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August 31, 2021

Single Judge Application; § 4.130; Bankhead v. Shulkin, 29 Vet.App. 10, 22 (2017); “engage in a holistic analysis” of the claimant’s symptoms; 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.” Mauerhan v. Principi, 16 Vet.App. 436, 440-41(2002); see Bankhead v. Shulkin, 29 Vet.App. 10, 22 (2017) (requiring VA to “engage in a holistic analysis” of the claimant’s symptoms to determine the proper disability rating). 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013);

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-5767
DENNIS L. ORRE, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MEREDITH, Judge: The appellant, Dennis L. Orre, through counsel appeals an April 21,
2020, Board of Veterans’ Appeals (Board) decision denying entitlement to an initial disability
rating in excess of 50% for post-traumatic stress disorder (PTSD) prior to October 6, 2016. Record
(R.) at 4-18. Additionally, the Board awarded entitlement to a total disability rating based on
individual unemployability (TDIU) and to a 70% disability rating, but no higher, for PTSD, both
effective October 6, 2016. These awards are favorable findings that the Court may not disturb. See
Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007), aff’d in part, dismissed in part sub nom.
Medrano v. Shinseki, 332 F. App’x 625 (Fed. Cir. 2009); see also Bond v. Derwinski, 2 Vet.App.
376, 377 (1992) (per curiam order) (“This Court’s jurisdiction is confined to the review of final
Board . . . decisions which are adverse to a claimant.”). The appellant does not raise any argument
concerning the Board’s denial of a disability rating in excess of 70% for PTSD since October 6, 2016. Therefore, the Court finds that he has abandoned his appeal of this issue and will dismiss
the appeal as to the abandoned issue. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en
banc).
The Board also remanded the matter of entitlement to TDIU prior to October 6, 2016. The
remanded matter is not before the Court. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004)
2
(per curiam order) (a Board remand “does not represent a final decision over which this Court has
jurisdiction”); Hampton v. Gober, 10 Vet.App. 481, 483 (1997) (claims remanded by the Board
may not be reviewed by the Court).
This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant
to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel
v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the
Board’s decision denying entitlement to a disability rating in excess of 50% for PTSD prior to
October 6, 2016, and remand the matter for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from February 1969 to December

R. at 1551. In September 2010, he filed a claim for disability benefits for PTSD. R. at
1501-08. He underwent a VA examination in December 2010; the examiner opined that the
appellant did not have PTSD. R. at 1438-43. The appellant reported to the examiner that he had
“not been able to sleep for 40 years,” he had bad dreams, he startled when he heard loud noises,
and “‘smells or sounds bring back Vietnam—flesh or hair burning, helicopters.'” R. at 1441. As to
his occupational history, the appellant indicated that he had retired in July 2010 due to a lack of
available work but occasionally worked part time. R. at 1440. He was also helping a friend “redo
a truck,” had participated in a barn restoration, and was planning to volunteer at a shelter and food
bank with his daughter. Id. Regarding interpersonal relationships, he stated that he had been
married for 33 years, he reported that his wife and he maintained contact with her siblings, and he
denied any family problems. Id. The appellant also reported that he drank an average of a 12-ounce
beer daily and that he had previously occasionally smoked marijuana but had not used it for over
a year. Id. The examiner noted that, in October 2010, the appellant had reported to a social worker
that he had symptoms of “anger, nightmares, intrusive thoughts of combat, avoidance of potential
triggers to memory of combat, and sleeping only about [2] hours per night for the past 40 years.”
R. at 1441. The VA examiner found no abnormalities during a mental status examination. R. at
1442.
In July 2011, a VA regional office (RO) denied benefits for PTSD, finding that the
appellant did not have a current diagnosis. R. at 1416-19. The appellant appealed the matter to the
Board. R. at 1325, 1327-41, 1390. In the meanwhile, he submitted to VA several statements from
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his friends, which generally describe him as being angry, anxious, and a loner, and having verbal
and physical fights and outbursts. R. at 1369, 1370, 1371-72, 1374, 1378. Additionally, the
appellant’s medical records from October 2010 to December 2015 reflect the following symptoms:
anger, irritability, difficulty sleeping, nightmares, intrusive thoughts of combat, avoidance of
potential triggers for memories of combat, feelings of guilt, hypervigilance, and experiencing
triggers of PTSD symptoms due to certain smells, songs, and sounds. R. at 902, 904, 983, 987-88,
991-92, 1025, 1072, 1074, 1082-83, 1100, 1109, 1113, 1127, 1129, 1137, 1140, 1343, 1345-46,
1352, 1358. He had periods of less severe symptoms from October to November 2012, and from
May 2014 to December 2015. See R. at 903, 982, 987-88, 992-93, 995, 1097, 1100, 1104, 1108-09.
