PSYCHONEUROTIC DISORDERS

NEIL T. WERNER · 2025 · Case ID: 25002813

MIXED

Summary

The veteran, who served in the Navy and Army from March 1977 to March 1981 and March 1983 to February 1984, appeals the denial of increased ratings for an acquired psychiatric disorder and Cushing's Syndrome, as well as service connection for several other conditions. The Board denied the claim for an increased rating for the acquired psychiatric disorder, finding that while the veteran experienced moderate impairment and occupational/social difficulties, the evidence did not meet the criteria for a 70% or 100% rating at any point during the appeal period. The Board noted the veteran's TDIU status but clarified it was based on a combination of conditions, not solely the psychiatric disorder. The claim for an increased rating for Cushing's Syndrome was also denied, as the evidence did not support a rating higher than the existing 30% based on residuals, and specific criteria for higher ratings were not met. Several other claims for service connection and an increased rating for left ear hearing loss were dismissed due to withdrawal by the veteran's representative. The claim for Meniere's syndrome, asserted as secondary to Cushing's syndrome, was remanded for further development, including a new medical opinion to clarify the relationship between the conditions.

Rationale

Evidence did not meet criteria for 70% or 100% rating.; GAF scores of 60 indicated moderate impairment.; TDIU grant was based on multiple conditions, not solely psychiatric disorder.

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

9400

Docket No.

04-44 089

Full Decision Text

Citation Nr: 25002813
Decision Date: 02/26/25 Archive Date: 02/26/25

DOCKET NO. 04-44 089
DATE: February 26, 2025

ORDER

Entitlement to an initial rating in excess of 50 percent for an acquired psychiatric disorder at any time from March 10, 1995, is denied.

Entitlement to a rating in excess of 30 percent for Cushing's Syndrome is denied.

Entitlement to service connection for right ear hearing loss is dismissed.

Entitlement to service connection for fibromyalgia is dismissed.

Entitlement to service connection for vaginal tumors, to include as secondary to service-connected disabilities, is dismissed.

Entitlement to service connection for a chronic disability manifested by poor wound healing and bruising, to include as secondary to service-connected disabilities, is dismissed.

Entitlement to service connection for a chronic disability manifested by thyroid deficiency, cessation of menses, and loss of sex drive, to include as secondary to service-connected disabilities, is dismissed.

Entitlement to service connection for a pineal gland tumor, to include as secondary to service-connected disabilities, is dismissed.

Entitlement to a compensable rating for left ear hearing loss, to include on an extraschedular basis, is dismissed.

Entitlement to an effective date earlier than December 23, 2016, for the award of service connection for left ear hearing loss is dismissed

REMANDED

Entitlement to service connection for Meniere's syndrome (claimed as vertigo) is remanded.

FINDINGS OF FACT

1. From March 10, 1995, the most probative evidence of record shows the Veteran's acquired psychiatric disorder was manifested by adverse symptomatology that equated to considerable impairment in the ability to establish or maintain effective or favorable relationships with people, and psychoneurotic symptoms that resulted in such reduction in reliability, flexibility, and efficiency levels as to produce considerable industrial impairment but not manifested by adverse symptomatology that equated to at least severe impairment in the ability to establish and maintain effective or favorable relationships with people with psychoneurotic symptoms of such severity and persistence that she had severe impairment in her ability to obtain or retain employment.

2. From November 7, 1996, the most probative evidence of record shows the Veteran's acquired psychiatric disorder was manifested by adverse symptomatology that equated to occupational and social impairment with reduced reliability and productivity but not manifested by adverse symptomatology that equated to at least adverse symptomatology that equated to at least occupational and social impairment, with deficiencies in most areas.

3. Prior to November 2, 2017, the most probative evidence of record shows that the Veteran's Cushing's syndrome was manifested by adverse symptomatology that equated to Cushing's syndrome with striae, obesity, moon face, glucose intolerance, and vascular fragility but not loss of muscle strength and enlargement of pituitary or adrenal gland.

4. From November 2, 2017, the most probative evidence of record shows that the Veteran's Cushing's syndrome was manifested by adverse symptomatology that equated to Cushing's syndrome with striae, obesity, moon face, glucose intolerance, and vascular fragility but not with proximal upper or lower extremity muscle wasting that results in inability to rise from squatting position, climb stairs, rise from a deep chair without assistance, or raise arms.

5. On July 5, 2023, prior to the promulgation of a decision in the appeal, the Veterans' Administration received notification from the Veteran, through her authorized representative, that she was requesting withdrawal of her appeal regarding the issues of (1) entitlement to service connection for right ear hearing loss; (2) entitlement to service connection for fibromyalgia; (3) entitlement to service connection for vaginal tumors, to include as secondary to service-connected disabilities; (4) entitlement to service connection for a chronic disability manifested by poor wound healing and bruising, to include as secondary to service-connected disabilities; (5) entitlement to service connection for chronic disability manifested by thyroid deficiency, cessation of menses, and loss of sex drive, to include as secondary to service-connected disabilities; (6) entitlement to service connection for a thyroid deficiency and pineal gland tumor; (7) entitlement to a compensable rating for left ear hearing loss, to include on an extraschedular bases; and (8) entitlement to an effective date earlier than December 23, 2016, for the award of service connection for left ear hearing loss.

CONCLUSIONS OF LAW

1. The criteria for an initial disability rating in excess of 50 percent for an acquired psychiatric disorder have not been met at any time from March 10, 1995. 38 U.S.C. §§ 1155, 5107; 38
enses, and loss of sex drive, to include as secondary to service-connected disabilities; (6) entitlement to service connection for a thyroid deficiency and pineal gland tumor; (7) entitlement to a compensable rating for left ear hearing loss, to include on an extraschedular bases; and (8) entitlement to an effective date earlier than December 23, 2016, for the award of service connection for left ear hearing loss.

CONCLUSIONS OF LAW

2. The criteria for entitlement to a disability rating in excess of 30 percent for Cushing's syndrome have not been met at any time during the pendency of the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.119, Diagnostic Code 7907 (2017); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7907.

