Veteranclaims’s Blog

October 14, 2021

Single Judge Application; Stern v. McDonough; In Brown v. Brown, this Court held that every rating reduction must include two findings: (1) that the disability actually improved and (2) that the improvement reflects an actual improvement in the veteran’s “ability to function under the ordinary conditions of life and work.” 5 Vet.App. 413, 421 (1993). Recently, this Court held that, where the Board fails to make those two factual findings, reversal of the rating reduction is warranted. Stern v. McDonough, __ Vet.App. , , No. 18-4425, 2021 WL 1537744 at *7 (Apr. 20, 2021);

Filed under: Uncategorized — veteranclaims @ 1:35 am

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-9019
SUMMER NICOLE DENISE MOORE, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
TOTH, Judge: Summer Nicole Denise Moore served in the Army from October 2007 to
April 2008, including two months in Iraq in support of Operation Iraqi Freedom. She appeals a
November 2019 Board decision that denied a rating higher than 50% for persistent depressive
disorder and service connection for a left shoulder disability on a direct and presumptive basis.*
For the reasons that follow, the Court remands both claims.
I. RATING
Usually, the Court reviews whether the Board erred in assigning a particular rating for a
service-connected disability. Here, however, the issue is whether the Board erred in characterizing
the veteran’s appeal as an appeal of an increased-rating claim rather than an appeal of the regional
office’s (RO) rating reduction (from 70 to 50%). To explain how the appeal should have been
characterized by the Board, some procedural background information is necessary.
*The Board also denied service connection for a hernia, including as due to an undiagnosed illness or as
secondary to a service-connected psychiatric disability, and for the left shoulder condition as secondary to a serviceconnected
psychiatric disability. Because the appellant does not challenge the Board’s decision as to those claims, the
Court dismisses any appeal of them. Cacciola v. Gibson, 27 Vet.App. 45, 57 n.4 (2014).
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In July 2016, VA granted Ms. Moore’s claim for service connection for PTSD and assigned
a 70% rating. The following year, she filed a claim for an increased PTSD rating, and VA obtained
an exam in December 2017 to evaluate whether an increase was warranted. But the decision that
followed did not decide whether Ms. Moore was entitled to an increase. Instead, in a March 2018
letter, VA proposed to reduce her rating from 70% to 50%. Further, because her diagnosis had
changed, VA recharacterized her service-connected PTSD as service-connected unspecified
depressive disorder. Thereafter, in an August 22, 2018, letter, the RO notified Ms. Moore that the
proposed rating reduction would be effective on November 1, 2018. She submitted a Notice of
Disagreement (NOD) on August 31, disagreeing with the proposal that her “percentage should be
lowered.” R. at 474.
Days later, in a September 1 letter, VA offered Ms. Moore an option to take part in the
Rapid Appeals Modernization Program (RAMP)—a program allowing claimants to take
advantage of VA’s new modernized appeal system before it took effect. She had two ways to optin:
she could have “all eligible issues currently on appeal” (1) “processed as a supplemental claim”
or (2) “reviewed in the higher-level review process.” R. at 481. In February 2019, Ms. Moore chose
option 2: to have “all eligible issues currently on appeal reviewed in the higher-level review
process.” R. at 431.
In an April 2019 letter, VA notified the veteran that it withdrew and discontinued five
pending appeals, including her appeal regarding “[p]ersistent depressive disorder with unspecified
depressive disorder (previously rated as [PTSD] to include due to military sexual trauma).” R. at 421. The same week, VA issued a new rating decision adjudicating “[e]ntitlement to a higher
evaluation [for] persistent depressive disorder” and denying a rating higher than 50% for that
condition. R. at 395.
Then, Ms. Moore appealed to the Board by submitting VA Form 10182, “Decision Review
Request: Board Appeal (Notice of Disagreement).” R. at 378. In it, she requested a “higher
evaluation” for PTSD (now recharacterized as depressive disorder). Id. The Board issued a
decision in November 2019, deciding “[e]ntitlement to a rating in excess of 50[%] for persistent
depressive disorder with unspecified depressive disorder.” R. at 5.
