Citation Nr: 21065053 Decision Date: 10/23/21 Archive Date: 10/23/21 DOCKET NO. 09-04 105 DATE: October 23, 2021 ORDER Service connection for hearing loss is dismissed. A higher rating in excess of 70 percent, from August 10, 2015, for service-connected posttraumatic stress disorder (PTSD) is dismissed. REMANDED A higher rating in excess of 30 percent for PTSD from January 31, 2007, to May 14, 2009, and in excess of 50 percent from May 14, 2009, to August 10, 2015. A total disability rating based on individual unemployability (TDIU) prior to August 10, 2015. FINDING OF FACT In August 2021, prior to the promulgation of a Board decision, the Veteran withdrew the appeal as to the issue of service connection for hearing loss and a higher rating in excess of 70 percent, from August 10, 2015, for PTSD. CONCLUSION OF LAW The criteria for withdrawal of the appeal for service connection for hearing loss and a higher rating in excess of 70 percent, from August 10, 2015, for PTSD are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to October 1969, with subsequent service in the Alabama Army National Guard. The case is on appeal from February 2008 and February 2009 rating decisions. The case was most recently before the Board in September 2019. At that time, the Board denied an initial rating in excess of 30 percent for the period from January 31, 2007, to May 14, 2009, granted a 50 percent rating, but not higher, for the period from May 14, 2009 to August 10, 2015, and denied a higher rating in excess of 70 percent thereafter. The Board also remanded the claims of service connection for hearing loss and entitlement to a TDIU for the period prior to August 10, 2015. The Veteran appealed the case the to the United States Court of Appeals for Veterans Claims (Court). The Veteran limited the scope of his appeal to the staged ratings for PTSD adjudicated by the Board. In a November 2020 Order, on the basis of a November 2020 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board's decision with respect to the increase rating claim for PTSD for further development and adjudication to determine whether an initial higher rating in excess of 30 percent from January 31, 2007, to May 14, 2009, in excess of 50 percent from May 14, 2009, to August 10, 2015, and in excess of 70 percent thereafter were warranted. 1. Service connection for hearing loss. 2. A higher rating in excess of 70 percent for PTSD from August 10, 2015. 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, appellant, or representative at any time before the Board promulgates a decision. 38 C.F.R. § 19.55(b)(3). In August 2021, the appellant's attorney submitted a statement indicating that the Veteran would like to withdraw his appeal regarding his claim of service connection for hearing loss and the issue of a higher rating in excess of 70 percent, from August 10, 2015, for service-connected PTSD. The statement specifically states that the Veteran "hereby withdraws his claim of entitlement to service connection for bilateral hearing loss [and that the Veteran] is also satisfied with the ratings assigned for his service-connected disabilities as of August 10, 2015." To that effect, the representative attorney clarified that "[t]he [only] claims before the [Board] at this time, therefore, are entitlement to increased ratings for PTSD from January 31, 2007 to August 9, 2015, and entitlement to TDIU from January 31, 2007, to May 9, 2015." The Board finds that the Veteran's withdrawal of the issues on appeal 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). In this regard, the August 2021 statement is an express written statement from the Veteran's attorney confirming that the appellant no longer wants to pursue any further the claimed issues on appeal before the Board. Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to this particular appeal. Accordingly, the issues of whether entitlement to service connection for hearing loss and whether a higher rating in excess of 70 percent, from August 10, 2015, for PTSD are warranted are dismissed. REASONS FOR REMAND 3. An initial higher rating in excess of 30 percent for PTSD for the period from January 31, 2007, to May 14, 2009, and in excess of 50 percent from May 14, 2009, to August 10, 2015. The November 2020 JMPR states that the Board erred when it did not ensure that the provisions set forth in 38 U.S.C. § 5103A(a)(1), pertaining to the duty to assist the Veteran is entitled to, were met. In that regard, the parties agreed that the Board erred in failing to address whether a retrospective opinion was warranted to assess the Veteran's level of impairment for the period from January 31, 2007, to May 14, 2009. The November 2020 JMPR makes reference