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April 5, 2009

BVA duties, explain why symptoms comport with rating level, Shoemaker v. Derwinski, No. 90-1055

Filed under: BVA duties; Shoemaker v. Derwinski, No. 90-1055; symptoms comport; — veteranclaims @ 4:17 pm

This is another in our series of BVA duties as set forth by the Veterans Court, this one in Shoemaker v. Derwinski, No. 90-1055.

Shoemaker v. Derwinski, 3 Vet.App. 248, 253 (1992) (stating that when the appellant requests an increase in a disability rating, the Board is required to explain why the appellant’s symptoms comport with the assigned rating and why they do not comport with the other rating levels).
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“The Board is required to explain, in the context of the facts presented, the
rating criteria used in determining the category into which the veteran’s
symptoms fall. See Ohland v. Derwinski, 1 Vet.App. 147, 150 (1991); see
also Webster v. Derwinski, 1 Vet.App. 155, 159 (1991). Accordingly, the
Board had an obligation here, where the veteran specifically had requested
an increase in his then 30% rating, to explain why the veteran’s symptoms
comported with the criteria of the 50% disability rating but not with the
criteria of the 70% or 100% disability ratings. See 38 C.F.R. ù 4.7 (
1991) (where question exists as to which of two evaluations is appropriate,
higher evaluation will be assigned if its criteria are more nearly
approximated).

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The Board also should have addressed the “‘probative value of the
evidence submitted by or on behalf of the veteran'”
, especially since its
conclusion that the veteran suffered only “considerable” impairment seems
inconsistent with the conclusions drawn in several of the medical reports
of record. Hatlestad I, at 169 (quoting Gilbert, 1 Vet.App. at 59);
Webster, supra; Ohland, supra.

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U.S. Court of Appeals for Veterans Claims
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. 90-1055
SHOEMAKE.055
Search Terms: SHOEMAKER UNITED STATES COURT OF VETERANS APPEALS

No. 90-1055

Joseph D. Previous DocumentShoemakerNext Hit, Appellant,

v.

Edward J. Derwinski,
Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans’ Appeals

(Argued December 5, 1991 Decided September 21, 1992 )

Michael J. Gaffney for appellant.

Michael P. Butler, with whom Robert E. Coy, Acting General Counsel,
Barry M. Tapp, Assistant General Counsel, and Pamela L. Wood, Deputy
Assistant General Counsel were on the brief, for appellee.

Before KRAMER, FARLEY, and STEINBERG, Associate Judges.

STEINBERG, Associate Judge: The appellant, veteran Joseph D.
Previous HitShoemakerNext Hit, challenges a May 30, 1990, Board of Veterans’ Appeals (BVA or
Board) decision which awarded him an increase from 30% to 50% in his
service-connected disability rating for a “psychophysiological
gastrointestinal reaction with probable ulcer”. Joseph D. Previous HitShoemakerNext Hit, BVA
90-17136 (May 30, 1990). He argues on appeal that in assessing his claim
for an increase in his disability rating, the Board should have awarded
him a 100% disability rating. The Court holds that, under 38 U.S.C. ù
7104(d)(1) (formerly ù 4004), the Board erred by failing to provide the
reasons or bases for its findings and conclusions, by failing to address,
if not to consider, pertinent regulations governing findings of individual
unemployability, and
by failing to order a thorough and fully informed medical examination to
determine, inter alia, the level of the veteran’s disability and the
contribution to his service-connected disability of each of his
psychiatric impairments. Consequently, the record will be remanded for
readjudication in accordance with this opinion.

