Veteranclaims’s Blog

January 15, 2019

Single Judge Application; PTSD; Section 4.130 is “symptom driven”; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013); mental disability is intimately tied to symptoms;

Excerpt from decision below:


Section 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 the regulation.7″

7 Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013)

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To start, the Board insufficiently explained lay witnesses’ competence and how its understanding of lay witnesses’ competence informed its decision making. Several times the Board stated that lay witnesses were competent to testify about observable symptoms and events. 34 But then it

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proceeded to state that lay witnesses lack competence to testify about “the extent of [appellant’s] disability.”35 It seems to the Court that the extent of a mental disability is intimately tied to symptoms, something about which the Board agreed a layperson was competent to opine. The Board’s contradictory statements make no sense to the Court, and the Court cannot say to what extent a possible misunderstanding of the law tainted the Board’s decisionmaking.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-4918
CHARLES A. HOLLOWAY II, 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 Charles A. Holloway II served the Nation honorably in the
United States Army from August 2005 to November 2006.1 He appeals an October 24, 2017,
Board of Veterans’ Appeals decision denying entitlement to a disability rating greater than 30%
for PTSD before December 20, 2011. The question in this appeal, which is timely and over which
the Court has jurisdiction,2 is whether the Board sufficiently explained the grounds for its decision.
Because the Board failed to provide an adequate statement of reasons or bases in several respects,
the Court will set aside the Board’s decision and remand the matter for further proceedings
consistent with this decision.
I. BACKGROUND
During service, appellant served as a “checker” for improvised explosive devices (IEDs)
and often experienced “close call[s].”3 After separation, he began experiencing, among other
things, “terrible headaches, nightmares, panic attacks, dizziness, and suicidal thoughts,” as well as
1 Record (R.) at 2652.
2 See 38 U.S.C. §§ 7266(a), 7252(a).
3 R. at 1116, 2353.
2
personality changes.4 VA granted service connection for PTSD in a May 2008 rating decision
under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411, rated as 30% disabling.5 Appellant timely
challenged this rating for his service-connected PTSD, arguing that his symptoms warranted a
rating higher than 30% before December 20, 2011.6
Section 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 the regulation.7
Aside
from a noncompensable 0% rating and a 100% rating, which requires total impairment, each rating
threshold contemplates occupational and social impairment of varying severity less than total.8
The list of symptoms in each rating threshold is not exhaustive; “VA is not required to find the
presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation.”9
But “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 Section 4.130 requires both objectively observable symptomatology and a
corresponding level of occupational and social impairment caused by those symptoms and
associated with a particular disability evaluation.11 When two evaluations could apply, “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.”12
Appellant’s current rating of 30% requires that the evidence show

[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
4 R. at 2353.
5 R. at 2431, 2435.
6 R. at 2353-56, 2158-78, 2156-57.
7 Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013).
8 See 38 C.F.R. § 4.130.
9 Bankhead v. Shulkin, 29 Vet.App. 10, 18 (2017).
10 Vazquez-Claudio, 713 F.3d at 117 (emphasis added).
11 Bankhead, 29 Vet.App. at 18 (citing Vazquez-Claudio, 713 F.3d at 117).
12 38 C.F.R. § 4.7 (2018).
3
attacks (weekly or less often), chronic sleep impairment, mild
memory loss (such as forgetting names, directions, recent events).13
For a veteran to be entitled to a disability rating of 50%, the evidence must show

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.14
For a veteran to be entitled to a 70% rating, the evidence must show

[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.15
Lastly, for a veteran to be entitled to a 100% rating, the evidence must show

