Veteranclaims’s Blog

January 26, 2011

Mayhue v. Shinseki, No. 09-0014; Mischaracterized Disability Claim

Excerpts from Decision below:

Because the Board misapplied a regulation when determining the effective date for Mr. Mayhue’s service-connected post-traumatic stress disorder, and because the Board mischaracterized Mr. Mayhue’s request for a total disability rating based on individual unemployability as a claim for an increased disability rating, the Court will vacate the September 12, 2008, Board decision on these issues and remand the
matters for further development and readjudication consistent with this decision.

++++++++++++++++++++++++++++++++++

—————————————————-

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0014
SAMUEL L. MAYHUE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Decided January 18, 2011 )

Kenneth M. Carpenter, of Topeka, Kansas, was on the brief for the
appellant.
Nathan Paul Kirschner, with whom Will A. Gunn, General Counsel, R. Randall
Campbell, Assistant General Counsel, and David L. Quinn, Deputy Assistant General
Counsel, all of Washington, DC, were on the brief for the appellee.

Before HAGEL, MOORMAN, and LANCE, Judges.

HAGEL, Judge: Samuel L. Mayhue appeals through counsel a September 12,
2008, Board of Veterans’ Appeals (Board) decision that denied entitlement to (1) an
earlier effective date for service-connected post-traumatic stress disorder, (2) a higher initial disability rating for post-traumatic stress disorder, and (3) an earlier effective date for a total disability rating based on
individual unemployability. Record (R.) at 3-27. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the September 2008 Board decision.
Because the Board misapplied a regulation when determining the effective date for Mr. Mayhue’s service-connected post-traumatic stress disorder, and because the Board mischaracterized Mr. Mayhue’s request for a total disability rating based on individual unemployability as a claim for an increased disability rating, the Court will vacate the September 12, 2008, Board decision on these issues and remand the
matters for further development and readjudication consistent with this decision.
However, because the Board’s failure to apply 38 C.F.R. § 4.3 was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” and because the Board provided an adequate statement of reasons or bases for denying Mr. Mayhue a 100% disability rating for post-traumatic stress disorder, the Court will affirm that portion of the Board decision.

I. FACTS
Mr. Mayhue served on active duty in the U.S. Army from April 1968 to
February 1970,
including service in Viet Nam. In November 1994, Mr. Mayhue submitted an
initial claim for VA
benefits for post-traumatic stress disorder. In February 1995, a VA
regional office denied the claim
because Mr. Mayhue failed to attend a scheduled VA medical examination and ”
failed to provide
specific information concerning specific traumatic incidents in service
which produced the stress
that resulted in the claimed post-traumatic stress disorder.” R. at 1675.
In May 1995, Mr. Mayhue
was provided with a VA medical examination where he described three
traumatic events from his
service in Viet Nam: (1) Mr. Mayhue let a friend sleep in his bed one
night while he was on guard
duty and that night his friend was “blown up and killed” when the area
containing his bed was
shelled (R. at 1795-96); (2) Mr. Mayhue was attacked while on “road duty”
and he fled and hid
rather than fighting with the rest of his group, many of whom were injured (
R. at 1796); and (3) Mr.
Mayhue pushed a Vietnamese child who had explosives “tied all over his
body” off of the lead truck
in a convoy and watched the child “literally disintegrate[]” in the
explosion (R. at 1796). In August
1995,the regional officeonceagain denied Mr. Mayhue’s claim for benefits
forpost-traumaticstress
disorder, explaining that, “[a]lthough there is indication of possible
stressor(s) in service indicated
in the exam report, the information provided [to] the examiner is not
capable of verification[;] that
is[,] specific names, dates, and places were not provided.” R. at 1664. Mr.
Mayhue did not appeal
this decision and it became final.
In September2000,Mr. Mayhuerequested to reopen his previously denied
claimforbenefits
for post-traumatic stress disorder. In September 2001, the regional office
denied Mr. Mayhue’s
claim to reopen because it found that he had not submitted new and
material evidence and had failed
to complete and return a stressor questionnaire. In April 2002, Mr. Mayhue
submitted a completed
stressor questionnaire,which included his unit informationand descriptions
ofthe stressors reported
in the May 1995 VA medical examination. In August 2002, Mr. Mayhue
submitted an additional
statement that, during service, he witnessed a collision between a piece
of heavy machinery and a
taxi cab that decapitated a Vietnamese woman and that he was caught
unarmed in the middle of an
2

