Citation Nr: 21009315 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-36 111A DATE: February 22, 2021 ORDER A 50 percent rating, and no higher, for dysthymic disorder (depression) is granted. Entitlement to a rating in excess of 20 percent for peripheral neuropathy left lower extremity is denied. Entitlement to a rating in excess of 20 percent for peripheral neuropathy right lower extremity is denied. Entitlement to rating in excess of 10 percent for right knee degenerative joint disease status post arthroscopy with residuals scar is dismissed. Entitlement to rating in excess of 10 percent for residuals of fracture of the left patella is dismissed. Entitlement to a compensable rating for erectile dysfunction (ED) is dismissed. Entitlement to service connection for posttraumatic stress disorder (PTSD) is dismissed. Entitlement to service connection for sleep apnea is dismissed. Entitlement to service connection for peripheral neuropathy right upper extremity is dismissed. Entitlement to service connection for peripheral neuropathy left upper extremity is dismissed. Entitlement to service connection for history of radiculopathy from lower back to right hip (claimed as hips secondary to peripheral neuropathy) is dismissed. Entitlement to service connection for history of radiculopathy from lower back to left hip (claimed as hips secondary to peripheral neuropathy) is dismissed. REMANDED Entitlement to a rating in excess of 20 percent for diabetes mellitus, to include a separate compensable rating for kidney disease, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. At the August 21, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran/appellant that a withdrawal of this appeal is requested as to the issues of entitlement to higher ratings for right knee degenerative joint disease status post arthroscopy with residuals scar, residuals of fracture of the left patella and ED, and service connection for PTSD, sleep apnea, peripheral neuropathy right and left upper extremities and history of radiculopathy from lower back to right and left hips (claimed as hips secondary to peripheral neuropathy).   2. The severity, frequency, and duration of the Veteran’s dysthymic disorder symptoms more closely approximated occupational and social impairment with reduced reliability and productivity than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 3. Peripheral neuropathy right lower extremity was not manifested by nor did it approximate moderately severe incomplete paralysis of the sciatic nerve. 4. Peripheral neuropathy left lower extremity was not manifested by nor did it approximate moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claims of entitlement to higher ratings for right knee degenerative joint disease status post arthroscopy with residuals scar, residuals of fracture of the left patella and ED, and service connection for PTSD, sleep apnea, peripheral neuropathy right and left upper extremities and history of radiculopathy from lower back to right and left hips (claimed as hips secondary to peripheral neuropathy) by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for a disability rating of 50 percent for dysthymic disorder (depression) 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 9433.   3. The criteria for a rating in excess of 20 percent for peripheral neuropathy right lower extremity have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.124a, DC 8520. 4. The criteria for a rating in excess of 20 percent for peripheral neuropathy left lower extremity have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to December 1970. He died in November 2020. The appellant claims as the Veteran’s surviving spouse and has been substituted as the appellant for purposes of adjudicating the Veteran’s claims to completion. 38 U.S.C. § 5121A (allows for substitution in case of death of a claimant who dies on or after October 10, 2008). See January 2021 VA notification letter to appellant. Prior to his death, the Veteran and appellant testified before the undersigned Veterans Law Judge (VLJ) in August 2020. The Veteran’s attorney representative was present, and has since also become appellant’s representative in this appeal. The VLJ clarified the issues on appeal; clarified the concept of service connection; identified potential evidentiary defects; clarified the type of evidence that would support the Veteran’s claims and inquired as to the existence of potential outstanding records. The actions of the VLJ comply with 38 C.F.R. § 3.103.   In a January 2021 rating decision, the AOJ granted service connection for the cause of the Veteran’s death, citing that the death certificate listed type II diabetes mellitus as a contributory condition. Dismissal The appeal as to the issues of entitlement to higher ratings for right knee degenerative joint disease status post arthroscopy with residuals scar, for residuals of fracture of the left patella and ED and service connection for PTSD, sleep apnea, peripheral neuropathy right and left upper extremities and history of radiculopathy from lower back to right and left hips (claimed as hips secondary to peripheral neuropathy) is dismissed. 