Veteranclaims’s Blog

September 6, 2011

Single Judge Application, Disability Rating Mental Condition, Not Simple Matching of Rating Criteria to Veterans Symptoms, Mauerhan v. Principi, 16 Vet.App. 436 (2002)

Excerpt from decision below:
“Although the Court also acknowledges that assigning a disability rating for a mental condition is not simply a matter of matching the symptoms of the rating criteria against those exhibited by the claimant, see Mauerhan v. Principi, 16 Vet.App. 436 (2002 ); 38 C.F.R. § 4.126 (2011), here there is evidence that appear to satisfy several criteria for a 70% disability rating. The Board simply did not address that evidence in the context of the rating criteria and explain why, when viewed as a whole, Mr. Reynolds’s disability picture more nearly approximates a 50% disability rating. See 38 C.F.R. § 4.7 (2011). Accordingly, remand is necessary. See Tucker v. West, 11 Vet.App. 369, 374 (1998).”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-1161
RAYMOND S. REYNOLDS, 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: Raymond S. Reynolds appeals through counsel a February 11, 2010, Board of Veterans’ Appeals (Board)decision that increased the disability rating assigned for post-traumatic stress disorder from 30% to 50%, but no higher, and denied entitlement to an increased disability rating for bilateral hearing loss.1 Mr. Reynolds’s Notice of Appeal was timely, and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). Neither party requested oral argument or identified issues they believe require a precedential decision of the Court. Because the Board failed to provide adequate reasons or bases for its determination that a disability rating greater than 50% was not warranted for post-traumatic stress disorder, and for its determination that referral for extraschedular consideration with respect to Mr. Reynolds’s bilateral hearing loss was not warranted, the Court will vacate the February 2010 Board decision and remand the matters for further development, if necessary, and readjudication consistent with this decision.The Board also remanded Mr. Reynolds’s claim for benefits for squamous cell carcinoma, including as secondary to jungle rot. Accordingly, that claim is not before the Court at this time. See 38 U.S.C. § 7266 (stating that the Court reviews only final decisions of the Board); see also Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000)(Board remand does not constitute a final decision that may be appealed (citing 38 C.F.R. § 20.1100(b) (1999))).1
I. FACTS
Mr. Reynolds served on active duty in the U.S. Army from July 1942 to December 1945. The record reveals that, at least as of February 2005, Mr. Reynolds was considered legally blind.In May 2005, a VA regional office granted Mr. Reynold’s claim for benefits for post-traumatic stress disorder and assigned a 10% disability rating effective May28, 2004, the date of his claim. The regional office deferred a decision on Mr. Reynold’s claim for benefits for bilateral hearing loss pending a VA examination.In June 2005, following a VA audiology examination, the regional office granted Mr. Reynold’s claim for benefits for bilateral hearing loss and assigned a noncompensable disabilityrating effective May 28, 2004.In October 2005, Mr. Reynolds filed a Notice of Disagreement with both of the regional office decisions. In support of his claim for benefits for bilateral hearing loss, he submitted a statement from the Blinded Veterans Association that advised VA that it would be rating “a BLINDED VETERAN to determine the extent of his . . . disability due to hearing loss.” Record (R.) at 530. The statement continued:[We] accentuated the term “blinded veteran” in order to emphasize the fact [that] the hearing loss for a blind person is more disabling than the same level of loss would be for a sighted individual. Why? Because the coping skills available to a sighted person are not available to one who is blinded[; s]uch as signing, speech (lip) reading facial expression, body language, close[d]-captioning[,] and other communicative ways to substitute for one’s inability to hear. Id.In August 2006, the regional office increased Mr. Reynold’s disability rating for post-traumatic stress disorder from 10% to 30%, effective May 28, 2004. R. at 402. The regional office determined that a review of Mr. Reynolds’s VA treatment records showed “that [he] may have understated [his] symptoms to the examiner.” R. at 404. In an August 2006 Statement of the Case,the regional office continued the noncompensable disability rating for bilateral hearing loss; Mr.Reynolds filed a Substantive Appeal of both claims.VA treatment records dated March and April 2008 reflect an increase in anger outbursts,intense focusonhis militaryexperiences despiteredirection,andcontinuedanimosityand irritabilitytoward his wife.2In May 2008, Mr. Reynolds advised VA that he believed his post-traumatic stress disorderhad worsened. In July 2009, he underwent a VA post-traumatic stress disorder examination. Theexaminer reviewed Mr. Reynolds’s claims file and medical records and conducted a mental statusexamination and clinical interview. Mr. Reynolds reported that he had been diagnosed withdementia and the examiner noted that his memorywas poor. The examiner stated that Mr. Reynolds”appears to suffer from significant cognitive deficits, including confusion, possible disorientationat times, and short-term memory problems. . . . His judgment appears to be at least moderatelyimpaired due to his cognitive difficulties.” R. at 144. He also stated that Mr. Reynolds’s memoryand concentration were poor and that “it is likely that this is attributable to his possible dementia asmuch as it is to post-traumatic stress disorder.” R. at 145. The examiner diagnosed Mr. Reynoldswith chronic, mild post-traumatic stress disorder as a result of military stressors, and a cognitivedisorder “not otherwise specified.” R. at 146. The examiner assigned a Global Assessment ofFunctioning score of 45 overall and 68 with respect to post-traumatic stress disorder.

