Citation Nr: 21030060 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 09-23 234 DATE: May 17, 2021 ORDER Service connection for right upper extremity peripheral neuropathy is granted. Service connection for left upper extremity peripheral neuropathy is granted. An initial rating higher than 30 percent for major depressive disorder prior to September 21, 2017 is denied. The appeal seeking a rating higher than 70 percent for major depressive disorder from September 21, 2017 is dismissed. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. Competent evidence links the Veteran's right upper extremity peripheral neuropathy and left upper extremity peripheral neuropathy to service. 2. Prior to September 21, 2017, the Veteran's major depressive disorder was manifested by symptoms that more nearly approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks but generally function satisfactorily, with routine behavior, self-care, and conversation normal. 3. In May 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran's attorney that he did not want to pursue the appeal concerning a rating higher than 70 percent for major depressive disorder as of September 21, 2017. CONCLUSIONS OF LAW 1. The criteria for service connection for right upper extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for service connection for left upper extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for an initial rating higher than 30 percent for major depressive disorder have not been met prior to September 21, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9434. 4. The criteria for withdrawal of the appeal for a rating higher than 70 percent from September 21, 2017 for major depressive disorder have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1967 to February 1969. He served in Vietnam between January 1968 and February 1969 and it is presumed he was exposed to herbicide agents as a result of that service. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in April 2011 and July 2012. The April 2011 rating decision granted service connection for major depressive disorder and assigned a 30 percent rating effective September 30, 2010. The July 2012 rating decision denied service connection for peripheral neuropathy of the bilateral upper extremities. The claims were remanded by the Board in October 2014 for a videoconference hearing and in September 2015 for additional development. Transcripts of the Veteran's testimony at hearings before a Decision Review Officer in August 2011 and before the undersigned Veterans Law Judge in December 2014 are of record. The rating assigned for major depressive disorder was increased to 50 percent effective September 21, 2017, in a September 2018 rating decision. The Board remanded the claims again in August 2019. The Board also remanded claims for service connection for osteoporosis, claimed as a breakdown of the spinal column; hypogonadism/low testosterone; and peripheral neuropathy of the bilateral lower extremities. In a March 2021 rating decision, service connection was established for lumbar osteoporosis, hypogonadism, right lower extremity peripheral neuropathy, and left lower extremity peripheral neuropathy. Those claims are no longer before the Board on appeal. The March 2021 rating decision also increased the rating assigned for major depressive disorder to 70 percent effective September 21, 2017. Service Connection 1. -2. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The Board remanded the claim for service connection for peripheral neuropathy of the bilateral upper extremities in order to obtain a medical opinion as to whether the Veteran had peripheral neuropathy involving the upper extremities and, if so, to obtain an opinion as to its etiology. The Veteran underwent a VA diabetic sensory-motor peripheral neuropathy Disability Benefits Questionnaire (DBQ) in March 2021, during which the examiner indicated that he did not have upper extremity diabetic peripheral neuropathy, but he did have bilateral upper extremity peripheral neuropathy. The examiner explained that the symptoms of neuropathy predated the diagnosis of diabetes but was a sequela of the Veteran's exposure to Agent Orange during service and that the diabetes mellitus had aggravated the pre-existing bilateral upper extremity peripheral neuropathy. Since this opinion provides a nexus between the Veteran's presumed in-service exposure to herbicides and the bilateral upper extremity peripheral neuropathy, service connection for right and left upper extremity peripheral neuropathy is granted on a direct basis. Increased Ratings 2. An initial rating higher than 30 percent for major depressive disorder prior to September 21, 2017 Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. Service connection was established for major depressive disorder in the April 2011 rating decision that is the subject of this appeal. An initial 30 percent rating was assigned under 38 U.S.C. § 4.130, Diagnostic Code 9434, effective September 30, 2010. As noted above, the rating was initially increased to 50 percent and later 70 percent effective September 21, 2017. Since the Veteran has not pursued the appeal involving a rating higher than 70 percent as of September 21, 2017, the Board is tasked with determining whether an initial rating higher than 30 percent is warranted between September 30, 2010 and September 21, 2017. Pursuant to the General Rating Formula for Mental Disorders, a 50 percent evaluation 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 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. 