Citation Nr: 18140324 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-46 460 DATE: October 2, 2018 ORDER Entitlement to service connection for an unspecified musculoskeletal condition is dismissed. Entitlement to service connection for spinal stenosis, status post fusion surgery, also claimed as neck nerve damage is dismissed. Entitlement to service connection for a left ankle disability is dismissed. Entitlement to service connection for a right ankle disability is dismissed. Entitlement to service connection for a circulatory disability is dismissed. Entitlement to service connection for weight loss is dismissed. Entitlement to service connection for myasthenia gravis is dismissed. Entitlement to service connection for a left shoulder disability, claimed as nerve damage is dismissed. Entitlement to service connection for a right shoulder disability, claimed as nerve damage is dismissed. Entitlement to service connection for a left arm disability, claimed as nerve damage is dismissed. Entitlement to service connection for a right arm disability, claimed as nerve damage is dismissed. Entitlement to service connection for posttraumatic stress disorder (PTSD) is dismissed. Entitlement to an initial disability rating in excess of 10 percent for chronic obstructive pulmonary disorder (COPD) is dismissed. Entitlement to a 100 percent rating for dysthymia with anxiety disorder throughout the period of the claim is granted, subject to the criteria applicable to the payment of monetary benefits. REMANDED Entitlement to service connection for a right leg disability, claimed as nerve damage is remanded. Entitlement to service connection for a left leg disability, claimed as nerve damage is remanded. Entitlement to an initial disability rating in excess of 20 percent for a lumbar strain is remanded. Entitlement to an initial disability rating in excess of 30 percent for tension headaches is remanded. FINDINGS OF FACT 1. In May 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he desired to withdraw his appeal for entitlement to service connection for an unspecified musculoskeletal condition, spinal stenosis, status post fusion surgery (also claimed as neck nerve damage), a left and right ankle disability, a circulatory disorder, weight loss, myasthenia gravis, a left and right shoulder disability, a left and right arm disability, and PTSD, as well as his appeal for an increased rating for COPD. 2. During the entire period of the claim, the Veteran’s dysthymia with anxiety disorder has most nearly approximated total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to service connection for an unspecified musculoskeletal condition have been 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 for entitlement to service connection for spinal stenosis, status post fusion surgery (also claimed as neck nerve damage) have been 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 for entitlement to service connection for a left ankle disability have been met. 38 U.S.C. 7105 (b)(2), (d)(5) (2012); 38 C.F.R. 20.204 (2017). 4. The criteria for withdrawal of the appeal for entitlement to service connection for a right ankle disability have been met. 38 U.S.C. 7105 (b)(2), (d)(5) (2012); 38 C.F.R. 20.204 (2017). 5. The criteria for withdrawal of the appeal for entitlement to service connection for a circulatory disorder have been met. 38 U.S.C. 7105 (b)(2), (d)(5) (2012); 38 C.F.R. 20.204 (2017). 6. The criteria for withdrawal of the appeal for entitlement to service connection for weight loss have been met. 38 U.S.C. 7105 (b)(2), (d)(5) (2012); 38 C.F.R. 20.204 (2017). 7. The criteria for withdrawal of the appeal for entitlement to service connection for myasthenia gravis have been met. 38 U.S.C. 7105 (b)(2), (d)(5) (2012); 38 C.F.R. 20.204 (2017). 8. The criteria for withdrawal of the appeal for entitlement to service connection for a left shoulder disability have been met. 38 U.S.C. 7105 (b)(2), (d)(5) (2012); 38 C.F.R. 20.204 (2017). 9. The criteria for withdrawal of the appeal for entitlement to service connection for a right shoulder disability have been met. 38 U.S.C. 7105 (b)(2), (d)(5) (2012); 38 C.F.R. 20.204 (2017). 10. The criteria for withdrawal of the appeal for entitlement to service connection for a left arm disability have been met. 38 U.S.C. 7105 (b)(2), (d)(5) (2012); 38 C.F.R. 20.204 (2017). 11. The criteria for withdrawal of the appeal for entitlement to service connection for a right arm disability have been met. 38 U.S.C. 7105 (b)(2), (d)(5) (2012); 38 C.F.R. 20.204 (2017). 12. The criteria for withdrawal of the appeal for entitlement to service connection for PTSD have been met. 38 U.S.C. 7105 (b)(2), (d)(5) (2012); 38 C.F.R. 20.204 (2017). 13. The criteria for withdrawal of the appeal for entitlement to an initial rating in excess of 10 percent for COPD have been met. 38 U.S.C. 7105 (b)(2), (d)(5) (2012); 38 C.F.R. 20.204 (2017). 