ensuing firefight. However, in November 2002, the regional office again
denied his claim for
benefits for post-traumatic stress disorder because “the statements [he]
recently submitted about
events in Viet[ Nam] are not specific enough to identify a particular
event that could be corroborated
or the subject of a search for corroboration.” R. at 1522. In November
2003, Mr. Mayhue appealed
this decision. In March 2005, the United States Armed Services Center for
Research of Unit
Records reported that it was unable to verify the stressors identified by
Mr. Mayhue in the April
2002 stressor questionnaire or the August 2002 addendum to the
questionnaire. However, the
Center for Research of Unit Records reported that: “We were unable to
locate unit records submitted
by the 69th Engineer Battalion (69th Engr Bn) during the time period
provided. However the 369th
Signal Battalion (369th Sig Bn) identified attacks at Can Tho, the base
camp of the 69th Engr Bn
during Mr. Mayhue’s Viet[ Nam] tour.” R. at 322. Based on this information,
in April 2005, the
regional office granted Mr. Mayhue’s claim for benefits for post-traumatic
stress disorder, awarding
him a 50% disability rating with an effective date of September 5, 2000,
the date he requested to
reopen his previously denied claim.
In September 2005, Mr. Mayhue filed a Notice of Disagreement with this
decision, asserting
that he was entitled to (1) a higher initial disability rating for his
service-connected post-traumatic
stress disorder; (2) an effective date of November 15, 1994, for that
award; and (3) a total disability
rating based on individual unemployability. In December 2005, Mr. Mayhue
submitted evidence
that demonstrated that he had not been able to maintain employment since
June 2003 and that he had
not been employed at all since April 2005. In April 2006, the regional
office denied entitlement to
a total disability rating based on individual unemployability. After
holding an informal conference
with Mr. Mayhue’s representative, the regional office issued a Statement
of the Case in May 2006
that increased his initial schedular rating for post-traumatic stress
disorder to 70% and denied
entitlement to an earlier effective date. Also in May 2006, the regional
office issued a separate
decision that awarded Mr. Mayhue a total disability rating based on
individual unemployability with
an effective date of April 1, 2005, because Mr. Mayhue “specifically
indicated [he] became too
disabled to work due to symptoms of [post-traumatic stress disorder]
effective ’04/05.'” R. at 129.
In July 2006, Mr. Mayhue perfected his appeal.
In the September 2008 decision on appeal, the Board denied entitlement to
an earlier
effective date for his service-connected post-traumatic stress disorder, a
higher initial disability
3

rating for that disorder, and an earlier effective date for his total
disability rating based on individual
unemployability. With regard to the earlier effective date for post-
traumatic stress disorder, the
Board applied 38 C.F.R. § 3.156(c)(2) and found that, because Mr. Mayhue
had not provided
sufficient information to VA to verify his stressor until September 5,
2000, he was precluded from
seeking an earlier effective date under 38 C.F.R. § 3.156(c)(1). In
addition, the Board found that
Mr. Mayhue’s post-traumatic stress disorder “most closely satisfies the 70
[%] rating criteria.” R.
at 25. Finally, the Board concluded that Mr. Mayhue was not entitled to an
effective date for his
total disability rating based on individual unemployability prior to April
1, 2005, because “the
evidence does not show that he was totally unable to secure or maintain
gainful employment as a
result of his service-connected disabilities” prior to that date. R. at 16.
On appeal, Mr. Mayhue argues that the Board misapplied 38 C.F.R. § 3.156(
c) in
determining his effective date for post-traumatic stress disorder.
Appellant’s Brief (Br.) at 5-9. Mr.
Mayhue also contends that the Board failed to apply the benefit of the
doubt rule contained in
38 C.F.R. § 4.3 to his claim for a higher initial disability rating for
post-traumatic stress disorder.
Id. at 10-13. Moreover, Mr. Mayhue asserts that the Board did not provide
an adequate statement
of reasons or bases for its decision to deny him a 100% disability rating
for post-traumatic stress
disorder because the decision “fails to address why [Global Assessment of
Functioning] scores
representing serious symptoms of social and occupational impairment did
not support a 100%
rating.”1
Id. at 16, 13-17. Finally, Mr. Mayhue argues that the Board failed to
apply 38 C.F.R.
§ 3.156(b) when it treated his claim for a total disability rating based
on individual unemployability
“as different from his claim for a higher initial rating” for post-
traumatic stress disorder. Id. at 17,
17-19.
In response, the Secretary argues that the Board’s decision should be
affirmed because Mr.
Mayhue has not carried his burden of demonstrating prejudicial error for
any of his claims.
Secretary’s Br. at 3-15. Mr. Mayhue’s reply brief reiterates his arguments
and asserts that the Court
A Global Assessment of Functioning score represents “the clinician’s
judgment of the individual’s overall level
of functioning” and is “useful in planning treatment and measuring its
impact[ ] and in predicting outcome.” DIAGNOSTIC
AND STATISTICAL MANUAL OF MENTAL DISORDERS 30 (4th ed. 1994); see Richard
v. Brown, 9 Vet.App. 266, 267
(1996).
1
4

should apply the de novo standard of review to all issues on appeal
because they are questions of
law, not fact. Appellant’s Reply Br. at 2-3.
II. ANALYSIS
A. 38 C.F.R. § 3.156(c)
Mr. Mayhue argues that the Board misapplied 38 C.F.R. § 3.156(c) in
determining his
effective date for post-traumatic stress disorder. Specifically, he
asserts that the amended version
of § 3.156(c) should not apply retroactively, or alternatively, if the
amended version of § 3.156(c)
does apply, that he does not fall within the purview of § 3.156(c)(2).
1. Effective Date for a Reconsidered Claim
To address Mr. Mayhue’s arguments, the Court must first examine the
history of § 3.156(c)
and other related effective date regulations. At the time that Mr. Mayhue
submitted the stressor
questionnaire and addendum to the questionnaire, § 3.156(c) provided:
Where the new and material evidence consists of a supplemental report from
the
service department, received before or after thedecisionhas becomefinal,
the former
decision will be reconsidered by the adjudicating agency of original
jurisdiction.
This comprehends official service department records which presumably have
been
misplaced and have now been located and forwarded to the Department of
Veterans
Affairs. Also included are corrections by the service department of former
errors of
commission or omission in the preparation of the prior report or reports
and
identified as such. . . . Where such records clearly support the
assignment of a
specific rating over a part or the entire period of time involved, a
retroactive
evaluation will be assigned accordingly except as it may be affected by
the filing
date of the original claim.
38 C.F.R. § 3.156(c) (2002). At that time, “§ 3.400(q)(2) govern[ed] the
effective date of benefits
awarded when VA reconsider[ed] a claim based on newly discovered service
department records.”
New and Material Evidence, 70 Fed. Reg. 35,388, 35,388 (proposed June 20,
2005). Read together,
§§ 3.156(c) and 3.400(q)(2) provided that the effective date for an
award of benefits based on newly
discovered service department records that were previously unavailable ”
may relate back to the date
of the original claim or date entitlement arose even though the decision
on that claim may be final
under [38 C.F.R.] § 3.104.” Id.
In June 2005, the Secretary proposed to amend § 3.156(c) “to establish
clearer rules
regarding reconsideration of decisions on the basis of newly discovered
service department records”
5

