Veteranclaims’s Blog

November 14, 2013

Single Judge Application; VA Fast Letter 13-13; TDIU Questionnaires

Excerpt from decision below:

VA Fast Letter 13-13 directs examiners “developing a claim involving a request for TDIU” to “request condition-specific DBQs [disability benefits questionnaires] for the issue(s) alleged to caused unemployability (e.g., joints, mental, peripheral nerves, etc.)” and “comment on…the functional impairment caused solely by the service-connected disabilities.” VA FAST LETTER 13-13 at 5-6 (June 17, 2013) (emphasis added). Any information recorded in the DBQs for Mr. Harris’s low back disability and PTSD and the examiner’s assessment of the veteran’s functional impairment caused by each disability will further illuminate his disability
14

picture and may provide evidence pertinent to the extraschedular inquiry.
Because the TDIU development ordered by the Board will likely produce evidence relevant to extraschedular evaluation for Mr. Harris’s service-connected low back disability and PTSD, see Thun, supra; 38 C.F.R. § 3.321(b)(1), the Court concludes that the Board erred in not remanding his claims for increased evaluations for those conditions back to the RO along with TDIU, see Brambley, supra.”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-3065
ALPHONSO HARRIS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before BARTLEY, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

BARTLEY, Judge: Veteran Alphonso Harris appeals, through counsel, a September 25,
2012, Board of Veterans’ Appeals (Board) decision denying (1) an increased disability evaluation
in excess of 20% prior to January 18, 2011, and in excess of 40% thereafter, for service-connected
residuals of a low back injury with spondylosis; and (2) an increased disability evaluation in excess
of 50% prior to January 25, 2011, and in excess of 70% thereafter, for service-connected posttraumatic
stress disorder (PTSD). Record (R.) at 3-29.1 This appeal is timely and the Court has
jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Singlejudge
disposition is appropriate in this case. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
For the reasons that follow, the Court will set aside the portions of the September 2012 Board
decision on appeal, and remand the appealed matter for readjudication consistent with this decision.
1The Board also remanded the issue of entitlement to a total disability rating based on individual
unemployability (TDIU). R. at 28-29. Because a remand is not a final decision of the Board subject to judicial review,
the Court does not have jurisdiction to consider that issue at this time. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed.
Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam); 38 C.F.R. § 20.1100(b) (2013).
I. FACTS
Mr. Harris served on active duty in the U.S. Army from January 1970 to January 1973 and
from September 1973 to September 1990. R. at 208, 1926. In March 1992, a VA regional office
(RO) awarded service connection for residuals of a low back injury with spondylosis, evaluated as
20% disabling, effective October 1, 1990. R. at 1766-67. In June 2004, the RO awarded service
connection for PTSD, evaluated as 50% disabling, effective October 21, 2003. R. at 1372-83. He
is also service connected for seven other disabilities that are not the subject of this appeal. See R.
at 54-55.
In July 2005, Mr. Harris was admitted to a VA mental health facility after having homicidal
thoughts about his work supervisor. R. at 1273-75. The veteran reported that, after his supervisor
confronted him about his job performance, he “left her office and loaded his gun.” R. at 1273.
Before taking any further action, Mr. Harris “discussed his feeling[s] with [a] coworker and friends
[and] decided to seek help.” Id.; see also R. at 797 (veteran’s January 2009 statement that his
supervisor “used my mental condition or treatment for PTSD to harass and lie to the Chief Operating
Officer forcing me to go to my vehicle[,] retrieve my 45[,] and walk back in and kill her”), 1269
(July 2005 VA psychiatric treatment note: “Mr. Harris said his anger built up until he became so
angry he was going to kill [his supervisor]. He had loaded his weapon and was very close to
shooting her, but he did not. He thought about his family[] and that stopped him.”). Upon mental
status examination, a VA psychiatrist noted delusional and homicidal ideation and assigned a Global
Assessment of Functioning (GAF) score of 30.2 R. at 1274. Mr. Harris was discharged from the
facility after three days of treatment when he “no longer ha[d] any thoughts of harming [him]self or
others.” R. at 1265. His GAF score at discharge was 65.3 Id.