14. The Veteran’s dysthymia with anxiety disorder warrants a rating of 100 percent throughout the entire period of the claim. 38 U.S.C. 1155, 5107 (2012); 38 C.F.R. 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). INTRODUCTION The Veteran served on active duty from October 1979 to February 1986. In May 2017, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawals 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. 20.204 (2017). Withdrawal may be made by the veteran or by his or her authorized representative. 38 C.F.R. 20.204 (a). The withdrawal must be in writing except when the appeal is withdrawn on the record at a hearing. 38 C.F.R. 20.204 (b). During the Veteran’s above-noted May 2017 Board hearing, the Veteran indicated he wished to withdraw his pending appeal for entitlement to service connection for an unspecified musculoskeletal condition, spinal stenosis, status post fusion surgery (also claimed as neck nerve damage), a left and right ankle disability, a circulatory disorder, weight loss, myasthenia gravis, a left and right shoulder disability, a left and right arm disability, and PTSD, as well as his appeal for an increased rating for COPD. Accordingly, the Board does not have jurisdiction to review this aspect of the Veteran’s appeal, and the issues must be dismissed. Legal Criteria-Increased Ratings Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings 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 their residual conditions in civil occupations. 38 U.S.C. 1155 (2012); 38 C.F.R. 3.321 (a), 4.1 (2017). Where a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. 4.7 (2017). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. 4.21 (2017). Psychiatric Disorder Factual Background and Analysis Dysthymia and anxiety disorder are rated under the General Rating Formula for Mental Disorders. In pertinent part, it provides the following: 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.............................................................................................................50 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........................70 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...........100 38 C.F.R. 4.130, Diagnostic Codes 9413 and 9433. Critically, the Board observes that the above-noted evaluation criteria for a 70 percent disability rating indicates an array of symptoms, which are likely sufficient to cause impairment and deficiencies in most areas of life functioning, to include work, school, family relations, judgment, thinking, or mood. Such symptoms need not rise to the level of activity preclusion, but rather negatively influence or impact upon most areas of life functioning. A higher 100 percent rating is warranted when the evidence indicates total impairment. The symptoms considered in determining the level of impairment under the Rating Schedule for psychiatric disorders are not restricted to the symptoms provided in the diagnostic codes. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board has carefully reviewed the Veteran’s treatment reports from the Charleston and Columbia VA Medical Centers. The Board has also thoroughly reviewed two comprehensive private psychiatric evaluations, which were performed in December 2010 and August 2013. Additionally, the Board has reviewed the reports of four VA mental disorders examinations, which were performed in October 2004, December 2008, October 2011, and March 2017. The Board has fully assessed the Veteran’s inpatient treatment records from G. Werber Bryan Psychiatric Hospital, as well as his medical records from the South Carolina Department of Corrections. Further, the Board has also prudently considered the Veteran’s own statements. In sum, these records show the Veteran has experienced several significant symptoms and impairments throughout the appeal period, which include: diminished concentration/memory, agitation, anger outbursts, with periods of violence, anxiety, feelings of helplessness and hopelessness, irritability, poor impulse control, depressed mood affecting his ability to function independently and effectively, anhedonia, dysfunctional sleep, significant relationship problems, impaired judgment and insight, disturbances of motivation and mood, isolation, suspiciousness, persecutory delusions, gross impairments in thought processes, and difficulties adapting to stressful circumstances, including work and worklike settings. More significant, the Board notes that during the proximal time in which this appeal has been pending, the Veteran has been unemployed, homeless, incarcerated for assault and battery with intent to kill for eight years, and has received inpatient psychiatric care for suicidal ideations on several occasions. In this case, the copious evidence plainly establishes the Veteran’s psychiatric manifestations have resulted in deficiencies in all areas of life functioning. Specifically, his symptoms have precluded his ability to work, have caused him marked social