Veteranclaims’s Blog

February 7, 2020

Single Judge Application; PTSD rating; use of the term “such symptoms” in § 4.130 indicates that the list of symptoms that follows is non-exhaustive; Board must explain why it is citing absence of a symptom; conclusory statement;

Filed under: Uncategorized — veteranclaims @ 10:38 pm

Excerpt from decision below:

” The Board’s statement of reasons or bases for its decision concerning appellant’s rating for PTSD is not adequate for several reasons. First, the Board appeared to base its decision on the symptoms appellant did not have. For example, the Board found that “[t]the record does not demonstrate that the Veteran experiences intermittent illogical, obscure or irrelevant speech . . . there is also no evidence of . . . impaired impulse control, spatial disorientation, or a neglect
11 Id.
12 Id.
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 9411(2019).
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of his personal appearance and hygiene.”17 Such symptom counting as a basis for assigning a given rating for a mental disorder is not appropriate. As we have made clear, use of the term “such symptoms” 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 evaluation.18
The Board did precisely what we instructed can’t be done. This error alone warrants remand.
To be clear, we are not saying that the absence of a symptom is irrelevant. It can be quite significant. But the Board must explain why it is citing such an absence. The Board did not do so here. On remand, the Board should be mindful of its obligation to assess the symptoms appellant displays (and their severity, duration, and frequency) and not make its determination based on symptoms that are not present. If the Board cites the absence of symptoms as part of its analysis, it must explain how the lack of symptoms plays into its reasoning.
Second, the Board’s discussion of the symptoms appellant does have is conclusory.
Although the Board thoroughly recounted the medical evidence of record, it chose to discuss and discount only some of appellant’s symptoms, including episodes of depression and anxiety, obsessive thoughts, and ability to establish and maintain effective relationships. The Board
performed this analysis, however, without reconciling the evidence contained in various medical reports and treatment records of evidence. For example, although the evidence reflects that he has maintained a relationship with his longtime girlfriend, appellant reported that they fought often, there is a lack of intimacy, and that his symptoms of irritability, agitation, and desire to isolate himself negatively affect their relationship. The Secretary attempts to fill in the gaps in the Board’s
reasoning, purporting to explain why appellant’s ability to establish and maintain effective relationships is more commensurate with a 50% rating rather than a 70% rating; however, the Court cannot accept the Secretary’s post hoc rationalization to cure the Board’s reasons or bases errors.19
17 R. at 16-17.
18 Bankhead, 29 Vet.App. at 18; see Vazquez-Claudio, 713 F.3d at 116-17.
19 See In re Lee, 277 F.3d 1338, 1345-46 (Fed. Cir. 2002) (“‘[C]ourts may not accept appellate counsel’s post hoc rationalization for agency action.'” (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962))); McCray v. Wilkie, 31 Vet.App. 243, 258 (2019) (“[T]he Secretary’s impermissible post-hoc rationalization cannot
make up for shortcomings in the Board’s assessment of the medical opinion.”); Simmons v. Wilkie, 30 Vet.App. 267, 277 (2018) (holding that the “Court cannot accept the Secretary’s post-hoc rationalizations” to cure the Board’s reasons
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Moreover, although noting that appellant was fired from his job as a part-time bus driver because he locked disobedient students inside his school bus, the Board doesn’t wrestle with what such exceptionally odd behavior says about appellant’s occupational functioning. We suppose that
most observers would say this behavior is rather telling concerning appellant’s functioning. The evidence of record, including mental health medical examinations cited by the Board, indicates that appellant often reported getting frustrated at work dealing with children, that he becomes
agitated and irritable around others, and that he is “triggered by noise and crowds when he was at work.”20 A VA examiner also opined that appellant not only had symptoms of depressed mood and anxiety, but he also had chronic sleep impairment, disturbances of motivation and mood,
difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work.21 The Board should have discussed this evidence because it relates to symptoms listed in the 70% rating criteria as well as consider the
impact it might have on appellant’s ability to work. This task is especially important given that he often reported occupational difficulties that result from his mental health problems.22 The Board’s failure to provide sufficient reasons or bases for its determination that a disability rating higher than 50% is not warranted for service-connected PTSD frustrates judicial review and remand is warranted.23

