Citation Nr: 18154727 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-49 479 DATE: November 30, 2018 ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a sleep disorder is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for a headache disorder is denied. Entitlement to service connection for a bilateral leg condition is denied. Entitlement to an effective date earlier than April 4, 2013 for the grant of service connection for major depressive disorder and generalized anxiety disorder is denied. Entitlement to a rating greater than 70 percent for major depressive disorder and generalized anxiety disorder is denied. REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran has not alleged specific error of fact or law regarding the claims of service connection for tinnitus; a sleep disorder; hypertension; a headache disorder; and a bilateral leg disorder. He has also not alleged specific error of fact or law regarding the earlier effective date claim. 2. During the pendency of the appeal, the Veteran did not have total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for a Substantive Appeal for the claims of service connection for tinnitus; a sleep disorder; hypertension; a headache disorder; and a bilateral leg disorder have not been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. 2. The criteria for a Substantive Appeal for the claim of an effective date earlier than April 4, 2013 for the grant of service connection for major depressive disorder and generalized anxiety disorder have not been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. 3. From March 1, 2013 to July 20, 2017, the criteria for entitlement to a rating greater than 70 percent for PTSD have not been approximated. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1972 to September 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs. Issue 1: Entitlement to service connection for tinnitus. Issue 2: Entitlement to service connection for a sleep disorder. Issue 3: Entitlement to service connection for hypertension. Issue 4: Entitlement to service connection for a headache disorder. Issue 5: Entitlement to service connection for a bilateral leg condition. Issue 6: Entitlement to an effective date earlier than April 4, 2013 for the grant of service connection for major depressive disorder and generalized anxiety disorder. Substantive Appeals Section 7105(d)(5) of Title 38 of the United States Code states "the Board of Veterans' Appeals may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed." This statutory section requires veterans to act after VA issues a Statement of the Case. 38 C.F.R. § 20.200 mirrors this language. It states: "A Substantive Appeal consists of a properly completed VA Form 9, “Appeal to Board of Veterans’ Appeals,” or correspondence containing the necessary information. If the Statement of the Case and any prior Supplemental Statements of the Case addressed several issues, the Substantive Appeal must either indicate that the appeal is being perfected as to all of those issues or must specifically identify the issues appealed. The Substantive Appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed. To the extent feasible, the argument should be related to specific items in the Statement of the Case and any prior Supplemental Statements of the Case. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination, or determinations, being appealed. The Board will not presume that an appellant agrees with any statement of fact contained in a Statement of the Case or a Supplemental Statement of the Case which is not specifically contested. Proper completion and filing of a Substantive Appeal are the last actions the appellant needs to take to perfect an appeal." (emphasis added) The Veteran submitted a Notice of Disagreement (NOD) in July 2015. VA, in response, issued a Statement of the Case in September 2016. The Veteran, through counsel, submitted a VA Form 9 in October 2016. Neither the Veteran nor counsel submitted any argument in either the NOD or VA Form 9 for Issues 1-6 above. They merely checked boxes on the NOD to identify the issues appealed and enumerated the issues to be perfected on the VA Form 9. In contrast, the Veteran, through counsel, submitted a brief for the increased rating issue and TDIU issue below. The statute and regulation cited above exist to conserve VA's limited resources. By excluding these issues from his brief and offering no argument during the pendency of the appeal, the Veteran suggests he agrees with VA's determination of these issues. Pursuant to the statute and regulation cited above, the undersigned will deny these claims. In so doing, the undersigned is mindful of Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), which held that claims must be denied as without legal merit when the law is dispositive. Issue 7: Entitlement to a rating greater than 70 percent for major depressive disorder and generalized anxiety disorder Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Psychiatric Disorder VA has rated the Veteran’s psychiatric disorder as 70 percent disabling. A 70 percent evaluation is assigned when a veteran’s psychiatric disability causes 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); or an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent rating is assigned when a veteran’s psychiatric disability causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s psychiatric symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Because VA has rated the Veteran as 70 percent disabled during the pendency of the claim, the undersigned only needs to consider if he merits the next highest rating – 100 percent. VA examined the Veteran for compensation purposes in November 2014. The examiner reported that the Veteran works "part time on [a] golf course." The Veteran, through counsel, submitted an October 2016 private psychiatric evaluation and a January 2017 private vocational evaluation. The former is relevant here. This examiner found the Veteran's disability level corresponded to his current 70 percent rating. Indeed, he expressly found the Veteran did not have total social and occupational impairment. Additionally, the examiner reported that the Veteran had a "limited support system" despite his strained marital and family relationships. Considering these evaluations together, the Veteran worked, albeit part time, in a public place while also interacting with his "limited support system." Therefore, the undersigned finds that the Veteran was not totally socially and occupationally impaired during the pendency of the appeal. REASONS FOR REMAND Remand is warranted for two reasons. First, according to the January 2017 private vocational evaluation, the Veteran has been receiving Social Security Administration (SSA) disability for a low back disorder since 2010. Those records are not in the claims file, so VA must attempt to obtain them for his low back disorder claim. Second, the Veteran is claiming a TDIU. The Veteran has not submitted a TDIU application. This is necessary to determine his employment history, which pursuant to the November 2014 VA examination includes working part-time at a golf course despite being on SSA disability. Before the Board decides the Veteran’s appeal, remand is warranted to permit the Veteran to submit a TDIU application and for VA to obtain income information for the appellate period. The matters are REMANDED for the following action: 1. Obtain the Veteran's SSA disability records. 2. Obtain the Veteran’s annual earned income from 2012 to present from the Social Security Administration or the Internal Revenue Service. 3. Identify the poverty threshold for one person, as explained in 38 C.F.R. § 4.16 (a), from 2013 to present. 3. Based on the information received in Directive #2, determine if the Veteran's earned income exceeded the poverty threshold for one person for each year from 2013 to the present. For each year the Veteran's earned income exceeded the poverty threshold, expressly identify the amount by which he exceeded it. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Sopko, Counsel