Veteranclaims’s Blog

October 29, 2011

Single Judge Application, MacWhorter v. Derwinski, 2 Vet.App. 655, 656 (1992), Secretary’s Failure to Address Arguments Are Conceded

Excerpt from decision below:
“Specifically, he contends that the Board assigned the date as the time when he “first evidenced mild memory loss and suspiciousness” (R. at 31), despite evidence of memory impairment as early as 1998.
The Secretary does not respond to these arguments,4 and the Court will construe the Secretary’s omission as a concession of error. See MacWhorter v. Derwinski, 2 Vet.App. 655, 656 (1992) (warning the Secretary that failure to address all arguments may result in the Court determining those points are conceded).”

Designated for electronic publication only
NO. 09-2307
Before DAVIS, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
DAVIS, Judge: U.S. Air Force veteran Curtis W. Fetty appeals pro se from
an April 28,
for post-traumatic stress disorder (PTSD)andpesplanus.1
For the reasons that follow, the Court will
affirm in part, modifyin part, and set aside in part the April 2009 Board
decision and remand matters
for further proceedings consistent with this decision.
Mr. Fettyfirst argues that, for several reasons, the Board erred
byfailingto assign a disability
rating higher than 30% for his service-connected PTSD. A Board
determination of the appropriate
The Board also awarded service connection for a cervical spine disorder,
assigned a separate 10% rating for
degenerative joint disease of the bilateral first metatarsals, and denied
service connection for hemorrhoids. Because Mr.
Fetty presents no argument on appeal as to these matters, the Court deems
these issues abandoned. See Ford v. Gober,
10 Vet.App. 531, 535 (1997). The Board also remanded a request for an
earlier effective date prior to January 26, 1998,
for the assignment of a 10% disability rating for service-connected
bilateral pes planus. Because a final decision has not
been issued as to the matter, that issue is not before the Court. See 38 U.
S.C. § 7252; Hampton v. Gober, 10 Vet.App.
481, 483 (1997) (“Because a final decision has not been issued by the [
Board] with respect to the claims that were
remanded, those claims cannot be reviewed by the Court on this appeal.”).

degree of disability under the rating code is a finding of fact subject
to the “clearly erroneous”
standard of review. 38 U.S.C. § 7261(a)(4); see Smallwood v. Brown, 10
Vet.App. 93, 97 (1997).
“‘A finding is “clearly erroneous” when although there is evidence to
support it, the reviewing court
on the entire evidence is left with the definite and firm conviction that
a mistake has been
committed.'” Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting
United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948)).
Under the applicable diagnostic code (DC) for PTSD, the criteria for a 30%
disability rating
for PTSD is warranted where a veteran suffers from
[o]ccupational and social impairment with occasional decrease in work
andintermittentperiodsofinabilityto performoccupational tasks(
due to such symptoms as: depressed mood, anxiety, suspiciousness, panic
(weekly or less often), chronic sleep impairment, mild memory loss (such
forgetting names, directions, recent events).
Criteria for a 50% disability rating are as follows:
Occupational and social impairment with reduced reliability and
productivity due to
such symptoms as: flattened affect; circumstantial, circumlocutory, or
speech; panic attacks more than once a week; difficulty in understanding
commands; impairment of short- and long-term memory (e.g., retention of
highly learned material, forgetting to complete tasks); impaired judgment;
abstract thinking;disturbancesofmotivation andmood; difficultyin
maintaining effective work and social relationships.
A 70% disability rating is warranted when there is
[o]ccupational 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
affecting the ability to function independently, appropriately and
impaired impulse control (such as unprovoked irritability with periods of
spatial disorientation; neglect of personal appearance and hygiene;
difficulty in
adapting to stressful circumstances (including work or a worklike setting);
to establish and maintain effective relationships.
38 C.F.R. § 4.130, DC 9411 (2011).

