Citation Nr: 18149247 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 15-20 562 DATE: November 9, 2018 ORDER The withdrawn claim of entitlement to a disability rating in excess of 50 percent for service-connected persistent depressive disorder with alcohol abuse disorder is dismissed from October 1, 2017 and onward. Entitlement to a disability rating in excess of 10 percent for persistent depressive disorder with alcohol abuse disorder from November 22, 2013 to October 6, 2016 is denied. Entitlement to an initial 70 percent disability rating, but no higher, for persistent depressive disorder with alcohol abuse disorder from October 7, 2016 to August 27, 2017 is granted. REMANDED Entitlement to service connection for right shoulder disability is remanded. Entitlement to service connection for bilateral hip disability is remanded. Entitlement to an initial compensable disability rating for right knee patella femoral syndrome is remanded. FINDINGS OF FACT 1. The Veteran withdrew his claim for a disability rating in excess of 50 percent for persistent depressive disorder from October 1, 2017 forward. 2. Prior to October 7, 2016, the Veteran’s persistent depressive disorder with alcohol abuse disorder did not manifest with symptomatology causing occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks. 3. From October 7, 2016 to August 27, 2017, the Veteran’s persistent depressive disorder with alcohol abuse disorder is manifested by symptomatology causing deficiencies in most areas, such as work, family relations, judgement, thinking, or mood. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran have been met as to the issue of a disability rating in excess of 50 percent from October 1, 2017 forward for persistent depressive disorder with alcohol abuse disorder. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. The criteria for a disability rating in excess of 10 percent prior to October 7, 2016 for service-connected persistent depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9433. 3. The criteria for a disability rating of 70 percent and no higher for service-connected persistent depressive disorder with alcohol abuse disorder have been met effective October 7, 2016 to August 27, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9433. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1999 to September 2003 and July 2004 to August 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing with the undersigned in June 2018. A transcript of that hearing has been added to the Veteran’s file. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. 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 appellant or by his authorized representative. 38 C.F.R. § 20.204. In Acree, the United States Court of Appeals for the Federal Circuit held that the withdrawal must be explicit, unambiguous, and done with a full understanding of the consequences of such action by the appellant and the subsequent Board dismissal must include findings as to all three elements. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). In the present case, prior to the June 2018 hearing, the Veteran, his representative, and the undersigned discussed the issue of an increased rating for persistent depressive disorder with alcohol abuse disorder, and the Veteran affirmed that he was requesting a withdrawal as to the issue of a disability rating in excess of 50 percent from October 1, 2017 forward for persistent depressive disorder with alcohol abuse disorder. During the hearing, the undersigned clearly discussed the issue to be withdrawn, and the Veteran’s representative affirmed that the Veteran is satisfied with his current rating and does not wish to appeal an increase for this disability. Based on the pre-hearing discussion and the hearing testimony, the Board finds the Veteran explicitly, unambiguously, and with a full understanding of the consequences of such action, withdrew his claim. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to this issue and it is dismissed. Increased rating for persistent depressive disorder with alcohol abuse disorder Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s persistent depressive disorder is rated under the General Rating Formula for Mental Disorders found in 38 C.F.R. § 4.130. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection for persistent depressive disorder with alcohol abuse disorder was granted with a 10 percent disability rating, effective from November 22, 2013 to August 27, 2017. The Veteran was rated at a temporary 100 percent from August 28, 2017 through September 30, 2017 due to hospitalization in excess of 21 days, with a rating of 50 percent thereafter. 38 C.F.R. § 4.130, Diagnostic Code 9433. The Board notes that Diagnostic Code 9433 directs the rater to consider the appropriate rating under the General Rating Formula for Mental Disorders (Mental Disorders Formula). The Veteran contends that he should have a rating in excess of 10 percent for the period of November 22, 2013 to August 27, 2017. Under the Mental Disorders Formula, a 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating 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. Id. A 70 percent rating is warranted 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); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The Veteran underwent a VA examination in August 2014 to determine if his symptoms had worsened. The examiner opined that the Veteran’s symptoms were not severe enough to interfere with occupational and social functioning, that the Veteran is able to manage his finances, and that the Veteran did not require continuous medication. The Veteran reported that at that time he rarely drank alcohol, spontaneously cried once or twice a month, and had social anxiety but he was able to manage it. The examiner noted symptoms of depressed mood and disturbances of motivation and mood. VA treatment records dated June 2015 state that the Veteran’s persistent depressive disorder with alcohol abuse was maintained with medication. The Veteran later stated he discontinued using the medication because he felt things were going well for him and he was keeping busy with his family. In March 2016, the Veteran reported he was not having issues with his depression, his wife and him were trying to have a baby, and he only had a little problem with anxiety. In June 2016, the Veteran was again seen for treatment for his PTSD. At this time, the Veteran was on medication for his mood and anxiety, which helped to improve his mood and reduce his anxiety. The Veteran denied nightmares, but did report anxiety and frustrations due to work stress. The examiner reported that the Veteran was well groomed, alert and attentive, cooperative, was not suicidal or violent, had a coherent thought process, had good judgement and memory, and was able to maintain a stable mood and sobriety. The Veteran does not present with symptoms that would warrant a rating in excess of 10 percent prior to October 7, 2016. Although the Veteran reported some anxiety, depression, and trouble with his mood, he did not meet the criteria for a higher rating. Notably, during this period he had functional relationships with his family and was employed and working. While disturbance of motivation or mood, a symptom associated with a higher 50 percent rating, was noted at the August 2014 VA examination, even when considering that symptom with all of the other symptoms, the VA examiner still found the overall level of impairment was not severe enough to interfere with occupational and social functioning. The other evidence of record does not indicate that the condition worsened in a significant way since that examination until October 2016. The Board recognizes that at his hearing the Veteran testified