3. The criteria for withdrawal of the appeals regarding the issues of (1) entitlement to service connection for right ear hearing loss; (2) entitlement to service connection for fibromyalgia; (3) entitlement to service connection for vaginal tumors, to include as secondary to service-connected disabilities; (4) entitlement to service connection for a chronic disability manifested by poor wound healing and bruising, to include as secondary to service-connected disabilities; (5) entitlement to service connection for chronic disability manifested by thyroid deficiency, cessation of menses, and loss of sex drive, to include as secondary to service-connected disabilities; (6) entitlement to service connection for a thyroid deficiency and pineal gland tumor; (7) entitlement to a compensable rating for left ear hearing loss, to include on an extraschedular bases; and (8) entitlement to an effective date earlier than December 23, 2016, for the award of service connection for left ear hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from March 1977 to March 1981 and from March 1983 to February 1984.

The Veteran had a hearing before the undersigned in April 2010. A transcript has been associated with the file.

The appeal has a complex procedural history which includes multiple prior decisions and/or remands by the Board of Veterans' Appeals; Department of Veterans Affairs (Board) dated in December 2010, June 2013, March 2016, November 2017, and June 2021, with appeals to the United States Court of Appeals for Veterans Claims (Court) and a July 2017 Court order and a November 2019 Court decision.

As to the July 2017 Court order, it incorporated the parties Joint Motion for Partial Remand (JMPR) and vacated and remanded the March 2016 Board decision to the extent that it denied service connection for fibromyalgia, a chronic disability manifested by poor wound healing and bruising, a thyroid disability, a pineal gland tumor, and an increased rating for Cushing's Syndrome.

As to the November 2019 Court decision, it set aside and remanded the Board's November 2017 decision that denied an effective date before August 1, 2003, for the grant of service connection for an acquired psychiatric disorder.

Additional details regarding the procedural and factual history can be found in the earlier December 2010, June 2013, March 2016, November 2017, and June 2021 Board decisions and/or remands and in the interest of brevity will not again be discussed in this decision except as follows.

In this regard, in its June 2021 decision the Board granted entitlement to an effective date of March 10, 1995, but no earlier, for the award of service connection for an acquired psychiatric disorder. The Board also bifurcated the Veteran's claim for an increased rating for her service-connected acquired psychiatric disorder. In that regard, the Board granted at least a 50 percent rating from March 10, 1995, and remanded the claim for consideration of a disability rating in excess of
2013, March 2016, November 2017, and June 2021 Board decisions and/or remands and in the interest of brevity will not again be discussed in this decision except as follows.

In this regard, in its June 2021 decision the Board granted entitlement to an effective date of March 10, 1995, but no earlier, for the award of service connection for an acquired psychiatric disorder. The Board also bifurcated the Veteran's claim for an increased rating for her service-connected acquired psychiatric disorder. In that regard, the Board granted at least a 50 percent rating from March 10, 1995, and remanded the claim for consideration of a disability rating in excess of 50 percent since March 10, 1995, under the criteria for rating mental disorders in effect both prior to and since November 7, 1996.

Beyond the above, the Board notes that the Veteran is in receipt of a total disability rating based on individual unemployability (TDIU) from March 10, 1995.

I. Post-Remand Compliance

i. The curricula vitae request

The Veteran's representative requested the curricula vitae (CVs) for the Veteran's VA examiners.

In this regard, the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a panel decision in Francway v. Wilkie, affirming the decision of the Court of Appeals for Veterans Claims which found that when a challenge to the competency of a medical examiner is raised, the Board must make a factual finding as to whether the medical examiner is competent. Francway v. Wilkie, 940 F.3d 1304, 1307-08 (Fed. Cir. 2019). The Court held that the challenge must be more than a general assertion that an examination or opinion is inadequate and must be raised by the Veteran in the first instance. Id. A challenge raised under the above circumstances rebuts the presumption of competency and VA must satisfy its burden of persuasion as to the examiner's qualifications by providing the Veteran with information about the qualifications of the examiner. "Once the request is made for information as to the competency of the examiner, the veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner." Furthermore, the Federal Circuit has observed that the question of whether an examiner is competent and whether he or she has rendered an adequate examination are two separate inquiries. Francway, 940 F.3d at 1309.

Therefore, in its June 2021 decision the Board remanded several claims to comply with the Veteran's representative's requests for the CVs for her VA examiners because, as notified in April 2021, "the Board of Veterans' Appeals does not gather or maintain documents of that nature and they do not appear in the Veteran's claim file."

Thereafter, the record shows that the Agency of Original Jurisdiction (AOJ) sent to the Veteran and her attorney such materials on June 24, 2022, October 19, 2022, October 20, 2022, October 25, 2022, and January 23, 2023.

Thus, the Board finds that the AOJ has substantially complied with the Board's prior remand directives insofar as it asked the AOJ to provide the various examiners' qualifications to the Veteran and her representative. Stegall v. West, 11 Vet. App. 268 (1998).

ii. Other development

In its June 2021 decision the Board also remanded the Veteran's claim for an increased rating for her acquired psychiatric disorder to obtain a new VA examination to determine the current severity and to have the AOJ adjudicate the increased initial rating claim under the "new and old" criteria for evaluating mental disorders.

Following the Board's June 2021 remand, the AOJ obtained a new VA psychiatric examination to ascertain the current severity of the Veteran's acquired psychiatric disorder. Likewise, in a January 2023 SSOC, the AOJ readjudicated the claim under the rating criteria in effect both prior to and since November 7, 1996. The Board finds that the AOJ substantially complied with its June 2021 remand directives. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47. Therefore, the Board will proceed with its de novo appellate review of the claim.

In June 2021, the Board remanded the claim of entitlement to a rating in excess of 30 percent for Cushing's Syndrome to provide the Veteran with new examination that considered and addressed any relevant evidence added to the record since she
readjudicated the claim under the rating criteria in effect both prior to and since November 7, 1996. The Board finds that the AOJ substantially complied with its June 2021 remand directives. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47. Therefore, the Board will proceed with its de novo appellate review of the claim.

