Citation Nr: 21069382 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-42 049 DATE: November 18, 2021 ORDER The issue of a rating higher than 20 percent for diabetes mellitus (DM), type II, is dismissed. The issue of a compensable rating for bilateral hearing loss is dismissed. REMAND The issue of an initial rating higher than 50 percent for post-traumatic stress disorder (PTSD) is remanded. The issue of a total disability rating based on individual unemployability (TDIU), due to service-connected disabilities, is remanded. FINDING OF FACT During the August 11, 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal of the issues of increased ratings for DM and bilateral hearing loss before the Board. CONCLUSION OF LAW The criteria for withdrawal of the issues of increased ratings for DM and bilateral hearing loss by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1966 to February 1968. This appeal involves an original rating decision that was issued in January 2013. The Veteran was granted service connection and assigned a 50 percent disability rating effective July 17, 2009, the date of receipt of his claim. During the August 11, 2021 Board hearing, the Veteran withdrew his appeal for increased ratings for DM and bilateral hearing loss. The appeal of these issues is therefore dismissed. The issues of increased ratings for DM and bilateral hearing loss are dismissed. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn in writing at any time before the Board promulgates a decision. See 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his authorized representative. See 38 C.F.R. § 19.55. During the August 11, 2021 Board hearing, the Veteran providently withdrew his appeal of the issues of increased ratings for DM and bilateral hearing loss. Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011) ("[W]ithdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant"). There remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of the issues of increased ratings for DM and bilateral hearing loss, and it is dismissed. REMAND The Board has determined that additional development of the Veteran's claims for an increased psychiatric rating and for TDIU is necessary and these matters are therefore REMANDED for actions described below. 1. BACKGROUND FOR THE RO ADJUDICATOR: In July 2021, the Veteran through his counsel submitted a psychological report authored by Fred J. Petrilla, Jr., Ph.D., a non-VA practitioner. Dr. Petrilla's report is relevant as to both the Veteran's PTSD and his employability. In his report, Dr. Petrilla essentially finds that the Veteran's functioning is worse than was last reported during the Veteran's May 2017 VA mental disorders examination. However, it is not clear whether and to what extent appears that Dr. Petrilla did not fully account for several of the Veteran's other non-service disorders. These matters are therefore not ready for appellate review. THE REMAND DIRECTIVES FOLLOW. 2. Schedule the Veteran for a VA mental disorders examination to determine: (1) the severity of his service-connected PTSD as ascertained by VA rating protocols and; (2) whether the Veteran is unable to secure or follow a substantially gainful occupation AS A RESULT OF HIS SERVICE-CONNECTED PTSD, DIABETES MELLITUS RATED AS 20 PERCENT DISABLING AND HEARING LOSS RATED AS ZERO PERCENT DISABLING. THE EXAMINER IS ADVISED THAT IN DETERMINING THE LATTER QUESTION, THE VETERAN'S NON-SERVICE-CONNECTED DISORDERS ARE NOT TO BE CONSIDERED. Although the Veteran's electronic file must be reviewed by the examiner, the record in brief indicates: *The Veteran's PTSD is presently rated as 50 percent disabling; *In November 2007, the Veteran was involved in a "rollover" accident in his employment as a truck driver for an oil company. Medical records indicate the Veteran reported neck pain involving a bulging disc at C3-4, C5-6 and several tears; *In his original application for service connection, the Veteran in part reported that he was receiving workmen's compensation benefits for a neck injury and headaches. He reported that he had been married since 1968 but that he did not live with his spouse; *During a February 2010 VA PTSD examination, the Veteran reported that he was married to his spouse for 35 years, but that they separated eight years before because of his "bad habits." The Veteran reported that he cared for his 92-year-old father-in-law, who was disturbed behaviorally and difficult to get along with. He reported that he lived with his girlfriend. The Veteran reported that he used cocaine the night before the examination. The Veteran reported some degree of depression when withdrawing from cocaine but stated that it never became disabling; The examiner noted that the Veteran did not have following symptoms: gross impairment of thought process or communication; delusions and hallucinations; suicidal or homicidal thoughts, ideations, plans, or intent; memory loss or impairment; obsessive or ritualistic behavior; impaired impulse control; difficulty falling asleep; or panic attacks. The Veteran denied having difficulty falling asleep, although he reported waking up with headaches; The examiner noted that the Veteran could recall three out of three words after a five-minute lapse; he could "readily" name five presidents and he performed serial seven calculations rapidly and accurately. His speech was normal, with no irrelevant, illogical or obscure speech patterns. The Veteran reported that he stayed at home because of chronic headaches. As noted above, the Veteran was then receiving workmen's compensation benefits in part due to headaches resulting from a post-service employment truck accident; The Veteran did not report intrusive/distressing