and “to include the substance of current 38 C.F.R. 3.400(q)(2) in revised
§ 3.156(c).” Id.
Specifically, the Secretary proposed to clarify “VA’s current practice
regarding newly received
servicedepartmentrecords” byremovingthe “new and materialevidence”
requirementin§3.156(c),
elaborating on the definition of “service department records” to include
unit records and declassified
service records, removing the apparent limitation that the service
department records be
“misplaced,” and eliminating the requirement to submit a supplemental
report from the service
department as a prerequisite to reconsideration and retroactive evaluation
of disability. Id. at
35,388-89. Ofparticular importanceto this appeal, the Secretaryalso ”
revised” §3.156(c) byadding
§ 3.156(c)(1), which provides:
Notwithstanding any other section in this part, at any time after VA
issues a decision
on a claim, if VA receives or associates with the claims file relevant
official service
department records that existed and had not been associated with the
claims file when
VA first decided the claim, VA will reconsider the claim, notwithstanding
paragraph
(a) of this section.
38 C.F.R. § 3.156(c)(1) (2010).2
In the proposed rule, the Secretary explained that § 3.156(c)(1)
specifically applied to “unit records, such as those obtained from the
Center for Research of Unit
Records (CRUR) that pertain to military experiences claimed by a veteran.
Such evidence may be
particularly valuable in connection with claims for benefits for post
traumatic stress disorder.” 70
Fed. Reg. at 35,388. The Secretary then renumbered § 3.400(q)(2) as § 3.
156(c)(3), which provided
that the effective date for an award based on § 3.156(c)(1) is “the date
entitlement arose or the date
VA received the previously decided claim, whichever is later, or such
other date as may be
authorized by the provisions of this part applicable to the previously
decided claim.” 38 C.F.R. §
3.156(c)(3) (2010); see also 70 Fed. Reg. at 35,389 (“Benefits awarded
upon reconsideration of a
claim . . .under current § 3.156(c) are effective on the dates specified
in current § 3.400(q)(2).
Because we propose to include [this rule] in § 3.156(c), we additionally
propose to remove that
effective date provision from current § 3.400(q).”).
These amendments were not intended to be substantive changes to VA’s well-
established
practice of reconsidering claims based on newly discovered service
department records and
2
Paragraph (a), which is not relevant here, provides that “a claimant may
reopen a finally adjudicated claim
by submitting new and material evidence” and defines “new evidence” and ”
material evidence.” 38 C.F.R. § 3.156(a)
(2010).
6

assigning an effective date as early as the date that the initial claim
was filed. As the Secretary
explained: “In practice, when VA receives service department records that
were unavailable at the
time of the prior decision, VA may reconsider the prior decision, and the
effective date assigned will
relate back to the date of the original claim, or the date entitlement
arose, whichever is later.” Id.
In the final rule, the Secretary reiterated his intention to merely
clarify VA’s current practice: “[T]he
purpose of this rule is to clarify long-standing VA rules . . . which
authorize VA to award benefits
retroactive to the date of a previously decided claim when newly
discovered service department
records are received.” New and Material Evidence, 71 Fed. Reg. 52,455, 52,
455 (Sept. 6, 2006).
Moreover, in Vigil v. Peake, the Court explained that “the Secretary
revised § 3.156(c) with
a stated purpose of, inter alia, clarifying the regulation to reflect
current practices.” 22 Vet.App. 63,
65 (2008). The Court also noted that, “[a]t oral argument, the Secretary
agreed that his clarifying
statements in the proposed rule should govern the interpretation of the
pre-amended § 3.156(c)
wherever relevant in this case.” Id. The Court then applied the clarifying
statements in the proposed
rule and held that pre-amended § 3.156(c), like amended §§ 3.156(c)(1)
and (c)(3), “authorizes an
effective date [for a reconsidered claim based on newly discovered service
department records] as
early as the date of the original claim up to the date of the claim to
reopen.” Id. Consequently, the
Court concludes that, under either pre-amendment or amended § 3.156(c), a
claimant whose claim
is reconsidered based on newly discovered service department records may
be entitled to an
effective date as early as the date of the original claim.
2. 38 C.F.R. § 3.156(c)(2)
Having determined that Mr. Mayhue may be entitled to an earlier effective
date for his claim
for benefits for post-traumatic stress disorder under either pre-amendment
or amended § 3.156(c),
theCourtnextaddresses the parties argumentsregarding the
applicabilityof38C.F.R.§3.156(c)(2).
Section 3.156(c)(1) is limited by § 3.156(c)(2), which provides:
Paragraph (c)(1) of this section does not apply to records that VA could
not have
obtained when it decided the claim because the records did not exist when
VA
decided the claim, or because the claimant failed to provide sufficient
information
for VA to identify and obtain the records from the respective service
department, the
Joint Services Records Research Center, or from any other official source.
38 C.F.R. § 3.156(c)(2) (2010) (emphasis added). As the Secretary
explained in the proposed rule
amending § 3.156(c), “[t]his limitation would allow VA to reconsider
decisions and retroactively
7

