Veteranclaims’s Blog

December 21, 2017

Single Judge Application; medical evidence is not inherently more valuable than lay evidence; Buchanan, 451 F.3d at 1336;

Excerpt from decision below:

“The Court holds that the Board’s reasons or bases are flawed and inadequate for finding more probative the medical evidence of the appellant’s symptoms than the appellant’s lay testimony. Although it is the Board’s responsibility to weigh the probative value of the evidence, see Washington, 19 Vet.App. at 366-76; Owens, 7 Vet.App. at 433, the Board must also “articulate permissible bases for rejecting the probative value of lay statements,” Buchanan, 451 F.3d at 1337.
The fact that medical evidence is based upon “the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches,” R. at 13, is not a permissible basis for favoring the medical evidence of symptoms over the competent lay testimony of record. Both this Court and the Federal Circuit have held that laypersons are competent to testify regarding observable symptoms and that permissible reasons for discounting lay testimony include factors such as bias, plausibility, and
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self-interest. See Jandreau, 492 F.3d at 1377 (noting that, e.g., a layperson is competent to identify a broken leg but not a form of cancer); Buchanan, 451 F.3d at 1337 (“[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.”); Barr, 21 Vet.App. at 307 (holding that a veteran is competent to report on observable symptomatology); Caluza, 7 Vet.App. at 511
(explaining that, when assessing the credibility of lay statements, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record).
Medical evidence is not inherently more valuable than lay evidence simply because it is “medical” evidence, and, here, the Board seems to require that medical evidence corroborating the appellant’s lay statements was necessary to substantiate his claim for a higher rating. See Buchanan, 451 F.3d at 1336.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 16-2603
AGUSTIN MATOS, JR., APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

PIETSCH, Judge: Agustin Matos, Jr., appeals through counsel a May 24, 2016, Board of
Veterans’ Appeals (Board) decision that denied entitlement to a disability rating greater than 30% for an anxiety disorder. This appeal is timely and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate as the issue is of “relative simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the Board’s decision and remand the matter for readjudication consistent with this decision.

I. FACTS
From February 2003 to June 2004, Mr. Matos served on active duty in the Army National
Guard in support of Operation Enduring Freedom. R. at 781. In August 2003, he reported that
during the past month he had experienced symptoms of nightmares, avoidance, guardedness,
watchfulness, numbness, and detachment. R. at 1954. In November 2003, he reported that he had
trouble sleeping because he had had vivid dreams about being on patrol in the desert that woke
him from his sleep; he was prescribed Trazadone. R. at 39. In March 2004, he reported that he had
trouble sleeping and sexual performance issues. R. at 71.
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In April 2004, Mr. Matos filed a claim for service connection for post-traumatic stress
disorder (PTSD). R. at 2489. In May 2004, he reported that during the past month he had
experienced nightmares, avoidance, guardedness, watchfulness, numbness, and detachment. R. at
1641. In July 2004, he reported to his VA treating psychiatrist fear of lightning and underpasses,
and irritation caused by noisy and crowded places; he was diagnosed with PTSD. R. at 1001.
Also in July 2004, Mr. Matos underwent a VA compensation and pension exam for PTSD.
R. at 344. He reported frequent flashbacks; intrusive memories; that he was easily frustrated,
distracted, and irritated; that he screamed about minor problems, lost his temper about minor
frustrations, and was “always on edge;” and that he experienced discomfort at noisy gatherings
and was easily startled by loud noises. R. at 345, 346. He also reported that he disliked visits from
his extended family; that when hearing noises at night, he woke easily and would check his house
for intruders; that he rarely slept more than 4 hours per night due to nightmares; that after having
nightmares, he would wake up in a cold sweat with heart palpitations; and that he felt anxious
about his fellow soldiers until they returned from deployment. Id.
The examiner noted that Mr. Matos had symptoms of tense and dysphoric mood, some
impaired concentration, incipient panic attacks when waking from nightmares, early/middle
insomnia that resulted in daytime fatigue, hypervigilance, irritability, exaggerated startle response,
and signs of numbing avoidance. R. at 347-48. The examiner also noted that Mr. Matos reexperienced
credible combat stressors through nightmares, flashbacks, and intrusive thoughts and
memories. R. at 348. The examiner opined that Mr. Matos’s interview results were consistent with
a diagnosis of PTSD; assigned a Global Assessment of Functioning (GAF) score of 49, with a
range of 45 to 55 in the preceding year; and concluded that Mr. Matos exhibited social impairment
and likely occupational impairment due to his PTSD. R. at 347-48.
