Veteranclaims’s Blog

April 8, 2013

Vasquez-Claudio v. Shinseki, No. 2012-7114(Decided: April 8, 2013); § 4.126; § 4.130

Filed under: Uncategorized — veteranclaims @ 10:47 pm

Excerpt from decision below:

“Reading §§ 4.126 and 4.130 together, it is evident
that the “frequency, severity, and duration” of a veteran’s
symptoms must play an important role in determining his
disability level.”
===========================
“When the Veterans Court considered this question below, it resolved that “[t]he issue before the Board was not how many ‘areas’ Mr. Vazquez-Claudio has demonstrated deficiencies in but, rather, ‘the frequency, severity, and duration of the psychiatric symptoms, the length of remissions, and Mr. Vazquez-Claudio’s capacity for adjustment during periods of remission.’” Veterans Court Op. at 3
(citing § 4.126(a)).”
============================
“In sum, to the extent the Veterans Court’s opinion could be read to state that “deficiencies in most areas” is irrelevant to assessment of entitlement to a 70 percent disability rating, we agree with Mr. Vazquez-Claudio that
GENARO 12 VAZQUEZ-CLAUDIO v. SHINSEKI

such an interpretation misreads the regulation.”
============================

United States Court of Appeals for the Federal Circuit
______________________
GENARO VAZQUEZ-CLAUDIO,
Claimant-Appellant,
v.
Eric K. Shinseki,
SECRETARY OF VETERANS AFFAIRS,
Respondent-Appellee.
______________________
2012-7114
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-3339, Judge William P.
Greene, Jr.
______________________
Decided: April 8, 2013
______________________
ELIZABETH A. LAUGHTON, Finnegan, Henderson,
Farabow, Garrett & Dunner, LLP, of Washington, DC,
argued for claimant-appellant. With her on the brief were
RONALD L. SMITH and LILLIAN M. ROBINSON.
ERIC P. BRUSKIN, Trial Attorney, Commercial Litigation
Branch, United States Department of Justice, of
Washington, DC, argued for respondent-appellee. With
him on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
GENARO 2 VAZQUEZ-CLAUDIO v. SHINSEKI

SCOTT D. AUSTIN, Assistant Director. Of counsel on the
brief were MICHAEL J. TIMINSKI, Deputy Assistant General
Counsel, and MARTIE ADELMAN, Attorney, United
States Department of Veterans Affairs, of Washington,
DC.
______________________
Before MOORE, CLEVENGER, and O’MALLEY, Circuit Judges.
CLEVENGER, Circuit Judge.
Genaro Vazquez-Claudio appeals a decision by the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) which affirmed a denial by the Board
of Veterans’ Appeals (“Board”) of Vazquez-Claudio’s claim
for an initial disability rating greater than 50 percent for
his service-connected post-traumatic stress disorder
(“PTSD”). Genaro Vazquez-Claudio v. Eric K. Shinseki,
Secretary of Veterans Affairs, No. 10-3339 (Vet. App. Mar.
8, 2012) (“Veterans Court Op.”) (affirming Board decision
in In the Appeal of Genaro Vazquez-Claudio, No. 05-40
257 (B.V.A. Jun. 18, 2010) (“Board Op.”)). For the reasons
set forth below, we affirm.

I
Mr. Vazquez-Claudio is a Vietnam veteran who
served on active duty in the U.S. Army from 1968 until
1970. Following his service, Vazquez-Claudio filed a
claim with the Department of Veterans Affairs (“VA”)
seeking disability compensation for PTSD. On February
24, 2005, after finding that his PTSD was serviceconnected,
the VA granted his request for benefits with an
effective date of June 13, 1994.
GENARO VAZQUEZ-C L A U D I O v . S H I N S E K I 3

The VA rated Mr. Vazquez-Claudio’s PTSD as 50 percent
disabling,1 a rating assigned to veterans who demonstrate
the following level of PTSD-related impairment and
symptoms:
[o]ccupational 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
38 C.F.R. § 4.130.

