Veteranclaims’s Blog

August 3, 2017

Single Judge Application; Bankhead v. Shulkin, 29 Vet. App. 10, 21 (2017); Board May Not Impose External Gauge to Gainsay Severity of Symptoms; PTSD; Marriage;

Excerpt from decision below:

“Second, the Board did not explain how the veteran’s 19-year marriage demonstrated maintenance of effective relationships except to indicate that this relationship was not wholly severed by divorce. Nothing in the 70% evaluation criteria requires that a veteran be single or divorced; rather, the relevant question is whether a veteran is able to establish and maintain effective relationships. 38 C.F.R. § 4.130. The Board acknowledged evidence of marital problems,
there being evidence of the veteran’s irritability and anger, difficulty being intimate with his wife, and his fear that his PTSD symptoms would result in violence against his family, but it did not explain how the marriage constituted an effective relationship in light of this evidence. R. at 11.
In addition, the Board found that a higher evaluation was not warranted because Mr. Wells was able to manage his finances. Similarly, the 70% evaluation criteria do not require that a veteran be unable to manage his or her finances and, although the Board is certainly able under Vazquez-
Claudio to reference symptoms like those listed in the DC that are similar in severity, frequency, or duration and consider them in determining a veteran’s evaluation, under Bankhead v. Shulkin the Board may not impose an external gauge not present in the veteran’s disability picture to gainsay the severity of his particular set of symptoms. Bankhead v. Shulkin, 29 Vet. App. 10, 21 (2017). Therefore, to the extent that the Board’s determination relied upon its improper interpretation of the requirements for a 70% evaluation, it erred. See Massey v. Brown, 7 Vet.App. 204, 208 (1994) (“The Board’s consideration of factors which are wholly outside the rating criteria provided by the regulations is error as a matter of law.”); Pernorio v. Derwinski, 2 Vet.App. 625, 628 (1992) (holding that the Board errs “[i]n using a standard that exceeded that found in the regulation”).”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 15-4714
TONY A. WELLS, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
BARTLEY, Judge: Veteran Tony A. Wells appeals through counsel a September 4, 2015,
Board of Veterans’ Appeals (Board) decision denying entitlement to an initial evaluation in excess
of 50% for post-traumatic stress disorder (PTSD) and an initial evaluation in excess of 10% for a
right ring finger scar. Record (R.) at 2-25.1 Single-judge disposition is appropriate in this case.
See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely and the Court has
jurisdiction to review the Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the
reasons that follow, the Court will set aside the portions of the September 4, 2015, Board decision
denying an initial evaluation in excess of 50% for PTSD and an initial evaluation in excess of 10%
for right ring finger scar, and, along with the reasonably raised claim for entitlement to special
monthly compensation (SMC) due to erectile dysfunction secondary to service-connected PTSD
1 The Board also denied an initial compensable evaluation for ruptured right ring finger avulsion tendon
flexor digitorum profundus, but the veteran does not raise contentions of error with regard to that matter and the Court
will not address it. See R. at 19; Pederson v. McDonald, 27 Vet.App. 276, 281–85 (2015) (en banc) (declining to
review the merits of an issue not argued on appeal and dismissing the appeal of that issue); Cacciola v. Gibson,
27 Vet.App. 45, 48 (2014) (same). The Board also remanded a claim for entitlement to service connection for sleep
apnea, to include as secondary to PTSD and traumatic brain injury (TBI). R. at 2, 20-22. Because a remand is not a
final decision of the Board subject to judicial review, the Court does not have jurisdiction to consider that matter at
this time. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478
(2004) (per curiam order); 38 C.F.R. § 20.1100(b) (2017).
2
and TBI, remand those matters for further development, if necessary, and readjudication consistent
with this decision.
I. FACTS
Mr. Wells served on active duty in the U.S. Army from August 1991 to June 1997,
November 2003 to March 2004, and May 2005 to August 2006. See R. at 143. A January 1998
VA examination noted an in-service right ring finger injury with surgical repair of tendon damage.
R. at 665. In June 2011, the veteran filed a claim for service connection for right ring finger
surgery residuals and PTSD. R. at 606.