evaluate disability in a fair manner, on the basis that a claimant should
not be harmed by an
administrative deficiency of the government, but limited by the extent to
which the claimant has
cooperated with VA’s efforts to obtain these records.” 70 Fed. Reg. at 35,
389.
Although the parties disagree about whether § 3.156(c)(2) applies
retroactively, the Court
declines to address this argument. Even assuming the Secretary’s view that
§ 3.156(c)(2) applies
retroactively or that it codified VA’s long-standing practice of limiting
reconsideration of claims
based on a claimant’s lack of cooperation–the view least favorable to
the veteran–the Court finds
that § 3.156(c)(2) was not for application in this case and, therefore,
the Board erred in applying it.
Specifically, the Board applied § 3.156(c)(2) and concluded that Mr.
Mayhue was not entitled to an
effective date for benefits for post-traumatic stress disorder earlier
than September 5, 2000, because
“[u]ntil that date, [he] had failed to provide sufficient information for
VA to identify and obtain the
service department records that could verify his in-service stressor,
despite being asked for this
information and repeatedly being informed that his claim had been denied
due to his failure to
submit this information.” R. at 14. The Board further explained that the
information he provided
with his request to reopen his previously denied claim for post-traumatic
stress disorder, which VA
used to verify his stressor, “included his unit assignment, his dates and
locations of service in Viet[
Nam], and a detailed description of his duties and experiences while in
Viet[ Nam].” Id. The Board
then concluded that this information “allowed for corroboration of his
combat service through
service department research.” Id.
The Court acknowledges that Mr. Mayhue did not comply with VA’s repeated
requests to
submitadditional informationto verify his claimedstressors, including
witnessing his friend’sdeath,
fleeing from an attack while on road duty, pushing a Vietnamese child off
of a truck and watching
the child explode, and witnessing the decapitation of a Vietnamese woman
by heavy machinery.
However, VA ultimately awarded Mr. Mayhue benefits for post-traumatic
stress disorder based on
attacks on the base camp where his unit was stationed in Viet Nam, not on
any of the above-
mentioned stressors. Specifically, VA stated:
Since the [Center for Research of Unit Records] verified that the 369th
Signal
Battalion was subjected to enemy attacks at Can Tho, which was the base
camp of
the 69th Engineering Battalion during the time you were there, it is
determined that
you were indeed subjected to these attacks also. Accordingly, under these
circumstances, service connection for [post-traumatic stress disorder] is
granted.
8

