Citation Nr: 18150857 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 16-13 321 DATE: November 16, 2018 ORDER Entitlement to service connection for a left shoulder condition is dismissed. Entitlement to service connection for a right shoulder condition is dismissed. Entitlement to service connection for a lower back condition is dismissed. Entitlement to service connection for chronic right knee disability now claimed as arthritis is dismissed. Entitlement to service connection for left knee strain is dismissed. Entitlement to service connection for a left ankle condition is dismissed. Entitlement to service connection for a right ankle condition is dismissed. Entitlement to service connection for chronic conjunctivitis is dismissed. Entitlement to service connection for right ear hearing loss is dismissed. Entitlement to service connection for bad breath (halitosis) associated with acid reflux is dismissed. Entitlement to service connection for ischemic heart disease is dismissed. Entitlement to service connection for hypertension is dismissed. Entitlement to service connection for acid reflux is dismissed. Entitlement to service connection for prostatitis is dismissed. Entitlement to service connection for cyst in testicle with pain is dismissed. Entitlement to service connection for diabetes is dismissed. Entitlement to a rating in excess of 20 percent for right hand, neoplasm palm, thumb limitation of motion is denied. Entitlement to a rating in excess of 10 percent for right hand, neoplasm palm, index finger is denied. Entitlement to a rating in excess of 10 percent for right hand, neoplasm palm, long finger is denied. Entitlement to an initial compensable rating for right hand, neoplasm palm, little finger is denied. Entitlement to an initial compensable rating for right hand, neoplasm palm, ring finger is denied. Entitlement to an increased rating for urinary tract infection is dismissed. Entitlement to a rating in excess of 10 percent for pityriasis rubra pilaris is dismissed. Entitlement to an initial disability rating in excess of 70 percent for depressive disorder with other specified trauma disorder is denied. REMANDED Entitlement to an effective date prior to October 7, 2014 for the grant of service connection for right hand and finger strain with neoplasm of the palm with limitation of motion of the thumb is remanded. Entitlement to an effective date prior to October 7, 2014 for the grant of service connection for right hand and finger strain with neoplasm of the palm with limitation of motion of the long finger is remanded. Entitlement to an effective date prior to October 7, 2014 for the grant of service connection for right hand and finger strain with neoplasm of the palm with limitation of motion of the index finger is remanded. Entitlement to an effective date prior to October 7, 2014 for the grant of service connection for right hand and finger strain with neoplasm of the palm with limitation of motion of the ring finger is remanded. Entitlement to an effective date prior to October 7, 2014 for the grant of service connection for right hand and finger strain with neoplasm of the palm with limitation of motion of the little finger is remanded. Entitlement to an effective date prior to October 7, 2014 for the grant of service connection for a depressive disorder is remanded. Entitlement to an effective date prior to October 7, 2014 for the grant of service connection for tinnitus is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a grant of total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In September 2016, prior to the promulgation of a decision in the appeal, the Board received a request from the Veteran to withdraw the appeals for entitlement to service connection for left shoulder condition, right shoulder condition, lower back condition, chronic right knee disability, left knee strain, left ankle condition, right ankle condition, chronic conjunctivitis, right ear hearing loss, bad breath (halitosis), ischemic heart disease, hypertension, acid reflux, prostatitis, testicle cyst with pain, and diabetes; and to withdraw the appeals for increased rating for pityriasis rubra pilaris and urinary tract infection. 2. The Veteran’s right hand, neoplasm palm, thumb disability is manifested by limitation of motion with a gap of more than two inches between the thumb pad and the fingers with the thumb attempting to oppose the fingers. 3. The Veteran’s right hand, neoplasm palm, index finger is manifested by painful motion with limitation of motion to include a greater than one inch gap between the finger and the proximal transverse crease of the palm. 4. The Veteran’s right hand, neoplasm palm, long finger is manifested by painful motion with limitation of motion to include a greater than one inch gap between the finger and the proximal transverse crease of the palm. 5. The Veteran’s right hand, neoplasm palm, little finger is manifested by painful motion with limitation of motion. 6. The Veteran’s right hand, neoplasm palm, ring finger is manifested by painful motion with limitation of motion. 7. The Veteran’s depressive disorder with other specified trauma disorder is manifested by symptoms productive of occupational and social impairment with deficiencies in most areas like inability to establish and maintain effective relationships; total occupational and social impairment is not shown. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal for entitlement to service connection for left shoulder condition, right shoulder condition, lower back condition, chronic right knee disability, left knee strain, left ankle condition, right ankle condition, chronic conjunctivitis, right ear hearing loss, bad breath (halitosis), ischemic heart disease, hypertension, acid reflux, prostatitis, testicle cyst with pain, diabetes; and the appeal for an increased rating for pityriasis rubra pilaris and urinary tract infection, by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for entitlement to a rating in excess of 20 percent for right hand, neoplasm palm, thumb limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5228. 3. The criteria for entitlement to a rating in excess of 10 percent for right hand, neoplasm palm, index finger have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5229. 4. The criteria for entitlement to a rating in excess of 10 percent for right hand, neoplasm palm, long finger have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5229. 5. The criteria for entitlement to an initial compensable rating for right hand, neoplasm palm, little finger have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5230. 6. The criteria for entitlement to an initial compensable rating for right hand, neoplasm palm, ring finger have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5230. 7. The criteria for entitlement to an initial disability rating in excess of 70 percent for depressive disorder with other specified trauma disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1974 to November 1978. Dismissal 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. 38 C.F.R. § 20.204. In the present case, the Veteran, in a September 2016 written statement via his representative, has withdrawn the appeal for entitlement to service connection for (1) left shoulder condition, (2) right shoulder condition, (3) lower back condition, (4) chronic right knee disability, (5) left knee strain, (6) left ankle condition, (7) right ankle condition, (8) chronic conjunctivitis, (9) right ear hearing loss, (10) bad breath (halitosis), (11) ischemic heart disease, (12) hypertension, (13) acid reflux, (14) prostatitis, (15) testicle cyst with pain, (16) diabetes; and the appeal for (17) an increased rating for pityriasis rubra pilaris and urinary tract infection, and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals for these issues, and the appeals with respect to these issues are dismissed. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings are sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). 1. Entitlement to a rating in excess of 20 percent for right hand with neoplasm of palm and limitation of the thumb The Veteran asserts that his disability of the right thumb is more severe than reflected in his current 20 percent rating. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affect stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. The Board further notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnston v. Brown, 9 Vet. App. 7 (1996). Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran’s right thumb disability is rated at 20 percent under DC 5228 for limitation of motion of the thumb. Under DC 5228, a 10 percent disability rating is warranted for limitation of motion of the thumb with a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a, DC 5228. A maximum schedular 20 percent disability rating is warranted for limitation of motion of the thumb with a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. Id. The March 2015 VA examiner reported that the Veteran’s thumb limitation of motion was manifested by a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. The examiner noted painful motion of the thumb and fingers. The examiner noted that the Veteran had to manually open the fingers of the right hand due to disability. There was no ankylosis. A March 2015 X-ray report showed no arthritis or bony abnormalities of the right hand. Under DC 5224, which rates ankylosis of the thumb, a 10 percent disability rating is warranted for favorable ankylosis of the thumb, while a 20 percent disability rating is warranted for unfavorable ankylosis of the thumb. 38 C.F.R. § 4.71a, DC 5224. Under DC 5152, partial amputation of the thumb is rated at 20 percent through the distal joint or through the distal phalanx, 30 percent for the major thumb amputation at metacarpophalangeal joint or through the proximal phalanx. The Veteran’s right hand thumb disability is rated at the maximum 20 percent for limitation of motion. There is no indication of ankylosis, arthritis, or amputation. Accordingly, the appeal for a higher disability rating for the right hand thumb disability is denied. 2. Entitlement to a rating in excess of 10 percent for right hand, neoplasm palm, index and long fingers The Veteran contends that his right hand, neoplasm palm, index and long finger disabilities, are manifested in symptoms worse than contemplated by the current 10 percent disability rating assigned to each finger. Under DC 5229, contemplating limitation of motion of the index or long finger, a noncompensable rating is warranted where there is a gap of less than one inch (2.5 centimeters) between the fingertip of either the major or minor hand and the palm crease, with the finger flexed to the extent possible, and a maximum 10 percent rating is warranted where there is a gap of one inch (2.5 centimeters) or more between the fingertip of either the major or minor hand and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or with extension limited by more than 30 degrees. 