Veteranclaims’s Blog

October 17, 2019

Arguing conclusory error in disability claim under §4.130; conclusory error; arguments points;

Filed under: Uncategorized — veteranclaims @ 2:30 pm

Arguing Board conclusory error in mental disability claim, here the CAVC found the Secretary’s brief/argument compelling and it presents a framework that maybe of interest to anyone wanting to argue a similar claim.

From CAVC decision below:

” The Court agrees with the Secretary that the Board’s statement of reasons or bases is inadequate. The principal reason is that the Board’s discussion of appellant’s symptoms is entirely conclusory. 17 It is simply not enough for the Board to list symptoms (or the absence of symptoms) and then state a conclusion. Rather, the Board must explain why those symptoms –assessing their severity, frequency, and duration –support its assignment of a particular rating.18 As in math class, the Board must “show its work.” Here, the Board fell victim to this all too common error in appeals involving mental-disorder ratings. After spending several pages reciting the evidence,19 the Board essentially then did little more than state that appellant met the 50% rating criteria but did not meet those for a 70% or 100% rating.20 The Board did not explain how the evidence the Board had listed supported the rating it assigned as opposed to higher ratings. The Board on remand should pay particular attention to explaining why the symptoms it finds present justify a given rating given their effects on appellant’s occupational and social functioning.The Secretary’s brief articulates the ways in which the Board erred, almost all of which reflecting the conclusory nature of the Board’s discussion.21 The Court agrees with the Secretary’s arguments about the Board’s specific deficiencies.”

From Secretary’s brief below:

“In a conclusory fashion, the Board determined: “[a]s to a higher scheduler [sic] rating of 70 percent, the Board does not find such is warranted because Appellant’s symptoms and overall impairment did not include those symptoms noted under this level of impairment or like symptoms that would exhibit the frequency, severity, and duration required of such a rating.” [R. at 9 (2-12)]. However, in making this determination of whether Appellant was entitled to a 70% rating, the Board failed to address evidence of record related to the nature of Appellant’s social impairment.”

Designated for electronic publication only

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 18-5532

GLORIA M.DILLARD,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: Self-represented appellant Gloria Dillard served the Nation honorably in the United States Army Reserve with active service in support of DesertShield/Desert Storm. In this appeal, which is timely and over which the Court has jurisdiction,1 she contests a September 27, 2018, decision of the Board of Veterans’ Appeals that denied her an initial disability rating greater than 50% for major depressive disorder (MDD).2 Because the Board’s statement of its reasons or bases is inadequate to enable meaningful judicial review, we will set aside the decision and remand this matter for further proceedings.

I. ANALYSIS

Because appellant is proceeding pro se, she is entitled to both a sympathetic reading of her informal brief and a liberal construction of her arguments.3 But she still carries the burden of demonstrating error on appeal.4 Liberally construed, appellant challenges the adequacy of the 1See 38 U.S.C. §§ 7252(a), 7266(a).2 Record (R.) 3-12.3 SeeDe Perez v. Derwinski, 2 Vet.App. 85, 86 (1992).4 Shinseki v. Sanders, 556 U.S. 396, 409 (2009).2Board’s assessment of the evidence in concluding that she is not entitled to a disability rating greater than 50%for her service-connected MDD. The Secretary concedes that the Board erred because it did not adequately explain the grounds for its decision and urges the Court to remand this matter.5 The Board must support all its material factual determinations and legal conclusions with a written statement of reasons or bases that is “adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court.”6 To do this, the Board “must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted . . . , and provide the reasons for its rejection of any such evidence.”7 The Court reviews the Board’s determination of the level of impairment resulting from a mental disorder for clear error.8 We may overturn the Board’s finding only if there’s no plausible basis in the record for the Board’s decision and we are “left with the definite and firm conviction that” the Board’s decision was in error.9 Appellant’s MDD is measured against the rating criteria described in 38 C.F.R. §4.130, Diagnostic Code (DC)9434, which directs the rating specialist to apply the general rating formula for mental disorders. Per the general rating formula, a 50% disability rating is warranted where the evidence demonstrates[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.[10]A 70% rating requires evidence of [o]ccupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms5 See Secretary’s Brief (Br.) at 9-19.6 Allday v. Brown, 7 Vet.App. 517, 527 (1995). 7 Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78F.3d 604 (Fed. Cir. 1996) (table).8 Johnson v. Brown, 10 Vet.App. 80, 84 (1997).9 See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).1038 C.F.R. §4.130, DC 9434 (2019).3 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 work like setting); inability to establish and maintain effective relationships.[11]A 100% rating requires evidence of [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.[12]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.”13 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.14″[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.”15 To qualify for a particular disability rating under §4.130, a claimant must demonstrate “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas.”16 The Court agrees with the Secretary that the Board’s statement of reasons or bases is inadequate. The principal reason is that the Board’s discussion of appellant’s symptoms is entirely 11Id.12Id. 13 Mauerhan v. Principi, 16 Vet.App. 436, 440-41 (2002); see Bankhead v. Shulkin, 29 Vet.App. 10, 22 (2017).14 Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013).15 Id. at 117.16 Id.; see 38 C.F.R. §4.130, DC 9434.4

