Veteranclaims’s Blog

December 29, 2014

Single Judge Application; Evans v. Shinseki, 25 Vet.App. 7, 14 (2011); PTSD; Interpersonnal Relationships; Medical Providers

Excerpt from decision below:

The Board’s reliance on a veteran’s ability to communicate with medical
providers as evidence that she can establish and maintain effective relationships is problematic. First, it is completely unclear that a medical provider’s relationship with a veteran may be used as evidence of a veteran’s ability to begin and maintain effective relationships because the medical provider is essentially paid to sustain that relationship. Second, such an analysis sets up an untenable situation: a veteran who is able to show up for treatment and talk to providers creates evidence against his or
10

her claim by virtue of “establishing and maintaining an effective relationship” with a medical provider. See 38 C.F.R. § 4.130. On the other hand, a veteran who does not show up for treatment and talk to medical providers would be unable to receive the treatment to which the veteran may be entitled, see 38 U.S.C. § 1710 and 1712A and, incidentally, would also be unable to generate any medical evidence relative to the claim. See id. Congress cannot have intended this result when it established a VA health care system and a veteran-friendly veterans benefits system. See,e.g., Evans v. Shinseki, 25 Vet.App. 7, 14 (2011) (noting the “veteran-friendly, non-adversarial” nature of the VA benefits system).

In addition, the Board described Ms. Ramsey’s interactions with her family
members and concluded that, “throughout the appeal, the [v]eteran demonstrated close relationships with her family, especially her sisters” and this “evidence establishes that the [v]eteran was able to maintain family relationships. R. at 21. Although the veteran and the Secretary argue in their briefs about whether the regulation allows a claimant to maintain any relationships at all, this argument is misplaced. One symptom listed under a 70% disability evaluation is the “inability to establish and maintain effective relationships.” 38 C.F.R. § 4.130, DC 9411 (emphasis added). ”

=====================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 14-0200
LINDA D. RAMSEY, APPELLANT,
V.
ROBERT A. MCDONALD,
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 Linda D. Ramseyappeals through counsel a November
5, 2013,
Board of Veterans’ Appeals (Board) decision that denied a disability
evaluation in excess of 50% for
dysthymic disorder1
and a total disability evaluation based on individual unemployability (
TDIU).
Record (R.) at 3-28. Single-judge disposition is appropriate. See Frankel
v. Derwinski, 1 Vet.App.
23, 25-26 (1990). 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). For the reasons that
follow, the Court will set aside
theNovember5,2013,Boarddecision and remand the matter
forfurtherproceedings consistentwith
this decision.
Dysthymic disorder is “a mood disorder characterized by depressed feeling (
sad, blue, low), loss
of interest or pleasure in one’s usual activities, and by at least some of
the following: altered appetite,
disturbed sleep patterns, lack of energy, low self esteem, poor
concentration or decision-making skills, and
feelings of hopelessness.” In addition, the “[s]ymptoms have persisted for
more than two years but are not
severe enough to meet the criteria for major depressive disorder.”
DORLAND’S ILLUSTRATED MEDICAL
DICTIONARY 550 (32d ed. 2012) [hereinafter “DORLAND’S”]. Compare infra, fn
7.
1

I. FACTS
Ms. Ramsey served on active duty in the U.S. Navy from May 1979 to March
1993. R. at
4, 1066; see R. at 229. During service, she started experiencing
depression after she suffered a series
of personal tragedies when her brother died suddenlyin January1990, her
mother died in September
1990, and in August 1991, her then-husband and three children were
involved in a motor vehicle
accident resulting in the death of the youngest two children. R. at 1066-
67. Subsequently, she was
treated for depression and an anxiety disorder and in 1992 she was
hospitalized for three days with
a diagnosis of major depression. R. at 478-80, 508, 1292-98. She was
eventually diagnosed with
recurrent major depression. R. at 1068. A Medical Board determined that Ms.
Ramsey was unable
to perform her duties as a pharmacytechnician due to depression and she
was separated from service
in March 1993. Id.
Upon separation, Ms. Ramseyclaimed service connection for “nerves.” R. at
959-63. A May
1993 VA examiner noted that Ms. Ramsey experienced “panic feelings,” had
trouble sleeping and
concentrating (R. at 935), and had a “rocking motion back and forth while
sitting in the chair and
talking to” the examiner (R. at 937). He diagnosed a history of anxiety
and depression with suicide
attempt. Id. A second examiner noted that Ms. Ramsey had difficulty
falling asleep, relaxing, or
making decisions; avoided social situations; and woke up feeling tired. R.
at 939. He diagnosed
dysthymic disorder with recurring bouts of major depressive episodes. R.
at 940.
The VA regional office (RO) granted service connection for dysthymic
disorder, initially
evaluated as 30% disabling, effective March 27, 1993. R. at 878, 900. In
1996, Ms. Ramsey was
scheduled for a VA examination but the notification letter was returned as
undeliverable and she
failed to report for the examination. Id. As a result, VA reduced the
disability evaluation for her
service-connected dysthmic disorder to noncompensable. R. at 900.
Subsequently, Ms. Ramsey
informed VA she had moved to Missouri and was being treated at the St.
Louis VA Medical Center
(VAMC). R. at 877.
In July1997, a VA medical examiner noted that Ms. Ramseyexperienced
sleeplessness, was
physically drained, needed help from her sisters with shopping, and
suffered from “shakes” when
2