In June 2021, the Board remanded the claim of entitlement to a rating in excess of 30 percent for Cushing's Syndrome to provide the Veteran with new examination that considered and addressed any relevant evidence added to the record since she underwent a previous examination of her Cushing's Syndrome in January 2017. See 38 U.S.C. § 5103A(d); Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA's duty to assist includes conducting a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment).

The Veteran was afforded a new VA endocrine diseases examination in August 2022. The examiner reviewed the relevant records and performed a comprehensive evaluation of the Veteran's service-connected Cushing's Syndrome. The Board finds that the AOJ has substantially complied with its June 2021 remand directives. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47.

Given the above, the Board finds that further delay by remanding the appeal to undertaking additional development is not required. See 38 U.S.C. § 5103A(b); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided).

II. The Increased Rating Claims

The Veteran is seeking an initial rating in excess of 50 percent for an acquired psychiatric disorder at any time from March 10, 1995, as well as a rating in excess of 30 percent for Cushing's syndrome.

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Regulations require that where there is a question as to which of two evaluations is to 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.

In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and
so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

i. Entitlement to an initial rating in excess of 50 percent for an acquired psychiatric disorder at any time from March 10, 1995.

The Veteran's acquired psychiatric disorder is rated as 50 percent disabling from March 10, 1995, under first 38 C.F.R. § 4.132, Diagnostic Code 9412 (1995) and thereafter 38 C.F.R. § 4.130, Diagnostic Code 9400 (2025).

The Board has considered the Veteran's claim under the laws and regulations that were in effect at the time of the Veteran's claim in March 1995.

In this regard, the Board notes that while it may apply the pre-November 7, 1996, rating criteria at all times from March 10, 1995, the post-November 7, 1996, rating criteria can only apply from November 7, 1996. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

Prior to November 7, 1996, under the General Rating Formula for Psychoneurotic Disorders, a 30 percent rating was assigned where there was a definite impairment in the ability to establish or maintain effective and wholesome relationships with people; psychoneurotic symptoms resulted in such reduction in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impairment.

A 50 percent evaluation required considerable impairment in the ability to establish or maintain effective or favorable relationships with people, and psychoneurotic symptoms that resulted in such reduction in reliability, flexibility, and efficiency levels as to produce considerable industrial impairment.

A 70 percent evaluation required severe impairment in the ability to establish and maintain effective or favorable relationships with people; this meant that the psychoneurotic symptoms were of such severity and persistence that there was severe impairment in the ability to obtain or retain employment.

A 100 percent evaluation required virtual isolation in the community, totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, or demonstrable inability to obtain or retain employment. These criteria provided three independent bases for granting a 100 percent disability evaluation. See Johnson v. Brown, 7 Vet. App. 95, 97 (1994).

On November 7, 1996, the rating criteria for psychiatric disorders were revised. Since that date, psychiatric disorders are evaluated pursuant to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130.

Under the General Rating Formula, a 30 percent rating is warranted when the evidence shows occupational and social impairment with an 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). Id.

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. Id.

A 70 percent rating is warranted when there is 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;
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. Id.

A 70 percent rating is warranted when there is 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 depressive disorder 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 work-like setting); 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).

In reviewing the evidence, the Board has considered the relevant criteria and has taken an expansive view as to which of the laws and regulations would provide the Veteran the highest benefit.

Initially, the Board notes that this claim for a higher rating for an acquired psychiatric disorder has been pending since March 10, 1995. Therefore, the Board's adjudication of this claim can include a discussion of the Global Assessment of Functioning (GAF) scores found in the record. See Golden v. Shulkin, 29 Vet. App. 221 (2018).

Next, the Board notes that with the above criterion in mind, the record shows that in the late 1980s the Veteran was seen in the emergency room for anxiety and prescribed medication. During this time, the Veteran was seen for symptoms suggestive of suicidal depression. She continually reported panic and anxiety. During this period, she was also having trouble with her employment.

In the 1990s, the Veteran continued to suffer from panic and anxiety and trouble at work. In May 1991, Social Security Administration (SSA) records show the Veteran was found to be disabled due to her mental health. She was admitted to the hospital for her condition and throughout the 1990s, continued to seek treatment for her condition, being diagnosed with Cushing's Syndrome in 1987 and having severe panic attacks and depression. The Veteran continued to take medication for her mental health, which continued to prevent her from working.

In the 2000s, the Veteran continued treatment and medication for depression, panic, agoraphobia, and was still unable to work and was found to have a GAF score of 60.

The Veteran was seen in November 2015 for her psychiatric disability. She reported no hospitalizations due to this disability, but did report panic attacks, depression, and taking medication for her mental health. The examiner noted the Veteran's grooming was fair, but that she had an offensive body odor. The examiner also reported the Veteran's speech was clear, she was oriented, but that she was tense and agitated and her mood seemed depressed. The Veteran also reported sleep disturbance and a loss of weight, but no reports of hallucinations.

The Veteran had an examination for her mental health in January 2017 in which the examiner opined the Veteran's mental health lead to occupational and social impairment with reduced reliability and productivity. The examiner noted the Veteran was divorced and that she said it was due to a lot of stress and that her panic attacks "drove him bonkers." The Veteran and her spouse later reconciled and got remarried. The Veteran had a friend and had a good relationship with her daughter, parents, and siblings. Regarding her occupational history, the examiner noted that she had trouble finding work due to her physical limitations and that in 1989/1990, she got a job working in the parts department at an aircraft company but stopped working due to severe panic attacks. The Veteran'' symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once per week, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances. The examiner reported the Veteran had fair grooming and hygiene, that her speech was within normal limits and that her thoughts were logical, and goal directed. The examiner also stated the Veteran's memory was within normal limits. The examiner reported the Veteran had no suicidal ideations or homicidal ideations, and no hallucinations, but did have anxiety and panic symptoms.