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The examinerconcluded: “It appears that [Mr. Reynold’s] cognitive deficits (which could very well be dementia)take precedence over any other mental health related concerns. It also appears that these cognitivedeficits are overwhelming his symptoms of post traumatic stress disorder.” Id.Also in July 2009, Mr. Reynolds underwent a VA audiology examination. The examinerconducted puretone and speech testing and diagnosed Mr. Reynolds with mild to severesensorineural hearing loss in the right ear and mild to profound sensorineural hearing loss in the leftear. The examiner stated that Mr. Reynolds’s hearing loss would have “significant effects” onoccupational functioning. R. at 142.In a July 2009 decision, a VA decision review officer increased Mr. Reynolds’s disabilityrating for bilateral hearing loss from noncompensable to 20%, effective August 2006, when Mr.Reynolds indicated that his hearing had worsened. That decision also continued the 30% disabilityrating assigned for post-traumatic stress disorder. Mr. Reynolds’s appeal was certified to the Boardin August 2009, and he and his wife testified at a personal hearing before the Board in October 2009.2A Global Assessment of Functioning score represents “the clinician’s judgment of the individual’s overall levelof functioning” and is “useful in planning treatment and measuring its impact[ ] and in predicting outcome.” DIAGNOSTICAND STATISTICAL MANUAL OF MENTAL DISORDERS 30 (4th ed. 1994) [hereinafter DSM-IV]; see Richard v. Brown,9 Vet.App. 266, 267 (1996).

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In February 2010, the Board issued the decision on appeal. With respect to the issues raisedon appeal, the Board first determined that VA satisfied its duty to assist Mr. Reynolds and that noadditional medical examinations were necessary because there was sufficient evidence of recordfrom which to decide the claims. The Board then determined that the evidence of record warranteda disability rating of 50%, but no higher, for post-traumatic stress disorder. Finally, the Boarddetermined that referral for consideration of whether an extraschedular disability rating for bilateralhearing loss was not warranted because there was no evidence that Mr. Reynolds’s hearing loss “hasmarkedly interfered with his ability to work” beyond that already contemplated by the schedulardisability rating assigned. R. at 26.

II. ANALYSIS

A. Post-traumatic Stress Disorder1. July 2009 VA Post-traumatic Stress Disorder ExaminationOn appeal, Mr. Reynolds first argues that the Board erred in relying on the July 2009 VApost-traumatic stress disorder examination because that examination was inadequate. Specifically,he contends that the examination report is internally inconsistent, did not consider pertinentevidence, and did not sufficiently discuss the possible cognitive disorder identified.a. Internal InconsistencyMr. Reynolds first argues that the July2009 examination is inadequate because the examinerassigned a Global Assessment of Functioning score of 68 for his post-traumaticstress disorder whiledescribing symptoms of that condition severe enough to warrant the assignment of a lower score.As noted above, Global Assessment of Functioning scores represent the patient’spsychological, social, and occupational functioning. See Richard, 9 Vet.App. at 267. As the Boardstated, a score between 41 and 50 indicates serious symptoms or serious impairment in social,occupational, or school functioning; a score between 51 and 60 indicates moderate symptoms ormoderate difficulty in social, occupational, or school functioning; and a score between 61 and 70indicates mild symptoms or some difficulty in social, occupational, or school functioning. R. at 16.Here the July 2009 examiner assigned Mr. Reynolds a Global Assessment of Functioningscore of 68 with respect to his post-traumatic stress disorder, which would indicate mild symptoms

