Veteranclaims’s Blog

August 26, 2011

Single Judge Application, Mauerhan v. Principi, 16 Vet.App. at 442, PTSD

Filed under: Uncategorized — Tags: , , , — veteranclaims @ 1:36 pm

Excerpt from decision below:
“B. Application of Mauerhan v. Principi
Mr. Gadsden’s remaining argument is that the Board improperly required him to demonstrate the full complement of symptoms contained in § 4.130 to warrant a 70%
disability rating for post-traumatic stress disorder, thereby misapplying Mauerhan. The Court agrees.
In Mauerhan, the Court explained that “the factors listed in the rating formula [for mental disorders] are ‘examples’ of conditions that warrant particular ratings” that are intended to assist the adjudicator in differentiating between levels of disability, a task that would be “extremely ambiguous” without the listed factors. 16 Vet.App. at 442. The Court made clear, however, that “any suggestion that the Board was required, in complying with the regulation, to find the presence of all, most, or even some, of the enumerated symptoms is unsupported by a reading of the plain language of the regulation.” Id. Thus, this “list of examples[ ] provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation.” Id.
Here, the Board paid lip service to Mauerhan but proceeded to do precisely
what Mauerhan prohibits.
After summarizing the medical evidence, the Board stated: “Although the above persuasive medical evidence shows significant psychiatric symptomatology, as indicated by his current 50 percent rating, most of the symptomatology required for an increased evaluation of 70 percent is not present.” R. at 15 (emphasis added). The Board then cataloged the various criteria for a 70% disability rating that Mr. Gadsden did not demonstrate and concluded that an increased disability rating was not warranted. This was clear error. See 38 U.S.C. § 7261(a)(4); Smallwood v. Brown, 10 Vet.App. 93, 97 (1997) (holding that the Court reviews the Board’s assignment of the
6

disability rating assigned under the “clearly erroneous” standard of
review). Accordingly, the Court will vacate the Board’s decision and remand the matter for readjudication.”
================================

—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-0428
JOSEPH GADSDEN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Joseph Gadsden appeals through counsel a January 6, 2010,
Board of
Veterans’ Appeals (Board) decision that denied entitlement to a disability
rating in excess of 50%
for post-traumatic stress disorder and referred the issue of entitlement
to a total disability rating
based on individual unemployability to the regional office for development
and adjudication. The
Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to
review the Board decision.
Neitherpartyrequestedoralargumentoridentifiedissues
theybelieverequireaprecedentialdecision
of the Court. Because the Board failed to properly apply the law in
determining that a disability
rating in excess of 50% for post-traumatic stress disorder was not
warranted, the Court will vacate
that portion of the January 2010 Board decision and remand the matter for
readjudication consistent
with this decision. The remainder of the Board decision will be affirmed.
I. FACTS
Mr. Gadsden served on active duty in the U.S. Army from September 1966 to
November
1967, including service in Viet Nam. In February 1999, a VA regional
office granted him disability
benefits for post-traumatic stress disorder and assigned a 10% disability
rating.

