Citation Nr: 21072391 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-45 807 DATE: December 3, 2021 ORDER The Veteran's appeal with respect to entitlement to service connection for bilateral hearing loss is dismissed. The Veteran's appeal with respect to entitlement to service connection for a disability manifested by hair loss is dismissed. REMANDED Entitlement to service connection for a headache disability, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to an initial rating in excess of 30 percent for PTSD is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT By correspondence received in July 2021, prior to the promulgation of an appellate decision, the Veteran, through his representative, requested that the appeal with respect to entitlement to service connection for bilateral hearing loss and a disability manifested by hair loss be withdrawn. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for a disability manifested by hair loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from May 2001 to May 2005 and from April 2007 to April 2011, to include service in Southwest Asia. His decorations include the Combat Action Ribbon. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In October 2017, the Veteran submitted an application for a TDIU, indicating that his service-connected PTSD prevented him from securing or following any substantially gainful occupation. The United States Court of Appeals of Veterans Claims (Court) has held that if a claimant or the record reasonably raises the question of whether a veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel of that claim for an increased rating is whether a TDIU is warranted as a result of that disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the Board finds that the issue of entitlement to a TDIU is also on appeal. In July 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for a disability manifested by hair loss The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. See 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in an appeal. 38 C.F.R. § 19.55. Only an appellant, or an appellant's authorized representative, may withdraw an appeal. Id. Appeal withdrawals must include the name of the veteran, the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf), the applicable VA file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal. Id. By correspondence received in July 2021, prior to the promulgation of an appellate decision, the Veteran, through his representative, requested that the appeal with respect to entitlement to service connection for bilateral hearing loss and a disability manifested by hair loss be withdrawn. The correspondence included his name and his VA file number. Under the circumstances, the Board finds that the requirements for a proper withdrawal have been satisfied. As the Veteran has withdrawn his appeal of these issues, there remain no allegations of error of fact or law for appellate consideration with respect to these issues. Accordingly, the Board does not have jurisdiction to review these issues and the appeal of these issues must be dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a headache disability, to include as secondary to service-connected PTSD, is remanded. The Veteran contends that his headache disability was incurred in or caused by service. Specifically, at his July 2021 hearing, the Veteran testified that a year and a half into his first period of service is when his headaches started on a consistent basis. He further testified that he was often treated for headaches in service at "CAS," a separate medical site because the Marine Corps did not have its own doctors, and that he was given Motrin to treat the headaches. He also contends that his headaches are secondary to his service-connected PTSD. He testified at his July 2021 hearing that his headaches began when he got his first PTSD symptoms and that they have continued since his separation from service. As an initial matter, the Board notes that the Veteran has a current diagnosis of a headache disability. A November 2014 VA treatment record includes migraine headaches in an active problem list. Additionally, a September 2017 VA treatment record indicates that the Veteran had been suffering from headaches on and off for ten years at that time. He was diagnosed with migraines, chronic and recurrent. The first element of service connection has therefore been established. Regarding an in-service event, the Board notes that currently available STRs are silent for complaints of, treatment for, or a diagnosis related to headaches. The Veteran denied frequent or severe headaches at his October 2000 entrance examination, as well as at his April 2011 separation examination. However, given the Veteran's specific contention that he was often treated for headaches in service at "CAS" and was given Motrin, the Board finds that additional development regarding potentially missing STRs is warranted. The Board also notes that, to date, the Veteran has not been afforded a VA examination in connection with his claim for service connection for a headache disability. Given his current diagnosis, the fact that he is currently service-connected for PTSD, and his allegation that his headaches are secondary to that diagnosis, the Board finds that a VA examination and opinion are warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Updated records of any VA treatment should also be procured. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency). 