conclusory. 17 It is simply not enough for the Board to list symptoms (or the absence of symptoms) and then state a conclusion. Rather, the Board must explain why those symptoms –assessing their severity, frequency, and duration –support its assignment of a particular rating.18 As in math class, the Board must “show its work.” Here, the Board fell victim to this all too common error in appeals involving mental-disorder ratings. After spending several pages reciting the evidence,19the Board essentially then did little more than state that appellant met the 50% rating criteria but did not meet those for a 70% or 100% rating.20 The Board did not explain how the evidence the Board had listed supported the rating it assigned as opposed to higher ratings. The Board on remand should pay particular attention to explaining why the symptoms it finds present justify a given rating given their effects on appellant’s occupational and social functioning.The Secretary’s brief articulates the ways in which the Board erred, almost all of which reflecting the conclusory nature of the Board’s discussion.21 The Court agrees with the Secretary’s arguments about the Board’s specific deficiencies. The Court will order that the briefs be included in appellant’s claims file to assist the Board on remand. The Board must ensure that it addresses the deficiencies the Secretary discusses when it reconsiders appellant’s claim. 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.22 On remand, appellant may submit additional evidence and argument and has 90 days to do so from the date of VA’s post-remand notice.23 The Board must consider any such additional evidence or argument submitted.24 The Board must also proceed expeditiously.2517 See, e.g.,R. at 10-12.18 See, e.g., Bankhead 29Vet.App. at 22.19R. at 7-10.20R. at 10-12.21 See Secretary’s Br. at 9-19.22 Best v. Principi, 15Vet.App. 18, 20 (2001).23Kutscherousky v. West, 12Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App. 92 (2018). 24Kay v. Principi, 16Vet.App. 529, 534 (2002). 25 38U.S.C. §§5109B, 7112.5

II. CONCLUSION

After consideration of the parties’ briefs, the governing law, and the record, the Court SETS ASIDE the September 27, 2018, Board decision and REMANDS this matter for further proceedings consistent with this decision.The Court further directs that the briefs in this appeal be associated with appellant’s claims file on remand.DATED: October 16, 2019 Copies to: Gloria M. Dillard VA General Counsel (027)

Secretary’s Brief

Vet.App. No. 18-5532

IN THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

GLORIA M. DILLARD, Appellant,v. ROBERT L. WILKIE, Secretary of Veterans Affairs,Appellee.