In January 2007, Mr. Gadsden filed a claim for an increased disability
rating for post-
traumatic stress disorder.
In March 2007, VA provided a psychiatric examination. Mr. Gadsden reported
that he had
nightmares, hallucinations, and flashbacks. The examiner noted Mr.
Gadsden’s report that, although
he had a “positive” relationship with his wife, he had few, if any,
meaningful social relationships
outside of his marriage. Record (R.) at 537.
In May 2007, the regional office issued a rating decision increasing Mr.
Gadsden’s disability
rating for post-traumatic stress disorder to 50%.
In October 2007, Mr. Gadsden submitted a private psychiatric evaluation.
The examiner
recorded Mr. Gadsden’s post-traumatic stress disorder symptoms, including
nightmares four to five
times a week, panic attacks three to four times a week, trouble sleeping,
intrusive thoughts,
hypervigiliance, overdeveloped startle response, severelyimpaired recent
memory, totally impaired
“working memory,” auditory hallucinations, and depression. R. at 359. The
examiner stated that
Mr.Gadsden was “moderatelycompromised in his abilityto sustain his
socialrelationships”andthat
he considered Mr. Gadsden “permanently and totally disabled and
unemployable.” Id.
In November 2007, the regional office issued a rating decision continuing
the 50% disability
rating. Mr. Gadsden filed a Notice of Disagreement with that decision.
In a January 2008 VA progress note from a VA mental health clinic, an
examiner noted that
Mr. Gadsden reported “discharg[ing] a firearm in his house in the evening
because he misinterpreted
a shadow for an intruder.” R. at 332. The report concluded: “No
demonstrative neurovegative signs
were noted. No suicide or homicide ideations were present. Delusions,
hallucinations and
systematized paranoia were absent. He admitted suspiciousness of his
surrounding[s].” Id.
In a March 2008 VA progress note, Mr. Gadsden reported continued social
avoidance,
hypervigilance and easy startling, along with nightmares and intrusive
thoughts and recollections.
In May2008, VA progress notes, Mr. Gadsden continued to report nightmares,
intrusive and
distressing recollections, flashbacks, avoidance of crowds and social
events, hypervigilance, easy
startle response, suspicion of surroundings, irritability, and difficulty
concentrating.
InAugust 2008,Mr.GadsdenunderwentanotherVApsychiatricexamination.
Theexaminer
recorded Mr. Gadsden’s statement that he suffers from nightmares, mood
swings, and flashbacks,
2

and walks around the house with a gun at night, once shooting at what he
mistakenly believed to be
an intruder. The examiner noted that Mr. Gadsden had been unemployed since
May 2008, when he
left his job with the U.S. Postal Service. Mr. Gadsden stated that he had
taken “early retirement”
because the medicine he was prescribed to treat his post-traumatic stress
disorder symptoms made
him groggy and unable to drive his official vehicle. R. at 122.
Also in August 2008, Mr. Gadsden was observed bya VA social worker, who
stated that Mr.
Gadsden appeared stable, although functioning at “impaired levels, with
significant anxiety and
depression contributing to impairments in employment, social[,] and
recreational activities.” R. at
108. The social worker noted that Mr. Gadsden exhibited “hyperarousal, re-
experiencing, and
avoidance/emotional numbing due to traumatic military experiences,” as
well as nightmares,
intrusive and distressing recollections, flashbacks, and social avoidance.
R at 110-11.
In an October 2008 VA mental health outpatient follow-up note, the
examiner noted that Mr.
Gadsden’s mood had improved since he began participating in group therapy,
though he still
experienced anxiety and nightmares. Mr. Gadsden reported no hallucinations
or delusions, his
thought processes were noted to be logical and linear, and his memory and
orientation were intact.
In January 2009, the regional office issued a rating decision continuing
the 50% disability
rating for post-traumatic stress disorder. Mr. Gadsden ultimately appealed
to the Board.
In August 2009, Mr. Gadsden testified at a personal hearing before the
Board. He stated that
he could no longer work because the 13 medications he had been prescribed
made him groggy and
because he began getting in arguments with coworkers and getting irritated
at even “minor
situations.” R. at 21. He testified to his various symptoms, including
memory lapses, lapses in
judgment, obsessional rituals such as repeatedlychecking to be sure the
doors are locked, irritability,
anger, flashbacks, and homicidal and suicidal ideations.
In January 2010, the Board issued the decision on appeal. The Board first
noted that, during
the August 2009 hearing, Mr. Gadsden reported that he was no longer
working. Relying on
Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001), the Board determined
that this evidence,
coupled with Mr. Gadsden’s claim for an increased disability rating,
raised the issue of entitlement
to a total disability rating based on individual unemployability. Because
this issue had not yet been
3

