Citation Nr: 21072567 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 19-22 875 DATE: December 3, 2021 ORDER The appeal for an increased disability rating in excess of 10 percent for degenerative joint disease (DJD) left shoulder status post arthroscopy with impingement syndrome is dismissed. The appeal for an increased disability rating in excess of 10 percent for thoracolumbar scoliosis with compression fractures is dismissed. The appeal for an increased disability rating in excess of 10 percent for cervical spine scoliosis is dismissed. REMANDED Entitlement to an increased disability rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) with major depressive disorder, single type, and panic disorder without agoraphobia is remanded. Entitlement to an increased disability rating in excess of 30 percent on an extraschedular basis for hyperhidrosis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT During his April 2021 Board hearing, the Veteran requested to withdraw from appellate status the issues of entitlement to an increased disability rating for service-connected DJD of the left shoulder, service-connected thoracolumbar spine scoliosis, and service-connected cervical spine scoliosis. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal as to the issue of entitlement to a disability rating in excess of 10 percent for the service-connected DJD left shoulder status post arthroscopy with impingement syndrome by the appellant and his authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of a substantive appeal as to the issue of entitlement to a disability rating in excess of 10 percent for the service-connected thoracolumbar spine scoliosis with compression fractures by the appellant and his authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of a substantive appeal as to the issue of entitlement to a disability rating in excess of 10 percent for the service-connected cervical spine scoliosis by the appellant and his authorized representative 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 from January 2000 to March 2000 and from January 2001 to February 2013. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Boston, Massachusetts. The Veteran timely filed a notice of disagreement (NOD) in October 2016 and substantive appeal via a VA Form 9 in August 2019. In April 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. WITHDRAWAL OF CLAIMS Entitlement to a disability rating in excess of 10 percent for DJD left shoulder status post arthroscopy with impingement syndrome Entitlement to a disability rating in excess of 10 percent for thoracolumbar spine scoliosis with compression fractures Entitlement to a disability rating in excess of 10 percent for cervical spine scoliosis A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision, and an appeal may be withdrawn as to any or all issues involved in the appeal. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative and must be in writing unless the appeal is withdrawn on the record at a hearing. 38 C.F.R. § 20.204. The Veteran was seeking entitlement to an increased disability ratings: in excess of 10 percent for DJD left shoulder status post arthroscopy with impingement syndrome, in excess of 10 percent for thoracolumbar spine scoliosis with compression fractures, and in excess of 10 percent for cervical spine scoliosis. He perfected his appeal in August 2019. During his April 2021 hearing before the Board, the Veteran, through his representative, stated that he wished to withdraw his claims for entitlement to disability ratings in excess of 10 percent for DJD left shoulder status post arthroscopy with impingement syndrome, thoracolumbar scoliosis with compression fractures, and cervical spine scoliosis. "[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." Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Moreover, a Board determination that a claimant validly withdrew his appeal orally must include a "finding regarding whether [the appellant] understood the consequences of withdrawing his claims." Acree v. O'Rourke, 891 F.3d 1009, 1015 (Fed. Cir. 2018). During the April 2021 Board hearing, the representative discussed with the Veteran the ramifications associated with his request for withdrawals to include the fact that the Board will not be issuing a decision on these claims and will be dismissing them. The Veteran testified that he understood that he will keep the current ratings that he has. He also testified that if these conditions worsen in the future, he can refile for them at that point, but he will only be awarded from a later effective date as of the time that he files that claim. The Veteran testified that he understood what he discussed with his representative. Given this discussion during the Board hearing, the Board finds that the Veteran fully understood the consequences of withdrawing the appeal as to the issues of entitlement to disability ratings in excess of 10 percent each for DJD left shoulder status post arthroscopy with impingement syndrome, thoracolumbar spine scoliosis with compression fractures, and cervical spine scoliosis. As the Veteran validly withdrew his appeal of the denial of these claims, there is effectively no longer any remaining allegation of error of fact or law concerning the issues of entitlement to disability ratings in excess of 10 percent each for DJD left shoulder status post arthroscopy with impingement syndrome, thoracolumbar spine scoliosis with compression fractures, and cervical spine scoliosis. See 38 U.S.C. § 7105(d)(5). Accordingly, the Board does not have jurisdiction to review these claims, and they are dismissed. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 70 percent for PTSD with major depressive disorder, single type, and panic disorder without agoraphobia is remanded. The Veteran contends that the symptoms of his psychiatric disability warrant in increased disability rating. At this time, an accurate picture of his disability is not of record. An August 2016 VA examination report reflects that the VA examiner found that the Veteran appeared to respond to items in a consistent manner; however, his pattern of responses indicated over-reporting of symptomatology. Specifically, his responses included both an unusual combination and high number of somatic, cognitive, and neurological symptoms as compared to other veterans that have genuine severe psychological, neurological, and/or medical diagnosis who report credible symptoms. This pattern of responding may occur for a variety of unconscious or conscious reasons, none of which can be ruled in or out at this time. As a result, the Veteran's clinical and substantive scales cannot be reliably interpreted. An additional VA examination has not been obtained. However, the Veteran has submitted examinations from private clinicians. A September 2017 Disability Benefits Questionnaire (DBQ) report reflects that the Veteran had a diagnosis of PTSD, depressive disorder, and cannabis dependence. The examiner reported that it is not possible to differentiate what symptoms are attributable to each diagnosis. The examiner found occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. His psychiatric symptoms were noted as depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; flattened affect; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationship; difficulty adapting to stressful circumstances; suicidal ideation; passive anxiety with continual cold, very sweaty hands; and severe hypervigilance. A March 2019 VA psychology treatment note reflects that the Veteran was alert, attentive, fully-oriented, cooperative, expressive, had a subdued mood but less anxious, less depressed than earlier session, had no suicidal ideation or homicidal ideation, no hallucinations, no delusions and no disorganized thinking. His hygiene was appropriate. There are no more VA psychiatric records following this treatment note associated with the claims file. During the April 2021 Board hearing, the Veteran testified that his psychiatric symptoms were depression, lack of motivation, crying, nightmares, difficulty sleeping, trust issues, hypervigilance, and overall struggling. He testified that his depression impacts his motivation to maintain his own hygiene. He reported that unless his wife tells him, he does not care. He testified that he has crying spells two to three times a week. He testified that thoughts of deployment triggers his crying spells. He testified that he suffered from suicidal thoughts two to three times a week. He reported he was last hospitalized for suicidal thoughts in 2013. He testified that he gets rattled really easily and if things do not go his way, he gets irritated for anything. He testified that he has road rage. He testified he is able to drive and drives his kids to school. He testified his anger has never turned physical, but he has had really bad arguments. He reported that at times he has thrown objects or punched things. He testified that he has difficulty with focusing and memory. He forgets things like appointments and some names. He testified that he had difficulty sleeping and sleeps about 6 hours a night broken up. Because of his lack of sleep, he feels tired and not motivated as well as irritated. He testified that he saw shadows when he is by himself two to three times a week. He testified that he checks doors, windows and anything that has a lock constantly. He testified that he does not socialize very well with new people and keeps his circle very small. He has neighbors that are Veterans that he talks to. He testified that he didn't talk to his mom for a year and a half. He also testified that he rarely talks to his siblings. An August 2021 Independent Medical Evaluation report reflects that Dr. R.S. found that the Veteran has deficiencies in mood; persistent irrational fears; persistent delusions or hallucinations; persistent danger of hurting self or others; deficiencies in work or school; depression affecting the ability to function independently, appropriately, and effective; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; intrusive recollections of a traumatic experience; disorientation to time or place; unprovoked hostility and irritability; inability to establish and maintain effective relationships; deficiencies in judgment; and suicidal ideation. The clinician opined that the Veteran was incapable of performing gainful employment with symptoms and limitations stemming from his psychological impairment. As rationale, he reported that the Veteran reported significant intrusive recollection of traumatic events. He reported