The Veteran had an examination for her acquired psychiatric disorder in July 2019 in which the examiner opined the Veteran's mental health condition led to occupational and social impairment with reduced reliability and productivity. The examiner reported relevant medical history, including that the Veteran did warehouse work for a year after leaving service, but developed a mental disorder and stopped working in 1991 and has not worked since. The examiner noted that the Veteran had completed her Bachelor of Arts degree in 2006 but had not worked. The Veteran reported first having mental health problems in 1988 and being hospitalized in 1993 for panic attacks. The Veteran's symptoms included depressed mood, anxiety, suspiciousness, panic attacks, mild memory loss, problems with her speech, impaired judgment, disturbances of motivation and mood, difficulty establishing relationships, and inability to maintain relationships.

The Veteran was afforded yet another VA psychiatric examination in August 2022. The examiner diagnosed the Veteran as having an anxiety disorder due to her service-connected Cushing's disease. The examiner found that the Veteran's anxiety disorder was primarily manifested by depressed mood; anxiety; panic attacks more than once a week; chronic sleep impairment; disturbances of motivation and mood; and difficulty adapting to stressful circumstances, including work or a work like setting.

Regarding the Veteran's social and family history, the examiner observed the following:

She grew up in a middle-class family of hard-working people in Oregon and Washington states. Her mother worked for a veterinarian, and she also held a second part-time job as a waitress. They went to good schools. Her father lived in Portland with his second wife and worked on the railroad for 44 years. She's always had a good relationship with him, although he was distant; they kept in touch. She has a full sister, two half-sisters and a half-brother.

She and her husband met in the Navy in 1977. They married in 1980, having shared an apartment until they got married. She has one adult child.

She has a child (got pregnant in September 1981); they were never eating "well" like they should have been. She blacked out a lot during pregnancy. The patient is close to her sister who lives close by her in Alabama. The patient has a 40-year-old daughter with whom she has daily contact. She (her daughter) is her best friend. Her daughter, son-in-law, and 10-year-old granddaughter are all in the area. However, she feels some tension around her granddaughter who talks non-stop, which she (the patient) finds somewhat stressful. She has backed away from the church. When she first returned to Alabama, she returned to church but found a lot of things she disagreed with and backed away (without confronting). She stated that she has a few friends. She is fairly reclusive. She spends time with her husband, daughter, son-in-law, and sister, who comprise her support system.

Regarding the Veteran's occupational and education history, the examiner noted the following:

She was a high school graduate when she entered the Navy. She found a lot of pleasure
-in-law, and 10-year-old granddaughter are all in the area. However, she feels some tension around her granddaughter who talks non-stop, which she (the patient) finds somewhat stressful. She has backed away from the church. When she first returned to Alabama, she returned to church but found a lot of things she disagreed with and backed away (without confronting). She stated that she has a few friends. She is fairly reclusive. She spends time with her husband, daughter, son-in-law, and sister, who comprise her support system.

Regarding the Veteran's occupational and education history, the examiner noted the following:

She was a high school graduate when she entered the Navy. She found a lot of pleasure in education and did fairly well in her electives, and passed math, English with Cs. She worked during high school at a pet shop. She worked at a diaper service, as well, a job she worked for a year.

She served in the Navy active duty 1977 to 1981; her job was a wheel mechanic/hydraulic technician. She worked on ground support equipment, supporting P3 aircraft. She served in Navy Reserves 1981 to 1983. She served in the Army from 1983 to February 1984. In the Army, she worked on 10 ton to 80-ton tractors; she went to school, taking hands-on and written tests and passing them.

She was not successful in finding a mechanic job after the Navy. She worked in a shipping/receiving department after her surgery to remove her adrenal gland in 1987. She was working with a forklift in their aircraft stock rooms. She experienced many panic attacks. She stepped away from the job because of overly frequent trips to the ER; however, her boss thought highly of her and that she did a good job. She applied for and was granted Social Security Disability in 1991.

Based on a comprehensive review of the Veteran's medical records and the observations made by the examiner during the evaluation, the VA examiner ultimately concluded that the Veteran's psychiatric symptoms resulted in "occupational and social impairment with reduced reliability and productivity."

The Veteran's VA treatment records also indicate that she has panic and anxiety attacks and that she had sought therapy during the period on appeal. See, e.g., June 1994 treatment record. The Veteran has also continued to be depressed, but in generally, is dressed appropriately, had normal speech, with linear thoughts and no psychosis. However, the Veteran has routinely denied suicidal or homicidal ideations. See, e.g., October 2003, April 2004, June 2005, August, November 2006, January 2009, April 2010 treatment records.

The Court has held that, "it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under Diagnostic Code 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014) (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms).

Therefore, when considering the frequency, severity, and duration of the Veteran's impairment to assess her disability picture and when resolving all reasonable doubt in her favor, the Board finds that the most probative evidence of record are the above medical records demonstrating that the Veteran's acquired psychiatric disorder has been manifested by adverse symptomatology that most closely approximates the criteria for a 50 percent rating at all times since March 10, 1995. See Owens, supra.

The Board has reached this conclusion because, among other things, during the pendency of the appeal the Veteran's adverse symptomatology includes, among other things, panic attacks that render being around others or working with others difficult and she has been found to have disturbances of motivation and mood, as well as trouble establishing and maintaining effective work and social relationships and it finds that her panic, anxiety, and agoraphobia clearly lead to a reduced ability to establish or maintain effective or favorable relationships with people. See 38 C.F.R. § 4.132 (1995); 38 C.F.R. § 4.130 (2025); Owens, supra; Fenderson, supra. Moreover, in its June 2021 decision, the Board already found that the Veteran's above symptoms warranted an initial 50 percent disability rating from March 10, 1995.

However, as to a rating in excess of 50 percent from
difficult and she has been found to have disturbances of motivation and mood, as well as trouble establishing and maintaining effective work and social relationships and it finds that her panic, anxiety, and agoraphobia clearly lead to a reduced ability to establish or maintain effective or favorable relationships with people. See 38 C.F.R. § 4.132 (1995); 38 C.F.R. § 4.130 (2025); Owens, supra; Fenderson, supra. Moreover, in its June 2021 decision, the Board already found that the Veteran's above symptoms warranted an initial 50 percent disability rating from March 10, 1995.