I. Background
The veteran served on active duty in the United States Navy from
January 1955 to July 1958 and in the Air Force from December 1958 to
February 1960. R. at 3, 171. Prior to the initiation of these
proceedings, and effective on December 20, 1974, the Veterans’
Administration (now Department of Veterans Affairs) (VA) awarded the
veteran a 30% service-connected disability rating for psychophysiologic
gastrointestinal reaction with a probable ulcer. R. at 139, 171. On
October 20, 1987, he submitted to the VA a claim for an increased rating.
His claim was denied twice by the VA Regional Office (RO) before reaching
the Board. During a hearing before the BVA, the veteran testified under
oath that on May 15, 1984, he had been fired from his civilian job as a
barber on a military installation, where he had worked since 1975, and
that he had not worked since that time. R. at 179. In September 1984 the
veteran apparently was hospitalized for depression in the psychiatric unit
of the Tucson, Arizona, VA Medical Center (VAMC). R. at 113 (these
records do not appear in the record on appeal). In December of that year,
the veteran apparently was examined at the VAMC by Dr. Comer, a
neuropsychologist, to whom he had complained of memory problems and “
blanking out when he was away from home”. R. at 113. The
neuropsychologist’s testing indicated that the veteran’s “psychological
adjustment was characterized by depression, anxiety and somatization.”
Ibid. His “blanking out” was believed to be a manifestation of emotional
distress. In 1985, further psychological testing at the VAMC, conducted
by Dr. Johnson, demonstrated that the veteran suffered from “considerably
more emotional disturbance than when he was tested in 1984.” R. at 113.
On April 25, 1987, the veteran’s treating VA psychiatrist, Dr. Zuniga,
completed a “Mental Residual Functional Capacity Assessment” to facilitate
review of the veteran’s application to receive Social Security disability
benefits. R. at 29. The psychiatrist
categorized the veteran as “markedly limited”, the most limiting category
on the scale provided on the evaluation form, in his ability to, inter
alia, (1) maintain concentration for extended periods, (2) perform
activities within a specified schedule, (3) work in coordination with or
proximity to others, (4) make simple work-related decisions, (5) complete
a normal workday or week without interruption from psychological symptoms, (
6) get along with co-workers or peers without distracting them or
exhibiting behavioral extremes, and (7) respond appropriately to changes
in the work setting. Ibid. He further stated:
[The veteran] has shown evidence of social-vocational
dysfunction related to abnormal affect for many years. He is
not able to handle co-workers[,] supervisors[,] clients[, or]
human relations without severe tension[,] irritability[,] and
depression.
R. at 31. Dr. Zuniga indicated on the evaluation form the categories of
disorders upon which his opinion was based, including anxiety disorders,
anxiety-related disorders, and personality disorders. R. at 32. However,
he noted that anxiety was the “predominant disturbance” or was “
experienced in the attempt to master [other] symptoms”. R. at 35. The
psychiatrist noted that the veteran’s anxiety-related disorder resulted in “
complete inability to function independently outside the area of one’s
home.” R. at 38 (emphasis in original).
On May 1, 1987, Dr. Heiman, a private psychiatrist, at the behest of
the veteran’s attorney, conducted a psychiatric evaluation of the veteran
and reviewed, inter alia, letters from the veteran’s therapist at the
Cochise Community Counseling Services (CCCS), medical records from the
VAMC, and Social Security records. R. at 112. On mental status
examination, the veteran’s affect “was blunted, his tone was monotonous,
and he cried frequently during the interview.” Ibid. When asked “some
formal mental status questions . . . he began to weep and shake and stated
that he could not answer because he was afraid to make mistakes.” R. at
115. Dr. Heiman concluded, in pertinent part:
My diagnosis is major depression in a person with mixed
personality disorder. Mr. Shoemaker’s symptoms are quite
overwhelming as corroborated by the psychological testing.
Ibid. Dr. Heiman also completed Social Security disability evaluation
forms, noting attributes similar to and consistent with those noted by Dr.
Zuniga, and added a notation
under the form’s personality disorders category that the veteran had “[i]
nflexible and maladaptive personality traits”. R. at 121.
In a May 21, 1987, letter to Dr. Zuniga, the veteran’s therapist, Ann
Anderson, a behavioral health counselor at CCCS, stated:
During the past year, Mr. Previous HitShoemakerNext Hit has attempted to work and
take care of his business affairs, in an effort to help his
wife who works long hours daily. This resulted in frustration
for him as he is emotionally unstable and unable to withstand
any stress or situation that calls for control very long.
R. at 107.
On June 12, 1987, an administrative law judge (ALJ) awarded the
veteran Social Security disability benefits, effective from May 15, 1984,
the date he was fired from his job. R. at 103. The ALJ concluded, inter
alia, that the veteran’s psychiatric impairments — dysthymic disorder,
anxiety disorder, and mixed personality disorder — had prevented him
from working for at least twelve continuous months. Ibid.
In early February 1988, Dr. Zuniga examined the veteran in an
outpatient visit and concluded that he manifested “fragile but
satisfactory control of anxious depression”. R. at 13. On February 24,
1988, the veteran received a VA medical examination for the purpose of
evaluating his service-connected disability. R. at 130. The examining
physician who evaluated the veteran’s physical condition stated explicitly
that the veteran’s VA claims file and medical records were not available
to review in preparation for the examination. R. at 132. The physical
examination showed only peptic inflammation. There was no evidence of
ulceration. R. at 134. The neuropsychiatric examination showed that the
veteran interacted in a depressed, submissive, and downtrodden way. R. at
133. He spoke softly, providing very brief responses to questions. He
manifested “considerable psychomotor retardation”, and his thought content
evidenced “hopelessness”. R. at 133. The physician’s assessment was “
psychophysiologic gastrointestinal reaction, major depression and
personality disorder not otherwise specified.” R. at 133.
By May of 1989, the RO had twice denied the veteran’s claims for an
increased rating. R. at 139, 146. In a June 6, 1989, letter to VA, Ms.
Anderson, who had treated the veteran since 1984, stated that the
veteran’s emotions were “volatile as he begins to cry and shake
when upset”. R. at 154. She noted that he was unable to maintain
relationships with co-workers or others and that he could not “stand or
sit for any period of time as he [was] very nervous.” R. at 155. She
concluded: “This person is mentally and physically disabled.” Ibid. In
an undated letter, apparently submitted at an April 1990 BVA hearing, Ms.
Anderson similarly stated:
His emotional instability results in agitating and aggravating
all of his physical ailments . . . . Interacting with others is
difficult also as he is explosive and defensive[,] many times
crying out of frustration or utilizing hostility to hide hurt.
All these characteristics point out . . . that [he] is not
employable.
R. at 202.
Echoing the above concerns, one of the veteran’s former spouses
stated in a June 6, 1989, letter that she could no longer tolerate his “
violent temper” and “sudden outburst[s] of anger and frustration”. R. at
156. The letter recounts examples of provocative behavior, such as the
veteran’s pushing his fist through the windshield of his car, breaking off
the cruise control mechanism of the car, threatening suicide, and putting
his head through a shower door. R. at 157-58.
In March 1990, Ms. Anderson affirmed the ongoing nature of her
previous observations, stating in a letter to VA, in pertinent part:
He is still emotionally unstable and has severe bouts of
nervousness and shakiness. He is unable to withstand any
unusual stress, becoming very frustrated, with bouts of crying,
and is generally not able to cope with everyday living in a
controlled manner for any length of time. . . . He is not
employable[;] furthermore, the origin of all his illness have [
sic] a military etiology. His condition [warrants a] 100%
disability status.
R. at 204 (emphasis added).
On April 24, 1990, the veteran received a hearing before the BVA,
during which he testified under oath that he was then receiving Social
Security disability benefits (R. at 172); that he had not worked since May
1984 when he was fired (R. at 179); and that he had sought vocational
rehabilitation services through VA and had been told that “it was not
feasible [for him] to be retrained in any type of area that would possibly
put [him] back to
work” because “the psychiatrist” had concluded that the veteran was too
emotionally unstable (R. at 183-84).
A witness, who had known the veteran for at least eight months prior
to the BVA hearing and had lived in the same household for a number of
weeks prior to the hearing (R. at 189), stated, under oath, that if he
were a business owner he would not hire the veteran because of his
inability to handle any experience that was “out of the norm”; his “
emotional responses are inappropriate”. R. at 193. According to this
witness, when any person aside from a family member came to the home, when
the veteran ventured outside the home, or when any stressors were
introduced into his environment, he could not adapt. R. at 190.
On May 30, 1990, the BVA awarded the veteran an increase from 30% to
50% in his service-connected disability rating for his psychophysiologic
condition. In discussing its decision, the Board stated that it was “of
the opinion” that the veteran’s service-connected disability was “more
disabling” than was reflected in the 30% disability rating. Previous HitShoemakerNext Hit,
BVA 90-17136, at 4. It further stated that the “clinical evidence” and “
the veteran’s personal testimony” indicated “considerable impairment” and,
hence, awarded him a 50% disability rating. A proper appeal to this Court
followed. 38 U.S.C. ùù 7252(a), 7266 (formerly ùù 4052, 4066).

