Citation Nr: 21064989 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 16-51 649 DATE: October 22, 2021 ORDER The appeal for entitlement to service connection for bilateral flat feet is dismissed. New and material evidence having been received, the claim for entitlement to service connection for asthma is reopened; to this extent, the claim is granted. From June 19, 2014, entitlement to a 100 percent rating for major depressive disorder is granted, subject to the regulations governing the award of monetary benefits. REMANDED Entitlement to service connection for a respiratory disability, claimed as asthma or a lung disease, to include as due to exposure to herbicides, asbestos, and/or lead paint, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In July 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal for entitlement to service connection bilateral flat feet is requested. 2. A February 2015 rating decision denied the claim for entitlement to service connection for asthma; the Veteran did not complete a substantive appeal to that decision, and it is final. 3. Some of the evidence received since the February 2015 rating decision pertinent to the claim for service connection for asthma was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim for service connection. 4. From June 19, 2014, the Veteran's major depressive disorder is manifested by symptoms that more nearly approximate total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to service connection for bilateral flat feet by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. A February 2015 rating decision that denied the claim of entitlement to service connection for asthma is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. Evidence received since the February 2015 rating decision is new and material, and the Veteran's claim for service connection for asthma is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 4. From June 19, 2014, the criteria for a 100 percent disability rating for major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1969 to May 1972. This matter comes before the Board of Veterans' Appeals (BVA or Board) from August 2015 and April 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in July 2021 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. Withdrawal 1. Entitlement to service connection for bilateral flat feet. 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 Veteran or by his or her authorized representative. Id. An oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. Deliso v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). During the July 2021 Board hearing, the Veteran withdrew the appeal for entitlement to service connection for bilateral flat feet. The Veteran confirmed he understood the consequences of the withdrawal. See July 2021 BVA Hearing Transcript, page 2. The Board finds the Veteran's withdrawal was explicit, unambiguous, and done with a full understanding of the consequences. Thus, the Board finds the Veteran's withdrawal of this issue at the hearing meets the requirements of DeLisio. Consequently, this issue is dismissed as there remains no allegation of error of fact or law for appellate consideration. 38 U.S.C. § 7105. Petition to Reopen 2. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for asthma. The Veteran seeks to reopen his previously denied claim for entitlement to service connection for asthma. Notwithstanding determinations by the RO that new and material evidence has or has not been received to reopen the Veteran's claim, it is noted that on its own, the Board is required to determine whether new and material evidence has been presented. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104, to address the question of whether new and material evidence has been presented to reopen a previously denied claim); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A claim for entitlement to service connection for asthma was last denied in a February 2015 rating decision on the basis that there was no evidence of a current diagnosis. Evidence received since the rating decision consists of multiple statements from the Veteran and additional medical evidence. The Veteran was afforded a VA examination in March 2016, at which time he was diagnosed with asthma and chronic obstructive pulmonary disease (COPD). In this case, the evidence obtained since the last final denial is new, as it was not previously associated with the record. It is also material because it raises a reasonable possibility of substantiating the claim. The Board determines that the claim is reopened. Increased Rating 3. Entitlement to a rating higher than 50 percent for major depressive disorder, prior to March 26, 2015, and to a rating higher than 70 percent, thereafter. Service connection for major depressive disorder was granted in a February 2008 rating decision, at which time a 50 percent rating was assigned, effective November 2007. A claim for an increased rating was received on June 19, 2014. A rating higher than 50 percent was denied in a November 2014 rating decision. Of note, the Veteran submitted a private psychological evaluation which was received in March 2015, within one year of the November 2014 rating decision. In August 2015, the RO increased the Veteran's rating to 70 percent, effective March 26, 2015, indicating that March 26, 2015 was the date the Veteran's increased rating claim was received. As new and material evidence was received pertaining to the Veteran's rating for his psychiatric disability within one year of the November 2014 rating decision, such will be considered as received in support of the claim received in June 2014. See 38 C.F.R. § 3.156 (b). As such, the Board will consider the propriety of the ratings assigned from June 2014 to the present. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. 