recollections, flashback episodes, or increased arousal/hypervigilance. The examiner noted that the Veteran's PTSD resulted in reduced reliability and productivity; The examiner also noted that the Veteran had an elevated blood pressure and diverticulosis. The Veteran reported that since the truck accident, he had constant problems with neck and spine pain as well as constant headaches. The Veteran reported that he had problems holding his head up. The examiner reported that the Veteran was then unemployed because of injuries due to the truck accident; *November 2010 statements made by the Veteran's son and daughter indicate that the Veteran's PTSD has resulted in difficulty maintaining relationships with his family; *In a private psychological evaluation, received in March 2011, John Clare, Ph.D., , a licensed psychologist, stated that he evaluated the Veteran in January, February, and March 2011. The Veteran reported that he had been married for 43 years, and that he worked as a truck driver for 40 years. He reported that he last worked in November 2008, and that his symptoms intensified significantly when he stopped working. As noted below, the Veteran stopped working after he was involved in a "rollover" accident of his truck; However, the examiner noted the following symptoms attributable to the Veteran's PTSD: lack of interest, low energy, sleep disturbance, nightmares, intrusive recollections, problems with communication, hypervigilance, easy startle, depression, anxiety, feelings of helplessness, fatigue, difficulty with concentration, distrust of others, suspiciousness, and feelings of guilt. The examiner stated that the Veteran was having difficulty in his everyday life functioning and his psychological condition appeared to be deteriorating; *A July 2011 VA mental health note shows that the Veteran reported symptoms of depressed mood, lack of interest, poor appetite, low energy, sleep disturbances, and poor concentration. He denied suicidal ideation or plans, and he reported he had never attempted suicide. He reported that he had never experienced elevated or irritable mood that lasted more than a week. However, he complained of palpitations, sweating, shaking, and shortness of breath when thinking about Vietnam. The Veteran denied problems with anger, homicidal ideation, problems with focus, concentration, or attention. The examiner observed that the Veteran was casually groomed and dressed; cooperative; alert and oriented to person, place, and time; his memory was intact; his speech was normal; his thought process was logical, coherent, and comprehensible; and his impulse control, insight, and judgement were good; *In July 2011, the Veteran notified VA that he was still married to his spouse, but that they had been separated for nine years, and lived in different states; *During an October 2012 VA PTSD examination, the Veteran reported feeling depressed for the past 12 years since his spouse left him and reported increased depression after his job loss three years previously. He reported that "his world came crashing down" when he suffered a work injury when he flipped his tanker truck and was forced to stop working; The examiner noted the Veteran had a depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; and disturbances of motivation and mood. Other symptoms attributable to his PTSD included palpitations, sweating, shaking, shortness of breath when thinking about Vietnam, lack of interest, poor appetite, low energy, sleep disturbances, and poor concentration. The examiner noted that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity; *An October 2013 VA mental health note shows that the Veteran reported that his PTSD symptoms were manageable. He reported nightmares, recurrent and intrusive thoughts of war, frightening dreams and flashbacks, avoidance of thoughts and activities that arouse recollections of in-service trauma, depressed mood, lack of interest, poor appetite, low energy, sleep disturbance, and poor concentration. However, he denied suicidal ideation, intentions, or plans; *During a February 2014 VA PTSD examination, the Veteran reported that he had a girlfriend of 15 years, and that they lived together. He reported that he avoided social gatherings, for the most part, but that he occasionally went out to eat with family members. He reported that he had been retired since 2008 after a work-related motor vehicle accident when he flipped his truck. He reported that he left work due to a back and neck injury caused by the accident. He stated that "as far as truck drivers, I was the best. The owner loved me." He stated that he occasionally had confrontations with his boss, but that his boss never had problems with his behavior; The examiner noted that the Veteran reported he had a depressed mood; anxiety; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work relationships; and difficulty in adapting to stressful circumstances, including work or a work like setting. The examiner noted that the Veteran's symptoms resulted in 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 examiner observed that the Veteran's affect was congruent with his stated mood and symptoms, he was relatively calm and responsive, his speech was normal, he maintained focus on topics and responded appropriately to questions, and there was no evidence of a formal thought disorder. In terms of occupational impairment, the examiner noted that the Veteran usually excelled in his occupational setting; *A November 2015 VA mental health note shows that the Veteran reported that he followed and verbally confronted another driver because he disagreed with the way the other driver was driving. However, the Veteran stated that he "would not