Citation Nr: 21030387 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 15-38 983A DATE: May 18, 2021 ORDER Entitlement to service connection for a back disability is dismissed. Entitlement to service connection for a right ankle disability is dismissed. Entitlement to service connection for a left ankle disability is dismissed. Entitlement to service connection for a right knee disability is dismissed. Entitlement to service connection for a left knee disability is dismissed. Entitlement to service connection for a right shoulder disability is dismissed. Entitlement to service connection for depression is dismissed. Entitlement to increased disability rating in excess of 10 percent for tendonitis of the right wrist is dismissed. Entitlement to increased disability rating in excess of 10 percent for tendonitis of the left wrist is dismissed. Entitlement to service connection for photophobia and dry eyes is granted. Entitlement to an initial 70 percent disability rating, effective from March 14, 2011, for posttraumatic stress disorder (PTSD) with anxiety is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. At his March 2021 Board hearing, the Veteran testified that he was withdrawing the issues of entitlement to service connection for back disability, right ankle disability, left ankle disability, right knee disability, left knee disability, right shoulder disability, and depression. 2. At his March 2021 Board hearing, the Veteran testified that he was withdrawing the issues of entitlement to increased disability ratings for tendonitis of the right and left wrist. 3. The Veteran's photophobia and dry eyes are related to service. 4. The Veteran's PTSD most nearly approximates occupational and social impairment with deficiencies in most areas throughout the appeal. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issues of entitlement to service connection for back disability, right ankle disability, left ankle disability, right knee disability, left knee disability, right shoulder disability, and depression are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the issues of entitlement to increased disability ratings for tendonitis of the right and left wrist are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204 3. The criteria for service connection for a photophobia and dry eyes are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for a 70 percent disability rating, but no higher, for PTSD are met from March 14, 2011. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2007 to March 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. at 452-54. In this case the Veteran has filed an application for an increased disability rating based on individual unemployability during the pendency of the appeal. Accordingly, the Board finds that a claim for a TDIU has been raised as part and parcel to the increased rating claim. Therefore, the issue of entitlement to a TDIU is before the Board on appeal and is properly included in the list of issues before the Board. 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. 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. § 20.204. Withdrawal may be made by the Veteran or by his/her authorized representative. 38 C.F.R. § 20.204. At his March 2021 Board hearing, the Veteran indicated that he was withdrawing his claims for entitlement to service connection for back disability, right ankle disability, left ankle disability, right knee disability, left knee disability, right shoulder disability, and depression. The Veteran also withdrew is claims for increased disability ratings for tendonitis of the right and left wrist. The Board finds that the Veteran's withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). As a result, no allegation of error of fact or law remains before the Board for consideration regarding these issues. Accordingly, the Board does not have jurisdiction over these issues, and these claims are dismissed. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Photophobia with dry eyes The Veteran asserts his photophobia with dry eyes is related to the photorefractive keratectomy surgery he underwent in service in June 2010. In June 2013 the Veteran underwent a VA eye examination. The Veteran was diagnosed with photophobia and dry eye syndrome. The Veteran stated that he has had photophobia since the June 2010 surgery during service. The VA examiner stated the photophobia and dry eyes syndrome were secondary to the refractive laser surgery. The examiner stated that photophobia and dry eyes are a common complication for refractive laser surgery. The June 2013 VA examiner's opinion is probative evidence that the Veteran's photophobia and dry eyes are related to service because the opinion was rendered after a comprehensive examination of the Veteran and review of the claims file. The Board also finds the Veteran's statements probative because he is competent to report his symptoms of light sensitivity and dry eyes, when it began, and the persistence of the symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, because the preponderance of the evidence supports a finding that the Veteran incurred photophobia and dry eyes in service and it persisted into the period on appeal, the claim for service connection for photophobia and dry eyes must be granted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). PTSD The Veteran seeks a higher initial disability rating for his service-connected PTSD. The Veteran's service-connected PTSD is rated as 30 percent disabling from March 14, 2011 to April 9, 2015 and 70 percent thereafter under 38 C.F.R. § 4.130, Diagnostic Code 9411. The applicable rating period is from March 14, 2011, the effective date for the award of service connection for PTSD, through the present. See 38 C.F.R. § 3.400. The Veteran's PTSD is rated pursuant to 38 C.F.R. § 4.130, DC 9411 which utilizes the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 50 percent evaluation 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, and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent evaluation is merited 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 that is 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), and an inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as gross impairment in thought process 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, or memory loss for names of close relatives, own occupation or own name. Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to 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, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. The United States Court of Appeals for the Federal Circuit has acknowledged the "symptom-driven nature" of the General Rating Formula and that "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." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. The Veteran underwent a VA PTSD examination in April 2012. A diagnosis of PTSD was confirmed. The Veteran reported being laid off from a job recently and was currently attending school full time for mechanical engineering. The Veteran reported being married for a year and a half, and he stated he maintains contact with a close childhood friend and one close friend from the Army. The examiner noted symptoms of anxiety, suspiciousness, chronic sleep impairment, irritability and anger, difficulty concentrating, and memory issues with his mind going blank during his studies. The Veteran presented alert and fully oriented. The Veteran was polite but irritable. His thought process and content were within normal limits. Speech was normal. Judgment and insight were fair. Suicidal and homicidal ideation was denied. The Veteran denied hallucinations. The examiner stated the Veteran's PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods or inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. In an April 2012 statement, the Veteran's spouse reported that the Veteran was always angry. The Veteran is prone to "explode" even when asked if he is okay. She mentioned that he was prone to rage while driving and would confront other drivers. October and December 2012 mental health notes showed the Veteran was adequately groomed with normal speech. Mood was okay with neutral affect. Thought process and cognition were within normal limits. Veteran denied homicidal and suicidal ideation. The Veteran's private mental health provider, Dr. R.C. submitted a psychiatric report in December 2014. Dr. R.C. reported treating the Veteran since October 2012 through August 2014, although the Veteran was absent from treatment between December 2012 and August 2014. Dr. R.C. noted diagnoses of major depressive disorder and PTSD. He stated the Veteran may have some symptomatic improvement, but full functional recovery is unlikely. Dr. R.C. noted the Veteran exhibited deficiencies in family relations, deficiencies in work or school, depression affecting the ability to function independently, deficiencies in judgment, unprovoked hostility and irritability, and intrusive recollections of a traumatic experience. Dr. R.C. stated that the Veteran displays marked irritability and impulsivity and anger because of his PTSD. Dr. R.C. reported the Veteran was markedly limited in all of the following: his ability to work with others, his ability to complete a normal workweek, his ability to interact appropriately with the general public, his ability to accept instructions and respond to criticism from supervisors, his ability to get along with co-workers or peers without distracting them or exhibiting behavioral extremes, and his ability to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness. Dr. D.C. anticipated that the Veteran's impairments would cause absence from work more than three times a month. The Veteran underwent a VA PTSD examination in April 2015. The examiner confirmed a diagnosis of PTSD. The Veteran reported more engagement with his spouse's family than his family of origin. He reported occasional contact with his father, aunts, uncles, and cousins. Veteran denied engagement in social activities and close friends. He reported spending his non-working time engaged in academic studies or with his wife and young child. Veteran stated he enjoyed family activities with his wife and daughter. The Veteran reported challenges with co-workers and supervisors at his jobs, although he has a promising interview scheduled next week. The VA examiner reported symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; obsessional rituals which interfere with routine activities; impaired impulse control, such as unprovoked irritability with periods of violence. Upon examination the Veteran appeared casually dressed with good hygiene. The Veteran was fully oriented. Thought process and content were within normal limits. Judgment was intact. Speech was normal. Suicidal and homicidal intent and ideation was denied. The examiner stated the Veteran's mood and psycho-behavioral symptoms have impaired and compromised his status across multiple and critical life domains since the last examination, most notably social/interpersonal functioning, and educational/vocational/occupational pursuits. It is noted that the Veteran's proximate and post-military functioning suggests adjustment difficulties and sub-optimal adaptability in numerous interpersonal venues (both social and occupational), particularly those that have demanded sustained contact with others, focused attention, and management of potent emotional reactions. Due to symptoms associated with his diagnosis