Mental status examinations from that period indicate that he presented to treatment with
appropriate appearance and hygiene, exhibited a range of moods, denied suicidal ideation, had
good insight and judgment, and exhibited normal behavior, psychomotor activity, speech,
cognition, affect, and thought processes and content. R. at 903, 982, 987-88, 992-96, 999-1010,
1012-13, 1015, 1025, 1070-71, 1073-74, 1083, 1085, 1092, 1095, 1097, 1100, 1102, 1104,
1108-09, 1111, 1113-16, 1121-22, 1124-25, 1127, 1129, 1133, 1136, 1138, 1140, 1343, 1347-48,
1353-56, 1358. But see R. at 1114 (noting pressured speech), 1136 (noting pressured speech and
fair insight), 1343 (noting pressured speech), 1347 (noting that the appellant’s clothes were soiled).
As to psychotic symptoms, from October 2010 to January 2013, he stated that he “ha[d] visual
images sometimes when he sees little kids,” but otherwise consistently denied hallucinations and
delusions. R. at 1085; see R. at 903, 982, 987-88, 992-93, 995-96, 999, 1001-04, 1006-07, 1009-11,
1013, 1015, 1025, 1070-71, 1073-74, 1083, 1092, 1095, 1097, 1100, 1102, 1104, 1108, 1111,
1125, 1127, 1129, 1136, 1138, 1343, 1347-48, 1353, 1355-56, 1360. In August 2012, a clinical
social worker noted traits of obsessive compulsive disorder (OCD) and recommended that the
appellant discuss it with his medication provider. R. at 1116. His medical records also reflect that
he was generally documented as drinking an average of 12 ounces of beer per day and denying
recreational drug use. R. at 935, 972, 1052, 1084, 1094, 1102, 1110-11, 1129, 1138, 1347-48,
1353-54, 1356, 1360. But see R. at 950 (reporting occasional marijuana use, with the last use being
4 days ago), 1113-14 (reporting that he stopped using cannabis in July 2012), 1138 (noting
drinking an average of 3 to 5 beers per day), 1356 and 1360 (reporting that his drinking was getting
worse).
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On October 6, 2016, the appellant underwent a private evaluation with Dr. W. Knake, who
diagnosed PTSD and opined that the condition warranted consideration of a 100% disability rating
because the appellant is not employable. R. at 870-73. Dr. Knake noted that, during the evaluation,
the appellant “was re-experiencing the war emotionally and at times openly cried when
remembering the death and destruction surrounding him.” R. at 870. He documented the following
PTSD symptoms: recurring and highly distressing recollections, recurrent distressing dreams,
flashbacks and intense psychological distress when triggered, feeling detached from others,
restricted range of affection, a sense of foreshortened future, difficulty falling or staying asleep,
irritability or outbursts of anger, social isolation, difficulty concentrating, hypervigilance, and
exaggerated startle response. R. at 871-72. Dr. Knake opined that the appellant’s PTSD is “chronic
and severe” and causes significant distress in his “family relations, social relationships, [and]
occupational areas of functioning.” R. at 872.
In April 2018, Dr. A. Iofin, a private psychiatrist, opined, based on a review of the
appellant’s medical records, that the appellant had a PTSD diagnosis; he also agreed with Dr.
Knake that the appellant “presented with chronic and severe PTSD and he should be considered as
being unemployable and 100% overall disabled.” R. at 497; see R. at 480-97. In a May 2018 letter,
Dr. Knake indicated that he reviewed Dr. Iofin’s report and agreed with his findings. R. at 365.
The Board ultimately awarded entitlement to benefits for PTSD in June 2018. R. at 356-62.
The RO effectuated the Board’s grant of entitlement to benefits for PTSD, assigning a 30%
disability rating. R. at 350-52. After the appellant filed a Notice of Disagreement with the assigned
rating, R. at 313-16, the RO awarded an initial 50% disability rating, R. at 268-72. The appellant
subsequently perfected an appeal to the Board. R. at 113; see R. at 215-67.
On April 21, 2020, the Board increased his PTSD rating to 70% from October 6, 2016,
based on Dr. Knake’s report but denied entitlement to an initial disability rating in excess of 50%
prior to October 6, 2016. R. at 4-18. This appeal followed.
