Veteranclaims’s Blog

August 21, 2021

Single Judge Application; failure define term or degree; Mr. Thornton cites Johnson v. Wilkie, 30 Vet.App. 245, 255 (2018), arguing that the Board must disclose the standard under which it is operating. Appellant’s Br. at 26. But Johnson focused on a situation where the Board failed to define a term of degree (specifically, “very frequent”) that could be applied inconsistently across similar cases without a clear definition. 30 Vet.App. at 255;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20- 0882
NORMAN F. THORNTON, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
FALVEY, Judge: Army veteran Norman F. Thornton through counsel appeals a January
23, 2019, Board of Veterans’ Appeals decision denying a rating above 50% for post-traumatic
stress disorder (PTSD) and denying a rating above 40% for a disability manifested by fatigue, joint
pain, gastrointestinal bleeding, headaches, shortness of breath, nausea, body shakes, and diarrhea
as due to an undiagnosed illness.1 The appeal is timely, the Court has jurisdiction to review the
Board decision, and single-judge disposition is appropriate. See 38 U.S.C. §§ 7252(a), 7266(a);
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
As for the PTSD claims, we are asked to decide whether the Board incorrectly applied the
rating schedule, the benefit of the doubt doctrine, the rule on the assignment of the higher of two
ratings, and the duty to maximize benefits, and whether the Board gave an adequate statement of
reasons or bases. As for the undiagnosed illness claim, we are asked to decide whether the Board
incorrectly selected an analogous rating or incorrectly applied 38 C.F.R. § 4.88b, Diagnostic Code
(DC) 6354, and whether the Board gave an adequate statement of reasons or bases. For the reasons
below, we will affirm the Board’s decision.
1 The Board granted entitlement to a total disability rating based on individual unemployability (TDIU).
Record (R.) at 5. This is a favorable finding that this Court cannot disturb. See Medrano v. Nicholson, 21 Vet.App.
165, 170 (2007).
2
I. BACKGROUND
Mr. Thornton served on active duty from October 1988 to December 1991. R. at 1357. In
November 1994, VA granted service connection for a “disability manifested by fatigue, joint pain,
gastrointestinal bleeding, headaches, night sweats, nightmares, shortness of breath, nausea,
numbness in both hands, body shakes, and diarrhea due to an undiagnosed illness (Environmental
Hazard in Gulf War/Undiagnosed Illness) [hereinafter ‘the undiagnosed illness’],” with a 40%
rating. See R. at 1932. In February 2005, the regional office (RO) granted service connection for
PTSD with a 10% rating. R. at 1928. In February 2015, Mr. Thornton applied for increased ratings
for PTSD and the undiagnosed illness (listed as Gulf War Syndrome) and for service connection
for a disconnect (dissociative) disorder. R. at 1679.
In a July 2015 VA examination to evaluate the undiagnosed illness, the VA examiner noted
that the illness was undiagnosed but completed an examination form for chronic fatigue syndrome
(CFS). R. at 1300-03. Mr. Thornton reported that he “[wore] out real easy,” and could work for
only six to seven hours on a typical day. Id. Mr. Thornton also reported that he could not
distinguish his tiredness from his PTSD. R. at 1301. The examiner concluded that CFS restricted
Mr. Thornton’s routine daily activities to 50% to 75% of his pre-illness level, but that he had no
incapacitation. R. at 1302. The examiner noted that Mr. Thornton had slept poorly since returning
from the Gulf War, where he had chemical exposure, and that he also suffered joint aches, muscle
spasms, limb numbness, carpal tunnel syndrome, PTSD, and depressive symptoms likely due to
his PTSD, id., but had not suffered gastrointestinal bleeding in a “long time” and experienced less
nausea, R. at 1303. The examiner concluded that, “[b]ased on his [neuropsychological] testing and
veteran’s own testimony, a fair amount of his symptoms are related to his PTSD and therefore, not
undiagnosed symptoms.” Id.
Also in July 2015, he underwent a VA examination to evaluate his PTSD. R. at 1304-13.
The examiner found that Mr. Thornton suffered occupational and social impairment with reduced
reliability and productivity. R. at 1305. The examiner noted that Mr. Thornton was married but
separated, had a good relationship with his two children, and participated in medieval reenactment
events with friends. R. at 1307. Mr. Thornton reported that he had done some “side jobs” in the
prior five years, but that the biggest barrier to employment was “sudden intense fatigue that comes
out of nowhere,” and that memory lapses also hindered his work. R. at 1308. The examiner found
3
that Mr. Thornton exhibited symptoms of PTSD such as depressed mood, anxiety, sleep
impairment, and “difficulty in adapting to stressful circumstances.” R. at 1310-11.