38 C.F.R. § 4.71a, DC 5229. The March 2015 VA examination showed that the Veteran has painful motion of the index and long fingers that also manifests in limitation of motion with a gap of one inch or more between the fingertip and the proximal transverse crease of the palm with the finger flexed to the extent possible. The Veteran’s right hand muscle strength while gripping was two out of five. X-rays of the right hand showed no arthritis. The examiner noted the Veteran had obvious painful motion of all fingers of the right hand and reported that the Veteran must manually open the right hand fingers. The 10 percent rating assigned herein for each of the index and long fingers separately, is the maximum rating under DC 5229. Even if the right index or long fingers manifested in ankylosis, a higher rating would not be warranted, as DC 5225, contemplating ankylosis of the index finger also has a maximum 10 percent schedular rating, and DC 5226 has a maximum of 10 percent for ankylosis of the long finger. Even partial amputation results in a 10 percent rating under DC 5153 or DC 5154. Without sufficient evidence of amputation at a certain level, the 10 percent rating is the maximum rating to assign for each of the Veteran’s right hand long and index finger disabilities. Accordingly, the criteria for an increased rating for the Veteran’s right index and/or right long fingers is denied. 3. Entitlement to an initial compensable rating for right hand, neoplasm palm, ring and little fingers The Veteran’s right hand, ring and little fingers, disability has been rated as noncompensable pursuant to Diagnostic Code 5230 for limitation of motion in the ring or little finger. Diagnostic Code 5230 provides a maximum noncompensable rating for any limitation of motion for the ring or little finger. Thus, even if the Veteran displays limited motion of the ring or little finger, a noncompensable rating is the highest rating he can receive under Diagnostic Code 5230. In a March 2015 VA examination, the Veteran’s hand strength was 2 out of 5 in the right hand. The ring and little fingers each showed a more than one inch gap with painful motion upon attempt to touch the palmar area. There was no ankylosis in the ring or little finger. The examiner responded that an amputation would not better serve the Veteran in place of the current extremities, despite disability. The examiner noted the obvious painful motion of the Veteran’s right hand fingers during the examination. The Board has considered the Veteran’s statements regarding his symptoms. The Veteran reported that he has to manually open his fingers of the right hand with the left hand and that he can barely move the fingers of his right hand independently. However, as explained above, where only limitation of motion of the left ring and little fingers is shown, a noncompensable rating is the maximum schedular rating available. 38 C.F.R. § 4.71a, Diagnostic Code 5230. Moreover, there is no “minimum compensable rating” available for limitation of motion of a ring or little finger joint. Thus, despite lay and observed medical evidence of painful motion, a compensable rating is not warranted under the provisions of 38 C.F.R. § 4.59. Sowers v. McDonald, 27 Vet. App. 472 (2016). The Veteran is in receipt of the maximum schedular rating for his disability of the fourth and fifth fingers. The Board has also considered whether an increased initial rating is warranted under another diagnostic code. Diagnostic codes 5216 through 5219 provide various ratings where unfavorable ankylosis of multiple digits is present. Diagnostic codes 5220 through 5223 provide various ratings where favorable ankylosis of multiple digits is present. Diagnostic codes 5224 through 5227 provide various ratings where ankylosis of individual digits is present. There, however, is no ankylosis of the fingers. Also, no service-connected neurological impairment associated with the service connected disability has been identified, and so the criteria associated with Diagnostic Codes 8514, 8515, and 8516 are not met. 38 C.F.R. § 4.124a. Under Diagnostic Code 5151, a 30 percent rating for the dominant hand and 20 percent for the nondominant hand is warranted where amputation of the Veteran’s ring and little fingers has been performed. Here, there is no indication of amputation. Special monthly compensation is warranted where there is loss of use of a hand such that no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow with use of a suitable prosthetic appliance. 38 C.F.R. § 3.350(a)(2); 38 C.F.R. § 4.63. However, the Veteran has not asserted complete loss of use of his hand. The examiner responded that an amputation would not better serve the Veteran in place of the current extremities, despite the severity of his disability. Thus, special monthly compensation is not warranted. In so finding all of the above, the Board notes that the Veteran is competent to report on symptoms and credible to the extent that he believes he is entitled to a higher rating for his disability. His competent and credible lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the true extent of the impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran’s complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. In sum, absent some ankylosis, or functional impairment akin to amputation, a compensable rating is not warranted for the Veteran’s ring or little fingers of the right hand. 4. Entitlement to an initial disability rating in excess of 70 percent for depressive disorder with other specified trauma disorder The Veteran contends that his depressive disorder symptoms caused total occupational and social impairment during the period on appeal. After a review of the evidence of record, the Board finds that a disability rating in excess of 70 percent for depressive disorder is not warranted. The Board will refer to the Veteran’s mental health disability as “depressive disorder” to include all the diagnoses for this decision. Mental disorders are evaluated under the general rating formula for mental disorders, a specific rating formula presented under 38 C.F.R. § 4.130. In addition, the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) provides