she did not take Xanax.2
See R. at 875-78. She had some constraint in emotion, had no delusions,
was not disordered in her thought process, and experienced guilt about the
deaths of her two younger
children. Id. In October 1997, the RO increased the evaluation to 10%,
effective March 1997. R. at
875-78.
A July 2000 VA psychiatric treatment report noted that Ms. Ramsey quit her
job as a
substitute teacher–the first time she had tried to work
sinceleavingmilitaryservice–after six months
because she had been absent numerous times and was in danger of being
fired. R. at 291, see R. at
95, 198. Social Security records from 2001 indicated that the veteran
experienced depression that
caused marked difficulties in social functioning and concentration and an
inability to perform
work-related tasks. R. at 269-89, 301-28.
In February 2001, Ms. Ramsey claimed service connection for major
depression, anxiety
disorder, and post-traumatic stress disorder (PTSD) that she stated began
during service in 1992. R.
at 848-55. In August of that year, she asserted that she had attempted to
find work but that her illness
prevented her from doing so. R. at 839-40. She was taking Paxil and Xanax
for psychiatric
symptoms. Id.
In June 2002, the RO denied service connection for PTSD and increased the
evaluation for
dysthymic disorder to 30%, effective February 9, 2001, the date Ms. Ramsey
claimed service
connection fordepression, anxiety,andPTSD. R. at826-29.InOctober2002,Ms.
Ramseyrequested
that VA “reopen” her claim, asserting that her dysthmic disorder had
worsened. R. at 818.
An April 2003 VA medical examiner indicated that the number, severity, and
frequency of
Ms. Ramsey’s depressive symptoms had increased since December 2002. R. at
808-13. The veteran
reported having no friends because she did not like going out and spending
most of her time at home.
R. at 811. In May 2003, the RO increased the evaluation to 50%, effective
October 25, 2002. R. at
749-53.
In May 2005, Ms. Ramsey stated that her condition had deteriorated and
requested a
disability evaluation in excess of 50%. R. at 794. In May 2006, a VA
physician noted that she had
This examination is not contained in the record before the Court but is
referenced in the October
1997 rating decision. R. at 875-78.
2
3

developed significant patches of alopecia3
on her head of unclear etiology. R. at 787. The physician
also noted that Ms. Ramsey was taking classes via the internet. Id.
In July 2005, a VA examiner reported Ms. Ramsey’s statement that her
depressed mood and
feelings of anxiety had increased in severity and frequency over the past
year. R. at 767. The
examiner noted that Ms. Ramsey’s alopecia had been diagnosed as
trichotillomania.4
R. at 766. She
endorsed suicidal ideation, which had increased in frequency over the past
few years. R. at 766-67.
Her depression fluctuated in severity and, during “bad episodes,” she
experienced anhedonia,
hypersomnia, decreased appetite, passive suicidal ideation, feelings of
hopelessness, and frequent
tearfulness. R. at 767. These episodes would last for 10 to 15 days. Id.
She also experienced physical
manifestations of anxiety, such as shaking hands and rapid breathing. Id.
The examiner assigned a
Global Assessment of Functioning (GAF) score of 555
and diagnosed severe depression. R. at 768.
He noted that the veteran had insufficient thought monitoring skills and
mood management skills,
which moderately impaired her social and industrial capacity. R. at 769.
In August 2006, the RO continued the 50% evaluation. R. at 756-62. Ms.
Ramsey timely
disagreed, stating that she suffered from “near continuous panic attacks
that occur daily” (R. at
754-55), and eventually appealed to the Board, stating: “Due to my medical
condition, I have not
been able to maintain gainful employment since 1992″ (R. at 733). In
February 2007, Ms. Ramsey
reported an altercation in which her son physically threatened her and ”
she got so angry she was
afraid she might stab him, and she called 911.” R. at 207.
That April, a VA physician observed that Ms. Ramsey felt overwhelmed by
her course work
and had difficulty starting assignments. R. at 202. The examiner reported
that the veteran
3
Alopecia is “a disease in which the hair falls out.” DORLAND’S at 53.
Trichotillomania is “compulsive pulling out of one’s hair, associated with
tension.” DORLAND’S at
4
1965.
The GAF scale is “a hypothetical continuum of mental health-illness” based
on the degree of a
patient’s “psychological, social, and occupational functioning.”
DIAGNOSTICAND STATISTICALMANUALOF
MENTAL DISORDERS 34 (4th ed. text revision, 2000) (hereinafter DSM-IV-TR).
A GAF score between 51
and 60 (out of 100) denotes: “Moderate 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.
5
4

