Citation Nr: 18154766 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 15-08 149 DATE: November 30, 2018 ORDER The appeal as to the issue of entitlement to service connection for fecal leakage is dismissed. A rating of 50 percent, but no higher, for adjustment disorder with depression is granted. REMANDED Service connection for urinary frequency and dysfunction is remanded. Service connection bladder cancer, to include bladder removal and ileal conduit, is remanded. FINDINGS OF FACT 1. Prior to the promulgation of a decision by the Board, the Veteran withdrew his appeal with respect to the issue of entitlement to service connection for fecal leakage. 2. The Veteran’s service-connected adjustment disorder with depression has been manifested by occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal as to the issue of entitlement to service connection for fecal leakage have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for a rating of 50 percent for adjustment disorder with depression have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to August 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The issue of service connection for a left kidney condition was raised in a March 2015 statement and is REFERRED to the Agency of Original Jurisdiction (AOJ) for adjudication. 1. Withdrawn Claim An appeal may be withdrawn as to any or all issues at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(a), (b)(3). Such withdrawal may be made by the appellant or by his or her authorized representative and, unless done on the record at a hearing, it must be in writing. 38 C.F.R. § 20.204(a). During the March 2018 Board hearing, the Veteran’s attorney explicitly, unambiguously, and with a full understanding of the consequences stated on the record that the Veteran wished to withdraw his appeal with respect to the issue of entitlement to service connection for fecal leakage. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). As such, no allegation of error of fact or law remains before the Board for consideration with respect to that claim. Accordingly, the Board finds that the Veteran has withdrawn his appeal with respect the issue of entitlement to service connection for fecal leakage. 2. Increased Rating Claim The Veteran’s service-connected adjustment disorder with depression has been assigned an initial 30 percent rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule of 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. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10 (2017); see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Pursuant to the General Rating Formula for Rating Mental Disorders (General Rating Formula), 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, weekly or less often panic attacks, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, recent events. 38 C.F.R. § 4.130, Diagnostic Code 9440. A 50 percent rating is warranted 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 such as, 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 when there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or effects thereof, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2017). Upon review of the record, and after resolving all doubt in the Veteran’s favor, the Board finds that a rating of 50 percent is warranted for his adjustment disorder with depressed mood. In this regard, the Board notes that a January 2013 VA examiner characterized the Veteran’s level of impairment as “occupational and social impairment with reduced reliability and productivity.” The examiner indicated that the Veteran had symptoms of moderate depression and decreased self-esteem relating to his prostate and bladder surgeries. A rating higher than 50 percent is not warranted, however. The record shows that the Veteran reported feelings of depression and decreased self-esteem relating to his prostate and bladder surgeries, but denied any other psychological symptoms. VA treatment records show that the Veteran reported that his depression was improving with medication, and he did not receive any other mental health treatment. Throughout the appeal period, the Veteran’s psychological and emotional state was calm and he exhibited an appropriate affect. During the March 2018 Board hearing, the Veteran testified that he experienced several episodes where he had no interest in doing anything outside the house, but he otherwise tried to interact with friends and family as much as possible. Furthermore, the record shows no evidence of impaired judgment, insight, thinking, memory, communication, thought process, or thought content. There was no evidence of inappropriate behavior, obsessive or ritualistic behavior, panic attacks, suicidal or homicidal ideations, hallucinations, delusions, violence or assaultiveness, inability to maintain personal hygiene, or limitations on activities of daily living due to the Veteran’s mental health. The Board has also reviewed and considered an August 2018 letter from a private physician who opined that the Veteran’s service-connected adjustment disorder warranted a 50 percent rating due to the multiple sequelae of his prostate and bladder cancers and treatments, although the physician did not provide any information relating to the Veteran’s mental health or otherwise explain the basis for that opinion. Based on the foregoing, the Board finds that the probative evidence of record does not demonstrate occupational and social impairment with deficiencies in most areas or total occupational and social impairment. Accordingly, a rating in excess of 50 percent is not warranted. REASONS FOR REMAND 1. The issue of entitlement to service connection for bladder cancer is remanded. The Veteran asserts that his bladder cancer is secondary to his service-connected prostate cancer, or alternatively, caused by in-service herbicide exposure. In August 2018, the Veteran submitted a letter from a private physician, who opined that the Veteran’s in-service herbicide exposure contributed to his transitional cell carcinoma of the bladder. Bladder cancer is not among the disabilities presumptively related to exposure to herbicide agents, and the private physician did not provide a rationale to support his opinion. Accordingly, the Board finds that a remand is necessary to obtain a medical opinion addressing the question of whether the Veteran’s bladder cancer is related to his presumed in-service herbicide exposure. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). 2. The issue of entitlement to service connection for urinary frequency and dysfunction is remanded. The Veteran seeks service connection for urinary frequency and dysfunction, with use of a urostomy bag, secondary to his service-connected prostate cancer. The Veteran has undergone several VA genitourinary examinations; however, it not clear from the record whether the need for a urostomy bag is related to his service-connected prostate cancer. Accordingly, the Board finds that a remand is necessary in order to obtain a medical opinion addressing this issue. The matter is REMANDED for the following action: 1. Provide the claims file to a VA physician to obtain an opinion with respect to the Veteran’s claims pertaining to bladder cancer and urinary frequency / dysfunction and renal dysfunction. If another examination is deemed necessary to respond the question, one should be scheduled. After a review of the claims file, the examiner should respond to the following: a. Provide an opinion as to whether it at least as likely as not (50 percent or higher probability) that the Veteran’s bladder cancer was caused by in-service exposure to herbicide agents or otherwise related to service. A rationale for all opinions should be provided. (Continued on the next page)   b. Is it at least as likely as not (50 percent or higher probability) that the Veteran’s use of a urostomy bag is related to his service-connected prostate cancer? Please explain why or why not. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Banister, Counsel