During an August 2011 VA contract examination, the veteran reported trouble sleeping,
mood swings, depression, erectile dysfunction, anxiety, headaches, difficulty forming words and
concentrating, trouble controlling his anger, and irritability, and that he preferred to be alone and
avoided crowds. R. at 574-76. He stated that his symptoms were severe and episodic and that
they resulted in strained relationships at work and home and decreased work productivity. Id. He
described his marriage as up and down, stated that he sometimes did not want to be around family
because they did not understand, and indicated that he occasionally missed work because he was
depressed and tired. Id. The examiner diagnosed PTSD, cognitive disorder not otherwise specified
(NOS), and depressive disorder NOS; noted that communication was grossly impaired and social
interaction was occasionally inappropriate because Mr. Wells was too crass with others; and
indicated that he had impaired impulse control, mood swings, depression, mild memory loss,
anxiety, and trouble concentrating. R. at 577-79. The examiner stated that psychiatric symptoms
were mild or transient but caused occupational and social impairment with decreased work
efficiency and occupational tasks only during periods of significant stress. R. at 572.
In March 2012, a VA regional office (RO) granted service connection for PTSD evaluated
as 30% disabling effective June 23, 2011. R. a 1053. In September 2012, the RO continued the
30% PTSD evaluation and granted service connection for a scar, residual of right ring finger
surgery with a noncompensable evaluation. R. at 520. In October 2012, Mr. Wells filed a Notice
of Disagreement (NOD) as to that decision. R. at 448. During a May 2013 VA contract scar
examination, the veteran reported that sometimes the skin on his right ring finger scar peeled. R. at
395-96. The examiner checked “no” in response to whether the scar was unstable with frequent
loss of skin covering over the scar. R. at 396, 402.
3
During a May 2013 VA contract PTSD examination, Mr. Wells indicated concern that his
irritability and anger would turn into violence toward loved ones and stated that his wife
complained that he was angry most of the time and cursed too much. R. at 376, 380. He reported
concentration and memory problems, anxiety, trouble sleeping, and nightmares and that he
sometimes went into work late given “how he feels in the morning.” Id. He stated that he did not
seek mental health treatment because he was concerned it would affect his security clearance. R.
at 380. The examiner noted the following PTSD symptoms—chronic sleep impairment, depressed
mood, anxiety, weekly or less often panic attacks, irritability or angry outbursts, difficulty
concentrating, hypervigilance, and exaggerated startle response—and stated that they caused
clinically significant distress or impairment in social, occupational, or other important areas of
functioning. R. at 381-82. The examiner diagnosed PTSD and cognitive disorder NOS and opined
that these conditions caused occupational and social impairment due to mild or transient symptoms
that decreased work efficiency and ability to perform occupational tasks only during periods of
significant stress. R. at 378-79.
In December 2013, Mr. Wells perfected his appeal as to the PTSD and right ring finger
scar claims. R. at 242. During an informal April 2014 Board hearing, the veteran indicated that
his disabilities interrupted daily activities such as socialization and using a pen to write. R. at 832.
During an April 2015 VA contract examination, Mr. Wells reported being married for 19
years but having great difficulty being intimate with his wife; little patience with his 5-year-old
daughter; often feeling detached, numb, and angry; substandard work productivity due to multiple
days off for migraines and PTSD symptoms; great difficulty interacting with others; and memory
deficits making it hard to remember names and tasks at home and work. R. at 83-84. The examiner
diagnosed PTSD, major depressive disorder, and minor neurocognitive disorder due to traumatic
brain injury (TBI). R. at 81. The examiner noted that due to these conditions Mr. Wells had the
following symptoms: depressed mood, anxiety, suspiciousness, panic attacks more than once a
week, chronic sleep impairment, mild memory loss, flattened affect, disturbances of mood and
motivation, difficulty establishing and maintaining effective work and social relationships,
difficulty adapting to stressful circumstances (including work or a worklike setting), and inability
to establish and maintain effective relationships. R. at 87.
The examiner also indicated that, as a result of PTSD, the veteran experienced irritability
and angry outbursts, reckless or self-destructive behavior, sleep disturbance, hypervigilance,
4
exaggerated startle response, and problems concentrating and that these disturbances caused
clinically significant distress or impairment in social, occupational, or other important areas of
functioning. R. at 86-87. Finally, the examiner stated that Mr. Wells’s symptoms overlapped
significantly and it was unclear whether depression and mood disturbances were secondary to
PTSD or TBI. R. at 82. The examiner opined that the veteran’s mental conditions caused
occupational and social impairment with reduced reliability and productivity. Id.
In the September 2015 decision on appeal, the Board found that a 50% evaluation, but no
higher, for PTSD was warranted and a 10% evaluation, but no higher, for right ring finger scar
was warranted. R. at 11, 15. This appeal followed.