2. Entitlement to an initial rating in excess of 30 percent for PTSD is remanded. In its September 2015 rating decision, the RO granted service connection for PTSD and assigned a 30 percent rating. The Veteran contends that a higher rating is warranted. Specifically, at his July 2021 hearing, his representative contended that an August 2017 independent medical examination (IME) showed that a 70 percent rating was warranted. The Veteran also contended at his July 2021 hearing that his symptoms had worsened since the time of the most recent examination. The Veteran was afforded a VA examination in connection with his claim in September 2015. The examiner found that the Veteran had a current diagnosis of PTSD that conformed to the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), and that he also had other psychiatric diagnoses, including unspecified depressive disorder, cannabis use disorder, and adjustment disorder with mixed anxiety and depressed mood. The examiner found that it was possible to differentiate symptoms that were attributable to each diagnosis, finding further that symptoms attributable to PTSD were limited to anxiety and chronic sleep impairment, and that these symptoms caused occupational and social impairment due to mild or transient symptoms with decreased work efficiency and the inability to perform occupational tasks only during periods of significant distress, or; symptoms controlled by medication. As noted, the Veteran submitted an IME as well as a PTSD Disability Benefits Questionnaire (DBQ) from J.A., Jr., M.A. in August 2017. In the PTSD DBQ, Mr. A. found that the Veteran had the sole mental health diagnosis of PTSD and no other mental health diagnoses that were related to military service. He indicated that the Veteran had occupational and social impairment with deficiencies in most areas and indicated specifically that no other mental health diagnoses had been diagnosed. He therefore provided no opinion as to whether it was possible to differentiate between which psychiatric symptoms were attributable to specific psychiatric diagnoses. He also found that symptoms of PTSD included the following: depressed mood; anxiety; suspiciousness; panic attacks more than once/week; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; chronic sleep impairment; circumstantial speech; disturbances in motivation and mood; difficulty adapting to stressful circumstances, including work or work like setting; inability to establish and maintain effective relationships; suicidal ideation; grossly inappropriate behavior; and persistent danger of hurting self or others. In his IME, Mr. A. stated that he reviewed all of the pertinent records, including the September 2015 rating decision and the September 2015 VA examination report. He opined that the vagueness of the VA examination was not felt to be sufficient for an accurate evaluation of the impairment. Mr. A. conducted a full examination of his own, noting that the Veteran last worked in October 2014 and had prominent interpersonal problems on the job and that he had left jobs because of emotional or behavioral factors. He found that the Veteran had a few aspects of social function intact but that he thought the Veteran had little or no social function. He also stated that when the Veteran was working there was a severe impact and marked impairment, and that little or no occupational function remained. He concluded that the Veteran's impairments were much more than those that corresponded with a 30 percent rating, that his symptoms were profoundly affecting him in every part of his life, and that his impairments involved deficiencies in almost all areas, including work, school, family relations, judgment, thinking, and mood, with periods of violence and suicidal ideation and an inability to establish and maintain effective relationships. In the IME, he diagnosed "PTSD with other military related mood and personality disturbances,' and gave the Veteran a poor prognosis, stating that he was a potential danger to himself and others at all times. VA treatment records indicate that the Veteran has several mental health diagnoses, including PTSD, moderate recurrent major depression, alcohol abuse, cannabis dependence, adjustment disorder with mixed emotion, and anxiety. VA treatment records also shed light on the severity of the Veteran's mental health symptoms. An August 2015 VA treatment record, for example, shows that the Veteran attempted suicide and was hospitalized for three days as a result. In a VA treatment record dated later that same month, the Veteran denied suicidal and homicidal ideation at the time of examination but reported that he had experienced suicidal ideation generally and that he had also had fleeting thoughts of homicidal ideation. A June 2017 VA treatment record again shows that the Veteran was discharged after a one-night stay after he had reported that he had intended to die by suicide. A July 2017 VA treatment record shows that he was placed on the facility's high-risk list for suicide at that time after endorsing suicidal thoughts. In a VA treatment record dated just a few days later he reported that he had daily suicidal ideation. Finally, January 2019 VA treatment records show that the Veteran was hospitalized for nearly 2 weeks at that time. While the records show that he was admitted for PTSD and substance abuse treatment," the only diagnosis noted on discharge was "anxiety." The Board also notes that the claims file shows that the Veteran has been found disabled by the Social Security Administration (SSA). The SSA found that the Veteran's severe impairments included anxiety disorder and depressive disorder, and that the Veteran was disabled due to his anxiety disorder. In light of the