In a September 2004 rating decision, the VA regional office (RO) granted service
connection for PTSD and assigned a 30% disability rating, effective from June 18, 2004. R. at
2408. In February 2007, Mr. Matos reported during the previous month experiencing nightmares,
avoidant behavior, guardedness, and watchfulness. R. at 1337. In September 2008, he requested
an increased rating for his PTSD and reported sexual difficulties and “constant reminders of the
war…still in [his] head.” R. at 1270.
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In April 2008, Mr. Matos underwent another VA PTSD examination. R. at 1206-14. The
examiner noted that Mr. Matos had suffered no symptoms during the preceding year and was not
currently receiving mental health treatment. R. at 1207. Mr. Matos reported insomnia and sleeping
only 4 hours a night; weekly nightmares; recurrent distressing dreams; that he had sleep apnea and
used a CPAP machine; and that his energy level was “up and down.” R. at 1207, 1209. He also
reported marked avoidance associated with trauma, irritability or outbursts of anger,
hypervigilance, and exaggerated startle response. R. at 1210. He denied obsessive/ritualistic
behavior, panic attacks, or homicidal or suicidal thoughts. Id. He had fair impulse control with no
episodes of violence. Id. Mr. Matos also reported that he had been married for 18 years and
described his marriage in generally positive terms. R. at 1207. He reported having approximately
15 friends and enjoying gardening and watching sports. Id.
The examiner noted that Mr. Matos suffered intense psychological distress at exposure to
cues resembling aspects of the traumatic events; weekly upsetting memories triggered by news
coverage of Iraq; and weekly flashbacks. R. at 1207; 1209-10. The examiner noted that Mr. Matos
was neatly groomed and had unremarkable speech and a normal affect. R. at 1208. His attention
was intact and he was oriented with no delusions. R. at 1208-09. The examiner opined that Mr.
Matos no longer met the criteria for PTSD but had residual PTSD symptoms of infrequent
nightmares and flashbacks. R. at 1212. He diagnosed Mr. Matos as having anxiety disorder, not
otherwise specified (NOS), and assigned a GAF score of 65. R. at 1212. The examiner noted that
Mr. Matos’s psychological problems had improved in the last three years despite his not receiving
mental health treatment during that time. R. at 1213.
In a July 2008 rating decision, the RO continued Mr. Matos’s 30% disability rating. R. at
1179-80. In November 2008, Mr. Matos was referred to VA by his primary care physician for a
psychiatric evaluation. R. at 1013. He reported symptoms of getting angry easily, especially “if
things don’t go his way,” and having “no patience” and intolerance when people don’t see “the
obvious.” R. at 1013. He reported that he was more emotional, tearing up when seeing something
sad on television; “restless nights”; a history of nightmares; waking up with his heart pounding
and breathing hard; flashbacks about twice weekly with a history of more frequent flashbacks;
repeated thoughts and memories that were disturbing, but that he was usually able to process and
move on from after a few minutes; being avoidant of crowds; hypervigilance; difficulty relating to
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anyone who hadn’t been where he had. Id. He further reported that he slept about 4 to 5 hours a
night, that his energy and motivation levels were within normal limits, and that he maintained a
full time job. R. at 1014. He rated the overall severity of his distress and interference in his life as
“5-7” on a scale of 1 to 10. Id.
The nurse-practitioner who evaluated Mr. Matos reported that he had been married since
1989, had two teenage children, and that he described his marriage relationship as good. R. at 1015.
She reported that Mr. Matos was casually dressed with good grooming and hygiene and he was
alert and oriented; his mood was anxious/neutral overall and his affect was in the fair range. Id.
There were no reported hallucinations and his insight and judgment were intact with no memory
deficits noted. Id. Mr. Matos denied any suicidal or violent ideations. Id. She diagnosed Mr. Matos
with PTSD and assigned a GAF score of 58. Id.