II. Analysis
A. Reasons or Bases and Benefit of the Doubt
Under 38 U.S.C. ù 7104(d)(1) (formerly ù 4004) and Gilbert v.
Derwinski, 1 Vet.App. 49, 56-57 (1990), the BVA is required to provide in
its decisions a statement of the reasons or bases for its findings and
conclusions with respect to all material issues of fact and law presented
on the record. Only if provided with “complete [albeit succinct]
explanations” for a BVA panel’s actions may the Court effectively review
the decision and may the appellant understand and evaluate the Board’s
actions. Gilbert, supra; see Douglas v. Derwinski, 2 Vet.App. 103, 108 (
1992) (even if Board considered all evidence and rejected it, Board was
required to state precise basis for decision and respond to various
arguments of appellant); Peyton v. Derwinski, 1 Vet.App. 282, 285-86 (1991) (among
reasons or bases for decision, Board must include precise basis, response
to appellant’s arguments, and analysis of credibility or probative value
of evidence); Hatlestad v. Derwinski, 1 Vet.App. 164, 169-170 (1991) (
Hatlestad I) (Board’s discussion failed to include explanation as to
veteran’s unemployability and failed to make express credibility
determination regarding veteran’s testimony); Ohland v. Derwinski, 1 Vet.
App. 147, 149 (1991) (Board’s decision provided inadequate reasons or
bases since it failed to analyze credibility or probative value of
evidence, to provide any explanation for decision that claimant was not
unemployable, to analyze lay evidence, and to address examining
physician’s opinion). The BVA decision which is the subject of this
appeal presents a veritable textbook example of noncompliance with these
requirements, thereby precluding effective judicial review and
understanding of the Board’s decision not to award the veteran more than a
50% disability rating.
In order to receive, pursuant to 38 C.F.R. ù 4.132, Diagnostic Code (
DC) 9411 (1991), a 30% rating for a psychoneurotic disability, one must
demonstrate “[d]efinite impairment in the ability to establish or maintain
effective and wholesome relationships with people” — social impairment —
and reduced initiative, flexibility, efficiency, and reliability to the
extent that “definite industrial impairment” results. (Emphasis added.)
A 50% disability rating under DC 9411 is assigned when a claimant has
demonstrated considerable social impairment and his or her reliability,
flexibility, and efficiency are so reduced as to result in considerable
industrial impairment as well.
A 70% rating under DC 9411 will be assigned to a claimant who
exhibits severe social impairment and whose psychoneurotic symptoms,
generally, are so severe and persistent as to result in severe impairment
in the ability to obtain or retain employment. To receive a 100%
disability rating for this condition, not only must a claimant demonstrate
the inability to obtain or retain employment, but he or she must also be
so adversely affected by all but the most intimate contacts that virtual
isolation results, and the claimant must exhibit totally incapacitating
psychoneurotic symptoms bordering on gross repudiation of reality, through,
for example, disturbed thought or behavioral processes such as fantasy,
confusion, panic, and explosions of aggression associated with most daily
activities. 38 C.F.R. ù 4.132, DC 9411.
The Court is confronted with a BVA decision which provides no
explanation as to how the Board arrived at its conclusion that an increase
to no more than 50% in the veteran’s disability rating was warranted. The
Board is required to explain, in the context of the facts presented, the
rating criteria used in determining the category into which the veteran’s
symptoms fall. See Ohland v. Derwinski, 1 Vet.App. 147, 150 (1991); see
also Webster v. Derwinski, 1 Vet.App. 155, 159 (1991). Accordingly, the
Board had an obligation here, where the veteran specifically had requested
an increase in his then 30% rating, to explain why the veteran’s symptoms
comported with the criteria of the 50% disability rating but not with the
criteria of the 70% or 100% disability ratings. See 38 C.F.R. ù 4.7 (
1991) (where question exists as to which of two evaluations is appropriate,
higher evaluation will be assigned if its criteria are more nearly
approximated).