to a January 2009 statement in support of claim from the Veteran's wife indicating that he will suddenly "snap and get mad with no warning, that he doesn't listen well to others, very stubborn, that he will go ahead and act upon what he feels is right without considering how it may affect others, especially his family, that he is very impatient, often demanding and commanding, that he often suffers from anxiety, that he has panic attacks, that their two grandchildren are in fear of the Veteran, that he has very few friends, is not a social person, and that there has been a noticeable decline in their relationship as husband and wife which included several discussions of divorce. The JMPR further notes that per the Veteran's wife's statement, the Veteran forgets to complete simple tasks at home, and that she can no longer rely on him to fix things in the house. In addition, the parties to the November 2020 JPMR referenced a January 2009 separate lay statement from the Veteran's friend who indicated that in the 21 years he has known the Veteran, he was aware of three altercations he had been involved in. Also, the parties agreed that the Board failed to address the April 2009 findings of the Veteran's case manager for VA vocational rehabilitation (VR&E) services which depicts the Veteran's worsening symptomatology. In sum, the parties agreed that the foregoing evidence warrants further consideration, to include a retrospective medical opinion to assess the severity of the Veteran's PTSD for the period between January 31, 2007, to May 14, 2009. With respect to the issue of a higher rating in excess of 50 percent from May 14, 2009, to August 10, 2015, the parties agreed that Board's reasons and bases are inadequate as the Board overlooked the Veteran's testimony during his July 2014 Board hearing, during which the Veteran testified that he experienced "a couple of outbursts, outbreaks" when asked if he experienced violent episodes at home, and the Veteran's testimony that he has experienced "thoughts of hurting anybody or hurting himself." Ultimately, the parties agreed that the Board erred in finding its duty to assist satisfied because the record does not show that the Secretary attempted to obtain the potentially outstanding treatment records before determining Appellant's claims pursuant to 38 C.F.R. § 3.159(c)(2). In this regard, the November 2020 JMPR indicates that while the medical evidence suggests that the Veteran received VA treatment from the Rainbow City CBOC in Gadsden, Alabama, from 2008 to 2018, reasonable efforts were not made to obtain the treatment records in compliance with 38 C.F.R. § 3.159(c)(2). The Board notes that, in the August 2021 Appellant's Brief, the Veteran's attorney representative indicated that "to assist in the adjudication of this case, outstanding treatment records from the Birmingham VA Healthcare System (to include records from the Rainbow City VA Community Outpatient Clinic which were referenced as necessary in the November 2020 Joint Motion were obtained and mailed to VA. See August 27, 2021 Brief. The VA treatment records made reference in the August 2021 Brief were received and associated with the Veteran's claims file on September 3, 2021. However, the medical records submitted only correspond to treatment received between October 2017 to December 2020, as opposed to the period from 2008 to 2018 as noted by the November 2020 JMPR. Accordingly, further development is still necessary for those records. On further consideration, in a private medical assessment received in August 2021, Dr. M.L.C., a psychiatrist, made reference to multiple VA treatment notes with respect to the severity of the Veteran's PTSD for the entire period on appeal (January 31, 2007 to August 10, 2015). Dr. M.L.C. specifically pointed out the following progress notes: May 24, 2007 (the Veteran complained of nightmares, insomnia, social isolation, and irritability); April 1, 2008 (the Veteran complained of depression, nightmares, night sweats, and irritability); June 2, 2008 (the Veteran complained and endorsed symptoms such as nightmares, night sweats, difficulty getting along with others, depression, flashbacks, and outbursts of violent behavior); March 19, 2009 (the Veteran reported alcohol abuse and thoughts about suicide without any plan); April 10, 2009 VR&E note (indicating that the Veteran is not a good candidate for training due to his emotional and physical limitations); April 30, 2009 (the Veteran is in a depressed mood, irritable with anger outbursts, and his memory is mildly impaired); May 20, 2009 (poor memory and concentration and plays golf as a way of coping with his anxiety and symptoms); October 10, 2010 (the Veteran