This Court has held that “the level of impairment under § 4.130 is not
restricted to the
symptoms provided in the diagnostic code.” Mauerhan v. Principi, 16 Vet.
App. 436, 443 (2002).
Rather, the examiner must “consider all symptoms of a claimant’s condition
that affect the level of
occupational and social impairment, including, if applicable, those
identified in the [Diagnostic and
Statistical Manual of Mental Disorders, Fourth Edition].” Id. Further, the
Court held that the
symptoms listed in § 4.130’s rating formula are merely “examples” of
symptoms that warrant certain
ratings, and “are not intended to constitute an exhaustive list.” Id. at
442. Because the diagnostic
criteria are the essential rating criteria, however, it is not error to
rely on such criteria. Sellers v.
Principi, 372 F.3d 1318, 1327 (Fed. Cir. 2004) (holding that “the criteria
listed in the [general rating
formula] are . . . the rating formula adopted by the Secretary in rating [
PTSD] claims.”).
1. Lost Earnings
Mr. Fetty asserts that the Board erred in discounting evidence
demonstrating that his PTSD
resulted in “impairment of his earnings.” Appellant’s Brief (Br.) at 18.
Specifically, he reasoned in
October 2000 that had he become an airline pilot after separation from the
Air Force, by 2000 he
would have been a junior airline captain earning approximately $132,000
per year. See Record (R.)
at 1399-1400. He contends that his PTSD symptoms precluded him from
following that career path,
and instead, he was a government lawyer earning approximately $70,000 per
year. See id. He
asserts that this lost income should be equated to a level of occupational
impairment in the 50%
rating criteria. Appellant’s Br. at 18.
The Board considered Mr. Fetty’s argument in this regard, but onlyas it
pertained to an extra-
schedular rating, holding that this Court’s decision in Thun v. Shinseki,
22 Vet.App. 111 (2008),
explained that an extraschedular rating “‘does not contemplate or require
a calculation of the income
that may not have been realized because of a service-connected disability.’
” R. at 40 (quoting Thun,
22 Vet.App. at 117). Mr. Fetty replies that Thun “did not state that
impairment of earning power has
no bearing on the schedular disability level assigned.” Appellant’s Br. at
18 (emphasis added).
The Court disagrees that the Board should have considered the perceived
earning capacity
impairment when assigning a disability rating. Instead, the Board is to
consider the symptoms that
affect occupational impairment. See Mauerhan, 16 Vet.App. at 443 (“[T]he
rating specialist is to
consider all symptoms of a claimant’s condition that affect the level of
occupational and social

impairment.”). Thus, it is the underlying symptoms that may prevent him
from practicing in his
chosen profession, such as anxiety or impairment in judgment, that are
relevant to a disability rating
assessment, not the discrepancy in salaries.
In addition, although Thun does not speak directly to this issue, it
provides support for the
notion that actual wages play no part in a schedular disability rating. In
that decision, the Court
acknowledged that “manyveterans receiving benefits mayexperience a greater
or lesser impairment
of earning capacity than average as a result of their disability”; however,
the rating schedule is based
on an “average impairment in earning capacity.” 22 Vet.App. at 116. The
Court specifically stated
that “the actual wages or income earned by a particular veteran are not
considered relevant to the
calculation of the average impairment of earning capacity caused by a
disability.” Id.
In sum, the Court finds no clear error in the Board’s failure to consider
Mr. Fetty’s perceived
loss of actual wages when determining his appropriate disability rating.
2. Weighing of Symptoms
Mr. Fettyfurthercontends that the Board did not appropriatelyweigh the
evidence of record.
Specifically, he contends that the record contains statements as to
symptoms that “do fit in the 50[%]
rating category” (Appellant’s Br. at 19 (identifying isolation, bruxism,2
depression, anxiety,
numbness, obsessive behavior, hyper-vigilance, and short and intermediate-
termmemoryloss)), but
the Board erroneously found that “‘there is no indication that such
emotions amounted to
‘disturbances’ of motivation or mood necessary for assignment of a 50[%]
rating.'” Appellant’s Br.
at 19 (quoting R. at 28).
The Court is not persuaded that the evidence of record is so indicative of
a 50% disability
rating as to render clearly erroneous the Board’s conclusion that “the
evidence clearly indicates that
symptomatology associated with the Veteran’s PTSD meets the criteria for
assignment of a 30[%]
evaluation.” R. at 27. Although Mr. Fetty contends that the evidence
corresponds with a 50%
disability rating, the Board evaluated the evidence and provided adequate
justification for the 30%
rating. In particular, the Board described Mr. Fetty’s “normal” speech,
coherence, “good” long-term
Bruxism is “involuntary, nonfunctional, rhythmic or spasmodic gnashing,
grinding, and clenching of teeth (not
including chewing movements of the mandible), usually during sleep,
sometimes leading to occlusal trauma.”

