Citation Nr: 21028869 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-67 702 DATE: May 12, 2021 ORDER Entitlement to an initial disability rating of 30 percent for depressive disorder is granted for the entire appeal period. Entitlement to a compensable initial rating for a lower lumbar spine scar associated with spondylolisthesis L5-S1, status post spinal repair is dismissed. REMANDED Entitlement to an initial rating in excess of 20 percent for spondylolisthesis L5-S1, status post spinal repair is remanded. Entitlement to an initial rating in excess of 10 percent for left leg neuropathy associated with service-connected spondylolisthesis L5-S1, status post spinal repair is remanded. Entitlement to an initial rating in excess of 10 percent for right leg neuropathy associated with service-connected spondylolisthesis L5-S1, status post spinal repair is remanded. Entitlement to an initial rating in excess of 30 percent for depressive disorder is remanded. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's depressive disorder symptoms produce occupational and social impairment with at least occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. During the April 2021 hearing, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw his appeal of entitlement to a compensable rating for a lower lumbar spine scar associated with spondylolisthesis L5-S1, status post spinal repair. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 30 percent for the Veteran's 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. 2. The criteria for dismissal of entitlement to a compensable rating for a lower lumbar spine scar associated with spondylolisthesis L5-S1, status post spinal repair have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1974 to December 1974 and June 1976 to August 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from the February 2017, March 2017, and October 2017 rating decisions by a Department of Veteran's Affairs (VA) Regional Office. The February 2017 rating decision granted service connection for spondylolisthesis L5-S1, status post spinal repair rated 20 percent disabling; left leg neuropathy rated 10 percent disabling; and lower lumbar scar rated as noncompensable. The March 2017 rating decision granted service connection for the Veteran's depressive disorder rated 10 percent disabling and the October 2017 rating decision granted service connection for right leg neuropathy rated 10 percent disabling. The Veteran timely appealed the February 2017, March 2017, and October 2017 rating decisions. In April 2021, a virtual hearing was held before the undersigned Veterans Law Judge. This decision is being made under the "one-touch" program. A transcript of the hearing will be associated with the claims file at a later time. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's depressive disorder is currently rated 10 percent disabling under the General Rating Formula for Mental Disorders. In pertinent part, a 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating is warranted for 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). In evaluating symptoms and signs to determine their effect on the level of occupational and social impairment in order to arrive at an appropriate disability rating, the Board will look to their severity, frequency and duration; consider their impact as a whole; and make a quantitative assessment accordingly. See Bankhead v. Shulkin, 10 Vet. App. 26-27 (2017); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990); Mittleider v. West, 11 Vet. App. 181, 182 (1998). 1. Entitlement to a disability rating of 30 percent, and no higher, for depressive disorder. The Veteran asserts that his current disability rating does not accurately account for the symptoms of his depressive disorder. At his hearing, the Veteran testified that his symptoms have worsened since his most recent VA examination in March 2017. As a result, a remand is necessary to provide an examination to capture his current disability picture. However, even before obtaining a new examination, the Board has reviewed the evidence of record to include his hearing testimony, VA examinations, and outpatient records and finds that the overall disability picture is more severe than mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. This warrants a higher rating of 30 percent for the entire appeal period, as his symptoms produced occupational and social impairment with at least 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). Thus, a 30 percent rating is granted for the entire appeal period. A higher rating may be warranted but the Board does not find the record is complete to adjudicate that issue. Therefore, the issue has been bifurcated and entitlement to a rating in excess of 30 percent is remanded below. 2. Entitlement to a compensable rating for a lower lumbar spine scar associated with spondylolisthesis L5-S1, status post spinal repair. 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. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018) (the Board must address all three prongs of the DeLisio standard when it applies). 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. § 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 a compensable rating for a lower lumbar spine scar during his April 2021 hearing. As the Veteran's withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of the withdrawal, the requirements under DeLisio have been met. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND 3. Entitlement to an initial rating in excess of 20 percent for spondylolisthesis L5-S1, status post spinal repair is remanded. 4. Entitlement to an initial rating in excess of 10 percent for left leg neuropathy is remanded. 5. Entitlement to an initial rating in excess of 10 percent for right leg neuropathy is remanded. 6. Entitlement to an initial rating in excess of 30 percent for a depressive disorder is remanded. The Veteran asserted during his April 2021 hearing that his spondylolisthesis L5-S1 disability, left leg neuropathy, right leg neuropathy, and depressive disorder have increased in severity since the Veteran was last examined by VA in 2017. VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his disabilities. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Thus, the Board has no discretion and must remand this claim. The matters are REMANDED for the following action: 1. Schedule the Veteran for examinations by appropriate clinicians to determine the current severity of his service-connected spondylolisthesis L5-S1, status post spinal repair; left leg neuropathy; right leg neuropathy; and depressive disorder. The examiners should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.