The Board also should have addressed the “‘probative value of the
evidence submitted by or on behalf of the veteran'”
, especially since its
conclusion that the veteran suffered only “considerable” impairment seems
inconsistent with the conclusions drawn in several of the medical reports
of record. Hatlestad I, at 169 (quoting Gilbert, 1 Vet.App. at 59);
Webster, supra; Ohland, supra. For example, the Social Security
Administration (SSA) ALJ had concluded in 1987 that the veteran was
entitled to receive Social Security disability benefits because, inter
alia, “the severity of [his] psychiatric impairments [had] precluded him
from working for at least [twelve] continuous months”. R. at 103 (
emphasis added). Related to this determination and also included in the
record here are the medical evaluations prepared for the SSA in which Dr.
Zuniga had stated in 1987 that the veteran was “markedly limited” in
several work-related functions, that he could not handle co-workers,
supervisors, clients, or human relations generally, without severe tension,
irritability, and depression, and that his psychiatric symptoms resulted
in the “complete inability to function independently outside” his home. R.
at 38 (emphasis in original). Dr. Heiman echoed these concerns on similar
forms and also stated that the veteran’s symptoms were “quite overwhelming
“. The veteran’s counselor at CCCS since 1984 had stated in March 1990
that the veteran continued to be emotionally unstable, unable to cope for
any length of time with daily life, and was, therefore, “100% disab[led]”.
The Board was required to
explain why, in the context of the full history of the veteran’s
treatment and condition (see 38 C.F.R. ùù 4.1, 4.10 (1991)), statements
such as these throughout the record did not lead to a conclusion to
increase the veteran’s disability rating beyond 50%.
Certainly, the Board should have addressed the SSA’s finding that the
veteran’s psychiatric impairments precluded him from working. The record
includes the ALJ’s decision as well as the evaluation forms on which it
was based, and the Board had been apprised of the veteran’s receipt of
Social Security benefits by the veteran at his hearing. In Collier v.
Derwinski, 1 Vet.App. 413, 417 (1991), the Court held that the decision of
an ALJ regarding a Social Security disability claim “cannot be ignored and
to the extent its conclusions are not accepted, reasons or bases should
be given therefor.” See Brown (Clem) v. Derwinski, 2 Vet.App. 444, 448;
Murincsak v. Derwinski, 2 Vet.App. 363, 370-372 (1992) (determination by
SSA that a claimant is entitled to disability benefits is relevant to VA
determination of severity of veteran claimant’s disability and is not
stale for purposes of making that determination since SSA continuously
reviews eligibility for disability benefits).
The Board not only failed to account for its rejection of higher
ratings and its implicit rejection of evidence in which it was stated that
the veteran cannot handle human relations and is not employable, but it
also failed to cite to independent medical authority or to quote from
recognized medical treatises to substantiate its conclusion, thereby
precluding meaningful review. See Hatlestad v. Derwinski, 2 Vet.App. __,
__, No. 90-103, slip op. at 7-8 (U.S. Vet. App. July 8, 1992) (Hatlestad
II). In Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991), and its progeny,
the Court has held that such unsubstantiated medical conclusions cannot
withstand scrutiny. “BVA panels may consider only independent medical
evidence to support their findings” and must discuss the evidence they
have relied upon in arriving at their findings and conclusions. Colvin,
supra; see Gilbert, 1 Vet.App. at 57 (legislative history makes clear that
conclusory statements do not satisfy “reasons or bases” requirement);
Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990) (BVA decisions must include
reasons or bases for medical conclusions; specificity required of BVA’s
reasons or bases depends on nature of claim).
Furthermore, in evaluating the evidence of record, the Board also
should have considered and discussed the relationship of the numerous and
varied psychiatric diagnoses to the veteran’s service-connected disability
. For example, the Board was presented with a Social Security evaluation
by Dr. Zuniga that noted that the veteran’s anxiety disorder was his
predominant disturbance but that he was afflicted with affective disorders
and personality disorders as well. R. at 32, 35. Dr. Heiman had observed “
major depression in a person with mixed personality disorder”. R. at 115.
A VA examining physician had stated in 1988 that the veteran suffered from “
psychophysiologic gastrointestinal reaction, major depression[,] and
personality disorder”. R. at 133.
The Court is not a factfinder and may not speculate as to the precise
relationship between these disorders and the veteran’s military service.
See Gilbert, 1 Vet.App. at 53. It is the obligation of the Board to
ensure that its findings are explained and that the record adequately
supports its findings. See 38 U.S.C. ù 7104(d)(1); 38 C.F.R. ùù 4.1 (
1991) (accurate and fully descriptive medical examinations are required
which emphasize limitation of activity imposed by disability); 4.2 (1991) (
responsibility of rating specialist to reconcile various reports into
consistent picture so rating reflects elements of disability present); 4.
10 (basis of disability evaluations is ability to function under ordinary
conditions of daily life, including employment); see also 38 C.F.R. ù 19.
182 (1991); 57 Fed. Reg. 4105 (1992) (to be codified at 38 C.F.R. ù 19.9) (
when, during course of review, BVA determines that further evidence, or
clarification of evidence, or correction of procedural defect is essential
for proper appellate decision, BVA shall remand case to RO).
In order to explain the relationship between these disorders, and
pursuant to its statutory duty, under 38 U.S.C. ù 5107(a) (formerly ù
3007), to assist claimants who have presented well-grounded claims, the
Board should have ordered (as it will be required to do upon remand unless
it determines, on the basis of the current evidentiary record, that the
veteran is entitled to a 100% rating), under 38 C.F.R. ù 3.327 (1991), a
thorough, fully informed, and comprehensive medical examination to (1)
reconcile the diagnoses; (2) evaluate the veteran for the purpose of
determining the existence of each of the impairments noted in the record; (
3) determine the degree of disability, in terms of ordinary conditions of
life, imposed by each impairment, if possible, and its relation to service;
and
(4) determine the extent to which each impairment contributes to the
veteran’s employability or unemployability. See Proscelle v. Derwinski,
2 Vet.App. __, __, No. 90-570, slip op. at 4, 6 (U.S. Vet. App. July 24,
1992); Cousino v. Derwinski, 1 Vet.App. 536, 540 (1991); EF v. Derwinski,
1 Vet.App. 324, 326 (1991); Green v. Derwinski, 1 Vet.App. 121, 124 (1991
). The examiner must have the full medical record of the veteran prior to
making the evaluation. See 38 C.F.R. ù 4.1. Only after making such
findings may the Board properly determine the appropriate disability
rating for the veteran.
The benefit-of-the-doubt doctrine of 38 U.S.C. ù 5107(b) (formerly
ù 3007) provides that where the evidence of record is in relative
equipoise with regard to a material issue, that issue will be resolved in
favor of the claimant. Moreover, the “reasons or bases” requirement
applies to the Board’s resolution of the benefit-of-the-doubt question.
See O’Hare v. Derwinski, 1 Vet.App. 365, 367 (1991); Hatlestad I, 1 Vet.
App. at 170; Gilbert, 1 Vet.App. at 58. Here, the Board, in deciding to
increase the veteran’s service-connected disability rating from 30% to 50%,
gave this requirement only cursory treatment, stating: “Resolving
reasonable doubt in the veteran’s favor, we find that the current
manifestations of his psychophysiological impairment are such that a 50
percent rating is warranted”. Previous HitShoemakerNext Document, BVA 90-17136, at 4. In light
of the substantial evidence in the record that the veteran’s overall
impairment from all disabilities more than “considerably” impairs his
social and industrial capabilities, the Board was, and is on remand,
required to consider and explain whether and why, under 38 U.S.C. ù 5107(
b), the evidence does or does not preponderate against the veteran being
entitled to a rating higher than 50%.