memory, “little or no difficulty understanding complex commands,” no
evidence of impairment of
thought processes, “little evidence” of mood and motivation disturbances,
and Global Assessment
of Functioning (GAF) scores ranging from 62 to 85, which are ”
predominately reflective of slight
to mild symptoms.” R. at 29. The Board also acknowledged Mr. Fetty’s
anxiety, memory loss, and
the evidence of difficulty in establishing and maintaining effective work
and social relationships,
including his preference to be alone. The Board determined, however, that
difficulty with work and
social relationships is onlyone of the criteria for a 50% rating, but in
contrast, a 30% disabilityrating
contemplates his level of anxietyand memoryloss, and his predominant
disabilitypicture, including
sleeping difficulties, depressed mood, and anxiety. Mr. Fetty’s
predominant issues, the Board
reasoned, “fit[] precisely into the criteria for a 30[%] rating.” R. at 29.
The Board also noted that Mr. Fetty met two of the seven criteria listed
under a 70% rating;
Mr. Fetty argues that the Board should therefore have explained why he was
not then entitled to a
rating of at least 50% under the equipoise standard. That a claimant
displays exemplary symptoms
from a higher rating category, however, does not necessarily entitle that
claimant to a higher rating.
Rather, when there is a question as to which of two ratings to apply, the
Board will assign the higher
rating only if the veteran’s disability “more nearly approximates” the
criteria for the higher rating;
otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2011).
Here, as stated previously, the
Board adequately explained why Mr. Fetty’s symptoms did not more nearly
approximate a rating in
excess of 30%.
Error does occur, however, when the Board fails to consider evidence that
certain symptoms
that are not listed in the diagnostic criteria are causing economic or
social impairment that is
equivalent to the impairment caused by the enumerated symptoms. Mauerhan,
16 Vet.App. at 443
(“If the evidence demonstrates that a claimant suffers symptoms or effects
that cause occupational
or social impairment equivalent to what would be caused by the symptoms
listed in the diagnostic
code, the appropriate, equivalent rating will be assigned.”). Thus, as to
those unlisted symptoms,
the inquiry is whether the claimant displays relevant symptoms beyond
those listed in the rating
criteria. See id.; 38 C.F.R. § 4.130, DC 9440 (stating that veteran must
display “such symptoms”).
Only after it has been established that a veteran displays relevant
symptoms that are not contained