2The GAF scale is “a hypothetical continuum of mental health-illness” based on the degree of a patient’s
“psychological, social, and occupational functioning.” DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS
34 (4th ed. text revision 2000) (DSM–IV–TR). A GAF score between 21 and 30 reflects “[b]ehavior . . . considerably
influenced by delusions or hallucinations OR serious impairment in communication or judgment (e.g., sometimes
incoherent, acts grossly inappropriately, suicidal preoccupation) OR inability to function in almost all areas (e.g., stays
in bed all day; no job, home, or friends).” Id. (emphasis omitted).
3A GAF score between 61 and 70 denotes “[s]ome mild symptoms (e.g., depressed mood and mild insomnia)
OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household),
but generally functioning pretty well, has some meaningful interpersonal relationships.” DSM–IV–TR at 34 (emphasis
omitted).
2
In August 2005, Mr. Harris filed an application for TDIU, which the RO construed to include
claims for increased evaluations for his service-connected low back disability and PTSD. R. at
1352-53. In January 2006, he submitted a statement in support of claim asserting that his “mental
and physical condition had worsened” and that his various medications caused memory loss and his
“mind [to] go[] blank at times,” which “prevent[s him] from holding a job.” R. at 1155. Later that
month, he reported that he suffered from back pain “almost every[ ]day”that “interferes with [his]
ability to work.” R. at 1152. He also expressed concern that he would be “discriminated against
because of [his] PTSD diagnosis” and that he “might be a danger to [his] supervisor or coworkers.”
Id. The next month, the veteran sought treatment with VA for back pain that was aggravated by
walking, standing, and prolonged sitting, and relieved by rest, medication, and repositioning. R. at
1231.
In April 2006, Mr. Harris underwent a VA spine examination, at which time he complained
of “constant” radiating and aching back pain treated with medications that affect his memory and
make him “very drowsy” and nauseous. R. at 1115-16. He also reported monthly flareups of his
back pain, usually lasting two to three days but sometimes as long as three weeks, which are
precipitated by lifting objects or “riding on a bumpy bus.” R. at 1116. On physical examination,
Mr. Harris had forward flexion of the thoracolumbar spine to 55 degrees, extension to 20 degrees,
left and right lateral flexion to 10 degrees, and left and right lateral rotation to 25 degrees, with
additional limitation of motion in all planes as a result of moderate to severe pain. R. at 1118. His
ranges of motion were further limited on repetition by fatigue and weakness. Id. The examiner
diagnosed degenerative disc disease (DDD) of the lumbosacral spine, intervertebral disk syndrome
(IVDS), and limited range of motion of the lumbar spine. R. at 1119.
Later that month, Mr. Harris applied for disability benefits from the Social Security
Administration (SSA), indicating that the medication he takes for his low back disability and PTSD
impairs his concentration and limits his activities of daily living. See R. at 944, 949, 951. In May
2006, he underwent a medical examination in connection with his SSA claim, and the examiner
opined that the veteran’s low back disability impaired his ability to stand, walk, and sit for prolonged
periods and caused postural limitations, all “secondary to decreased range of motion.” R. at 344-45.
3
Mr. Harris was ultimately awarded SSA benefits for his low back disability and PTSD in July 2006.
R. at 12, 895.
In the meantime, in May 2006, Mr. Harris underwent a VA PTSD examination. R. at 1104-
14. The examiner noted that the veteran was attending technical school, had an “okay” relationship
with three of his children and a “very good” relationship with his fourth child, was dating a woman,
had friends, and engaged in various hobbies. R. at 1105. The examiner acknowledged Mr. Harris’s
hospitalization following the altercation with his supervisor and recorded his complaints of daily
intrusive memories, nightmares with insomnia, irritability, avoidant behavior, and hypervigilance
in crowds. R. at 1106-08. On mental status examination, Mr. Harris had a normal affect and good
mood, his attention was intact, he was oriented in all spheres, his thought processes and content were
unremarkable, and his memory was normal. R. at 1108-10. There was no evidence of delusions,
panic attacks, obsessional or ritualistic behavior, or suicidal thoughts, but, when in crowds, he did
have occasional homicidal thoughts directed at “no one in particular.” R. at 1109-10. The examiner
noted moderate sleep impairment that interfered with his daily activities, mild apprehension and
irritability, and fair impulse control with no episodes of violence. Id. Based on the foregoing, the
examiner diagnosed chronic PTSD and assigned a GAF score of 65. R. at 1111. He opined that,
although the veteran’s current unemployment was “not directly related” to PTSD, that condition
caused decreased efficiency, productivity, and reliability, and occasionally impaired his work
relationships and ability to perform work tasks. R. at 1112-13.