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-2668
WADDELL ARMWOOD, 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 Waddell Armwood served the Nation honorably in the U.S. Army from July 1977 to July 1980.1 In this appeal, which is timely and over which the Court has jurisdiction,2 he contests a March 19, 2019, Board of Veterans’ Appeals decision that denied entitlement to a (1) disability rating greater than 50% for service-connected
PTSD and (2) total disability rating based on individual unemployability (TDIU).3 Because the Board did not provide a statement of reasons or bases sufficient to allow meaningful judicial review, we will set aside the decision and remand this matter for further proceedings.

I. ANALYSIS
Liberally construing his arguments, the Court finds appellant argues that the Board failed to consider and weigh all the evidence before it denied entitlement to a disability rating higher than 50% for his service-connected PTSD. 4 Specifically, appellant cited the July 2015 private
1 Record (R.) at 1489.
2 See 38 U.S.C. §§ 7252(a), 7266(a).
3 R. at 5-22.
4 De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992).
2
examination, October 2015 VA examination, and the fact that he was fired from his job in February

The Secretary defends the Board’s decision in full and urges that we affirm.
The Court reviews the Board’s determination of the proper level of impairment for a mental
disorder for clear error5 while we review claimed legal errors de novo.6 Most relevant for this
appeal, for all findings on a material issue of fact and law, the Board must support its decision with
an adequate statement of reasons or bases that enables a claimant to understand the precise bases
for the Board’s decision and facilitates review in this Court.7 To comply with this requirement, 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.8 If the Board failed to do so, remand is appropriate.9
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. Per the general rating formula, a 50% disability rating is warranted where the
evidence demonstrates occupational and social impairment with reduced reliability and productivity dueto 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 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; 5 Johnson v. Brown, 10 Vet.App. 80, 84 (1997). 6 Butts v. Brown, 5 Vet.App. 532, 538 (1993) (en banc). 7 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). 8 Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). 9 Tucker v. West, 11 Vet.App. 369, 374 (1998). 10 Id.

3

difficulty in adapting to stressful circumstances including work or a worklike setting); inability to establish and maintain effective relationships.[11]

A 100% rating requires evidence of 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.[12]

Because the symptoms enumerated in § 4.130 are not an exhaustive list, 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, § 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.”16

The Board’s statement of reasons or bases for its decision concerning appellant’s rating for PTSD is not adequate for several reasons. First, the Board appeared to base its decision on the symptoms appellant did not have. For example, the Board found that “[t]the record does not demonstrate that the Veteran experiences intermittent illogical, obscure or irrelevant speech . . . there is also no evidence of . . . impaired impulse control, spatial disorientation, or a neglect

11 Id.

12 Id.

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 9411(2019).

4

of his personal appearance and hygiene.”17 Such symptom counting as a basis for assigning a given rating for a mental disorder is not appropriate. As we have made clear, use of the term “such symptoms” 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 evaluation.18

The Board did precisely what we instructed can’t be done. This error alone warrants remand.

To be clear, we are not saying that the absence of a symptom is irrelevant. It can be quite significant. But the Board must explain why it is citing such an absence. The Board did not do so here. On remand, the Board should be mindful of its obligation to assess the symptoms appellant displays (and their severity, duration, and frequency) and not make its determination based on symptoms that are not present. If the Board cites the absence of symptoms as part of its analysis, it must explain how the lack of symptoms plays into its reasoning.

Second, the Board’s discussion of the symptoms appellant does have is conclusory.

