Citation Nr: 21076398 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 20-29 131 DATE: December 23, 2021 ORDER Entitlement to service connection for major depressive disorder is dismissed. Entitlement to service connection for right wrist disability is granted. Entitlement to service connection for left wrist disability is granted. Entitlement to service connection for headaches, as a residual of a traumatic brain injury (TBI), is granted. Entitlement to an effective date prior to November 27, 2017, for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to an effective date prior to November 27, 2017, for the grant of service connection for bilateral hearing loss is denied. Entitlement to an effective date prior to November 27, 2017, for the grant of service connection for left knee strain is denied. Entitlement to a 70 percent rating for PTSD is granted. Entitlement to a separate 10 percent rating for left knee instability is granted. REMANDED Entitlement to service connection for residuals of TBI, to include dizziness, nausea and blurred vision, is remanded. Entitlement to service connection for the loss of sense of smell is remanded. Entitlement to service connection for right knee disability is remanded. Entitlement to an initial rating in excess of 10 percent for left knee strain is remanded. Entitlement to a compensable initial rating for bilateral hearing loss is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is remanded. INTRODUCTION The Veteran served on active duty from October 2009 to April 2010 and from May 2010 to June 2011, to include combat service in Afghanistan, and his decorations include the Combat Action Ribbon. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. FINDINGS OF FACT 1. During the October 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran stated that he would like to withdraw his appeal as to the issue of entitlement to service connection for major depressive disorder. 2. Resolving reasonable doubt in the Veteran's favor, his right wrist disability is at least as likely as not related to the rigors of his active service. 3. Resolving reasonable doubt in the Veteran's favor, his left wrist disability is at least as likely as not related to the rigors of his active service. 4. Resolving reasonable doubt in the Veteran's favor, his headaches are at least as likely as not related to an in-service TBI. 5. The Veteran filed a claim of entitlement to service connection for PTSD on November 27, 2017. 6. The Veteran filed a claim of entitlement to service connection for bilateral hearing loss on November 27, 2017. 7. The Veteran filed a claim of entitlement to service connection for left knee strain on November 27, 2017. 8. Throughout the appeal, the Veteran's left knee disability is productive of slight instability. CONCLUSIONS OF LAW 1. With respect to the claims of entitlement to service connection for Major Depressive Disorder, the criteria for withdrawal of an appeal by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for right wrist disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for left wrist disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for headaches, as a residual of a TBI, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 5. The criteria for and effective date earlier than November 27, 2017, for service connection of PTSD have not been met. 38 U.S.C. § 7104; 38 C.F.R. § 3.400. 6. The criteria for and effective date earlier than November 27, 2017, for service connection of bilateral hearing loss have not been met. 38 U.S.C. § 7104; 38 C.F.R. § 3.400. 7. The criteria for and effective date earlier than November 27, 2017, for service connection of left knee strain have not been met. 38 U.S.C. § 7104; 38 C.F.R. § 3.400. 8. The criteria for entitlement to a separate disability rating of 10 percent for left knee instability has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Major Depressive Disorder The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. In the present case, during the October 2021 Board hearing, the Veteran requested that the appeal with respect to the claim of entitlement to service connection for Major Depressive Disorder be withdrawn and, hence, there remain no allegations of errors of fact or law for appellate consideration. An oral withdrawal of an appeal, such as one made at the October 2021 Board hearing, must be (1) explicit, (2) unambiguous, and (3) 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 Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). The undersigned Veterans Law Judge specifically asked the Veteran if he wished to withdraw this claim. The Veteran's attorney clearly expressed that this is what the Veteran wanted if the Board was granting a 70 percent rating for PTSD (as is being done herein). The Veteran and his attorney understood that withdrawing this claim meant that it would no longer be pending before VA and that the merits would not be considered by the Board. Thus, the Board does not have jurisdiction to review the appeal and it is dismissed. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Every reasonable doubt is to be resolved in the veteran's favor and is rebuttable only by clear and convincing evidence. 