Relying largely on the April and May 2006 VA medical examinations, the RO issued a June
2006 decision denying Mr. Harris increased disability evaluations for his service-connected low back
disability and PTSD, as well as entitlement to TDIU. R. at 1090-98. He filed a timely Notice of
Disagreement with that decision (R. at 1080-81) and subsequently perfected his appeal to the Board
(R. at 796-98).
4
In November 2006, Mr. Harris was examined by a private psychologist and testing revealed
moderate depression. R. at 21.4 The psychologist assigned a GAF score of 45.5 Id.
In January 2010, Mr. Harris participated in a hearing before a Board member. R. at 752-77.
He testified that he had an episode of severe back pain in November 2009 that lasted two months,
and he tried to avoid lifting objects or moving in certain ways because “it puts [him] down anywhere
from a week [to ]a month.” R. at 757-58. He also explained that the medication that he used to take
for his back pain caused him to fall asleep and miss work. R. at 758.
In September 2010, the Board remanded the veteran’s increased-compensation claims for
further development, to include new VA medical examinations. R. at 746-51. Pursuant to that
remand order, Mr. Harris was provided with a January 2011 VA PTSD examination. R. at 296-97.
The veteran reported that he stopped taking his psychotropic medication in September 2010 “to
allow him to supervise his grandson.” R. at 297. The examiner noted changes in the veteran’s social
and interpersonal relationships and family role functioning but stated that he continued to have a
“positive relationship” with his children. Id. The examiner assigned a GAF score of 536 and opined
that Mr. Harris’s PTSD symptoms resulted in deficiencies in the areas of thinking, family
relationship, work, and mood, but not judgment. R. at 296-97.
Mr. Harris also underwent a Board-ordered VA spine examination later that month. R. at
298-304. He complained of flareups of low back pain every two to three weeks, which last three to
seven days and impair his functioning by about 20%. R. at 298-99. According to the veteran, the
flareups are precipitated by heavy lifting, frequent bending, and prolonged walking, and relieved
with pain medication, heat, and bed rest. Id. He also reported experiencing 20 incapacitating
episodes of low back pain over the past 12 months. R. at 299. On physical examination, he was able
4The record of proceedings does not contain a copy of the private psychologist’s report so the foregoing
description is based on the Board’s summary of that report in its September 2012 decision.
5A GAF score between 41 and 50 denotes “[s]erious symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends,
unable to keep a job).” DSM-IV-TR at 34 (emphasis omitted).
6A GAF score between 51 and 60 denotes “[m]oderate symptoms (e.g., flat affect and circumstantial speech,
occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends,
conflicts with peers or co-workers).” DSM-IV-TR at 34 (emphasis omitted).
5
to forward flex his thoracolumbar spine to 25 degrees, extend to 15 degrees, flex laterally to the left
to 15 degrees, flex laterally to the right to 20 degrees, and rotate laterally in both directions to 20
degrees, with pain on active range of motion in all planes. R. at 300. There was no additional
limitation on repetition. Id.
In April 2012, the RO issued a Supplemental Statement of the Case and accompanying rating
decision awarding an increased 40% evaluation for Mr. Harris’s low back disability effective January
25, 2011, and an increased 70% evaluation for his PTSD effective January 25, 2011, the dates of the
most recent VA examinations. R. at 37-68. The RO also continued to deny entitlement to TDIU.
R. at 68.
In September 2012, the Board issued the decision currently on appeal. R. at 3-29. As an
initial matter, the Board found that the VA examinations of record were adequate because they
“included a review of the medical history and sufficient findings to rate the disabilities.” R. at 9.