B. Individual Unemployability
Even if the 50% rating were properly and correctly assigned, the
Board still was required to consider a total rating for individual
unemployability under 38 C.F.R. ù 4.16(b), which provides:
It is the established policy of [VA] that all veterans who are
unable to secure and follow a substantially gainful occupation
by reason of service-connected disabilities shall be rated
totally disabled.
Therefore, rating boards should submit to the Director [of the]
Compensation and Pension Service[] for extra-schedular
consideration all cases of veterans who are unemployable by
reason of service-connected disabilities, but who fail to meet
the percentage standards set forth in paragraph (a) of this
section.
38 C.F.R. ù 4.16(b) (1991). See Proscelle, 2 Vet.App. at __, slip op.
at 7; Mingo v. Derwinski, 2 Vet.App. 51, 53-54 (1992).
The evidence of record here contained numerous findings that the
veteran could not work, let alone function ably outside the home.
Therefore, just as the Board was required to consider whether the veteran
was entitled to a 70% or 100% schedular rating, it was required also to
consider whether he was unemployable under section 4.16(b). See Brown,
supra (evidence regarding SSA’s determination of unemployability is
relevant to VA determination of appellant’s ability to engage in
substantially gainful employment). If the Board considered the
applicability of this regulation but rejected it, the Board should have so
stated, pursuant to the requirements of 38 U.S.C. ù 7104(d)(1), and
provided the reasons or bases for such rejection.
If the Board determines, on remand, that the veteran is entitled to a
70% service-connected rating, then it must consider the applicability of
38 C.F.R. ù 4.16(c) (1991), which provides that in cases in which the
only service-connected disability rating is a mental disorder assigned a
70% evaluation, and in which that mental disorder precludes the claimant
from “securing or following a substantially gainful occupation”, the
mental disorder shall be assigned a 100% schedular evaluation under the
appropriate diagnostic code. See also 38 C.F.R. ù 3.340 (1991) (“[t]
otal disability will be considered to exist when there is present any
impairment of mind or body which is sufficient to render it impossible for
the average person to follow a substantially gainful occupation”).
Regulations of the VA pertaining to the assignment of ratings of
psychiatric disabilities acknowledge in 38 C.F.R. ù 4.130 (1991) the
importance of considering section 4.16 in the evaluation of a claimant’s
psychiatric disability, stating, in pertinent part:
Ratings are to be assigned which represent the impairment of
social and industrial adaptability based on all of the evidence
of record. (See ù 4.16 regarding the issue of individual
unemployability based on mental disorder.)