in the diagnostic criteria must the Board consider the question of how
those symptoms affect
employment and social relationships. Mauerhan, 16 Vet.App. at 443.
In this regard, Mr. Fetty asserts that the Board failed to consider ”
unlisted symptoms such
as bruxism, moderate to severe Axis IV stressors, significant loss of
income, and intermediate term
memory loss.” Appellant’s Br. at 19. With the exception of the ”
significant loss of income”
discussed above, the Court will address each of these factors in turn.
First, with respect to bruxism,
Mr. Fetty has asserted that this condition is related to anxiety; however,
the Board expressly
considered reports of anxiety in its assignment of a 30% disability rating.
Mr. Fetty has not
demonstrated the inadequacy in the Board’s consideration of this factor.
Asto “moderateto severeAxis IVstressors”and”intermediate-termmemoryloss,”
has not demonstrated the Board’s failure to expressly consider these
factors was prejudicial. See
Shinseki v. Sanders, 556 U.S. 396 (2009) (placing the burden on the
appellant to allege prejudiceand
explain how the asserted error caused harm). With regard to “moderate to
severe Axis IV stressors,”
Mr. Fetty references a February 2002 report noting, without further
explanation, Axis IV
(“psychosocial and environmental problems”) as “[m]oderate to severe:
Concerns about his health.”
R. at 1110. It is not at all clear that this notation is related to PTSD,
let alone that the Board’s
express consideration of this notation could entitle him to a higher
disability rating. See Shinseki,
supra. As to “intermediate memoryloss,” a 2007 examiner noted that Mr.
short and intermediate term memoryloss.” R. at 561. Although the Board did
not expresslymention
theasserted”intermediate-termmemoryloss,”theCourt cannotdeemthis omission
prejudical to Mr.
Fetty. The Board expressly discussed, and thus considered, the 2007 report
in which the notation
appeared. In addition, Mr. Fettyhas not persuasively argued that his
assertion of “intermediate-term
memory loss” is a factor equivalent to that listed in the 50% disability
rating. See Mauerhan, supra.
The Court notes that a 30% disabilityrating expressly contemplates “mild
memoryloss” of anytype,
but in contrast, as the Board recognized, a 50% disability rating
contemplates impairment of both
“short- and long-term memory” (the latter of which had been described as ”
good” in Mr. Fetty’s case
(see R. at 27)). For these reasons, Court is unpersuaded that remand is
warranted for the Board’s
consideration of these symptoms.

3. Staged Ratings
Mr. Fetty next argues that the Board erroneously assigned an effective
date for his 30%
staged disability rating in the first instance.3
He also asserts that, assuming that the Board had
jurisdiction to assign an effective date, it erroneously chose November 3,
2004, as the date
entitlement to a 30% disability rating arose. Specifically, he contends
that the Board assigned the
date as the time when he “first evidenced mild memory loss and
suspiciousness” (R. at 31), despite
evidence of memory impairment as early as 1998.
The Secretary does not respond to these arguments,4
and the Court will construe the
Secretary’s omission as a concession of error. See MacWhorterNext Document v. Derwinski,
2 Vet.App. 655, 656
(1992) (warning the Secretary that failure to address all arguments may
result in the Court
determining those points are conceded). On remand, the Board must remand
the matter to the
regional office (RO) for an effective-date assignment for the grant of a
30% disability rating for
PTSD, taking into account all relevant evidence of record.
4. Consideration of Evidence in First Instance
Mr. Fettyalso contends that the Board erred when it considered a November
2004 VA PTSD
examination report that was not reviewed by the RO in the first instance.
The implication is that the
Board erred when it considered this new evidence without remanding the
case for initial
consideration by the agency of original jurisdiction or without having
obtained the appellant’s
waiver, in violation of Disabled American Veterans v. Secretary of
Veterans Affairs, 327 F.3d 1339
(Fed. Cir. 2003); see also 38 C.F.R. § 19.31(b)(1) (2011) (requiring VA
to issue a Supplemental
after a Statement of the Case).
It appears that Mr. Fetty is currently assigned a 10% disability rating
for PTSD effective January 1998 and a
30% rating from November 2004.
The Secretary stated that he was “unable to address Appellant’s complaint
that the grant of an increased rating
to 30% for his PTSD resulted in an ‘unwanted staged rating.’ Because the
increased rating represents a grant of the
benefit sought, Appellant has failed to demonstrate that the grant was
erroneous, or that he has been somehow [ ]
prejudiced by the award of an increased rating.” Secretary’s Br. at 10-11.
This response disregards Mr. Fetty’s argument
as to the Board’s jurisdiction and the appropriateness of the assigned
effective date.