However, as to a rating in excess of 50 percent from March 10, 1995, the Board finds that the Veteran's acquired psychiatric disorder does not meet these criteria at any time during the appeal. In that regard, the Board has considered both the old and new criteria for rating her acquired psychiatric disorder. See Kuzma, supra.

As noted above, to get to at least the next highest rating of 70 percent under the old criteria (pre-November 7, 1996) at any time from March 10, 1995, the evidence would have to show that the Veteran's psychiatric symptoms were productive of severe impairment in the ability to establish and maintain effective or favorable relationships with people; this meant that the psychoneurotic symptoms were of such severity and persistence that there was severe impairment in the ability to obtain or retain employment. Similarly, get to at least the next highest rating of 70 percent under the new criteria (post-November 7, 1996) at any time from November 7, 1996, the evidence would have to demonstrate that the Veteran's symptomatology and disability picture resulted in 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 depressive disorder 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 work-like setting); inability to establish and maintain effective relationships.

However, based on a comprehensive review of the evidence, the Board finds that, at no point during the appeal period (from March 10, 1995) did the Veteran's service-connected psychiatric disorder manifest to a level of severity that would warrant at least a 70 percent rating under the old or new criteria. In this regard, the Board finds it significant that, while the evidence shows that the Veteran had both social and occupational problems due to her psychiatric disorder, she also maintained relationships with her family members and received positive feedback from her supervisor at work regarding her ability to do her job during the pendency of the appeal. See Owens, supra.

Nevertheless, the Veteran's private attorney argues that the medical and lay evidence since 1995 "proves that the severity of [the Veteran's] psychiatric disorders causes her to be 'demonstrably unable to obtain or retain employment.'" The Veteran's attorney cites Johnson v. Brown and highlights a number of medical records in the claims file that he contends provides support for this assertion. To that end, the Veteran's attorney argues that because she was unable to obtain or retain employment since March 10, 1995 (hence the Board's grant of a TDIU back to March 10, 1995), the evidence also supports the assignment of a 100 percent disability rating for her acquired psychiatric disorder from that date under at least the old rating criteria.

In this regard, the Board notes that the AOJ originally granted entitlement to a TDIU, effective October 14, 2015, based primarily on the Veteran's service-connected acquired psychiatric disorder precluding her from being able to obtain and maintain substantially gainful employment. See January 2020 rating decision.

However, by contrast, when the Board granted an earlier effective date of March 10, 1995, for the award of a TDIU, it did not base that grant solely on the Veteran's acquired psychiatric disorder. Rather, the Board found that "the Veteran's service-connected disabilities prevent[ed] her from securing or following a 'substantially gainful' occupation given her prior vocational history, work experience, and the impact [that] her service-connected acquired psychiatric disorder, Cushing's syndrome, and left ear hearing loss [had] on obtaining and maintaining substantially gainful non-sedentary employment and sedentary employment, including in her past employment as a mechanic, because of the problems they
rating decision.

This fact is important because it undermines the private attorney's argument that the Veteran's acquired psychiatric disorder caused her to be "demonstrably unable to obtain or retain employment" since March 10, 1995. The Board acknowledges that her acquired psychiatric disorder (rated 50 percent disabling) contributed to her unemployability but was not the sole "demonstratable" reason for it. As observed by the Board in its decision, the Veteran's Cushing syndrome (rated 30 percent disabling) and left ear hearing loss (rated 0 percent disabling) also contributed to her unemployability.

The Board also finds that the GAF scores of 60 found in the Veteran's treatment records weight against finding that she met the criteria for a rating in excess of 50 percent for her acquired psychiatric disorder because a GAF score of 51 to 60 indicates that her examiners believed that her adverse symptomatology was limited to"[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or schooling function (e.g., few friends, conflicts with peers or co-workers)." See AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994) (DSM IV).

Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not meet the criteria for a rating in excess of 50 percent under the old criteria at any time from March 10, 1995. See 38 C.F.R. § 4.132 (1995); Owens, supra.

Next, as to a rating in excess of 50 percent from November 7, 1996, under the new rating criteria, and, as discussed above, the VA examiners who evaluated the Veteran's acquired psychiatric disorder each found that her acquired psychiatric disorder, at its worst, resulted in difficulty establishing relationships and the inability to maintain relationships which opinions the Board finds are the most probative evidence of record because they are supported by both examinations of the Veteran and her treatment records. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."); Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the veteran's position).

Likewise, the Board finds that any claim by the Veteran's representative that the Board's earlier finding that the Veteran met the criteria for a TDIU from March 10, 1995, amounts to a concession that she met the criteria for a higher rating under 38 C.F.R. § 4.130 is also without merit. The Board has reached this conclusion because the criteria for a TDIU under 38 C.F.R. § 4.16 requires only an inability to secure or follow a substantial gainful occupation due to a combination of the problems caused by the Veteran's service-connected disabilities and a higher rating under 38 C.F.R. § 4.130 requires the service connected acquired psychiatric disorder, acting alone, to be the cause of both occupational and social impairment. See Owens, supra.

When comparing the Veteran's symptoms to
for a TDIU from March 10, 1995, amounts to a concession that she met the criteria for a higher rating under 38 C.F.R. § 4.130 is also without merit. The Board has reached this conclusion because the criteria for a TDIU under 38 C.F.R. § 4.16 requires only an inability to secure or follow a substantial gainful occupation due to a combination of the problems caused by the Veteran's service-connected disabilities and a higher rating under 38 C.F.R. § 4.130 requires the service connected acquired psychiatric disorder, acting alone, to be the cause of both occupational and social impairment. See Owens, supra.

When comparing the Veteran's symptoms to the new rating criteria, the Board similarly finds that the Veteran's symptoms and disability picture most nearly approximated the criteria for the 50 percent rating at all times from November 7, 1996, but did not result in "occupational and social impairment, with deficiencies in most areas" (the criteria for the 70 percent rating) or "total social and occupational impairment" (the criteria for the 100 percent rating). See 38 C.F.R. § 4.130 (2025); Owens, supra.

