Veteranclaims’s Blog

October 24, 2018

Single Judge Application; PTSD; “holistic analysis” of the claimant’s symptoms; Mauerhan v. Principi, 16 Vet.App. 436, 440-41(2002); Bankhead v. Shulkin, 29 Vet.App. 10, 22 (2017);

Excerpt from decision below:

“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.” 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). 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17(Fed. Cir. 2013). “[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. Moreover, in the context of determining whether a 70% disability rating is warranted, § 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.; see 38 C.F.R. § 4.130, DC 9411.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-2363
RUBEN CALDERA, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
MEREDITH, Judge: The appellant, Ruben Caldera, through counsel appeals a May 18,
2017, Board of Veterans’ Appeals (Board) decision that denied entitlement to an initial disability rating in excess of 50% for post-traumatic stress disorder (PTSD). Record (R.) at 1-13. 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. 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
The appellant served on active duty in the U.S. Army from February 1971 to February
1974 and from April 1975 to October 1979. R. at 741-44. In October 2010, he requested a mental
health evaluation for PTSD and reported difficulty with interpersonal relationships since his return
from Vietnam. R. at 706. The appellant reported that he was “losing . . . friends and family” because
of the way he acted, and noted increased irritability, symptoms of depression, a sense of
detachment and estrangement from others, difficulty with sleep, nightmares, intrusive thoughts of
experiences in Vietnam, decreased levels of concentration, feelings of social isolation, and feeling
2
suspicious and on-guard all the time. Id. He was assessed with significant PTSD symptoms and
associated symptoms of depression. R. at 708.
A few months later, the appellant filed a disability compensation claim for PTSD, R. at
745-52, and, in April 2011, underwent a VA PTSD examination, R. at 584-98. The appellant
reported symptoms of “depression[,] including [a] depressed mood nearly every day, . . .
difficulties concentrating, psychomotor agitation, [and] thoughts of self-harm/death.” R. at 586.
The appellant described his second marriage as “supportive but strained” and reported poor
interpersonal relationships and limited social activities. R. at 588-89. The appellant also reported
“suicidal ideation with no intent or plan,” irritability, and outbursts of anger; yet, the examiner
regarded the “extent of [his] impulse control” as “good.” R. at 591, 593.
The VA examiner diagnosed PTSD and major depressive disorder and noted that the
severity of the appellant’s PTSD symptoms was moderate, with moderate to severe depressive
symptomatology. R. at 593-95. The examiner further noted that his PTSD symptoms result in
deficiencies in judgment, thinking, family relations, and mood, explaining that the appellant
reported “difficulties with anger, with frequent verbal arguments”; “decreased concentration”;
“strained family relationships due to frequent verbal argu[]ments”; and “increased depression,
irritability, and anger.” R. at 596-97.
In May 2011, a VA regional office (RO) granted disability compensation for PTSD and
assigned a 30% disability rating, effective December 10, 2010. R. at 570-80. The appellant
disagreed with the assigned rating and perfected an appeal to the Board. R. at 432-35, 436-51, 557.
The Board then remanded the matter to obtain a contemporaneous examination, which was
performed in April 2015. R. at 60-70, 325-28. The appellant’s symptoms included sleep problems,
irritability, diminished interest in activities, and detachment from others. R. at 61. Although the
appellant reported a “‘good'” marriage, his wife reported that his lack of motivation and mood
affected their relationship. R. at 63. The examiner found that his symptoms of depression had
worsened since the April 2011 examination and that he reported “more bad days than good,” R. at
65, 69. The appellant experienced “[i]rritable behavior and angry outbursts (with little or no
provocation) typically expressed as verbal or physical aggression toward people or objects,” but
denied suicidal ideation. R. at 67-68. The examiner opined that his PTSD and depression result in
occupational and social impairment with reduced reliability and productivity. R. at 61.
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In August 2015, the RO granted a 50% disability rating for the entire appeal period, R. at
25-30, 36-39, and the matter was returned to the Board. On May 18, 2017, the Board denied a
higher disability rating, finding that the appellant’s symptoms result in occupational and social
impairment with reduced reliability and productivity commensurate with the assigned 50%
disability rating. R. at 1-13. This appeal followed.
II. ANALYSIS
The appellant argues that the Board failed to adequately analyze his symptoms and explain
why they do not suggest a level of impairment akin to that contemplated by the 70% rating criteria
and that the Board erred when it relied on the April 2011 examiner’s classification of his symptoms
as “moderate.” Appellant’s Brief (Br.) at 8-17; Reply Br. at 1-8. The Secretary counters that the
appellant’s arguments are only disagreements with the Board’s weighing of the evidence and that
the Board did not rely solely on the examiner’s finding of “moderate” symptomatology or
inappropriately outsource its duty to independently assess the appellant’s level of impairment.
Secretary’s Br. at 7-24.
The Board is tasked with determining the proper disability rating in the first instance. See
Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (stating that “appellate tribunals are not
appropriate fora for initial fact finding”); see also 38 U.S.C. § 7261(c) (“In no event shall findings
of fact made by the Secretary or the [Board] be subject to trial de novo by the Court.”); Smallwood
v. Brown, 10 Vet.App. 93, 97 (1997). “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 required for that rating. Otherwise, the lower rating will be assigned.”
38 C.F.R. § 4.7 (2018).
The appellant’s PTSD is measured against the rating criteria described in 38 C.F.R. § 4.130,
Diagnostic Code (DC) 9411, which directs the rating specialist to apply the general rating formula
for mental disorders. According to the general rating formula, 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
4
mood; difficulty in establishing and maintaining effective work and social
relationships.
38 C.F.R. § 4.130, DC 9411 (2018). A 70% disability rating is warranted where the evidence
demonstrates the following:
Occupational 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. Id.
