Veteranclaims’s Blog

September 26, 2018

Single Judge Application; [o]ccupational and social impairment with reduced reliability and productivity; § 4.130; Cantrell v. Shulkin, 28 Vet.App. 382, 392 (2017);

Excerpt from decision below:

“”[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.”10 To qualify for a particular disability 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.”11
􀹠e Court agrees with appellant that the Board’s statement of reasons or bases for its
decision is inadequate in several respects. First, in denying appellant a 50% disability rating the Board concluded that he did not display symptoms that showed “[o]ccupational and social impairment with reduced reliability and productivity[.]” 12 However, the Board did not tell appellant (or this Court) what it understood that phrase to mean. Absent a standard for differentiating between the various thresholds of impairment at the different rating levels, the Board’s decision essentially amounts to one that says you don’t qualify for a 50% rating “because I say so.” This isn’t acceptable.13
Second, the Board appeared to put emphasis on the symptoms appellant did not have as a reason to deny a higher rating. For example, the Board noted that appellant “has not exhibited
7 Id.
8 Mauerhan v. Principi, 16 Vet.App. 436, 440-41 (2002); see Bankhead v. Shulkin, 29 Vet.App. 10, 22 (2017)(requiring VA to “engage in a holistic analysis” of the claimant’s symptoms to determine the proper disability rating).
9 Vazquez-Claudio v. Shinseki, 713 F.3d 112,116-17 (Fed. Cir. 2013).
10 Id. at 117.
11 Id.; see 38 C.F.R. § 4.130, Diagnostic Code 9434.
12 R. at 10-11.
13 See, e.g., Cantrell v. Shulkin, 28 Vet.App. 382, 392 (2017) (“The Court simply cannot sanction a statement of reasons or bases that amounts to . . . ‘because I say so.'” (citing Hood v. Brown, 4 Vet.App. 301, 303 (1993))).
4
flattened affect; circumstantial, circumlocutory, or stereotyped speech, panic attacks; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking . . . .”14 The Board’s focus on the absence of certain symptoms rather than the presence of others was error.15

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-2415
RONALD POOLE, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