Mr. Vazquez-Claudio appealed this decision to the
Board arguing entitlement to a 70 percent rating, which
is assigned to veterans who suffer from more severe
PTSD-related impairment and symptoms:
[o]ccupational and social impairment, with deficiencies
in most areas, such as work, school, family
relations, judgment, thinking, or mood, due to
1 Once a veteran has been diagnosed with serviceconnected
PTSD, the VA reviews his medical history to
determine how badly the disorder has disrupted the
veteran’s social and occupational functioning. The level of
disability is rated according to a General Rating Formula
for Mental Disorders, codified at 38 C.F.R. § 4.130 (“General
Rating Formula”), which provides for ratings of zero,
10, 30, 50, 70, or 100 percent. The VA compensates
veterans beginning at 10 percent disability, and compensation
increases at each level.
GENARO 4 VAZQUEZ-CLAUDIO v. SHINSEKI

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.
The Board undertook an extensive evaluation of Mr.
Vazquez-Claudio’s psychiatric history based upon numerous
VA examination reports. Board Op. at 6–10. The
reports showed that Mr. Vazquez-Claudio suffered from
significant PTSD-related symptoms, such as anxiety,
depression, nightmares, discomfort in large crowds, a
constricted affect, and difficulty in social and work settings.
Id. Moreover, the Board noted that Mr. Vazquez-
Claudio had been unable to work since 1994, when he left
his job as a police officer as the result of an emotional
breakdown following a prisoner’s suicide. Id. at 7. Nevertheless,
the Board found that other than occasional suicidal
ideation, social isolation, and some difficulty
adapting to stressful situations, none of his symptoms
corresponded to impairment greater than 50 percent. Id.
at 10–11. As such, the Board held that his occupational
and social impairment most nearly approximated the
“reduced reliability and productivity contemplated by the
assigned rating of 50 percent.” Id. at 10.
Mr. Vazquez-Claudio then appealed to the Veterans
Court, where he argued that the Board had wrongly
denied his claim because he lacked certain symptoms
associated with a 70 percent disability rating, rather than
GENARO VAZQUEZ-C L A U D I O v . S H I N S E K I 5

evaluating whether the symptoms he actually did present
have caused deficiencies in “most areas,” such as work,
school, family relations, judgment, thinking, or mood.
Veterans Court Op. at 3. The Veterans Court disagreed,
stating that “[t]he issue before the Board was not how
many ‘areas’ Mr. Vazquez-Claudio has demonstrated
deficiencies in but, rather, ‘the frequency, severity, and
duration of the psychiatric symptoms, the length of remissions,
and Mr. Vazquez-Claudio’s capacity for adjustment
during periods of remission.’” Id. (citing
38 C.F.R. § 4.126(a)). Accordingly, the Veterans Court
affirmed the Board’s denial of a 70 percent disability
rating.

II
In the present appeal, Mr. Vazquez-Claudio attacks
both the Board’s decision and the Veterans Court’s affirmance
as inconsistent with the controlling regulation. In
particular, he argues that because 38 C.F.R. § 4.130
states that PTSD is 70 percent disabling if it causes
“[o]ccupational and social impairment, with deficiencies in
most areas, such as work, school, family relations, judgment,
thinking, or mood,” a veteran should be entitled to
a 70 percent rating if his symptoms cause impairment in
“most” of those areas, regardless of what his symptoms
actually are. He further believes that, if the Board had
applied this interpretation, it would have granted him a
70 percent disability rating because his symptoms have
caused impairment in at least five of the six “areas”
recited in the regulation.
The government contends that we lack jurisdiction to
consider this question under 38 U.S.C. § 7292(d)(2),
alleging that Mr. Vazquez-Claudio merely seeks review of
the VA’s application of the regulation to the facts in his
case. We disagree. As discussed below, Mr. Vazquez-
Claudio’s appeal raises two separate questions of regulatory
interpretation, and we review these questions de
GENARO 6 VAZQUEZ-CLAUDIO v. SHINSEKI