II. ANALYSIS
Mr. Wells argues that the Board (1) provided inadequate reasons or bases for denying an
initial PTSD evaluation in excess of 50%; (2) relied on an inadequate VA examination or, at a
minimum, did not offer adequate reasons or bases for denying an initial right ring finger scar
evaluation in excess of 10%; and (3) failed to address the reasonably raised erectile dysfunction
claim and explain why he was not entitled to SMC based on loss of use of a creative organ.
Appellant’s Brief (Br.) at 8-19; Appellant’s Reply Br. at 7-9. The Secretary disputes the veteran’s
arguments and urges the Court to affirm the September 2015 Board decision. Secretary’s Br. 5-
20.
A. PTSD
PTSD is evaluated as 50% disabling when it causes
[o]ccupational and social impairment with reduced reliability and productivity due to such
symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding complex commands;
impairment of short- and long-term memory (e.g., retention of only highly learned material,
forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances
of motivation and mood; difficulty in establishing and maintaining effective work and
social relationships.
38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2017). To qualify for the next higher evaluation
of 70%, PTSD must manifest with
[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;
5
speech intermittently illogical, obscure, or irrelevant; near-continuous panic or
depression affecting the ability to function independently, appropriately and
effectively; impaired impulse control (such as unprovoked irritability with periods
of violence); spatial disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including work or a worklike
setting); inability to establish and maintain effective relationships.
Id. And, the maximum 100% evaluation for PTSD is warranted where the evidence shows:
[t]otal occupational and social impairment, due to such symptoms as: gross
impairment in thought processes or communication; persistent delusions or
hallucinations; grossly inappropriate behavior; persistent danger of hurting self or
others; intermittent inability to perform activities of daily living (including
maintenance of minimal personal hygiene); disorientation to time or place; memory
loss for names of close relatives, own occupation, or own name.
Id.
Use of the term “such symptoms as” in § 4.130 indicates that the list of symptoms that
follows is non-exhaustive, meaning that VA is not required to find the presence of all, most, or
even some of the enumerated symptoms to assign a particular evaluation. Vazquez-Claudio v.
Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed.
Cir. 2004); Mauerhan v. Principi, 16 Vet.App. 436, 442 (2002). However, because “[a]ll nonzero
disability levels [in § 4.130] are also associated with objectively observable symptomatology,” and
the plain language of the regulation makes it clear that “the veteran’s impairment must be ‘due to’
those symptoms,” “a veteran may only qualify for a given disability rating under § 4.130 by
demonstrating the particular symptoms associated with that percentage, or others of similar
severity, frequency, and duration.” Vazquez-Claudio, 713 F.3d at 116-17. “[I]n the context of a
70[%] rating, § 4.130 requires not only the presence of certain symptoms but also that those
symptoms have caused occupational and social impairment in most of the referenced areas.” Id.
at 117.
The Board’s determination of the appropriate degree of disability is a finding of fact subject
to the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4). See Smallwood
v. Brown, 10 Vet.App. 93, 97 (1997). As with any finding on a material issue of fact and law
presented on the record, the Board must support its degree-of-disability determination with an
adequate statement of reasons or bases that enables the claimant to understand the precise basis
for that determination and facilitates review in this Court, including providing reasons for rejecting
evidence favorable to the claimant. 38 U.S.C. § 7104(d)(1); Caluza v. Brown, 7 Vet.App. 498,
6
505-06 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gilbert v. Derwinski,
1 Vet.App. 49, 52 (1990).
Here, the Board found that Mr. Wells’s main symptoms during the appeal period—chronic
sleep impairment, nightmares, irritability, panic attacks more than once a week, memory
impairment, difficulty concentrating, hypervigilance, avoidance, and difficulty establishing and
maintaining relationships—warranted no more than a 50% PTSD evaluation. R. at 11. The Board
acknowledged the veteran’s statements and noted that the May 2013 and April 2015 VA
examinations showed significant distress or impairment in social, occupational, or other important
areas of functioning and that the April 2015 examiner indicated an inability to maintain family and
interpersonal relationships, but determined that symptoms appeared to produce difficulties in
reliability and productivity, criteria commensurate with a 50% evaluation. Id. The Board further
found that an evaluation in excess of 50% was not warranted because the veteran had remained
married for 19 years despite evidence of marital problems, consistently denied suicidal and
homicidal ideation, and was able to manage his finances, and thus did not experience deficiencies
in most areas. R. at 11. The Court agrees with the veteran that the Board failed to provide adequate
reasons or bases for denying an initial PTSD evaluation in excess of 50%. Appellant’s Br. at 11-
14.