ON APPEAL FROM THE BOARD OF VETERANS’ APPEALS

BRIEF OF THE APPELLEE SECRETARY OF VETERANS AFFAIRS

JAMES M. BYRNE General CounselMARY ANN FLYNNChief CounselJOAN E. MORIARTYDeputy Chief CounselLAMAR D. WINSLOWAppellate AttorneyU.S. Department of Veterans AffairsOffice of the General Counsel (027C)810 Vermont Avenue, N.W.Washington, D.C. 20420(202) 632-6132Attorneys for Appellee ____________________________________________________________________ ____________________________________________________________________

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In June 2015, when Appellant received emergency care for a wasp bite, no psychiatric abnormality was noted, to include no psychotic symptoms, or homicidal or suicidal ideations. [R. at 411 (411-13)].In a letter dated June 20, 2015, Dr. Uzzell indicated that Appellant had stopped working due to back pain, fatigue, crying spells and depression. [R. at 72]. Dr. Uzzell noted that “back pain, fatigue, crying spells and depression made it unbearable for [Appellant] to work and she had to resign after only being employed part-time for four weeks.” Id. Dr. Uzzell opined that Appellant was unemployable due to these symptoms. Id. Appellant reported she was unable to perform day-to-day household tasks due to her chronic back pain and depressed mood. Id. Appellant was afforded a second VA examination in July 2015. [R. at 614 (614-25)]. The examiner diagnosed Appellant with major depressive disorder, single episode, moderate. Id. Appellant’s current symptoms were noted to include depressed mood, concentration problems, and chronic sleep impairment,. [R. at 616 (614-25)]. The examiner noted her symptoms “could mildly to moderately impact [her] ability to start and complete work-related tasks and sustain focus on work matters, particularly during times of significant stress.” Id. The examiner further found that the symptoms “could also mildly to moderately impact her ability to maintain effective interpersonal relationships at work and adapt to stressful situations.” Id. The examiner noted that Appellant’s psychiatric symptoms caused mild to moderate impairment in her overall functioning. [R. at 615 (615-25)]. 8 In March 2016, Dr. Uzzell stated that Appellant’s major depressive disorder symptoms had worsened. [R. at 71]. She reported Appellant self-isolates and is unable to handle being around other people. Id. She noted Appellant was living alone and was struggling to take care of her household tasks. Id. She concluded that Appellant’s “mental health is severely impaired.” Id.Appellant appealed to the Board in May, 2016. [R. at 46]. In the September 27, 2018, decision on appeal, the Board denied Appellant’s claim for an increased rating and found that the current rating of 50% was appropriate. [R. at 9 (2-12)]. The Board found that a higher rating of 70% was not “warranted because Appellant’s symptoms and overall impairment did not include those symptoms noted under this level of impairment or like symptoms that would exhibit the frequency, severity, and duration required of such a rating.” Id. The Board found that Appellant: consistently had normal speech, she was also neatly dressed and groomed, and did not exhibit near-continuous panic or depression affecting ability to function independently, appropriately, and effectively. The Board also notes that [Appellant] consistently denied having suicidal ideations. Additionally, there is no evidence in her psychiatric treatment record of any suicide ideation or plan.R. at 10 (2-12)]. The Board found that Appellant, “has not demonstrated any symptomatology of comparable severity to the listed symptoms considered by a 100- percent rating because she has denied any of the listed symptoms.” Id.9

SUMMARY OF THE ARGUMENT

The Court should vacate and remand the September 27, 2018, Board decision that denied entitlement to an initial rating in excess of 50% for MDD. The Board erred in its decision because it failed to properly evaluate Appellant’s mental health symptoms in accordance with the diagnostic code and this Court’s precedent concerning the evaluation of mental health disorders. As a result, the Board’s statement of reasons or bases is inadequate, and remand is warranted.

ARGUMENT

A. THE BOARD’S STATEMENT OF REASONS OR BASES IS INADEQUATE BECAUSE THE BOARD FAILED TO ADDRESS EVIDENCE PERTINENT TO ENTITLEMENT TO A 100-PERCENT SCHEDULAR RATING.