Lastly, the Board has not overlooked the many lay claims from the Veteran and others found in the record regarding the observable manifestations of her disability. However, while lay persons are competent and credible to report on what comes to them via their own senses, the Board finds that they are not competent to opine as to the social and occupational impairment caused by the Veteran's acquired psychiatric disorder because this is a medical finding. See Davidson, supra. The Board also finds that the findings by the VA examiners as to this question are more probative than any lay claims to the contrary because the examiners have greater medical training. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data).

As the persuasive weight of the evidence is not approximately in equipoise in support of the claim for an increased evaluation in excess of 50 percent since March 10, 1995, the benefit-of-the-doubt doctrine does not apply, and the claim is denied. 38 U.S.C. § 5107; Lynch, supra.

ii. Entitlement to a rating in excess of 30 percent for Cushing's Syndrome.

The Veteran's service-connected Cushing's Syndrome is rated under 38 C.F.R. § 4.119, Diagnostic Code 7907. During the pendency of the appeal, the rating criteria for evaluating endocrine disabilities under § 4.119 were amended, effective November 2, 2017.

Once again, the Board will consider the Veteran's claim under the old and new Diagnostic Code with it applying the old rating criteria at all times during the pendency of the appeal and the new criteria from November 2, 2017. See Kuzma, supra.

Prior to November 2, 2017, a 30 percent rating was assigned for Cushing's syndrome with striae, obesity, moon face, glucose intolerance, and vascular fragility. A 60 percent rating was warranted for loss of muscle strength and enlargement of pituitary or adrenal gland. A 100 percent rating was warranted for an active, progressive disease including loss of muscle strength, areas of osteoporosis, hypertension, weakness, and enlargement of pituitary or adrenal gland, is assigned. The Note to Diagnostic Code 7907 indicated, "With recovery or control, evaluate as residuals of adrenal insufficiency or cardiovascular, psychiatric, skin, or skeletal complications under appropriate diagnostic code."

Since November 2, 2017, Diagnostic Code 7907 provides a 30 percent rating for Cushing's syndrome with striae, obesity, moon face, glucose intolerance, and vascular fragility; a 60 percent rating for Cushing's syndrome with proximal upper or lower extremity muscle wasting that results in inability to rise from squatting position, climb stairs, rise from a deep chair without assistance, or raise arms; and a 100 percent rating for active, progressive disease, including areas of osteoporosis, hypertension, and proximal upper and lower extremity muscle wasting that results in inability to rise from squatting position, climb stairs, rise from a deep chair without assistance, or raise arms. The amended Note to Diagnostic Code 7907 reflects, "The evaluations specifically indicated under this diagnostic code shall continue for six months following initial diagnosis. After six months, rate on residuals under the appropriate diagnostic code(s) within the appropriate body system(s)."

With the above criteria in mind, the record
lower extremity muscle wasting that results in inability to rise from squatting position, climb stairs, rise from a deep chair without assistance, or raise arms; and a 100 percent rating for active, progressive disease, including areas of osteoporosis, hypertension, and proximal upper and lower extremity muscle wasting that results in inability to rise from squatting position, climb stairs, rise from a deep chair without assistance, or raise arms. The amended Note to Diagnostic Code 7907 reflects, "The evaluations specifically indicated under this diagnostic code shall continue for six months following initial diagnosis. After six months, rate on residuals under the appropriate diagnostic code(s) within the appropriate body system(s)."

With the above criteria in mind, the record shows that the Veteran underwent VA examinations of her Cushing's syndrome in February 1997, September 2003, December 2006, January 2008, April 2012, January 2017, and August 2022. Based on a comprehensive review of these examination reports, as well as the Veteran's VA and private medical records and lay statements, the Board finds that the Veteran's Cushing's syndrome does not warrant a higher disability rating. See Owens, supra.

The Board has reached this conclusion first and foremost because the Veteran's Cushing's syndrome was initially diagnosed in 1987. The AOJ granted service connection for the Veteran's Cushing's syndrome in a May 1997 rating decision and assigned a 30 percent disability rating, effective March 10, 1995. At that time, the Veteran's Cushing's syndrome was manifested by diffuse myalgias and fatigue; panic disorder with occasional attack; and muscular weakness with pain. It was not manifested by deossification of bones or osteoporosis. Additionally, there was evidence of a prior adrenalectomy in 1987. The AOJ found that the Veteran's symptoms most closely demonstrated evidence of "striae, obesity, moon face, glucose intolerance, and vascular fragility." The AOJ further found that a 60 percent rating was not warranted unless there was evidence of loss of muscle strength or enlargement of the pituitary gland.

The Board acknowledges that "muscular weakness" was observed during the Veteran's February 1997 VA examination. However, the pre-November 2, 2017, criteria are conjunctive, and Veteran's Cushing's syndrome would have to have both "loss of muscle strength and enlargement of pituitary or adrenal gland in order to warrant the 60 percent rating. According to the examination report, the Veteran underwent a left adrenalectomy in 1987 but there is no indication that it was due to an enlarged pituitary or adrenal gland. Furthermore, the Notes that accompany the pre- and post- November 2, 2017, criteria indicate that residuals of Cushing's syndrome should be rated under the appropriate diagnostic codes. Additional VA examination and treatment reports in the record occurred well after the initial six months following the diagnosis of Cushing's syndrome. At that point, the Veteran's residuals were, in fact, rated under other appropriate diagnostic codes. Even if the Board were to apply the pre-November 2, 2017, or post-November 2, 2017, criteria of Diagnostic Code 7907, the Board finds that the evidentiary record does not contain any evidence that would warrant increasing the currently assigned 30 percent rating under Diagnostic Code 7907.

In this regard, it is important for the Veteran to understand that not all evidence in this case supports the original assignment of a 30 percent disabling rating from March 10, 1995. In fact, there is significant evidence against the 30 percent finding. However, given how long the 30 percent rating has been in effect, it will remain undisturbed.

