Citation Nr: 21024839 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-23 105 DATE: April 26, 2021 ORDER 1. The appeal to reopen the claim of service connection for a left shoulder disability, to include as secondary to service-connected right shoulder disability is dismissed. 2. A 100 percent rating is granted for posttraumatic stress disorder (PTSD), subject to the regulations governing payment of monetary awards. FINDINGS OF FACT 1. In September 2019 correspondence, prior to the promulgation of a decision in the matter, the Veteran withdrew in writing his outstanding appeal for which he sought a video conference hearing; there is no question of fact or law in the matter remaining for the Board to consider. 2. The Veteran’s PTSD is shown to most closely approximate manifestations of total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal are met with respect to the claim of service connection for a left shoulder disability, to include as secondary to a service-connected right should disability; the Board has no further jurisdiction to consider an appeal in the matter. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.55, 20.205. 2. The criteria for a rating of 100 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (Code) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from May 1997 to June 2003. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision, which denied service connection for a left shoulder disability and a September 2016 rating decision, which denied a rating in excess of 70 percent for PTSD. 1. The appeal to reopen the claim of service connection for a left shoulder disability, to include as secondary to service-connected right shoulder disability is dismissed. The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination on the matter on appeal. 38 U.S.C. § 7105. An appeal may be withdrawn at any time before the Board promulgates a decision. Withdrawal may be made by the appellant, and must be in writing or on the record at a hearing. 38 C.F.R. § 20.204. On a May 2016 VA Form 9, the Veteran selected a hearing by live video conference, and appealed only the issue of service connection for a left shoulder disability. See May 2016 VA Form 9. In September 2019 correspondence, the Veteran withdrew his request for a video conference hearing and stated he “no longer have any issues to disagree with.” Upon review of the record, the Board finds that the matter of service connection for a left shoulder disability was the only outstanding issue for which the Veteran sought a video conference hearing. The Board therefore finds the Veteran’s September 2019 request to withdraw the matter for which the Veteran sought a video conference hearing to adequately withdraw the Veteran’s claim of service connection for a left shoulder disability. 38 C.F.R. §§ 20.202, 20.204(b), 20.1100(b). Accordingly, there is no allegation of error of fact or law in this matter for the Board to consider, and the Board no longer has jurisdiction to consider an appeal in the matter. 2. A 100 percent rating for PTSD is granted. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. PTSD is rated under Code 9411 and the General Rating Formula for Mental Disorders, which provides for a 100 percent rating when there is 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 to time or place; memory loss for names of close relatives, own occupation, or own name. A 70 percent rating is warranted when there is 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); inability to establish and maintain effective relationships. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the United States Court of Appeals for Veterans Claims noted that the list of symptoms in the Board’s general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather is to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The instant claim for increase was received on May 25, 2016. Accordingly, the period for consideration begins one year prior, May 25, 2015. An August 2015 mental health treatment record notes the Veteran was seen with significant issues and symptoms of PTSD. It was noted that the Veteran was not doing well on his medication. Symptoms reported by the Veteran were frequent nightmares, avoidance, hyper alertness. A September 2015 mental health treatment record notes the Veteran was seen with PTSD symptoms. The provider noted the Veteran continued to do very poorly, and had not responded favorably to any psychotropic medications. It was noted the Veteran was very anxious whenever he hears airplanes. It was noted that the Veteran had isolated himself from his wife and children, and was increasingly depressed with persistent panic attacks. A March 2016 mental health treatment record notes the Veteran was seen with significant symptoms, and continued difficulties, especially with planes overhead. The Veteran’s sleep was noted as erratic, and it was noted that the Veteran’s depression was persistent. In April 2016 correspondence, a VA psychiatrist reported that the Veteran had been treated for severe PTSD since April 2013. The provider noted that despite the Veteran’s compliance with his treatment, his condition had deteriorated to the point where he must now be considered totally and permanently disabled. The provider noted that the Veteran should be permitted to leave his employment due to medical disability. In May 2016 correspondence, the Veteran’s VA psychiatrist described the Veteran’s PTSD as severe. The provider noted the Veteran continued to have frequent flashbacks, frequent nightmares, avoidance, exaggerated startle and hyper alertness, and severe depression. The provider noted that despite the Veteran being cooperative and compliant with treatment that he continued to be highly symptomatic. A June 2016 mental health treatment record notes the Veteran was seen for PTSD. The Veteran reported that he continued to have flashbacks, and had minimal contact with everyone and only related to his two pit bulls, with no interest in anything A July 2016 mental health walk-in treatment record notes the Veteran was seen with complaints of not sleeping well, persistent nightmares. It was noted that the Veteran was “still rather depressed.” The Veteran denied suicidal ideation, and presented with constricted affect and depressed mood. On August 31, 2016 PTSD DBQ, occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, and thinking and/or mood were noted. Symptoms were noted as depressed mood, anxiety, suspiciousness, panic attacks occurring three times a week or more, near continuous depression affecting the ability to function independently, chronic sleep impairment, mild memory loss, impairment of short and long term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner noted the Veteran continued to suffer from severe symptoms of PTSD. In September 2016 correspondence, the Veteran’s VA psychiatrist noted the Veteran had shown marked improvement to the point where he was able to return to work if he continued treatment. A November 2018 mental health treatment record notes the Veteran was seen for treatment of PTSD. The Veteran reported continued depression, and little interest in doing things and feeling down, depressed, or hopeless for several days over the prior two weeks. A February 2019 mental health treatment record notes the Veteran was seen for PTSD. The Veteran reported keeping to himself at work. The Veteran reported going outside for fresh air, and reported a fluctuating mood. The Veteran’s PTSD is currently rated 70 percent, and the analysis turns to whether a rating in excess of 70 percent is warranted for the pendency of this appeal. The August 31, 2016 examiner found that the Veteran’s psychiatric disability results in occupational and social impairment with deficiencies in most areas, suicidal ideation, impairment of short and long term memory, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner noted an increase and worsening of his symptoms including daily panic attacks and chronic and severe suicidal ideations, and increased difficulty and inability to maintain effective work and social relationships. Notably, the Veteran does not demonstrate all or most of the criteria listed for a 100 percent rating under Code 9411. However, as noted above the list of criteria in the General rating formula is not meant to serve as an exhaustive list, but merely examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The evidence of record supports the Veteran’s PTSD was characterized by a 100 percent rating during the appeal. Upon review of the Veteran’s overall reported symptoms, as well as the overall disability picture presented on examination, the Board finds that the overall disability picture described is most closely consistent with the criteria for a 100 percent rating. See 38 C.F.R. § 4.3. Herein, the Board finds the Veteran’s PTSD has been manifested by total occupational and social impairment. The Board is granting an increased 100 percent rating. Accordingly, the Board finds that a 100 percent rating is warranted for PTSD. K.R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Staskowski, 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.