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or some difficulties in functioning in the various areas of his life. The examiner described Mr.Reynolds’s post-traumatic stress disorder symptoms as follows:[Mr. Reynolds] described symptoms of arousal consistent with post traumatic stressdisorder. His irritability is a primary factor for [him]. He gets angry quickly andeasily. His wife states that he pounds the table at times. When she stated this, Mr.Reynolds got quite frustrated quite quickly. He takes trazodone “every night” forsleep, and he states that he has no sleep difficulties with this medication. If he doesnot take the trazodone, he describes significant difficulties falling asleep and stayingasleep. His memory and concentration are poor (it is likely that this is attributableto his possible dementia as much as it is to post traumatic stress disorder). He deniedany symptoms of hypervigilance or an exaggerated startle response.Mr. Reynolds has ongoing reexperiencing symptoms related to negative events fromhis time in World War II. He has intrusive thoughts and memories of friends whowere killed during his 702 days of combat. He stated, “I can usually put it out of myhead,” but when he does think about these events, he is highly emotionally aroused.[He] refuses to talk about some of the events that occurred in World War II. Hestated he is easily triggered to these memories by television and movies.He endorsed symptoms of numbing and avoidance. [He] attempts to avoidenvironmental stressors related to World War II. For example, he does not talk aboutevents from World War II, and tries to put them out of his mind as much as possible.He tries to stay busy by going into his shop, listening to music, or doing yard workwhen he is bothered by these memories. His affect is restricted. The veteran isemotionally detached.R. at 145.The Court concludes that there is no basis on which to find that the examiner’s assignmentof a Global Assessment of Functioning score in this regard is anything other than his learned andreasoned opinion of Mr. Reynolds’s overall ability to function in light of his post-traumatic stressdisorder. Although Mr. Reynolds strenuouslyargues to the contrary, neither he nor his counsel haveshown they have the requisite medical training necessary to translate the symptoms observed by theexaminer into a correspondingGlobal Assessment of Functioning score. The Court, also lackingthenecessaryexpertise, will not attempt to second-guess the VA medical examiner. This portion of Mr.Reynolds’s argument is without merit.5b. Review of EvidenceMr. Reynolds next argues that the VA examiner “failed to adequately discuss” the existenceand severity of his post-traumatic stress disorder symptoms “apparent from other medical evidenceof record,” specifically “physical violence, paranoia, and circumstantial thought.” Appellant’s Brief(Br.) at 13. Mr. Reynolds’s argument is unpersuasive.Here, the examiner stated that he reviewed Mr. Reynolds’s claims file and medical records.Mr. Reynolds’s bare assertion that “[i]t is possible that the examiner’s review of the record was notthorough and/or accurate enough to become aware of these pertinent medical facts” is simply notenough on which to base a finding of inadequacy of the medical examination. The mere possibilitythat the examiner failed to review the entire medical file, without more, does nothing to rebut theconclusion reached by the examiner and relied upon by the Board. Although it is true that theexaminer did not list each and every symptom that Mr. Reynolds has exhibited over the years, thereis no requirement that a medical examiner comment on everyfavorable piece of evidence in a claimsfile. See Moore v. Nicholson, 21 Vet.App. 211, 218 (2007) (“The medical examiner provides adisability evaluation and the rating specialist interprets medical reports in order to match the ratingwith the disability.”), rev’d on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir.2009). Accordingly, Mr. Reynolds has not carried his burden of demonstrating error. See Hilkertv. West, 12 Vet.App. 145, 151 (1999) (holding that the appellant has the burden of demonstratingerror), aff’d, 232 F.3d 908 (Fed. Cir. 2000) (table).c. Cognitive DisorderFinally, with respect to the July 2009 VA examination, Mr. Reynolds asserts that theexaminer “did not provide clear findings regarding a possible cognitive disorder,” and “failed toopine whether this diagnosed condition was related to [his] service-connected [post-traumatic stressdisorder] or was otherwise caused or aggravated by his service.” Appellant’s Br. at 12. The Courtdisagrees.First, Mr. Reynolds offers no support for his argument that the VA examiner was requiredto opine on the etiology of the diagnosed cognitive disorder. The VA examination was provided todetermine theextent ofMr.Reynolds’salreadyservice-connectedpost-traumatic stress disorder, andthe examiner provided a lengthy examination report that did just that.