In July 2015, the RO increased the PTSD rating to 50%, continued the 40% rating for the
undiagnosed illness, and denied service connection for a disconnect (dissociative) disorder. R. at
1074.
In a December 2015 VA examination to evaluate the undiagnosed illness, the examiner
noted that Mr. Thornton had gone through a series of maintenance and service jobs. R. at 951. The
examiner described his symptoms as debilitating fatigue, headaches, migratory joint pains, sleep
disturbances, episodic chills, and weight loss (which Mr. Thornton attributed to dietary changes).
R. at 951-52. Mr. Thornton denied having gastrointestinal, bowel, or bladder symptoms. R. at 952.
The examiner determined that the veteran’s routine daily activities were restricted to 50% to 75%
of his pre-illness level, but he had no periods of incapacitation. Id.
In a December 2015 VA PTSD examination, the examiner found that Mr. Thornton had
occupational and social impairment with reduced reliability and productivity. R. at 944. The
examiner noted that he was still separated from his wife but had a new girlfriend, had good
relationships with his children, and continued to participate in medieval reenactment with friends.
R. at 945. Mr. Thornton reported that he was supposed to work in summer 2015 but had a “memory
lapse” and forgot to report to the job. R. at 946. The examiner noted that Mr. Thornton exhibited
sleep disturbances, depressed mood, anxiety, mild memory loss, “difficulty in adapting to stressful
circumstances,” and nightmares, slept only three to four hours a night, and felt depressed “a lot,”
and anxious up to four or five days a week. R. at 947-48. But the examiner found that Mr. Thornton
was alert and oriented, appropriately groomed, and had no psychotic symptoms. R. at 948. The
examiner determined that Mr. Thornton had moderate impairment in reliability and productivity.
R. at 949.
In December 2015, the RO continued the 50% rating for PTSD and the 40% rating for the
undiagnosed illness. R. at 918. In December 2016, Mr. Thornton filed his Notice of Disagreement.
R. at 875-82. That same month, the RO issued a Statement of the Case (SOC), continuing the 50%
rating for PTSD and the 40% rating for the undiagnosed illness. R. at 767-801. In February 2017,
Mr. Thornton perfected his appeal. R. at 765-66.
In an April 2017 VA examination evaluating the undiagnosed illness, the examiner noted
that the veteran’s fatigue was “frequently intertwined with his PTSD” and that it would be “mere
4
speculation” to estimate how the conditions affected each other. Id. The examiner found that Mr.
Thornton’s undiagnosed illness restricted his routine daily activities by less than 25% of his preillness
level.2 R. at 755. In September 2017, the RO issued a Supplemental SOC (SSOC), which
continued the 50% rating for PTSD and the 40% rating for the undiagnosed illness. R. at 695-703.
In January 2019, the Board found that the evidence weighed against an increased rating for
the undiagnosed illness claim and that Mr. Thornton’s overall level of occupational and social
impairment was most consistent with the 50% rating and so denied an increased rating for PTSD.
R. at 12, 17-18. This appeal followed.
II. ANALYSIS
To begin, we note that Mr. Thornton argues that the Secretary has not shown that the Board
correctly applied the law. Reply Brief (Br.) at 4, 5. This implies that the Secretary bears the burden
of showing no error. But Mr. Thornton, as the appellant, has the burden of showing error—that the
Board incorrectly applied the law. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (holding that
the appellant has the burden of showing error), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000)
(table). With that in mind, we now turn to Mr. Thornton’s specific arguments.
A. The PTSD Claim

  1. Rating Criteria
    Mr. Thornton argues that the Board erred when it continued the 50% rating for PTSD and
    that a correct application of the rating schedule entitles him to a 70% rating. Appellant’s Br. at 4,
  2. He argues that the Board did not assess the severity, frequency, or duration of his PTSD
    symptoms, and that it did not assess the occupational and social impairment caused by those
    symptoms. Id. at 6-7. He argues that the Board’s failures mean that it did not determine his overall
    disability picture and so it could not have properly applied the rating criteria. Id. at 10-11. He does
    not challenge the Board’s underlying findings of fact. Reply Br. at 3. The Secretary argues that,
    because Mr. Thornton does not challenge the adequacy of the VA examinations or argue that the
    Board overlooked any evidence, he has not shown that the Board’s application of the rating criteria
    was prejudicial error. Secretary’s Br. at 8-9.
