Citation Nr: 21040108 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-63 851 DATE: July 2, 2021 ORDER From April 1, 2014 to January 19, 2021, an increased initial 70 percent rating for the Veteran's posttraumatic stress disorder (PTSD) is granted. Beginning January 19, 2021, a rating in excess of 70 percent for the Veteran's PTSD is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. VETERAN'S CONTENTIONS Throughout the period on appeal, the Veteran contends that he is entitled to an increased rating for his PTSD. See January 2015 VA 21-526b Veteran Supplemental Claim. In support of his argument asserting entitlement to a higher rating, the Veteran reported that he experienced memory loss, loss of motivation, and difficulty maintain relationships. See December 2015 Notice of Disagreement. The Veteran also reported feeling disconnected from his family and that he suffered from irritability. See VA Mental Health Consultations dated November 2016 and June 2018. The Veteran also reported that he suffered from anxiety and depression. See September 2020 VA Treatment Record. FINDINGS OF FACT 1. The Veteran's PTSD is productive of deficiencies in the areas of family relations, judgment, thinking, work, school, and mood. 2. The Veteran reported that he is currently married. See January 2021 VA Medical Opinion. Although the Veteran reported a positive relationship with his wife and children, the Veteran also reported marital strain and that he felt disconnected from his family. See July 2015 VA Examination and VA Treatment Records dated November 2016 and December 2020. Additionally, the Veteran reported that he had frequent arguments at home and was irritable. See January 2021 VA Medical Opinion. The Veteran also stated that his wife left him for a brief period in 2020 due to his moods. Id. 3. The Veteran reported that his PTSD began to affect his work and school. See June 2018 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The Veteran reported that he was fired from a company due to him missing days from work due to PTSD. See January 2021 VA Medical Opinion. The Veteran also stated that he was forgetful, had trouble focusing, and was irritable at work. Id. The Veteran also reported that he missed a month of work at his previous employer due to his PTSD. See June 2018 VA 21-8940. While attending a graduate program, the Veteran reported that his inability to focus was adversely affecting his grade point average. See August 2014 VA Treatment Record. 4. The Veteran additionally endorsed irritable behavior, exaggerated startle response, angry outburst, and reckless behavior. See June 2018 VA Mental Health Consultation. The Veteran also reported that he was socially disengaged. See January 2021 VA Medical Opinion. 5. The Veteran additionally reported problems with memory and concentration. See April 2014 VA Mental Health Consultation. The Veteran stated that he got lost driving home a few times and has trouble recalling names. See December 2019 VA Form 9. The Veteran also reported a sleep impairment. See September 2018 VA Medical Opinion. The Veteran also endorsed flashbacks triggered by loud sounds, nightmares, and experiencing anhedonia. See April 2014 VA Mental Health Consultation. 6. The Veteran reported that he experienced depression, anxiety, suspiciousness, and a disturbance in mood and motivation. See September 2018 and January 2021 VA Medical Opinions. 7. The July 2015, September 2018, and January 2021 VA examiners reported that the Veteran's PTSD symptoms included a depressed mood, anxiety, suspiciousness, chronic sleep impairment, and disturbances of motivation and mood. 8. In March 2021 correspondence, the Veteran's representative explicitly, unambiguously, and with a full understanding of the consequences of such action withdrew the Veteran's appeal as to the issue of entitlement to a TDIU. See March 2021 Correspondence. CONCLUSIONS OF LAW 1. Beginning April 1, 2014, the criteria for an increased rating of 70 percent for the Veteran's PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.130, Diagnostic Code 9411. 2. Beginning January 19, 2021, the criteria for increased rating of 100 percent for the Veteran's PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.130, Diagnostic Code 9411. 3. The criteria for withdrawal of an appeal by the Veteran have been met regarding his TDIU claim. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2009 to March 2014. This matter comes before the Board of Veteran's Appeal (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019 and September 2020, this matter was previously remanded by the Board for further development. This case has now returned to the Board for readjudication. 1. From April 1, 2014 to January 19, 2021, an increased 70 percent rating for the Veteran's PTSD is granted. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 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. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). By way of history, from April 1, 2014 to January 22, 2015, the Veteran's PTSD disorder is rated as 10 percent disabling, from January 22, 2015 to January 18, 2021, it is rated as 30 percent disabling, and beginning January 19, 2021, it is rated as 50 percent disabling under the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411. The relevant rating criteria are set forth below. Under the general rating formula for mental disorders, a 50 percent rating is assigned 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 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 worklike setting); inability to establish and maintain effective relationships. 