Veteranclaims’s Blog

April 24, 2020

Single Judge Application; Mental Disorder Adjudication; Board did not follow the proper procedure for assigning a disability rating to a mental health disorder. This Court and the U.S. Court of Appeals for the Federal Circuit have explained that the Board should begin by stating whether the appellant has experienced one or more of the symptoms that are found in the list of symptoms affixed to the diagnostic criteria for the disability rating that he seeks or other symptoms of similar severity and frequency. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet.App. 436, 442 (2002); 38 C.F.R. § 4.130 (2019). If the Board identifies one or more qualifying symptoms, it then should determine whether the symptom or symptoms produce occupational and social impairment of the kind described by the rating criteria. Vazquez-Claudio, 713 F.3d at 118. If so, then he is entitled to the rating he seeks. Id.;

Filed under: Uncategorized — Tags: — veteranclaims @ 9:28 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-7157
WILLIAM E. RICHARDS III, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
PIETSCH, Judge: The appellant, William E. Richards III, appeals through counsel an
October 9, 2018, Board of Veterans’ Appeals (Board) decision in which the Board denied him entitlement to a disability rating greater than 50% for post-traumatic stress disorder (PTSD).
Record (R.) at 4-10. This appeal is timely and the Court has jurisdiction over the matter on appeal pursuant to 38 U.S.C. §§ 7252(a) and 7266. Single-judge disposition is appropriate when the issues are of “relative simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the Board’s decision and remand the matter on appeal for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from April 1968 until January 1971.
R. at 654. In February 2011, a VA medical examiner diagnosed him with “mild level” PTSD. R.
at 386. The examiner noted that his disorder produced both occupational and social deficiencies.
Id.
2
In July 2011, the VA regional office (RO) granted the appellant entitlement to disability
benefits for PTSD and assigned his disorder a 50% disability rating effective August 11, 2010. R.
at 346-57. In October 2015, he requested a higher disability rating. R. at 290. In December 2015,
the RO declined that request. R. at 168-71.
In March 2016, psychologist Dr. Elizabeth Ann Leeberg opined that the appellant is not
“able to qualify for any gainful employment” and is not “likely to improve given his age and the
chronicity of these problems.” R. at 90. In a September 2016 medical opinion, a VA medical
examiner described the appellant’s symptoms. R. at 51-55. In an October 2016 addendum opinion,
the examiner opined that those symptoms produce “occupational and social impairment with
reduced reliability and productivity.” R. at 44.
On October 9, 2018, the Board issued the decision presently under review. R. at 4-10.
II. ANALYSIS
The Board’s decision is deficient for the following reasons. First, the Board did not follow
the proper procedure for assigning a disability rating to a mental health disorder. This Court and the U.S. Court of Appeals for the Federal Circuit have explained that the Board should begin by stating whether the appellant has experienced one or more of the symptoms that are found in the list of symptoms affixed to the diagnostic criteria for the disability rating that he seeks or other symptoms of similar severity and frequency. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet.App. 436, 442 (2002); 38 C.F.R. § 4.130 (2019).
If the Board identifies one or more qualifying symptoms, it then should determine whether the symptom or symptoms produce occupational and social impairment of the kind described by the rating criteria. Vazquez-Claudio, 713 F.3d at 118. If so, then he is entitled to the rating he seeks. Id.
The Board conflated the two distinct prongs of this analysis. It also decided this case by
giving its general impression of the appellant’s disability rather than following the fair, objective,
and rigorous process set forth by this Court and the one above. See R. at 8 (“Overall, the Board
finds that the evidence does not show that the [appellant’s] PTSD warrants a rating in excess of 50
percent.”). As a consequence, its statement of reasons or bases is difficult to understand and
review. See Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
3
Second, the Court in Mauerhan made clear that the Board is not to assign a disability rating
for a mental health disorder by ticking through the symptoms affixed to the rating criteria and
tabulating the ones the appellant has and has not experienced. 16 Vet.App. at 442. The Board did
just that in the decision presently on appeal.
Third, the Board enhanced evidence (even to the point of fictionalization) to support the
conclusion that it wished to reach. The Board found that the appellant “was noted to have a good
relationship with his sisters and mother.” R. at 9. The record shows that he “remains in contact
with his sisters.” R. at 51. It says nothing about the nature and frequency of this contact and
whether it results in anything resembling a “good relationship.” The only record postdating the
appellant’s request for an increased disability rating that mentions his mother notes “mother with
dementia and in assisted living facility, remains in contact with.” R. at 58. That record again
reveals nothing about the nature and frequency of the contact. On remand, the Board should
faithfully report and apply the evidence in the record and avoid the kind of unwarranted (and
extremely prejudicial) extrapolations that tarnish the decision presently on appeal.
Fourth, two medical experts disagreed about whether the appellant’s symptoms produce
occupational and social impairment sufficient to warrant increased compensation. The Board
favored the 2016 VA medical examiner’s opinion. Its explanation for doing so, however, is brief
and incomplete. It did not conduct a full and explicit adequacy review of either document, and it
focused on the shortcomings it perceived in Dr. Leeberg’s opinion without giving the 2016
examiner’s opinion any scrutiny at all.
The Board seemed to find Dr. Leeberg’s opinion inadequate, but it did not cite or clearly
apply the legal criteria for adequacy. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008);
Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007). Furthermore, its decision to preface its
explanation for its adequacy determination (if that’s what it is) with the phrase “for example”
reveals that some of the reasons for its conclusion remain hidden from view. R. at 9.
The “inconsistencies” that the Board found in Dr. Leeberg’s opinion are based in part on
the its conclusion that the appellant has an “ongoing relationship with his sisters.” Id. As noted
above, that finding does not accurately reflect evidence in the record. On remand, should the
Board again need to weigh competing medical opinions, it should determine whether they are
adequate and then, if they are, fully explain the probative value it awards to each without enhancing
evidence beyond what the record will bear.
4
Finally, the Board’s implied conclusion that the 2016 VA examiner’s opinion with
addendum is adequate is clearly erroneous. The Agency sent the examiner’s initial report back to
him because he gave neither a diagnosis nor an opinion about the appellant’s occupational and
social impairment. In response, the examiner wrote “PTSD” and “occupational and social
impairment with reduced reliability and productivity.” R. at 42. He gave no explanation
connecting those statements to data that he recorded in his reports. He also did not “comment on”
Dr. Leeberg’s opinion as he was asked to do.1 R. at 49. His opinion is clearly inadequate. Nieves-
Rodriguez, 22 Vet.App. at 301.
The Court need not address the appellant’s other arguments at this time. Best v. Principi,
15 Vet.App. 18, 20 (2001) (per curiam order) (holding that “[a] narrow decision preserves for the
appellant an opportunity to argue those claimed errors before the Board at readjudication, and, of
course, before this Court in an appeal, should the Board rule against him [or her]”).
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs and a review of the record,
the Board’s October 9, 2018, decision is VACATED and the matter on appeal is REMANDED for further proceedings consistent with this decision.
DATED: April 23, 2020
Copies to:
Peter F. Carroll, Esq.
VA General Counsel (027)
1 The examiner seemed most concerned in his addendum opinion with expressing his displeasure with the
manner in which the RO handled his initial report.

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