C. The 50% Rating
“‘The proper course in a case with an inadequate record is to vacate
the agency’s decision and to remand the matter to the agency for further
proceedings.'” Gilbert 1 Vet.App. at 57 (quoting Occidental Petroleum
Corp. v. SEC, 873 F.2d 325, 347 (D.C. Cir. 1989); see Camp v. Pitts, 411
U.S. 138, 143 (1973) (if finding by Comptroller that new bank was
uneconomic venture is not sustainable on administrative record made,
finding must be vacated and the matter remanded for his further
consideration). Thus, the Court typically vacates and remands a BVA
decision which has provided inadequate reasons or bases to support its
findings and conclusions.
However, because of the unusual circumstances presented by this case,
the Court will retain jurisdiction and remand the record to the Board for
readjudication. It will not vacate the Board’s decision awarding the
appellant a 50% disability rating, even though the Board’s decision, by
virtue of its numerous “reasons or bases” deficiencies, is incomplete even
as to the 50% rating assigned, as well as its implicit decision not to
assign a higher rating. The 50% rating will thus remain in effect unless
and until it is replaced by a different rating approved by the Board in a
subsequent final Board action superseding its previous action. In view of
the Court’s conclusion that the Board has failed to give to this case the
scrutiny which the requirements of section 7104(d)(1) are designed to
ensure, a decision to vacate the Board’s award of the 50% rating would
prejudice the appellant and would be contrary to the spirit and principal
purpose of that statutory requirement that the Board provide reasons or
bases for its awards and denials of benefits — assisting the appellant
and facilitating judicial review.