The Board failed to analyze the severity, frequency, and duration of Appellant’s symptoms that may be pertinent to a 100 schedular rating. As a result, the Board’s statement of reasons or bases is inadequate. “The Board is required to provide a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the 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. 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

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persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.” Thompson v. Gober, 14 Vet.App. 187, 188 (2000) (per curiam order) (citing 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); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (table); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994)).The U.S. Court of Appeals for the Federal Circuit has explained that evaluation of mental disorders under § 4.130 is “symptom driven,” meaning that“symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (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. To qualify for a 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.” Id.; see 38 C.F.R. § 4.130, Diagnostic Code 9434 (Major Depressive Disorder). Additionally, this Court has held that “the 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.” Bankhead v. Shulkin, 1129 Vet.App. 10, 22 (2017) (citing Vazquez-Claudio, 713 F.3d at 115; Mauerhan v. Principi, 16 Vet.App. 436, 442 (2002)) (emphasis in original).When evaluating mental disorders under § 4.130, a 100% rating is assigned when a service-connected mental health disorder causes “total 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.” 38 C.F.R. § 4.130.The Board found that Appellant “has not demonstrated any symptomatology of comparable severity to the listed symptoms considered by a 100-percent rating because she has denied any of the listed symptoms.” R. at 10 (2-12)]. However, the record shows that Appellant exhibits symptoms that may correspond to the 100% rating criteria. See 38 C.F.R. § 4.130 (providing that a total rating is warranted where there is total occupational and social impairment due to symptoms such as an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene)).During Appellant’s July 2015 VA examination, the Appellant informed the examiner, “that her most significant problem at this time is ‘just not being able to do for me.’” [R. at 624 (615-25)]. “She said, ‘I’m not feeling good about just not

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being able to do and get up and go.’” [R. at 622 (615-25)]. She worried about being alone “‘and not being able to do for myself.’”Id. Appellant said “she makes herself eat sometimes because she knows she needs to eat. She said her weight fluctuates ‘back and forth.’” [R. at 621 (615-25)].In March 2016, Dr. Uzzell stated that Appellant was living alone and struggling to take care of her household tasks. [R. at 71]. In a letter dated June 20, 2015, Dr. Uzzell indicated that Appellant had stopped working due to back pain, fatigue, crying spells, and depression. [R. at 72]. Dr. Uzzell noted that Appellant was unable to perform day-to-day household tasks due to her chronic back pain and depressed mood. Id. She noted Appellant self-isolates, felt lonely and did not want to be around people. The Board failed to address this evidence, which is relevant to assessing whether Appellant has total occupational and social impairment due to an intermittent inability to perform activities of daily living. The Board must provide the reasons for its rejection of any material evidence favorable to the claimant.” Thompson, 14 Vet.App. at 188. Accordingly, the Secretary asserts that because the Board’s statement of reasons or bases is inadequate, remand is required. 38 U.S.C. § 7104(d)(1).