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 through his/her authorized representative, has withdrawn this appeal as to the issues of entitlement to higher ratings for right knee degenerative joint disease status post arthroscopy with residuals scar, residuals of fracture of the left patella and ED and service connection for PTSD, sleep apnea, peripheral neuropathy right and left upper extremities and history of radiculopathy from lower back to right and left hips (claimed as hips secondary to peripheral neuropathy). Hence, there remain no allegations of errors of fact or law for appellate consideration as to these issues. The withdrawal was made at the August 2020 hearing by the Veteran’s attorney towards the end of the hearing during which the Veteran, appellant and the attorney fully participated. We find that the withdrawal of the appeal as to these issues at the Board hearing was (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O’Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). This is clear from the discussion at the hearing. Accordingly, the Board does not have jurisdiction to review the appeal as to these issues and it is dismissed as entitlement to higher ratings for right knee degenerative joint disease status post arthroscopy with residuals scar, residuals of fracture of the left patella and ED, and service connection for PTSD, sleep apnea, peripheral neuropathy right and left upper extremities and history of radiculopathy from lower back to right and left hips (claimed as hips secondary to peripheral neuropathy). Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings.” Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. A 50 percent rating, and no higher, for dysthymic disorder (depression) is granted. The Veteran sought a rating in excess of 30 percent for this disability. He argued generally that the disability is essentially productive of a higher degree of social and occupational impairment. At his hearing, he and his attorney representative argued that the criteria for 50 percent were met. The Veteran’s dysthymic disorder is assigned a rating of 30 percent under Diagnostic Code 9433. 38 C.F.R. § 4.130. The disability is rated using the General Rating Formula for Mental Disorders (General Formula). This rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. At the outset, the Board notes that the Veteran sought VA mental health treatment related to dysthymic disorder (depression). His VA medication list included Venlafaxine for depression. He was married for over 40 years and had children. The record is replete with reference to the fact that there was no suicidal or homicidal ideation, and it is noted that he was not considered at risk for suicide based on screenings. The medical record consists primarily of the September 2013 and January 2018 VA examination reports and VA treatment records for the period on appeal. We also note the August 2020 testimony before the undersigned. The manifestations of this disorder approximate the criteria for a 50 percent rating, based on disturbances of motivation and mood as noted in 2013 and 2018 exams and as testified to in detail by appellant and the Veteran. However, the preponderance of the evidence is against finding that this disability meets or more nearly approximate the criteria for more than a 50 percent rating. The 50 percent criteria are: 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. In support of the 50 percent rating, the Board cites to testimony from the Veteran and appellant spouse reflecting his struggles with mood inasmuch as he became depressed and withdrawn as his physical problems increased. His life’s work was as a basketball coach of colleges and high schools and private schools. He loved his job and helping the students. Basically, he became physically limited due to his service-connected disabilities and got depressed and sad. He was unable to perform his duties that he loved. He also taught math and became short with the students when they could not catch on to math concepts. He withdrew into his house and masked his problems. His wife testified, “So, as we said, our house was Grand Central Station. We had just a lot of activity. Fun activity. Our house was busy with our four children and their friends. And parents, and then coaches, you know, it was just an active home. And if not at home he traveled all the time with coaching to other countries, other states, doing clinics. So, he knew people all over the country. All over the world.” She continued that, “And little by little he just started withdrawing more and more. To the point that he didn’t want to go out. He didn’t want to go out anymore and be social. We stopped going out with friends. We haven’t gone out to dinner with friends in years now. He stopped wanted to have people come to our house.” The Veteran admitted to minimizing his problems on VA examinations, stating that was his way of doing things. He reported that wife straightened him out on that, though. VA treatment records are consistent with the 2013 and 2018 examination findings of disturbances of motivation and mood. Taking the testimony and medical record into account, we find these disturbances result on occupational and social impairment with reduced reliability and productivity. A 50 percent rating is approximated under these circumstances for the period on appeal. However, the criteria for a 70 percent rating, 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); inability to