Veteranclaims’s Blog

July 30, 2018

Single Judge Application; analysis required by Vazquez-Claudio, 713 F.3d at 116-17; Mittleider v. West, 11 Vet.App. 181, 182 (1998); Bankhead, 29 Vet.App. at 22;

Excerpt from decision below:

“As support for its assignment of a 50% rating but no higher, the Board noted the 2015 examiner’s
8
findings that Mr. Eringi’s “speech was appropriate, he had good hygiene, and demonstrated good judgment and impulse control.” R. at 9. Without further explanation of the 2015 examination report, it concluded that the examination “testing results [were] consistent with mild symptoms of PTSD.” Id. The Board did not acknowledge that the 2015 examiner also documented symptoms of “[r]ecurrent, involuntary, and intrusive distressing memories” of his in-service stressor; “[p]ersistent negative emotional state (e.g. fear, horror, anger, guilt, or shame);” “[m]arkedly diminished interest or participation in significant activities;” “[f]eelings of detachment or estrangement from others;” and “[p]ersistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings).” R. at 38.
Although the Board is presumed to have considered all evidence of record when making its decision, Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007), that presumption does not relieve the Board of its independent obligation to perform the analysis required by Vazquez-Claudio—that is, to assess the severity, frequency, and duration of all psychiatric symptoms of record when determining the appropriate disability evaluation to assign for a service-connected mental disorder. 713 F.3d at 116-17; see also Mittleider v. West, 11 Vet.App. 181, 182 (1998) (explaining that the need for adequate reasons or bases is “particularly acute when [Board] findings and conclusions pertain to the degree of disability resulting from mental disorders”). Here, the Board failed to consider all of the symptoms found in the medical evidence concerning Mr. Eringi’s social interactions and relationships and all of the evidence found in the 2015 VA examination. Because the Board must account for all material evidence of record that may potentially support a higher evaluation, Caluza, 7 Vet.App. at 506, and because the veteran’s symptoms are the “primary consideration” in assigning a disability evaluation under § 4.130, Vasquez-Claudio, at 713 F.3d at118, the Board’s error of not discussing and analyzing this evidence rendered inadequate its reasons or bases for denying an initial PTSD evaluation in excess of 50%. See Bankhead, 29 Vet.App. at 22 (holding that, “[w]here . . . the Board fails to adequately assess evidence of a sign or symptom experienced by the veteran, misrepresents the meaning of a symptom, or fails to consider the impact of the veteran’s symptoms as a whole, its reasons or bases for its denial of a higher evaluation are inadequate”).”

========================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 17-1585
JOSEPH P. ERINGI, APPELLANT,
V.
PETER O’ROURKE,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE
Before GREENE, Senior Judge.1
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
GREENE, Senior Judge: The appellant, Joseph P. Eringi, appeals through counsel an April 7, 2017, decision of the Board of Veterans’ Appeals (Board) that denied entitlement to an initial disability rating greater than 50% for PTSD. Record (R.) at 2-9. This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. § 7252(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board’s decision and remand the matter for further proceedings consistent with this decision.
I. BACKGROUND
Mr. Eringi served on active duty in the U.S. Army from December 1968 to December 1970, including service in Vietnam. After service, he developed symptoms of depression and anxiety. In November 2010, Mr. Eringi was evaluated at VA for PTSD. He reported that he was divorced, had lived with his girlfriend for over 20 years, and had worked as a Port of Authority police officer for 23 years without problems. He admitted to high alcohol use and denied suicidal thoughts. He
1Judge Greene is a Senior Judge acting in recall status. In re: Recall of Retired Judge, U.S. Vet. App. Misc. Order 01-18 (Jan. 16, 2018).
2
reported that his depression symptoms became particularly acute after he retired from the Port Authority in1994. He was diagnosed with depression and PTSD.
The next month, Mr. Eringi began treatment at VA for depression. He reported longstanding depression, drinking around 3 to 4 glasses of wine a day, and experiencing a sense of overwhelming guilt from an in-service incident in which he was unable to save a fellow soldier. Treatment notes indicate that he suffered from startle response and hypervigilance during social occasions, difficulty maintaining sleep, nightmares, flashbacks, and avoidant behavior. The treatment provider noted that Mr. Eringi’s mood was depressed and his affect blunted.