B. THE BOARD FAILED TO ADEQUATELY EVALUATE EVIDENCE PERTINENT TO ENTITLEMENT TO A 70-PERCENT SCHEDULAR RATING.

The Board failed to address evidence that pertains to Appellant’s “inability to establish and maintain effective relationships.” 38 C.F.R. § 4.130. In a conclusory fashion, the Board determined: “[a]s to a higher scheduler [sic] rating of 70 percent, the Board does not find such is warranted because Appellant’s symptoms and overall impairment did not include those symptoms noted under this level of impairment or like symptoms that would exhibit the frequency, severity, and duration required of such a rating.” [R. at 9 (2-12)]. However, in making this determination of whether Appellant was entitled to a 70% rating, the Board failed to address evidence of record related to the nature of Appellant’s social impairment. In September 2014, Appellant underwent a private psychological evaluation by Dr. Uzzell [R. at 664-65]. Appellant reported she has symptoms of depressed mood, including crying spells, as well as problems sleeping, isolating herself, hopelessness, lack of motivation, and anxiety due to her back pain. [R. at 665 (664-5)]. Appellant isolated herself and had “withdrawn from everything and everyone.” [R. at 665 (664-5)]. Appellant reported feeling anxiety when she thought “about not being able to take care of herself.” Dr. Uzzell found that Appellant’s self-isolation affected her social life. Id. Further, during an initial mental health consult in October 2014, Appellantreported symptoms of anxiety and depression including isolation, fear, distrust, intolerance for people, and thoughts of death without suicidal thought or plan. [R. 14499-502]. She also reported that has been divorced three times, had strained relationships with her two children, and did not have any close friendships. [R. at 501 (499-502)]. Additionally, in March 2015, Appellant underwent a VA examination to assess the severity of her MDD. [R. at 739-47]. The examiner also found that Appellant had symptoms of depressed mood, chronic sleep impairment, flattened affect, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. [R. at 742-3 (739-47)]. She also reported symptoms of crying spells, social isolation, lack of motivation, staying in bed for long periods. [R. at 743 (739-47)]. During the July 2015 VA examination, Appellant’s symptoms were noted to include depressed mood, chronic sleep impairment, and difficulty establishing and maintaining effective work and social relationships. [R. at 616 (614-25)]. Appellantreported that she lived alone, had little contact with her children, and denied a close relationship with her siblings. Id. She further reported she attends church once a week but denied any other social activities. Id.The Board failed to address this evidence of related to Appellant’s ability to establish and maintain effective relationships, and failure to do so constitutes error. Thompson, 14 Vet.App. at 188 (“the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be 15persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.”). See 38 C.F.R. § 4.130 (providing that an “inability to establish and maintain effective relationships” is a hallmark of a 70% disability rating). Thus, the Secretary urges the Court to remand this matterfor the Board to address this evidence in its determination as to whether a higher rating is warranted. The Secretary also asserts that the Board did not address evidence pertaining to the severity, frequency and duration of Appellant’s depression symptomatology. The Board found that a higher rating of 70% was not, “warranted because Appellant’s symptoms and overall impairment did not include those symptoms noted under this level of impairment or like symptoms that would exhibit the frequency, severity, and duration required of such a rating.” [R. at 9 (2-12)]. However, the Board did not provide any support for this conclusion. Also, the Board determined, “[n]otably, Appellant’s symptoms have been consistent throughout the appeal period.” [R. at 10 (2-12)] (Board Decision) (finding that the evidence warrants a uniform 50-percent rating). The Secretary contends the Board erred as these findings are conclusory and do not address evidence of worsening symptoms. In March 2016, Dr. Uzzell stated that Appellant’s major depressive disorder symptoms had “worsened” and provided evidence of such worsening. [R. at 71]. Appellant was said to be “very depressed, and emotional at all times.” Id. Appellant was described as “hopeless and very discouraged about 16her mood improving….” Id. Appellant was living alone and struggling to take care of her household tasks. Id. In a letter dated June 20, 2015, Dr. Uzzell indicated that Appellant had stopped working due to back pain, fatigue, crying spells and depression. [R. at 72]. She noted that “back pain, fatigue, crying spells and depression made it unbearable for [Appellant] to work and she had to resign after only being employed part-time for four weeks.” Id. Dr. Uzzell opined that Appellant was unemployable due to these symptoms. Id. She found that Appellant was unable to perform day-to-day household tasks due to her chronic back pain and depressed mood. Id. Moreover, in the September 30, 2014, evaluation, Doctor Uzzell noted that it, “has been a very difficult struggle for [Appellant] to maintain a high quality of