Citation Nr: 20002156 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 16-01 823 DATE: January 9, 2020 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) has been dismissed. Entitlement to an evaluation of 70 percent disabling, but no higher, for service-connected major depressive disorder (MDD) is granted. REMANDED Entitlement to an evaluation in excess of 40 percent disabling for service-connected degenerative arthritis (DA) of the lumbar spine is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In June 2019, prior to promulgation of a decision in this appeal, the Veteran withdraw his appeal of entitlement to service connection for PTSD. 2. The Veteran’s MDD resulted in occupational and social impairment with deficiencies in most areas, such as work, family relationships, judgment, thinking and mood. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to service connection for posttraumatic stress disorder (PTSD) by the Veteran have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2019). 2. The criteria for an evaluation of 70 percent, and no higher, for service-connected major depressive disorder (MDD) have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the U.S. Navy from March 1991 to September 1994. This case comes before the Board on appeal of a July 2013 and October 2015 rating decision. In June 2019, the Veteran testified before the undersigned Veteran Law Judge (VLJ) via live video conference. A transcript of the hearing has been associated with the record. Withdrawn Claim In June 2019, during the pre-hearing conference and prior to promulgation of a decision in this appeal, the Veteran informed the undersigned VLJ that he wished to withdraw his claim of entitlement to service connection for PTSD. See June 2019 hearing transcript. Thus, with respect to the claim of entitlement to service connection for PTSD, there are no longer any alleged errors of fact or law for appellate consideration. See 38 C.F.R. § 20.204. Accordingly, the Board no longer has jurisdiction to review the appeal that denied service connection for PTSD and it is therefore dismissed.   Increased Rating Claim Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, separate ratings for distinct periods of time, based on the facts may be for consideration. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has reviewed all the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to an evaluation in excess of 50 percent for service-connected major depressive disorder (MDD) Here, the Veteran contends that his MDD warrants a rating in excess of 50 percent disabling. Based on the evidence, the Board agrees. At the outset, the Veteran’s MDD is rated at 50 percent disabling under DC 9434. Under DC 9434, a 50 percent rating is assigned for 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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 assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). See 38 C.F.R. § 4.130. In the July 2015 VA examination, the Veteran was diagnosed with unspecified depressive disorder. The examiner summarized his condition as occupational and social impairment with reduced reliability and productivity based on symptoms of depressed mood, anxiety, suspiciousness, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. On mental status examination, Veteran was cooperative, casually groomed and casually dressed. He was oriented in all three spheres; eye contact and psychomotor activity were within normal limits. His rate of speech normal and thought processes were linear and goal directed. The Veteran reported being very anxious but did not demonstrate symptoms of anxiety. Likewise, he reported intrusive thoughts, hypervigilance, preoccupation with past events, and dislike of noise or crowds around him. His mood was mildly depressed, and affect was congruent with mood. The Veteran’s thought content did not demonstrate evidence of delusions or hallucinations. His recent and remote memory were intact, and his insight and judgment appeared to be intact. At that time, the Veteran denied suicidal ideation or homicidal ideation but reported a history of passive suicidal thoughts. Then, in the June 2019 hearing, the Veteran testified that his MDD caused him to withdrawn socially and isolate himself. He explained that he often loss focus and concentration and had little interest in anything that would require him to leave the house. Likewise, the Veteran reported memory issues, sleep impairment, and crying spells. Importantly, the Veteran added that he suffered from suicidal thoughts daily. To support his testimony, the August 2019 psychological evaluation showed that the Veteran suffered from severe major depressive disorder with psychotic features. As indicated by Dr. D.D., the Veteran presented with significant depression, low self-esteem, tremendous irrational guilt and inability to relate to others. It was shown that the Veteran suffered from unprovoked irritability and hostility; an inability to establish or maintain effective relationships; deficiencies in judgment, chronic sleep impairment, deficiencies in family relations, work, and mood. Likewise, Dr. D.D. explained that the Veteran presented as a suicidal risk and with persistent danger to himself. On mental status examination, the Veteran was alerted, well-oriented, logical, coherent and relevant in thoughts and speech. There was no evidence of cognitive disorder, psychosis or suicidal ideation. The Veteran’s mood was depressed, and the depression resulted in slowing his mental capacities, including attention, concentration and calculations. Additionally, the Veteran presented with impaired abstract reasoning and judgment, but memory was intact. The Veteran did endorse poor sleep, low level of productive activity and social isolation. He reported that he had no friends and his wife handled all household chores and finances. Based on the foregoing, the Veteran’s MDD most closely approximated to a 70 percent disability rating. The Veteran’s MDD resulted in occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, and mood. The Veteran endorsed persistent suicidal ideation; depression that affected his ability to function effectively; impaired impulse control; and an inability to establish and maintain effective relationships. However, a rating higher than 70 percent disabling is not warranted as the Veteran did not exhibit gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; or disorientation to time or place. Accordingly, as the Veteran’s MDD resulted in occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, and mood, a 70 percent rating, but no higher, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 4.3, 4.7, 4.130. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2019). 1. Entitlement to an evaluation in excess of 40 percent disabling for service-connected degenerative arthritis (DA) of the lumbar spine is remanded. Here, the Veteran contends that his lumbar spine disability warrants a rating in excess of 40 percent disabling. Based on the evidence, a remand is necessary. The Veteran was last afforded a VA examination for his lumbar spine in July 2015. Generally, a stale examination is not enough to require a remand for a new examination; however, the Veteran testified that his lumbar spine disability caused him to be bedridden for days at a time due to pain and the inability to move. Likewise, he reported that pain from his back travels to his bilateral lower extremities. See June 2019 hearing transcript. The Veteran’s testimony differs from the July 2015 examination, and reflects a worsening of his lumbar spine disability. Importantly, VA’s duty to assist includes providing a new medical examination when a veteran assert’s or provides evidence that a disability has worsened, and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that VA should have ordered a contemporaneous examination of veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). Accordingly, a more contemporaneous VA examination is required to provide a current picture of the Veteran’s lumbar spine disability at issue on appeal. 38 C.F.R. §§ 3.326, 3.327 (2019). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Here, the claim for entitlement to a TDIU is inextricably intertwined with the issue of entitlement to an increased evaluation of the Veteran’s lumbar spine disability, which is being remanded for further evidentiary development. Therefore, a final decision on the issue of entitlement to a TDIU cannot be rendered now. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Obtain all relevant outstanding VA treatment records, and any private treatment records identified by the Veteran. All records and/or responses received should be associated with the claims file. 2. After all outstanding treatment records have been associated with the claims file, schedule the Veteran for a VA examination to determine the current severity of his lumbar spine disability. The VA examiner must review the complete claims file and must note that review in the report. A copy of this REMAND must also be provided to the VA examiner. All necessary tests and studies should be accomplished, and all clinical findings reported in detail. 3. After undertaking any additional development deemed necessary, the AOJ must readjudicate the claims on appeal, including the inextricably intertwined claim. If the claims remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umo, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.