Citation Nr: 21063107 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-49 434 DATE: October 13, 2021 ORDER Entitlement to service connection for hypertension has been withdrawn. Entitlement to an effective date prior to June 14, 1980 for the award of service connection and an increased rating for Graves' Disease has been withdrawn. Entitlement to a 100 percent disability rating for major depressive disorder, effective December 3, 2013, is granted. Entitlement to an initial rating in excess of 70 percent for major depressive disorder prior to December 3, 2013 is denied. Entitlement to a total disability rating based on individual unemployability due to major depressive disorder, effective December 29, 2012, but no earlier, is granted. Entitlement to an effective date of June 1, 2010, but no earlier, for the award of service connection for radiculopathy of the right lower extremity is granted. Entitlement to an effective date of June 1, 2010, but no earlier, for the award of service connection for radiculopathy of the left lower extremity is denied. REMANDED Entitlement to a rating in excess of 20 percent for compression fracture, L3, is remanded. Entitlement to an initial rating in excess of 40 percent for radiculopathy of the right lower extremity is remanded. Entitlement to an initial rating in excess of 40 percent for radiculopathy of the left lower extremity is remanded. Entitlement to special monthly compensation based on the housebound criteria prior to January 22, 2014 is remanded. FINDINGS OF FACT 1. On April 15, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, that a withdrawal of the issue of entitlement to service connection for hypertension is requested. 2. On April 15, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, that a withdrawal of the issue of entitlement to an effective date prior to June 14, 1980 for the award of serviced connection and an increased rating for Graves' Disease is requested. 3. From December 3, 2013, the Veteran's service-connected major depressive disorder has more nearly approximated total occupational and social impairment. 4. Prior to December 3, 2013, the Veteran's service-connected major depressive disorder resulted in occupational and social impairment with deficiencies in most areas. 5. From the day after his last day of full time employment, December 29, 2012, the Veteran's service-connected major depressive disorder has rendered him unable to secure and follow a substantially gainful occupation. 6. On June 1, 2010, the Veteran filed a claim for an increased rating for his low back disability asserting that he was experiencing pain and weakness in his right leg. 7. On June 1, 2010, the Veteran filed a claim for an increased rating for his low back disability asserting that he was experiencing pain and weakness in his left leg. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to service connection for hypertension by the Veteran, through his authorized representative, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the issue of entitlement to an effective date prior to June 14, 1980 for the award of service connection and an increased rating for Graves' Disease by the Veteran, through his authorized representative, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for a disability rating of 100 percent for major depressive disorder, effective December 3, 2013, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9434. 4. The criteria for an initial rating in excess of 70 percent prior to December 3, 2013 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.321, Part 4, including §§ 4.7, 4.130, Diagnostic Code 9434. 5. The criteria for a TDIU, effective December 29, 2012, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16. 6. The criteria for an effective date of June 1, 2010, but no earlier, for the award of service connection for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.156(c), 3.400. 7. The criteria for an effective date of June 1, 2010, but no earlier, for the award of service connection for radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.156(c), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1972 to February 1977. In November 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In the April 2018 rating decision, the Agency of Original Jurisdiction (AOJ) granted a maximum 100 percent rating for the Veteran's major depressive disorder, effective January 22, 2014. The AOJ also awarded 40 percent ratings each for radiculopathy of the right and left lower extremities, effective January 22, 2014. However, as the AOJ did not grant the maximum ratings throughout the course of the appeal, the issues remain in appellate status and have been characterized as set forth on the front page of this decision. See AB v. Brown, 6 Vet. App. 35, 39 (1993). Withdrawn Claims 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, at the Board hearing and in a subsequent April 6, 2021 statement, the Veteran, through his authorized representative, has withdrew the issues of entitlement to service connection for hypertension and entitlement to an effective date prior to June 14, 1980 for the award of service connection and an increased rating for Graves' Disease; hence, there remain no allegations of errors of fact or law for appellate consideration with respect to these issues. Accordingly, the Board does not have jurisdiction to review these issues and they are dismissed. Increased Rating Entitlement to an initial higher rating for major depressive disorder, to include entitlement to a TDIU The Veteran asserts that his major depressive disorder is more severe than reflected in the initial 70 percent rating assigned prior to January 22, 2014. He also claims that he has been unable to work due to his major depressive disorder since his June 1, 2010 award of service connection. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities 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. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating.38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). As in the instant case, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. The Veteran's major depressive disorder is evaluated under Diagnostic Code 9434, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Pursuant to that General Rating Formula, a 70 percent is warranted for 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 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 work like setting); 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 for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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. See 38 C.F.R. § 4.126 (a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency 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). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service connected disability to bring the combination to 70 percent or more. 38 C.F.R. § § 4.16 (a). Although the Veteran may be unemployed, the dispositive issue is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a Veteran to prevail on a claim for a TDIU rating, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. § 4.16 (a); supra. In determining whether an appellant is entitled to a TDIU, neither the Veteran's nonservice-connected disabilities nor may advancing age be considered. Initially, based on the evidence of record and when resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran is entitled to a maximum 100 percent disability rating for his service-connected psychiatric disability from December 3, 2013, the date the medical evidence indicated that his disability had increased in severity. Significantly, a January 2014 private psychiatric evaluation showed that the examiner had last examined the Veteran on December 3, 2013. The examiner indicated that the Veteran exhibited persistent delusions and hallucinations; persistent danger of hurting self and others; and intermittent inability to perform activities of daily living; all of which are criteria for a total 100 percent rating. As such, it appears that the Veteran exhibited total occupational and social impairment from the date he was last examined by the private psychiatrist on December 3, 2013. However, prior to December 3, 2013, the preponderance of the evidence is against showing that the Veteran exhibited total social and occupational impairment to warrant a higher evaluation of 100 percent. Importantly, the July 2012 VA examination showed that the Veteran exhibited symptoms of depressed mood, anxiety, memory impairment, disturbance of motivation of mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, and suicidal ideation. These symptoms are all contemplated in the current 70 percent rating. The examiner found that the Veteran exhibited occupational and social impairment with occasional decrease in work efficiency, which is actually the criteria for a lesser 30 percent rating. Significantly, a September 2013 VA clinical record shows that the Veteran was clean and casually dressed; speech was normal; no suicidal or homicidal ideation; thought processes were linear and goal directed; no delusional components; and no perceptual disturbances. The Veteran's insight, judgment and impulse were all fair. Importantly, in support of his claim, the Veteran submitted a November 2017 private psychiatric evaluation, which found that based on review of the medical evidence during this period, the Veteran exhibited occupational and social impairment with deficiencies in most areas, which, again, is the criteria for a 70 percent rating. The Board recognizes that at the Board hearing, the Veteran testified that his symptoms have stayed the same since his date of claim for service connection, June 2010. However, the Board finds that the contemporaneous medical evidence is more probative as to the severity of the Veteran's disability during this period. The Veteran's medical history was considered during the examinations and a complete list of symptoms were given based on the Veteran's descriptions. As such, the medical evidence is more probative than testimony provided almost seven years later. Thus, based on the competent and probative evidence of record, the first medical evidence of any increase in severity was December 3, 2013. The Veteran meets the schedular criteria for a TDIU as of the date of award of service connection, June 1, 2010. 38 C.F.R. § 4.16 a). The record shows that he last worked full time in gainful employment on December 28, 2012. Importantly, the Veteran has consistently reported that he was unable to work during this period due to his psychiatric symptoms described above. Again, the medical evidence discussed above shows that the Veteran was unable to work from the date after he last worked due to his psychiatric disability. In this regard, the July 2012 VA examiner found that the Veteran had difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a work-like setting. Likewise, the November 2017 private examiner found that the Veteran was unemployable during this period. In sum, when considering the totality of the functional impairment caused by his service-connected major depressive disorder as described by the lay and medical evidence of record, as well as taking into consideration his work history, education and experience, and when resolving all doubt in his favor, the Veteran would be precluded from substantially gainful employment due to his service-connected major depressive disorder from December 29, 2012 and, thus, a TDIU is warranted from that date. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his major depressive disorder. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. Moreover, the Board has contemplated the Veteran's statements concerning the severity of his symptoms when assigning a TDIU from his last date of full time employment; and the current 100 percent disability rating, effective December 3, 2013. In conclusion, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that a 100 percent disability rating for major depressive disorder from December 3, 2013; and a TDIU from December 29, 2012 is granted. However, the preponderance of the evidence is against an initial rating in excess of 70 percent prior to December 3, 2013. As the preponderance of the evidence is against a higher rating, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Effective Date Entitlement to an earlier effective date for the award of service connection for radiculopathy of the right and left lower extremities The Veteran has asserted that an effective date of June 1, 2010 for the award of service connection for radiculopathy of the lower extremities is warranted as he filed his claim for service connection on that date. The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received, or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. In this case, the record shows that the Veteran filed an informal claim on June 1, 2010 seeking an increased rating for his low back disability and asserting that he was experiencing pain and weakness in both legs. The claim was denied in a November 2012 rating decision. The Veteran appealed this matter in a February 2013 notice of disagreement. Subsequently, service connection was awarded for radiculopathy of both lower extremities, effective January 22, 2014. Although the prior rating decision had been appealed, it appears that the AOJ assigned this effective date indicating that it was the date of the current claim. Importantly, VA clinical records show reports of symptoms pertaining to the lower extremities in July 2010 and an examiner indicated that it could be lumbar radiculopathy. Another November 2010 record showed that EMG testing suggested radiculopathy but was not proven. Significantly, the November 2012 VA examination indicated that the Veteran had severe radicular symptoms of both extremities. Thus, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that he did have radiculopathy at the time that he filed his claim on June 1, 2010. As such, the appropriate effective date is the date of the claim. The evidence does not show; nor have the Veteran and his representative claimed that an earlier claim for radiculopathy of the lower extremities had been submitted. In fact, at the Board hearing, the Veteran specifically requested an effective date of June 2010. Thus, an effective date prior to June 1, 2010 is not warranted. In conclusion, based on the analysis above, an effective of June 1, 2010, but no earlier, for the award of service connection for radiculopathy of the right and left lower extremities radiculopathy is warranted. The Board finds that the preponderance of the evidence is against an earlier effective date. In denying an earlier effective date, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to a rating in excess of 20 percent for compression fracture, L3, is remanded. The Veteran has not been afforded a VA examination to address the severity of his service-connected low back disability since November 2012, almost nine years ago. Moreover, as the examination was so many years ago, it does not comply with the requirements set forth in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examination doe not contain passive range of motion measurements or pain on weight-bearing testing. Moreover, since the last examination, the Court found in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) that VA examiners must attempt to elicit relevant information regarding the description of the Veteran's flare-ups and any additional functional loss suffered during flare-ups. In light of the above, the Board finds that the Veteran should be afforded another VA examination to address the severity of his service-connected low back disability. Entitlement to initial ratings in excess of 40 percent each for radiculopathy of the right lower extremity and the left lower extremity are remanded. In light of the assignment of an earlier effective date of June 1, 2010, for the award of service connection for radiculopathy of the right and left lower extremities, the Board finds that a remand of the initial rating is necessary to afford the Veteran all due process and allow the AOJ to assign disability ratings for this period in the first instance. Entitlement to special monthly compensation based on the housebound criteria prior to January 22, 2014 is remanded. This issue is inextricably intertwined with the remaining issues on appeal. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain additional VA clinical records. 2. Schedule the Veteran for a VA spine examination to address the current severity of his lumbar spine disability. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran's low back disability alone and discuss the effect of the Veteran's disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. 3. Readjudicate the remaining issues on appeal. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.