In December 2008, Mr. Matos submitted his Notice of Disagreement (NOD) with the July
2008 rating decision and stated that he continued to have nightmares, recurring thoughts, and
hypervigilance. R. at 1154.
In January 2009, Lois Mueller treated Mr. Matos for anger at a VA clinic. R. at 1012. Mr.
Matos reported that he had worked as a corrections officer for 20 years; that he was somewhat
suspicious of others; that he was always on guard; that he had nightmares of combat; that
overpasses reminded him of attacks; that smells and fireworks triggered hypervigilance; that his
appetite was good; and that he enjoyed activities. Id. Ms. Mueller noted that Mr. Matos was wellgroomed;
that he was cooperative but somewhat guarded; that he was oriented; that his mood was
irritated with congruent affect; that his insight was fair; that his judgment and attention were good;
and that he was having concentration problems. Id. There was no history of suicidal or homicidal
ideation, plans, or intent. Id. Ms. Mueller diagnosed Mr. Matos as having PTSD. Id.
In March 2009, Ms. Mueller again treated Mr. Matos; she found that he continued to suffer
from PTSD and assigned a GAF score of 58. R. at 1010. She again treated Mr. Matos in September
2009. R. at 1009. Mr. Matos reported that he was sad and had nightmares, and Ms. Mueller noted
that Mr. Matos had a depressed mood and assigned a GAF score of 60. Id.
In November 2009, Mr. Matos reported to Ms. Mueller that he was doing better avoiding
situations that provoked his anger. R. at 1007. However, he reported experiencing difficulty with
his anger at work, including a situation when one employee was favored over others. Id. He
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admitted to being much more sensitive to such things since being back from Iraq. Id. Ms. Mueller
noted that Mr. Matos was dressed and groomed neatly; that he exhibited fair judgment and insight;
that his attention and concentration were fair; that his memory appeared to be intact; that he was
fully oriented with no evidence of a thought disorder; that his mood was depressed and angry; that
his affect and mood were congruent; that his speech was logical and goal-directed; and that he
reported no suicidal or homicidal ideation. R. at 1007-08. He was diagnosed with PTSD and
assigned a GAF score of 60. R. at 1008. Later that same month, Mr. Matos reported nightmares
and flashbacks. R. at 1004.
In January 2010 the RO issued a Statement of the Case (SOC), R. at 944-78, and Mr. Matos
appealed to the Board in February 2010, R. at 920. In February 2010, Mr. Matos reported to Ms.
Mueller that he continued to have anger problems at work, though he was controlling his anger
through avoidance. R. at 748. A GAF score of 60 was assigned. Id. In March 2010, Mr. Matos
reported that he had kicked his daughter’s belongings in her room and shoved his daughter and
wife. R. at 738. Ms. Mueller noted Mr. Matos had an anxious mood and assigned a GAF score of
60. R. at 739. On April 14, 2010, Mr. Matos’s appeal was certified to the Board. R. at 884.
In June 2010, Mr. Matos reported continued marital issues and discussed that he planned
to move out of the family home because he could not get along with his wife and daughter. R. at
736. Ms. Mueller noted his anxious mood and assigned a GAF score of 61. R. at 736-37. Later that
month, Mr. Matos reported that he still had nightmares. R. at 729. In August 2010, Ms. Mueller
noted that Mr. Matos had reduced his anger level and improved his relationship with his family.
R. at 713. She assigned a GAF score of 65. Id.
In May 2012, Mr. Matos reported that he had nightmares; thought about his triggers when
he did not want to; was constantly on guard, watchful, or easily startled; and felt numb and
detached from others, his activities, and his surroundings. R. at 605-06. He screened positive for
PTSD. R. at 605.
At a July 2012 Board hearing, Mr. Matos testified that, when he had been living in New
York, he had received regular treatment for his psychiatric disability but that, since he had
relocated to Florida, he had not. R. at 851-52. He further testified that he was employed at a
university as a safety officer; had Army buddies in New York who came to visit; did not associate
as friends with his coworkers; was annoyed with things about which his coworkers complained;
6
would rather be alone when working and when at home; did not like being around crowds; when
away from home, positioned himself facing the door and was always vigilant of his surroundings;
and had flashbacks of being in Iraq when in sight of road overpasses, mourning doves, or
fireworks. R. at 852-54. Mr. Matos also described recently having had a “big blow up” with his
wife and then, afterwards, having separated himself to cool off and then later returning home and
going straight to bed. R. at 855. He testified that he had panic attacks about twice a week either
when in a crowd or when some memory of Iraq would come back. Id. He also testified that he
slurred his speech sometimes; had some short- and long-term memory difficulties; had some
difficulty comprehending complex commands; lost a few days of work due to his anxiety attacks;
and had a short fuse, noting that things and people aggravated him. R. at 856-58.