at this examination, it is likely that the Veteran would experience problems in occupational environments demanding prolonged contact with others (e.g., coworkers, supervisors), especially when anxious/agitated; sustained attention, focus, concentration, memory, as well as skills associated with goal setting and task completion (whether of a formal or informal nature), especially when his symptomatology is most pronounced; and in sustaining physical and psychic energy, the latter associated with very compromised sleep patterns. He is emotionally labile and easily agitated, experiencing low frustration tolerance in reaction to both external stresses and interpersonal demands, as well as when unable to accomplish intended goals and tasks. The results of the current examination indicate that symptoms of the Veteran's diagnosed mental health condition not only attenuate and undermine his functioning across critical personal and interpersonal domains, but also undermine optimal use of his cognitive and physical abilities in the exercise of task completion, typically observed in occupational environments. Such current functional impairments would most likely manifest in both physical and sedentary work environments. The examiner summarized the Veteran's impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. At the March 2021 Board hearing the Veteran reported wanting to be by himself so as not to be bothered. The Veteran stated his wife sometimes must remind him to take a shower. The Veteran described incidents of rage on the road with other drivers, one occasion he was arrested. The Veteran explained he had difficulty concentrating in school, and he stopped attending due to difficulty with attention and concentration. He also explained difficulty remembering short-term information. The Veteran's wife stated the Veteran has a short-fuse and can be verbally and emotionally abusive. During the entire appeal period, the Veteran's PTSD symptoms were manifested primarily by intrusive thoughts, irritability, inability to establish and maintain effective relationships, difficulty in adapting to stressful circumstances, depressed mood, anxiety, avoidance behaviors, panic attacks, impaired impulse control (such as unprovoked irritability with periods of violence) detachment from others, flattened affect, inability to sleep, and exaggerated startle response. The Board finds that symptomatology more nearly approximates occupational and social impairment with deficiencies in most areas throughout the appeal, the criteria for a 70 percent disability rating. Although the medical evidence does not show symptomatology such as obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant; and spatial disorientation, the symptoms noted in the rating schedule are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, even though not all the listed symptoms compatible with a 70 percent rating are shown, the Board resolving all reasonable doubt finds that the type and degrees of symptomatology contemplated for a 70 percent rating appear to be demonstrated during the appeal period. Bowling v. Principi, 15 Vet. App. 1, 11 (2001); Vazquez-Claudio v. Shinseki, 2012-7114, (Fed. Cir. Apr. 8, 2013) (70 percent rating requires sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency, or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation). However, symptoms associated with the Veteran's PTSD did not meet the criteria for the maximum 100 percent disability rating at any time. A 100 percent rating requires total occupational and social impairment due to certain symptoms. The Board finds that neither the delineated symptoms nor comparable symptoms are shown to be characteristic of the Veteran's PTSD. The evidence of record does not indicate that the Veteran exhibited gross impairment in thought processes or communication, persistent danger of hurting self or others, or grossly inappropriate behavior. The Veteran was able to be around other people, even if to a limited degree. The evidence shows the Veteran experienced an inability to maintain concentration and attention long enough to learn, remember, and carryout educational studies. However, the Veteran has not been found to have any memory loss for names of close relatives, his own occupation, or his own name. No persistent delusions or hallucinations are shown. While the Veteran has reported having to be reminded to take a shower by his wife occasionally, the evidence does not show he is unable to maintain a minimal level of personal hygiene. Collectively, the Board finds that the psychiatric symptoms shown do not support the assignment of a 100 percent rating at any time during the appeal period. Accordingly, the Board finds that the criteria for an initial 70 percent disability rating, but no higher, are met. REASONS FOR REMAND TDIU The Veteran should complete an updated VA Form 21-8940. In his 2014 TDIU application, the Veteran indicated that he last worked full time in June 2013; however, during the March 2021 Board hearing, the Veteran stated that he had been working recently in a job for period of four years, another job prior for three years, and prior to that a job for two years. The Veteran also reported going to school full-time for some period as well. As it appears the Veteran's work and educational history is not complete, a remand is necessary for the Veteran to submit an updated TDIU application (VA form 21-8940). The matter is REMANDED for the following action: (Continued on the next page) 1. Send the Veteran a VA Form 21-8940, formal claim for TDIU, for an updated information addressing his employment and educational history. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. St. Laurent, 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.