Citation Nr: 18156498 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-40 533A DATE: December 11, 2018 ORDER Entitlement to an initial evaluation higher than 10 percent for, degenerative disc disease with spondylosis, lumbosacral spine, is dismissed. Entitlement to an evaluation higher than 10 percent for left knee tendonitis is dismissed. Entitlement to a compensable evaluation for right knee tendonitis is dismissed. Entitlement to an initial compensable evaluation for a left ankle strain is dismissed. Entitlement to an initial compensable evaluation for right ankle strain is dismissed. Entitlement to an evaluation higher than 10 percent for left lower extremity radiculopathy is dismissed. Entitlement to an evaluation of 50 percent, for unspecified depressive disorder, is granted. REMANDED Entitlement to an evaluation higher than 50 percent, for unspecified depressive disorder, is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In an August 2018 statement, the Veteran and his attorney requested to withdraw the claim of entitlement to an initial evaluation higher than 10 percent for, degenerative disc disease with spondylosis, lumbosacral spine. 2. In an August 2018 statement, the Veteran and his attorney requested to withdraw the claim of entitlement to an evaluation higher than 10 percent for left knee tendonitis. 3. In an August 2018 statement, the Veteran and his attorney requested to withdraw the claim of entitlement to a compensable evaluation for right knee tendonitis. 4. In an August 2018 statement, the Veteran and his attorney requested to withdraw the claim of entitlement to an initial compensable evaluation for a left ankle strain. 5. In an August 2018 statement, the Veteran and his attorney requested to withdraw the claim of entitlement to an initial compensable evaluation for right ankle strain. 6. In an August 2018 statement, the Veteran and his attorney requested to withdraw the claim of entitlement to an evaluation higher than 10 percent for left lower extremity radiculopathy. 7. The Veteran’s unspecified depressive disorder is manifested by occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal by the Veteran and his attorney on the issue of entitlement to an initial evaluation higher than 10 percent for, degenerative disc disease with spondylosis, lumbosacral spine, are met. 38 U.S.C. § 7105(a), (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 2. The criteria for withdrawal of the appeal by the Veteran and his attorney on the issue of entitlement to an evaluation higher than 10 percent for left knee tendonitis are met. 38 U.S.C. § 7105(a), (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 3. The criteria for withdrawal of the appeal by the Veteran and his attorney on the issue of entitlement to a compensable evaluation for right knee tendonitis are met. 38 U.S.C. § 7105(a), (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 4. The criteria for withdrawal of the appeal by the Veteran and his attorney on the issue of entitlement to an initial compensable evaluation for a left ankle strain are met. 38 U.S.C. § 7105(a), (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 5. The criteria for withdrawal of the appeal by the Veteran and his attorney on the issue of entitlement to an initial compensable evaluation for right ankle strain are met. 38 U.S.C. § 7105(a), (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 6. The criteria for withdrawal of the appeal by the Veteran and his attorney on the issue of entitlement to an evaluation higher than 10 percent for left lower extremity radiculopathy are met. 38 U.S.C. § 7105(a), (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 7. The criteria for entitlement to an evaluation of 50 percent, for unspecified depressive disorder are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9434 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the Army from September 1993 to November 2002, from February 2004 to February 2005, and from April 2011 to January 2012. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran initiated appeals regarding the issues of: 1) entitlement to an earlier effective date for a left ankle strain, 2) entitlement to an earlier effective date for a right ankle strain, 3) entitlement to an earlier effective date for degenerative disc disease with spondylosis, lumbosacral spine, and 4) entitlement to an earlier effective date for left lower extremity radiculopathy. These issues were addressed in two separate June 2016 statements of the case (SOC). In an August 2016 substantive appeal the Veteran’s attorney limited the issues on appeal and did not include any earlier effective date claims. Accordingly, the earlier effective date claims are not in appellate status, and no further consideration is necessary. In the February 2016, notice of disagreement (NOD) the Veteran’s attorney raised TDIU as a part of the increased evaluation claims. The issue of TDIU is raised by the record and is properly before the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (noting that a claim for a TDIU rating is part of an increased rating claim when such claim is raised by the record). The issues of entitlement to TDIU and entitlement to an evaluation higher than 50 percent for service-connected unspecified depressive disorder, are addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). Withdrawal A Veteran or his attorney may withdraw an appeal in writing at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204. Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204(c). In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate. 38 U.S.C. § 7105(d); 38 C.F.R. §§ 20.101, 20.202. In an August 2018 statement, the Veteran and his attorney requested withdrawal of his appeal regarding: 1) entitlement to an initial evaluation higher than 10 percent for, degenerative disc disease with spondylosis, lumbosacral spine, 2) entitlement to an evaluation higher than 10 percent for left knee tendonitis, 3) entitlement to a compensable evaluation for right knee tendonitis, 4) entitlement to an initial compensable evaluation for a left ankle strain, 5) entitlement to an initial compensable evaluation for right ankle strain, and 6)entitlement to an evaluation higher than 10 percent for left lower extremity radiculopathy. These withdrawals were explicit and unambiguous. Accordingly, the Board does not have jurisdiction to review the appeal on those issues and they are dismissed. Increased Evaluation for unspecified depressive disorder Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2018). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). 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 (2018). 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 (2018). 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). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. The Veteran submitted a claim for an increased evaluation in March 2015. The Veteran was initially granted service connection in February 2015. In his March 2015 statement, the Veteran explicitly requested re-evaluation and did not express disagreement with the February 2015 rating decision. The February 2015 rating decision became final prior to the Veteran filing a notice of disagreement. Accordingly, the Veteran’s claim is a non-initial increased evaluation claim. The Veteran has been evaluated under 38 C.F.R. § 4.130, DC 9434. Under this code a 30 percent evaluation contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task (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, mild memory loss (such as forgetting name, directions, recent events). A 50 percent evaluation 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 (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. However, the symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). “[A] veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The symptoms shall have caused occupational and social impairment in most of the referenced areas. Vazquez-Claudio, 713 F.3d 112. 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. 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. The Veteran received mental health treatment in June 2014. The Veteran reported symptoms of sleep impairment, hypervigilance, and depression. The Veteran stated he has friends and maintains contact with his family. The VA treatment provider noted depressed mood with an anxious affect. The treatment provider found no symptoms of delusions or mania. The provider determined that the Veteran’s speech, memory, impulse control, insight, and judgment were grossly intact. The Veteran received a VA examination in January 2015. The examiner diagnosed unspecified depressive disorder. The examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner noted symptoms of depressed mood, anxiety, and disturbances in mood or motivation. Additionally, the examiner observed thought process that were linear, coherent, and normal memory. The Veteran returned to VA mental health treatment in March 2015. The Veteran reported sleep impairment, irritability, decreased concentration, flashbacks, and low motivation. The VA treatment provider noted a depressed mood with appropriate affect. The provider determined that the Veteran’s speech, memory, impulse control, insight, and judgment were intact. After the Veteran alleged an increase in severity of symptoms he received an additional VA examination in May 2015. The examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, and disturbances in mood or motivation. The examiner explained the Veteran appeared anxious and depressed. The examiner noted insight, memory, concentration, and judgment were intact and the Veteran did not have suicidal or homicidal ideation. In June 2015 the Veteran posted online that he thinks about suicide every day. The suicide hotline followed-up based on the suicidal ideation. The Veteran reported feeling, angry, mad, depressed, and overwhelmed but had not specific plan or intent to commit suicide. The Veteran stated he has experienced sleep impairment and panic attacks. The Veteran endorsed a close relationship with his sister and mother and stated he has friends. The Veteran returned to the VA for mental health treatment in July 2015. The Veteran reported sadness, crying spells, irritability, sleep impairment, low motivation, feelings of hopelessness, and panic attacks. The Veteran stated he is close to his mother and speaks with her daily and he is close to his sister. The treatment provider determined that the Veteran’s mood was severely depressed with tearfulness and mild irritability. Additionally, the Veteran endorsed daily thoughts of suicide including thoughts about shooting himself or cutting himself but denied any intent. The treatment provider opined that the Veteran’s risk potential for suicide was moderate. In August 2015 and September 2015, the Veteran actively participated in anger management group therapy. During his September 2015 mental health treatment, the Veteran reported sleep impairment, low energy, poor concentration, passive suicidal thoughts without plan or intent, and flashbacks. The examiner noted a sad mood and blunted affect. In November 2015 the Veteran reported improved symptoms. The Veteran continued to endorse inconsistent sleep, low concentration, and lack of energy but no suicidal thoughts. In February 2016 the mental health treatment provider noted no change in the Veteran’s symptoms. In June 2016 the Veteran reported his symptoms had worsened. The Veteran reported hallucinations, hearing voices, and being isolated. The mental health provider determined that his mood was depressed/anxious and recommended an adjustment in medication. In August 2016 the Veteran reported his symptoms were better and he was not experiencing hallucinations. The Veteran mentioned he had a new girlfriend. The Veteran returned