guidance for the nomenclature employed within 38 C.F.R. § 4.130. However, effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the DSM-IV and replace them with references to the recently updated Diagnostic and Statistical Manual (Fifth Edition) (the DSM-5). See 79 Fed. Reg. 45,094 (August 4, 2014). VA adopted as final, without change, this interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014. See Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14,308 (March 19, 2015). In the present case, the RO certified the Veteran’s appeal to the Board in June 2016, which is after August 4, 2014. Thus, the version of 38 C.F.R. § 4.125 conforming to the DSM-5 is applicable in the present case. In any event, the Board will still consider any private or VA examiner’s discussion of both the DSM-IV and DSM-5 in adjudicating the current Veteran’s depressive disorder claim, in order to provide the Veteran with every benefit of the doubt. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). As provided by the General Rating Formula, a 50 percent rating is assigned when there is 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. 38 C.F.R. § 4.130. A 70 percent rating is in order when there is 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 in order when there is 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; and memory loss for names of close relatives, own occupation, or own name. Id. A veteran need not exhibit “all, most, or even some” of the symptoms enumerated in the General Rating Formula for Mental Disorders to warrant the assignment of a higher rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Rather, the use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. Id. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. Mauerhan, 16 Vet. App. at 442. The Federal Circuit has clarified that the General Rating Formula for Mental Disorders requires not only (1) sufficient symptoms of the kind listed in the percentage requirements, or others of similar severity, frequency, or duration, but also (2) that those symptoms cause the level of occupational and social impairment specified in the regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Federal Circuit endorsed an approach whereby the Board would identify the symptoms associated with the service-connected mental health disability, determine whether they are of the kind enumerated in the regulation, and if so, assess whether they result in the level of occupational and social impairment specified by a particular rating. Id. The Veteran’s service-connected depressive disorder is currently assigned a 70 percent evaluation pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9413. The Veteran first submitted a claim for entitlement to service connection for a mental health disorder in October 2014. At an October 2014 mental health assessment, the treatment provider noted that the Veteran was depressed but had no suicidal or homicidal ideations. The Veteran was afforded a VA examination in April 2015. The examiner confirmed a diagnosis for three mental disorders: other specified trauma and stressor-related disorder/chronic PTSD-like trauma-response disorder; persistent depressive disorder, later onset, with persistent major depressive episode, severe; and obstructive sleep apnea hypopnea. The examiner chose the descriptor correlating the Veteran’s level of severity of mental health disorder symptoms consistent with occupational and social impairment with reduced reliability and productivity. Symptoms reported at this examination include depressed mood anxiety, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relations. The Veteran was alert and cooperative. Grooming was normal and eye contact was good. Speech was slow with mild latency but logical. There was mild psychomotor retardation. There was no evidence of psychotic processes. The Veteran’s mood was “pretty anxious,” and affect was depressed and anxious. The Veteran denied any current or recent suicidal ideation. The Veteran reported chronic depressed mood, low self-esteem and energy, insomnia, poor concentration, difficulty making decision, and feelings of hopelessness. The Veteran reported past recurring passive suicidal thoughts with no history of self-harm. The Veteran’s treatment records document regular mental health assessments, like in June 2015. The treating provider noted that the Veteran’s mood was stable and the prescription medication was helping. There were no hallucinations by the Veteran; no suicidal or homicidal ideations; and the treatment provider noted that the Veteran’s thoughts were reality-based and though process was linear. A September 2016 private vocational assessment included reference to the Veteran’s depressive disorder as “totally and permanently preclude[ing] from performing work at a substantial gainful level due to the severity of his service connection depression.” The assessor referenced the Veteran’s “mental activity involved in sustaining work” to be “extremely limited.” The assessor opined that the Veteran would have to take time off work at more than a typical rate due to emotional and physical symptoms “impacting his concentration and persistence at a work task.” These opinions referred to the April 2015 VA examination by Dr. C, which, as noted above, found the Veteran’s depressive disorder to be manifested by symptoms consistent with occupational and social impairment with reduced reliability and productivity. A review of the record does not show that the Veteran exhibited symptoms consistent with total occupation and social impairment as contemplated by a higher evaluation. The record does not show as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others, or other symptoms productive of total