II. ANALYSIS
A. The Parties’ Arguments
The appellant argues that the Board clearly erred and provided inadequate reasons or bases
for denying a disability rating in excess of 50% for PTSD prior to October 6, 2016. Appellant’s
Brief (Br.) at 17-26. Specifically, he avers that the Board failed to explain why his symptoms of
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impaired impulse control and difficulty in adapting to stressful circumstances did not by
themselves warrant a higher disability rating. Id. at 17-18. Further, he asserts that the Board
overlooked other symptoms contemplated by the 70% and 100% rating criteria for PTSD,
particularly disorientation, gross impairment in thought processes, delusions or hallucinations,
suicidal ideation, and obsessional rituals interfering with routine activities. Id. at 18-21. And, he
avers that the Board overlooked his OCD traits and alcohol and cannabis use. Id. at 21. Last, he
contends that the Board failed to explain why Dr. Knake’s October 2016 evaluation, which
supported awarding a 70% disability rating effective October 6, 2016, was inconsistent with
treatment records prior to that date. Id. at 22-26.
For his part, the Secretary generally counters that the Board conducted a holistic analysis
of the evidence and adequately explained its decision denying a higher initial disability rating.
Secretary’s Br. at 7-13. The Secretary also disputes the appellant’s characterization of his
symptoms as matching the higher rating criteria. Id. at 12-13. In his reply brief, the appellant
maintains that the Board clearly erred in its decision. Reply Br. at 1-11. He also argues that,
because the Secretary failed to respond to his arguments regarding his OCD traits and substance
use, the Court should conclude that the Secretary has conceded error in that regard. Id. at 8.
B. Law
The 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. According to the general rating formula, a 50% disability rating is
warranted where the evidence demonstrates the following:
Occupational 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 (2021). A 70% disability rating is warranted where the evidence
demonstrates the following:
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
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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. Finally, a 100% disability rating is warranted where the evidence demonstrates the following:
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.
Id.
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.” Mauerhan v. Principi, 16 Vet.App. 436, 440-41
(2002); see Bankhead v. Shulkin, 29 Vet.App. 10, 22 (2017) (requiring VA to “engage in a holistic analysis” of the claimant’s symptoms to determine the proper disability rating). 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (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. at 117. 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” at the level associated with that rating. Id.; see 38 C.F.R.
§ 4.130, DC 9411.
The Board’s determination of the proper disability rating is a finding of fact that the Court
reviews under the “clearly erroneous” standard of review. See 38 U.S.C. § 7261(a)(4); Buckley
v. West, 12 Vet.App. 76, 81 (1998). A finding of fact is clearly erroneous when the Court, after
reviewing the entire evidence, “is left with the definite and firm conviction that a mistake has been
committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see Gilbert v. Derwinski,
1 Vet.App. 49, 52 (1990). As with any material issue of fact or law, the Board must provide a
7
statement of the reasons or bases for its determination “adequate to enable a claimant to understand
the precise basis for the Board’s decision, as well as to facilitate review in this Court.” Allday
v. Brown, 7 Vet.App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57.
C. The Board’s Decision
Here, after summarizing the portions of the rating schedule quoted above, R. at 7-8, the
Board reviewed the evidence of record, including the appellant’s medical records, the December
2010 VA examination report, Dr. Knake’s October 2016 evaluation report and May 2018 letter,
and Dr. Iofin’s April 2018 evaluation report, R. at 9-11. For the period prior to October 6, 2016,
the Board determined that the appellant did not experience “occupational and social impairment
with deficiencies in most areas.” R. at 12. The Board acknowledged that the evidence indicated
that the appellant had impaired impulse control and some difficulty adapting to stressful
circumstances. Id. However, it found that the evidence did not otherwise reflect the frequency,
type, and severity of symptoms associated with a 70% rating. Id. The Board explained that the
appellant’s VA treatment records reflected that he had both reported and denied depression, and
that, although he had become “pretty isolated,” he nonetheless had a good relationship with his
wife and children. Id. The Board further acknowledged that the appellant’s friends had described
behavior such as wanting to be left alone, having various jobs because of difficulty taking orders,
angry outbursts, being upset by loud noises, and discussing nightmares and flashbacks. R. at 13.
But the Board found that “the [appellant’s] overall disability picture and symptoms are not more
akin to a 70[%] rating or higher prior to October 6, 2016.” Id. The Board reiterated that the
appellant had a good relationship with his family, referenced friends during treatment, and reported
enjoying certain activities. Id. The Board also determined that, although Dr. Knake and Dr. Iofin
opined that the appellant’s PTSD is totally disabling, the frequency, type, and severity of his
symptoms were consistent with occupational and social impairment with reduced reliability and
productivity prior to October 6, 2016. R. at 12-13.