    2 The examiner explained that this meant that “more than 75% of the pre-illness level of activities are not
    restricted.” R. at 755.
    5
    PTSD is evaluated under 38 C.F.R. § 4.130, DC 9411. That provision provides that a 50%
    disability rating is warranted when PTSD causes
    [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.
    38 C.F.R. § 4.130, DC 9411 (2020) (emphasis added). A 70% disability rating is warranted when
    PTSD causes
    [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.
    Id. (emphasis added).
    When deciding a mental health rating, VA must engage in a “holistic” analysis that assesses
    symptoms according to their severity, frequency, and duration. Bankhead v. Shulkin, 29 Vet.App.
    10, 22 (2017). In particular, “[t]he 70 percent disability rating regulation contemplates initial
    assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in
    the regulation, an assessment of whether those symptoms result in occupational and social
    impairment with deficiencies in most areas.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed.
    Cir. 2013); see also Emerson v. McDonald, 28 Vet.App. 200, 212 (2016).
    Here, we do not find that the Board failed to properly apply the rating criteria for PTSD
    under § 4.130. The Board considered Mr. Thornton’s symptoms and the resulting level of
    impairment. See Vazquez-Claudio, 713 F.3d at 118. The Board determined that, based on a
    combination of the VA examiners’ opinions and Mr. Thornton’s lay statements, his memory issues
    most closely approximated impairment of short- and long-term memory loss, a characteristic of
    the 50% rating. R. at 16; see § 4.130. Because Mr. Thornton himself said that his chronic fatigue
    was the main obstacle to steady employment, the Board determined that his memory lapses due to
    6
    PTSD did not alone cause significant occupational impairment. R. at 17; see R. at 1308 (July 2015
    examination). And given his good relationships with his children and participation in social or
    recreational activities, the Board found his social impairment due to PTSD to be minimal. R. at
  3. The Board acknowledged that both VA examiners found that he had “difficulty in adapting to
    stressful circumstances,” a characteristic of the 70% rating. Id.; see R. at 948, 1311. But the Board
    noted that those same examiners still found that his occupational impairment was best
    characterized as reduced reliability and productivity, which fits the 50% rating criteria. R. at 17;
    see R. at 949, 1305. The Board correctly noted that it must engage in a holistic analysis,
    considering not only the presence of symptoms but also the level of impairment. Id. (citing
    Bankhead, 29 Vet.App. at 20); see Vazquez-Claudio, 713 F.3d at 118. Throughout its analysis, the
    Board not only took note of his symptoms but, crucially, considered their impact on his
    occupational and social functioning, thus complying with the legal requirements for determining
    the degree of disability. R. at 15-17; see Vazquez-Claudio, 713 F.3d at 118. Thus, Mr. Thornton
    has not shown that the Board’s application of § 4.130 was erroneous. See Hilkert, 12 Vet.App. at
    151.
  4. Benefit of the Doubt
    Mr. Thornton argues that the Court must undertake two reviews. He argues that the Court
    must first review whether the Board’s application of 38 C.F.R. § 4.3 was “arbitrary, capricious, an
    abuse of discretion, or not otherwise an in accordance with law,” and whether it was supported by
    an adequate statement of reasons or bases. Appellant’s Br. at 16-17 (citing 38 U.S.C.
    § 7261(a)(3)(A)). He argues that under this review the Board failed to correctly apply § 4.3 and
    assign a 70% rating for his PTSD. Id. at 16, 22. He argues that the Court must then conduct a
    review under 38 U.S.C. § 7261(b)(1), which requires the Court to take due account of the Board’s
    application of 38 U.S.C. § 5107(b), the statutory basis for giving the claimant the benefit of the
    doubt. Id. at 17. He argues that a reasonable doubt arose over the degree of his PTSD disability
    and thus the Board erred when it did not resolve the doubt in his favor by assigning a 70% rating.
    Id. at 18-19. In response, the Secretary argues that Mr. Thornton is effectively asking the Court to
    use section 7261(b)(1) to reweigh the evidence, which the Court cannot do. Secretary’s Br. at 11-
    12.
