Citation Nr: 21030067 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-27 597 DATE: May 17, 2021 ORDER Entitlement to an initial rating for gout of the right toe and right ankle in excess of 20 percent is dismissed. Entitlement to an initial rating for posttraumatic stress disorder (PTSD) with traumatic brain injury (TBI) residuals in excess of 70 percent from November 11, 2015 forward is dismissed. Entitlement to an initial rating for PTSD in excess of 70 percent prior to November 11, 2015 is denied. FINDINGS OF FACT 1. In October 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran's representative that the Veteran wished to withdraw the issues of entitlement to an initial rating posttraumatic stress disorder (PTSD) with traumatic brain injury (TBI) residuals greater than 70 percent beginning from November 11, 2015 and an initial rating for gout of the right toe and right ankle greater than 20 percent. 2. Prior to November 11, 2015, the Veteran's PTSD did not result in total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal of an initial rating for gout of the right toe and right ankle in excess of 20 percent have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of an appeal of entitlement to an initial rating for PTSD with TBI residuals in excess of 70 percent from November 11, 2015 forward have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for a rating greater than 70 percent for PTSD prior to November 11, 2015 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 2005 to August 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in July 2014 and April 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in July 2014 the RO granted service connection for gout, assigning a noncompensable rating, and denied service connection for chest pain and PTSD. The Veteran filed a notice of disagreement with the denials of service connection and the rating assigned for gout in August 2014. On November 11, 2015, the Veteran filed a claim for service connection for residuals of a TBI. In February 2016 the RO issued a statement of the case denying entitlement to an increased rating for gout and service connection for chest pain. The RO then issued another statement of the case in April 2016 again denying an increased rating for gout and service connection for chest pain. At the same time, the RO issued a rating decision granting service connection for PTSD, assigning a 30 percent rating from February 14, 2013 to November 11, 2015. The RO further granted service connection for the claimed residuals of a TBI, effective November 11, 2015, and combined the TBI residuals with the Veteran's already service-connected PTSD. In May 2016 the Veteran perfected an appeal to the Board concerning entitlement to an increased rating for gout and service connection for chest pain, and filed a notice of disagreement with the rating assigned for his PTSD. A statement of the case was issued denying an increased rating for PTSD in June 2016, and the Veteran perfected an appeal of that issue to the Board in July 2016. The Board remanded the issues on appeal for additional development in June 2020, and the requested examinations and opinions were obtained in June 2020 and July 2020. As such, the directives have been substantially complied with and the appeal is again properly before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also denied entitlement to service connection for sleep apnea and a heart disability, which the Veteran did not appeal. 38 U.S.C. § 7266. As such, those issues are no longer part of the current appeal. 38 C.F.R. § 20.1100. On remand, service connection for chest pain was granted in a rating decision issued in October 2020. Ab v. Brown, 6 Vet. App. 35 (1993). In addition, the October 2020 rating decision granted an increased rating of 70 percent for the Veteran's PTSD and an increased rating of 20 percent for the Veteran's gout throughout the period on appeal. However, as these grants are not a full award of the benefits sought, the increased rating issues remain on appeal. Id. The increased rating issues have been recharacterized to reflect the newly awarded ratings. The Board notes that in his substantive appeals the Veteran requested a hearing before a Veterans Law Judge. However, in October 2019 the Veteran withdrew his request for a hearing. 38 C.F.R. § 20.603(e). Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). 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 appellant or by his or her authorized representative. Id. 1. Entitlement to increased ratings for gout and PTSD with TBI residuals. In an October 2020 written statement from the Veteran, through his attorney, withdrew his appeal of the issues of entitlement to a rating in excess of 20 percent for his service-connected gout of the right ankle and right toe and a rating in excess of 70 percent for PTSD with TBI residuals from November 11, 2015 forward. As such, there remain no allegations of errors of fact or law for appellate consideration with respect to that issue. Accordingly, the Board does not have jurisdiction to review that appeal, and the appeal of the issues are dismissed. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Entitlement to an increased rating for PTSD prior to November 11, 2015. As noted above, the Veteran, through his attorney, validly withdrew his appeal of the issue of entitlement to an increased rating for PTSD with TBI residuals from November 11, 2015 forward. 