life, as well as maintain professional and personal relationships with others while enduring these [MDD] symptoms.” [R. at 664 (664-65)]. She also noted that, “Ms. Dillard feels sad and depressed most often.” [R. at 665 (664-65)]. “Furthermore, Ms. Dillard struggles with her mood, which causes her to self-isolate and impacts her social life.” Id. The Board failed to address the frequency, severity and duration of Appellant’s depressed mood. While some of this symptomatology was recited in the Board’s discussion of the facts, its analysis did not address this evidence in determining whether Appellant was entitled to a rating in excess of 50 percent. Given the symptoms recorded in these medical records, the Board should have 17addressed whether these mood symptoms constitute occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, thinking, or mood, due to near-continuous depression affecting the ability to function independently, appropriately and effectively. See 38 C.F.R. § 4.130 (70% Rating Criterion). The Secretary asserts that failure to evaluate this evidence that pertains to Appellant’s level of occupational and social impairment constitutes error because “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Vazquez-Claudio, 713 F.3d at 117. On remand, the Board should address whether these, “symptoms have caused occupational and social impairment in most of the referenced areas.” Id. C. THE BOARD’S STATEMENT OF REASONS OR BASES IS INADEQUATE BECAUSE THE BOARD FAILED TO ADDRESS WHETHER THE DUTY TO ASSIST WAS SATISFIED. The Board failed to address whether the Secretary complied with his duty to provide the Appellant with a new examination where there was medical evidence of worsening symptoms.The Secretary has a duty to assist the claimant by providing a thorough and contemporaneous medical examination when the record does not adequately reveal the current state of the claimant’s disability. See 38 U.S.C. § 5103A(d)(1); Green v. Derwinski, 1 Vet. App. 121, 124 (1991).The duty to conduct a 18contemporaneous examination is triggered when the, “evidence indicates there has been a material change in a disability or that the current rating may be incorrect.” 38 C.F.R. § 3.327(a); seePalczewski v. Nicholson, 21 Vet. App. 174, 182 (submission of new evidence or allegation that disability has worsened may require new medical examination to be provided).Here, the Board’s finding that Appellant’s symptoms have remained constant throughout the appeal period is not supported by an adequate statement of reasons or bases. The Board acknowledged the March 2016 letter from Dr. Uzzell stating, that Appellant’s “major depressive disorder symptoms worsened.” [R. at 9 (2-12)] (Board Decision); [R. at 71]. But then, without addressing this evidence, the Board concluded that “Appellant’s symptoms have been consistent throughout the appeal period.” [R. at 10 (2-12)] (Board Decision). Accordingly, the remand is warranted for the Board to address the evidence of worsening symptompatology and to address whether a new medical examination is needed. In her brief, Appellant argues that she was entitled to the benefit of the doubt. [Br. at 2] (citing 38 U.S.C. § 5107(b), and 38 C.F .R. § 3.303). The Secretary disagrees that this is the dispositive issue here. Instead, the Secretary urges the Court to remand because the Board failed to offer a reasoned basis for its conclusion that Appellant’s symptomatology does not warrant a higher rating and to address whether the medical evidence of record is adequate. The benefit-of-the-doubt doctrine is to be applied only after “all procurable and assumed data” 19have been obtained, thus consideration of this doctrine should be made only after the Board has determined whether a new examination is warranted. See 38 C.F.R. § 3.102. Moreover, 38 C.F .R. § 3.303 pertains to principles relating to service connection, and the issue on appeal here is on of an increased rating.Appellant asks to be granted entitlement to individual unemployability, but Appellant has already been granted individual unemployability based on combined service connection disabilities. [R. at 179-83].Further, Appellant attached an argument to her brief which cites, “Luck of the Draw.” [Br. at Attachment #2]. Appellant has not presented any legal basis for this argument, and it warrants no consideration. SeeAbbott v. O’Rourke, 30 Vet.App. 42, 50 n.3 (2018) (rejecting Appellant’s arguments for “failing to satisfy even the liberal standard for pro se pleadings at the Court”); Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (providing that the Court need not address arguments that are “far too terse to warrant detailed analysis by the Court”). CONCLUSIONWHEREFORE, for the foregoing reasons, Appellee, Robert L. Wilkie, respectfully urges the Court to remand the Board’s September 27, 2018, decision that denied entitlement to an initial rating in excess of 50% for MDD.Respectfully submitted,JAMES M. BYRNEGeneral Counsel20MARY ANN FLYNN Chief Counsel/s/ Joan E. Moriarty JOAN E. MORIARTY Deputy Chief Counsel/s/ Lamar D. Winslow LAMAR D. WINSLOW Appellate Attorney Office of the General Counsel (027C) U.S. Department of Veterans Affairs 810 Vermont Avenue, N.W. Washington, D.C. 20420 (202) 632-6132 Counsel for the Secretary of Veterans Affairs

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