    Both the statute and the regulation require that, if there is an approximate balance of
    evidence for and against the claimant’s position, then the Secretary must decide the matter in the
    7
    claimant’s favor, with § 4.3 referring specifically to doubt about the claimant’s degree of
    disability.3 But if the Board finds that the evidence is not approximately balanced, then there is no
    doubt to resolve, and if the Board thus does not apply § 4.3, that decision is not arbitrary,
    capricious, an abuse of discretion, or not otherwise in accordance with law. Mayhue v. Shinseki,
    24 Vet.App. 273, 282 (2011). Although the Court must “take due account of the Secretary’s
    application of” that provision, 38 U.S.C. § 7261(b)(1), the Board’s determination under
    section 5107(b) of whether the evidence is approximately balanced is a factual one that the Court
    reviews for clear error. Mariano v. Principi, 17 Vet.App. 305, 313 (2003); Roberson v. Principi,
    17 Vet.App. 135, 146 (2003).
    Mr. Thornton fails to show that the Board erred in its application of either provision. See
    Hilkert, 12 Vet.App. at 151. He does not explain how the evidence is approximately balanced and
    thus caused a reasonable doubt over whether he warranted a 50% or a 70% rating. The Board did
    not forget to consider either section 5107(b) or § 4.3; it simply found that there was no doubt to
    resolve. R. at 18. In one instance, the Board found a reasonable doubt over whether Mr. Thornton’s
    memory lapses were due to his PTSD and it resolved that doubt in his favor by finding that his
    memory lapses were attributable to that condition. R. at 15. But the Board found that overall the
    evidence showed a moderate degree of impairment better contemplated by the 50% rating than by
    the 70% rating, R. at 17; that the evidence was not approximately evenly balanced, R. at 16; and
    that there was no doubt to be resolved on that issue, R. at 18.
    As the overall evidence was not in approximate balance, § 4.3 simply did not apply, and
    thus the Board’s decision not to apply the provision was not arbitrary, capricious, an abuse of
    discretion, or not otherwise an in accordance with law. See Mayhue, 24 Vet.App. at 282. In
    accordance with section 7261(b)(1), the Court takes due account of the Board’s application of
    section 5107(b)—and finds no error. The Board was required by section 5107(b) to determine
    3 Section 5107(b) requires that, “[w]hen there is an approximate balance of positive and negative evidence
    regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the
    claimant.” Section 4.3 requires that, “[w]hen after careful consideration of all procurable and assembled data, a
    reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.” A
    “reasonable doubt” exists where there is “an approximate balance of positive and negative evidence which does not
    satisfactorily prove or disprove the claim” 38 C.F.R. § 3.102 (2020). “Balance” means a state of “equipoise” or “to be
    equal in value,” and so an “approximate balance” is “when the evidence in favor of and opposing the veteran’s claim
    is found to be almost exactly or nearly equal.” Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see also Lynch
    v. McDonough, _ F.3d , , No. 20-2067, slip op. at 8 (Fed. Cir. June 3, 2021) (“[I]f the positive and negative
    evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit
    of the doubt.”).
    8
    whether a reasonable doubt existed, and it complied, finding no doubt to resolve. R. at 18. The
    outcome of that analysis is a factual finding, see Mariano, 17 Vet.App. at 313; Roberson, 17
    Vet.App. at 146, and Mr. Thornton does not challenge the Board’s factual findings, Reply Br. at 3.
    Thus, he has not shown error in the Board’s application of section 5107(b). See Hilkert, 12
    Vet.App. at 151.
  5. Choosing Between Two Ratings
    Mr. Thornton also argues that the Board failed to correctly apply 38 C.F.R. § 4.7 and assign
    the higher 70% rating. Appellant’s Br. at 14. He argues that the Board failed to define what it meant
    by his “disability picture,” id. at 14-15, and that without identifying or describing his disability
    picture the Board could not have correctly applied § 4.7, id. at 16. Mr. Thornton argues that
    “disability picture” should be given its ordinary meaning, which he says is “what, for the individual
    veteran[,] his or her disability looks like to an outside observer.” Id. at 15. The Secretary argues
    that the Board properly considered his disability picture, noting his symptoms and resulting
    impairment, and properly found that his disability picture warranted a 50% rating. Secretary’s Br.
    at 10-11.
    Mr. Thornton has not shown that the Board’s failure to define “disability picture” is
    prejudicial error. Although the Board did not define “disability picture,” it discussed his symptoms
    and their level of impairment; by his own standard, the Board gave an image of what his disability
    “look[ed] like to an outside observer.” See R. at 16-17; Appellant’s Br. at 15. Thus, we are
    unpersuaded that the Board’s failure to define the phrase “disability picture,” when it still discussed
    his condition in detail, rises to the level of prejudicial error. See Waters v. Shinseki, 601 F.3d 1274,
    1278 (Fed. Cir. 2010) (holding that the appellant has the burden of showing prejudicial error).
    And we do not find the Board’s application of § 4.7 erroneous. The regulation does not
    mandate the choice of the higher rating in every instance, but only when the higher rating “more
    nearly approximates the criteria required for that rating.” 38 C.F.R. § 4.7 (2020). Here, the Board
    found that Mr. Thornton’s condition did not “more nearly approximate” the 70% rating. R. at 17.
    The Board noted that he exhibited one symptom—difficulty adapting to stressful circumstances—
    characteristic of a 70% rating, but his condition as a whole was more consistent with a 50% rating
    because his other symptoms resulted only in moderate impairment. R. at 17. When the claimant’s
    condition more closely matches the lower rating, then the regulation precludes assigning a higher
    rating. 38 C.F.R. § 4.7; see also Bankhead, 29 Vet.App. at 19. The Board’s choice among ratings
    9
    complied with § 4.7, and so Mr. Thornton has not shown the Board’s decision on that point was
    erroneous. See Hilkert, 12 Vet.App. at 151.
  6. Duty to Maximize Benefits
    Mr. Thornton also argues that the Secretary’s obligation to maximize benefits under 38
    C.F.R. § 3.103(a) is manifested in the provisions of §§ 4.3 (resolving doubt in favor of the veteran)
    and 4.7 (assigning the higher of two evaluations). Appellant’s Br. at 11. He appears to argue that
    the Board, by not resolving doubt in his favor and assigning a rating higher than 50% for PTSD,
    failed to maximize benefits. Although he is correct about the obligation to maximize benefits, that
    maximization is limited to what “can be supported in law while protecting the interests of the
    Government.” 38 C.F.R. § 3.103(a) (2020). Because we find that the Board did not err when
    applying §§ 4.3 and 4.7, we thus do not find that the Secretary failed in his obligation under
    § 3.103(a).
  7. Reasons or Bases
    Mr. Thornton also argues that the Board gave an inadequate statement of reasons or bases
    for its determination that the preponderance of the evidence was against a 70% PTSD rating.
    Appellant’s Br. at 16-17. In response, the Secretary argues that the Board gave an adequate
    statement of reasons or bases, particularly when it noted consistencies between the July and
    December 2015 VA examinations and when it noted that, although one of Mr. Thornton’s
    symptoms aligned with a 70% rating, the evidence as a whole warranted a 50% rating. Secretary’s
    Br. at 10-11.
    As with any finding on a material issue of fact and law presented on the record, the Board
    must support its determination of the appropriate rating with an adequate statement of reasons or
    bases that enables the claimant to understand the precise basis for that determination and facilitates
    review in this Court. 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
    To comply with this requirement, the Board must analyze the credibility and probative value of
    evidence, account for evidence it finds persuasive or unpersuasive, and provide reasons for
    rejecting material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506
    (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
    We find that the Board gave an adequate statement of reasons or bases. The Board
    summarized the findings of the July and December 2015 VA examinations. R. at 14-15. The Board
    acknowledged his difficulty doing work but found, based on his own reports, that his occupational
    10
    impairment was due to his chronic fatigue rather than his PTSD, and that PTSD’s effects were
    “mild to moderate,” not the level contemplated by the 70% rating. R. at 16-17. It also
    acknowledged that, although he displayed a symptom characteristic of the 70% rating, “difficulty
    adapting to stressful circumstances,” it explained that it must engage in a holistic analysis and on
    balance his symptoms were more closely contemplated by a 50% rating. R. at 17. It noted that both
    the July and December 2015 examiners found that his occupational impairment was best
    characterized as reduced reliability and productivity, which is consistent with the criteria for a 50%
    rating. R. at 17. The Board accounted for the favorable evidence and gave the precise bases for its
    determinations, so we find that its statement of reasons or bases was adequate. See Caluza, 7
    Vet.App. at 506; Gilbert, 1 Vet.App. at 56-57.