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 rating of 50 percent 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 (retention of only highly learned material, forgetting to complete tasks); impaired judgment, impaired abstract thinking; disturbances of motivation and mood; and difficulty establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where there is objective evidence demonstrating that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation; obsessional rituals which interfere with his routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or 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 the inability to establish and maintain effective relationships. 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 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; or memory loss for names of close relatives, own occupation, or own name. Having carefully considered the Veteran's lay contentions in light of the evidence of record and the applicable law, the Board finds that the overall evidence shows that the Veteran's disability more closely approximated a 100 percent disability rating, from June 2014, for the entire appeal period. The Veteran's service-connected disability manifests in total social and occupational impairment. For example, in a September 2014 VA examination, it was noted that the Veteran was homeless, and he reported that he stayed to himself and was hypervigilant when out because he had been assaulted five to six times. He indicated he did not have any friends and had not worked for approximately 10 years. The Veteran reported that he had an inpatient admission the year prior and was sent there in a "straight jacket" but did not know why. The examiner noted that the Veteran reported a high number of symptoms, including depressive symptoms, hallucinations, anxiety, anger, and behavioral problems. A Disability Benefits Questionnaire (DBQ) was completed in March 2015. It was noted that the Veteran was single, had no children, and had been estranged from his family for nearly 30 years. He also indicated he had been unemployed since 2004. The Veteran reported 3 inpatient stays, 2 substance abuse rehabilitation stays, and 2 jail/prison terms. The Veteran endorsed symptoms such as depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, spatial disorientation, and disorientation to time or place. It was noted that the Veteran was tearful and emotional when recalling trauma, had a startle response and had no significant social/personal relationships. The psychologist completed a narrative statement in addition to the DBQ, noting that the Veteran's memories of service were described with excessive tearfulness and emotional distress. The psychologist noted that the Veteran reported disrupted sleep more days than not, an exaggerated startle response to loud noises, and significant impairment in his social personal relationships. It was noted that he was estranged from nearly all his family, he never married and did not have children. The psychologist noted that the Veteran was irritable, assaultive, and aggressive, leading to at least 2 arrests in his lifetime. Concluding, the psychologist indicated the Veteran was hypervigilant and anxious with others and made an effort to avoid socially crowded situations. The Veteran was afforded a VA examination in June 2015. The Veteran was tearful in describing his current life, reporting that he was homeless, he had not been in any relationships, did not attend church, and had only recently started talking to his brother, noting that for 30 years he had not associated with any of his family. The Veteran reported he had not worked in 10 years, noting that he became angry easily and was fired from his last job due to his anger. It was noted the Veteran was participating in PTSD group therapy. He reported negative feelings of self-worth, sadness, and regret. He became tearful in talking and reported that he becomes depressed about the estrangement from his family and not having any children. He described having low frustration tolerance and being prone to responding aggressively to conflict. He endorsed symptoms of depressed mood, suspiciousness, chronic sleep impairment, mild memory loss, impaired impulse control, and unprovoked irritability with periods of violence. An August 2018 VA treatment note indicates the Veteran reported that he had anger issues, isolated himself, had poor sleep, nightmares, that he "bites his lips and tongue," feels paranoid, and avoids people and conflict. He reported a history of suicide attempts and prior assault charges. The psychiatrist noted that the Veteran's family was not available to participate in treatment planing and there was a lack of social support. A June 2019 VA treatment note reported that the Veteran continued to isolate himself and that he was angry and emotional. The psychiatrist noted the Veteran lacked insight and had poor judgment. The Veteran testified in July 2021 that he had trouble remembering the names of family members, he has angry outbursts, daily panic attacks, and that he has no friends and lives alone. The Veteran explained that he has not worked in a long time because he was in a physical altercation with a coworker at his last place of employment. The Veteran was tearful and emotional during his testimony. As discussed above, the evidence reflects that the Veteran has an inability to establish and maintain relationships, persistent paranoia, disorientation to time or place, memory loss for names of close relatives, angry outbursts, daily panic attacks, and suspiciousness. His symptoms manifest in total social impairment in that he has a very isolated life, he lives alone, has no relationships with family or friends, and he has no apparent social activities, other than reading the Bible and previously attending psychological group therapy classes. His symptoms also manifest in total occupational impairment as he has not been employed throughout the appeal period and was fired from his last place of employment due to a physical altercation with a coworker. The Board finds the Veteran's inability to establish relationships, memory problems, depression, and unprovoked irritability with periods of violence has resulted in total occupational impairment. Symptoms and impairment more nearly approximating total social and occupational impairment have been shown through his years of mental health treatment from 2014 to present. The Board finds the Veteran is entitled to a 100 percent rating for the entire period on appeal, effective June 19, 2014. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND 4. Entitlement to service connection for a respiratory disability, to include as due to exposure to herbicides, asbestos and/or lead paint. The Veteran's claim for entitlement to service connection for a respiratory disability is reopened; the Board determines that additional development is necessary. The Veteran has a current diagnosis of asthma and COPD. See December 2016 VA examination. The Veteran asserts that he was exposed to herbicides, asbestos, and lead paint during service. The December 2016 statement of the case states "herbicide exposure has not been confirmed." However, the claims file does not indicate that the appropriate development was completed to confirm the Veteran's exposure to herbicides. Personnel records indicate the Veteran served aboard the USS Cleveland. Furthermore, the Veteran asserts that in addition to serving on the ship, he was also in-country in Da Nang, Saigon, and Camp Tien Sha. Importantly, personnel records include an administrative remark noting the Veteran received a meritorious unit commendation for participation in Amphibious Ready Group Alpha. The commendation states the Veteran's unit participated in combat operations against enemy forces in the Republic of Vietnam from June 1968 to September 1968 in the land area along the littoral of the First Corps Tactical Zone of the Republic of Vietnam. On remand, the RO should complete all appropriate development necessary to confirm the Veteran's exposure to herbicides. Additionally, if exposure is conceded, a VA medical opinion should be obtained as to whether the Veteran's diagnosed asthma and/or COPD is causally or etiologically due to exposure to herbicides. Furthermore, during the July 2021 BVA Hearing, the Veteran described his exposure to asbestos on the USS Cleveland, noting that he participated in tearing out bulkheads on the ship. He also reported exposure to lead paint. The Board finds the Veteran's statements are credible and that he was likely exposed to asbestos and lead paint while serving on the USS Cleveland. A VA medical opinion was obtained in December 2016. The examiner opined that the Veteran's current diagnoses are less likely than not due to exposure to asbestos during service. The examiner stated that while studies have indicated that COPD is not directly caused by asbestos, researchers suspect that exposure can increase a person's risk for developing it. The Board finds the opinion is unclear. Also, no opinion has been obtained as to whether the Veteran's current diagnoses are causally or etiologically due to exposure to lead paint. On remand, an addendum opinion should be obtained. 5. Entitlement to a TDIU. The Veteran seeks entitlement to a TDIU. In the above decision, the Board awarded a 100 percent schedular rating for major depressive disorder, for the entire appeal period, however, evidence indicates that the Veteran's respiratory disorder may cause unemployment. See, e.g., June 2016 private physician statement. VA must consider a TDIU claim despite the existence of a schedular total rating and award special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) if VA finds a separate disability supports a TDIU independent of the disability with a 100 percent rating. See Bradley v. Peake, 22 Vet. App. 280 (2008). Therefore, the Board finds the issue of entitlement to a TDIU is inextricably intertwined with the issue of entitlement to service connection for a respiratory disability, and is deferred, pending development completed on remand. The matters are REMANDED for the following action: 1. Conduct the appropriate development to determine whether the Veteran had service on the USS Cleveland sufficient to establish presumed exposure to herbicides, to include as defined in the Blue Water Navy Vietnam Veterans Act of 2019. Of note, the Veteran is in receipt of a Navy Commendation Medal specifically recognizing that the Veteran's unit provided meritorious service from June 1968 to September 1968, while serving aboard the USS Cleveland, and participated in combat operations in the land area along the littoral of the First Corps Tactical Zone of the Republic of Vietnam. All development efforts made must be documented in the claims file. 2. Obtain and associate with the claims file all updated treatment records. 3. Obtain an addendum opinion for the Veteran's claimed respiratory disability. The claims folder must be provided to the examiner for review. *The examiner should opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability): a) that the Veteran's asthma is causally or etiologically due to service, to include as due to exposure to herbicides, asbestos and/or lead paint; b) that the Veteran's COPD is causally or etiologically due to service, to include as due to exposure to herbicides, asbestos, and/or lead paint. *In rendering this opinion, the examiner is asked to consider whether there is a medically sound basis to attribute in any way the Veteran's asthma and/or COPD to his in-service exposure to herbicides, asbestos, or lead paint. *Regarding herbicide exposure, the examiner is advised that the Board is cognizant that there is no VA presumption of service connection for asthma or COPD as due to herbicide exposure. The question here is what is the likelihood that this Veteran's asthma or COPD is related to his herbicide exposure given his medical history, family history, other risk factors, etc. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.