Citation Nr: 21024124 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-59 298 DATE: April 22, 2021 ORDER Entitlement to service connection for a bilateral hip disability is dismissed. Entitlement to an initial rating of 50 percent for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for bilateral carpel tunnel syndrome (CTS) is remanded. Entitlement to an increased rating for a right shoulder disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to promulgation of a decision in the appeal, the Veteran and his representative indicated in a December 2017 letter that the Veteran would like to withdraw his appeals regarding entitlement to service connection for a bilateral hip disability. 2. The Veteran’s PTSD is manifested by occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal regarding entitlement to service connection for a bilateral hip disability. 38 U.S.C. § 7105; 38 C.F.R. § 19.55, 20.204. 2. The criteria for entitlement to a rating in excess of 50 percent for PTSD, but not greater, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1999 to December 2009. The Veteran had a hearing before the undersigned Veterans Law Judge in February 2020. A transcript has been associated with the file. Dismissed Claim The veteran or the veteran’s representative may withdraw an appeal as to any or all issues on appeal. 38 C.F.R. § 20.204(a). Except for appeals withdrawn on the record at a hearing, withdrawal must be in writing. 38 C.F.R. § 20.204(b)(1). A withdrawal is effective when received provided that receipt is prior to the issuance of a decision by the Board. 38 C.F.R. § 20.204(b)(3). Withdrawal of a claim constitutes a withdrawal of the notice of disagreement and, if filed, the substantive appeal. 38 C.F.R. § 20.204(c). In a December 2017 letter, the Veteran’s representative indicated the Veteran’s desire to withdraw his appeal regarding his claim to entitlement to service connection for a bilateral hip disability. There remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this appeal and it is dismissed. Increased Rating Claim Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran’s claim is to be considered. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran’s mental health disability is currently rated under DC 9411. Under DC 9411, a 30 percent rating is warranted for occupational and social impairment with occasional decreases in work efficiencies 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, mild memory loss (such as forgetting names, directions, recent events.) A 50 percent evaluation for PTSD requires 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; and, difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is prescribed when there is evidence of 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 which 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 work like setting); and inability to establish and maintain effective relationships. A 100 percent rating is prescribed when there is evidence of total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations, grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation as to time or place; and memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). The Veteran contends his PTSD is worse than indicated by his 30 percent rating. In his February 2021 hearing, the Veteran said he hadn’t had treatment for his PTSD since 2016 because he didn’t feel comfortable going to VA for treatment and has not had private treatment because of a lack of faith in the medical system. The Veteran said he couldn’t hold a job because he didn’t like being around people. The Veteran last worked in 2014 regularly. In 2018, the Veteran said he worked for two months, helping a friend. In 2014, he was working at a parts shop and he quit because of stress and anger at being around other people. The Veteran reported that being around others caused loss of concentration and a feeling of a fight or flight response and that he didn’t like supervision. The Veteran said he may have some memory and impulse problems. The Veteran said he didn’t create relationships and that he had “six friends and that’s it.” The Veteran said he pulled away from his family because they don’t understand him. The Veteran said a bad day with his PTSD is that he doesn’t sleep, avoids everyone, won’t go outside. The Veteran had an examination for his PTSD in October 2016. The examiner reviewed the Veteran’s record, saw him in person, and opined his PTSD led to occupational and social impairment due to mild or transient symptoms. The Veteran stated he had good relations with his parents until his father died and still has a good relationship with his mother. The Veteran also reported renewing friendships from before his time in service, but has not maintained friendship with anyone from his time in service. The Veteran stated he liked to avoid crowds and driving more than necessary. The Veteran completed high school and worked laying carpet. After his time in service, the Veteran worked at a deli department for four to five months before leaving for college. The Veteran completed three years of college. The examiner reported the Veteran’s symptoms included depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The Veteran was oriented and alert with normal thoughts and speech and he did not have any psychotic processes with intact judgement and insight. The Veteran denied suicidal and homicidal ideations. The Veteran had a private examination for his PTSD in April 2020 via telehealth. This examiner, after reviewing the Veteran’s file, opined the Veteran’s PTSD led to total occupational and social impairment. Pertaining to the Veteran’s social history, the examiner noted the Veteran had not been married but had a “normal” dating life. The examiner said the Veteran was underplaying his social history, which was characteristic of people suffering from TPSD emotional numbing. The Veteran said his longest relationship was for two to three years. The Veteran was living with his mother. The Veteran reported his social functioning was a five on a one to 10 scale. Regarding his occupational impairment, in response to his PTSD interfering with his work, the Veteran said he “didn’t know.” The Veteran reported his symptoms were a four out of a 10 on a one to 10 scale. The Veteran reported his work impairment due to PTSD was about a three. The examiner said the Veteran had significant impairments in excess of the subjective ratings. The Veteran stated that he didn’t seek treatment because he didn’t trust people. The examiner said his paranoia would make it difficult for him to find a therapist he liked or trusted. The Veteran began drinking alcohol as a teenager and continues to drink and continues to smoke marijuana. The examiner found the Veteran’s symptoms included depressed mood, anxiety, suspiciousness, near continuous panic or depression, flattened affect, disturbances of motivation and mood, and difficulty establishing and maintaining effective work relationships. The Veteran was cooperative, but uneasy. The examiner reported the Veteran’s concentration was normal with speech patterns that “tended to be relevant, coherent, and appropriate,” with ability to abstract and calculate within normal limits. The Veteran denied suicidal ideations, obsessions, compulsions, rituals, and mania, but did endorse anger at himself and depression. The Veteran was also oriented with his