The Board then denied Mr. Harris entitlement to an increased evaluation in excess of 20% prior to
January 18, 2011, and in excess of 40% thereafter, for residuals of a low back injury with
spondylosis because it found that the evidence of record did not satisfy the schedular criteria for the
next higher evaluation under Diagnostic Code (DC) 5242 during either period. R. at 14-17. Turning
to his claim for increased evaluations for PTSD, the Board found that, prior to January 25, 2011, “the
overall effect of the constellation of [his] symptoms [did] not more nearly approximate or equate to
the criteria for the next higher rating [under DC 9411], namely occupational and social impairment
with deficiencies in most areas.” R. at 25. With regard to the period beginning January 25, 2011,
the Board found that Mr. Harris’s PTSD symptoms were “not . . . equivalent to total occupational and
social impairment,” which is required for a 100% schedular evaluation. R. at 26. The Board then
determined that neither the veteran’s low back disability nor PTSD warranted referral for
extraschedular consideration because, “[c]omparing [his] current disability level and
symptomatology to the Rating Schedule, the degree of disability is encompassed by the Rating
Schedule and the assigned schedule ratings are, therefore, adequate.” R. at 27. Finally, the Board
remanded the issue of entitlement to TDIU because it concluded that Mr. Harris had not yet been
furnished with a VA examination addressing the cumulative effect of his nine service-connected
disabilities on his employability. R. at 28-29. This appeal followed.
6
II. ANALYSIS
A. Low Back Disability
Although Mr. Harris does not make any explicit arguments regarding entitlement to increased
schedular evaluations for his service-connected low back disability, one of his arguments regarding
the Board’s analysis of referral for extraschedular consideration for that disability pertains to the
schedular evaluations assigned by the Board. He argues that the Board failed to consider whether
additional functional limitations caused by his low back disability created an “exceptional disability
picture” for extraschedular referral purposes (see Appellant’s Brief (Br.) at 19); the Court thus
construes his argument as an argument that the Board failed to consider those functional limitations
for schedular evaluation in accordance with DeLuca v. Brown, 8 Vet.App. 202 (1995), and Mitchell
v. Shinseki, 25 Vet.App. 32 (2011). The Court concludes that the Board erred in this regard with
respect to the period before January 18, 2011, but not for the subsequent period.7
A veteran may be entitled to a disability evaluation higher than that supported by mechanical
application of the Rating Schedule where there is evidence that his or her disability causes additional
functional loss–i.e., “the inability . . . to perform the normal working movements of the body with
normal excursion, strength, speed, coordination[,] and endurance”–including as due to pain.
38 C.F.R. § 4.40 (2013). A higher disability evaluation may also be awarded where there is a
reduction of a joint’s normal excursion in different planes, including changes in the joint’s range of
movement, strength, fatigability, or coordination. 38 C.F.R. § 4.45 (2013). Because DCs based on
limitation of motion do not subsume the factors listed in §§ 4.40 and 4.45, the Board must consider
and discuss whether any of those factors, if present, result in additional functional limitation
warranting a higher disability evaluation. See Mitchell, 25 Vet.App. at 37 (citing DeLuca, 8
Vet.App. at 205-06); Schafrath v. Derwinski, 1 Vet.App. 589, 592-93 (1991).
The Board’s determination of the appropriate degree of disability is a finding of fact subject
to the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4). See Smallwood v.
Brown, 10 Vet.App. 93, 97 (1997). “A factual finding ‘is “clearly erroneous” when although there
None of Mr. Harris’s other arguments 7 pertain, even arguably, to the Board’s denial of increased schedular
evaluations for his service-connected low back disability, and the Court, therefore, will not address that issue further.
See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (holding that the Court has discretion to deem abandoned issues not
argued on appeal).
7
is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992)
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). As with any finding on a
material issue of fact and law presented on the record, the Board must support its determination of
the appropriate degree of disability with an adequate statement of reasons or bases that enables the
claimant to understand the precise basis for that finding and facilitates review in this Court. See
38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). To comply with this
requirement, the Board must analyze the credibility and probative value of the evidence, account for
the evidence it finds persuasive or unpersuasive, and provide reasons for its rejection of any material
evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table).