First, the Board did not address favorable evidence of gross impairment in communication, impaired impulse control, and difficulty in adapting to stressful circumstances that may warrant a higher PTSD evaluation. See Appellant’s Br. at 11-12; Caluza, 7 Vet.App. at 505-06. During the August 2011 VA examination, the veteran reported difficulty forming words and the examiner stated that communication was grossly impaired, a symptom commensurate with a 100% PTSD evaluation. R. at 577-79. In addition, the August 2011 examiner noted impaired impulse control, R. at 577, and during the May 2013 examination, the examiner noted irritability or angry outbursts and Mr. Wells indicated concern that these symptoms would turn into violence toward loved ones.
R. at 380-82. Although the Board noted irritability as a factor warranting a 50% evaluation, the Board did not explain how the aforementioned evidence did not warrant a higher evaluation, particularly given that impaired impulse control such as unprovoked irritability with periods of violence is a criterion under the 70% evaluation. Finally, the April 2015 examiner stated that the veteran had difficulty adapting to stressful circumstances including work or a worklike setting, a
symptom commensurate with a 70% evaluation. R. at 87. The Board did not address this evidence.
7
Therefore, the Board failed to explain its rejection of favorable evidence possibly demonstrating symptoms commensurate with a higher PTSD evaluation, see Caluza, 7 Vet.App. at 505-06, and remand is thus warranted, see Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy where the Board has incorrectly applied the law, failed to provide an
adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate).
Second, the Board did not explain how the veteran’s 19-year marriage demonstrated maintenance of effective relationships except to indicate that this relationship was not wholly severed by divorce. Nothing in the 70% evaluation criteria requires that a veteran be single or divorced; rather, the relevant question is whether a veteran is able to establish and maintain effective relationships. 38 C.F.R. § 4.130. The Board acknowledged evidence of marital problems,
there being evidence of the veteran’s irritability and anger, difficulty being intimate with his wife, and his fear that his PTSD symptoms would result in violence against his family, but it did not explain how the marriage constituted an effective relationship in light of this evidence. R. at 11.
In addition, the Board found that a higher evaluation was not warranted because Mr. Wells was able to manage his finances. Similarly, the 70% evaluation criteria do not require that a veteran be unable to manage his or her finances and, although the Board is certainly able under Vazquez-Claudio to reference symptoms like those listed in the DC that are similar in severity, frequency, or duration and consider them in determining a veteran’s evaluation, under Bankhead v. Shulkin the Board may not impose an external gauge not present in the veteran’s disability picture to gainsay the severity of his particular set of symptoms. Bankhead v. Shulkin, 29 Vet. App. 10, 21 (2017). Therefore, to the extent that the Board’s determination relied upon its improper interpretation of the requirements for a 70% evaluation, it erred. See Massey v. Brown, 7 Vet.App. 204, 208 (1994) (“The Board’s consideration of factors which are wholly outside the rating criteria provided by the regulations is error as a matter of law.”); Pernorio v. Derwinski, 2 Vet.App. 625, 628 (1992) (holding that the Board errs “[i]n using a standard that exceeded that found in the regulation”).
Third, the Board failed to address an inherent discrepancy in the April 2015 examination
report regarding social and occupational impairment. The April 2015 examiner opined that the
veteran’s mental conditions caused occupational and social impairment with reduced reliability
and productivity and difficulty establishing and maintaining effective work and social
8
relationships, R. at 82, 87, characterizations commensurate with a 50% evaluation, as well as an
inability to establish and maintain effective relationships, R. at 87, a symptom commensurate with
a 70% evaluation. Although the Board acknowledged each of these statements, it did not discuss
this fundamental variance within the examination report. Therefore, remand will provide the
Board the opportunity to address this issue.
B. Right Ring Finger Scar
The Board found that a 10% evaluation under diagnostic code (DC) 7804 was warranted
because Mr. Wells had one painful scar, but determined that a higher evaluation was not warranted
because medical and lay evidence did not show that the scar was also unstable. R. at 15. DC 7804
provides a 10% evaluation for “one or two scars that are unstable or painful,” noting that an
“unstable scar” is “one where, for any reason, there is frequent loss of covering of skin over the
scar.” 38 C.F.R. § 4.118, DC 7804 (2017). The regulation further notes that if “one or more scars
are both unstable and painful, add 10[%] to the evaluation based on the total number of unstable
or painful scars.” Id.
