Veteranclaims’s Blog

September 11, 2020

Single Judge; Buchanan v. Nicholson, 451 F.3d 1331, 1334-35 (Fed. Cir. 2006) competent and probative with respect to matters such as the severity of mental health symptoms; Board did not address two related issues with respect to the examiner’s conclusion. First, it is not clear why the examiner appeared to limit herself to considering medical evidence when opining about the worsening of the veteran’s PTSD. Second, the Board failed to discuss that the VA medical professional apparently categorically limited her opinion to medical evidence, which calls the Board’s reliance on that opinion into question;

Filed under: Uncategorized — veteranclaims @ 12:21 am

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-6816
PATRICIA A. CASTRO, 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 Patricia Castro is the surviving spouse of veteran Juan Castro,
who served the Nation honorably in the United States Army. In this appeal, which is timely and
over which the Court has jurisdiction,1 she contests a September 23, 2019, decision of the Board
of Veterans’ Appeals that denied a disability rating greater than 50% for the veteran’s serviceconnected
PTSD and also denied entitlement to a total disability rating based on individual
unemployability (TDIU).2 Because the Board’s statement of its reasons or bases is inadequate to
enable meaningful judicial review with respect to the veteran’s PTSD disability rating, we will set
aside that decision and remand it for further proceedings. Because entitlement to TDIU is
inextricably intertwined with the veteran’s PTSD disability rating, we will also set aside the Board’s
decision on that issue and remand that matter as well.
I. ANALYSIS
Appellant first argues that the Board erred when it determined that the veteran’s serviceconnected PTSD did not entitle him to a disability rating greater than 50%. Among other things,
1 See 38 U.S.C. §§ 7252(a), 7266(a).
2 Record (R.) 5-22.
2
she argues that the Board did not sufficiently explain its reliance on a December 2016 VA medical
opinion and also ignored a statement she submitted in December 2015 discussing the veteran’s
PTSD symptoms and their effects. The Secretary defends the Board’s decision and urges that we
affirm its determination concerning the veteran’s PTSD disability rating.
The Court reviews the Board’s determination of the proper level of impairment for a mental
disorder for clear error3 while we review claimed legal errors de novo.4 We also review Board
determinations about the adequacy of medical opinions for clear error.5 A medical opinion is
adequate when it’s “based upon consideration of the veteran’s . . . medical history and examinations
and also describes the disability in sufficient detail” so that the Board’s “evaluation of the claimed
disability will be a fully informed one.”6 “It is the factually accurate, fully articulated, sound
reasoning for the conclusion . . . that contributes probative value to a medical opinion.”7
Finally, and 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.8 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.9 If the Board failed
to do so, remand is appropriate.10
The Board’s statement of reasons or bases for its decision concerning the veteran’s PTSD
rating is inadequate. The Board relied on a December 2016 VA medical opinion when it
determined that the veteran was not entitled to a disability rating greater than 50% for his serviceconnected
PTSD. 11 The VA medical professional who rendered this opinion concluded that
“[t]here is no medical evidence that [v]eteran’s PTSD increased in severity following his 2012
3 Johnson v. Brown, 10 Vet.App. 80, 84 (1997); see Tedesco v. Wilkie, 31 Vet.App. 360, 363 (2019).
4 Butts v. Brown, 5 Vet.App. 532, 538 (1993) (en banc).
5 D’Aries v. Peake, 22 Vet.App. 97, 104 (2008); see Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
6 Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007); see Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008).
7 Nieves-Rodriguez, 22 Vet.App. at 304.
8 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57.
9 Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
10 Tucker v. West, 11 Vet.App. 369, 374 (1998).
11 R. at 10-13; see R. 267-71 (Dec. 2016 VA medical opinion).
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[i]nitial C&P [compensation and pension] [e]xamination.”12 The Board did not address two related issues with respect to the examiner’s conclusion. First, it is not clear why the examiner appeared to limit herself to considering medical evidence when opining about the worsening of the veteran’s PTSD. Certainly, nonmedical evidence can be competent and probative with respect to matters such as the severity of mental health symptoms.13 The Board failed to discuss that the VA medical
professional apparently categorically limited her opinion to medical evidence, which calls the Board’s reliance on that opinion into question.
The VA medical opinion presents a second problem: Although the VA medical
professional apparently limited her opinion to medical evidence, she also commented negatively
on appellant’s December 2015 statement of her observations of the veteran’s PTSD-related
symptoms.14 Oddly, the examiner opined that the statement “provided no specific details regarding
symptoms or impairments associated with PTSD.”15 We don’t see how that is the case given that
appellant specifically described the veteran’s symptoms and how they affected his life.16 The
examiner didn’t explain her conclusion and the Board didn’t address it either.
Moreover, this second error compounds the first because it leaves us wondering whether
the opinion categorically rejected lay evidence or discounted only appellant’s statements. In any
event, the Board should have addressed this matter, especially because nowhere in its decision did
the Board specifically refer to the December 2015 statement. The Secretary suggests the Board
discussed the statement’s content without specifically identifying the statement. We’re not sure that
is correct. We need not resolve the issue here given our remand. However, we remind the Board
that in addition to assessing the examiner’s reference to appellant’s December 2015 statement, the
Board must also comply with its responsibility to consider evidence that is favorable to appellant.17
In sum, on remand the Board should fully explain how it is able to rely on the December
2016 VA medical opinion concerning these issues. If it cannot do so, it should obtain an adequate
opinion. When addressing that matter, the Board should also carefully consider our recent decision
12 R. at 270.
13 See, e.g., Buchanan v. Nicholson, 451 F.3d 1331, 1334-35 (Fed. Cir. 2006).
14 R. at 269; see R. at 400, 402 (Dec. 2015 statement).
15 R. at 269.
16 See R. at 400, 402.
17 Caluza, 7 Vet.App. at 506.
4
in Miller v. Wilkie18 and, if there is any doubt about what the December 2016 VA examiner did,
the Board should specifically address whether the best course of action is to provide an opinion
that clearly addresses appellant’s lay statements.
This leaves us with the Board’s denial of TDIU. Appellant argues that her TDIU claim
should be remanded because it is inextricably intertwined with the PTSD rating issue. The
Secretary does not contest this assertion. 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 issue [on the other claim] meaningless and a waste of judicial resources’ the two
claims are inextricably intertwined.”19 We conclude that the decision about the veteran’s disability
rating for service-connected PTSD could affect the TDIU claim. So, we will remand the TDIU
issue as well.
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.20 On
remand, appellant may submit additional evidence and argument and has 90 days to do so from
the date of VA’s postremand notice.21 The Board must consider any such additional evidence or
argument submitted.22 The Board must also proceed expeditiously.23
II. CONCLUSION
After consideration of the parties’ briefs, the governing law, and the record, the Court SETS
ASIDE the September 23, 2019, Board decision and REMANDS this matter for further
proceedings consistent with this decision.
DATED: September 9, 2020
Copies to:
18 32 Vet.App. 249 (2020).
19 Henderson v. West, 12 Vet.App. 11, 20 (1998) (quoting Harris v. Derwinski, 1 Vet.App. 180, 183 (1991)); see also
Parseeya-Picchione v. McDonald, 28 Vet.App. 171, 177 (2016).
20 See Best v. Principi, 15 Vet.App. 18, 20 (2001).
21 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App.
92 (2018).
22 Kay v. Principi, 16 Vet.App. 529, 534 (2002).
23 38 U.S.C. §§ 5109B, 7112.
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Michael S. Just, Esq.
VA General Counsel (027)

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