reported auditory hallucinations); October 6, 2011 (the Veteran is irritable and hearing angry voices) January 10, 2013 (complained of hearing voices and irritability); July 30, 2014 (his memory has deteriorated); August 22, 2014 (auditory hallucinations, mild impairment and poor concentration on cognitive testing); and November 2014 (the Veteran is hearing voices telling him to do destructive things and he is being verbally mean to others around him). In general, the private examiner indicated that the Veteran is consistently described as threatening, unpredictable, volatile, dangerous, and violent, which is consistent with a review of his record. See August 20, 2021 private opinion, p.1. Nevertheless, while the Board has considered the August 2021 private report from Dr. M.L.C., it also notes that there appear to be conflicting findings with respect to the severity of the Veteran's symptoms throughout the period on appeal as VA treatment records show the following: January 22, 2008 VA examination report (the Veteran has a good relationship with his wife and engages in occasional social relationships, to include paying golf); April 1, 2008 progress notes (depressed, describes his sleep as restless, reports nightmares and night sweats and being easily irritable and agitated); May 1, 2008 progress notes (no perceptual abnormalities in terms of any auditory or visual hallucinations); June 3, 2008 (the Veteran reported violent behavior "in the last 30 days" and is having relationship problems); October 21, 2008 progress notes (enjoys being with his family and to play golf); November 7, 2008 progress notes (no perceptual abnormalities in terms of any auditory or visual hallucinations; insight and judgement are fairly intact); January 27, 2009 (Veteran reported that mental health treatment has worked fairly well); March 19, 2009 (mildly depressed without suicidal ideation, although has thought about it with no structured plan); January 10, 2013 (no impaired concentration, suicidal or homicidal ideation or plan and the Veteran reports "hearing voices, however, no command hallucinations. Notwithstanding, on the same day the Veteran reported that voices do sometimes tell him to do things but not very specific. The Veteran also stated that he "sleeps well or too much"); October 31, 2013 progress notes (this time the Veteran denied hearing voices that tell him to hurt himself); March 19, 2014 (anxiety and nightmares, night sweats and insomnia and vague auditory hallucinations that he ignores); August 22, 2014 (no suicidal or homicidal ideations. In this regard, the Veteran reported that his mood was stable, denied profound depression, or having any suicidal ideation; however, the examiner noted significant impairment in concentration with memory concerns due to forgetfulness. The Veteran also denied any command hallucinations or having any other psychotic symptoms); and June 10, 2015 progress notes (sleeps well most of the time; negative auditory or visual hallucinations; other than vague hallucinations which he ignores. The VA provider did not consider his vague hallucinations as psychotic hallucinations; and the Veteran denied homicidal thoughts or having suicidal ideations). As noted, the evidence seems to show some inconsistencies regarding the Veteran's PTSD symptoms throughout the appeal period. The Board notes that, from January 31, 2007, to August 10, 2015, the Veteran was afforded contemporaneous VA examinations by qualified medical professionals who assessed his PTSD symptoms in January 2008, April 2009, May 2009, December 2011, and August 2015 in connection with his increase claim for PTSD. Nevertheless, in light of the November 2020 JMPR indicating that a retrospective opinion to ascertain the level of severity of the Veteran's PTSD could potentially assist him in substantiating his increase rating claim for PTSD by considering the lay and medical evidence of record, given the conflicting medical findings with respect to the actual level of severity of his PTSD symptoms for the period in question, particularly with respect to symptoms such as family and social relations, hallucinations, and suicidal ideations, and given that the November 2020 JMPR indicates that there appear to be VA treatment records from the Rainbow City VA Community Outpatient Clinic corresponding to treatment received between 2008 and 2018 that have not been associated with his claims file, the Board finds that a remand is warranted to afford the Veteran a retrospective opinion to assess the severity of his PTSD symptoms for the period from January 31, 2007, to August 10, 2015, and for the development of the aforementioned VA treatment records. 