evidence outlined above, the Board finds that there is a conflict in the evidence as to the Veteran's current psychiatric diagnoses, as to which psychiatric symptoms are attributable to his service-connected PTSD (as opposed to his other, non-service-connected psychiatric diagnoses), and as to whether differentiation of symptomatology is possible. While the September 2015 VA examination found that only the symptoms of anxiety and chronic sleep impairment were due to PTSD, subsequent calls that finding into question. While Mr. A. found in his August 2017 PTSD DBQ and IME that the Veteran had only one psychiatric diagnosis, PTSD, and that all of his symptomatology was due to that diagnosis, his finding regarding diagnosis is inconsistent with all of the VA treatment records which indicate that the Veteran has multiple psychiatric diagnoses. The Board notes that it is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Given the conflict in evidence, as well as the Veteran's allegation of worsening since the September 2015 VA examination, the Board finds that a new VA examination is warranted. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination). On remand, the VA examiner should attempt to differentiate between symptoms attributable to the Veteran's service-connected PTSD and his other, non-service-connected psychiatric disabilities, if possible. 3. Entitlement to a TDIU. As noted, the record shows that the Veteran submitted an application for a TDIU in October 2017. The TDIU issue is inextricably intertwined with the claim for an increased rating for PTSD, which is being remanded for additional development. See, e.g., Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on an appellant's claim for another issue). As such, the Board will remand the TDIU issue as well. These matters are REMANDED for the following action: 1. Contact the Veteran and ask him to provide additional details with respect to the name and location of the facility where he reported that he was treated for headaches in service, identified at his July 2021 hearing as "CAS." If he provides the requested information, and if it appears from his description that additional development regarding STRs is warranted, assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for an examination with an appropriate clinician for purposes of assessing the etiology of his headache disability. The examiner should review the record. After reviewing the record, the examiner should offer an opinion as to whether the signs and symptoms associated with the Veteran's headaches are most consistent with: (a) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, (b) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (c) a disease with a clear and specific etiology and diagnosis. If it is the examiner's conclusion that the Veteran's disability pattern with respect to the signs and symptoms at issue is most consistent with a diagnosable chronic multi-symptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis, the examiner should offer a further opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's headache disability had its onset in, or is otherwise attributable to, service. In so doing, the examiner should consider the September 2017 VA treatment record which notes that the Veteran had had headaches on and off for ten years, or since 2007 (which would be during his second period of active service), as well as his contention that his headaches began in service and have continued since. If the examiner finds that it is unlikely that the Veteran's headache disability was incurred in, or is otherwise attributable to service, he or she should offer a further opinion as to whether it is at least as likely as not that his headache disability has been (a) caused or (b) aggravated (i.e., permanently or temporarily worsened beyond natural progression) by his service-connected PTSD. In so doing, the examiner should consider the Veteran's contention that his headaches began when he experienced his first PTSD symptoms. The need for an in-person and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinion(s). A complete medical rationale for all opinions expressed must be provided. 4. Also arrange to have the Veteran scheduled for an examination for purposes of assessing the severity of his service-connected PTSD. After reviewing the record, the examiner should identify all of the Veteran's psychiatric diagnoses that have been present since May 2015 (when the Veteran filed his claim for service connection). To the extent feasible, the examiner should differentiate between the symptoms attributable to the Veteran's service-connected PTSD and his other, non-service-connected psychiatric disabilities, if possible, undertaking any testing deemed necessary. If no such differentiation is possible, that should be noted. In so doing, the examiner should consider the September 2015 VA examination, Mr. A.'s August 2017 PTSD DBQ and IME, the SSA records, and the August 2015, June 2017, July 2017, and January 2019 VA treatment records showing suicidal ideation and/or attempts, as well as the fact that the January 2019 VA treatment records show that the Veteran was admitted for PTSD and substance abuse, but that he was discharged with a diagnosis of anxiety. The examiner should also consider whether any psychiatric disabilities other than PTSD have been (a) caused or (b) aggravated (i.e., permanently or temporarily worsened beyond natural progression) by the Veteran's service-connected PTSD. A complete medical rationale for all opinions expressed must be provided. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.