In January 2013, Mr. Matos reported recurring thoughts and dreams and problems with his
triggers. R. at 575. In April 2014, he reported that he experienced flashbacks. R. at 465. That same
month, the Board remanded Mr. Matos’s anxiety disorder claim to obtain all VA treatment records
dated after January 2010 and to obtain a new psychiatric examination, because Mr. Matos had
indicated at his July 2012 hearing that his anxiety symptoms had increased in severity since the
last VA examination in July 2008. R. at 804.
In August 2014, Mr. Matos underwent another VA examination for mental disorders. R. at
445-50. Mr. Matos reported that in July 2014, he had completed his Bachelor’s degree in computer
networking and cyber security; that he had been married for 25 years; that he had friends and
hobbies; that his daughter and grandson lived with him and he sometimes helped watch his
grandson; that he was currently employed doing building maintenance and computer technology
for a residence home; that previously he had been a safety officer at a university but changed jobs
because of a long commute; that he was not currently receiving treatment for his anxiety disorder;
that he had close ties with other family members (wife, daughters, grandson, and sibling) and was
able to hold different jobs. R. at 446-47.
The examiner concluded that Mr. Matos was not suicidal, homicidal, or psychotic and that
he experienced anxiety, chronic sleep impairment, and watchfulness. R. at 447-48. The examiner
opined that Mr. Matos’s symptoms were mild and that most symptoms were occasional or sporadic.
R. at 450. He diagnosed Mr. Matos with unspecified anxiety disorder and concluded that his
psychiatric disability resulted in occupational and social impairment due to mild or transient
7
symptoms that decreased work efficiency and the ability to perform occupational tasks only during
periods of significant stress, or that his symptoms were controlled by medication. R. at 445.
On November 22, 2014, the Appeals Management Center issued a Supplemental SOC
confirming the denial of Mr. Matos’s claim for an increased rating for an anxiety disorder. R. at
435. On May 24, 2016, the Board issued the decision currently on appeal. R. at 1-16.
II. ANALYSIS
PTSD is evaluated under the general rating criteria for mental disorders found at 38 C.F.R.
§ 4.130, Diagnostic Code (DC) 9411. In evaluating mental disorders, the Board must consider all
the evidence of record, determine the nature of the appellant’s overall disability picture, and then
look to the list of symptoms outlined in the diagnostic criteria as examples that can provide
guidance in determining the severity of the appellant’s condition. Mauerhan v. Principi,
16 Vet.App. 436, 442 (2002). Under DC 9411, a 30% disability is warranted when a claimant’s
mental disorder results in
[o]ccupational and social impairment, with occasional decrease in work efficiency
and intermittent periods of inability to perform occupational tasks (although
generally functioning satisfactorily, with routine behavior, self-care, and
conversation normal), due to such symptoms as: depressed mood, anxiety,
suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild
memory loss (such as forgetting names, directions, recent events).
38 C.F.R. § 4.130, DC 9411 (2017). A 50% disability rating is warranted when a claimant’s mental
disorder results in
[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.
Id. A 70% disability rating is warranted when a claimant’s mental disorder results in
[o]ccupational and social impairment, with deficiencies in most areas, such as
work, school, family relations, judgment, thinking, or mood, due to such symptoms
8
as: suicidal ideation; obsessional rituals which interfere with routine activities;
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. Pursuant to a VA regulation, “where 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 for that rating. Otherwise, the lower rating will be assigned.” 38 C.F.R. § 4.7 (2017).
