Citation Nr: 18160649
Decision Date: 12/28/18	Archive Date: 12/27/18

DOCKET NO. 17-59 541
DATE:	December 28, 2018
ORDER
Entitlement to service connection for left shoulder pain is withdrawn.
Entitlement to service connection for right shoulder condition is withdrawn.
Entitlement to service connection for a back condition is withdrawn.
Entitlement to service connection for chest pain is withdrawn.
Entitlement to service connection for stomach pain is withdrawn.
Entitlement to service connection for headaches is withdrawn.
Entitlement to an increased disability rating in excess of 10 percent for Tinea Pedis is withdrawn.
Entitlement to an earlier effective date of a 10 percent evaluation for tinea pedis effective April 14, 2016 is withdrawn.
Entitlement to an increased disability rating not in excess of 70 percent for post-traumatic stress disorder is granted.
REMANDED
Entitlement to a total disability rating for individual unemployability (TDIU) is remanded.
FINDINGS OF FACT
1. At the September 2018 Board hearing, the Veteran’s representative stated that the Veteran desired to withdraw claims on appeal.  Specifically, the Veteran wanted to withdraw service connection claims for a left and right shoulder condition, back condition, chest and stomach pain, and headaches.  Additionally, he wished to withdraw increased rating and earlier effective date claims for tinea pedis. 
2. In September 2018, the Board received notice from the Veteran’s representative that the Veteran wished to withdraw all claims on appeal except his increased disability rating for post-traumatic stress disorder (PTSD).
3. The Veteran’s PTSD symptoms reflect an occupational and social impairment with deficiencies in most areas. 
CONCLUSIONS OF LAW
1. The criteria for withdrawal of an appeal of the issues of entitlement to service connection for a left and right shoulder condition, back condition, chest and stomach pain, and headaches are met.  38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204. 
2. The criteria for withdrawal of an appeal of the issues of entitlement to an increased rating and earlier effective date for tinea pedis are met.  38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204.
3. The criteria for an increased disability rating not in excess of 70 percent for post-traumatic stress disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.130, Diagnostic Code 9411.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from January 1964 to January 1966, including service in the Republic of Vietnam.  The Veteran appeals a June 2013 rating decision from the Department of Veteran Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. 
The Veteran requested a Board hearing in his November 2017 VA Form 9.  The Board hearing took place in September 2018, and a transcript is in the claims folder. 
The Board notes that during the September 2018 the issue of TDIU was raised by the Veterans Law Judge, and the Veteran’s representative.  As such, the Board takes jurisdiction over the issue of TDIU under Rice.  See Rice v. Shineski, 22 Vet. App. 447, 453 (2009).  The issue of TDIU is discussed in the remand section. 
Withdrawn Claims
The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.202. A substantive appeal may be withdrawn in writing and is effective when received by the RO prior to the appeal being transferred to the Board, or when received by the Board before it issues a final decision. 38 C.F.R. § 20.204(b). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204(a).
In this case, the Veteran’s representative stated during the September 2018 Board hearing that the Veteran wished to withdraw all issues except the increased disability rating for PTSD.  Additionally, the Veteran submitted a statement in September 2018 he wished to withdraw the appeals as to the issues of entitlement to service connection for a left and right shoulder condition, back condition, chest and stomach pain, and headaches. See September 2018 Statement in Support of Claim.  Additionally, the Veteran moved to withdraw his appeal to the issue of entitlement to an increased disability rating and earlier effective date claims for tinea pedis. Id. Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to this specific matter. Accordingly, the Board does not have jurisdiction to review the appeal of those issues and it is therefore dismissed.
Increased Rating
The Veteran asserts that his PTSD symptoms have worsened, and thus warrant a rating in excess of 50 percent.
Disability evaluations are determined by comparing the Veteran’s present symptomatology with the criteria set forth in the VA’s Schedule for Ratings Disabilities.  38 U.S.C. § 1155; 38 C.F.R. § Part 4.  Higher ratings are assigned if the disability more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence the benefit of the doubt is to be resolved in the Veteran’s favor.  38 U.S.C. § 5107(b).
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,” whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  
Entitlement to an increased disability rating not in excess of 70 percent for post-traumatic stress disorder
The Veteran asserts that he is warranted a non-initial increased disability rating in excess of 50 percent. 
PTSD, and other psychological disorders, are rated under the general rating formula for mental disorders.  See 38 C.F.R. § 4.130. 
