Citation Nr: 18154065 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-52 218 DATE: November 29, 2018 ODER Entitlement to an increased rating in excess of 40 percent disabling for residuals, prostate cancer, status post radical retropubic prostatectomy with bilateral lymphadectomy is dismissed. REMANDED Entitlement to an increased rating in excess of 30 percent disabling for other specified depressive disorder, with anxious distress, previously diagnosed as major depressive disorder is remanded. Entitlement to total disability based on individual unemployability is remanded. FINDINGS OF FACT In a March 2017 hearing before the Board of Veterans’ Appeals (Board), prior to the promulgation of a decision in the appeal, the Veteran agreed before the Veterans Law Judge to withdraw the single issue of entitlement to an increased rating in excess of 40 percent disabling for residuals, prostate cancer, status post radical retropubic prostatectomy with bilateral lymphadectomy. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an issue on appeal by the Veteran have been met. 38 U.S.C. § 7105(B)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from March 1966 to February 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from June 2013 and October 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an increased rating in excess of 40 percent disabling for residuals, prostate cancer, status post radical retropubic prostatectomy with bilateral lymphadectomy. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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. The Veteran was granted a hearing in March 2017 before the Board, made under oath before a Veterans Law Judge. During this hearing the Veteran’s representative brought up the October 2016 Rating Decision which granted the claim for an increased rating in excess of 40 percent disabling for residuals of prostate cancer, status post radical retropubic prostatectomy with bilateral lyumphadectomy, effective July 30, 2015. As a result, the Veteran’s representative requested that the issue be withdrawn, and when asked, the Veteran agreed to the withdrawal of that singular issue. The issue of entitlement to an increased rating in excess of 40 percent for residuals or prostate cancer, status post radical retropubic prostatectomy with bilateral lymphadectomy has been withdrawn by the appellant. Accordingly, the Board no longer has jurisdiction to review the appeal, and this matter is dismissed. REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 30 percent disabling for other specified depressive disorder, with anxious distress, previously diagnosed as major depressive disorder is remanded. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained 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 the residual conditions in civilian occupations. 38 C.F.R. §§ 3.321(a), 4.1. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at the moment of the examination. Id. The Board has held that, where the record does not adequately reveal the current state of claimant’s disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995). In this case, the Veteran’s other specified depressive disorder, with anxious distress, is currently rated as 30 percent disabling for the entire period on appeal under Code 9400-9434. 38 C.F.R. § 4.130. The Veteran is requesting an increase in his current disability rating. By way of background, the Veteran was given a VA examination in December 2015 whereby the examiner gave a detailed assessment and considered the history and casefile of the Veteran. The examiner noted good grooming and appearance, logical, coherent statements, euthymic mood, no psychotic symptoms, and that the Veteran was not exaggerating his symptoms of depression. The examiner opined that the “current symptoms do not meet diagnostic criteria for a major depressive episode,” and that “there is no evidence that the veteran’s symptoms have worsened since the prior exam.” However, during the video conference hearing in March 2017 the Veteran testified to symptoms involving difficulty eating, sleeping, short and long-term memory problems, difficulty in remembering people’s names, little-to-no motivation, an inability to maintain romantic relationships, anxiety and suspicion towards strangers, and that he feels as though his depression has gotten worse since his last examination in 2015. While the Veteran is not medically competent to self-diagnose the current severity of his depression, his symptoms indeed may have worsened from the time between his December 2015 VA mental health examination, and his video conference hearing. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). So while the VA examiner gave a reasoned explanation as to the severity of the claimants disability at the time, the lay testimony indicates that the most recent medical examination may not adequately reveal the current state of the claimant’s disability. As noted, where the record does not adequately reveal the current state of claimant’s disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995). Therefore, the Board finds that a contemporaneous examination is necessary to determine the Veteran’s current level of impairment with regard to his service-connected other specified depressive disorder, with anxious distress. 2. Entitlement to total disability based on individual unemployability (TDIU) is remanded. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453–54 (2009). TDIU may be assigned where it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability. See 38 C.F.R. § 4.16(a). The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this case, the Veteran is seeking entitlement for total disability based on individual unemployability. Again, in December 2015 the Veteran received a VA examination that gave a detailed assessment and considered the Veteran’s history and the personal casefile of the Veteran. The VA examiner noted that the “veteran does not have any occupational impairment that is at least as likely associated with his other specified depressive disorder.” The VA examiner opined that the daily fatigue suffered by the Veteran may affect his productivity, but determining the portion of fatigue was due to his depression versus sleep interruptions would be purely speculative. During the video conference hearing in March 2017 the Veteran that he is not currently working, and has not held stable employment since his prostate cancer around 2004. The Veteran testified that his ability to move, stand, breath and bend over have been affected by residuals of his service-connected prostate cancer. He struggles to do yard work for longer than a half hour without taking a break He does not feel that he can do the type of construction work that he used to, including climbing ladders, roofing, lifting heavy objects. The Veteran does not believe that he can find gainful employment. While the Veteran is not medically competent to self-diagnose individual unemployability, his symptoms may have worsened from the time between his December 2015 VA mental health examination, and his video conference hearing. Jandreau v. Nicholson, Id. So while the VA examiner gave a reasoned explanation as to the Veteran’s lack of an occupational impairment, the lay testimony indicates that the most recent medical examination may not adequately reveal the current state of the Veteran’s individual unemployability. As noted, where the record does not adequately reveal the current state of claimant’s disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995). Therefore, the Board finds that a contemporaneous examination is necessary to determine the Veteran’s current level of impairment with regard to his individual unemployability. The matters are REMANDED for the following action: 1. Obtain the Veteran’s military personnel file and associate it with the claims file. All requests and responses, positive and negative, must be documented in the claims file. 2. Ask the Veteran to identify any relevant private treatment records and request that the Veteran submit or authorize for release such private treatment records. Then, make appropriate efforts to obtain any records so authorized for release. All actions to obtain the records should be documented. If the records cannot be located or do not exist, the Veteran should be notified and given an opportunity to provide them. 3. Thereafter, schedule the Veteran for a VA examination with a medical professional of sufficient expertise to determine the current severity of the Veteran’s other specified depressive disorder with anxious distress. The medical professional is also asked to clearly identify if the Veteran, due to his service-connected residuals of prostate cancer and/or the current severity of his other specified depressive disorder with anxious distress, is unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(a). When making the assessment to determine the Veteran’s individual unemployability, the medical professional should take into account the nature and extent of his service-connected disabilities, his employment history, education, and any specialized skill training possessed by the Veteran. The Veteran’s age may not be considered a factor when determining individual unemployability. The electronic claims file, to include the Veteran’s service treatment records, lay statements and testimonies, and treatment records, must be reviewed by the examiner, and a note that it was reviewed should be included in the report. In rendering the requested opinion, the examiner is instructed to specifically acknowledge the Veteran’s testimony. 4. Ensure that the examination reports are adequate. If it is deficient in any manner, return the report to the examiner as inadequate. Then, after conducting any other development deemed necessary, readjudicate the Veteran’s claims. If any benefit sought on appeal remains denied, provide the Veteran and her representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Garrett H. Mulrain, Associate Counsel