adjudicated at any level, the Board referred it to the regional office
for development and
adjudication.
Next, theBoardoutlined thelawapplicableto Mr.Gadsden’s
claimforanincreaseddisability
rating for post-traumatic stress disorder, specifically noting that “the
evidence considered in
determining the level of impairment under [38 C.F.R.] § 4.130 is not
restricted to the symptoms
provided in the diagnostic code,” and that “VA must consider all symptoms
of a claimant’s condition
that affect the level of occupational and social impairment.” R. at 8 (
citing Mauerhan v. Principi,
16 Vet.App. 436 (2002)). The Board then reviewed the rating criteria for
50% and 70% disability
ratings for post-traumatic stress disorder and explained the significance
of Global Assesment of
Functioning scores.1
TheBoardlisted theevidencein Mr.Gadsden’s claim,
includingtheMarchandOctober2007
andAugust 2008VAmedicalexaminations,
theOctober2007privatepsychiatricevaluation, various
VA mental health progress and treatment notes, and the August 2009 hearing
testimony. The Board
determined that the favorable private October 2008 evaluation was
inconsistent with the other
medical evidence of record and found it unpersuasive because it “does not
demonstrate a review of
pertinent treatment and diagnosis historyand reflects symptoms and
severity that [Mr. Gadsden] has
not prior or afterwards reported to VA health care providers, and that no
VA health care providers
have prior or afterwards observed.” R. at 14. The Board then considered
the criteria for a 50% and
70% disability rating and determined that a disability rating in excess of
50% was not warranted.
II. ANALYSIS
A. Referral vs. Adjudication in the First Instance
TheSecretarymayseparate out parts of a claim through referral or remand,
whicharedistinct
concepts. See Godfrey v. Brown, 7 Vet.App. 398, 409–10 (1995) (stating
that remand is appropriate
where proper evidentiary development has not been completed, while
referral is appropriate when
A Global Assessment of Functioning score represents “the clinician’s
judgment of the individual’s overall level
of functioning” and is “useful in planning treatment and measuring its
impact[ ] and in predicting outcome.” DIAGNOSTIC
AND STATISTICALMANUAL OF MENTALDISORDERS 30 (4th ed. 1994); see Richard v.
Brown, 9 Vet.App. 266, 267 (1996).
A Global Assessment of Functioning score is not dispositive, but is highly
probative because it relates directly to a
claimant’s impairment levels as contemplated by the rating criteria. See
Massey v. Brown, 7 Vet.App. 204, 207 (1994).
1
4

a newly raised claim is not in administrative appellate status). On
appeal, Mr. Gadsden first
contends that it was error for the Board to refer the issue of entitlement
to a total disability rating
based on individual unemployability to the regional office rather than
adjudicate it in the first
instance. In support of this argument, Mr. Gadsden relies on Rice v.
Shinseki, in which this Court
held that a request for a total disability rating based on individual
unemployability,
whether expressly raised by a veteran or reasonably raised by the record,
is not a
separate claim for benefits, but rather involves an attempt to obtain an
appropriate
ratingfor a disabilityor disabilities, either as part of the initial
adjudication of a claim
or, if a disability upon which entitlement to [a total disability rating
based on
individual unemployability] is based has alreadybeen found to be service
connected,
as part of a claim for increased compensation.
22 Vet.App. 447, 453-54 (2009).2
As the Secretary points out, however, Rice “does not prohibit the
separability” of the determinations of entitlement to a total disability
rating based on individual
unemployability and entitlement to a schedular disability rating increase.
See id. at 455 n.7 (citing
Holland v.Brown,6Vet.App.443(1994))(
reviewingBoarddecisiondenyinganincreaseddisability
rating for service-connected rheumatoid arthritis of multiple joints even
though the Board referred
the question of entitlement to a total disability rating based on
individual unemployability to the
regional office)).
Moreover, Mr. Gadsden’s argument has already been addressed by the Court.
In LocklearNext Hit
v. Shinseki, as in Mr. Gadsden’s case, “the Secretary specifically
separated the adjudication of the
schedular disability rating from the adjudication of [entitlement to a
total disability rating based on
individual unemployability].” 24 Vet.App. 311, 315 (2011).
The Court in Previous HitLocklearNext Document held that
“[b]ifurcation of aclaimgenerallyis within the Secretary’s discretion.” Id
. (citingTyrues v. Shinseki,
23 Vet.App. 166, 176 (2009) (en banc) (holding that it is permissible for
the Secretary to bifurcate
a request for benefits on the basis of direct service connection from the
request on the basis of
presumptive service connection); Roebuck v. Nicholson, 20 Vet.App. 307,
315 (2006)
(acknowledging that the Board can bifurcate a claim and address different
theories or arguments in
The Court notes that the Secretary repeatedly refers, as did the Board, to
a “claim” for a total disability rating
based on individual unemployability. Rice, however, made clear that there
is no such thing as a separate “claim”–as that
term is defined by VA–for a total disability rating based on individual
unemployability. The Court urges the Secretary
to be more precise in the future when discussing matters of entitlement to
a total disability rating based on individual
unemployability.
2
5