[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.16
13 38 C.F.R. § 4.130 (2018).
14 Id.
15 Id.
16 Id.
4
In August 2014, July 2015, and July 2016, VA denied appellant a higher rating.17 The
parties agreed to three separate joint motions for remand.18
When appellant’s case again appeared before the Board, it again denied a rating greater
than 30% for PTSD before December 20, 2011.19 The Board found that “[p]rior to December 20,
2011, [appellant’s] service-connected PTSD was not manifested by occupational and social
impairment, with reduced reliability and productivity due to the various symptoms such as
flattened affect, frequent panic attacks, actual suicidal and homicidal considerations or significant
memory impairment.”20 Further, it concluded that appellant had not met the criteria for a rating
greater than 30% before December 20, 2011.21 So it denied entitlement to a higher rating.22 This
appeal followed.
II. ANALYSIS
Appellant makes a host of arguments regarding perceived deficiencies in the Board’s
decision, ranging from legal errors, to purportedly clearly erroneous factual findings, to inadequate
reasons or bases.23 For the following reasons, the Court agrees with appellant that the Board
provided an inadequate statement of reasons or bases in several respects.
The Court reviews the Board’s decision regarding the degree of disability under the rating
schedule for clear error.24 A finding is clearly erroneous when, after reviewing all the evidence,
and even if some evidence supports the finding, the Court “is left with the definite and firm
conviction that a mistake has been committed.”25
17 R. at 3.
18 Id.
19 R. at 23.
20 R. at 4.
21 Id.
22 R. at 23.
23 Appellant’s Brief (Br.) at 9-30.
24 Prokarym v. McDonald, 27 Vet.App. 307, 312 (2015); see also 38 U.S.C. § 7261(a)(4); Gilbert v. Derwinski, 1
Vet.App. 49, 53 (1990).
25 United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).
5
On the other hand, 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.26 The Court will set aside a
conclusion of law made by the Board when that conclusion is determined to be “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with the law.”27
But the thoroughness of the Board’s decision controls the Court’s ability to review these
questions. The Board’s findings and conclusions on material issues of fact and law require a written
statement of reasons or bases. 28 This statement must be “adequate to enable a claimant to
understand the precise basis for the Board’s decision, as well as to facilitate review in this Court.”29
“The need for [an adequate] statement of reasons or bases is particularly acute when [Board] findings and conclusions pertain to the degree of disability resulting from mental disorders.”30 To comply with this requirement in general, the Board must analyze the credibility and probative value of evidence, account for evidence that it finds persuasive or unpersuasive, and provide reasons for its rejection of material evidence favorable to the claimant.31 In the context of mental
disorders, “[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.”32 If the Board fails to provide an adequate statement of reasons or
bases, remand is appropriate.33
Here, the Board provided a statement of reasons or bases inadequate in several respects.
To start, the Board insufficiently explained lay witnesses’ competence and how its understanding of lay witnesses’ competence informed its decision making. Several times the Board stated that lay witnesses were competent to testify about observable symptoms and events. 34 But then it
26 38 U.S.C. § 7261(a)(1); see Butts v. Brown, 5 Vet.App. 532, 538 (1993) (en banc).
27 Butts, 5 Vet.App. at 538.
28 38 U.S.C. § 7104(d)(1); Thompson v. Gober, 14 Vet.App. 187, 188 (2000) (per curiam order).
29 Allday v. Brown, 7 Vet.App. 517, 527 (1995).
30 Mittleider v. West, 11 Vet.App. 181, 182 (1998).
31 Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
32 Bankhead v. Shulkin, 29 Vet.App. 10, 22 (2017) (citing Caluza, 7 Vet.App. at 506; Gilbert, 1 Vet.App. at 52;
Mittleider, 11 Vet.App. at 182).
33 Tucker v. West, 11 Vet.App. 369, 374 (1998).
34 R. at 5, 15, 22.
6
proceeded to state that lay witnesses lack competence to testify about “the extent of [appellant’s]
disability.”35 It seems to the Court that the extent of a mental disability is intimately tied to
symptoms, something about which the Board agreed a layperson was competent to opine. The
Board’s contradictory statements make no sense to the Court, and the Court cannot say to what
extent a possible misunderstanding of the law tainted the Board’s decisionmaking. The Court
cannot review the Board’s decision until the Board reconciles its statements more clearly.
Next, the Board suggested that medical evidence outweighs lay evidence categorically
when the record contains inconsistencies: “Moreover, the Board must look to clinical findings
when there are contradictory findings or statements inconsistent with the record.”36 And the Board
didn’t cite any law describing this “clinical findings” imperative. This unsupported imperative,
combined with the references to determinative examination findings in its factual conclusions,37 is
problematic. Medical evidence doesn’t enjoy an inherently greater weight than lay evidence.38 And
evidence doesn’t weigh itself, as the Board’s logic suggested. The responsibility for weighing
evidence lies with the Board.39 Yet the Board appeared to abdicate its responsibility; at minimum,
the Court cannot say that the Board carried out its responsibility appropriately on this record. And
consequently, the Board failed to provide an adequate statement of reasons or bases for assigning
less weight to competent, credible40 lay testimony favorable to appellant.
Additionally, the Board failed to assess adequately evidence of appellant’s suicidal ideation
and seemed to misrepresent the meaning of suicidal ideation, rendering its statement of reasons or
bases inadequate.41 The Board’s discussion of suicidal ideation was deficient in several important
ways. To begin, the Board acknowledged appellant’s suicidal ideation: “[T]he Board does not find
that [appellant’s] intermittent statements of experiencing suicidal thoughts or thoughts of others