38 C.F.R. § 19.55. As such, the Board will only address entitlement to an increased rating for the period from February 14, 2013 to November 11, 2015. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126; see Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. Id. The Veteran's PTSD is rated under Diagnostic Code 9411. 38 C.F.R. § 4.130. Diagnostic Codes 9201 through 9440 are rated using the General Rating Formula for Mental Disorders (General Formula). Under the General Formula, a 70 percent rating is assigned 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 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. Id. A 100 percent rating is assigned for 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 hygiene); disorientation to time or place; memory loss for names of close relatives and own occupation or name. Id. The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 11617 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. The Board notes that the Diagnostic and Statistical Manual, Fourth Edition (DSM IV), allowed for the assignment of Global Assessment of Functioning (GAF) scores, which are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. However, VA regulations were amended to adopt the Diagnostic and Statistical Manual, Fifth Edition (DSM-5), which eliminated the use of GAF scores for evaluating mental illness. 80 Fed. Reg. 14,308 (Mar. 19, 2015). As GAF scores are no longer held to be an effective method of evaluating the severity of psychiatric disabilities, the Board will not rely on any GAF scores in adjudicating the present claim. Golden v. Shulkin, 29 Vet. App. 221, 22426 (2018). During the period prior to November 11, 2015, no VA examinations were conducted. Treatment records during the period at issue reflect consistent reports of anxiety, sleep impairment, irritability with outbursts of anger, and nightmares. Treatment records further consistently reflect that the Veteran reported to appointments with appropriate grooming and hygiene, and that his orientation, speech, thought processes and thought content were all normal. The records further reflect that the Veteran denied suicidal ideation, homicidal ideation, and audio or visual hallucinations. A November 2015 private examiner opined that the Veteran was clearly suffering from PTSD. During the examiner the Veteran reported that he was currently working as a security guard at a construction site. The examiner noted that the Veteran attributed was friendly and cooperative, and that his orientation, affect, speech, thought content and processes, and memory were all normal. The examiner noted that the Veteran reported anxiety, depression, sleep impairment, and irritability with outbursts of violence. The examiner further noted that the Veteran endorsed some instances of physically assaulting others. Overall, the examiner stated that the Veteran had moderate to severe impairment due to his PTSD. Based on the foregoing, an increased rating in excess of 70 percent for the Veteran's PTSD is not warranted in this case. The Veteran's orientation, appearance, hygiene, memory, and behavior have consistently been noted to be normal in his psychiatric treatment records, as well as in the November 2015 private psychiatric assessment. Treatment records also reflect that the Veteran has consistently denied suicidal ideation and hallucinations. The Board notes that the Veteran has consistently reported irritability with outbursts of violence, including sporadic episodes of physical violence directed at other people. However, the Veteran has also consistently denied any homicidal ideations or plans to hurt other people. Further, none of the evidence of record reflects that the Veteran has been deemed to be a danger to himself or other, despite his reports of violent outbursts or assaultive behavior. As such, the Board finds that the Veteran's reports of irritability do not rise to the level of severity contemplated by a 100 percent rating, which contemplated individuals who are a persistent danger to others. Instead, the Veteran's symptoms are more accurately encompassed by the currently assigned 70 percent rating which directly contemplates irritability with outbursts of violence. Finally, overall total occupational and social impairment has not been shown. Treatment records reflect that the Veteran has maintained relationships with his children, and further that during the period at issue he was able to work as a security guard. Accordingly, the record does not demonstrate symptoms so severe as to cause total occupational and social impairment. Therefore, the Board finds that a rating more than 70 percent for PTSD is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411. All potentially applicable diagnostic codes have been considered, and there is no basis to assign an evaluation in excess of 70 percent prior to November 11, 2015. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Therefore, for the reasons stated above, the Board finds that an initial rating in excess of 70 percent for PTSD is not warranted. See Hart, 21 Vet. App. 505. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ivan Franklin 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.