do that again." He reported that he and his girlfriend loved and cared for each other, and that they had sufficient income to travel and enjoy several shared interests and activities. He reported that he volunteered at the mall and at ball games; *A February 2016 VA mental health note shows that the Veteran reported that his PTSD symptoms were tolerable, but he continued to have anger and nightmares. He reported intrusive thoughts of war, frightening dreams, flashbacks, avoidance of thoughts and activities that arouse recollections of trauma, depressed mood, lack of interest, poor appetite, low energy, sleep disturbances, and poor concentration; *A May 2016 VA mental health note shows that the Veteran reported operating a hotdog stand on the weekends. He reported getting along well with his girlfriend and reported that they were moving into a recently purchased home; *An August 2016 VA group counseling note shows that the Veteran reported feeling better since his medications had been adjusted and he was starting to notice a positive difference. He reported that was going on vacation until possibly October and would be unable to attend group counseling during that time; *During a May 2017 VA PTSD examination, the Veteran reported that his lived with his girlfriend of 20 years. He stated that he was married for approximately 30 years, and had two adult children from this marriage. He stated that he had a positive relationship with his children and three grandchildren. He reiterated that he worked as a truck driver until 2008 when he was involved in a motor vehicle accident when his truck flipped over. He reported that he injured his back and neck in the accident and had to retire. The examiner noted that the Veteran's PTSD caused a depressed mood; anxiety; suspiciousness, chronic sleep impairment; impairment of short- and long-term memory; difficulty in understanding complex commands; disturbances of motivation and mood; difficulty in establishing and maintaining effective work relationships; and difficulty in adapting to stressful circumstances, including work or a work like setting. The examiner noted that the Veteran was cooperative, responsive, receptive, expressive, his language was adequate, and there was no evidence of psychosis or a thought disorder. The examiner noted that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity; *A January 2018 VA mental health note shows that the Veteran reported "I am doing fine." However, he reported that he losses things a couple of times a week if he does not put them in the right spot; *A January 2018 VA group counselling note shows that the Veteran was an active member of the group, he discussed various topics, expressed interest in other veterans, and demonstrated a sense of humor; *An October 2019 VA group therapy note shows that the Veteran discussed his recent travels and what cheered and motivated him. The examiner noted that his mood appeared upbeat; *During the July 2021 private psychological evaluation conducted by Dr. Fred J. Petrilla, Jr., the Veteran reported that he lived with his girlfriend of approximately 25 years. He reported that he does not like to deal with people, that he likes to be alone, and that he likes to sleep and not be bothered. The Veteran also reported that he avoids confrontations and interactions with others, he does not have friends, and he does not trust others. He reported difficulty with short-term memory and concentration, and that his girlfriend handles the responsibilities inside and outside of the home. He also reported that change and spontaneity tend to confuse, irritate, and anger him. He reported that he feels like a burden and a failure, he keeps his feelings to himself, and he does not like to express himself. The Veteran reported that he does not sleep well due to intrusive recollections, and that his in-service experiences haunt his everyday life. He reported that he feels useless and hopeless, and is consumed with sadness, unhappiness, and self-doubt; Dr. Petrilla reported that psychological testing reflected the Veteran had behavioral deficits generally associated with severe chronic depression and severe chronic PTSD. The examiner opined that the Veteran was not capable of performing substantial gainful employment due to his mental health impairments. However, although Dr. Petrilla noted the Veteran's then-recent diagnosis of dementia by VA in January 2021, he did not assess what role that diagnosis, as well as the Veteran's truck accident and non-service-connected disorders had on the Veteran's employability; Dr. Petrilla's report also indicates the Veteran was diagnosed with lumbalgia in June 2018, hypertension and a "stroke" in May 2017, degeneration of lumbosacral spine in November 2015, benign prostate hypertrophy in November 2016, and a headache disorder in June 2010. The record also indicates the Veteran has been treated for diverticulitis since 2004. Reiterating, THE EXAMINER MUST PROVIDE A FULLY EXPLAINED OPINION AS TO: (1) the severity of his service-connected PTSD as ascertained by VA rating protocols and; (2) whether the Veteran is unable to secure or follow a substantially gainful occupation AS A RESULT OF HIS SERVICE-CONNECTED PTSD, DIABETES MELLITUS RATED AS 20 PERCENT DISABLING AND HEARING LOSS RATED AS ZERO PERCENT DISABLING. THE EXAMINER IS ADVISED THAT IN DETERMINING THE LATTER QUESTION, THE VETERAN'S NON-SERVICE-CONNECTED DISORDERS ARE NOT TO BE CONSIDERED. (CONTINUED ON THE NEXT PAGE) 3. After completion of the above directives, readjudicate the claims and take any other appropriate actions including the issuance of a Supplemental Statement of the Case if appropriate. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.