that he did not report all of his symptoms at the 2014 examination because he was young, felt guilty and did not understand. The Board accepts the findings of the examiner as accurate as they were based on an interview with the Veteran and a review of the evidence and evaluation by a medical professional. It is noted that at the time of the examination the Veteran had already filed a claim for disability benefits and was scheduled for the examination to determine his level of disability, which suggests that guilt, age, and level of understanding should not have factored into reporting on symptomatology. Moreover, the examination findings are similar to findings noted in treatment records during the period in question, which suggests the findings on examination are an accurate depiction of the disability. The Veteran’s treatment records show that a rating of 70 percent is warranted beginning October 7, 2016. At this time, the Veteran began a series of hospitalizations for alcohol detoxification. During this initial hospitalization, the doctors reported that the Veteran was seeing false objects, was anxious and trembling, that the Veteran said he has to quit drinking to preserve his marriage, and that he was falling behind on personal business. Again, the Veteran sought treatment for alcohol abuse in November 2016 and had a positive depression screening, stating he felt hopeless about the future and felt depressed nearly every day. During a January 2017 hospitalization, the Veteran was having memory deficiencies, hallucinations that all of his cousins were in the hospital room, was depressed, and had anxiety. The Veteran was struggling with being able to function and work, and again stated he felt hopeless. In a February 2017 hospitalization, he was diagnosed with acute psychosis possibly due to alcohol withdrawal symptoms, alcohol dependence, and generalized anxiety disorder. In May 2017 the Veteran had been having hallucinations that someone was in his son’s room and had retrieved his gun to find the person. The police were called to deescalate the situation and brought the Veteran back to the hospital to seek treatment. The doctor recommended removing any guns from the Veteran’s home for safety purposes. Although the Veteran denied having suicidal ideation, his sister reported that the Veteran wanted to commit suicide in June 2017. The Veteran’s spouse also temporarily left him during this time and took their children with her. The Veteran continued to be in and out of the hospital for alcohol abuse along with hallucinations, anxiety, and suicidal thoughts until he was hospitalized on August 28, 2017 which resulted in his temporary 100 percent rating. The Veteran’s behavior is more consistent with a 70 percent rating beginning October 7, 2016. Although he denied having suicidal ideation, the Board finds the Veteran did in fact have suicidal ideation as reported by his sister in June 2017. Additionally, he was in and out of the hospital resulting in missing work, his wife temporarily left him, and he reported hallucinations, depression, and anxiety. The evidence is not consistent with a 100 percent rating as he did not suffer total occupational and social impairment prior to his hospitalization on August 28, 2017. Prior to the August 28, 2017 hospitalization, despite being frequently in and out of the hospital for detoxification, the Veteran continued to work intermittently and have relationships with his family. His sister and father supported him and visited him whenever he was in the hospital. The Veteran maintained his personal hygiene, was alert, and pleasant most of the time. Although in November 2016 the Veteran reported that he did not have memory issues or hallucinations, his treatment records show that he had hallucinations sporadically during this period, but not persistently. The Veteran knew who he was, who his family was, and what his occupation was. For these reasons, the Veteran is granted a 70 percent rating for persistent depressive disorder with alcohol abuse disorder and no higher from October 7, 2016 to August 27, 2017. REASONS FOR REMAND 1. Entitlement to service connection for right shoulder disability During the June 2018 hearing, the Veteran reported that he hurt his right shoulder while in service, either during a flag football game or while he was wresting for the Marine Corps wrestling team during his first period of service. The Veteran has complained of pain and shoulder problems since service. There is no medical opinion nor a VA examination that addresses whether the Veteran’s current right shoulder disability was related to or caused by his military service. As such, a medical opinion is necessary. 2. Entitlement to service connection for bilateral hip disabilities The Veteran was denied service connection for bilateral hip disability due to lacking a confirmed diagnosis of a disability. The August 2014 VA examination failed to consider if his bilateral hip pain was related to or caused by his military service since the Veteran did not have a diagnosed disability. At that time, pain was not considered a disability. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Since Sanchez-Benitez, pain that causes functional impairment can be considered a disability. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). A VA examination and medical opinion is needed to address whether the Veteran’s bilateral hip pain disability causes functional impairment and if it is related to the Veteran’s service. 3. Increased rating for right knee patella femoral syndrome The Veteran was granted service connection in November 2013 for his right knee patella femoral syndrome and it was rated as noncompensable. The Veteran testified at his June 2018 hearing that his right knee has become worse. A medical examination and opinion is needed to determine if the Veteran’s right knee patella femoral syndrome has worsened to a compensable degree. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to treatment for his claimed right shoulder disability, bilateral hip disability, and his service-connected right knee patella femoral syndrome. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records 2. After records development is completed, schedule the Veteran for a VA examination to determine the current symptoms, level of severity, and functional impairment associated with his right knee patella femoral syndrome. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. 3. After records development is completed, the Veteran should be afforded a VA examination to determine the nature of any right shoulder and bilateral hip disability, and to obtain an opinion as to whether such is related to service. The claim file should be reviewed by the examiner. All necessary tests should be conducted and the results reported. The examiner should elicit a full history from the Veteran and consider the lay statements of record. It is noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Following review of the claims file and examination of the Veteran, the examiner should list all relevant diagnoses for the right shoulder and hips. If no formal diagnosis is appropriate for the right shoulder or either hip, the examiner should specifically comment on whether there is any functional impairment in the shoulder or hip. For each diagnosed right shoulder or hip disorder, to include if there is functional limitation in the right shoulder or hip but no formal diagnosis, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current disability is related to an in-service injury, event, or disease. A rationale for all opinions expressed should be provided as the Board is precluded from making any medical findings. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Megan Shuster, Law Clerk