board also notes that a GAF score of 61-70 contemplates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. 79 Fed. Reg. 45094.) Additionally, an April 2019 VA examination showed the Veteran had occupational and social impairment in most areas based on symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, difficulty in establishing and maintaining effective relationships, suicidal ideation, disturbances of motivation and mood, and inability to establish and maintain effective relationships. Furthermore, at the July 2021 hearing, the Veteran indicated that his PTSD had worsened since the April 2019 VA examination. Thus, considering such allegations, the Board finds that the Veteran should be afforded a new VA examination to determine the current severity of his service-connected PTSD. See 38 C.F.R. §§ 3.326, 3.327; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Entitlement to total disability due to individual unemployability is remanded. As noted above, the issue of a TDIU has been raised by the record. A request for a TDIU, reasonably raised by the record, is not a separate claim for benefits but rather involves an attempt to obtain an appropriate rating for a disability which is part of a pending claim for increased compensation benefits. Rice, 22 Vet. App. at 453-54. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. 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. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his PTSD alone. In conducting their evaluation, the examiner should consider the privately submitted April 2019 disability benefits questionnaire. 2. Complete any necessary development required to substantiate the claim for TDIU. In so doing, ask the Veteran to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, 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.