As Mr. Harris points out (Appellant’s Br. at 19), the record contains a May 2006 SSA
examination report that recorded his lumbar ranges of motion and noted that his low back pain
caused “decreased range of motion” that limits how long he can walk, stand, and sit and causes
difficulty bending, stooping, and crouching (R. at 343-45). Although the Board acknowledged this
examination in reciting the evidence of record, it did not address the examiner’s findings of
additional functional loss caused by pain in discussing whether he was entitled to an increased
disability evaluation prior to January 18, 2011, pursuant to §§ 4.40 and 4.45 and the Court’s holdings
in DeLuca and Mitchell. Instead, the Board’s discussion of that issue focused solely on the findings
of the April 2006 VA examiner, which, according to the Board, “indicat[e] that pain caused
additional limitation but the additional limitation was not recorded.”8 R. at 15. In conducting this
analysis, the Board failed to consider the additional functional limitations recorded in the May 2006
SSA examination, including the examiner’s findings that Mr. Harris’s low back disability caused
deficiencies and changes in the normal excursion, strength, speed, coordination, and endurance of
8Confusingly, the Board “place[d] greater weight on the objective findings of the [April 2006 VA] examination
than the Veteran’s subjective complaints of pain” and found that his pain “does not rise to the level of the criteria for the
next higher rating,” despite the Board’s earlier acknowledgment that the examination reflected additional limitation
caused by pain that the examiner failed to quantify in terms of the veteran’s range of motion. R. at 15. It is unclear how
the Board determined that Mr. Harris’s additional limitations caused by pain did not satisfy the criteria for the next higher
evaluation without the range-of-motion findings that the examiner was required to provide. See DeLuca, 8 Vet.App. 206-
07 (holding that a VA joints examination that fails to take into account the factors listed in §§ 4.40 and 4.45 is inadequate
for evaluation purposes (citing Voyles v. Brown, 5 Vet.App. 451, 453 (1993))); see also Mitchell, 25 Vet.App. at 44.
8
his lumbar spine as a result of pain. R. at 344-45. The Board’s failure to analyze those findings,
which are potentially favorable to the veteran’s claim for an increased evaluation for his low back
disability prior to January 18, 2011, thus constitutes error. See Mitchell, DeLuca, Caluza, and
Schafrath, all supra. Remand of that claim is therefore warranted. See Tucker v. West, 11 Vet.App.
369, 374 (1998) (holding that remand is the appropriate remedy “where the Board has incorrectly
applied the law, failed to provide an adequate statement of reasons or bases for its determinations,
or where the record is otherwise inadequate”).
The Board, however, properly analyzed §§ 4.40 and 4.45 for the period beginning January
18, 2011. Specifically, the Board stated that the January 2011 VA spine examination indicated that
“the Veteran had difficulty with bending, lifting, twisting, and activities of daily living” due to pain
and flareups (R. at 12), but found that those additional functional limitations did not more nearly
approximate the criteria for a 50% evaluation under 38 C.F.R. § 4.71a, DC 5242 because Mr. Harris
was not as functionally limited as an individual with unfavorable ankylosis of the entire
thoracolumbar spine (R. at 17 (citing, inter alia, DeLuca, supra, and 38 C.F.R. §§ 4.40, 4.45)). Thus,
the Court discerns no reasons-or-bases error in the Board’s DeLuca analysis for the veteran’s serviceconnected
low back disability for the period beginning on January 18, 2011, and will affirm that
portion of the September 2012 Board decision.
B. PTSD
Turning to the explicit arguments in Mr. Harris’s brief, he contends that the Board clearly
erred in denying an increased evaluation for his service-connected PTSD both before January 25,
2011, and for the period beginning on that date, because the Board (1) did not account for evidence
of homicidal ideation that demonstrated total occupational impairment (Appellant’s Br. at 26-30);
(2) improperly “emphasize[d] exemplary symptoms [he] lacks” (id. at 28) (capitalization altered);
and (3) failed to recognize that, “[w]ithout his medication, [he] acted on his homicidal ideation to
murder his supervisor” (id. at 29). The Court agrees that the Board provided an inadequate statement
of reasons or bases for denying an increased evaluation for PTSD for the period prior to January 25,
2011, because it improperly minimized his homicidal ideation. However, the Court discerns no such
error for the period beginning on that date.