38 C.F.R. § 4.130, Diagnostic Code 9433. A 70 percent evaluation contemplates occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activity; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting 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 name. Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation based on social impairment. 38 C.F.R. § 4.126(b). The Veteran has twice testified as to symptoms associated with his major depressive order that he contends warrant a higher initial rating. In August 2011, he reported that he has nightmares that impair sleep; that he cries; that he has trouble being around people; that he does not see his family often; that he does not feel welcome when he does attend family functions; that he gets startled easily and that he cannot sit and read a book for a long time. He testified in December 2014 that he had been prescribed medication for depression and sleep issues; that he tended to isolate but had a few friends he saw more often than others; that he is easily irritated; that he had nightmares; and that he was unable to pursue group therapy but did attend individual therapy sessions. The medical evidence in this case dated prior to September 21, 2017 consists of several VA examination reports and VA and private treatment records. An October 2010 VA record documents that the Veteran reported a history of being treated for chronic depression since the 1970s and that he was currently on medications prescribed by his family doctor. The Veteran reported that he was depressed; that people never bothered him before but he now is irritable with his wife and angered easily; and he noted especially inappropriate anger towards Asians. He stated his symptoms continued to get worse. He denied suicidal or homicidal ideation. Private cardiology records dated between August 2011 and September 2012 document the Veteran's denial of an increase in depression or anxiety. During a November 2010 VA examination, the Veteran reported that he had been married for 29 years without any children. He had a close relationship with his wife and reported that they had different friends but a dozen close ones with whom they visited. Psychiatric examination revealed he was casually dressed, with unremarkable psychomotor activity, speech, and thought process. He was cooperative and friendly with constricted affect and anxious and depressed mood. He was easily distracted and unable to do serial sevens, though he was able to spell a word forward and backward. Orientation was intact. Ruminations were noted but there were no delusions. Judgment and insight were intact, and intelligence was average. There were no hallucinations, inappropriate behavior, obsessive/ritualistic behavior, panic attacks, or suicidal or homicidal thoughts. Sleep impairment was reported as his mind keeps going. Impulse control was good and there were no episodes of violence. The Veteran indicated that he could get short with people and things bother him quickly. He was able to maintain minimal personal hygiene and there were no problems with activities of daily living. Memory was normal. The Veteran was self-employed in a flower shop at the time of the examination and had lost about two weeks but not due to psychiatric factors. The examiner reported that signs and symptoms of major depressive disorder resulted in deficiencies in thinking (ruminations) and mood (depression). It was also noted that there was occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks but with generally satisfactory functioning (depression can cause him to be less efficient and productive in a work setting). At the time of a December 2012 VA examination, the Veteran reported that his wife of 41 years had died in February 2011 and he was living alone. He had one adopted daughter but had not been in touch with her. He also had not been involved in any romantic relationships since his wife's death but did have a large group of friends that included him in everything. The Veteran reported that he occasionally went to those events. The Veteran had been working at the flower shop he owned until his wife died; he closed it and had been working part time as a driver for a counseling program. The following symptoms associated with his major depressive disorder were noted: depressed mood, chronic sleep impairment, and disturbances of motivation and mood. The examiner determined that there was 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 medication. In a March 2013 addendum, the examiner reported that the Veteran's symptoms of depression were mild, had been managed with medication, and should not prevent him from being able to manage gainful employment. In an April 2013 addendum, the examiner added that the Veteran had adequate interpersonal skills; that his memory and concentration were within normal limits; that he had been working part time and had managed his current job well; and that his depression does not prevent him from managing gainful employment. A March 2013 private cardiology record indicates that the Veteran denied depression with thoughts of suicide and that psychiatric evaluation revealed flat affect; the Veteran denied suicidal or homicidal ideations. An April 2013 VA initial mental health evaluation documents that the Veteran was neatly dressed and reported feeling more and more depressed since his wife died. Being isolated was discussed. The Veteran denied suicidal and homicidal ideation, and none were evidence. He reported losing his home a few months prior and moving into a trailer, where he was happy. Current significant family relationships included extended family - nieces, nephews, sister, and