Citation Nr: 1801600 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-05 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus, type II, with erectile dysfunction. 2. Entitlement to an initial evaluation in excess of 10 percent for peripheral neuropathy of the right upper extremity. 3. Entitlement to an initial evaluation in excess of 10 percent for peripheral neuropathy of the right lower extremity 4. Entitlement to an increased evaluation for depressive disorder, evaluated as 10 percent disabling prior to June 2, 2011, and as 30 percent disabling thereafter. 5. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Brown, Associate Counsel INTRODUCTION The Veteran had active duty in the Army from October 1960 to September 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran presented testimony in a videoconference hearing before the undersigned. A copy of the transcript has been associated with the claims folder. This appeal was processed using the VBMS and Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of depressive disorder and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an August 2017 Board hearing, prior to the promulgation of an appellate decision, the Veteran's authorized representative stated that he wished to withdraw from appeal the Veteran's claim for an increased evaluation for diabetes mellitus, type II, with erectile dysfunction. 2. In an August 2017 Board hearing, prior to the promulgation of an appellate decision, the Veteran's authorized representative stated that he wished to withdraw from appeal the Veteran's claim for an increased evaluation for peripheral neuropathy of the right upper extremity. 3. In an August 2017 Board hearing, prior to the promulgation of an appellate decision, the Veteran's authorized representative stated that he wished to withdraw from appeal the Veteran's claim for an increased evaluation for peripheral neuropathy of the right lower extremity. CO NCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal as to the claim for an increased evaluation for diabetes mellitus, type II, with erectile dysfunction are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of the appeal as to the claim for an increased evaluation for peripheral neuropathy of the right upper extremity are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of the appeal as to the claim for an increased evaluation for peripheral neuropathy of the right lower extremity are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2017). An appeal withdrawn on record during a hearing is an exception to the requirement for a written withdrawal. See 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 (2017). In the present case, during an August 2017 Board hearing, the Veteran's authorized representative withdrew from appeal the following claims: an increased evaluation for diabetes mellitus, type II, with erectile dysfunction; an increased evaluation for peripheral neuropathy of the right upper extremity; and an increased evaluation for peripheral neuropathy of the right lower extremity. Hence, with respect to these claims, there remain no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to these matters, and they must be dismissed. ORDER Entitlement to an increased evaluation for diabetes mellitus, type II, with erectile dysfunction is dismissed. Entitlement to an increased evaluation for peripheral neuropathy of the right upper extremity is dismissed. Entitlement to an increased evaluation for peripheral neuropathy of the right lower extremity is dismissed. REMAND Depressive Disorder The Veteran asserts that he is entitled to a higher disability evaluation for depressive disorder. In 2011, the Veteran underwent a VA examination for his depressive disorder. During his August 2017 hearing, the Veteran stated that his depression symptoms have worsened since 2011. He asserted that he has mood swings and used to drink alcohol to help him, but has since stopped drinking. Thus, the Veteran should be afforded an updated examination particularly in light of his contentions of his disability worsening with time. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). TDIU In June 2011, the Veteran filed a Form 21-8940, Application for Increased Compensation Based on Unemployability. He listed the following service-connected disabilities as preventing him from securing or following any substantially gainful occupation: peripheral neuropathy of the right upper/right lower extremities, and diabetes mellitus. Since 2011, the Veteran has been service-connected for additional disabilities, and received increased evaluations for existing service-connected disabilities. See April 2012 Rating Decision. In a July 2012 VA addendum medical opinion, the Veteran was found to be unemployable due to severe degenerative joint disease of the spine and knees. It is unclear whether this is related to any of his current service-connected disabilities. The impact of all of the Veteran's service-connected disabilities should be considered in an appropriate examination on remand. The Board notes that the Veteran does not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) for a TDIU. However, VA regulations provide that if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation and Pension Service for extra-schedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service- connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The Board cannot assign an extraschedular evaluation in the first instance. See Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Instead, the Board must refer the Veteran's claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for this special consideration when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the claim. Thus, the Board refers the Veteran's claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for an extra-schedular evaluation under 38 C.F.R. § 4.16(b). Any outstanding VA medical records should be obtained. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. After receiving the necessary authorization, obtain and associate with the claims file all of the Veteran's relevant outstanding VA Medical Center treatment records. If after making such a request, a negative response is received, this must be documented in the claims file and the Veteran must be properly informed. 2. After any additional records are associated with the claims file, the Veteran must be afforded a VA psychiatric examination to determine the severity of his service-connected depressive disorder. The entire electronic claims file must be made available to and be reviewed by the examiner, and it must be confirmed that such records were available for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must comment on the severity of the depressive disorder and report all signs and symptoms necessary for evaluating the disability under the rating criteria as indicated by the relevant DBQ. The examiner must also describe the Veteran's symptoms and note the functional impairment of the Veteran's service-connected depressive disorder. This should include consideration of the Veteran's symptoms of mood swings and prior alcohol use as stated during his August 2017 Board hearing. An explanation for all opinions expressed must be provided. 3. Schedule the Veteran for an appropriate VA examination in conjunction with his TDIU claim. The claims file should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. The examiner should elicit and set forth pertinent facts regarding the Veteran's medical history, education and employment history, day-to-day functioning, and social and industrial capacity. Specifically, the examiner should determine whether the Veteran's service-connected disabilities (bilateral hearing loss; depressive disorder (claimed as PTSD) associated with diabetes mellitus, type II, with erectile dysfunction; diabetes mellitus, type II, with erectile dysfunction; right lower and left lower extremity peripheral vascular disease associated with diabetes mellitus, type II, with erectile dysfunction; tinnitus; hypertension associated with diabetes mellitus, type II, with erectile dysfunction; diabetic neuropathy, left upper and left lower extremity associated with diabetes mellitus, type II, with erectile dysfunction; peripheral neuropathy, right upper and right lower extremity associated with diabetes mellitus, type II, with erectile dysfunction; tinea cruris and tinea pedis) render him unable to secure or follow a substantially gainful occupation. Consideration should be given to the July 2012 VA opinion regarding the Veteran's unemployability. If the opinion is not relevant, the examiner should explain why. (a) Describe the Veteran's employment history. (b) Elicit and set forth pertinent facts regarding the Veteran's medical history, education and employment history, day-to-day functioning, and social and industrial capacity. (c) Provide a full description of the effects, to include all associated limitations, of each of the Veteran's service-connected disabilities on his daily activities, to include his employability, taking into consideration his level of education, any special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. (d) Then, ascertain the combined impact of the Veteran's service-connected disabilities on his ability to work. A written copy of the report should be associated with the claims folder. 4. Refer the Veteran's case to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of whether an extra-schedular rating is warranted for the service-connected disabilities under 38 C.F.R. § 4.16(b). The response from the Under Secretary for Benefits or the Director of Compensation and Pension Service must be included in the claims file. 5. Then, readjudicate the claims, including the TDIU claim based upon the response from the Under Secretary for Benefits or the Director of Compensation and Pension Service. If the determination remains less than fully favorable, the Veteran and his representative must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before this case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs