Veteranclaims’s Blog

October 11, 2021

Single Judge Application; Shoemaker v. Derwinski, 3 Vet.App. 248, 253 (1992); Bankhead, 29 Vet.App. at 18-19; the criteria listed by the Board are those pertaining to the 100% rating under § 4.130, not the 70% rating the Board mislabeled it as. As a result, the Board didn’t properly consider if the veteran’s PTSD was more severe than a 50% rating but less severe than a 100% rating. When the veteran specifically requests an increase in his or her rating, the Board has an obligation to explain not only why the symptoms comport with the assigned rating criteria, but also why they don’t comport with the next higher disability rating criteria. Shoemaker v. Derwinski, 3 Vet.App. 248, 253 (1992); Bankhead, 29 Vet.App. at 18-19.;

Filed under: Uncategorized — Tags: — veteranclaims @ 11:06 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-3539
MICHAEL J. LUSSIER, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before JAQUITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
JAQUITH, Judge: The Board of Veterans’ Appeals (Board) is obligated to provide an adequate statement of reasons or bases for its degree-of-disability determination; that obligation is particularly acute when the Board assesses mental disorder ratings because without it, the Court is unable to discern why a higher rating wasn’t warranted. 38 C.F.R. § 4.7 (2021); Bankhead v. Shulkin, 29 Vet.App. 10, 18-19 (2017). Since March 2012, U.S. Air Force veteran Michael J. Lussier has had a 30% disability rating for post-traumatic stress disorder (PTSD). Record (R.) at 1304, 1447. He sought a higher rating, and on January 27, 2020, the Board issued the decision now on appeal, finding that the frequency of his panic attacks approximated a 50% rating. R. at 31-32. The Board also explained why a 70% rating wasn’t warranted, but did so by comparing the veteran’s symptoms with the criteria for a 100% rating.1 Id. The Court remands to correct this error.
The veteran’s PTSD is measured against the rating criteria described in 38 C.F.R. § 4.130 (2021), Diagnostic Code (DC) 9411, which directs the rating specialist to apply the General Rating
1 The Board also dismissed the veteran’s appeal seeking an earlier effective date for his PTSD. R. at 5. And the Board denied the veteran entitlement to an effective date earlier than May 3, 2016, for the grant of entitlement to a total disability rating based on individual unemployability. R. at 5. The veteran does not present any challenges to either of these determinations, so both of them are deemed abandoned, and any appeal as to those issues will be dismissed. Pederson v. McDonald, 27 Vet.App. 276, 281-85 (2015) (en banc).
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Formula for Mental Disorders. According to the general rating formula, 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 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. 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.
The Board conducted an extensive review of the evidence, including VA outpatient visit notes from March 2013 to April 2019, VA examinations from June 2014 and September 2016, an August 2015 Notice of Disagreement, the veteran’s statement dated July 2019, and a private examination from August 2019. Based on this review, it concluded that the frequency of the veteran’s panic attacks approximated the 50% rating criteria for PTSD. R. at 31. The Board reasoned that a 70% rating wasn’t warranted because the veteran hadn’t “displayed gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior, or intermittent inability to perform activities of daily living.” R. at 31-32. The “credible evidence,” according to the Board, showed that the veteran was “capable of managing his own financial affairs,” that he was “alert, oriented, and well-groomed” during mental evaluations, and that “his thought processes have been logical with intact associations.” Id. Furthermore, no “thought disorder, perceptual disturbances, delusions, or hallucinations” were observed, and he “consistently denied suicidal and homicidal ideations,” with no objective evidence to the contrary, including instances of self-harm. R. at 31-32.
However, the criteria listed by the Board are those pertaining to the 100% rating under § 4.130, not the 70% rating the Board mislabeled it as. As a result, the Board didn’t properly consider if the veteran’s PTSD was more severe than a 50% rating but less severe than a 100% rating. When
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the veteran specifically requests an increase in his or her rating, the Board has an obligation to explain not only why the symptoms comport with the assigned rating criteria, but also why they don’t comport with the next higher disability rating criteria. Shoemaker v. Derwinski, 3 Vet.App. 248, 253 (1992); Bankhead, 29 Vet.App. at 18-19.

The Board’s error in failing to meet its obligation is further compounded by its decision to only discuss the frequency of one of the veteran’s symptoms—panic attacks—in assigning a 50% rating (R. at 31). The Board failed to compare the veteran’s other symptoms, such as his sleep issues due to nightmares, R. at 23, 24, 27, and mood, anxiety, and unnamed PTSD symptoms for which he took medication, R. at 23, 25, 26, 27, contained in the numerous pieces of evidence it recited against the rating criteria. See R. at 12-31. What’s more, because the Board is obligated to conduct a holistic analysis of the veteran’s symptoms in assigning a disability rating under § 4.130, we cannot say that its failure to make any findings regarding the 70% criteria is harmless. See Bankhead, 29 Vet.App. at 22; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013); see also Tadlock v. McDonough, 5 F.4th 1327, 1337 (Fed. Cir. 2021) (holding that the Court’s obligation to give due account of the rule of prejudicial error does not bestow on us the right to make de novo findings of fact.) Therefore, remand is necessary.
Because the veteran’s claim is being remanded, the Court need not address his other arguments. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader than a remand.”). On remand, appellant may submit any additional argument and evidence. See Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). Any such argument or evidence must be expeditiously considered by the Board. See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
For the foregoing reasons, that part of the Board’s January 27, 2020, decision denying a rating higher than 50% for PTSD is VACATED and REMANDED for further consideration consistent with this opinion. The remainder of the appeal is DISMISSED.
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DATED: September 30, 2021
Copies to:
Christopher F. Attig, Esq.
VA General Counsel (027)

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