Citation Nr: A21017019 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 200604-91952 DATE: October 20, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy is dismissed. Entitlement to an initial rating of 70 percent for major depressive disorder throughout the appeal period is granted. FINDINGS OF FACT 1. During the June 2021 Board of Veterans' Appeals (Board) hearing, prior to the promulgation of a decision in the appeal, the Veteran explicitly and unambiguously withdrew the issue of entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy. 2. Throughout the appeal period, the Veteran's major depressive disorder has been productive of occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal regarding entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. Throughout the appeal period, the criteria for an initial 70 percent rating for major depressive disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1997 to March 1998. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C. § 5108, 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with the Department of Veterans Affairs (VA's) decision on their claim to seek review. The AMA became effective on February 19, 2019. These matters come before the Board on appeal from an April 2020 rating decision by the VA Regional Office (RO). In June 2020, the Veteran filed a timely VA Form 10182 appealing the RO's April 2020 rating decision to the Board and selected the Board's hearing lane docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction decision on appeal, as well as any evidence submitted by the Veteran or her representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The Veteran testified before the undersigned Veterans Law Judge in a June 2021 virtual hearing. At the hearing, the Veteran and her representative waived the 90-day period to submit additional evidence. See 38 C.F.R. § 20.300(b). 1. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy. The Board may dismiss any appeal that fails to allege a 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. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative on the record during a hearing before the Board or in writing. 38 C.F.R. § 20.205. Withdrawal of a claim must be "explicit, unambiguous, and done with a full understanding of the consequences of such action." DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). During the June 2021 Board hearing, the Veteran withdrew from appeal the issue of entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy. There remains no allegation of error of fact or law for appellate consideration with regard to the claim of entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy, and the issue must be dismissed. 2. Entitlement to an initial rating in excess of 30 percent for major depressive disorder. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's major depressive disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9434 (the General Rating Formula for Mental Disorders (General Formula)), which provides for a 30 percent when the evidence shows occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted when the evidence shows 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when the evidence shows 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 worklike setting); and inability to establish and maintain effective relationships. Id. 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). After a review of the evidence of record, resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran is entitled to an initial increased 70 percent rating throughout the appeal period. The evidence shows that the Veteran's major depressive disorder has been productive of suicidal ideation with an overdose in April 2015, chronic sleep impairment (including nightmares), mild concentration impairment, self-harming behavior (i.e., cutting when anxious), isolative behavior, irritability, disturbances of motivation and mood, depressed mood and anxiety. See, e.g., June 2013 VA treatment record; September 2013 VA mental disorders examination; August 2015 VA treatment record; April 2016 private treatment record; March 2021 VA mental disorders examination. The United States Court of Appeals for Veterans Claims (Court) has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 19-20 (2017) (stating the language of 38 C.F.R. § 3.130 "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."). The Veteran has on multiple occasions endorsed suicidal ideation during the appeal period. See September 2013 VA mental disorders examination; August 2015 VA treatment record. In addition, in April 2015, she overdosed on medication, although she has indicated the intent of taking the pills was to fall asleep. See March 2021 VA mental disorders examination. Moreover, she has reported superficial cutting of herself when anxious. See April 2016 private treatment record. Given the evidence during the appeal period, the Board finds that an initial 70 percent rating is warranted throughout the appeal period. During the June 2021 Board hearing, the Veteran and her representative indicated that the award of a 50 percent rating throughout the appeal period would constitute a full grant of the benefit sought on appeal. Inasmuch as this decision is awarding an initial 70 percent rating throughout the appeal period, the Board need not address entitlement to a rating in excess of 70 percent. See AB v. Brown, 6 Vet. App. 35 (1993). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Marley, 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.