impairments, considerably impacted his family role functioning, inhibited his ability to obtain higher education, caused deficiencies in judgment, and resulted in severe mood impairments. As noted above, the 100 percent evaluation criteria does not indicate total occupational and social preclusion; rather, it merely states a veteran must have total impairment. The Board again notes a 70 percent rating is warranted when psychiatric manifestations merely cause impairment in most areas of life functioning; however, this Veteran’s psychiatric manifestations have clearly resulted in impairments in all areas of life. As such, the Board finds his disability picture most nearly approximates the criteria necessary for a 100 percent disability rating. REASONS FOR REMAND The Board is of the opinion that additional development is required before the remaining claims on appeal are decided. Initially, the Board notes that during his May 2017 Board hearing the Veteran asserted his tension headaches are worse than currently evaluated. Specifically, the Veteran indicated he currently experiences headaches that require him to lay in a dark room and relax “pretty much on a daily basis.” He most recently underwent a VA examination to assess this disability in September 2012, at which time he reported he only experienced headaches a couple times a month. As there is evidence of a worsening of the disability since the last VA examination, which was performed several years ago, the claim must be remanded for a new examination to determine the current severity of the disability. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Further, in a recent decision, Correia v. McDonald, 28 Vet. App. 158 (2016), the Court determined that the final sentence of 38 C.F.R. 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. While the spine is not a paired joint such that range of motion measurements for the opposite undamaged joint are not necessary, under Correia there is a need for testing for pain on both active and passive motion and, if possible, when weight-bearing and nonweight-bearing. Though the Veteran recently underwent a VA back examination in March 2017, the VA examiner failed to conduct Correia compliant testing. Also, in a recent decision, Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court explained that VA examiners must do all that can be reasonably done to become informed about a veteran’s reported musculoskeletal flare-ups prior to providing an opinion on functional loss during flares. Specifically, the Court found an examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, before concluding an assessment of the functional loss during flares could not be provided without resorting to speculation. In this case, the Veteran reported flare-ups of back pain; however, the March 2017 examiner failed to state what information and evidence was considered, and explain whether that evidence permitted the examiner to offer an estimation of the functional loss during flare-ups. Therefore, a remand is also necessary to elicit relevant information as to the Veteran’s musculoskeletal flares, to include the additional functional loss due to flares based on all evidence of record-to specifically include the Veteran’s lay information-or explain why, with this information, such an estimation cannot be offered. Based on the foregoing, the Board finds a new VA back examination is also required to fully assess the Veteran’s lumbar spine disability. Further, during his May 2017 Board hearing, the Veteran asserted his bilateral lower leg nerve disability was consequentially related to his lumbar spine disability. On remand, a competent medical opinion must be obtained addressing this issue. On remand, relevant ongoing medical records should also be obtained. 38 U.S.C. 5103A (c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, these matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. 3.159 (e). 2. Then, afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran’s service-connected lumbar spine and headache disabilities. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. 3. Also, following a review of the relevant records and lay statements, the examiner who conducts the Veteran’s lumbar spine examinations should state an opinion with respect to whether any diagnosed lower extremity neurological disability at least as likely as not (a 50 percent probability or greater): a) originated during his period of active service or is otherwise b) was caused by his service-connected lumbar spine disability; or c) was permanently worsened by his service-connected lumbar spine disability. The examiner must specifically address the Veteran’s reports relative to the etiology of the claimed disabilities. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. (Continued on the next page)   4. Finally, undertake any other development determined to be warranted, and then readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Fraser, Counsel