novo. 38 U.S.C. § 7292; Hodge v. West, 155 F.3d 1356,
1359 (Fed. Cir. 1998) (The “proper interpretation of a
regulation” is a “purely legal question”).
A
The first regulatory interpretation issue raised by this
appeal is whether a 70 percent disability rating is restricted
by its associated list of symptoms. The dispute
arises because the list of symptoms at the 70 percent level
is preceded by “such as,” and is therefore non-exhaustive.
The question is whether this permits a veteran to rely
upon any and all symptoms he may have, rather than
symptoms of like kind to those listed in the regulation, as
evidence of impairment at the 70 percent level.
The particular facts of Mr. Vazquez-Claudio’s case illuminate
the problem. His symptoms are generally less
severe than those associated with a 70 percent rating, but
are severe enough to at least mildly impair his work,
family relations, judgment, thinking, and mood. Therefore,
his claim for increased benefits certainly fails if the
rating determination hinges upon the existence or absence
of certain symptoms, but may succeed if the symptoms
are secondary to a finding of impairment in “most” of
the listed “areas.”
In construing regulatory language, we must read the
disputed language in the context of the entire regulation
as well as other related regulatory sections in order to
determine the language’s plain meaning. Lengerich v.
Dep’t of Interior, 454 F.3d 1367, 1370 (Fed. Cir. 2006)
(citing Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1577–78
(Fed. Cir. 1995) (en banc)). We therefore consider the
narrow definition of a 70 percent disability in the context
of the General Rating Formula’s broader regulatory
structure.
The General Rating Formula outlines six disability
levels from zero to 100 percent, each defined using a
GENARO VAZQUEZ-C L A U D I O v . S H I N S E K I 7

similar format. For instance, all five of the non-zero
disability ratings in the General Rating Formula require
some degree of occupational and social impairment.2 All
non-zero disability levels are also associated with objectively-
observable symptomatology, and the veteran’s
impairment must be “due to” those symptoms. Finally,
and most importantly for this case, as the ratings increase
from 10 to 100 percent, the associated symptoms become
noticeably more severe.
For example, at the low end, PTSD is 10 percent disabling
if it causes impairment due to symptoms so “mild or
transient” that they can be controlled with medication, or
that only appear during periods of significant stress.
38 C.F.R. § 4.130. At the high end, PTSD is 100 percent
disabling if it causes “total occupational and social impairment”
due to extremely severe symptoms such as
persistent hallucinations, an inability to maintain minimal
personal hygiene, or gross speech and thought impairment.
Id.
2 A zero percent disability rating applies when
PTSD has been diagnosed, but it does not interfere with
social or occupational functioning. 38 C.F.R. § 4.130. A
10 percent disability exists when “mild or transient
symptoms” or “symptoms controlled by continuous medication”
contribute to some “occupational and social impairment.”
Id. A 30 percent disability is defined by
“[o]ccupational and social impairment with occasional
decrease in work efficiency and intermittent periods of
inability to perform occupational tasks,” whereas a 50
disability is defined by “[o]ccupational and social impairment
with reduced reliability and productivity. . . .” Id. A
70 percent disability causes impairment in “most areas” of
occupational and social functioning, and a 100 percent
disability causes “total” impairment. Id.
GENARO 8 VAZQUEZ-CLAUDIO v. SHINSEKI