Mr. Eringi filed a claim for service connection for PTSD in January 2011. He reported symptoms of “[d]epression, [a]nxiety, [and] sleep related issues.” He stated that his experiences during Vietnam “caused nightmares, divorce, [and] suicidal thoughts subsequent to [] discharge.” Four months later, Mr. Eringi reported to his treating psychiatrist at VA that he had increased his drinking to 4 to 5 glasses daily, and his psychiatrist noted that he “must be drinking more than he states,” because his mood had not improved with medication.
In June 2011, Mr. Eringi underwent a VA examination for PTSD. He explained to the examiner that he was previously married, but that he and his wife divorced around the time that he retired from the Port Authority, in 1994. The examiner noted that Mr. Eringi “began a relationship with his current woman companion two years later; they live together but maintain an essentially platonic friendship.” He reported that he enjoyed drinking wine and going to parties but that he also “loses his temper when he drinks, which has estranged him from his three sisters.” The examiner noted that Mr. Eringi “admits to ongoing alcohol abuse, which [is] likely a factor in his condition,” and, later in his opinion, he opined that alcohol use likely exacerbates Mr. Eringi’s depression. The examiner also noted that the veteran’s PTSD caused occasional intrusive thoughts and memories, increased arousal, and signs and symptoms of numbing and avoidance. The examiner opined that Mr. Eringi’s PTSD was at least as likely as not the result of service; that “his depressive symptoms . . . are likely moderate, present at least weekly, and have been present without remission since the mid-1990s”; and that his PTSD symptoms were mild, irregular, and not severe enough to interfere with occupational functioning.
In September 2011, VA granted Mr. Eringi service connection for PTSD and assigned a
3
10% disability rating. Mr. Eringi appealed to the Board. R. at 341 (January 2012 Notice of Disagreement); 333 (December 2012 Statement of the Case assigning a 30% rating but no higher); R. at 303-04 (January 2013 Substantive Appeal).
Mr. Eringi continued to undergo treatment at VA for his depression and PTSD. In March 2013, he reported intimacy issues with his girlfriend and that their relationship “is more like ‘roommates’ than anything.” By July 2013, nothing had changed with his girlfriend and he was “also drinking almost every night, 4-5 drinks.” His psychiatrist worried that Mr. Eringi was self-medicating to treat anxiety and depression.
In August 2015, the Board remanded Mr. Eringi’s claim for VA to conduct a new examination because Mr. Eringi claimed that his PTSD had worsened since his June 2011 examination. In an October 2015 VA examination, the examiner opined that Mr. Eringi did not meet the criteria for a diagnosis of PTSD and instead diagnosed him with having an “other specified trauma – and stressor – related disorder.” He opined that Mr. Eringi did not have more than one diagnosed mental health disorder and explained that his diagnosis of a “stressor-related disorder” was a continuation of the previously diagnosed PTSD. The examiner observed that Mr. Eringi was well-oriented, alert, attentive, and cooperative; maintained focus; did not present thoughts of harming himself or others; had no indication of hallucinations; and had appropriate speech, memory, judgment, impulse control, and insight. The examiner stated that Mr. Eringi’s stressor-disorder symptoms included depressed mood; anxiety; a chronic sleep impairment; “[r]ecurrent, involuntary, and [i]ntrusive distressing memories;” “[r]ecurrent, distressing dreams;” “[p]ersistent negative emotional state;” “[m]arkedly diminished interest or participation in significant activities;” “[f]eelings of detachment or estrangement from others,” and a “[p]ersistent inability to experience positive emotions.” Finally, the examiner opined that Mr. Eringi’s symptomatology was best summarized as “[o]ccupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress.”
In April 2017, the Board increased Mr. Eringi’s intial rating for PTSD from 30% to 50% but found that a rating in excess of 50% was unwarranted. This appeal followed.
4
II. ANALYSIS
Mr. Eringi insists that the Board provided inadequate reasons or bases for denying an initial PTSD disability rating greater than 50%. Among other arguments, he asserts that the Board inaccurately portrayed evidence of his relationships, social interactions, and alcohol abuse by omitting facts tending to show more severe social impairment and substance abuse than the Board found to be the case. Appellant’s Brief (App. Br.) at 9-14. He also contends that the Board highlighted several of the 2015 VA examiner’s findings tending to support a lower disability rating, yet neglected to discuss any of the more “severe symptoms” noted by the 2015 examiner. Id. at 13.