In Vazquez-Claudio v. Shinseki, the U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) held that assignment of disability ratings under DC 9411 requires a two-part analysis of
(1) an “initial assessment of the symptoms displayed [. . .] and if they are the kind enumerated in
the regulation,” and (2) “an assessment of whether those symptoms result in occupational and
social impairment.” 713 F.3d 112, 117-18 (Fed. Cir. 2013). In Mauerhan, the Court held that the
symptoms listed in DC 9411 are “not intended to constitute an exhaustive list, but rather are to
serve as examples of the type and degree of symptoms, or their effects, that would justify a
particular rating.” 16 Vet.App. at 442. The Board is required to “consider all symptoms of a
claimant’s condition that affect the level of occupational and social impairment,” not just those
listed in the regulation. Id. at 443.
Thus, when determining the appropriate disability evaluation to assign, the veteran’s
symptoms are the Board’s “primary consideration.” Vazquez-Claudio, 713 F.3d at 118. However,
“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.” Id. at 117. “The regulation’s plain language highlights its symptom-driven nature” and
“symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given
disability rating.” Id. at 116-17.
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); Johnston v. Brown, 10 Vet.App. 80, 84 (1997). “A factual
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
9
committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948)).
As with any finding on a material issue of fact or law presented on the record, the Board
must support its determination of the appropriate degree of disability with an adequate statement
of reasons or bases that enables the claimant to understand the precise basis for that finding and
facilitates review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527
(1995); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Gilbert v. Derwinski, 1 Vet.App. 49, 57
(1990). To comply with this requirement, the Board must 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. Caluza v.
Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table);
Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert, 1 Vet.App. at 57.
In the present appeal, the appellant contends that the Board failed to provide adequate
reasons or bases for rejecting the favorable lay evidence found in his July 2012 Board hearing
testimony. Appellant’s Brief (App. Br.) at 10-15. During the July 2012 hearing, the appellant
testified that he suffered from twice-weekly panic attacks, that he had missed work due to anxiety
attacks, and that he suffered short- and long-term memory impairment, which are symptoms, the
appellant argues, that entitle him to a rating greater than 30% since these symptoms are listed as
examples warranting a 50% rating. Id.; see 38 C.F.R. § 4.130, DC 9411.
“Lay testimony is competent . . . to establish the presence of observable symptomatology
and ‘may provide sufficient support for a claim of service connection.'” Barr v. Nicholson,
21 Vet.App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994)); see Jandreau
v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that whether lay evidence is
competent and sufficient in a particular case is a factual issue to be addressed by the Board). If the
disability is of the type for which lay evidence is competent, the Board must weigh that evidence
against the other evidence of record. Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir.
2006); see Owens v. Brown, 7 Vet.App. 429, 433 (1995) (holding that it is the Board’s
responsibility to determine the credibility and probative value of evidence); Wood v. Derwinski,
1 Vet.App. 190, 193 (1991). However, such determinations must be supported by adequate reasons
10
or bases, Washington, 19 Vet.App. at 366-67, and the Board must articulate permissible bases for rejecting the probative value of lay statements, Buchanan, 451 F.3d at 1337.
In the decision on appeal, the Board supported its assignment of a 30% rating by finding that there was no “medical evidence” of symptoms warranting a 50% rating, such as panic attacks more than once per week, difficulty in understanding complex commands, impairment of long and short-term memory, disturbances of motivation and mood, or difficulty in establishing or maintaining effective work and social relationships. R. at 10-11. The Board further explained that, although the objective medical evidence showed “mild memory impairments, outbursts of anger,
problems with depressed mood, concentration and problems at work,” such symptomatology was “not shown to rise to the level contemplated in the criteria for a 50% rating.” R. at 11.
Although the Board acknowledged the appellant’s July 2012 testimony of his symptoms, R. at 9, and stated that it had “not overlooked [the appellant’s] statements regarding the severity of his . . . psychiatric symptoms,” R. at 12, a reading of the Board’s analysis shows that it did just that. The Board concluded that “the objective medical findings and opinions provided by the VA examiners of record are afforded the greater probative weight” than the lay evidence of record, including the appellant’s July 2012 hearing testimony, because “the probative value of medical
opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.” R. at 13.
The Court holds that the Board’s reasons or bases are flawed and inadequate for finding more probative the medical evidence of the appellant’s symptoms than the appellant’s lay testimony. Although it is the Board’s responsibility to weigh the probative value of the evidence, see Washington, 19 Vet.App. at 366-76; Owens, 7 Vet.App. at 433, the Board must also “articulate permissible bases for rejecting the probative value of lay statements,” Buchanan, 451 F.3d at 1337.