9
Pursuant to 38 C.F.R. § 4.130, DC 9411 (2013), PTSD is evaluated as 50% disabling when
it causes
[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.
To qualify for the next higher evaluation of 70%, PTSD must cause
[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; 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.
38 C.F.R. § 4.130, DC 9411. A 100% evaluation for PTSD is warranted when it causes
[t]otal occupational and social impairment, due to such symptoms as: gross
impairment in thought processes or communication; persistent delusions or
hallucinations; grossly inappropriate behavior; persistent danger of hurting self or
others; intermittent inability to perform activities of daily living (including
maintenance of minimal personal hygiene); disorientation to time or place; memory
loss for names of close relatives, own occupation, or own name.
Id.
1. Increased Evaluation Prior to January 25, 2011
In its summary of the evidence of record, the Board noted that Mr. Harris was hospitalized
in July 2005 for homicidal ideation toward his supervisor and reported in May 2006 that he
experienced “occasional homicidal ideation[] when . . . in crowds.” R. at 19, 21. However, in the
“Analysis” section of its decision, the Board glossed over this evidence, stating only that the veteran
had a “conflict with his supervisor” and experienced “anger problems, which interfered with
occupational functioning.” R. at 22. This is a gross mischaracterization of Mr. Harris’s psychiatric
10
symptoms. As outlined above, VA has determined that a “persistent danger of hurting self or others”
is indicative of a mental condition warranting a 100% evaluation, whereas “impaired impulse control
(such as unprovoked irritability with periods of violence)” is indicative of a mental condition
warranting a 70% evaluation. 38 C.F.R. § 4.130. By describing Mr. Harris’s persistent homicidal
ideation as a one-time conflict with a supervisor and an “anger problem” (R. at 22), the Board
minimized the seriousness of that symptom and obfuscated the severity of his PTSD. It also
inaccurately portrayed the duration of his homicidal ideation. Contrary to the Board’s finding, the
record of proceedings appears to show that the veteran’s homicidal ideation did not “lessen” after he
left job in July 2005 (R. at 24); it persisted until at least May 2006 and increased to include people
other than his former supervisor (R. at 21, 1111). In addition, the Board failed to provide reasons
or bases as to whether homicidal ideation and acts resulting from it, such as loading a weapon with
the apparent intent to kill a supervisor (see R. at 797, 1269, 1273), are indicative of other symptoms
that exemplify a 70% or 100% evaluation, including difficulty in adapting to stressful circumstances,
gross impairment in thought processes, and grossly inappropriate behavior. See 38 C.F.R. § 4.130,
DC 9411.
Thus, the Board’s assessment of the veteran’s PTSD prior to January 25, 2011, was flawed
because it was based on an incomplete and inaccurate picture of the severity, frequency, and duration
of his symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115-17 (Fed. Cir. 2013)
(evaluation of a mental disorder under § 4.130 requires assessment of the veteran’s occupational and
social impairment, as demonstrated by the symptoms listed in the rating schedule or others of
“similar severity, frequency, and duration”). This shortcoming rendered inadequate the Board’s
statement of reasons or bases for concluding that the veteran was not entitled to an increased
disability evaluation in excess of 50% for his service-connected PTSD prior to January 25, 2011.
See Caluza and Gilbert, both supra.
The Board also erred in assessing Mr. Harris’s level of occupational impairment during that
period. Contrary to the Board’s statement that there was “no evidence or allegation that [the veteran]
has been unable to obtain a job” because of his PTSD (R. at 24), the record contains the following:
A January 2006 statement in support of claim reflecting that PTSD causes memory loss that
“prevent[s him] from holding a job” (R. at 1155); a January 2006 medical records release form
11
expressing concern that he would be “discriminated against because of [his] PTSD diagnosis” and
that he “might be a danger to [his] supervisor or coworkers” (R. at 1152); and the May 2006 VA
PTSD examination concluding that PTSD caused decreased efficiency, productivity, and reliability,
and occasionally impaired his work relationships and ability to perform work tasks (R. at 1113). The
Board’s failure to account for this potentially favorable evidence further detracts from its statement
of reasons or bases. See Caluza, supra. Therefore, the Court concludes that remand of the veteran’s
claim for an increased PTSD evaluation prior to January 25, 2011, is warranted. See Tucker, supra.
