Citation Nr: 22012306 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 18-32 145 DATE: March 3, 2022 ORDER An initial evaluation of 100 percent for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) with unspecified depressive disorder, prior to October 1, 2017, is granted. The appeal for entitlement to a temporary 100 percent evaluation due to hospitalization for psychiatric treatment has been withdrawn and is dismissed. A total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) has been withdrawn and is dismissed. The appeal for entitlement to service connection for hypertension has been withdrawn and is dismissed. FINDINGS OF FACT 1. The Veteran's acquired psychiatric disability was productive of total occupational and social impairment for the entirety of the appeal period. 2. At his February 2022 hearing, prior to the promulgation of a decision in the appeal, the Veteran explicitly and unambiguously withdrew his appeal of the issue of entitlement to a temporary 100 percent evaluation due to hospitalization for psychiatric treatment with full knowledge of the consequences. 3. At his February 2022 hearing, prior to the promulgation of a decision in the appeal, the Veteran explicitly and unambiguously withdrew his appeal of the issue of entitlement to TDIU with full knowledge of the consequences. 4. At his February 2022 hearing, prior to the promulgation of a decision in the appeal, the Veteran explicitly and unambiguously withdrew his appeal of the issue of entitlement to service connection for hypertension with full knowledge of the consequences. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 100 percent for an acquired psychiatric disability, to include PTSD with unspecified depressive disorder, prior to October 1, 2017, are met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2020). 2. The criteria for withdrawal of the appeal for entitlement a temporary 100 percent evaluation due to hospitalization for psychiatric treatment have been met. 38 U.S.C. § 7105 (2018); 38 C.F.R. §§ 19.55, 20.205 (2020). 3. The criteria for withdrawal of TDIU are have been met. 38 U.S.C. § 7105 (2018); 38 C.F.R. §§ 19.55, 20.205 (2020). 4. The criteria for withdrawal of the appeal for entitlement to service connection for hypertension are met. 38 U.S.C. § 7105 (2018); 38 C.F.R. §§ 19.55, 20.205 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to December 1969. This appeal is before the Board of Veterans' Appeals (Board) from February 2017, June 2017, July 2017, and August 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2022, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript has not yet been associated with the claims file. However, there is no prejudice to the Veteran from adjudicating the appeal at this time as the issue of entitlement to an increased rating for PTSD with unspecified depressive disorder is being granted in full and the Veteran has withdrawn the remaining issues. 1. Entitlement to an initial evaluation in excess of 50 percent for an acquired psychiatric disability, to include PTSD with unspecified depressive disorder, prior to October 1, 2017 The Veteran claims an increased rating for his mental health disability. He is currently in receipt of a 50 percent rating from November 28, 2016 to July 31, 2017, a temporary 100 percent rating for hospitalization from July 31, 2017 to October 1, 2017, and a schedular 100 percent rating thereafter. Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Diagnostic Code 9411 of 38 C.F.R. § 4.130 specifically addresses PTSD; however, all psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, the Veteran's currently assigned 50 percent rating is warranted for 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; and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. A total schedular rating of 100 percent is 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran's 50 percent rating currently assigned prior to October 2017 is based on a January 2017 VA examination at which the examiner found his disability to be productive of occupational and social impairment with reduced reliability and productivity. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty establishing and maintaining relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran's currently assigned 100 percent rating is based on a January 2018 VA examination at which the examiner found the disability to be productive of total occupational and social impairment. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once per week, near-continuous panic or depression affecting ability to function, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining relationships, difficulty in adapting to stress, suicidal ideation, and impaired impulse control, such as unprovoked irritability with periods of violence. The Board finds that staged ratings are not appropriate for the Veteran's mental health disability. While the January 2018 VA examination documents symptoms more severe than those noted at the January 2017 VA examination, his treatment records reflect not a sudden worsening but various intermittent periods of serious symptoms since his November 2016 claim. Most notably, the Veteran reported passive suicidal ideation in January 2017 and was hospitalized for suicidal ideation twice in May 2017. Such episodes alone are sufficient to show that the Veteran's impairment had reached its current levels prior to his hospitalization on July 31, 2017. As such, affording all benefit of the doubt to the Veteran, the Board finds that the Veteran's acquired psychiatric disability was productive of total occupational and social impairment for the entirety of the appeal period, and a 100 percent evaluation is therefore warranted. 2. Entitlement to temporary 100 percent evaluation due to hospitalization for psychiatric treatment 3. Entitlement to a TDIU 4. Entitlement to service connection for hypertension 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, 20.205. Withdrawal may be made by a veteran or by his or her authorized representative. Id. Withdrawal must be 1) explicit, 2) unambiguous, and 3) done with a full understanding of the consequences of such action by the appellant. Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011). (Continued on the next page) During the February 2022 pre-hearing conference and also during the hearing, prior to the promulgation of a decision in the appeal, the Veteran explicitly and unambiguously withdrew the appeal of the issues of entitlement to a temporary 100 percent evaluation due to hospitalization for psychiatric treatment, entitlement to a TDIU, and entitlement to service connection for hypertension. He did so in the company of his attorney with a full understanding of the consequences of withdrawal. As to these issues there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these claims and they are dismissed. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Gallagher, 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.