on-going, recurring images/flashbacks of dead bodies. He reported suicidal ideation wanting to end his life which he referred as hopeless and that he put a gun to his head four or five years ago but decided to lock it up with the ammunition and give his wife the key. He reported disassociation, time, or place disorientation with on-going flashbacks as reported above. The clinician reported that he has significant paranoia and hypervigilance, checking doors and windows multiple times at night, at times walking his property or at least looking out the window for possible intruders who could perpetrate violence against him and/or his family, expressing how he needs to watch his back and surroundings. He chooses to stay at home as much as possible rather than placing himself and others at risk as he experiences markedly limited frustration tolerance and is fearful that he might strike out at other people. He suffers from periods of irritability/hostility/psychomotor agitation, blunt, flat or inappropriate affect having broken countless items and punched holes in the walls, doors, ruined multiple items, and done damage to his mother's home. He reported being frequently tearful adding that he is easily overwhelmed. He reported repeating nightmares and flashbacks repeatedly reliving experiences from his four different tours. He has markedly diminished frustrate tolerance, becomes easily agitated and hostile with road rage that both he and his wife noted. He does not have to be the driver of the car to experience violent periods of road rage, at times frightening his wife and children. He reported anhedonia, isolation, depression with visual hallucinations, and anxiety. He has flashbacks that can be brought on by news, television shows, or movies with violent scenes and/or scenes about war. He has intrusive recollection of traumatic events feeling guilty and filled with shame. The clinician noted that his present degree of mental illness has existed since June 30, 2016. Dr. R.S. reported that the Veteran's degree of mental illness from the date of the examination in 2021 existed since June 20, 2016. This would mean that the severity of his psychiatric disability documented by Dr. R.S. was present at the time of the August 2016 VA examination where the VA examiner found that the Veteran was over-reporting his symptoms. Additionally, VA treatment records from 2019 reflect no reports or findings of suicidal ideation or homicidal ideation, no hallucinations, no delusions and no disorganized thinking. VA's duty to assist a Veteran includes providing a thorough and contemporaneous examination when the record does not adequately reveal the current state of the Veteran's disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Green v. Derwinski, 1 Vet. App. 121, 124). The record is inadequate and the need for a contemporaneous examination occurs when the evidence indicates that the current rating may be incorrect due to the passage of time and a possible increase in disability. Hart, 21 Vet. App. at 508 (citing, inter alia, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) ("Where the appellant complained of increased hearing loss two years after his last audiology examination, VA should have scheduled the appellant for another examination"). See also 38 C.F.R. § 3.327 (Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect"). It is not clear from the evidence of record what the Veteran's current disability picture is. While the Veteran submitted a private medical examination from Dr. R.S., this report contradicts the evidence of record. Additionally, Dr. R.S. did not indicate that he reviewed the prior examinations and any mental health treatment that the Veteran has received. A remand is appropriate in order for the Veteran to undergo a new VA examination. 2. An increased disability rating in excess of 30 percent on an extraschedular basis for hyperhidrosis is remanded. The Veteran contends that his hyperhidrosis warrants an extraschedular rating. His hyperhidrosis is rated under DC 7832 as 30 percent disabling. A maximum 30 percent rating is warranted when the veteran is unable to handle paper or tools because of moisture, and unresponsive to therapy. This Diagnostic Code contemplates the ameliorative effects of medication. Jones v. Shinseki, 26 Vet. App. 56 (2012). During the April 2021 Board hearing, the Veteran testified that he cannot sustain a job because he always has to walk around with a rag. He testified that his feet are always sweating, and he has to change socks every two to three hours. He testified this makes his feet painful. His contention is that the condition is so severe that it, alone, would hamper his ability to work in any significant fashion and that he cannot grasp or hold any objects for a long period of time. Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms, i.e., marked interference with employment and frequent hospitalization. If the disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. In determining whether a remand is warranted for referral to the Director of Compensation is warranted under 38 C.F.R. § 3.321 (b)(1), the question is whether there is "sufficient evidence to substantiate a reasonable possibility that 'application of the regular schedular standards' is impractical because the disability is 'exceptional or unusual... with such related factors as marked interference with employment or frequent periods of hospitalization.'" Smiddy v. Wilkie, 32 Vet. App. 350 (2020) (quoting 38 C.F.R. § 3.321 (b)(1)). The Veteran, in essence, asserts that his disability picture is not adequately contemplated by the rating schedule and that his disability causes marked interference with employment. Accordingly, referral to the Director of Compensation Services to address whether an extraschedular rating for his hyperhidrosis is warranted. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. The Veteran contends that he is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The Veteran's service-connected disabilities meet the threshold percentage requirements set forth in 38 C.F.R. § 4.16(a) for consideration of a TDIU on a schedular basis During the April 2021 Board hearing, the Veteran testified that he finished an Associate's degree and does not have any other vocational training. He testified that he last worked in 2013 at the postal service. He testified that he worked there for about a month. The job ended because he could not handle the stress on his feet as well as his hands. He also testified that the stress from the manager was horrible. He testified that he tried Uber and did not make over 12,000 dollars in any given year. He testified that prior to that, he worked with the military. He is in receipt of social security benefits awarded in 2018 that was based on his mental health condition. He also testified that problems getting along with people, attention and concentration also impact his ability to work. He testified that his lumbar and cervical spine disabilities impact his ability to work. He testified that due to his lumbar spine disability, he cannot sit for too long. He reported that he has to stand up and walk around for a little bit and he cannot stand for too long in one place. His left shoulder is painful, and he has to take a break from heavy lifting. The ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (interpreting 38 C.F.R. § 4.16 (a)). However, as medical professionals are responsible for providing a full description of the effects of disability upon the person's ordinary activity, the Board finds that medical comments fully describing the individual and combined functional effects of the Veteran's service-connected disabilities on his activities of daily living, particularly, employment, would be most helpful in resolving the claim for a TDIU. See 38 C.F.R. § 4.10 (2017); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013)). Accordingly, a remand of this matter is needed to obtain an opinion addressing such comments from an appropriate physician one with occupational and/or vocational expertisebased on claims file review (if possible). See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The RO should only arrange for the Veteran to undergo VA examination, by an appropriate physician, if one is deemed necessary in the judgment of the physician designated to provide the opinion. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records from the Pasco Clinic for the period since March 2019; and all such relevant records from any other sufficiently identified VA facility. 2. Schedule the Veteran for a VA examination to evaluate the current severity of the service-connected psychiatric disability. All indicated tests and studies should be performed and findings reported in detail. The claims folder must be made available to the examiner for review prior to examination. The examiner should also address the August 2016 VA examination report where the examiner alleged that the Veteran was overreporting and the August 2021 private medical examination from Dr. R.S. and resolve any inconsistencies. 3. Refer the issue of entitlement to an extraschedular rating for the service-connected hyperhidrosis to the Director of Compensation and Pension Services for extraschedular evaluation under 38 C.F.R. § 3.321(b). 4. Arrange to obtain from a physician or other appropriate clinician (if possible with occupational and/or vocational expertise) an opinion addressing the individual and combined occupational functional effects of all the Veteran's service-connected disabilities, based on the claims file review. Only arrange for the Veteran to undergo examination, by an appropriate clinician, if one is deemed necessary in the judgment of the physician designated to provide the opinion. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the clinician prior to completion of the medical opinion, and the medical opinion must reflect that the claims folder was reviewed. The clinician should fully describe functional effects of each of the Veteran's service-connected disabilities on his activities of daily living, to include employment. (Continued on the next page) In particular, the clinician should describe what types of employment activities would be limited because of the service-connected disabilities, what types of employment would not be limited (if any), and whether any limitation on employment is likely to be permanent. A complete, clearly-stated rationale for the conclusions reached must be provided. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laroche, N. 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.