A VA medical examination or opinion is adequate “where it is based upon consideration
of the veteran’s prior medical history and examinations,” Stefl v. Nicholson, 21 Vet.App. 120, 123
(2007), “describes the disability . . . in sufficient detail so that the Board’s ‘evaluation of the claimed
disability will be a fully informed one,'” id. (quoting Ardison v. Brown, 6 Vet.App. 405, 407
(1994)), and “sufficiently inform[s] the Board of a medical expert’s judgment on a medical
question and the essential rationale for that opinion,” Monzingo v. Shinseki, 26 Vet.App. 97, 105
(2012). See Green v. Derwinski, 1 Vet.App. 121, 124 (1991). The Board cannot rely on an
examination report unless it contains sufficient rationale. Nieves-Rodriguez v. Peake, 22 Vet.App.
295, 304 (2008).
Here, the May 2013 VA scar examiner failed to provide an adequate rationale for his
conclusion that the veteran’s scar was stable. R. at 56. Although there is no reasons or bases
requirement imposed on examiners, Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012), “an
adequate medical report must rest on correct facts and reasoned medical judgment so as to inform
the Board on a medical question and facilitate the Board’s consideration and weighing of the report
against any contrary reports.” Nieves-Rodriguez, 22 Vet.App. at 301. Mr. Wells reported that skin
on his right ring finger scar peels and the examiner, without an explanation, indicated that the scar
was stable, i.e., that there was no frequent loss of skin covering over the scar. R. at 396. It is
9
unclear why the May 2013 examiner made such a determination, see Nieves-Rodriguez,
22 Vet.App at 304, and the Board failed to provide adequate reasons or bases for relying on this
conclusion, see Caluza, 7 Vet.App. at 505-06. Remand is therefore required for the Board to
address this matter and determine if a new VA examination is necessary. See Nieves-Rodriguez,
22 Vet.App. at 304; Tucker, 11 Vet.App. at 374.
C. Erectile Dysfunction
Mr. Wells argues that the record reasonably raised the issue of erectile dysfunction and
entitlement to SMC based on loss of a creative organ. Appellant’s Br. at 15-16. It is well
established that the Board is required to consider all theories of entitlement to VA benefits that are
either raised by the claimant or reasonably raised by the record. Schroeder v. West, 212 F.3d 1265,
1271 (Fed. Cir. 2000); Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub nom. Robinson
v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); see also Clemons v. Shinseki, 23 Vet.App. 1, 3 (2009)
(per curiam order) (noting that the Court has “jurisdiction to remand to the Board any matters that
were reasonably raised below that the Board should have decided, with regard to a claim properly
before the Court, but failed to do so”).
Here, the record contains indicia that a claim for entitlement to SMC due to erectile
dysfunction secondary to service-connected PTSD and TBI was reasonably raised by the record
and therefore should have been addressed by the Board. During VA mental health examinations,
Mr. Wells reported erectile dysfunction, R. at 574 (August 2011 VA examination indicating PTSD
and cognitive disorder NOS diagnoses), and great difficulty being intimate with his wife, R. at 84
(August 2015 VA examination noting PTSD and minor neurocognitive disorder due to TBI
diagnoses). Accordingly, the Board was required to address the issue of entitlement to SMC due
to erectile dysfunction secondary to service-connected PTSD and TBI and because it failed to do
so, remand is required. See Schroeder, 212 F.3d at 1271; Robinson, 21 Vet.App. at 552; see also
Tucker, 11 Vet.App. at 374. Therefore, the Court will remand for the Board to provide a decision
as to such reasonably raised claim or to remand to the agency of original jurisdiction for
development as needed.
In sum, the Court will remand for the Board to provide adequate reasons or bases for
denying an initial evaluation in excess of 50% for PTSD and an initial evaluation in excess of 10%
for right ring finger scar as well as to the address the reasonably raised claim for entitlement to
SMC due to erectile dysfunction secondary to service-connected PTSD and TBI. The veteran is
10
free on remand to submit any additional arguments and evidence in accordance with
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must
consider any such argument or evidence submitted. See Kay v. Principi, 16 Vet.App. 529, 534
(2002). The Court reminds the Board that “[a] remand is meant to entail a critical examination of
the justification for the [Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991),
and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.
III. CONCLUSION
Upon consideration of the foregoing, the portions of the September 4, 2015, Board decision
denying an initial evaluation in excess of 50% for PTSD and an initial evaluation in excess of 10%
for a right ring finger scar are SET ASIDE and, along with the reasonably raised claim for
entitlement to SMC due to erectile dysfunction secondary to service-connected PTSD and TBI,
are REMANDED for further development, if necessary, and readjudication consistent with this
decision.
DATED: July 31, 2017
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

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