being better off if he were gone, as well as the lay statements of his wife and J.M., to be of a
35 R. at 15.
36 R. at 22.
37 R. at 18-20.
38 See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.126(a) (2018); Washington v. Nicholson, 19 Vet.App. 362, 368 (2005).
39 Washington, 19 Vet.App. at 368.
40 R. at 15.
41 See Bankhead, 29 Vet.App. at 22.
7
frequency, severity or duration consistent with other facts indicating a 70[%] rating of disability.”42
But two things are wrong with this statement. First, as in Bankhead, “insofar as the Board required
evidence of more than thought or thoughts to establish the symptom of suicidal ideation, it erred.”43
Second, the Board’s mention of the 70% rating (and the 100% rating),44 with no mention of the
50% rating, leaves the Court uncertain as to whether the Board weighed appellant’s suicidal
ideation while considering the applicability of the 50% rating,45 the criteria which the Board
determined appellant had not met.46 Another source of murkiness was the Board’s discussion of
suicidal ideation’s severity. The Board used the absence of factors—including self-harm, which is
a criterion associated with the 100% rating47—to gauge the symptom’s severity (or lack of
severity).48 But “the Board was obligated to consider the actual effects of [appellant’s] suicidal
ideation on his occupational and social situation to determine the severity of that symptom;” “VA
may not use the absence of . . . a factor to discount a particular veteran’s symptom to deny an
evaluation in an individual case.”49 Because self-harm was not presented by appellant’s disability
picture, “it cannot be drawn into the picture to gainsay severity of ideation.”50 Lastly, though the
Board considered occupational impairment at least on the surface,51 it failed to discuss appellant’s
social impairment from suicidal ideation.
Finally, the Board focused a great deal on the symptoms appellant did not have as opposed
to the ones he did have. The Board addressed one-by-one the symptoms listed in the 50% rating
criteria, finding the absence of some and qualifying the presence of others.52 In and of itself, that
exercise poses no problem, but the Board may not treat these absences as failures to satisfy
42 R. at 16.
43 Bankhead, 29 Vet.App. at 20.
44 R. at 16.
45 See Vazquez-Claudio, 713 F.3d at 117.
46 See R. at 4.
47 See 38 C.F.R. § 4.130 (listing “persistent danger of hurting self or others” with the 100% rating).
48 R. at 15-16.
49 Bankhead, 29 Vet.App. at 21.
50 Id.
51 R. at 15, 16.
52 R. at 17-18.
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elements—the enumerated symptoms are not elements.53 Yet the Board appears to have done just
that. The Board should have analyzed any symptoms appellant did experience and explained better
its conclusions as to whether those symptoms were similar in severity, frequency, and duration to
the enumerated symptoms,54 whether appellant’s symptoms caused the level of occupational and
social impairment required for a 50% rating,55 and whether appellant’s disability picture more
nearly approximated the 50% criteria.56 But the Board didn’t do that here, and the Secretary cannot
cure the Board’s reasons-or-bases error with a post hoc rationalization.57
Because these deficiencies impede both appellant’s ability to understand the precise bases
for the Board’s decision and meaningful review in this Court, the Board’s statement of reasons or
bases is inadequate.58 Therefore, remand is appropriate.59
Appellant makes two other arguments; the Court rejects one and declines to address the
other in the first instance. First, appellant argues for reversal instead of remand.60 But “remand,
not reversal, is the appropriate remedy where, as here, the Board has provided inadequate reasons
or bases for its decision and additional fact finding and weighing of the evidence are necessary to
make a decision on the claim.”61 Second, appellant asks for reassignment to a different veterans
law judge (VLJ).62 Considering the remand ordered here, such motion is more properly raised to
the Chairman of the Board in the first instance during the remand proceedings.63
Because the Court is remanding this matter to the Board for readjudication, the Court need
not address any remaining arguments now, and appellant can present them to the Board.64 On
remand, appellant may submit additional evidence and argument and has 90 days to do so from
53 See Bankhead, 29 Vet.App. at 18.
54 See Vazquez-Claudio, 713 F.3d at 117.
55 See Bankhead, 29 Vet.App. at 18 (citing Vazquez-Claudio, 713 F.3d at 117).
56 See 38 C.F.R. § 4.7.
57 See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991).
58 See Allday, 7 Vet.App. at 527.
59 Tucker, 11 Vet.App. at 374.
60 Appellant’s Br. at 25-27.
61 Bankhead, 29 Vet.App. at 23.
62 Appellant’s Br. at 27-29.
63 See 38 C.F.R. § 19.12 (2018). See, e.g., Clark v. Peake, No. 07-0474, 2008 WL 5111462 (Nov. 26, 2008) (table).
64 Best v. Principi, 15 Vet.App. 18, 20 (2001).
9
the date of VA’s post remand notice.65 The Board must consider any such additional evidence or
argument submitted.66
One concluding point: appellant began his journey through the VA claims system more
than a decade ago when he filed an application for benefits in March 2008.67 He has been on the
“hamster-wheel” ever since.68 After an initial Board remand for a new medical examination,69 this
case appeared before the Board four times70 and is now at the Court for the fourth time.71 This is
unacceptable. The VLJ must attend to the matter appropriately and should devote significant
attention to complying with this decision. The Board must proceed expeditiously.72
III. CONCLUSION
The Court SETS ASIDE the October 24, 2017, Board decision and REMANDS this matter
for further proceedings consistent with this decision.
DATED: January 11, 2019
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)
65 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App.
92 (2018).
66 Kay v. Principi, 16 Vet.App. 529, 534 (2002).
67 R. at 3, 2471.
68 See Coburn v. Nicholson, 19 Vet.App. 427, 434 (2006) (Lance, J., dissenting) (discussing the “hamster-wheel
reputation of veterans law”).
69 R. at 1706-10.
70 R. at 3, 23, 696, 1385, 1461.
71 R. at 3.
72 38 U.S.C. §§ 5109B, 7112.

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