4. A TDIU prior to August 10, 2015. The issue of a TDIU for the period prior to August 10, 2015 was most recently before the Board in September 2019. At that time, the Board noted that in a September 2015 rating decision, the Veteran was granted a TDIU effective August 10, 2015. As the TDIU stemmed from the PTSD rating appeal, the issue remained on appeal for the period prior to August 10, 2015. See Harper v. Wilkie, 30 Vet. App. 356, 363 (2018). Accordingly, and in light of a previous November 2016 Board's remand, the Board remanded the claim for a TDIU and requested a retrospective VA opinion "by a physician or a vocational specialist" as to the combined effect of the Veteran's multiple service-connected disabilities over his functional capacities pursuant to Geib v. Shinseki, 733 F.3d 1350 (Fed Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013) (noting that a combined effects opinion is not required per se but may be necessary to sufficiently address a TDIU claim). Pursuant to the Board's remand, the Veteran was afforded a VA examination in January 2020. The VA examiner, a nurse practitioner, opined that prior to August 10, 2015, the aggregate effect of the Veteran's combined service-connected disabilities includes reduced work efficiency and interpersonal difficulties due to irritability and anxiety resulting in difficulty in performing in demanding positions. The VA examiner opined that the Veteran may perform better in positions with routine or repeated tasks and that no other physical or sedentary functional impairments resulting from the totality of his service-connected conditions were identified during the examination. The Board notes, however, that the opinion was not issued by a VA physician or a vocational specialist per the Board's November 2016 remand directives, and which the Board deemed necessary in this case. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a veteran has a right to compliance with remand instructions). The Board notes that prior to August 10, 2015, the Veteran had a combined rating of 70 percent but only from July 7, 2015. As such, the Veteran does not meet the criteria for a TDIU on a schedular basis for the period prior to July 7, 2015. See 38 C.F.R. § 4.16(a) (one disability rated at 60 percent or more, or two or more disabilities with at least one disability rated a 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more). Notwithstanding the above, as the issue of a TDIU stems from the PTSD rating appeal, given the fact that the Veteran has consistently indicated that his PTSD played a significant role in his inability to secure employment, and because the Board is remanding the increase rating claim for PTSD for a retrospective opinion in light of the November 2020 JMPR, the Board finds that the issues are inextricably intertwined. Therefore, as the claims are inextricably intertwined, adjudication of the latter must be deferred pending the development and readjudication of the former matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records dated since December 2020, to include any outstanding VA treatment records from the Birmingham, Alabama VA Healthcare System and all available treatment records from the Rainbow City VA Community Outpatient Clinic in Gadsden, Alabama, for treatment received from 2008 to 2018 as noted by the November 2020 JMPR. 2. Request from the Veteran, and assist in obtaining, any outstanding private medical records in connection with this claim. 3. Once all development is completed, forward the entire claims file, to include a copy of this remand, to a qualified mental health professional to provide a retrospective medical opinion with respect to the severity of the Veteran's service-connected PTSD for the period from January 31, 2007 to August 10, 2015. If the examiner deems it necessary, schedule the Veteran for an in-person VA examination. (Continued on the next page) Consideration should be given to: (1) The August 2021 private medical assessment from Dr. M.L.C. with respect to the severity of the Veteran's PTSD symptoms prior to August 10, 2015 (2) the January 2009 lay statement from the Veteran's wife; (3) the January 2009 lay statement from the Veteran's friend, Mr. J.W., with respect to his observations as to the Veteran's symptoms; (4) the August 2009 VR&E determination with respect to the effect of the Veteran's PTSD symptoms over his employment; and (5) the Veteran's reports of symptoms throughout the appeal period in question. 4. Thereafter, readjudicate the claim for a TDIU in compliance with the November 2016 and September 2019 remand directives, herein incorporated by reference. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan, 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.