2. Increased Evaluation Beginning January 25, 2011
As stated above, Mr. Harris’s arguments do not differentiate between the period before
January 25, 2011, and the period beginning on that date. This is significant because, although he
argues that the Board failed to consider and discuss evidence of homicidal ideation and improperly
took into account the ameliorative effects of psychiatric medication on that homicidal ideation (see
Appellant’s Br. at 26-30), he has not identified any evidence, nor can the Court locate any, of
homicidal ideation on or after January 25, 2011. Therefore, those arguments lack an evidentiary
basis in the record, and the Court will not consider them further. See Evans v. West, 12 Vet.App.
22, 31 (1998) (declining to consider “unsupported contention[s]” and “vague assertion[s]” of error).
Mr. Harris’s other argument–that the Board’s denial of a 100% schedular evaluation for his
PTSD improperly focused on the symptoms listed in the criteria for that evaluation that he lacks (see
Appellant’s Br. at 28)–is too terse and undeveloped to warrant judicial review. See Locklear v.
Nicholson, 20 Vet.App. 410, 416 (2006) (finding that an argument was “far too terse to warrant
detailed analysis by the Court”); Evans, supra. The entirety of his argument in this regard consists
of the following sentence: “In evaluating the Veteran’s PTSD (1) before January 25, 2011[,] and (2)
from January 25, the Board determined that the Veteran’s symptomatology did not meet the 100[%]
rating requirement of occupational impairment.” Appellant’s Br. at 28. Not only is this argument
woefully underdeveloped, but it also fails to identify any symptoms of severity, frequency, and
duration similar to those listed in the criteria for a 100% evaluation that Mr. Harris possesses and
the Board overlooked. See Vazquez-Claudio, 713 F.3d at 116-17(“[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.”); Mauerhan v. Principi,
12
16 Vet.App. 436, 442 (2002) (holding that use of the language “such symptoms as” in the criteria
for evaluating PTSD under § 4.130 indicates that the list of symptoms that follows is nonexhaustive,
meaning that, to assign the corresponding evaluation, VA is not required to find the presence of all,
most, or even some of the enumerated symptoms). Accordingly, Mr. Harris’s arguments that the
Board erred in denying him an increased disability evaluation for PTSD for the period beginning
January 25, 2011, must fail. See Hilkert, supra.
C. Referral for Extraschedular Consideration
Mr. Harris also argues that the Board committed various errors in analyzing the issue of
referral for extraschedular consideration for his service-connected low back disability and PTSD.
See Appellant’s Br. at 10-25. The most persuasive of those arguments is that the “Board’s remand
of TDIU requires remand of [the] extraschedular rating [issues]” pursuant to Brambley v. Principi,
17 Vet.App. 20 (2003). Appellant’s Br. at 22 (capitalization altered).
In “the exceptional case where the schedular evaluations are found to be inadequate, the
Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station
submission, is authorized to approve . . . an extra-schedular evaluation commensurate with the
average earning capacity impairment due exclusively to the service-connected disability or
disabilities.” 38 C.F.R. § 3.321(b)(1) (2013). Referral for extraschedular consideration is warranted
where “evidence before VA presents such an exceptional disability picture that the available
schedular evaluations for that service-connected disability are inadequate” and “the claimant’s
exceptional disability picture exhibits other related factors,” such as marked interference with
employment or frequent periods of hospitalization. Thun, 22 Vet.App. at 115-16; see Anderson v.
Shinseki, 22 Vet.App. 423, 427 (2009) (outlining the “elements that must be established before an
extraschedular rating can be awarded”); 38 C.F.R. § 3.321(b)(1).