establish and maintain effective relationships, are not met or more nearly approximated, even considering the testimony. First, the 2013 and 2018 VA examiners assessed only mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. That is the criteria for a 10 percent rating. The examiners specifically declined to find higher levels of occupational and social impairment that would suggest more than a 50 percent rating. Indeed, deficiencies in most areas was not shown; the Veteran remained married to his wife for decades, and had four adult children and five grandchildren with whom he maintained frequent contact. The examiner in 2018 noted that judgment was good and abstract thinking was intact. Thought content was reality based and not obsessive, thought process was linear, and there was no suicidal ideation. Obsessional rituals which interfere with routine activities were not noted. Speech was normal and there was no abnormal behavior or psychomotor activity. Near-continuous panic or depression affecting the ability to function independently, appropriately and effectively was not noted. Impulse control was not noted as an issue. He was fully oriented. He was appropriately groomed. Difficulty in adapting to stressful circumstances (including work or a worklike setting) or inability to establish and maintain effective relationships was not noted or described. Neither the 2013 nor the 2018 examination report supports a rating in excess of 50 percent. The Veteran made no substantive argument as to how he meets the criteria in excess of 50 percent. He argued he met the 50 percent criteria. Nothing in the treatment record suggests occupational and social impairment with deficiencies in most areas. For example, a March 2020 mental status telehealth note reflects anxiety and depression as his mood was poor due to his poor health. He never had mood problems when working. His depression included sadness and some crying spells, feelings of worthlessness and guilt. He denied suicidal and homicidal thoughts as well as audiovisual hallucinations. He was mad at VA and his mood was congruent. Judgment was fair. Thought process was coherent. Speech was normal and he was oriented. In March 2019, all of the findings fail to suggest 70 percent criteria. His mood was assessed as depressed, irritable, angry, anxious, consistent with a 50 percent rating. Throughout the appeal, there is no suggestion of near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. He remained fully oriented. There has been no neglect of personal appearance and hygiene. There has been no finding that he has difficulty in adapting to stressful circumstances and was functioning in a work or a worklike setting as described at the hearing. His interactions noted by virtue of his daily activities with his spouse and family persuade the Board there was not an inability to establish and maintain effective relationships. For the entire period on appeal, there was reduced reliability and productivity but not deficiencies in most areas. While his testimony and that of his wife is considered, it is outweighed by the findings on examinations and the observations during treatment that were indeed formulated in part based on his report of symptoms and his activities. Clearly, the Veteran’s disability also does not meet or more nearly approximate the criteria for a 100 percent rating, warranted 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; memory loss for names of close relatives, own occupation, or own name. The VA examiners indicated these symptoms were not present in their choice of the level of impairment they assigned. The Veteran did not actually describe, in his testimony, at his examination or during his treatment, such symptoms which could even remotely be described as approaching this degree of impairment. Nor does appellant’s testimony suggest such severity. No mental health professional has suggested that he manifests such symptoms. Such is not indicative of total occupational and social impairment. A 50 percent rating is warranted but the criteria for a rating in excess of 50 percent are not met. The lay assertions are less probative than the assessments by the trained VA psychologists as to the degree of impairment. 2. Entitlement to a rating in excess of 20 percent for peripheral neuropathy left lower extremity is denied. 3. Entitlement to a rating in excess of 20 percent for peripheral neuropathy right lower extremity is denied This is an appeal of an October 2013 rating decision. The right and left lower extremities are each rated 20 percent throughout the period on appeal based on the sciatic nerve under DC 8520, Diseases of the Peripheral Nerves. 