The Secretary responds that the Board properly considered the evidence of record and adequately articulated why Mr. Eringi was not entitled to a higher rating. Secretary’s Br. at 9-12, 16. He emphasizes that the Board is only required to discuss relevant evidence and is presumed to have considered all of the evidence in the record, even if it does not specifically mention some pieces of evidence. Id. at 13-14. He therefore asserts that the veteran’s arguments should be rejected as mere disagreements with the Board’s permissible weighing of the evidence. Id. at 15-16.
A 50% disability rating for PTSD is warranted when it 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.
38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2018). A 70% disability rating is warranted when PTSD 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 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[.]
5
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 disability rating. 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. In sum, VA is required to perform a “holistic analysis” in which it “assesses the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment.” Bankhead v. Shulkin, 29 Vet.App. 10, 22 (2017).
The Board’s determination of the appropriate degree of disability is a finding of fact reviewed under the “clearly erroneous” standard of review. Smallwood v. Brown, 10 Vet.App. 93, 97 (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 committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board’s decision as well as to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence,
6
account for the evidence it finds 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).
Initially, it is noted that Mr. Eringi asserts that the de novo and “arbitrary and capricious” standards of review should be applied in his case. App. Br. at 5-6; Reply Br. at 1-2. The Court disagrees. The matter on appeal here is whether the Board’s denial of entitlement to an initial disability rating greater than 50% for PTSD was appropriate, R. at 3, a factual matter well established to be subject to the “clearly erroneous” standard of review, see Smallwood, 10 Vet.App. at 97.
In this case, the Board determined that, throughout the appeal period, Mr. Eringi’s PTSD had been manifested by symptoms of “depression and anxiety, nightmares, chronic sleep impairment, blunted affect, irritability, disturbances of motivation and mood, and alcohol abuse with associated impaired judgment.” R. at 7. It concluded that “the symptomatology and functional impact resulting from the [v]eteran’s PTSD is most appropriately contemplated by a 50[%] rating.” Id. In support, the Board noted Mr. Eringi’s report during the 2011 VA examination “that he often feels depressed, more so since he stopped working, that he wakes up in the middle of the night, and that he loses his temper when he drinks, which has estranged him from his three sisters.” Id. It noted the 2011 VA examiner’s findings that Mr. Eringi’s “depressive symptoms were likely moderate, present at least weekly and without remission since the mid-1990s, and were likely the predominant factor in his reported social impairment” and that “his alcohol abuse was poorly controlled and likely exacerbated his depression.” Id.
In the remainder of its decision, the Board discussed the reasons why Mr. Eringi’s symptoms did not warrant a rating in excess of 50%. Id. at 8-9. The Board concluded that “[w]ith the exception of his sisters, the [v]eteran has repeatedly been shown to have strong social relationships.” R. at 8. The Board also found that “[a]t no point did the [v]eteran report any suicidal ideation, . . . panic attacks, obsessions or phobias that interfered with normal functioning.” Id. Concerning his depression symptoms, the Board reasoned that, although “the 2011 VA examiner considered the [v]eteran’s depressive symptoms moderate, there is no evidence that the depression was near-continuous such that it affected his ability to function independently, appropriately, and
7
effectively.” Id. It further found that the October 2015 VA examination “testing results [were] consistent with mild symptoms of PTSD.” Id. at 9. Finally, the Board concluded that “[o]ccupationally, . . . the [v]eteran was a police officer for 23 years and retired in 1994, and he specifically denied any occupational impairment or absenteeism due to psychiatric symptoms during both VA examinations.” Id.
The Court finds persuasive Mr. Eringi’s argument that the Board mischaracterized the evidence concerning the nature of his social interactions and relationships when it found that he “had strong social relationships” because it found he “enjoyed drinking wine and going to parties” and “is in a supportive relationship with his girlfriend.” R. at 8; see App. Br. at 9. As Mr. Eringi points out, there is other evidence of record that his relationship with his girlfriend “was not necessarily effective,” and that he and his girlfriend “live together but maintain an essentially platonic friendship and sleep in separate bedrooms.” App. Br. at 9 (citing R. at 185). Yet, the Board did not discuss this evidence or explain why it implicitly discounted it.