R. at 318.
The information that the Center for Research of Unit Records ultimately
used to verify Mr.
Mayhue’s stressor–i.e., his unit number and the dates of his duty in
Viet Nam–was always a part of
the claims file. See R. at 332 (personnel file stating that Mr. Mayhue was
stationed in Viet Nam
with the 69th Engineering Battalion from March 1, 1969, to February 17,
1970); see also R. at 1674
(December 27, 1994, internal VA request for Mr. Mayhue’s personnel file).
Therefore,
notwithstanding the fact that Mr. Mayhue did not cooperate fully with VA’s
requests for information
to verify other claimed stressors, VA’s failure to verify his stressor was
the result of an
administrative error in locating his unit records. As the Secretary stated
in the proposed rule
amending § 3.156(c), the reason VA reconsiders decisions based on newly
discovered service
department records is “that a claimant should not be harmed by an
administrative deficiency of the
government.” 70 Fed. Reg. at 35,389. Such an administrative deficiency
occurred in the instant
case and predated Mr. Mayhue’s failure to cooperate with VA. Moreover, the
information contained
in the claims file at the time of the initial claim was ultimately
sufficient to verify Mr. Mayhue’s
stressor. Therefore, it was VA’s administrative error in failing to verify
Mr. Mayhue’s stressor with
the information it had at the time of his initial claim, not Mr. Mayhue’s
subsequent failure to provide
additional informationsufficient to verify other claimedstressors,
thatprevented VA fromverifying
his stressor until March 2005. Consequently, the Board erred when it
applied § 3.156(c)(2), and the
Court will therefore vacate and remand that portion of the Board’s
decision for readjudication
consistent with this decision.
B. 38 C.F.R. § 3.156(b)
Mr. Mayhue next argues that the Board failed to apply 38 C.F.R. § 3.156(b)
when it treated
his request for a total disability rating based on individual
unemployability “as different from his
claim for a higher initial rating” for post-traumatic stress disorder.
Appellant’s Br. at 17; see also
38 C.F.R. § 3.156(b) (2010) (“New and material evidence received prior to
the expiration of the
appeal period, or prior to the appellate decision if a timely appeal has
been filed . . . , will be
considered as having been filed in connection with the claim which was
pending at the beginning
of the appeal period.”).
9

Mr. Mayhue is correct that a request for a total disability rating based
on individual
unemployability “is not a separate claim for benefits, but rather involves
an attempt to obtain an
appropriate rating for a disability.” Rice v. Shinseki, 22 Vet.App. 447,
453 (2009) (per curiam). In
the instant case, Mr. Mayhue requested that his previously denied claim
for benefits for post-
traumatic stress disorder be reopened in September 2000, which was
eventually granted in April
2005 based on information received from the Center for Research of Unit
Records. In September
2005, during the one-year appeal period following the decision awarding Mr.
Mayhue an initial
disability rating for post-traumatic stress disorder, Mr. Mayhue filed a
Notice of Disagreement that
asserted for the first time that he was entitled to a total disability
rating based on individual
unemployability based on his service-connected post-traumatic stress
disorder. In December 2005,
Mr. Mayhue submitted new evidence that demonstrated that he had not been
able to maintain
employment since June 2003 and that he had not been employed at all since
April 2005. After
further development, in May 2006 the regional office awarded Mr. Mayhue a
total disability rating
based on individual unemployability with an effective date of April 1,
2005, finding that the date
he “became too disabled to work due to symptoms of [post-traumatic stress
disorder].” R. at 129.
In July 2006, Mr. Mayhue completed his appeal challenging the initial
rating and effective date for
his post-traumatic stress disorder and the effective date of his total
disability rating based on
individual unemployability for post-traumatic stress disorder. In a
September 2008 decision, now
on appeal, the Board denied these claims.
As in Rice, this procedural history demonstrates that Mr. Mayhue’s request
for a total
disability rating based on individual unemployability was part of his
initial application for benefits
for post-traumatic stress disorder, not a part of a new claim for
increased compensation. See
22 Vet.App. at 453-54. Because the evidence of unemployability was
submitted to VA within one
year of the April 2005 regional office decision granting benefits for post-
traumatic stress disorder,
it is considered when determining the appropriate rating to be assigned
for his service-connected
post-traumatic stress disorder; it is not a separate claim for increased
compensation, but is evidence
that must be considered in the adjudication of the original claim when
determining the proper rate
of disability compensation. Moreover, “[n]ew evidence that shows
unemployability relating to the
underlying condition during the pendency of the original claim is material
on its face,” and Mr.
10