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Second, the examiner remarked on Mr. Reynolds’s apparent cognitive disorder several timesand determined that it was, in fact, more responsible for Mr. Reynolds’s current state than hisservice-connectedpost-traumaticstressdisorder: “Itappearsthat[Mr. Reynolds’s] cognitivedeficits(which could verywell be dementia) take precedence over anyother mental health related concerns.It alsoappearsthatthesecognitive deficits areoverwhelminghissymptomsofpost[-]traumaticstressdisorder.” R. at 146.To the extent that Mr. Reynolds argued that the examiner provided an unclear diagnosis ofthe condition–that is, whether it is dementia or some other condition–he has not explained how thefailure to make such a distinction has harmed him. See Conway v. Principi, 353 F.3d 1369, 1374(Fed. Cir. 2004); see also 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due account of therule of prejudicial error”). To the extent that Mr. Reynolds believes that his cognitive disorder maybe (1) related directly to service, (2) caused by his post-traumatic stress disorder, or (3) aggravatinghis service-connected post-traumatic stress disorder, he remains free to request that VA adjudicatesuch a claim. See DiCarlo v. Nicholson, 20 Vet.App. 52 (2006).In light of the above discussion, the Court concludes that the July 2009 VA post-traumaticstress disorder examination was adequate for rating purposes and, accordingly, the Board did not errin relying on it. See Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007); Ardison v. Brown, 6 Vet.App.405, 407 (1994).2. Reasons or BasesMr. Reynolds next contends that the Board provided inadequate reasons or bases for itsdetermination that a disability rating in excess of 50% for post-traumatic stress disorder was notwarranted. The Court agrees.The Board summarized the relevant law, including the rating criteria for 50% and 70%disabilityratings forpost-traumaticstressdisorder. The Board thenconsideredthemedicalevidenceof record, from September 2004 to October 2009, before reaching a decision. The Board stated:The symptoms listed in the Rating Schedule include flattened affect, panic attacks,difficulty in understanding complex commands, impairment of short-term andlong-term memory, and impaired judgment. See 38 C.F.R. § 4.130, [DiagnosticCode] 9411. As the July 2009 VA compensation examiner explained, and as isreflected in[Mr. Reynolds’s] personal statements–including his hearing testimony,and his VA treatment records[–]he exhibits some form of these symptoms.

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Additionally, his statements to the July 2009 VA examiner and the examiner’spersonal observations during that mental status evaluation affirm [that Mr.Reynolds’s] [post-traumatic stress disorder] causes occupational and socialimpairment with reduced reliability and productivity.Accordingly, the symptoms described in both the VA treatment records and VAcompensation examination reports arehighlyprobative,competentmedicalevidencethat[Mr. Reynold’s]mentalhealthstatemorecloselyapproximates thecriteriaforthehigher 50 percent disability rating, though, again, no greater. DSM-IV at 46-47. See38 C.F.R. § 4.130. He has not shown a greater severity of [post-traumatic stressdisorder] symptoms at any time since he was granted service connection, so theBoard cannot “stage” this rating. Fenderson [v.West], 12 Vet. App. [119,] 125[-]26[(1999)].R. at 20-21.The Board’s discussion fails to analyze the facts of Mr. Reynolds’s case in relation to thecriteria contained in the rating schedule. As the Board correctly noted, a 50% disability rating iswarranted where there is[o]ccupational and social impairment with reduced reliability and productivity dueto such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotypedspeech; panic attacks more than once a week; difficulty in understanding complexcommands; impairment of short[-] and long-term memory (e.g., retention of onlyhighly learned material, forgetting to complete tasks); impaired judgment; impairedabstract thinking;disturbances ofmotivation andmood; difficultyin establishingandmaintaining effective work and social relationships[.]38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. A 70% disability rating iswarranted where there is[o]ccupational 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; speechintermittently illogical, obscure, or irrelevant; near-continuous panic or depressionaffecting 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 inadapting to stressful circumstances (including work or a worklike setting); inabilityto establish and maintain effective relationships[.]Id.

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Here, as Mr. Reynolds points out, the record is replete with evidence of deficiencies inthinking, family relations, and mood; impaired impulse control, including episodes of violenceagainst his wife; and an inability to establish and maintain effective relationships. Although theBoard noted some of these symptoms in its review of the medical evidence, it did not analyze themin any significant way so as to permit Mr. Reynolds and the Court to understand how it determinedthe properdisabilityrating. See Abernathy v.Principi, 3 Vet.App. 461, 465 (1992) (vacatinga Boarddecision that “merely listed evidence that it had considered in deciding [the] claim under theEVIDENCE section in its decision without discussing most of that evidence”); see also 38 U.S.C.§ 7104(d)(1) (requiring the Board to provide an adequate statement of reasons or bases for itsdecision); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990).Although the Court also acknowledges that assigning a disability rating for a mentalcondition is not simply a matter of matching the symptoms of the rating criteria against thoseexhibited by the claimant, see Mauerhan v. Principi, 16 Vet.App. 436 (2002); 38 C.F.R. § 4.126(2011), here there is evidence that appear to satisfy several criteria for a 70% disability rating. TheBoard simply did not address that evidence in the context of the rating criteria and explain why,when viewed as a whole, Mr. Reynolds’s disability picture more nearly approximates a 50%disabilityrating. See 38 C.F.R. § 4.7 (2011).

