Citation Nr: 21005245 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 15-18 957A DATE: January 29, 2021 ORDER Entitlement to an initial compensable disability rating for scars of the right groin, status post orchiectomy, and left groin, status post inguinal lymphectomy (groin scars) is dismissed. Entitlement to an initial, 100 percent, rating for a psychiatric disorder is granted. Entitlement to a total rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. In December 2020, prior to the promulgation of a Board of Veterans’ Appeal (Board) decision, the Veteran, via his representative, notified VA that he wanted to withdraw his appeal as to his claim for a compensable rating for his groin scars. 2. The preponderance of the evidence shows that the Veteran’s psychiatric disorder causes total occupational and social impairment. 3. The Veteran’s service-connected disabilities preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for a compensable rating for groin scars have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for an initial, 100 percent, rating for a psychiatric disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.14, 4.130, Diagnostic Codes 9211. 3. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1998 to May 2011. In his July 2015 substantive appeal the Veteran requested a videoconference hearing before a Veterans Law Judge and a hearing was scheduled to be held in September 2018. The Veteran failed to appear for that hearing and did not provide good cause for this failure to appear; therefore, his hearing request is deemed to have been withdrawn. 38 C.F.R. § 20.704(d). In a March 2019 decision, a Veterans’ Law Judge other than the undersigned issued a Board of Veterans’ Appeal (Board) decision that denied a compensable rating for the groin scars and granted a 70 percent rating for the psychiatric disorder. The Veteran appealed the March 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an February 2020 order, that incorporated the parties January 2020 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board’s March 2019 decision to the extent that it denied a compensable rating for the groin scars and did not grant a rating in excess of 70 percent for the psychiatric disorder. The JMPR also vacated and remanded the Board’s March 2019 decision because it did not address the Veteran’s claim for a TDIU which had been raised by the record as part of his rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Initially, the Board notes that while the JMPR vacated and remanded the Board’s March 2019 decision because, among other things, it adjudicated the appeal without the Veteran’s July 2011 to September 2012 treatment records from the San Antonio VA Medical Center the Veteran’s representative filed these records with the Board in December 2020. Moreover, while the record shows that additional VA and private treatment records were added to the record since the regional office (RO) issued the August 2017 supplemental statement of the case (SSOC), to include the above VA treatment records and a November 2020 psychiatric examination from Michael L. Cesta, M.D., FACP, the Veteran’s representative in December 2020 also waived RO review of these records. Therefore, the Board finds that there are no bars to it adjudicating the merits of the appeal at this time. See 38 C.F.R. § 20.1304(c); also see Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand). The Withdrawal As to the claim for a compensable rating for the groin scars, under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing 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. Here, in In December 2020, prior to the promulgation of a Board decision, the Veteran, via his representative, notified VA that he wanted to withdraw his appeal as to his claim for a compensable rating for his groin scars. VA received this withdrawal before the Board issued a decision. The Board also finds that the withdrawal is (1) explicit; (2) unambiguous; and (3) done with a full understanding of the consequences of such action on the part of the Veteran. See Acree v. O’Rourke, 17-1749; DeLisio v. Shinseki, 25 Vet. App. 45 (2011); also see Tomlin v. Brown, 5 Vet. App. 355 (1993) (the transcript of a personal hearing may act as a substantive appeal). Therefore, there remains no allegation of error of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review it and the appeal as this issue is dismissed. The Psychiatric Rating Claim The Veteran contends that his psychiatric disorder has been totally disabling at all times during the appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran’s psychiatric disorder (i.e., depression schizo-effective disorder with alcohol abuse) is rated as 70 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9211 (the General Rating Formula for Mental Disorders (General Formula)). The General Rating Formula provides a 70 percent rating is warranted when there is 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 depressive disorder 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when the evidence shows 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 or place; memory loss for names of close relatives, own occupation, or own name. Id. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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 (2002). When determining the appropriate disability evaluation to assign, however, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Court has also held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017) (stating the language of 38 C.F.R. § 4.130 “indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas.”). Initially, the Board notes that this claim for a higher rating for the psychiatric disorder has been pending before the agency of original jurisdiction on or after August 4, 2014, because it was certified to the Board in September 2017. Therefore, the Board finds that the AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 5th Edition (2013) (DSM-5) applies to the current appeal. See 53 Fed. Reg. 14308 (March 19, 2015); 38 C.F.R. §§ 3.384, 4.125, 4.126, 4.127, and 4.130 (2017). Accordingly, the Board’s adjudication of this claim cannot include any discussion of the Global Assessment of Functioning (GAF) scores found in the record. See Golden v. Shulkin, No. 16-1208, Slip opinion at 5 (Vet. App. Feb. 23, 2018). Next, as noted in the JMPR, the criteria for a 100 percent rating specifically identifies problems with “persistent danger of hurting self or others,” and the May 2011 VA examiner noted that the appellant had “a history of violent behavior” including “tendencies to beat up his dog” as well as a history of suicide attempts. Likewise, the JMPR noted that the criteria for a 100 percent rating specifically identifies problems with “persistent delusions or hallucinations,” and the May 2011 VA examiner noted that the Veteran had a history of intermittent hallucinations. Similarly, and again as noted in the JMPR, the criteria for a 100 percent rating specifically identifies problems with “grossly inappropriate behavior” and the May 2011 VA examiner’s reported that the appellant “is still eating raw meat (non-cooked meat) and he believes by doing this he is preparing for the end of the world.” Lastly, and as also noted by the JMPR, the criteria for a 100 percent rating specifically identifies problems with an “intermittent inability to perform activities of daily living,” and the May 2011 VA examiner expressly concluded that the Veteran was “‘…intermittently … unable to perform activities of daily living (but he can provide self-care)’ and due to his condition “will continue to experience some difficulties when performing some of his daily chores.” Additionally, in the November 2020 psychiatric examination Dr. Cesta opined, in part, as follows: Regardless of whether Mr. [REDACTED] believes his symptoms are manageable, it is exceptionally obvious that his bizarre behavior, command hallucinations encouraging him to hurt himself and others, and excessive use of drugs and alcohol to manage his emotional disarray have tarnished every aspect of his life, turning a once successful soldier into an individual struggling to manage even basic social interactions, let alone the complex environment of an occupational setting. Tellingly, the Court has held that “it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms). Moreover, while a “persistent danger of hurting self or others,” “persistent delusions or hallucinations,” “grossly inappropriate behavior,” and “intermittent inability to perform activities of daily living,” are not exclusive symptomatology for the criteria for a 100 percent rating for a psychiatric disorder, the Board nonetheless finds that when, as in the current appeal, they are present, they are persuasive evidence that the Veteran’s psychiatric disorder causes total occupational and social impairment. See Owens, supra. Therefore, when considering the frequency, severity, and duration of the Veteran’s impairment to assess his disability picture and when resolving all reasonable doubt in his favor, the Board finds that the most probative evidence of record are the above examinations that shows that his psychiatric disorder’s adverse symptomatology approximates the criteria for a 100 percent rating at all times during the appeal because his adverse symptomatology causes “persistent danger of hurting self or others,” “persistent delusions or hallucinations,” “grossly inappropriate behavior,” and “intermittent inability to perform activities of daily living” which in turn causes total occupational and social impairment. See 38 C.F.R. § 4.130; Owens, supra; Fenderson, supra; Hart, supra. The TDIU Claim The Veteran claims that his service-connected disabilities prevent him from working. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. In calculating if the Veteran met the above schedular criteria VA combines the Veteran’s service-connected orthopedic disorders. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render his incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The record shows that the Veteran is service-connected for the following disabilities: • psychiatric disorder rated as 100 percent disabling; • migraine headaches rated as 30 percent disabling; • peripheral neuropathy of the left fifth digit; • left knee disorder rated as 10 percent disabling; • right knee disorder rated as 10 percent disabling; • right ankle disorder rated as 10 percent disabling; • bilateral pes planus rated as 10 percent disabling; • tinnitus rated as 10 percent disabling; • tinea pedis and tinea versicolor rated as 10 percent disabling; • left ear hearing loss rated as noncompensable; • left inguinal lymphectomy rated as noncompensable; • right orchiectomy rated as noncompensable; • erectile dysfunction rated as noncompensable; and • groin scars rated as noncompensable. In summary, the Board finds that this record shows that the Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a)(1)-(4) because he has one disability rated as 40 percent or higher at all times during the appeal and he has a combined rating of 70 percent or higher. Thus, the question for the Board to consider is when, if ever, his service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). In this regard, the Veteran’s August 2012 and/or December 2020 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claim Form), report, in substance, that he had not worked full-time and became too disabled to work since he left service in May 2011 because of his service-connected disabilities even though post-service he worked periodically as a mechanic. As to his work history the Veteran reported that while on active duty from 1998 to 2011 he worked as a watercraft engineer and post-service he had some short term work as a mechanic. As to his education, the Veteran reported that he had 4-years of high school. Significantly, as to the Veteran’s being able to work performing jobs that require for the first time sedentary employment and non-sedentary employment, including his past employment as a mechanic, as well as other possible employment that could make use of his work experience and his 4 years of high school, the Board finds that the medical records show that the problems caused by his service-connected psychiatric disorder, migraine headaches, peripheral neuropathy of the left fifth digit, left and knee disorders, right ankle disorder, bilateral pes planus, tinnitus, tinea pedis/tinea versicolor, left ear hearing loss, left inguinal lymphectomy, right orchiectomy, and scars adversely impact his ability to work in any field because of the overall impairment they have to his body and mind to include the stamina needed to work a full-day, stand for any significant period of time, and interact effectively with co-workers and/or customers. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). The Board also finds that his service-connected psychiatric disorder, migraine headaches, peripheral neuropathy of the left fifth digit, left and knee disorders, right ankle disorder, bilateral pes planus, tinnitus, and left ear hearing loss make it dangerous for the Veteran to work in most non-sedentary employments including his past occupation as a mechanic. Id. In fact, in the November 2020 psychiatric examination Dr. Cesta opined, in part, as follows: Although Mr. [REDACTED] is a highly trained and skilled mechanic, it is clear that his inability to manage the appropriate and consistent interpersonal interactions required of gainful employment and his persistent symptoms of psychosis and severe anger would create an unsafe work environment. … Ultimately, the severity of the veteran’s mental illness and associated substance abuse, combined with his tendency to ‘flee’ at any sign of impending stress, are manifestly incompatible with any form of gainful employment. It is my medical opinion that he has been completely disabled from psychiatric disease and unemployable since at least May 2011. Similarly, the Board finds that that his service-connected psychiatric disorder, migraine headaches, peripheral neuropathy of the left fifth digit, left and knee disorders, right ankle disorder, bilateral pes planus, tinnitus, left ear hearing loss, left inguinal lymphectomy, and right orchiectomy, would make it very difficult to learn the new skills needed to work in most sedentary employments for the first time and thereafter interact with his co-workers as well as any customers and sit for prolonged periods of time. See Geib, supra. Given the above, the Board finds that the Veteran’s service-connected disabilities prevent him from securing or following a “substantially gainful” occupation given his prior vocational history, work experience, his education, and the impact his service-connected psychiatric disorder, migraine headaches, peripheral neuropathy of the left fifth digit, left and knee disorders, right ankle disorder, bilateral pes planus, tinnitus, tinea pedis/tinea versicolor, left ear hearing loss, left inguinal lymphectomy, right orchiectomy, and scars have on obtaining and maintaining substantially gainful non-sedentary employment for the first time and sedentary employment, including in his past employment as a mechanic, because of the problems they would cause in any work environment. See Owens, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment given his prior vocational history, work experience, his education, and the impact his service-connected disabilities and the claim for a TDIU is granted. See 38 C.F.R. § 4.16(a). Conclusion (Continued on the next page)   In reaching the above conclusions, the Board has not made any finding as to the effective date of the award of the 100 percent rating for the psychiatric disorder and the TDIU because these issues are not before us. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.