Mayhue submitted precisely this type of evidence in December 2005. Id. at
454. Accordingly, the
Board was required to apply 38 C.F.R. § 3.156(b). As the Court stated in
Rice:
When entitlement to [a total disability rating based on individual
unemployability]
is raised during the adjudicatory process of the underlying disability or
during the
administrative appeal of the initial rating assigned for that disability,
it is part of the
claim for benefits for the underlying disability. And, when it is raised
during the
one-year appeal period following a decision on the claim, VA is required
to consider
the potential applicability of 38 C.F.R. § 3.156(b).
22 Vet.App. at 454.
Here, the Board mischaracterized Mr. Mayhue’s request for a total
disability rating based on
individual unemployability as a claim for an increased rating. As a result,
the Board limited its
examination of the evidence of record pertaining to this request to the
one-year period prior to
September 1, 2005, the date that Mr. Mayhue first raised the issue of
entitlement to a total disability
rating based on individual unemployability. However, because Mr. Mayhue’s
request for a total
disability rating based on individual unemployability was part of his
initial application for benefits
for post-traumatic stress disorder, the Board was required to consider
evidence of unemployability
as far back as the date of the underlying initial claim, i.e., as far back
as September 2000 when he
requested that VA reopen his previously denied claim. See Rice, 22 Vet.App.
at 456-57; see also
38 U.S.C. § 5110(a) (“[T]he effective date of an award based on an
original claim . . . shall be fixed
in accordance with the facts found, but shall not be earlier than the date
of receipt of application
therefor.”); 38 C.F.R. § 3.400(b)(2)(I) (2010). Consequently, the Board’s
failure to consider the
evidence of record of Mr. Mayhue’s inability to maintain employment
between September 2000 and
April 2005 was prejudicial error. See R. at 152 (statement describing Mr.
Mayhue’s employment
between June 2003 and April 2005); R. at 155 (VA form detailing Mr.
Mayhue’s employment since
2000); see also 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due
account of the rule of
prejudicial error”); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir.
2004). The Court will
therefore vacate that portion of the Board’s decision that denied
entitlement to an earlier effective
date for a total disability rating based on individual unemployability and
remand the matter for
readjudication consistent with this decision.
11

C. Reasonable Doubt
Mr. Mayhue next contends that the Board failed to apply 38 C.F.R. § 4.3
to his claim for a
higher initial disability rating for post-traumatic stress disorder.
Appellant’s Br. at 10-13;
Appellant’s Reply Br. at 8-10. Specifically, he argues that the Board ”
render[ed] § 4.3 meaningless”
by applying “the general benefit of the doubt provisions under 38 U.S.C. §
5107(b)” instead of § 4.3.
Appellant’s Reply Br. at 10. The Court disagrees.
Section § 4.3 in pertinent part provides: “When after careful
consideration of all procurable
and assembled data, a reasonable doubt arises regarding the degree of
disability such doubt will be
resolved in favor of the claimant. See § 3.102 of this chapter.” 38 C.F.R.
§ 4.3 (2010). Section
3.102 defines the term “reasonable doubt” as used in § 4.3 as doubt ”
which exists because of an
approximate balance of positive and negative evidence which does not
satisfactorily prove or
disprove the claim.” 38 C.F.R. § 3.102 (2010); see Ortiz v. Principi, 274
F.3d 1361, 1364 (Fed. Cir.
2001) (stating that § 3.102 “restates” the provisions of 38 U.S.C. §
5107(b) (benefit of the doubt)
in terms of “reasonable doubt”). Therefore, contrary to Mr. Mayhue’s
assertion, where, as here, the
Board concludes that the evidence is not in equipoise, specific
consideration of § 4.3 is not
warranted. See Schoolman v. West, 12 Vet.App. 307, 311 (1999) (explaining
that where the
preponderance of the evidence is against an appellant’s claims, “the
benefit of the doubt doctrine
does not apply”).
In the instant case, the Board found that “the preponderance of the
evidence is against
granting an initial rating in excess of 70 percent.” R. at 19. In support
of this finding, the Board
thoroughly discussed Mr. Mayhue’s disability picture and adequately
explained why his symptoms
“most closely satisf[y] the 70 percent rating criteria.” R. at 25. In
light of the Board’s thorough
consideration of the evidence of record and Mr. Mayhue’s statement that he ”
is not contesting the
Board’s finding that there was a preponderance of evidence against an
initial rating in excess of 70
percent,” the Board’s failure to apply § 4.3 was not “arbitrary,
capricious, an abuse of discretion, or
otherwise not in accordance with law.” Gilbert, 1 Vet.App. at 58.
D. Reasons or Bases
Finally, Mr. Mayhue argues that the Board failed to provide an adequate
statement ofreasons
or bases for its decision to deny him a 100% disability rating for post-
traumatic stress disorder
because the decision “fails to address why [Global Assessment of
Functioning] scores representing
12