In Brambley, the Board found that referral for extraschedular consideration was not warranted
because “the record [was] sufficient to conclude that the appellant’s service-connected disabilities
do not show a marked interference with employment.” 17 Vet.App. at 24 (internal quotation marks
omitted). However, the Board also found that it was necessary to remand the issue of entitlement
to TDIU because there were “specific inconsistencies in the record” regarding the appellant’s
employability that could only be resolved by obtaining VA vocational rehabilitation records;
13
ascertaining whether the appellant was receiving SSA disability benefits and, if so, obtaining any
such records; and having the veteran and his former employers explain the reasons why he left his
previous jobs. Id. On appeal, the Court explained that, “[a]lthough it is well-settled that
extraschedular consideration and TDIU . . . are not necessarily inextricably intertwined, . . . both
adjudications require a complete picture of the appellant’s service-connected disabilities and their
effect on his employability.” Id. (internal quotation marks and citations omitted). The Court noted
the Board’s “divergent positions concerning the completeness of the record” and concluded that “it
was premature for the Board to decline extraschedular consideration where the record was
significantly incomplete in a number of relevant areas probative of the issue of employability.” Id.
Thus, the Court remanded the appellant’s low back claims for readjudication to take into account any
evidence of employability developed as a result of the Board’s remand of the issue of entitlement to
TDIU. Id. at 24-25.
Here, the Board remanded the issue of entitlement to TDIU because “the [January 2011] VA
examiner did not address the effect of all the service-connected disabilities with a combined rating
of 90[%], including psychiatric, orthopedic, and neurological disabilities and unemployability,” and
ordered a VA medical examination to address the likelihood that “the combination of the Veteran’s
service-connected disabilities . . . render [him] unable to secure or to follow substantially gainful
employment.” R. at 28 (emphasis added). Although the Court held in Johnson v. Shinseki,
26 Vet.App. 237, 240-45 (2013) (en banc), that VA is not required to consider the collective
impairment caused by multiple service-connected disabilities when determining whether to refer a
claim for extraschedular evaluation, the TDIU development ordered by the Board in this case will
likely result in additional information pertaining to each of Mr. Harris’s service-connected disabilities
that is relevant to the extraschedular inquiry. VA Fast Letter 13-13 directs examiners “developing
a claim involving a request for TDIU” to “request condition-specific DBQs [disability benefits
questionnaires] for the issue(s) alleged to caused unemployability (e.g., joints, mental, peripheral
nerves, etc.)” and “comment on . . . the functional impairment caused solely by the service-connected
disabilities.” VA FAST LETTER 13-13 at 5-6 (June 17, 2013) (emphasis added). Any information
recorded in the DBQs for Mr. Harris’s low back disability and PTSD and the examiner’s assessment
of the veteran’s functional impairment caused by each disability will further illuminate his disability
14
picture and may provide evidence pertinent to the extraschedular inquiry. Because the TDIU
development ordered by the Board will likely produce evidence relevant to extraschedular evaluation
for Mr. Harris’s service-connected low back disability and PTSD, see Thun, supra; 38 C.F.R.
§ 3.321(b)(1), the Court concludes that the Board erred in not remanding his claims for increased
evaluations for those conditions back to the RO along with TDIU, see Brambley, supra. Remand
of those claims is therefore warranted.9 See Tucker, supra; see also Floyd v. Brown, 9 Vet.App. 88,
96 (1996) (explaining that referral for extraschedular consideration is “always part” of a claim for
an increased evaluation).

III. CONCLUSION
Upon consideration of the foregoing, the portions of the September 25, 2012, Board decision on appeal are SET ASIDE and the appealed matter is REMANDED for readjudication consistent with this decision. On remand, Mr. Harris is free to present any additional arguments and evidence to the Board 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 Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.
DATED: October 15, 2013
Copies to:
R. Edward Bates, Esq.
VA General Counsel (027)

9Because the Court is remanding all the issues on appeal, the Court need not address his additional
extraschedular arguments. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper remedy
is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader
than a remand.”); Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (“A narrow decision preserves for the
appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this
Court in an appeal, should the Board rule against him.”).
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