brother. The Veteran also reported a few friends but indicated he had more when his wife was alive. He was driving a bus for Cape Counseling. Mental status evaluation revealed appearance was appropriate to place and weather. He was calm and able to focus, cooperative and engaged but dysphoric, and oriented to time, place, and reason for visit. Recent and remote memory were generally intact. The Veteran reported negative memories about the past which are recurrent. His affect was dysphoric and withdrawn. Thought processes and content were logical and organized. There were no perceptual disturbances, cognitive impairments, or maladaptive or problem behaviors. The Veteran was able to benefit from therapy and denied a history of impulsivity. Sleep disturbances in the form of sleep apnea, nightmares, and disrupted sleep were reported. The May 2013 VA examiner determined that the Veteran had continued to manage his part-time job as a driver well, had adequate interpersonal skills, and his memory and concentration appeared to be adequate. 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 medication, was again noted. The Veteran continued to live alone following his wife's death and had not dated. He socialized with old neighbors (had moved after wife died) and had several other friends (good friends since before his wife's death). Symptoms included depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. A May 2013 VA treatment record documents that the Veteran discussed the death of his wife. He stated that he was still having issues with her death and discussed the sadness of being alone and thinking about her every day. He also discussed his feelings about their inability to have children and recurrent miscarriages. During VA treatment in June 2013, the Veteran discussed the benefits and the issues with his job. He was working at Cape Counseling and stated that the children he worked with could be quite challenging. The Veteran reported enjoying talking with the therapists who work at the children's programs and that it was good for him to have friends. He indicated he had spent time with his neighbor in the old neighborhood. In July 2013, the Veteran reported that his sister had been a good support to him while he was dealing with recent health issues resulting in a hospitalization. In March 2014, he discussed his family and the support he received from his friends. His family was mindful to include him now, even more that his wife has died. He reported that he had been feeling a little bit overwhelmed with going out and that he often slept in all day. Mental status evaluation revealed that the Veteran was stable and that his thoughts were clear, but his mood was dysphoric. Mental status evaluation in May 2014 revealed that the Veteran was expressive and engaged with stable mood and clear thoughts. He was alert and oriented and reported increased social contact due to family involvement. In June 2014, the Veteran reported that his family had made the effort to take him out recently and that he had gone to a christening and to graduations and was enjoying family time. The Veteran reported in July 2014 that a niece was coming to help him organize his house. In another July 2014 treatment record, the Veteran discussed his feelings about his life, stating that he was surrounded by family who do not forget him on holidays, vacations, and special occasions. He also discussed his job, which he found very enjoyable and which gave him a sense of stability and order to his life. A September 2014 record documents the Veteran's report that his family continued to try to reach out for him and he went to many family events. He indicated he was still sleep deprived, waking up early and not being able to sleep due to intrusive thoughts. A subsequent September 2014 record indicates that the Veteran had been depressed, staying in bed, and not as active, although he did say that his brother came to see him from West Virginia to visit. In October 2014, the Veteran discussed the challenges of his job driving the kids around in the van. He stated that his boss liked him but that he got in trouble for answering his cell phone while driving. He had been sleeping a lot otherwise. The Veteran saw his brother on occasion and his brother had asked him to move to West Virginia, but the Veteran felt that he could not relocate and that where his brother lives is too isolated. In November 2014, the Veteran reported that he had been sleeping more and more instead of cleaning his home. He stated that he felt overwhelmed with his house and was avoiding cleaning it. Another November 2014 record documents the Veteran's reported that he had had several invitations from family, but decided to go to friends' homes, though he had attended several family events and had connected with his family. In December 2014, the Veteran discussed that for the holidays, he would be spending time with his family. He reported that he had been feeling more connected with them through the holiday season. The Veteran also tried to get out and do things. He discussed his enjoyment of his job and his feelings that he liked the kids that he worked with even if his employer does not appreciate all that he does. A March 2015 VA treatment record indicates that the Veteran discussed that he was often tired, even to the point that his Christmas tree was still up because he did not have the energy to take it down. He stated that he had been feeling sad that some of the nieces and nephews that he thought he was close to do not call him back. The Veteran was noted to be engaged with clear thoughts, but he was