The fact that medical evidence is based upon “the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches,” R. at 13, is not a permissible basis for favoring the medical evidence of symptoms over the competent lay testimony of record. Both this Court and the Federal Circuit have held that laypersons are competent to testify regarding observable symptoms and that permissible reasons for discounting lay testimony include factors such as bias, plausibility, and
11
self-interest. See Jandreau, 492 F.3d at 1377 (noting that, e.g., a layperson is competent to identify a broken leg but not a form of cancer); Buchanan, 451 F.3d at 1337 (“[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.”); Barr, 21 Vet.App. at 307 (holding that a veteran is competent to report on observable symptomatology); Caluza, 7 Vet.App. at 511
(explaining that, when assessing the credibility of lay statements, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record).
Medical evidence is not inherently more valuable than lay evidence simply because it is “medical” evidence, and, here, the Board seems to require that medical evidence corroborating the appellant’s lay statements was necessary to substantiate his claim for a higher rating. See Buchanan, 451 F.3d at 1336.

Therefore, the Court will vacate the Board’s decision and remand it for the Board to
adequately weigh the probative value of the appellant’s lay statements and provide an adequate
statement of reasons or bases in this regard. See Allday, 7 Vet.App. at 527.
Further, in his reply brief, the appellant argues that, considering his 2012 testimony of more
severe symptoms than those found in evidence dated before or after, the Board should have
considered whether staged ratings for his service-connected anxiety disorder are appropriate. App.
Reply Br. at 6-7 (noting the appellant’s 2012 testimony that he “suffered from twice-weekly panic
attacks and memory impairment” and arguing that VA’s “reliance on medical records from 2008”
to find that his panic attacks and memory impairment symptoms were less severe “ignores the full
context of [his] disability.”). The Court agrees. The Board stated that it “would consider” staged
ratings in its analysis, R. at 5, but provided no actual analysis of the appropriateness of staged
ratings. Thus, it is not clear that the Board considered whether staged ratings should be assigned
when it determined that the appellant was not entitled to a rating in excess of 30% for his anxiety
disorder. See Hart v. Mansfield, 21 Vet.App. 505, 510 (2007) (holding that it is appropriate to
assign separate disability ratings for distinct periods, known as “staged” ratings, where “factual
findings show distinct time periods where the service-connected disability exhibits symptoms that
would warrant different ratings”); Fenderson v. West, 12 Vet.App. 119, 126 (1999). On remand,
the Board must discuss whether, based on the appellant’s lay testimony of his symptoms during
the 2012 Board hearing, staged ratings should be assigned for his service-connected anxiety
disorder.
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The appellant also contends that the Board conceded that he experienced the symptoms of
“disturbances of motivation and mood” and “difficulty establishing and maintaining effective work
and social relationships,” both of which are listed in the rating criteria as symptoms warranting a
50% rating. 38 C.F.R. § 4.130; App. Br. at 12. At this time, the Court declines to address this
argument. See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) (holding that the Court will not
ordinarily consider additional allegations of error that have been rendered moot by the Court’s
opinion or that would require the Court to issue an advisory opinion); Best v. Principi, 15 Vet.App.
18, 20 (2001) (noting that the factual and legal context may change following a remand to the
Board and explaining that “[a] narrow decision preserves for the appellant an opportunity to argue
those claimed errors before the Board at the readjudication, and, of course, before this Court in an
appeal, should the Board rule against him”).
On remand, the appellant may present, and the Board must consider, any additional
evidence and argument in support of the matter remanded. See Kay v. Principi, 16 Vet.App. 529,
534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court
has held that “[a] remand is meant to entail a critical examination of the justification for the
decision.” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). This matter is to be provided
expeditious treatment on remand. See 38 U.S.C. § 7112.
III. CONCLUSION
Upon consideration of the foregoing analysis, the record of proceedings before the Court,
and the parties’ pleadings, the May 24, 2016, Board decision is VACATED and the matter is
REMANDED for readjudication consistent with this decision.
DATED: December 20, 2017
Copies to:
Christine M. Cote Hill, Esq.
VA General Counsel (027)

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