Veteranclaims’s Blog

November 17, 2021

Single Judge Application; Moore v. Shinseki, 555 F.3d 1369, 1373-74 (Fed. Cir. 2009); cf. Moore, 555 F.3d at 1374 (“Without obtaining and evaluating the . . . records, the VA could not make a fully informed decision regarding the degree of . . . psychiatric impairment.”);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-6580
GEORGE J. MONTALVO, 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: George J. Montalvo served in the Army for 20 years, from 1979 to 1999.
Representing himself, he appeals a June 2020 Board decision that denied a rating greater than 30%
for service-connected somatic symptom disorder with predominant pain. Mr. Montalvo raises
several allegations as to why the Board erred in not assigning a 70% rating. However, after
generously construing his arguments, see Groves v. McDonough, 33 Vet.App. 368, 373 (2021),
the Court discerns no clear error (an error that has no plausible basis in the record) as to the Board’s
rating assignment.
I. ANALYSIS
A. Legal Landscape
Psychiatric disabilities are rated under a general rating formula. A 30% rating is warranted
when the veteran has:
Occupational and social impairment with occasional decrease in work efficiency
and intermittent periods of inability to perform occupational tasks (although
generally functioning satisfactorily, with routine behavior, self-care, and
conversation normal), due to such symptoms as: depressed mood, anxiety,
suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild
memory loss (such as forgetting names, directions, recent events).
2
38 C.F.R. § 4.130 (2021). A 50% rating is warranted when the veteran has:
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.
Id.
In rating psychiatric disabilities, the Board must provide a “holistic analysis in which it
assesses the severity, frequency, and duration” of the veteran’s symptoms, “quantifies the level of
occupational and social impairment” caused by those symptoms, and “assigns an evaluation that
most nearly approximates” that level of impairment. Bankhead v. Shulkin, 29 Vet.App. 10, 22
(2017). The Board’s finding as to the degree of disability is a finding of fact that this Court reviews
for clear error, id. at 18, meaning that affirmance is required “if there is a plausible basis in the
record for the factual determinations,” Warren v. McDonald, 28 Vet.App. 214, 218 (2016). It’s the
appellant’s burden to demonstrate that the Board did not provide the required analysis and that the
explanation for its decision is unclear or otherwise frustrates the Court’s review. Id. at 22.
B. Background
In August 2012, Mr. Montalvo filed a claim for service connection for depression and
PTSD. In support of his claim, he submitted a May 2011 medical report from his private physician.
The physician opined that, because of his psychiatric disability, Mr. Montalvo was “severely
compromised in his ability to sustain social relationships” and “severely compromised in his ability
to sustain work relationships.” R. at 1702.
VA obtained an exam and nexus opinion in December 2013. The VA examiner diagnosed
somatic symptom disorder with predominant pain and linked it to the veteran’s service-connected
lumbar spine degenerative arthritis. In a rating decision from the same month, VA granted service
connection for somatic symptom disorder with predominant pain rated at 30%. Mr. Montalvo
submitted a January 2014 Notice of Disagreement (NOD), seeking a 70% rating based on the 2011
private physician’s report and the 2013 VA examiner’s opinion. He argued that the 2011 private
opinion demonstrated that his psychiatric disorder caused “major impairment[s]” and that “no VA
laws or requirements [] allow the RO to disregard medical opinions.” R. at 1474. He also said that
3
VA should have considered that the Global Assessment of Functioning (GAF) scores noted in his
medical records because they demonstrated that he had symptoms that caused major impairments.
When the case reached the Board, it remanded for the Agency to obtain relevant treatment
records and a new exam to determine the severity of the veteran’s condition. VA obtained a new
medical opinion in December 2019. The examiner noted that Mr. Montalvo had panic attacks
“weekly or less often.” R. at 61. Otherwise, the examiner noted that the veteran did not present
with any psychotic thoughts or perceptual disturbances, had intact memory, denied suicidal and
homicidal ideations, and had fair insight and good judgment. He opined that the veteran had
“occupational and social impairment due to mild or transient symptoms which decrease work
efficiency and ability to perform occupational tasks only during periods of significant stress, or;
symptoms controlled by medication.” R. at 59.
In its 2020 decision, the Board relied on both private treatment records and VA
examination reports dating back to August 2013 (the date of the veteran’s claim) to find that “the
level of impairment caused by the [v]eteran’s symptoms more closely approximates the level
associated with a 30 percent rating.” R. at 11. Per the Board, the veteran exhibited several
symptoms in the 30% rating criteria, such as depressed mood, anxiety, chronic sleep impairment,
panic attacks, and mild memory loss. The Board also found that he exhibited symptoms that were
not explicitly listed in the diagnostic code, such as somatic symptoms amplified by anxiety and
stress, anger and irritability, interpersonal avoidance, minimal situational anxiety generally
associated with work performance, and nightmares. Id. at 10. But the Board concluded that the
frequency, severity, and duration of those symptoms only rose to the impairment level
contemplated by the 30% rating. Id. The Board acknowledged the private physician’s May 2011
opinion but did not rely on it to rate the veteran’s disability because it predated the veteran’s claim
for benefits by more than one year and was therefore of no probative value. It also acknowledged
the veteran’s request that it consider his GAF scores but explained that it could not because
adjudicators are “‘not permitted to rely on evidence that the American Psychiatric Association itself
finds lacking in clarity and usefulness.'” Id. at 13 (quoting Golden v. Shinseki, 29 Vet.App. 221,
225 (2018)). In sum, the Board found that the preponderance of the evidence was against a rating
higher than 30% and, therefore, the benefit of the doubt did not apply.