    B. Undiagnosed Illness
  8. Choice of Diagnostic Code
    Mr. Thornton argues that the Board incorrectly applied 38 C.F.R. § 4.20 by analogizing his
    undiagnosed illness to CFS, rated under 38 C.F.R. § 4.88b, DC 6354. Appellant’s Br. at 22-23. He
    argues that, because the undiagnosed illness includes symptoms like gastrointestinal bleeding, a
    more closely analogous rating would be post-gastrectomy syndrome4 under 38 C.F.R. § 4.114, DC
  9. Id. at 23-24. He asks the Court to reverse the Board’s decision to select DC 6354 and direct
    the Board to assign DC 7308. Id. at 24.5 The Secretary argues that Mr. Thornton’s current
    symptoms are indeed more analogous to CFS and so the Board correctly assigned DC 6354.
    Secretary’s Br. at 13-14.
    An unlisted condition may be rated under the DC for a different disease if the conditions
    are “closely analogous.” 38 C.F.R. § 4.20 (2020); see also Vogan v. Shinseki, 24 Vet.App. 159,
    161 (2010); Lendenmann v. Principi, 3 Vet.App. 345, 351 (1992). The Court may set aside the
    Board’s choice of DC only if “arbitrary, capricious, an abuse of discretion, or otherwise not in
    accordance with law.” Stankevich v. Nicholson, 19 Vet.App. 470, 472 (2006); Butts v. Brown, 5
    Vet.App. 532, 538-39 (1993).
    4 Gastrectomy is the removal of all or part of the stomach. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY
    754 (33d ed. 2020).
    5 Although Mr. Thornton observes that DC 7308 provides for both 40% and 60% ratings, Appellant’s Br. at
    23-24, he does not specify which rating he wants the Board to choose.
    11
    CFS is rated as 40% disabling where “debilitating fatigue” and cognitive impairments
    (including forgetfulness) are “nearly constant and restrict daily activities from 50 to 75 percent of
    the pre-illness level.” 38 C.F.R. § 4.88b, DC 6354 (2020). Post-gastrectomy syndrome is rated as
    40% disabling where there are “less frequent episodes of epigastric disorders with characteristic
    mild circulatory symptoms after meals but with diarrhea and weight loss.” 38 C.F.R. § 4.114, DC
    7308 (2020). It is rated as 60% disabling where there is “nausea, sweating, circulatory disturbance
    after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia.”
    Id.
    Here, we do not find that the Board’s choice of DC 6354 to rate by analogy the undiagnosed
    illness was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
    The Board considered the July and December 2015 and the April 2017 VA examinations, all of
    which assessed Mr. Thornton for CFS. R. at 9-11. The Board noted that he suffered nightmares
    and night-sweats but found that those were due to his PTSD and not the undiagnosed illness. Id. It
    also found that he had not suffered gastrointestinal bleeding for years and that there was limited
    evidence about diarrhea and nausea. Id. Indeed, in the July 2015 examination, Mr. Thornton
    himself reported that he had not suffered gastrointestinal bleeding in a “long time” and was
    experiencing less nausea. R. at 1302-03. In the December 2015 examination, he denied any
    gastrointestinal problems and, although reporting weight loss, he attributed it to dietary changes,
    not to the undiagnosed illness. R. at 952. The record shows that symptoms of CFS, like fatigue and
    forgetfulness, were consistently present, but that several symptoms of post-gastrectomy syndrome,
    like gastrointestinal problems and circulatory problems, were not. Thus, we cannot say that the
    Board’s choice of DC 6354 (CFS) was arbitrary, capricious, an abuse of discretion, or otherwise
    not in accordance with law. See Stankevich, 19 Vet.App. at 472; Butts, 5 Vet.App. at 538-39.
    Although Mr. Thornton also invokes the Board’s duty to provide an adequate statement of
    reason or bases for its choice of DC, he does not provide any argument that the Board’s reasons or
    bases were inadequate in this regard. Appellant’s Br. at 24. Thus, we find his argument on this
    point to be undeveloped, and so we will not consider it. See Locklear v. Nicholson, 20 Vet.App.
    410, 416 (2006).
  10. Application of DC 6354
    Mr. Thornton argues in the alternative that, even if the choice of DC 6354 were correct,
    the Board’s application of DC 6354 was clearly erroneous. Appellant’s Br. at 25, 28. He argues
    12
    that the Board failed to define “pre-illness level” or “incapacitation” as used in the rating criteria,
    meaning that the Court cannot determine whether the Board correctly applied the rating criteria of
    DC 6354. Id. at 25, 26-27. The Secretary argues that the Court should simply abide by the ordinary
    meaning of “pre-illness” level and no further definition from the Board was necessary. Secretary’s
    Br. at 15-16. He also argues that “incapacitation” is defined in the regulation. Id. at 16.