38 U.S.C. § 1154(b). Furthermore, not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 99899 (Fed. Cir. 2012). However, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Right and Left Wrists The Veteran asserts that his right and left wrist disabilities were incurred in or due to his active service. Specifically, during the October 2021 Board hearing, the Veteran testified that his current wrist disabilities resulted from the rigors of his active service. The Veteran received a Combat Action Ribbon for his active service. The evidence of record includes current diagnoses of bilateral wrist disability. Post-service treatment records demonstrate the presence of bilateral carpal tunnel syndrome, as well as bilateral wrist pain. In light of the diagnoses and the existence of bilateral wrist pain resulting in functional loss, the Board finds that the first element of service connection is met. See Saunders v. Wilkie, 886 F.3d 1356, 136768 (Fed. Cir. 2018) ("To establish the presence of a disability, a veteran will need to show that [their] pain reaches the level of a functional impairment of earning capacity."). In-service wrist injuries are consistent with the circumstances, conditions, or hardships of the Veteran's combat service. As such, VA must presume the occurrence of the in-service injury. See 38 U.S.C. § 1154(b). The Board finds that the evidence is not sufficient to rebut the presumption that the Veteran's right and left wrist disabilities became manifest during combat service. Since the evidence indicates that the Veteran's right and left wrist disabilities had their onset during service, the Veteran is entitled to service connection for right and left wrist disability. Headaches The Veteran asserts that his current headaches are the result of in-service exposure to improvised explosive devices. The Veteran asserts that he has experienced headaches since such exposure. Despite the absence of post-service treatment records demonstrating complaints of or treatment for headaches, the Board finds the Veteran's report of lay observable symptoms to be competent and credible evidence. Giving the Veteran the benefit of the doubt, the Board finds that the evidence of record includes a current diagnosis of headaches. The Veteran's service treatment records demonstrate that he was exposed to "blasts," that were characterized, in part, as trauma. This, in addition to the Veteran's combat service, establishes the occurrence in-service TBI. Reeves, 682 F.3d at 99899. The Board finds that the evidence is not sufficient to rebut the presumption that the Veteran's headaches became manifest during combat service. Since the evidence indicates that the Veteran's headaches had its onset during service, the Veteran is entitled to service connection for headaches as a residual of an in-service TBI. Effective Dates The Veteran filed claims of entitlement to service connection for PTSD, bilateral hearing loss, and left knee disability that was date-stamped as received by VA on November 27, 2017. There is no document of record that can be construed as a formal or informal claim for service connection for PTSD, bilateral hearing loss, and left knee disability prior to November 27, 2017. In addition, the Veteran has presented no theory or argument why he is entitled to an effective date earlier than November 27, 2017, for the award of service connection for PTSD, bilateral hearing loss, and left knee disability. Thus, November 27, 2017, is the earliest possible effective date for the grant of service connection for PTSD, bilateral hearing loss, and left knee disability. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Increased Ratings Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). PTSD Throughout the pendency of this appeal, the Veteran's service-connected PTSD has been assigned a 50 percent rating. PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Ratings are assigned according to the manifestation of symptoms and the extent to which they cause occupational and social impairment. See Bankhead v. Shulkin, 29 Vet. App. 10, 18 (2017); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). Under the General Rating Formula for Mental Disorders, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. The symptoms listed in General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). In January 2018, the Veteran underwent a VA examination to ascertain the presence of severity of PTSD. After reviewing the Veteran's relevant history and his in-service stressors, the examiner rendered a diagnosis of PTSD. The examiner determined that the Veteran's PTSD was manifested by depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, difficulty in understanding complex commands, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The Veteran discussed his post-service difficulties with alcohol consumption, the end of his engagement due to his alcohol use and violence during sleep, and incidents involving weapons. The Veteran had been married to his wife for 4 years at the time of the examination. He stated that she helped him "stabilize" and secure and maintain "good" employment. Despite this improvement, the examiner determined that the Veteran continued to experience PTSD symptoms and struggled with refraining from alcohol use. Ultimately, the examiner opined that the Veteran's PTSD 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. During the October 2021 Board hearing, the Veteran testified that he experienced suicidal ideations as an aspect of his PTSD. The evidence supports a finding that the Veteran's disability picture for PTSD has more nearly approximated occupational and social impairment with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood) for the entire appeal period. The frequency, severity, and duration of the Veteran's impairment and assessing his disability picture, the Board finds that the evidence of record demonstrates that disability due to the Veteran's PTSD approximates the schedular criteria for a rating of 70 percent throughout the pendency of the appeal. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). During the October 2021 hearing, the Veteran testified that the grant of an initial rating of 70 percent for PTSD would constitute a full grant of the benefit sought on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). As the grant contained herein fully grants the benefit sought on appeal, further adjudication is not required. Left Knee The Veteran contends that his left knee disability is more disabling than contemplated. Throughout the pendency of this appeal, a single 10 percent rating has been assigned under Diagnostic Code 5260. This aspect of the Veteran's appeal will be addressed in the remand portion of the decision below. The Board finds that the Veteran is entitled to a separate rating for his left knee instability, however, under diagnostic code 5257. 38 C.F.R. § 4.71a. Under Diagnostic Code 5257, the criteria for impairment of the knee, 10, 20, and 30 percent evaluations are assigned for slight, moderate, and severe recurrent subluxation or instability, respectively. Id. The terms "slight," "moderate," and "severe" are not defined in the regulations. Knee subluxation is when the patella of the knee moves out of normal positioning and knee instability is either the feeling that one's knee is about to give out or a catching or locking of the joint causing swelling and inability to straighten. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). Effective February 7, 2021, the new regulation changed Diagnostic Code 5257 from the subjective terms to detailed types of instability resulting in specific types of impairments. VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. Here, because the period under consideration the effective dates of the revised regulations, the Board will consider this claim under the former regulation only. Id. at 467; cf. VAOPGCPREC 3-2000 (which contemplates an appellate period that both precedes and succeeds the effective date of the regulatory change). During a January 2018 VA examination, the Veteran reported that his left knee "gave out" on him during various activities. Clinical testing did not demonstrate the presence of joint or lateral instability. In November 2019, the Veteran underwent another VA examination that yielded similar results. During the October 2021 hearing, the Veteran testified that he experienced left knee weakness and, when he engages in rigorous activity, he will experience instability multiple times in a week. Such limitation warrants a 10 percent rating, and no more, under Diagnostic Code 5257 because the preponderance of the evidence is against a finding of moderate instability. REASONS FOR REMAND With respect to the service connection claims for residuals of TBI (beyond headaches), loss of sense of smell, and right knee disability, the Board finds that a remand is required in order to provide the Veteran with VA examinations. With respect to left knee and bilateral hearing loss, the Board finds that a remand is required in order obtain more recent findings as to the severity of these disabilities. Green v. Derwinski, 1 Vet. App. 121 (1991). The issue of entitlement to TDIU has been raised by the Veteran. See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Remanding this issue is required for development by the RO in the first instance and is otherwise inextricably intertwined with the claims being remanded herein. Consequently, remand for contemporaneous consideration is warranted. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Develop and adjudicate the issue of entitlement to TDIU, to include consideration of the claims remanded here. 2. Provide the Veteran with a VA examination regarding his residuals of TBI (other than headaches), loss of sense of small, and right knee disability. The Veteran's electronic claims file must be made available to the examiner, and the examiner must specify in the report that it was contemporaneously reviewed. All pertinent symptomatology and findings must be reported. Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted. The relevant examiner should then provide an opinion as to the following: (a) whether it is at least as likely as not that the Veteran experiences any residuals of in-service TBIs (beyond headaches), presuming that the Veteran was exposed to blasts from IEDs and other explosions; (b) whether it is at least as likely as not that the Veteran experiences a loss of his sense of smell and, if so, whether it was incurred in or due to his active service, specifically considering and discussing his exposure to in-service blasts and other explosions; (c) whether it is at least as likely as not that the Veteran's current right knee disability was incurred in or due to his active duty, to include combat operations, specifically considering and discussing the Veteran's assertions as to in-service events and injuries; and (d) whether it is at least as likely as not that the Veteran's current right knee disability was caused or aggravated by a service-connected disability, specifically, but not limited to, his left knee disability, considering and discussing the Veteran's reports of onset, symptoms, and progression. All rendered opinions must be supported by a thorough rationale. 3. Provide the Veteran with VA examinations regarding his left knee and bilateral hearing loss. The Veteran's electronic claims file must be made available to the examiner, and the examiner must specify in the report that it was contemporaneously reviewed. All pertinent symptomatology and findings must be reported. Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted. The examiner is asked to assess the severity of the Veteran's left knee disability and bilateral hearing loss. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sean G. Pflugner, 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.