The intermediate disability levels are also distinguished
from one another by the frequency, severity, and
duration of their associated symptoms. For instance, if a
veteran suffers panic attacks “weekly or less often,” this
indicates 30 percent disability. Id. If those panic attacks
occur “more than once a week,” this indicates a 50 percent
disability. Id. If the panic reaches “near-continuous”
levels, then the veteran may be 70 percent impaired. Id.
By the same token, mild memory loss (such as forgetting
names or recent events) indicates a 30 percent disability,
whereas more severe memory loss (such as the inability to
retain all but the most highly-learned material) indicates
50 percent disability, and forgetting one’s own name
indicates a 100 percent disability. Id.
In fact, most of the General Rating Formula is dedicated
to associating certain symptoms with certain disability
ratings, and to this end, the regulation’s plain
language highlights its symptom-driven nature. Mr.
Vazquez-Claudio’s proposed interpretation, meanwhile,
would nullify this clear structure by reading relevant
symptomatology almost entirely out of the regulation at
the 70 percent level. Under his construction, a veteran
whose symptoms correspond exactly to a 30 percent
disability could attain a 70 percent rating simply by
demonstrating that those symptoms have adversely
impacted his work, school, family relations, judgment,
thinking, and mood. This interpretation runs contrary to
the regulation’s plain language.
This understanding is reinforced by 38 C.F.R. § 4.126,
a companion section specifically referenced in the preface
to § 4.130. See 38 C.F.R. § 4.130; Sellers v. Principi, 372
F.3d 1318, 1326 (Fed. Cir. 2004) (identifying
38 C.F.R. §§ 4.125–4.130 as the implementing regulations
for mental disorders). Section 4.126(a) states that
“[w]hen evaluating a mental disorder, the rating agency
shall consider the frequency, severity, and duration of
psychiatric symptoms, the length of remissions, and the
GENARO VAZQUEZ-C L A U D I O v . S H I N S E K I 9

veteran’s capacity for adjustment during periods of remission.”
Reading §§ 4.126 and 4.130 together, it is evident
that the “frequency, severity, and duration” of a veteran’s
symptoms must play an important role in determining his
disability level.

The regulatory history of section § 4.130 further supports
this analysis. When the VA first proposed the
current version of the regulations in 1995, its stated
intent was to replace a system that relied in part upon
subjective determinations with one that “rel[ies] on specific
signs and symptoms.” 60 Fed. Reg. 54,825, 54,826 (Oct.
26, 1995) (notice of proposed rulemaking). The VA reiterated
this intent when it announced the final rule, saying
that “[i]n essence, we have restructured the evaluation
criteria so that it is the severity of the effects of the symptoms
as described by the examiner that determines the
rating.” 61 Fed. Reg. 52,695, 52,696-97 (Oct. 8, 1996)
(final rule notice). The VA thus intended the General
Rating Formula to provide a regulatory framework for
placing veterans on the disability spectrum based upon
their objectively observable symptoms.
In view of the regulation’s plain language, companion
sections, and history, we reject Mr. Vazquez-Claudio’s
regulatory construction, which would render symptomatology
a secondary consideration at the 70 percent
level. We hold instead that a veteran may only qualify for
a given disability rating under § 4.130 by demonstrating
the particular symptoms associated with that percentage,
or others of similar severity, frequency, and duration.
B
The second regulatory interpretation question presented
by this appeal is whether the fact-finder must
make findings regarding the veteran’s occupational and
social impairment in “most areas” when evaluating entitlement
to a 70 percent disability rating.
GENARO 10 VAZQUEZ-CLAUDIO v. SHINSEKI