    We may easily dispose of Mr. Thornton’s arguments about the definition of
    “incapacitation.” DC 6354 rates debilitating fatigue that either restricts routine daily activities or
    that results in periods of “incapacitation.” § 4.88b. The regulation states that “incapacitation exists
    only when a licensed physician prescribes bed rest and treatment.” Id. The Board twice noted this
    definition in its decision, R. at 5, 11, but found that Mr. Thornton never experienced any periods
    of incapacitation, R. at 11. (Both the July and December 2015 examiners found no incapacitation
    due to CFS. R. at 952, 1302.) Instead, he was rated based, not on incapacitation, but on the
    restriction of his routine daily activities. Id. (Similarly, both the July and December 2015
    examiners found that his routine daily activities were restricted to 50% to 75% of his pre-illness
    level. R. at 952, 1302.) The term “incapacitation” was already defined in the regulation, the Board
    repeated that definition, and incapacitation was not an issue before the Board. Thus, Mr. Thornton
    has shown no error. See Hilkert, 12 Vet.App. at 151.
    “Pre-illness level” is not defined in the regulation or in the Board decision, but, as the
    Secretary argues, unless otherwise directed, the ordinary meaning of a phrase controls. Secretary’s
    Br. at 15 (citing Prokarym v. McDonald, 27 Vet.App. 307, 310 (2015) (“In the absence of an
    express definition, words are given their ordinary meaning.”)). He argues that the “pre-illness
    level” means the level of routine daily activities that the claimant engaged in before the illness.
    Secretary’s Br. at 15. “[I]f the meaning of the regulation is clear from its language, then that is the
    end of the matter.” Tropf v. Nicholson, 20 Vet.App. 317, 320 (2006). Further discussion is needed
    only when there is ambiguity, which arises “when the application of the ordinary meaning . . . of
    the regulation fails to answer the question at issue.” Roby v. Wilkie, 31 Vet.App. 91, 98-99 (2019)
    (citing Tropf, 20 Vet.App. at 321 n.1). By the plain language of the phrase, “pre-illness level”
    simply means the state of a claimant’s routine daily activities before the onset of CFS symptoms;
    there is no ambiguity to address. See Tropf, 20 Vet.App. at 320. Thus, we agree with the Secretary
    that the ordinary meaning governs.
    13
    Mr. Thornton cites Johnson v. Wilkie, 30 Vet.App. 245, 255 (2018), arguing that the Boar must disclose the standard under which it is operating. Appellant’s Br. at 26. But Johnson focused on a situation where the Board failed to define a term of degree (specifically, “very frequent”) that could be applied inconsistently across similar cases without a clear definition. 30 Vet.App. at 255.
    “Pre-illness” is a term whose meaning is apparent: before the illness. See Prokarym, 27 Vet.App.
  11. Although the “level” of claimants’ pre-illness routine daily activities may vary, the degree of
    impairment looks at the effect of CFS symptoms on the individual claimant’s employment and
    daily life as compared to that claimant’s employment and daily life before the illness. See Vazquez-
    Flores v. Shinseki, 24 Vet.App. 94, 106 (2010) (noting that DC 6354’s assessment of how fatigue
    restricts routine daily activities is not objective evidence but “more general evidence” discussing
    “the impact upon employment or daily life”). This assessment does not require further definition
    like “very frequent” did in Johnson v. Wilkie.
    The veteran also cites Hood v. Brown, 4 Vet.App. 301, 302 (1993), which dealt with the
    Board’s failure to define a term that the Court found “qualitative” rather than “quantitative” in
    nature, see id. at 303. But he does not make any argument about whether the phrase “pre-illness
    level” is qualitative or quantitative, and so we will decline to address it. See Locklear, 20 Vet.App.
    at 416. Thus, Mr. Thornton has not shown that the Board erred when it did not define “pre-illness
    level.” See Hilkert, 12 Vet.App. at 151.
    III. CONCLUSION
    On consideration of the above, the appealed parts of the January 23, 2019, Board decision
    are AFFIRMED.
    DATED: June 11, 2021
    Copies to:
    Kenneth M. Carpenter, Esq.
    VA General Counsel (027)

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.