memory broadly intact with sleep patterns reported to be adequate. The examiner opined the Veteran’s PTSD rendered him unemployable. March 2013 and July 2014 PTSD and depression screenings were negative. The Veteran clearly struggles with his mental health. Regarding his occupational impairment, the Veteran has self-reported his PTSD leads to a level three out of 10 impairment in his ability to work and the October 2016 examiner also found mild effect of his PTSD on his ability to work. Pertaining to his social impairment, the Veteran has said over the years that he is close with his mother and indeed, is currently living with her. It seems that he does date, but has not had any significantly long relationships. The Veteran has also said that while he gets anxiety and has trouble being around groups of people, he does have some friends. While the April 2020 examiner opined the Veteran’s symptoms lead to total occupational and social impairment, the Board must weigh that overall conclusion against the reported symptoms by both examiners and the Veteran at to some points. The Board finds the evidence does not support the conclusion the Veteran’s PTSD leads to total occupational and social impairment. For instance, no examiner, including the April 2020 examiner, has found the Veteran has gross impairment of thought processes, persistent delusions or hallucinations, grossly inappropriate behavior, an intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss so severe he forgets his name or that of close relatives. Additionally, the Veteran has denied suicidal and homicidal ideations. The Veteran’s record show symptoms that would lead to occupational and social impairment such as, for example, depressed mood, anxiety, suspiciousness, near continuous panic attacks, and disturbances of motivation and mood. The Veteran clearly has problems (this is the basis of the 50% findings. However, the Board, when looking at the totality of the Veteran’s symptoms, finds that they most closely approximate those warranting a 50 percent rating. There is little, if any, evidence of deficiencies in most areas. Regarding the claim above, the Board acknowledges the Veteran’s statements that his PTSD continues to affect his daily life and still causes symptoms. However, while the Veteran is competent to report the symptoms of his disability, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his complex mental health condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board lends more weight to the examinations of record and has weighed them as discussed above. The Board also finds the VA examinations to be adequate as the examiners reviewed the Veteran’s file, saw him in person, accounted for his statements as well as his medical history, and offered opinions backed by detailed explanations. It is important for the Veteran to understand that the most probative medical evidence of record provides evidence against this claim that the Board cannot, unfortunately, ignore. This does not mean that the Veteran’s PTSD does not cause him problems. Clearly, the Veteran’s PTSD continues to cause him problems; the only question is the degree. The Board has also carefully considered the April 2020 examiner’s conclusion that the Veteran’s symptoms lead to total occupational and social impairment, but finds that this overall conclusion is outweighed by this examiner’s own description of the Veteran’s symptoms, his other examination, the medical records, and the Veteran’s own statements. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990) REASONS FOR REMAND The Board finds a remand is appropriate for the Veteran’s claims to service connection for bilateral carpal tunnel syndrome and a neck disability and his claim to an increased rating for his right shoulder disability. In his February 2020 hearing, the Veteran reported his right shoulder symptoms had gotten worse since his last examination in 2016, but that he hadn’t had treatment since 2018. Because it has been five years since his last examination, the Board finds a remand is warranted to obtain a contemporaneous examination. Snuffer v. Gober, 10 Vet. App. 400, 403(1997). Pertaining to his claims to service connection for bilateral CTS and a neck disability, the Board notes the Veteran had previously had examinations scheduled in 2018 for these disabilities, but the Veteran failed to report. However, in his February 2020 hearing, the Veteran stated he was willing to report for examinations. The Veteran has stated his neck pain began in service due to the weight of his body armor and that he gets headaches. The Veteran also reported surgery on both hands, which he believed was caused by typing the blotter all day and that he did not have any problems prior to service and that his symptoms began in service. He was diagnosed with CTS after service, which is why he had surgery. The Veteran reported surgery helped and he doesn’t have burning anymore, but still did have numbness and some pain. Therefore, the Board finds another attempt at providing the Veteran with examinations is warranted to determine the nature and etiology of the Veteran’s claimed disabilities. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The record indicates the Veteran may be unable to secure gainful employment due to his service-connected disabilities. This claim is inextricably intertwined with the matters on remand and therefore, the matter of entitlement to a TDIU will also be remanded. The matters are REMANDED for the following action: 1. The AOJ should obtain any of the Veteran’s outstanding medical records and associate them with the claims file. If possible, the Veteran himself should submit any pertinent evidence regarding the condition at issue in order to expedite the claim. 2. Schedule the Veteran for an appropriate VA examination for his 1) neck disability and his 2) bilateral carpel tunnel syndrome. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner should opine as to the following for each disability: (a) Does the Veteran have a diagnosis of his claimed condition? (b) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s disability was incurred during his time in service. (c) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s disability is proximately due to any of his service-connected disabilities. (d) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s disability was aggravated by any of his service-connected disabilities. (e) If the examiner finds the Veteran’s disability pre-existed service, whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s disability was aggravated beyond its natural progression by his time in service. The examiner should offer a rationale for any opinion offered and specifically address the Veteran’s contentions and statements about his symptoms while in service. (Continued on the next page)   3. Schedule the Veteran for an appropriate VA examination to determine the current severity of his right shoulder disability. All appropriate testing should be performed. 4. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran’s claim, to include his claim to a TDIU. If the benefit sought on appeal remains denied, issue to the Veteran and the Veteran’s representative a supplemental statement of the case and give an opportunity to respond thereto. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Snoparsky 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.