mildly dysphoric and lethargic. Mental status evaluation in May 2017 revealed the Veteran was kempt and groomed with depressed mood and blunted affect. He was oriented and thoughts were clear, logical and goal directed. Recent and remote memory were intact, and the Veteran was cooperative throughout the session. He denied suicidal and homicidal ideation but reported ongoing intrusive thoughts and depressed moods. It was noted that his living situation might be changing and that he was seeking others out, which was positive. In June 2017, the Veteran discussed his feelings about his family and the support that they give him. He reported that they take him out although he sometimes tells them that he would rather be alone. He was depressed, lethargic, sad, and feeling overwhelmed. In a subsequent June 2017 record, the Veteran reported that he remained depressed and that he slept most days and got very little done. He discussed the possibility of moving in with friends, which he would like and felt very positive about. He discussed his feelings about the use of his time since he retired and how he missed some aspects of owning a florist and being involved in the community. The Veteran was engaged but reported increasing depressive moods and lack of stability. In July 2017, the Veteran reported a sad mood most days and symptoms of fatigue, impaired concentration, and occasional crying spells about every two weeks. He denied suicidal plans or intent. It was noted he had a comorbid anxiety disorder and was worried more days than calm. While no symptoms of true mania were noted, he did have racing thoughts at night mostly anxiety driven. In a subsequent July 2017 record, the Veteran reported that he had decided to stay in his trailer. He discussed that any change in his living environment would reduce his level of privacy and that he would be living in another person's house. The benefits of having his own place and space but being with people frequently was discussed. He also discussed the supports of his family and friends, reporting that he is thought of and people take him out. His thoughts were clear, but he was mildly dysphoric. The preponderance of the evidence of record does not support the assignment of an initial rating higher than 30 percent for the service-connected major depressive disorder at any time prior to September 21, 2017. The Board has considered the subjective symptoms reported by the Veteran with the objective evidence of record as reflected above. Importantly, although there is some discrepancy in the record about when the Veteran retired, either ending in July 2016 or July 2017, as discussed in the remand portion of this decision, the fact remains that he was employed for the majority of the appeal period. He also reported a very positive marital situation (prior to his wife's death) with supportive extended family following her death, as well as significant relationships with friends and neighbors. In addition, while the Board acknowledges references to impaired affect (constricted, flat, dysphoric, and blunted) and disturbances of motivation and mood, there is no subjective or objective evidence of panic attacks, impaired judgment or impaired abstract thinking; there was objective evidence that the Veteran's orientation was intact; and his thought processes were reported as unremarkable, clear, logical, goal-directed, coherent, and organized. The objective evidence also supports a finding that his speech was unremarkable and that his memory was normal/adequate/intact. The Veteran consistently denied any suicidal or homicidal ideation. Ultimately, it is the impact on functioning that results from the symptomatology that dictates the evaluation to be assigned. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013) ("[38 U.S.C.] § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas"). Here, the record shows that the Veteran maintained a good relationship with his wife prior to her death, regularly socialized with friends and extended family, though he preferred to be alone at times, and maintained employment until at least July 2016 if not until July 2017. Thus, the Board finds the record does not demonstrate occupational and social impairment with reduced reliability and productivity, and an initial disability rating more than 30 percent is not warranted prior to September 21, 2017. See 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9434. 3. A rating higher than 70 percent for major depressive disorder as of September 21, 2017 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 May 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran's attorney that they did not want to pursue the appeal concerning a rating higher than 70 percent for major depressive disorder as of September 21, 2017. Given the foregoing, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal concerning this claim and it is dismissed. REASONS FOR REMAND 1. Entitlement to a TDIU due to service-connected disabilities is remanded. The record contains a discrepancy regarding the date on which the Veteran was last employed. His attorney asserts that he last worked in July 2016; however, the Veteran reported during an October 2017 VA examination that he stopped working on July 4, 2017. On remand, the Veteran should be asked to fully complete and submit a VA Form 21-8940. The matter is REMANDED for the following action: 1. Ask the Veteran to complete and submit a VA Form 21-8940 that provides an accurate history of employment. 2. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Van Wambeke, 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.