Citation Nr: 21065524 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-47 651 DATE: October 26, 2021 ORDER Entitlement to a compensable rating for infectious skin condition has been withdrawn. Entitlement to a 70 percent rating, but no greater, for major depressive disorder, generalized anxiety disorder, and alcohol use disorder effective June 1, 2016 is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) for the entire period on appeal for the period prior to March 13, 2020 is granted. REMANDED Entitlement to service connection for a cervical spine disability, to include intervertebral disc syndrome, is remanded. Entitlement to service connection for right upper extremity radiculopathy is remanded. FINDINGS OF FACT 1. At his June 2021 Board of Veterans' Appeals (Board) hearing, prior to the promulgation of a decision in the matter, the Veteran submitted a request to withdraw his appeal on the issue of entitlement to a compensable rating for infectious skin condition; there are no questions of fact or law in this matter remaining for the Board to consider. 2. The Veteran's major depressive disorder, generalized anxiety disorder, and alcohol use disorder have resulted in occupational and social impairment with deficiencies in most areas since June 1, 2016. 3. The Veteran's service-connected disability has resulted in unemployability for the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to a compensable rating for infectious skin condition by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to a rating of 70 percent, but no greater, for major depressive disorder, generalized anxiety disorder, and alcohol use disorder have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.130, Diagnostic Code 9434. 3. The criteria for TDIU have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to a compensable rating for infectious skin condition 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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 appellant has withdrawn the issue of entitlement to a compensable rating for infectious skin condition and, hence, there remain no allegations of errors of fact or law for appellate consideration. At his June 2021 Board hearing the Veteran made an explicit, unambiguous withdrawal with full understanding of the consequences of his action. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. 2. Entitlement to a rating in excess of 50 percent for major depressive disorder, generalized anxiety disorder, and alcohol use disorder The Veteran contends he is entitled to an increased rating for his service-connected major depressive disorder, generalized anxiety disorder, and alcohol use disorder. The Veteran currently has a 100 percent rating from March 10, 2016 to June 1, 2016 under 38 C.F.R. § 4.29 due to hospitalization. From June 1, 2016 to March 13, 2020, he has a 50 percent rating. As of March 13, 2020, he has a 70 percent rating. 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 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. 38 C.F.R. § 4.130. 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. 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 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. Id. The evidence reflects that after he completed a period of hospitalization, he entered a domiciliary program at the VA, completing various programs, including eventually transitional housing, through October 2018. He then rented a home, where he has reported he lives alone. Although the evidence suggests that the structure of the domiciliary programs and associated therapy assisted the Veteran with his functioning during that time, the Board finds that the nature and severity of his condition nonetheless more closely approximates the criteria for a 70 percent rating throughout that time. Specifically, the Board finds that giving the Veteran the benefit of the doubt, he is entitled to a 70 percent rating for the entire period on appeal. The Board acknowledges the opinion of the February 2018 VA examiner that the Veteran's condition resulted in occupational and social impairment with reduced reliability and productivity, which is the criteria for a 50 percent rating, but finds that records and the Veteran's own statements during that time support a severity of symptomatology that more closely approximated occupational and social impairment with deficiencies in most areas. For example, in a September 2018 statement, the Veteran reported daily obsessive thoughts and anxiety and spending nearly all of his time not at appointments or therapy either sleeping or engaging in compulsive behavior. A disability benefits questionnaire completed by a private examiner in May 2019 indicates that the Veteran experiences depressed mood; anxiety; panic attacks more than once a week; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; circumstantial, circumlocutory, or stereotyped speech; speech intermittently illogical obscure or irrelevant; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or work-like setting; suicidal ideation; and obsessional rituals which interfere with routine activities, resulting in occupational and social impairment with deficiencies in most areas, supporting a 70 percent rating. After consideration of all of the evidence, the Board finds that the overall level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating throughout the period on appeal. The Board notes that the Veteran's thought processes and communications have generally noted to be within normal limits on VA examinations and in treatment records. The May 2019 private examiner noted the Veteran to have ruminative thoughts and a speech pattern that tended to be rapid, digressive, tangential, and circumstantial. Overall, the Board finds that the nature, frequency, and severity of his thought process and communication difficulties do not more closely approximate the level required for a 100 percent rating. The Veteran has also not reported persistent delusions or hallucinations or been found to have disorientation to time or place or any significant memory loss. His appearance has