serious symptoms of social and occupational impairment did not support a
100% rating.”
Appellant’s Br. at 16. However, the record does not support this
contention.
Section 4.7, title 38 of the Code of Federal Regulations provides that, “[
w]here there is a
question as to which of two evaluations shall be applied, the higher
evaluation will be assigned if
the disability picture more nearly approximates the criteria required for
that rating. Otherwise, the
lower rating will be assigned.” The Board acknowledged this regulation,
then painstakingly
described Mr. Mayhue’s medical history and disability picture, including
his Global Assessment of
Functioning scores. After reviewing the evidence of record, the Board
explained:
[T]heBoard finds that these symptoms reflect a level of impairment that
mostclosely
approximates a 70 percent disability rating throughout the entire period
on appeal.
As noted in the rating criteria listed above, symptoms such as suicidal
ideation,
impaired impulse control, and difficulty in adapting to stressful
circumstances are
contemplated by the 70 percent disability evaluation. In addition,
deficiencies in
work, thinking, and mood are noted throughout the period on appeal, and
serious
deficiencies in these areas are also appropriately compensated by the 70
percent
evaluation.
While these records demonstrate significant impairment, they do not show
the total
occupational and social impairment required for a 100 percent disability
evaluation.
While [Mr. Mayhue] experienced significant problems getting along with his
supervisor at work, records reflect that his main difficulties working at
the store
arose from a hand disability rather than [post-traumatic stress disorder].
The Board
also notes that [Mr. Mayhue] appeared to have been in a stable
relationship and had
a good relationship with his children. He spent time on activities with
his stepson,
and he had a good relationship with his other children.
The record reflects that [Mr. Mayhue] demonstrates symptoms of the 70
percent
rating criteria, including auditory hallucinations, difficulty in adapting
to stressful
circumstances, and suicidal ideation. However, the Board notes that [he]
does not
exhibit many symptoms of the 70 percent rating, including obsessional
rituals that interfere with routine activities;speech intermittently illogical,obscure, or irrelevant; spatial disorientation; or neglect of personal appearance and hygiene. The Board realizes that the symptoms noted in the rating criteria are not intended to be an exhaustive list, but are examples of the types and severity of symptoms that indicate a certain level of disability. However, the Board believes that the overall severity of the veteran’s symptoms, when taking into account both the symptoms that satisfy the 100 percent criteria and those that do not rise to the level of the 70 percent rating, most closely satisfies the 70 percent rating criteria.
13

R. at 24-25. This discussion demonstrates that the Board, in fact,
considered the “serious symptoms of social and occupation[al] impairment” that Mr. Mayhue’s Global Assessment of Functioning scores represent. Appellant’s Br. at 16. Moreover, it is clear from the preceding discussion that Mr. Mayhue’s contention that “there is no reference concerning why the rating criteria for a 100% rating
did not more nearly approximate Mr. Mayhue’s disability picture” is simply
incorrect. Because the Board thoroughly discussed Mr. Mayhue’s disability picture and explained why his symptoms more nearly approximate a 70% disability rating than a 100% disability rating, the Court concludes that the Board’s statement of reasons or bases for its determination that Mr. Mayhue was not entitled to an initial disability rating for post-traumatic stress disorder in excess of 70% was adequate. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (
Fed. Cir. 1996) (table); Gilbert, 1 Vet.App. at 57.

III. CONCLUSION
On consideration of the foregoing, the portions of the September 12, 2008,
Board decision that denied entitlement to earlier effective dates for post-traumatic
stress disorder and a total disability rating based on individual unemployability are VACATED and the matters are
REMANDED for readjudication consistent with this decision. The remainder
of the Board decision
is AFFIRMED.
14

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.