In Disabled American Veterans, the U.S. Court of Appeals for the Federal
Circuit (Federal
Circuit) invalidated a regulation because it effectively allowed the Board
to consider additional
evidence, not previously of record, without having to remand the case to
the agency of original
jurisdiction forinitial consideration orto obtaintheappellant’swaiver.
327 F.3d at 1348. This practice, the Federal Circuit held, was a violation
of the provision of 38
U.S.C. § 7104(a), entitling claimants to “one review on appeal to the
Secretary.” Id.
The Court is unconvinced, however, that error occurred in this instance.
First, although Mr.
Fetty summarily deems the PTSD examination “pertinent,” he fails to
provide guidance to the Court
as to this requirement; the Court cannot determine that Mr. Fetty suffered
prejudicial error without
an indication of how consideration of the document could provide him a
rating in excess of the 30%
awarded by the Board.5
See 38 C.F.R. § 19.31(b)(1); see also Hyatt v. Nicholson, 21 Vet.App. 390,
395 (2007) (“Appellants before the Court bear the burden of demonstrating
error below.”); Hilkert
v. West, 12 Vet.App. 145, 151 (1999) (en banc) (concluding that appellant
had the burden of
demonstrating error in the Board’s decision), aff’d, 232 F.3d 908 (Fed.
Cir. 2000). In any view of
the matter, the fact that the July 2008 Supplemental Statement of the Case
did not explicitly discuss
the PTSD examination does not show that the RO did not consider it; the RO
is obligated to base
its determination on the entire evidence of record, and in the absence of
clear evidence to the
contrary, it is presumed to have done so. See Gonzales v. West, 218 F.3d
1378, 1381 (2000) (holding
that, “absent specific evidence indicating otherwise, all evidence
contained in the record at the time
of the RO’s [decision] must be presumed to have been reviewed by [VA], and
no further proof of
such review is needed”). Accordingly, the Court holds that Mr. Fetty has
not shown that the Board
erred in its consideration of the evidence in question. The Court further
holds that the Board did not
acquire and consider evidence in violation of the 38 U.S.C. § 7104(a)
mandate to provide one review
on appeal to the Secretary.
Although this Court holds that there is no known basis on which to
consider whether the document is pertinent
to a rating in excess of 30%, the Court expresses no opinion as to whether
the document can impact the effective date
for the 30% disability rating, which will be evaluated by the RO on remand.

B. Pes Planus
Mr. Fetty also argues that the Board erred in its consideration of an
April 2003 private foot
examination and an October 2004 podiatry report that the RO had not
previously considered.
Although the RO is presumed to have reviewed the April 2003 examination,
submitted in 2003, the
October 2004 podiatryreport is another matter. That report was not
submitted until September 2008
– after the last Supplemental Statement of the Case in July 2008. Thus,
the Court discerns that the
RO could not have considered the information contained therein. Indeed, in
a September 2008 letter
to VA, Mr. Fetty provided the October 2004 report and expressly requested
that the RO issue a
Supplemental Statement of the Case considering both the April 2003 and
October 2004 reports. It
appears that the Board ignored this request and went on to consider the
documents without first
obtaining a waiver.
Becauseboth documents potentiallysupport a 50% disabilityrating(
eitherafter clarification
of the reports or on a sympathetic reading), the Court cannot deem
harmless the Board’s error. See
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). Thus, the Court
will remand Mr. Fetty’s
increased-rating claim for pes planus to the Board with instructions for
the RO to consider the
documents in a Statement of the Case.
Next, Mr.FettyarguesthattheBoard”might
injury that VA has carelessly placed into Appellant’s record.” Appellant’s
Br. at 24. Although this
commingling of records is unfortunate, there is no evidence that the Board
relied on the misfiled
documents. Consequently, any such error is not prejudicial to Mr. Fetty.
C. Bilateral Hammertoes, Chondromalacia Patella, and Calf Muscle Pain and
Mr. Fetty next contends that the Board denied service connection for these
despite the fact that it had no jurisdiction to do so. The Secretary
asserts that these matters are not
before the Court, and that the Court has no jurisdiction over any claims
other than those framed in
the Board decision on appeal.
Within its decision, the Board made the following statement: “Nor is the
Veteran entitled to
separate disability ratings for his knee pain, calf pain . . . and
hammertoes.” R. at 38. The Board did
not, however, list these matters among its framed issues, nor did it
expressly deny service