Although the Board thoroughly recounted the medical evidence of record, it chose to discuss and discount only some of appellant’s symptoms, including episodes of depression and anxiety, obsessive thoughts, and ability to establish and maintain effective relationships. The Board

performed this analysis, however, without reconciling the evidence contained in various medical reports and treatment records of evidence. For example, although the evidence reflects that he has maintained a relationship with his longtime girlfriend, appellant reported that they fought often, there is a lack of intimacy, and that his symptoms of irritability, agitation, and desire to isolate himself negatively affect their relationship. The Secretary attempts to fill in the gaps in the Board’s

reasoning, purporting to explain why appellant’s ability to establish and maintain effective relationships is more commensurate with a 50% rating rather than a 70% rating; however, the Court cannot accept the Secretary’s post hoc rationalization to cure the Board’s reasons or bases errors.19

17 R. at 16-17.

18 Bankhead, 29 Vet.App. at 18; see Vazquez-Claudio, 713 F.3d at 116-17.

19 See In re Lee, 277 F.3d 1338, 1345-46 (Fed. Cir. 2002) (“‘[C]ourts may not accept appellate counsel’s post hoc rationalization for agency action.'” (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962))); McCray v. Wilkie, 31 Vet.App. 243, 258 (2019) (“[T]he Secretary’s impermissible post-hoc rationalization cannot

make up for shortcomings in the Board’s assessment of the medical opinion.”); Simmons v. Wilkie, 30 Vet.App. 267, 277 (2018) (holding that the “Court cannot accept the Secretary’s post-hoc rationalizations” to cure the Board’s reasons

5

Moreover, although noting that appellant was fired from his job as a part-time bus driver because he locked disobedient students inside his school bus, the Board doesn’t wrestle with what such exceptionally odd behavior says about appellant’s occupational functioning. We suppose that

most observers would say this behavior is rather telling concerning appellant’s functioning. The evidence of record, including mental health medical examinations cited by the Board, indicates that appellant often reported getting frustrated at work dealing with children, that he becomes

agitated and irritable around others, and that he is “triggered by noise and crowds when he was at work.”20 A VA examiner also opined that appellant not only had symptoms of depressed mood and anxiety, but he also had chronic sleep impairment, disturbances of motivation and mood,

difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work.21 The Board should have discussed this evidence because it relates to symptoms listed in the 70% rating criteria as well as consider the

impact it might have on appellant’s ability to work. This task is especially important given that he often reported occupational difficulties that result from his mental health problems.22 The Board’s failure to provide sufficient reasons or bases for its determination that a disability rating higher than 50% is not warranted for service-connected PTSD frustrates judicial review and remand is warranted.23

We will also set aside the Board’s decision concerning TDIU because it is inextricably intertwined with the Board’s consideration of an appropriate disability rating for PTSD that the

Court is remanding. As we have explained, “where a decision on one issue would have a

‘significant impact’ upon another and that impact in turn ‘could render any review by this Court of

the decision [on the other claim] meaningless and a waste of judicial resources’ the two claims are

inextricably intertwined.'”24 That is the case here. In addition, on remand the Board should

or bases errors); Smith v. Nicholson, 19 Vet.App. 63, 73 (2015) (“[I]t is not the task of the Secretary to rewrite the

Board’s decision through his pleadings filed in this Court.”).

20 R. at 11.

21 R. at 12.

22 R. at 18, 1314, 1438.

23 See Tucker v. West, 11 Vet.App. 369, 374 (1998).

24 Henderson v. West, 12 Vet.App. 11, 20 (1998) (quoting Harris v. Derwinski, 1 Vet.App. 180, 183 (1991)).

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carefully consider our decision in Ray v. Wilkie concerning what is required to satisfy the reasonor-bases requirement with respect to TDIU.25

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.26 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.27 The Board must consider any such additional evidence or

argument submitted.28 The Board must also proceed expeditiously.29

II. CONCLUSION

After consideration of the parties’ briefs, the governing law, and the record, the Court SETS

ASIDE the March 19, 2019, Board decision and REMANDS this matter for further proceedings

consistent with this decision.

DATED: February 5, 2020

Copies to:

Waddell Armwood

VA General Counsel (027)

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