not suggested an inability to perform activities of daily living. He is currently living alone. The Board notes that the Veteran has expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. His thoughts of suicide have generally been characterized as passive without intent or plan. Similarly, he has reported thoughts of violence against others, but has not indicated any intent to act. The May 2019 private examiner, March 2020 VA examiner, and March 2021 VA examiner all opined that the Veteran's mental health condition causes occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, the criteria for a 70 percent rating. The Board has considered both the opinions of the examiners as well as the Veteran's medical records and his own statements and concludes that the evidence overall does not demonstrate the Veteran has had a level of impairment associated with a 100 percent rating. The Board notes that while the Veteran has been granted a total disability rating based on individual unemployability due to service-connected disability, a 100 percent rating for PTSD requires both total occupational and social impairment. Based on the forgoing, the Board finds that a 70 percent rating, but no greater, is warranted for the entire period on appeal. 3. Entitlement to TDIU Although the Veteran filed a formal claim for TDIU in January 2021, the Board finds that there was an inferred claim as part of his increased rating claim under Rice v. Shinseki, 22 Vet. App. 447 (2009). see also See Harper v. Wilkie, 30 Vet. App. 356, 359-61 (2018) VA regulations allow for the assignment of a total disability rating based on individual unemployability (TDIU) when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). As the Veteran has granted a 70 percent rating for the Veteran's service-connected major depressive disorder, generalized anxiety disorder, and alcohol use disorder for the entire period on appeal, the Veteran thus meets the schedular criteria for TDIU for the entire period on appeal. He is currently in receipt of TDIU effective March 13, 2020. The Board finds an earlier effective date is warranted. The Veteran has reported that he was last employed in 2014. The record indicates he later engaged in compensated work therapy while in a domiciliary program at the VA, which the Board finds was not substantially gainful employment outside of a protected work environment. The 2021 VA examiner stated that the Veteran's depression causes him to have poor motivation, and this would impair his ability to follow through on work activities. His anxiety causes him to have impaired attention and concentration. He is irritable with others, and he has had difficulty with conflict with coworkers in the past. He would likely not be able to get along with others and this would impair his ability to work effectively with others. The 2019 private examiner opined that the Veteran has probable total occupational impairment for any sustained meaningful or consistent employment. The Board finds that giving the Veteran the benefit of the doubt, he has met the criteria for TDIU for the entire period on appeal. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disability, to include intervertebral disc syndrome 2. Entitlement to service connection for right upper extremity radiculopathy The Veteran contends that his current cervical spine disability was caused by an in-service injury and that his right upper extremity radiculopathy is secondary to his cervical spine injury. Specifically, the Veteran contends that in 1987 he fell down a flight of stairs. He has stated, including in testimony before the Board in June 2021, that he has had neck and right arm pain since service. Service treatment records include two records from August 1987. At the first the Veteran is noted to have record neck muscle weakness for two weeks and was diagnosed with possible muscle strain. He returned later in the month reporting continuing neck pain and a feeling of numbness. The Veteran's former spouse authored a letter in July 2019 in which she recalled the Veteran falling down a flight of stairs at their home. In the following weeks she stated that the Veteran began to have intense headaches and neck pain. She stated that episodes of head, neck, and right arm pain continued over the next several years they remained together. The Veteran has also submitted a letter from a fellow servicemember who reported knowing the Veteran between 1987 and 1988. The man recalled playing on a darts team with the Veteran and stated that the Veteran used his left arm instead of his right to throw. He recalled the Veteran trying to relieve tension in his neck, turning it side-to-side and shrugging his right shoulder due to pain and numbness. In an August 2017 letter, the Veteran's father recalled that when the Veteran was in service he became aware that the Veteran had suffered a neck injury. In a July 2016 letter, a private physician assistant opined that the Veteran's 1987 neck injury "cannot be ruled out" as a "possible" reason why the Veteran has required surgery and injections in the past and is currently scheduled for another surgery. In April 2016, prior to the submission of the above lay statements and the July 2016 private opinion, the Veteran was afforded a VA examination. A VA etiology opinion was provided at that time, but as it does not consider the above discussed evidence, the Board finds that a new VA opinion should be obtained. The matters are REMANDED for the following action: Obtain a new VA opinion as to the following for both the Veteran's cervical spine disability and right upper extremity disability: Is it at least as likely as not that the condition onset in or his causally related to the Veteran's service? A full rationale should be provided for all opinions expressed. The examiner should discuss the Veteran's lay statements regarding his in-service neck and arm symptoms, the 1987 service treatment records, the three lay statements recounting the Veteran's in-service neck injury, and the July 2016 private opinion. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.