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.” 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). 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17(Fed. Cir. 2013). “[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. Moreover, in the context of determining whether a 70% disability rating is warranted, § 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.; see 38 C.F.R. § 4.130, DC 9411. As always, the Board must provide a statement of the reasons or bases for its determination “adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court.” Allday v. Brown, 7 Vet.App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
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Here, after summarizing the April 2011 and 2015 VA examination reports, the Board stated
that the appellant’s “PTSD has been characterized primarily by daily depressed mood, distressing
memories, recurrent distressing dreams, avoidance of distressing memories, negative beliefs or
expectations about oneself and others, diminished interest in activities, irritable behavior, angry
outbursts, hypervigilance, sleep disturbance, and isolation from others” and that these symptoms
“resulted in occupational and social impairment with reduced reliability and productivity.” R. at
8-9. The Board then found that a 70% disability rating was not warranted because the appellant’s
PTSD did not cause occupational and social impairment, with deficiencies in most areas. R. at 9.
The Board stated that, aside from the appellant’s single April 2011 report of suicidal ideation, he
did not exhibit any of the other symptoms listed under the 70% criteria in § 4.130. Id. Further,
even with consideration of suicidal ideation, the Board found that the weight of the evidence did
not support a 70% disability rating, noting that the April 2011 examiner described the appellant’s
symptoms as moderate and that treatment records, in and around the same time, showed that he
“consistently denied” suicidal ideation. Id. The Board thus concluded that, although the appellant’s
symptoms cause him to distrust others and social difficulty resulting in isolation, “these symptoms
fall squarely within a 50[%] rating for PTSD (e.g.[,] difficulty in establishing and maintaining
effect[ive] work and social relationships).” R. at 10.
The appellant persuasively argues that the Board failed to conduct the proper analysis. As
noted above, Vazquez-Claudio requires the Board to consider whether the appellant exhibits
symptoms of similar severity, frequency, and duration as those listed in the rating criteria. 713 F.3d
at 117. Yet, here, the Board stated that the appellant did not exhibit “any symptoms,” other than
suicidal ideation, listed in the criteria for a 70% disability rating, without explaining whether the
symptoms the appellant experienced were similar to those listed in § 4.130. R. at 9; see Bankhead,
29 Vet.App. at 22 (“[T]he presence or lack of evidence of a specific sign or symptom listed in the
evaluation criteria is not necessarily dispositive of any particular disability level.” (emphasis
omitted) (citing Vazquez-Claudio, 713 F.3d at 115; Mauerhan, 16 Vet.App. at 442)). In this regard,
the appellant contends that the Board failed to explain why his symptoms were not sufficiently
similar to those described in the 70% criteria, such as impaired impulse control, near continuous
panic or depression, the inability to establish and maintain effective relationships, and suicidal
ideation. Appellant’s Br. at 8-9; Reply Br. at 2-3.
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For example, the Board stated that there was no evidence of “impaired impulse control
(such as unprovoked irritability with periods of violence),” R. at 9, but the April 2015 examiner
reported “[i]rritable behavior and angry outbursts (with little or no provocation) typically
expressed as verbal or physical aggression toward people or objects,” R. at 67. Similarly, the Board
provided no explanation for its finding that the appellant did not exhibit “near-continuous panic or
depression affecting the ability to function independently, appropriately[,] and effectively,” despite
its acknowledgment that his PTSD is characterized by a “daily depressed mood.” R. at 8-9.
In addition, although the Board recited much of the April 2011 and April 2015 examination
reports, the Board did not explain why this evidence led it to conclude that the appellant’s PTSD
resulted in occupational and social impairment with reduced reliability and productivity and that
the appellant had not exhibited an inability to establish and maintain effective relationships. R. at
8-9; see Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007) (“The Court has long held that merely
listing the evidence before stating a conclusion does not constitute an adequate statement of
reasons or bases.”); Abernathy v. Principi, 3 Vet.App. 461, 465 (1992) (holding that the Board’s
statement of reasons or bases is inadequate if the Board merely lists the pertinent evidence, but
does not “‘account for the evidence which it finds to be persuasive or unpersuasive’ and provide
reasons or bases for its rejection of evidence” (quoting Gilbert, 1 Vet.App. at 57)). To the extent
that the Secretary argues that the Board’s findings have a plausible basis in the record, see
Secretary’s Br. at 13-15, as argued by the appellant, he refers in part to evidence that the Board did
not discuss “at all” in its decision, Reply Br. at 5. As such, the Secretary’s arguments amount to a
post hoc rationalization, which the Court cannot accept. See Martin v. Occupational Safety &
Health Review Comm’n, 499 U.S. 144, 156 (1991) (“[A]gency ‘litigating positions’ are not entitled
to deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for agency action,
advanced for the first time in the reviewing court.”); Evans v. Shinseki, 25 Vet.App. 7, 16 (2011)
(“[I]t is the Board that is required to provide a complete statement of reasons or bases, and the
Secretary cannot make up for its failure to do so.”).
In light of this discussion, remand is necessary for the Board to provide an adequate
statement of reasons or bases for its decision. See Tucker v. West, 11 Vet.App. 369, 374 (1998)
(“[W]here 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, a remand is
the appropriate remedy.”). Given this disposition, the Court will not now address the remaining
7
arguments and issues raised by the appellant. See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009)
(noting 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) (per curiam order).
On remand, the appellant is free to submit additional evidence and argument on the
remanded matter, including the specific arguments raised here on appeal, and the Board is required
to 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 parties’ pleadings and a review of the record, the Board’s
May 18, 2017, decision is VACATED and the matter is REMANDED for further proceedings
consistent with this decision.
DATED: October 22, 2018
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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