Accordingly, remand is necessary. See Tucker v. West,11 Vet.App. 369, 374 (1998).On remand, Mr. Reynolds is free to submit additional evidence and argument in accordancewith Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v.Principi, 16 Vet.App. 529, 534 (2002). Further, “[a] remand is meant to entail a critical examinationof the justification for the decision” by the Board. 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).B. Bilateral Hearing LossFinally,Mr.Reynoldassertsthat theBoard failed to provideanadequatestatement ofreasonsor bases for its determination that referral for extraschedular consideration for bilateral hearing losswas not warranted. The Secretary concedes that remand is warranted for this claim, and the Courtagrees.9First, the Board’s discussion on this point is perfunctoryand lacking in analysis. Aside fromcitations to relevant law, the entirety of the Board’s discussion is as follows:There is no evidence of exceptional or unusual circumstances to warrant referringthis case for extra-schedular consideration. The Board finds no evidence that [Mr.Reynolds’s] . . . bilateral hearing loss disability has markedly interfered with hisability to work, meaning above and beyond that contemplated by the currentschedular ratings for these disabilities….Furthermore, there is no evidence of anyother exceptional or unusual circumstances,such as frequent hospitalizations, suggesting [that] [Mr. Reynolds] is not adequatelycompensated for these disabilities bythe regular rating schedule. His evaluation andtreatment has been primarily on an outpatient basis, not as an inpatient.R. at 26 (citations omitted). The first paragraph of this discussion is so devoid of facts as to begeneric, and the second paragraph appears to refer solely to Mr. Reynolds’s treatment for post-traumatic stress disorder, rather than for bilateral hearing loss. This discussion simply does notenable Mr. Reynolds to understand the precise basis for the Board’s decision, nor does it facilitatereview in this Court. See Gilbert, 1 Vet.App. at 57.Second, as the Secretary concedes, the Board’s “analysis,” such as it is, omits any discussionoftheJuly2009VA audiology examiner’s statement thatMr.Reynolds’shearingloss has “significant effects” on his occupational functioning. R. at 142. Although this statement by the examiner ispresented without further explanation, it is the duty of the Board to seek clarification when an examination report lacks sufficient detail. 38 C.F.R. § 4.2 (2011).Finally, as Mr. Reynolds argues, the Board failed to consider the potentially exacerbatingeffects of Mr. Reynolds’s non-service-connected legal blindness on his service-connected bilateral hearing loss. The Secretary asserts that Mr. Reynolds’s reliance on Johnston v. Brown, 10 Vet.App.80 (1997), is misplaced, because there, “the appellant asserted that his life in a wheelchair–acircumstancenot attributedtoaservice-connectedcondition–exacerbatedhisservice-connectedchestand wrist conditions.” Secretary’s Br. at 12. The Court fails to see how, as the Secretaryargues, Mr.Reynolds’s situation is distinguishable. In fact, it appears to be precisely the same: Mr. Reynoldscontends thathisblindness–a circumstancenotattributedtoaservice-connectedcondition–exacerbateshisservice-connectedhearingloss. InJohnston,theCourt heldthattheBoardwas required to consider the exacerbating effects of the appellant’s wheelchair-bound existence on10his service-connected conditions. 10 Vet.App. at 86 (“At a minimum, the reasons-or-basesrequirements mandate that the [Board] address the effect of the appellant’s wheelchair-based life onhis service-connected conditions.”). The same is true in this case. Given the evidence of record,specifically, the statement from the Blinded Veterans Association that blind persons are moreaffected by hearing loss than sighted persons due to the absence of visual cues and copingmechanisms, the Board should have expressly addressed this issue when it considered the questionof referral for extraschedular consideration.In light of this discussion, the Court will vacate that portion of the Board decision that deniedentitlement to a disability rating in excess of 20% for bilateral hearing loss and remand the matterfor further development, if necessary, and readjudication consistent with this decision. As noted above, Mr. Reynolds may submit additional evidence and argument on remand. Kay, 16 Vet.App.at 534; Kutscherousky, 12 Vet.App. at 372-73.

III. CONCLUSION
Upon consideration of the foregoing, the February 11, 2010, Board decision is VACATED and the matters are REMANDED for further development, if necessary, and readjudication consistent with this decision.

DATED: August 15, 2011Copies to:Glenn R. Bergmann, Esq.VA General Counsel (027)11

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1 Comment »

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    Comment by lansing disability lawyer — July 21, 2014 @ 10:47 pm


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