38 C.F.R. § 4.124a. This DC is the most advantageous and appropriate DC for both of the lower extremity neuropathies considering the manifestations that will be discussed below. See 38 C.F.R. § 4.25, 4.14. Under DC 8520, an 80 percent rating will be assigned where there is complete paralysis of the sciatic nerve, where the foot dangles and drops, there is no active movement possible of muscles blow the knee, and flexion of the knee is weakened or (very rarely) lost. A 60 percent rating is warranted where there is severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. We find that there was not more than moderate incomplete paralysis shown or approximated for either lower extremity during the appeal period, and the appeal must be denied. VA examination in September 2013 reflects normal sciatic nerve on the right and left. Motor strength was 5/5 in the lower extremities. Reflexes were normal. Sensory examination for light touch showed the lower leg/ankle and foot/toes were absent. Vibration sensation of the lower extremities was decreased. Cold sensation of the lower extremities was absent. Severity evaluation for lower extremity nerves was considered normal. Antalgic gait was noted due to the Veteran’s knee and back conditions. These examination findings do not suggest there was moderately severe incomplete paralysis of the sciatic nerve. Moderately severe incomplete paralysis was specifically noted as not present by the examiner. The VA treatment records for the appeal period are consistent with this examination report in that they do not remotely support more than moderate incomplete paralysis. See, e.g, August 2019 VA treatment record wherein the review of systems notes: NEURO: Negative for radicular pain, loss of motor/sensory function, headache. Critically, no medical professional assessed more than moderate sciatic nerve paralysis. The Board also notes the Veteran’s candid testimony wherein he discussed his problems with his lower extremity neuropathies. We appreciate that he shared about how he used to love to drive his stick shift truck, but had to sell it because he could no longer drive it because he became less able to feel his feet on the pedals. We also appreciate the testimony as to how he had to adapt his beloved coaching to sitting in a chair near the court, and how he could not run the court with his students any longer due to the leg problems. We also appreciate his wife’s testimony as to how he was prone to falling even inside the house and required her almost constant assistance. However, we find that these described limitations, when combined with the medical record, result in a disability picture for these two conditions that fits squarely within the criteria contemplated by the assignment of the current 20 percent ratings. More than moderate incomplete paralysis of the sciatic nerve of either lower extremity is not suggested by any evidence, as the findings were wholly sensory. See 38 C.F.R. § 4.124a While the Veteran asserted he had greater than moderate incomplete sciatic paralysis in both lower extremities, the issue of the degree of paralysis is, ultimately, medically complex, and the Board finds the overwhelming medical evidence, including the 2013 medical opinion and the observations in the treatment record, more probative as to degree of incomplete paralysis. For all the foregoing reasons, the preponderance of the evidence is against a rating for either lower extremity in excess of 20 percent. Hart v. Mansfield, 21 Vet. App. 505 (2007). REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus, to include a separate compensable rating for kidney disease, is remanded. It was argued at the August 2020 hearing that a higher/separate rating is warranted for diabetes mellitus based on evidence of chronic kidney disease. The attorney argued that the Veteran had chronic kidney disease as a complication of diabetes. He urged that these complications of diabetes are part of the claim for diabetes and should result in either a higher or separate rating. He noted that there was ambiguity in the VA examination record as to whether there was any kidney disease. He also observed that VA treatment records seem, in his lay observation, to suggest there is actually kidney disease related to the diabetes. He requested a VA medical opinion to ascertain whether there indeed was diabetes-related kidney disease demonstrated in the medical record. The January 2021 rating decision that granted service connection for the cause of the Veteran’s death cites the cause of death as: hepatic failure unspecified without coma. Type II diabetes mellitus with hyperosmolarity without nonketoic hyperglycemic hyperosmolar coma, acute hepatitis C with delta-agent without hepatic coma, and acute hepatitis C without hepatomic coma are recorded as contributory conditions. Under the circumstances, we agree that a VA medical opinion should be obtained to determine what the manifestations of diabetes mellitus were during the period on appeal prior to the Veteran’s death, to specifically include whether there was diabetes-related kidney disease. 2. TDIU is remanded. Because a decision on the issue being remanded could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion from an appropriate clinician to determine the severity of his service-connected diabetes mellitus during the appeal period prior to the Veteran’s death. The claims folder should be made available to the clinician and pertinent documents therein should be reviewed by the clinician. The clinician should address whether there was any kidney disease present that was related to (caused or aggravated by) diabetes mellitus. The clinician should provide a full description of nature and extent of the disability, and address all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of TDIU. If the benefit sought is not granted to the appellant’s satisfaction, send the appellant and her attorney-representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.