Citation Nr: 21001779 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 17-62 664 DATE: January 11, 2021 ORDER A 70 percent disabling for service-connected major depressive disorder associated with right total knee replacement (MDD) is granted. The issue of whether additional benefits as school children for R.H., C.B., and J.B. are warranted is dismissed without prejudice. REMANDED Entitlement to an initial evaluation in excess of 70 percent disabling for service-connected MDD, to include on an extraschedular basis, is remanded. Entitlement to an initial evaluation of in excess of 10 percent disabling for the period prior to August 4, 2010, in excess of 20 percent disabling for the period thereafter to May 20, 2020, and in excess of 40 percent disabling for the period thereafter, for service-connected degenerative arthritis of the lumbar spine associated with traumatic degenerative joint disease, right knee, (lumbar spine), to include on an extraschedular basis, is remanded. FINDINGS OF FACT 1. The Veteran’s symptoms include reports of suicidal ideation throughout the entire period on appeal. 2. At the December 2020 videoconference hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran with his authorized representative that a withdrawal of the appeal for the issue of whether additional benefits as school children for R.H., C.B., and J.B. are warranted is requested. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent for service-connected 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 9434 (2019). 2. The criteria for withdrawal of an appeal by the Veteran with his authorized representative have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1973 to February 1977. In December 2020, the Veteran testified under oath at a videoconference hearing before the undersigned Veterans Law Judge. In a January 2021 rating decision, the evaluation of the Veteran’s service-connected MDD, was increased to 70 percent disabling, effective May 21, 2020. Similarly, the evaluation for the service-connected lumbar spine was increased to 40 percent disabling, effective May 21, 2020. The Board acknowledges that a VA Form 21-22 was added to the file. See Docket, January 2021. However, this form is dated December 2012, which pre-dates the VA Form 21-22 for the Veteran’s current representative of record. See VA Form 21-22, June 2020. Accordingly, the Board does not find this to be a change in the Veteran’s current representation. Based on statements made in a December 2020 submission, the Board has added extraschedular consideration to the issues remaining on appeal. Increased Evaluation Entitlement to an evaluation of 70 percent disabling for service-connected MDD. The Board finds that the Veteran is entitled to a 70 percent disability rating for his service-connected MDD for the entire period on appeal. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. At the December 2020 videoconference hearing, the Veteran indicated that his symptoms include isolating and obsessive behavior. He reported that his patience level has decreased. Further, he indicated that his mental health inhibits personal activities like getting groceries and he does not like to go out in public. Further, the Veteran indicated suicidal ideations for at least three years and that this has been pretty consistent. However, he also indicated that the onset of experiencing suicidal ideations was in the latter part of 2008 and the early part of 2009. When questioned further, the Veteran indicated that embarrassment kept him from reporting these thoughts when examined, and that he was not ready to endorse these thoughts at that time. The Board finds the Veteran’s testimony regarding his experiences and symptomatology to be competent and credible. Accordingly, particularly given the Veteran’s description of suicidal ideations throughout the period on appeal, the Board finds that the Veteran’s symptoms are more approximately reflected in the 70 percent disabling rating criteria. Accordingly, the Board grants a 70 percent disability evaluation for the entire period on appeal. The issue of whether the Veteran’s disability warrants a higher evaluation is remanded for additional development. Withdrawal Whether additional benefits as school children for R.H., C.B., and J.B. are warranted. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran with his authorized representative has withdrawn the issue of whether additional benefits as school children for R.H., C.B., and J.B. are warranted. Hence, there remain no allegations of errors of fact or law for appellate consideration. The withdrawal was made on the record at the December 2020 videoconference hearing before the undersigned Veterans Law Judge. The withdrawal was (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O’Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). A transcript of the hearing will serve as written documentation of the withdrawal. Accordingly, the Board does not have jurisdiction to review the appeal of the issue of whether additional benefits as school children for R.H., C.B., and J.B. are warranted. The issue is dismissed without prejudice. REASONS FOR REMAND 1. Entitlement to an initial evaluation in excess of 70 percent disabling for service-connected MDD, to include on an extraschedular basis. The Board finds that additional development is needed prior to final adjudication of the issues remaining on appeal. Regarding the service-connected MDD, at the December 2020 videoconference hearing, the Veteran indicated that his symptoms have worsened. Accordingly, the Veteran should be afforded a new VA examination in order to address his current symptoms. See, e.g., Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 2. Entitlement to an initial evaluation of in excess of 10 percent disabling for the period prior to August 4, 2010, in excess of 20 percent disabling for the period thereafter to May 20, 2020, and in excess of 40 percent disabling for the period thereafter, for service-connected lumbar spine, to include on an extraschedular basis. Regarding the service-connected lumbar spine, the Board acknowledges that the Veteran was most recently examined in December 2020. However, the Board finds that a new examination is needed. Specifically, while the examiner noted pain on forward flexion and extension, it is unclear where pain begins in terms of degrees of range of motion. See Correia v. McDonald, 28 Vet. App. 158 (2016). Also, at the videoconference hearing, the Veteran indicated that he uses a walker and a cane. However, the December 2020 examination report indicates that the Veteran does not use any assistive devices as a normal mode of locomotion. The Board seeks clarification upon remand. Accordingly, the Board asks that the Veteran be re-examined. The matters are REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for the following VA examinations: (a) A VA examination to evaluate the current level of severity of the Veteran’s service connected MDD. (b) A VA examination to evaluate the current level of severity of his service-connected lumbar spine disability. The claim folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner is asked specifically to provide range of motion testing (ROM) for active motion, passive motion, weight-bearing, and nonweight-bearing. In addition, the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing. The examiner is asked to address the following questions: (a) Are any ROM movements painful on active, passive, and repetitive use testing? If yes, identify whether active, passive, and repetitive use. (b) If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. In addition, the examiner must discuss pain when used in weight-bearing or in nonweight-bearing. The examiner is asked to address the following questions: (a) Is there pain when the joint is used in weight-bearing or nonweight-bearing? If yes, identify whether weight-bearing or nonweight-bearing. (b) If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. For all ranges and planes of motion where pain is noted, the exact point at which pain starts must be clearly noted. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, as expressed in range of motion. The examiner should state whether or not there is any neurologic disability, to include of the lower extremities, that is the result of the knee disabilities. 3. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Foster, 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.