When the Veterans Court considered this question below,
it resolved that “[t]he issue before the Board was not
how many ‘areas’ Mr. Vazquez-Claudio has demonstrated
deficiencies in but, rather, ‘the frequency, severity, and
duration of the psychiatric symptoms, the length of remissions,
and Mr. Vazquez-Claudio’s capacity for adjustment
during periods of remission.’” Veterans Court Op. at 3
(citing § 4.126(a)).
Mr. Vazquez-Claudio disagrees with
this articulation of the law. He believes that under the
plain language of § 4.130, the “areas” of his impairment
were clearly at issue before the Board, and were in fact
the ultimate issue. Accordingly, he faults the Veterans
Court for making an erroneous legal statement, and also
the Board for failing to find which “areas” were relevant
to his case and whether he was impaired in “most” of
those areas.
For the reasons outlined in the previous section, the
Veterans Court was correct insofar as it held that symptomatology
should be the fact-finder’s primary focus when
deciding entitlement to a given disability rating. However,
in the context of a 70 percent rating, § 4.130 requires
not only the presence of certain symptoms but also that
those symptoms have caused occupational and social
impairment in most of the referenced areas. Therefore, to
the extent that the Veterans Court implied that the listed
“areas” were irrelevant to the 70 percent disability determination,
this was error. Although the veteran’s symptomatology
is the primary consideration, the regulation
also requires an ultimate factual conclusion as to the
veteran’s level of impairment in “most areas.”
This misstatement of the law may be harmless error if
the Board correctly applied § 4.130. See Menegassi v.
Shinseki, 638 F.3d 1379, 1382-83 (Fed. Cir. 2011). We
therefore consider whether the Board’s findings support a
denial of benefits under the proper regulatory construction.
GENARO VAZQUEZ-C L A U D I O v . S H I N S E K I 11

Regarding symptomatology, the Board made the undisputed
finding that Mr. Vazquez-Claudio exhibited few
symptoms of like kind to those associated with a 70
percent disability, apart from occasional suicidal ideation,
social isolation, and some difficulty adapting to stressful
situations. Board Op. at 10.
The Board also made findings as to how those symptoms
impacted the occupational and social “areas” listed
in the regulation. For instance, the Board found that Mr.
Vazquez-Claudio’s symptoms had not negatively impacted
his relationships with his wife, four children, and friends,
and thus found that “it cannot be said that he is unable to
establish and maintain effective relationships.” Id.
Furthermore, despite noting that he had “experienced
some emotional and mental health difficulties during his
last job as a police officer,” the VA examiners had only
described his work impairment as “moderate,” “decreased,”
or “marked.” Id.
Based upon those and other findings, the Board ultimately
concluded that the evidence was “not consistent
with occupational and social impairment with deficiencies
in most areas, such as work, school, family relations,
judgment, thinking or mood, which would warrant a 70
percent rating.” Board Op. at 10. Although we
acknowledge that the Board might have elaborated in
more detail why Mr. Vazquez-Claudio had not suffered
impairment in certain of the referenced areas, we cannot
say that it failed to make the necessary findings to support
its conclusion that Mr. Vazquez-Claudio’s symptoms
were not indicative of occupational and social impairment
with deficiencies in most areas to which the 70 percent
disability requirement refers.
In sum, to the extent the Veterans Court’s opinion
could be read to state that “deficiencies in most areas” is
irrelevant to assessment of entitlement to a 70 percent
disability rating, we agree with Mr. Vazquez-Claudio that

GENARO 12 VAZQUEZ-CLAUDIO v. SHINSEKI

such an interpretation misreads the regulation. Entitlement
to a 70 percent disability rating requires sufficient
symptoms of the kind listed in the 70 percent requirements,
or others of similar severity, frequency or duration,
that cause occupational and social impairment with
deficiencies in most areas such as those enumerated in
the regulation. The 70 percent disability rating regulation
contemplates initial assessment of the symptoms
displayed by the veteran, and if they are of the kind
enumerated in the regulation, an assessment of whether
those symptoms result in occupational and social impairment
with deficiencies in most areas. In this case, the
Board did not ignore the issue of whether Mr. Vazquez-
Claudio’s symptoms qualified under the 70 percent rating
requirements (most of his symptoms did not), nor did it
fail to consider the level of impairment those symptoms
caused in the relevant areas. Therefore, because the
Board correctly applied the 70 percent rating regulation,
the misreading of the regulation by the Veterans Court is
harmless error, and we affirm.

CONCLUSION
For the reasons set forth above, we affirm the Veterans
Court’s decision that Mr. Vazquez-Claudio is entitled
to a disability rating no greater than 50 percent.
AFFIRMED
COSTS
No costs.

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