Further, as the Board itself acknowledged, the evidence documents Mr. Eringi’s alcohol abuse and that he “loses his temper when he drinks, which has estranged him from his three sisters,” R. at 7. Moreover, the record shows that his alcohol consumption was a factor that led to increasing his depression and to diminishing his relationships and social interactions, R. at 104, 193. As Mr. Eringi argues, given this evidence, the Board did not adequately explain how it could also find that evidence of his alcohol consumption was a factor supporting a finding of “strong social relationships,” R. at 8; see App. Br. at 10. Finally, as Mr. Eringi further notes, the record also shows that he has reported startle response and hypervigilance during social occasions, R. at 202, that “any kind of social event [was] anxiety provoking,” R. at 47, and that the 2015 VA examiner opined that Mr. Eringi had “[f]eelings of detachment or estrangement from others,” R. at 38. The Board did not acknowledge these symptoms and failed to reconcile them with its conclusion that the evidence of record, overall, demonstrates “strong social relationships.” R. at 8.
Mr. Eringi next contends that the Board highlighted several of the 2015 VA examiner’s findings tending to support a lower disability rating, yet neglected to discuss any of the more “severe symptoms” noted by the 2015 examiner. App. Br. at 13. Again, the Court agrees. As support for its assignment of a 50% rating but no higher, the Board noted the 2015 examiner’s
8
findings that Mr. Eringi’s “speech was appropriate, he had good hygiene, and demonstrated good judgment and impulse control.” R. at 9. Without further explanation of the 2015 examination report, it concluded that the examination “testing results [were] consistent with mild symptoms of PTSD.” Id. The Board did not acknowledge that the 2015 examiner also documented symptoms of “[r]ecurrent, involuntary, and intrusive distressing memories” of his in-service stressor; “[p]ersistent negative emotional state (e.g. fear, horror, anger, guilt, or shame);” “[m]arkedly diminished interest or participation in significant activities;” “[f]eelings of detachment or estrangement from others;” and “[p]ersistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings).” R. at 38.
Although the Board is presumed to have considered all evidence of record when making its decision, Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007), that presumption does not relieve the Board of its independent obligation to perform the analysis required by Vazquez-Claudio—that is, to assess the severity, frequency, and duration of all psychiatric symptoms of record when determining the appropriate disability evaluation to assign for a service-connected mental disorder. 713 F.3d at 116-17; see also Mittleider v. West, 11 Vet.App. 181, 182 (1998) (explaining that the need for adequate reasons or bases is “particularly acute when [Board] findings and conclusions pertain to the degree of disability resulting from mental disorders”). Here, the Board failed to consider all of the symptoms found in the medical evidence concerning Mr. Eringi’s social interactions and relationships and all of the evidence found in the 2015 VA examination. Because the Board must account for all material evidence of record that may potentially support a higher evaluation, Caluza, 7 Vet.App. at 506, and because the veteran’s symptoms are the “primary consideration” in assigning a disability evaluation under § 4.130, Vasquez-Claudio, at 713 F.3d at118, the Board’s error of not discussing and analyzing this evidence rendered inadequate its reasons or bases for denying an initial PTSD evaluation in excess of 50%. See Bankhead, 29 Vet.App. at 22 (holding that, “[w]here . . . the Board fails to adequately assess evidence of a sign or symptom experienced by the veteran, misrepresents the meaning of a symptom, or fails to consider the impact of the veteran’s symptoms as a whole, its reasons or bases for its denial of a higher evaluation are inadequate”).
Therefore, this Board error requires remand of its decision on the rating of Mr. Eringi’s
9
PTSD claim so that the Board may properly account for the evidence outlined above and provide adequate reasons or bases for its determination of the appropriate evaluation of that disability. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (Remand is appropriate “where the Board has . . . failed to provide an adequate statement of reasons or bases for its determinations.”). Given this disposition, the Court will not, at this time, address the other arguments raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (holding 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, Mr. Eringi may provide additional evidence and argument on the remanded matter, and the Board must consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to the benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court reminds the Board 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), and the Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112.
III. CONCLUSION
After consideration of the appellant’s and Secretary’s briefs, and a review of the record on appeal, the Board’s April 7, 2017, decision denying entitlement to an initial disability rating greater than 50% for PTSD is VACATED and the matter is REMANDED for further proceedings consistent with this decision.
DATED: July 27, 2018
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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.