occupation and social impairment. On the contrary, as noted in the April 2015 examination report, the Veteran while demonstrating a “pretty anxious” mood, was fully alert, oriented, and cooperative with normal groom and good eye contact. While his speech was slow with mild lateral and very discursive, it was logical, ultimately goal directed, and contained content with was congruent with his affect. While psychomotor retardation was observed it was noted to be mild. There was no evidence of psychotic processes or organicity and the Veteran denied current or recent suicidal ideation at the time of the 2015 examination. However, it was noted that the Veteran had experienced episodes of feelings of worthlessness and helplessness, loss of appetite, energy, motivation, interest, enjoyment, concentration, and libido with “brief passive suicidal ideation with no history of self harm.” These episodes last 2 to 4 weeks occurring approximately 7 to 8 times per year. Nevertheless, even considering the Veteran’s passive suicidal ideations, the totality of the record does not establish that the Veteran’s has total occupational and social impairment as a result of his service connected acquired psychiatric disorder. The Board concludes that the weight of the evidence is against a finding of total occupational and social impairment resulting from his service connected acquired psychiatric disorder. Accordingly, the Board a rating in excess of 70 percent for depressive disorder is denied. REASONS FOR REMAND 1. Entitlement to earlier effective dates for the grant of service connection for tinnitus, right hand neoplasm (thumb and all fingers), and depressive order. In a Notice of Disagreement received in July 2015, the Veteran expressed disagreement with the October 7, 2014 effective date assigned for service connection for right hand and finger strain with neoplasm of the palm with limitation of motion of the thumb, long finger, index finger, ring finger, and little finger; a depressive disorder, and tinnitus. The record does not reflect that the Veteran has been furnished with a Statement of the Case addressing the effective date claims. Accordingly, a Statement of the Case (SOC) should be issued that addresses this claim. Thus, this claim must be remanded for issuance of a SOC addressing the issue. See Manlincon v. West, 12 Vet. App. 238 (1999) (providing that the Board must remand a matter when the VA fails to issue an SOC after a claimant files a timely notice of disagreement). 2. Entitlement to service connection for sleep apnea is remanded. The Veteran has submitted a private medical opinion indicating that the Veteran’s sleep apnea, diagnosed in or around 2000, developed and was aggravated by the Veteran’s service-connected disabilities. The Veteran’s medical records show a history of non-compliance with CPAP usage, and an indication that such behavior may be intertwined with the psychiatric disorder for which the Veteran is service-connected. The Veteran has not been afforded a VA examination for sleep apnea. On remand, the Veteran should be afforded an examination to ascertain the etiology of any current sleep apnea. 3. Entitlement to a grant of total disability based on individual unemployability (TDIU) Finally, because a decision on the remanded issue of service connection for sleep apnea could significantly impact a decision on the issue of a grant of TDIU, the issues are inextricably intertwined. A remand of the claims for TDIU is required. The matter is REMANDED for the following action: 1. Issue a Statement of the Case pertaining to the Veteran’s claims of: (a) entitlement to an effective date prior to October 7, 2014 for the grant of service connection for right hand and finger strain with neoplasm of the palm with limitation of motion of the thumb; (b) entitlement to an effective date prior to October 7, 2014 for the grant of service connection for right hand and finger strain with neoplasm of the palm with limitation of motion of the long finger; (c) entitlement to an effective date prior to October 7, 2014 for the grant of service connection for right hand and finger strain with neoplasm of the palm with limitation of motion of the index finger; (d) entitlement to an effective date prior to October 7, 2014 for the grant of service connection for right hand and finger strain with neoplasm of the palm with limitation of motion of the ring finger; (e) entitlement to an effective date prior to October 7, 2014 for the grant of service connection for right hand and finger strain with neoplasm of the palm with limitation of motion of the little finger; (f) entitlement to an effective date prior to October 7, 2014 for the grant of service connection for a depressive disorder; and (g) entitlement to an effective date prior to October 7, 2014 for the grant of service connection for tinnitus. The Veteran is advised that the Board will only exercise appellate jurisdiction over his claims if he perfects a timely appeal of these claims. See 38 C.F.R. § 19.29; Manlincon, 12 Vet. App. 238. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sleep apnea condition. The examiner must respond to the following inquiries: (a.) Whether any diagnosed sleep apnea is at least as likely as not related to an in-service injury, event, or disease. (b.) Whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. (c.) Secondary service connection – whether it is at least as likely as not (1) proximately due to service-connected disabilities, or (2) aggravated beyond its natural progression by service-connected disabilities. (d.) In forming these responses, the examiner is asked to refer to the private opinion dated July 2016 from Dr. S. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Miller, Erin (BVA)