The Board has carefully reviewed the evidence and given due consideration to the arguments set forth by the Veteran's private attorney. However, the Veteran's multiple VA examinations over the years have not demonstrated that she had symptoms that warranted a higher rating under Diagnostic Code 7907. And, as noted above, any residuals of her Cushing's syndrome were already service connected and rated under other appropriate diagnostic codes (i.e. her acquired psychiatric disorder rated under Diagnostic Code 9400; her hypothyroidism, rated under DC 7903; and her scar associated with a left adrenal gland removal, rated under DC 7805 and DC 7802).

Despite the Veteran's assertions to the contrary, there is no competent, credible or probative evidence of record showing symptoms warranting a higher rating than 30 percent existed in this claim because there is no evidence of proximal upper or lower extremity muscle wasting that results in inability to rise from squatting position, climb stairs,
Diagnostic Code 7907. And, as noted above, any residuals of her Cushing's syndrome were already service connected and rated under other appropriate diagnostic codes (i.e. her acquired psychiatric disorder rated under Diagnostic Code 9400; her hypothyroidism, rated under DC 7903; and her scar associated with a left adrenal gland removal, rated under DC 7805 and DC 7802).

Despite the Veteran's assertions to the contrary, there is no competent, credible or probative evidence of record showing symptoms warranting a higher rating than 30 percent existed in this claim because there is no evidence of proximal upper or lower extremity muscle wasting that results in inability to rise from squatting position, climb stairs, rise from a deep chair without assistance, or raise arms, at any time during the appeal period. The persuasive weight of the evidence is against the claim, and a rating in excess of 30 percent for the Veteran's service-connected Cushing's syndrome is denied.

Lastly, the Board has not overlooked the many lay claims from the Veteran and others found in the record regarding the observable manifestations of her disability. However, while lay persons are competent and credible to report on what comes to them via their own senses, the Board finds that they are not competent to opine as to the impairment caused by the Veteran's Cushing's syndrome because this is a medical finding. See Davidson, supra. The Board also finds that the findings by the VA examiners as to this question are more probative than any lay claims to the contrary because the examiners have greater medical training. See Black supra.

As the persuasive weight of the evidence is not approximately in equipoise in support of the claim for an increased evaluation in excess of 30 percent, the benefit-of-the-doubt doctrine does not apply, and the claim is denied. 38 U.S.C. § 5107; Lynch, supra.

III. The Withdrawals

In regards to the claims of service connection for right ear hearing loss, fibromyalgia, vaginal tumors, a chronic disability manifested by poor wound healing and bruising, a chronic disability manifested by thyroid deficiency, cessation of menses, and loss of sex drive, and a pineal gland tumor as well as the claim for a compensable rating for left ear hearing loss, to include on an extraschedular basis, and the claim for an effective date earlier than December 23, 2016, for the award of service connection for left ear hearing loss, the Board notes that may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d). 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. 38 C.F.R. § 19.55.

Appeal withdrawals must include the name of the claimant, the applicable claim number, and a statement that the appeal is being withdrawn. 38 C.F.R. § 19.55. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety or list the issues withdrawn from the appeal. Id.

In its June 2021 decision, the Board remanded the claims of service connection for right ear hearing loss, fibromyalgia, vaginal tumors, a chronic disability manifested by poor wound healing and bruising, a chronic disability manifested by thyroid deficiency, cessation of menses, and loss of sex drive, and a pineal gland tumor as well as the claim for a compensable rating for left ear hearing loss, to include on an extraschedular basis, and the claim for an effective date earlier than December 23, 2016, for the award of service connection for left ear hearing loss.

In January 2023, the AOJ issued a supplemental statement of the case (SSOC) that denied those claims. In February 2023, the Veteran informed the VA that she wished to appeal all the decisions made in the January 2023 SSOC.

In July 2023, VA received correspondence from the Veteran's private attorney indicating that she wanted to withdraw specific claims from appellate consideration. In particular, the Veteran, through her appointed representative, explicitly indicated that she wished to withdraw the claims of entitlement to service connection for right ear hearing loss, fibromyalgia, vaginal tumors, a chronic disability manifested by poor wound healing and bruising, a chronic disability manifested by thyroid deficiency, cessation of menses, and loss of sex drive, and a pineal gland tumor as well as the claim for a compensable rating for left ear hearing loss, to include on an extraschedular
the Veteran informed the VA that she wished to appeal all the decisions made in the January 2023 SSOC.

In July 2023, VA received correspondence from the Veteran's private attorney indicating that she wanted to withdraw specific claims from appellate consideration. In particular, the Veteran, through her appointed representative, explicitly indicated that she wished to withdraw the claims of entitlement to service connection for right ear hearing loss, fibromyalgia, vaginal tumors, a chronic disability manifested by poor wound healing and bruising, a chronic disability manifested by thyroid deficiency, cessation of menses, and loss of sex drive, and a pineal gland tumor as well as the claim for a compensable rating for left ear hearing loss, to include on an extraschedular basis, and the claim for an effective date earlier than December 23, 2016, for the award of service connection for left ear hearing loss.

The July 2023 statement identifies the Veteran and the claim number as well as clearly indicates her intent to withdraw the issues specified above that were remanded by the Board in June 2021. The Veteran's authorized representative signed this written statement.

Given the above, the Board finds that the Veteran has withdrawn her appeal as to these issues and done so in the manner set out under 38 C.F.R. § 19.55. The July 2023 statement from the Veteran's authorized representative amounts to an explicit and unambiguous intent to withdraw the specified issues on appeal as required by DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011) because it was (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. Also 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).

As there remains no allegations of errors of fact or law for appellate consideration concerning these issues, the Board does not have jurisdiction to review these issues and they are dismissed.

REASONS FOR REMAND

Entitlement to service connection for Meniere's syndrome is remanded.

The Veteran contends that her Meniere's syndrome is related to her service-connected Cushing's syndrome. See July 10, 2023, Third-Party Correspondence.