III. Conclusion
In view of the foregoing discussion and after consideration of the
record and the briefs and oral arguments of the parties, the Court holds
that the Board’s decision is not in accordance with law because of its
failure to articulate the reasons or bases for its findings and
conclusions as herein discussed, to consider and, as appropriate, apply 38
C.F.R. ù 4.16(b), or (c), and to parse the veteran’s numerous disorders
by obtaining a contemporaneous, fully informed, and thorough medical
examination. Therefore, pursuant
to 38 U.S.C. ù 7252(b), the record is remanded for prompt readjudication
in order to fulfill these obligations through a critical examination of
previously existing evidence, of the results of a thorough medical
examination which addresses the concerns raised herein, and of any
additional evidence and arguments that the veteran wishes to submit and
any further evidence that the BVA wishes to seek in an effort to resolve
this claim — all in accordance with this opinion. See Fletcher v.
Derwinski, 1 Vet.App. 394, 397 (1991). After assembling all the evidence,
the Board must assess it in the context of whether, under 38 U.S.C. ù
5107(b), the veteran is entitled to the benefit of the doubt with respect
to each material issue in connection with the assignment of the
appropriate disability rating for his service-connected disability. The
Court retains jurisdiction. The Secretary shall file with the Clerk (as
well as serve upon the appellant) a copy of any final Board decision on
remand. Within 14 days after any such filing, the appellant shall notify
the Clerk whether he desires to seek further review by the Court.
REMANDED.

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