With respect to the period beginning on October 6, 2016, the Board found that, in addition
to the symptoms noted above, Dr. Knake’s October 2016 evaluation report reflected that the
appellant “had significant problems with his concentration and constantly maintained security and
was on guard preparing for the worst to happen—indicating continuous panic that impacted his
ability to function appropriately.” R. at 14. Accordingly, the Board resolved the benefit of the
doubt in favor of the appellant and awarded a 70% disability rating as of October 6, 2016. Id. The
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Board again acknowledged that Dr. Knake and Dr. Iofin indicated that the appellant is totally
disabled due to PTSD but reiterated that “the evidence of record does not reflect the type and
severity of symptoms included in the criteria for a 100[%] rating.” Id.
D. Discussion
The Court concludes that the Board’s reasons or bases for denying a disability rating in
excess of 50% prior to October 6, 2016, are inadequate. See Allday, 7 Vet.App. at 527. The
appellant asserts that Dr. Knake’s report, which provided the evidence supporting a 70% rating, is
consistent with the evidence prior to October 6, 2016; thus, the Board should have explained
whether the evidence predating that report equally supported at least a 70% disability rating.
Appellant’s Br. at 22-25. Specifically, the appellant points to evidence of the following,
documented prior to October 2016: difficulty trusting others; hypervigilance; recurrent, distressing
recollections, dreams, and flashbacks; intense psychological distress and reactivity; and social
isolation. Id. at 23-25 (citing R. at 987-89, 994-95, 1003-04, 1014-15, 1022-27, 1071-72, 1074-75,
1099-101, 1127-28, 1181-83, 1346-47, 1352-54, 1358-61, 1369, 1378). In his reply brief, he cites
additional evidence that, not only did he experience hypervigilance, but he was also “‘[e]xtremely’
super-alert, watchful or on guard,” prior to October 2016. Reply Br. at 10 (quoting R. at 1028).
Accordingly, he argues that the Board erred in concluding that he did not experience nearcontinuous
panic prior to October 6, 2016. Id. at 10-11.
Although the Board found that Dr. Knake’s report reflecting that the appellant “was on
guard preparing for the worst to happen” was indicative of continuous panic affecting his ability
to function appropriately, such that a 70% rating was warranted as of October 6, 2016, the Board
did not discuss the medical evidence reflecting his feelings of being on guard at all times prior to
that date or explain why it was not suggestive of a higher disability rating. R. at 14; see R. at 9-12;
see also R. at 1005, 1007, 1014, 1028. Given the requirement that VA consider all the evidence
that bears on the appellant’s level of occupational impairment and that near-continuous panic is
listed in the 70% criteria, Mauerhan, 16 Vet.App. at 440-41; see Caluza v. Brown, 7 Vet.App. 498,
506 (1995) (holding that the Board must analyze the credibility and probative value of the material
evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the
reasons for its rejection of any material evidence favorable to the claimant), aff’d per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table), the Court cannot conclude that the Board’s failure to discuss
this evidence is nonprejudicial. See Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013)
9
(“[T]he evaluation and weighing of evidence are factual determinations committed to the
discretion of the factfinder—in this case, the Board.”). Accordingly, remand is necessary. See
Tucker v. West, 11 Vet.App. 369, 374 (1998) (“[W]here the Board . . . failed to provide an adequate
statement of reasons or bases for its determinations, . . . a remand is the appropriate remedy.”).
Given this disposition, the Court will not now address the remaining arguments and issues
raised by the appellant. See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) (noting that “the Court
will not ordinarily consider additional allegations of error that have been rendered moot by the
Court’s opinion or that would require the Court to issue an advisory opinion”); Best v. Principi,
15 Vet.App. 18, 20 (2001) (per curiam order). On remand, the appellant is free to submit additional
evidence and argument on the remanded matter, including the specific arguments raised here on
appeal, and the Board is required to consider any such relevant evidence and argument. See Kay
v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider
additional evidence and argument in assessing entitlement to the benefit sought); Kutscherousky
v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court reminds the Board that
“[a] remand is meant to entail a critical examination of the justification for the decision,” Fletcher
v. Derwinski, 1 Vet.App. 394, 397 (1991), and the Board must proceed expeditiously, in
accordance with 38 U.S.C. § 7112.
III. CONCLUSION
The appeal of the Board’s April 21, 2020, decision denying entitlement to a disability rating
in excess of 70% for PTSD since October 6, 2016, is DISMISSED. After consideration of the
parties’ pleadings and a review of the record, the Board’s decision denying entitlement to a
disability rating in excess of 50% for PTSD prior to October 6, 2016, is VACATED, and the matter
is REMANDED for further proceedings consistent with this decision.
DATED: August 18, 2021
Copies to:
Eric A. Gang, Esq.
VA General Counsel (027)

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