First, 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.
Next, 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.
Finally, 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.  See 38 C.F.R. § 4.130, Diagnostic Code 9411.
In June 2011 Correspondence, the Veteran stated that he has nightmares, and angry outbursts. 
The Veteran’s wife stated she has been married to the Veteran for 35 years, and knew the Veteran for 10 years prior to marriage.  She has observed that the Veteran appears to hate himself, and has nightmares about hurting his family.  The Veteran’s wife states that the Veteran stays up all night in order to avoid having these dreams.  Further, she noted that the Veteran is impatient with others.  The Veteran’s wife states that to the Veteran “everything is an argument,” and will argue with others including family members.  See March 2012 Statement in Support of Claim.  
In a May 2013 VA treatment note, the Veteran stated that he has nightmares, anxiety, keeps himself socially isolated, and is emotionally detached.  The Veteran reported having a low mood, and thinks about death, including shooting himself or others if he is angry.   
The Veteran underwent a PTSD Disability Benefits Questionnaire (DBQ) in June 2013.  During the PTSD DBQ, the Veteran was presented with continuing symptoms of anxiety, depression, lack of sleep, lack of interest in social activities and interests, and avoidance of crowds.  The Veteran reported having six siblings, and three children with which he has limited contact and communication.  The VA examiner noted the following symptoms: depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances and in establishing and maintaining relationships.  The Veteran stated that he stays home most of the time, and only goes out for his doctor’s appointments.  The VA examiner opined that the Veteran had an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.   
The Veteran stated that he is always angry, upset, and depressed.  He has difficulty sleeping.  When the Veteran does sleep, he has nightmares, and intrusive thoughts about death and dying.  For example, the Veteran had thought about shooting someone so much that his wife gave all the Veteran’s guns in the home to her friends.  The Veteran added that he is not around a group of people, and that he seldom leaves home for the exception of doctor’s appointments.  See August 2013 Correspondence. 
In a March 2015 and August 2016 VA treatment notes, the Veteran reported having nightmares, and intrusive thoughts of mental stressors. The Veteran stated that he is constantly on guard, watchful, and easily startled.  Further, the Veteran stated he is detached from others, and activities. 
During the September 2018 Board hearing, the Veteran stated that he periodically has suicidal thoughts.  As a result, the Veteran had his wife remove guns from the home. 
Based on the above, the Board finds that an increased disability rating not in excess of 70 percent is warranted.  The Veteran reported incidents of suicidal ideation.  Also, the Veteran stated that he is always angry, upset, and depressed.  The Veteran’s wife stated that the Veteran sees “everything as an argument,” and will argue with others including family members.  The Veteran states that he spends most of his time at home, and leaves home only for doctor’s appointments.  In the June 2013 PTSD DBQ, the Veteran reported he has limited contact with his siblings and children.  Further, the Veteran stated that he keeps himself socially isolated, and is not a part of groups.  The VA examiner, in the June 2013 PTSD DBQ, noted the Veteran presented the following symptoms: depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances.  In short, an increased disability rating of 70 percent is granted. 
An increased disability rating in excess of 70 percent is not warranted.  The evidence of record is silent to the presence of persistent delusions or hallucinations, gross impairment in thought processes or communication, and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Also, the evidence of record is silent regarding whether the Veteran is unable to perform activities of daily living.                   
  
REASONS FOR REMAND
Entitlement to a total disability rating for individual unemployability
Based on the above, the Veteran now meets the schedular requirements for TDIU.  The Veteran’s PTSD have historically caused sleep loss, self-destructive behavior, social isolation, and angry outbursts towards others.  However, the evidence of record is, to a degree, silent as to whether the Veteran’s PTSD affects his employability.  Thus, we find it proper for the RO to resolve the question first.     
The matters are REMANDED for the following action:
1. Send the Veteran a copy of VA form 21-8940.
2. After completing the aforementioned, and any further development deemed necessary, adjudicate the Veteran’s claim for TDIU.  If the benefit sought on appeal is not granted in full, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.
 
JOHN J CROWLEY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Timothy A. Campbell, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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