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 personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 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. The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Here, the July 2015 and September 2018 VA examiners concluded that the Veteran's PTSD symptoms caused occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. Additionally, the January 2021 VA examiner concluded that the Veteran's PTSD symptoms caused occupational and social impairment with reduced reliability and productivity. However, these determinations are not binding on the Board. As previously detailed in the Findings of Fact section, the Veteran's PTSD disorder results in irritability, an impairment in his family relationships, an impairment at work and school, short term memory problems, chronic sleep impairment, and a depressed mood. See VA Treatment Records dated November 2016 and June 2018 and December 2016 VA Form 9. When evaluating the medical evidence of record coupled with the Veteran's lay statements, the Board finds that the record demonstrates that the Veteran's PTSD is more severe than as determined by the VA examiners, as it impairs his family relations, his work and school, his mood, his thinking, and his judgment. Therefore, the Board finds that an increased 70 percent rating is warranted. In support of this determination, the Board references post-service treatment records, the VA examinations, and the Veteran's lay statements, which show that his PTSD is productive of symptoms associated with a 70 percent rating. See VA Treatment Records dated November 2016 and June 2018 and VA Medical Opinions dated July 2015, September 2018, and January 2021. Specifically, the Veteran reported that he felt disconnected from his family and had frequent arguments at home. See November 2016 VA Treatment Record and January 2021 VA Medical Opinion. As such the Board finds that the Veteran experiences impairment in his family relations as a result of his PTSD. Turning next to the areas of work and school, the Veteran also stated that he was forgetful, had trouble focusing, and was irritable at work. See January 2021 VA Medical Opinion. The Veteran expressed feeling worn out from work as well. Id. Although the Veteran reported that school was going fine, but the Veteran also reported that his inability to focus was affecting his grade point average in school. See August 2014 VA Treatment Record. As the Veteran experiences impairment in his ability to work and noted that his PTSD affected his ability to focus in school, the Board finds by analogy that the Veteran also experienced impairment in the area of school as a result of his PTSD. Further, the Veteran also had symptoms that are not listed with a specific rating, specifically, sleep disturbances. The Board finds that the severity, frequency, and duration of the Veteran's unlisted symptom of sleep disturbances more closely approximate the symptoms contemplated by a 70 percent rating, which correlate to sleep disturbances that are more severe, more frequent, and longer in duration. During numerous VA examinations, the Veteran stated that he had a sleep impairment. See VA Medical Opinions dated July 2015, December 2015, September 2018, and January 2021. In sum, the Veteran's unlisted symptom of sleep disturbances are similar in severity and frequency to those symptoms contemplated by a 70 percent rating. Additionally, although the Board finds that a 70 percent rating is warranted, it also finds that the next-higher rating of 100 percent is not warranted. In support of this determination, the Board finds that the Veteran's PTSD disorder is not productive of total social impairment as contemplated by the criteria for a 100 percent rating. Although the Veteran experiences impairment in most areas as contemplated by the regulation, the Board cannot find that his condition is productive of total social impairment, in line with an even higher 100 percent rating. Further, the medical evidence or record does not reflect, nor has the Veteran reported, gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, extreme memory loss, or an intermittent inability to perform activities of daily living. See VA Medical Opinions dated July 2015, December 2015, September 2018, and January 2021. As such, a higher 100 percent rating for the Veteran's PTSD is not warranted. Based on the foregoing, the Board finds that the severity of the Veteran's PTSD disorder symptoms warrants a 70 percent evaluation effective April 1, 2014, but no higher. See 38 C.F.R. § 4.7. 2. Beginning January 19, 2021, a rating in excess of 70 percent for the Veteran's PTSD is denied. Additionally, the Board finds that the Veteran is not entitled to a 100 percent rating beginning January 19, 2021. The Board finds that the Veteran has deficiencies in the areas of family relations, work, school, thinking, judgment, and mood during this period, but that such are not productive of both total occupational and social impairment. Here, although the Veteran reported feeling isolated, he continues to have a meaningful family relationship. Additionally, the Veteran expressed that he still enjoys working out and playing video games. See August 2014 and May 2016 VA Treatment Record. The Veteran also reported having a friend that he could reach out to for support. See May 2018 VA Treatment Record. Since the Veteran continues to have some meaningful relationships and engages in recreational activities like working out, this reflects that he is not totally socially impaired. Further, the medical evidence of record does not reflect, nor has the Veteran reported, gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, extreme memory loss, or an intermittent inability to perform activities of daily living, or other symptoms of similar severity, frequency, or duration in line with an increased 100 percent rating. As such, a higher 100 percent rating for the Veteran's PTSD is not warranted. Based on the foregoing, the Board finds that the severity of the Veteran's PTSD symptoms does not warrant a 100 percent evaluation. See 38 C.F.R. § 4.7. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. 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 appellant or by his or her authorized representative. Id. In Acree v. O'Rourke, the Federal Circuit Court of Appeals held that an effective claim withdrawal must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the veteran. 891 F.3d 1009 (Fed. Cir. 2018). Here, the Veteran's representative submitted a March 2021 letter stating that the Veteran wished to withdraw his appeal for entitlement to TDIU. See March 2021 Correspondence. The Board finds that this communication reflects an explicit and unambiguous withdrawal of the Veteran's claim and demonstrates a full understanding of the effect of such withdrawal. As a result of the withdrawal of the claim of entitlement TDIU, there remains no allegations of errors of fact or law for appellate consideration as to this issue. Accordingly, the Board does not have jurisdiction to review the TDIU appeal, and it is dismissed. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Foster, 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.