In September 1987, the Veteran was first diagnosed with Cushing's syndrome. In February 1988 treatment records first documented the Veteran complaints of having dizziness. Her examiner stated that she was having "positional problems with vertigo. True vertiginous sensation particularly when lying and turns her head from one side to the other." In subsequent treatment records dated in April 1992, March 1994, May 1994, and February 1995 the Veteran continued to experience episodes of vertigo with her being diagnosed with Meniere's disease in February 1995. At that time, a computerized tomography (CT) of the head showed mild frontal lobe and cerebellar atrophy.

According to the Veteran's private attorney, the Veteran was experiencing episodes of vertigo in connection with her Cushing's syndrome as she had no history of dizziness or vertigo before February 1998.

Subsequent VA treatment records continued to document the Veteran's problems with balance/vertigo with an August 1995 VA examiner reporting that she had vertigo that prevented her from keeping her balance. Likewise, a subsequent August 1995 VA treatment record reported that the Veteran had a 112 year history of positional vertigo. Similarly, a September 1995 VA treatment records record noted that the Veteran follow-up with continued complaints of ear fullness and severe vertigo and an August 2019 VA treatment record reported that the Veteran was experiencing vertigo.

Following the Board's June 2021 remand, the Veteran's private attorney submitted a June 2023 medical opinion from D.J., MD, a Board-certified Neurologist. Dr. J. opined that the Veteran's neuropsychological symptoms of her Cushing's syndrome include vertigo. Dr. J. also opined that the Veteran's dizziness may be a primary manifestation of Cushing's syndrome, a secondary effect of a primary symptom of Cushing's syndrome, or a result of the treatment for her condition.

While Dr. J.'s opinion provides a general indication that there is a relationship between the Veteran's Meniere's syndrome and her service-connected Cushing's syndrome, it remains unclear (and somewhat speculative) as to whether the Veteran's vertigo/dizziness is merely a symptom associated with her Cushing's syndrome or whether there is a causal/aggravation relationship between the two disorders.
Dr. J. opined that the Veteran's neuropsychological symptoms of her Cushing's syndrome include vertigo. Dr. J. also opined that the Veteran's dizziness may be a primary manifestation of Cushing's syndrome, a secondary effect of a primary symptom of Cushing's syndrome, or a result of the treatment for her condition.

Under these circumstances, the Board finds it necessary to remand this matter for the AOJ to obtain a medical opinion from an appropriate examiner (i.e., a neurologist or similarly qualified doctor) who, after reviewing the objective medical evidence, including Dr. J.'s June 2023 medical opinion, can opine as to whether the Veteran's Meniere's syndrome is at least as likely as not proximately caused by or aggravated by her service-connected Cushing's syndrome.

In providing the VA examination and again adjudicating the claim the VA examiner and the AOJ should be mindful of the fact that the Court in Ward v. Wilkie, 31 Vet. App. 233 (2019) redefined the definition of aggravation to know include temporary flare-ups as well as the fact that in Spicer v. McDonough, 61 F.4th 1360, 1364 (Fed. Cir. 2023) the United States Court of Appeals for the Federal Circuit held that "[38 U.S.C.] § 1110 plainly requires compensation when a service-connected disease or injury is a but for cause of a present day disability."

While this issue is in Remand status any outstanding VA and private treatment records should also be obtained and associate with the record. See 38 U.S.C. § 5103A(b).

This issue is REMANDED for the following actions:

1. Obtain and associate with the claims file any outstanding VA treatment records.

2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding and pertinent private treatment records.

If possible, the Veteran or her representative should submit any new and pertinent evidence the Board/VA does not have (if any).

Any help with the above would be appreciated.

3. Schedule the Veteran for a VA examination with a suitably qualified medical professional to address her claim of service connection for Meniere's syndrome.

The claims folder should be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.

If the AOJ is unable to obtain a VA examination of the Veteran for any reason, the examiner should provide answers to the below questions based on the evidence of record to the extent possible.

Following consideration of the evidence of record (both lay and medical) and the results of the examination, if any, the examiner is asked to address the following:

a. Provide an opinion as to whether it is "at least as likely as not" that Meniere's syndrome had its' onset directly during the Veteran's service or is otherwise related to any event or injury during service.

b. Provide an opinion as to whether it is "at least as likely as not" that Meniere's syndrome manifested in the first post-service year.

c. Provide opinions as to whether any diagnosed acquired psychiatric Meniere's syndrome was caused by the already service-connected Cushing's syndrome.

d. Provide opinions as to whether Meniere's syndrome was aggravated by the already service-connected Cushing's syndrome.

In providing answers to the above questions the examiner should consider the Veteran's service treatment records.

In providing answers to the above questions the examiner should consider the fact that the Veteran is competent to report on in-service events, her post service events, and her observable adverse symptomatology.

In providing answers to the above questions the examiner should provide medical reasoning for accepting or rejecting the lay claims regarding observable in-service and post-service events and adverse symptomatology.

In providing answers to the above questions the examiner should not rely solely on negative evidence to include the Veteran not having the problem or a diagnosis in-service or for many years after service.

In providing answers to the above questions the examiner should provide medical reasoning for accepting or rejecting the June 2023 medical opinion from Dr. J.

In providing answers to the above questions the examiner is advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion
examiner should provide medical reasoning for accepting or rejecting the lay claims regarding observable in-service and post-service events and adverse symptomatology.

In providing answers to the above questions the examiner should provide medical reasoning for accepting or rejecting the June 2023 medical opinion from Dr. J.

In providing answers to the above secondary service connection questions the examiner is advised that the Federal Circuit in Spicer, supra, established a new "but-for standard" for establishing secondary service connection (i.e., but-for the problems caused by this Veteran's already service-connected Cushing's syndrome, the Veteran would not have developed Meniere's syndrome).

In providing answers to the above aggravation question the examiner is advised that the Court held in Ward, supra, that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability).

In providing answers to the above questions the examiner must articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion.

If the examiner cannot provide an answer to any of the above questions without resort to speculation he or she should so state, and must further explain why it is not feasible to provide an answer, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

NEIL T. WERNER

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Michael L. Marcum, 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.

Analyze in VA Law Explorer