On appeal, Ms. Moore argues that the Board mischaracterized the issue before it as one for
an increased rating and, consequently, failed to assess the propriety of the RO’s rating reduction
from 70% to 50%. The Secretary disagrees; he argues that there are two separate claim streams—
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(1) the rating reduction and (2) the increased rating, and because the rating reduction was never
appealed, the Court does not have jurisdiction over it.
This appeal began with Ms. Moore’s NOD as to an August 2018 rating decision informing
her that a reduction of her depressive-disorder rating would be effective on November 1. Ms.
Moore disagreed with VA’s proposal that her “percentage should be lowered.” R. at 474. “Where
a veteran’s disability rating is reduced, the Board must determine whether the reduction of the
veteran’s disability rating was proper and must not phrase the issue in terms of whether the veteran
was entitled to an increased rating, including whether the veteran was entitled to restoration of a
previous rating.” Hedgepeth v. Wilkie, 30 Vet.App. 318, 323 (2018). Therefore, since Ms. Moore
appealed the RO’s reduction of her disability rating, the issue before the Board was whether the
RO’s reduction was proper, not whether entitlement to an increased rating was warranted.
The Secretary defends the Board by contending that Ms. Moore “removed the rating
reduction issue from appellate status and triggered the RO to issue a new adjudication, which
began the current [and new] claim stream.” Secretary’s Br. at 12. But the Secretary presents no
argument or record citation in support of that position, nor does he cite to any legal authority to
support the notion that opting into RAMP begins a new claim stream.
In this case, the RAMP opt-in letter that Ms. Moore received makes clear that the program
sought to provide “the earliest possible resolution of [veterans’] claims pending in the legacy
appeals process.” R. at 382 (emphasis added). And when Ms. Moore opted into RAMP, she chose
to “have all eligible issues currently on appeal reviewed in the higher-level review process.” R. at
431 (emphasis added). At that time, the issues on appeal included whether the RO properly reduced
her rating for a mental health disability. The Secretary’s argument assumes that the RO and,
subsequently, the Board had authority to recharacterize the issue on appeal after the veteran opted
into RAMP. But again, he provides no logical or legal support for such an assertion.
Further, contrary to the Secretary’s position, it is not possible to create two claim streams
out of a rating issue for a single disability. The rating reduction and increased rating matters are
not separate claims but rather different characterizations by VA of the same issue relating to the
same service-connected psychiatric disability—previously categorized as PTSD and now as
depressive disorder. It is similar to how VA generally treats requests for TDIU when raised as part
of an increased-rating claim. See Rice v. Shinseki, 22Vet.App. 447, 453 (2009) (“[A] request for
TDIU, whether expressly raised by the veteran or reasonably raised by the record, is not a sperate
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claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or
disabilities, either as part of the initial adjudication or a claim or . . . as part of a claim for increased
compensation.”). VA cannot moot a veteran’s objection to the propriety of a rating reduction by
recharacterizing the underlying disability (from PTSD to depressive disorder) and reframing the
issue relating to the recharacterized disability as a request for a rating increase.
Finding that the Board should have decided whether the RO’s rating reduction was proper,
the Court now turns to the remedy. Generally, where the Board fails to address relevant law or
evidence, the Court remands so that it can provide a statement of reasons or bases. See Deloach v.
Shinseki, 704 F.3d 1370, 1379 (Fed. Cir. 2013) (describing reasons or bases requirements).
However, where the Board fails to make certain necessary findings in a rating reduction case,
reversal rather than remand might be warranted.
In Brown v. Brown, this Court held that every rating reduction must include two findings:
(1) that the disability actually improved and (2) that the improvement reflects an actual improvement in the veteran’s “ability to function under the ordinary conditions of life and work.” 5 Vet.App. 413, 421 (1993). Recently, this Court held that, where the Board fails to make those
two factual findings, reversal of the rating reduction is warranted. Stern v. McDonough, __ Vet.App. , , No. 18-4425, 2021 WL 1537744 at *7 (Apr. 20, 2021).