in January 2017 for mental health treatment. The Veteran reported his symptoms were worse and that he stopped taking his medication. The Veteran stated he stays angry all the time, has road rage, depression, and isolates himself by staying home. The Veteran reported his girlfriend left him because she was too controlling. The Veteran expressed loneliness because he is not married, does not have children, his Army buddies don’t call, and his family doesn’t call. The Veteran stated he feels limited physically and stated his mom had to help him mow his lawn. In February 2017 the Veteran returned to group therapy and in March 2017 the Veteran reported improved symptoms. During mental health treatment in April 2017 the Veteran reported that he thought about using his firearm over the weekend. The Veteran denied a specific plan or intent to harm himself and voiced a willingness to have his mother hold his firearms if his suicidal ideation increased. The Veteran stated he thinks about hurting others if they piss him off. The examiner determined the Veteran’s thought processes were coherent, logical, and goal-directed. The examiner noted that the Veteran endorsed hallucinations when half asleep and when feeling down. In June 2017 and July 2017, the Veteran missed group therapy. In October 2017 the Veteran reported he could not afford to travel to group therapy. During mental health treatment in October 2017, the Veteran reported feeling better but continued to endorse symptoms of sleep impairment, irritability, and isolation. The Veteran stated he is not dating, rarely socializes with friends, and only has his mother and sister for support. The mental health treatment provider opined that the Veteran was isolating and struggling socially because he is unable to maintain a relationship for more than a year. The Veteran returned for mental health treatment in December 2017 and March 2018 and his symptoms remained unchanged. In August 2018, the Veteran saw a private mental health treatment provider. The private provider conducted two interviews with the Veteran and reviewed his medical history. The provider opined that the Veteran’s is experiencing a steady deterioration in his capacity to function. The provider noted that the Veteran has unprovoked periods of irritability that lead to the potential for significant violence. The provider determined that the Veteran is at high risk for suicide, his symptomatology is so severe that his capacity to communicate has been significantly altered, and the presence of psychosis is exacerbating the Veteran’s clinical condition. However, during the mental status examination, the provider noted the Veteran was cooperative, appropriate, good impulse control, no evidence of agitation, thought processes were linear and logical, cognition was intact, and there was no flight of ideas. The provider observed that the Veteran was depressed with altered speech that decreased in rate, tone, and volume, and there no inflection in his affect. The provider explained the Veteran had paranoid delusions, paranoid ideations, suicidal ideations without a specific plan, and homicidal ideation not directed at a particular person. Based on the current evidence of record, the Board finds that the Veteran’s symptoms warrant at least a 50 percent evaluation. VA treatment records consistently showed symptoms of panic attacks, disturbances in motivation and mood, difficulty establishing and maintaining effective relationships, and suicidal ideation. There is evidence in the record that the Veteran’s symptoms may have recently worsened. Accordingly, entitlement to an evaluation higher than 50 percent will be addressed in the remand portion of the decision. REASONS FOR REMAND Increased Evaluation First, remand is required to assess the current severity of the Veteran’s unspecified depressive disorder. When a claimant asserts, or the evidence shows, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran received a VA examination in May 2015. Since that time, VA treatment records showed the Veteran has experienced suicidal ideation. Additionally, in an August 2018 statement the Veteran’s attorney alleges worsening of symptoms. The Board notes that the Veteran received a private examination and opinion. The private examiner’s findings and opinions were inconsistent with the mental status examination conducted. Accordingly, remand is required to assess the current severity Veterans symptoms for an evaluation higher than 50 percent. TDIU Second, remand is required for development. In his February 2016 notice of disagreement, the Veteran’s attorney raised TDIU based on service-connected disabilities. The Veteran has been granted an increased evaluation for service connected unspecified depressive disorder. The Veteran’s combined disability evaluation is now 70 percent. The percentage requirements for a TDIU are met because the Veteran has two or more service-connected disabilities, one of which is rated as 50 percent disabling, and his combined disability evaluation is at least 70 percent. 38 C.F.R. § 4.16 (a). Development has not been conducted on this issue because the combined evaluation was less than 70 percent. Lastly, remand is required because entitlement to TDIU is inextricably interwined with the pending increased evaluation claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). The matter is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his attorney. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his attorney. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected unspecified depressive disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Develop the Veteran’s TDIU claim, to include considering whether medical opinions regarding the impacts of the Veteran’s service-connected disabilities have on his ability to obtain and sustain gainful employment. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bruton, Associate Counsel