ALLEN, Judge: Appellant Ronald Poole served the nation honorably in the United States
Navy. In this appeal, which is timely and over which the Court has jurisdiction,1 he contests a June 28, 2017, Board of Veterans’ Appeals decision that denied him an initial disability rating greater than 30% for his service-connected mood disorder.2 For the reasons discussed below, the Court will set aside the Board decision on appeal and remand this matter for further proceedings consistent with this decision.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant served in the Navy from September 1971 to September 1991. He earned
numerous decorations for his service, and the Court thanks appellant for his service. VA awarded
him service connection for several disabilities affecting his back, right shoulder, and knees. 􀹠ese
service-connected disabilities caused appellant to experience significant pain over time.
Eventually, appellant was diagnosed with a mood disorder. In February 2011, VA granted
him service-connection for this mood disorder as secondary to appellant’s various service-
1 38 U.S.C. §§ 7252(a) and 7266(a).
2 Record (R.) at 2-11.
2
connected disabilities. VA rated appellant at 10% for the mood disorder. Appellant appealed this
rating determination. His administrative appeal led to the decision on appeal in which the Board
determined that appellant was entitled to no more than a 30% rating for his mood disorder.
II. ANALYSIS
􀹠e Court reviews the Board’s factual finding concerning a level of impairment for clear
error.3 However, the Court reviews claimed legal errors by the Board de novo, a standard under
which the Board’s decision is not entitled to any deference.4 In addition, the Board’s decision must
include a written statement of the reasons or bases for its findings and conclusions on all material
issues of fact and law; the statement must be adequate to enable appellant to understand the basis
for the decision and to facilitate judicial review.5
The appellant’s mood disorder is measured against the rating criteria described in 38 C.F.R.
§ 4.130, Diagnostic Code 9434, which directs the rating specialist to apply the general rating
formula for mental disorders. According to the general rating formula, a 30% disability rating is
warranted where the evidence demonstrates
[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)[.]6
A 50% disability rating is warranted where the evidence demonstrates the following:
Occupational 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
3 See Thun v. Peake, 22 Vet.App. 111, 115 (2008); Davis v. West, 13 Vet.App. 178, 184 (1999); Smallwood v. Brown,
10 Vet.App. 93, 97 (1997).
4 38 U.S.C. § 7261(a)(1); see Butts v. Brown, 5 Vet.App. 532, 538 (1993) (en banc).
5 See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 57
(1990).
6 38 C.F.R. § 4.130, Diagnostic Code 9434 (2018).
3
mood; difficulty in establishing and maintaining effective work and social
relationships.7
Because the symptoms enumerated in § 4.130 are not an exhaustive list, the Court has held
that VA must consider “all the evidence of record that bears on occupational and social
impairment,” and then “assign a disability rating that most closely reflects the level of social and
occupational impairment a veteran is suffering.”8 The U.S. Court of Appeals for the Federal
Circuit has explained that evaluation under § 4.130 is “symptom driven,” meaning that
“symptom[s] should be the fact finder’s primary focus when deciding entitlement to a given
disability rating” under that regulation.9 “[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.”10 To qualify for a particular disability 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.”11
􀹠e Court agrees with appellant that the Board’s statement of reasons or bases for its decision is inadequate in several respects. First, in denying appellant a 50% disability rating the Board concluded that he did not display symptoms that showed “[o]ccupational and social impairment with reduced reliability and productivity[.]” 12 However, the Board did not tell appellant (or this Court) what it understood that phrase to mean. Absent a standard for differentiating between the various thresholds of impairment at the different rating levels, the Board’s decision essentially amounts to one that says you don’t qualify for a 50% rating “because I say so.” This isn’t acceptable.13
Second, the Board appeared to put emphasis on the symptoms appellant did not have as a reason to deny a higher rating. For example, the Board noted that appellant “has not exhibited
7 Id.
8 Mauerhan v. Principi, 16 Vet.App. 436, 440-41 (2002); see Bankhead v. Shulkin, 29 Vet.App. 10, 22 (2017)(requiring VA to “engage in a holistic analysis” of the claimant’s symptoms to determine the proper disability rating).
9 Vazquez-Claudio v. Shinseki, 713 F.3d 112,116-17 (Fed. Cir. 2013).
10 Id. at 117.
11 Id.; see 38 C.F.R. § 4.130, Diagnostic Code 9434.
12 R. at 10-11.
13 See, e.g., Cantrell v. Shulkin, 28 Vet.App. 382, 392 (2017) (“The Court simply cannot sanction a statement of reasons or bases that amounts to . . . ‘because I say so.'” (citing Hood v. Brown, 4 Vet.App. 301, 303 (1993))).
4
flattened affect; circumstantial, circumlocutory, or stereotyped speech, panic attacks; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking . . . .”14 The Board’s focus on the absence of certain symptoms rather than the presence of others was error.15
On remand, the Board should be mindful of its obligation to assess the symptoms appellant displays and not simply make its determination based on symptoms that are not present.
􀹠ird, and perhaps most importantly, the Board’s statement of reasons or bases does not
sufficiently connect its discussion of appellant’s symptomology with its ultimate conclusion concerning the appropriate rating. It is not enough for the Board to list symptoms and then state a conclusion. It must explain why those symptoms – assessing their severity, frequency, and duration – support its assignment of a particular rating.16 To take an analogy from high school math class, the Board is required to “show its work.” Taking all of these errors into account, remand is required.17
In his brief, the Secretary attempts to correct the Board’s errors by explaining what the
Board could have done. 􀹠e Secretary may be correct, but it is the Board that must provide reasons or bases for its decision.18 􀹠e Secretary can’t cure an error in that regard through a brief in this Court.19
Given this disposition, the Court need not address appellant’s remaining arguments.20 On remand, appellant is free to submit additional evidence and argument, including the arguments raised in the briefs to this Court, and has 90 days from the date of VA’s post-remand notice to do
14 R. at 10.
15 See Bankhead, 29 Vet.App. at 22; Vazquez-Claudio, 713 F.3d at 115.
16 See, e.g., Bankhead, 29 Vet.App. at 22.
17 See Tucker v. West, 11 Vet.App. 369, 371 (1998) (holding that remand is warranted “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”).
18 See Wanless v. Principi, 18 Vet.App. 337, 343 (2004) (“Court’s role is to review whether the Board in its decision,
rather than the Secretary in his brief, provided an adequate statement of reasons or bases.”); see also Smith v.
Nicholson, 19 Vet.App. 63, 73 (2005) (same).
19 This is post hoc rationalization that cannot cure the Board’s error. See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991).
20 See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam).
5
so.21 The Board must consider any such evidence or argument submitted.22 The Board shall proceed expeditiously on remand.23
III. CONCLUSION
After consideration of the parties’ briefs, the relevant law, and a review of the record, the
Court SETS ASIDE the June 28, 2017, Board decision and REMANDS the matter for further
proceedings consistent with this decision.
DATED: September 25, 2018
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)
21 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam); see also Clark v. O’Rourke, 30 Vet.App. 92,
97 (2018).
22 Kay v. Principi, 16 Vet.App. 529, 534 (2002).
23 See 38 U.S.C. §§ 5109B and 7112.

 

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