separate decisions); Holland, 6 Vet.App. at 447). Similarly, in Holland,
the Court held that “It was
not inappropriate” for the Board to refer the issue of a total disability
rating based on individual
unemployability to the regional office for further adjudication while
still deciding an accompanying
increased rating claim. 6 Vet.App. at 447. In light of this discussion,
the Court finds no error in the
Board’s determination that referral, rather than remand, of the question
of entitlement to a total
disability rating based on individual unemployability was appropriate.
B. Application of Mauerhan v. Principi
Mr. Gadsden’s remaining argument is that the Board improperlyrequired him
to demonstrate
the full complement of symptoms contained in § 4.130 to warrant a 70%
disability rating for post-
traumatic stress disorder, thereby misapplying Mauerhan. The Court agrees.
In Mauerhan, the Court explained that “the factors listed in the rating
formula [for mental
disorders] are ‘examples’ of conditions that warrant particular ratings”
that are intended to assist the
adjudicator in differentiating between levels of disability, a task that
would be “extremely
ambiguous” without the listed factors. 16 Vet.App. at 442. The Court made
clear, however, that
“any suggestion that the Board was required, in complying with the
regulation, to find the presence
of all, most, or even some, of the enumerated symptoms is unsupported by a
reading of the plain
language of the regulation.” Id. Thus, this “list of examples[ ] provides
guidance as to the severity
of symptoms contemplated for each rating, in addition to permitting
consideration of other
symptoms, particular to each veteran and disorder, and the effect of those
symptoms on the
claimant’s social and work situation.” Id.
Here, the Board paid lip service to Mauerhan but proceeded to do precisely
what Mauerhan
prohibits. After summarizing the medical evidence, the Board stated: ”
Although the above
persuasive medical evidence shows significant psychiatric symptomatology,
as indicated by his
current 50 percent rating, most of the symptomatology required for an
increased evaluation of 70
percent is not present.” R. at 15 (emphasis added). The Board then
cataloged the various criteria
for a 70% disability rating that Mr. Gadsden did not demonstrate and
concluded that an increased
disability rating was not warranted. This was clear error. See 38 U.S.C. §
7261(a)(4); Smallwood
v. Brown, 10 Vet.App. 93, 97 (1997) (holding that the Court reviews the
Board’s assignment of the
6

disability rating assigned under the “clearly erroneous” standard of
review). Accordingly, the Court
will vacate the Board’s decision and remand the matter for readjudication.
On remand, the Board will take care to consider Mr. Gadsden’s disability
picture as a whole
to determine whether it “more nearly approximates” a 50% or a 70% (or
greater) disability rating.
38 C.F.R. § 4.7 (2011). The Board will also expressly consider the
effects of Mr. Gadsden’s
psychiatric symptoms on his social and employment functions. Mauerhan, 16
Vet.App. at 442; see
38 U.S.C. § 7104(d)(1) (stating that, in rendering its decision, the
Board is required to provide a
written statement of the reasons or bases for its “findings and
conclusions[] on all material issues of
fact and law presented on the record”).
On remand, Mr. Gadsden is free to submit additional evidence and argument
in accordance
with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order). See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). 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). In addition, the Board shall proceed expeditiously, in
accordance with 38 U.S.C.
§ 7112 (expedited treatment of remanded claims).

III. CONCLUSION
Upon consideration of the foregoing, that portion of the January6, 2010,
Board decision that
denied entitlement to a disability rating in excess of 50% for post-
traumatic stress disorder is
VACATED and the matter is REMANDED for readjudication consistent with this
decision. The
remainder of the Board decision is AFFIRMED.
DATED: August 12, 2011
Copies to:
Zachary M. Stoltz, Esq.
VA General Counsel (027)
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