Here, the Board decision
does not reference a single rating-reduction law, nor did it provide any of the factual findings
required by Brown—that is, whether Ms. Moore’s disability showed actual improvement in her
ability to function under the ordinary conditions of life and work. Because the Board failed “to
make the finding[s] required by Brown,” reversal of the rating reduction is warranted. Id. at *8.
II. LEFT SHOULDER
Ms. Moore also appeals the Board’s denial of service connection for a left shoulder
condition. To establish entitlement to VA disability compensation, the evidence generally must
show (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and
(3) a nexus between the claimed in-service disease or injury and the current disability. Saunders
v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Additionally, a Gulf War veteran like Ms. Moore
can establish entitlement to service connection on a presumptive basis if she “exhibits objective
indications of a qualifying chronic disability” during active duty or to a compensable degree before
December 31, 2021. 38 C.F.R. § 3.317(a)(1) (2021); see generally 38 U.S.C. § 1117. A “qualifying
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chronic disability” is one that results from either an “undiagnosed illness” or a “medically
unexplained chronic multisymptom illness [(MUCMI)] that is defined by a cluster of signs or
symptoms.” 38 C.F.R. § 3.317(a)(2)(i)(A)-(B).
Here, in a 2016 VA examination report, the examiner opined that Ms. Moore’s shoulder
pain “is a diagnosable condition.” R. at 3696. The Board relied on that opinion to find that Ms.
Moore does not have “an undiagnosed illness manifested by [left] shoulder problems” and thus is
not entitled to service connection under the Gulf War presumptions. R. at 12.
Ms. Moore asserts that the 2016 opinion is inadequate because the examiner opined that
shoulder pain is generally diagnosable but did not explain whether her left “shoulder pain is
attributable to a known clinical diagnosis.” Appellant’s Br. at 20. The Secretary does not disagree.
In fact, he concedes that “the record does not contain a clinical diagnosis for [Ms. Moore’s] left
shoulder condition” and that “the examiner did not provide an exact diagnosis.” Secretary’s Br. at
16-17.
In view of these concessions, the Court cannot discern how the Board could rely on that
exam to find that Ms. Moore’s shoulder pain is not an undiagnosed illness for the purpose of
establishing service connection under the Gulf War presumptions. The Secretary says that the
Board could still rely on the exam because the examiner’s nexus opinion was adequate. But an
adequate medical nexus opinion is of no moment because establishing service connection under
the Gulf War presumptions requires only evidence of service in the Gulf War and a qualifying
chronic disability. An examiner’s negative nexus opinion might foreclose service connection on a
direct theory, but it doesn’t necessarily foreclose service connection on a presumptive theory.
Also, although an examiner need not opine that a veteran has an undiagnosed illness, the
examiner should “provide a diagnosis where possible.” Joyner v. McDonald, 766 F.3d 1393, 1395
(Fed. Cir. 2014). The 2016 examiner suggested that shoulder pain is generally diagnosable but
never explained whether Ms. Moore’s shoulder pain was diagnosable and, if so, what the diagnosis
is. See Monzingo v. Shinseki, 26 Vet.App. 97, 106 (2012) (holding that an adequate opinion must
provide “a reasoned medical explanation” linking the facts of the case with the examiner’s
conclusions). And because the examiner did not diagnose the veteran’s shoulder condition and
because there is no clinical diagnosis in the record, the Court is unable to discern why the Board
found that the veteran did not have an undiagnosed illness manifested by left shoulder problems
and, thus, was not entitled to service-connected benefits under the Gulf War presumptions. On
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remand, the Board should assess whether Ms. Moore has an undiagnosed condition or MUCMI,
including whether a new medical opinion is required to answer that question.
III. CONCLUSION
The Court VACATES the Board’s November 1, 2019, decision that denied service
connection for a left shoulder disability as due to an undiagnosed illness and REMANDS that
matter for readjudication consistent with this opinion. The Court REVERSES the Board’s denial
of a rating in excess of 50% for persistent depressive disorder and REMANDS that matter with
directions for the Board to reinstate the veteran’s 70% disability rating. The balance of the appeal
is DISMISSED.
DATED: July 16, 2021
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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