connection. To the extent that the Board’s statement could be read as an
implicit denial of service
connection, theBoard’s statementis inappropriategiven that no appeal had
been perfected as to these
matters. Thus, the Court will modify the April 2009 Board decision to
delete the Board’s reference
to disability ratings for knee pain, calf pain, and hammertoes. See
Henderson v. Shinseki, 131 S. Ct.
1197, 1205 (2011) (recognizing the Court’s power to affirm, modify, or
reverse Board decisions).
D. Extraschedular Rating
Lastly, Mr. Fetty contends that he has asserted that a schedular rating is
inadequate based on
factors related to his service-connected heart disability, including his
frequent cardiac exercise
sessions and the perceived economic impairment resultingfrom PTSD (
addressed supra). Although
the Board did discuss an extraschedular rating, it limited its discussion
to symptoms related to PTSD
and pes planus. The Board did not consider anyfactors related to Mr.
Fetty’s service-connected heart
The fact that Mr. Fetty’s heart disability is not on appeal is of no
moment. The Board must
evaluatewhether”theratingscheduleis inadequateto
evaluateaclaimant’sdisabilitypicture.” Thun,
22 Vet.App. at 116 (emphasis added). The “disability picture” includes all
of the service-connected
disabilities. See 38 C.F.R. § 3.321(b)(1) (goal of extraschedular
consideration is to arrive at “an
extra-schedular evaluation commensurate with the average earning capacity
impairment due
exclusively to the service-connected disability or disabilities” (emphasis
Mr. Fetty has presented evidence that his “heart disability requires [
three] hours of aerobic
workouts per week, which impacts his earning potential and presents
additional expenses,” that he
must travel to “Brooks AFB Hospital, TX, every three years, possibly for
life, for cardiac re-
evaluations,” and that his service-connected disabilities have reduced his
earning capacity. It is not
the duty of the Court to determine in the first instance whether these
constitute exceptional or
unusual factors. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d
per curiam, 78 F.3d 604
(Fed. Cir. 1996) (table) (requiring the Board to analyze the credibility
and probative value of the
evidence, account for the evidence that it finds to be persuasive or
unpersuasive, and provide the
reasons for its rejection of any material evidence favorable to the
claimant). In this case, the Board’s
limitation of its discussion to the symptoms attributable to those service-
connected disabilities
currently on appeal frustrates this Court’s review of the matter. See
Gilbert, 1 Vet.App. at 57 (an

adequate statement of reasons or bases enables a claimant to understand
the precise basis for the
Board’s decision and to facilitate review in this Court). The Court will
therefore remand the matter
of extraschedular consideration for readjudication consistent with this
On consideration of the foregoing, the Court SETS ASIDE the April 28, 2009,
decision as to (1) the effective date of Mr. Fetty’s 30% disability rating
for PTSD, (2) an increased
disabilityratingforbilateral pesplanus,and (3) extraschedularconsideration,
and REMANDS those
matters for further proceedings consistent with this decision. In pursuing
these claims on remand,
Mr. Fetty will be free to submit additional evidence and argument in
support of them, and the Board
is required to consider any such evidence and argument. See Kay v.
Principi, 16 Vet.App. 529, 534
(2002). A final decision by the Board following the remand herein ordered
will constitute a new
decision that, if adverse, may be appealed to this Court upon the filing
of a new Notice of Appeal
with the Court not later than 120 days after the date on which notice of
the Board’s new final
decision is mailed to Mr. Fetty. See Marsh v. West, 11 Vet.App. 468, 472 (
1998). The Board must
proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring
Secretary to provide for
“expeditious treatment” of claims remanded by the Court).
The Court also MODIFIES the Board decision to eliminate reference to
separate disability
ratings forkneepain,calfpain,andhammertoes,andAFFIRMS
DATED: September 30, 2011
Copies to:
Curtis W. Fetty, Esq.
VA General Counsel (027)

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