4
C. Discussion
Mr. Montalvo raises various arguments as to why the Board erred. First, he argues that the
Board erred in not considering the 2011 private medical opinion and his 2014 NOD and assigning
a higher disability in accordance with that evidence. His remaining arguments generally contend
that VA unfairly developed and decided his claim. For instance, he asserts that VA did not apply
the benefit of the doubt as set forth in 38 U.S.C. § 5107(b), violated his due process rights, and
failed to award him benefits in the same way it did for his fellow veterans. The Court addresses
these contentions in turn.
As for the 2011 private medical opinion, the Board found that it was irrelevant because it
predated the veteran’s service-connection claim by more than one year and thus had “no probative
value” for purposes of rating his disability during the current appeal period. R. at 12. The Board’s
assessment of this evidence was not clearly wrong. Of course, without reviewing medical
evidence, the Board cannot deem it categorically irrelevant to a claim simply because it predates
the claim period. Moore v. Shinseki, 555 F.3d 1369, 1373-74 (Fed. Cir. 2009). Here, however, the
2011 opinion was reviewed by the Board, which found that its age didn’t shed any light on “the
nature and severity” of the veteran’s psychiatric disability. R. at 12; cf. Moore, 555 F.3d at 1374
(“Without obtaining and evaluating the . . . records, the VA could not make a fully informed
decision regarding the degree of . . . psychiatric impairment.”).
Whether specific evidence is
relevant to an issue is a factual determination for the Board to make. See Sullivan v. McDonald,
815 F.3d 786, 792-93 (Fed. Cir. 2016). So, the Court cannot say that the Board clearly erred in
finding the May 2011 private opinion irrelevant to rating Mr. Montalvo’s present level of disability.
The Board also acknowledged that Mr. Montalvo’s NOD requested a rating higher than
30% and supported the request by referencing the GAF scores documented by his private
physician. But the Board did not assign a higher rating based on those GAF scores, noting that
adjudicators may not rely on GAF scores. The Board was correct; VA adjudicators may not rely
on GAF scores in cases that were certified to the Board after August 4, 2014. Golden, 29 Vet.App.
at 225. And Mr. Montalvo’s claim was certified to the Board after that date. See R. at 7 (“[T]he
Veteran’s claim was pending before the [agency of original jurisdiction] on August 4, 2014.”). The
Board therefore did not err in disregarding the GAF scores.
Mr. Montalvo’s remaining arguments are also unavailing. He alleges that the VA
examination reports are unreliable because VA administrators posted “memos” in the Durham,
5
North Carolina, VA medical center instructing examiners “on what they can and cannot write in
their VA report[s],” which Mr. Montalvo believes “almost, always” results in a decision “against
the [v]eteran.” Appellant’s Informal Br. at 5. He contends that VA should have rated his condition
using reports from his private physician, which were provided after “years of treatment.” Id.
There are a few problems with this line of argument. First, Mr. Montalvo suggests that VA
purposefully gathered negative medical evidence. However, he provides no evidentiary support
for that allegation and the Court sees no support for it in the record. The veteran also points to no
other alleged inadequacy in the examination reports. Second, his argument suggests that the Board
favored the VA medical evidence over that of his treating physicians. However, the Board did not
reject private medical records (except for the 2011 private opinion) but concluded that such
records, along with the VA exams, supported a 30% rating. And it is unclear from the veteran’s
arguments or the record that the private medical evidence favors a higher rating. For these reasons,
the Court discerns no error in the Board’s conclusion that the benefit of the doubt did not apply, as
the doctrine comes into play only if “there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of a matter.” 38 U.S.C. § 5107(b).
Next, Mr. Montalvo cites a Board decision from another veteran’s case, in which VA
afforded a private medical opinion greater probative value than the Board did in this case and
granted that veteran’s claim for service connection for PTSD. However, Board decisions are
“considered binding only with regard to the specific case decided”; decisions in other appeals “may
be considered in a case to the extent that they reasonably relate to the case.” 38 C.F.R. § 20.1303
(2021). This rule reflects the practical reality that most Board decisions turn on the specific facts
of a particular case. Although the Board “may” consider another case that “reasonably relate[s],”
Mr. Montalvo has not explained how the decision he cites reasonably relates to his case, and the
Court doesn’t see it. For one, the other case involved a service-connection claim and Mr.
Montalvo’s case involves an increased-rating claim. For that reason, and because other Board
decisions are not binding on the Board, the Court finds no error in the Board’s refusal to consider
the other decision.
Finally, the “fundamental requirement of due process is the opportunity to be heard ‘at a
meaningful time and in a meaningful manner.'” Mathews v. Eldridge, 424 U.S. 319, 332-33 (1976)
(quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Mr. Montalvo certainly has a significant
property interest in receiving any past-due disability compensation under the Due Process Clause
6
of the Fifth Amendment, see Noah v. McDonald, 28 Vet.App. 120, 130 (2016), but he hasn’t
demonstrated how his due process rights might have been violated in this case. Nor is it apparent
to this Court. See Bankhead, 29 Vet.App. at 22 (the appellant bears the burden of demonstrating
clear error).
II. CONCLUSION
Accordingly, the Court AFFIRMS the June 17, 2020, Board decision.
DATED: August 17, 2021
Copies to:
George J. Montalvo
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.