“underplay[ed] additional stressors in her life,” including the fact that
one of her sisters was
undergoing cancer treatment. Id. In June 2007, a VA physician noted that
the veteran’s thought
processes appeared disconnected, her speech was circumstantial, and she
suffered from episodes of
severe depression and suicidal ideation. R. at 196. She reported panic
attacks during which she
would repeat the phrase “don’t panic” to herself, and would go into her
room and remain very still
until the attack passed, thinking: “If I staystill it will miss me.” R. at
195. In November, Ms. Ramsey
reported agoraphobia6
and being “barely able to keep her eyes open” and unable to eat or “do
anything but sleep.” R. at 188. In December 2009, the Board remanded the
issues of an increased
evaluation and entitlement to TDIU. R. at 705-10.
In April 2010, a VA physician noted thatMs. Ramseyhad recentlyfinished an
online masters
degree in mental health counseling. R. at 149. She enjoyed the course work
but had “trouble keeping
a formal schedule” due to unpredictable anxiety attacks, nightmares, and
disturbed sleep. Id. In June
2010, the same physician indicated that Ms. Ramsey was working on a Ph.D.
in counseling and that,
due to agoraphobia and panic attacks, the veteran completed her course
work online. R. at 1535. She
was nervous about the requirement that some of her course work be
presented in person. Id. In
March 2011, the Board remanded the matter for additional records and a
current VA medical
examination. R. at 232-38.
In April 2011, a VA examiner noted that Ms. Ramseyhad last worked in 2001
for six months
as a substitute teacher, that her attendance at work had been inconsistent,
and that she had trouble
working for 26 consecutive days despite the incentive of increased pay. R.
at 95. At the time of the
examination, she was on a medication regimen that included Fluoxetine,
Alprozolam, and
Clonzepam. R. at 94. She described episodes of severe depression, which
came on suddenly and
without warning. R. at 97-8. During an episode, Ms. Ramsey would have
thoughts of self-harm and
suicidal ideation and was unable to concentrate enough to read. R. at 98.
Although she feared being
alone, she had trouble leaving the house and thus had minimal social
contact. Id. The episodes would
last approximately 10 days. Id. The examiner noted that, while she denied
current suicidal ideation,
the veteran had a history of past ideation and attempts. R. at 97. She had
diminished sleep, appetite
Agoraphobia is an “intense, irrational fear of open spaces, characterized
by marked fear of
venturing out alone . . . . It may be associated with panic attacks.”
DORLAND’S at 40.
6
5

and energy, and required the assistance of one of her sisters to drive,
cook, shop for groceries, and
perform household chores. Id. He diagnosed major depressive disorder,7
which he noted “exceeds
in severity the symptoms associated with dysthymic disorder,” and assigned
a GAF score of 40.8
R.
at 97, 100. He opined that the unpredictable nature and severity of Ms.
Ramsey’s depressive
episodes rendered her markedly socially and occupationally impaired and
precluded obtaining and
maintaining gainful employment. R. at 99.
Ms. Ramseysubmitted an April 2011 statement asserting that her symptoms
and medication
side effects prevented her from working and that “a complete review of [
her] medical and
employment records will support . . . entitlement to TDIU.” R. at 108.
Between June 2010 and May
2013, VA psychiatric treatment records indicate that Ms. Ramsey
experienced ongoing struggles
with depressed mood, anxiety, agoraphobia, difficulty concentrating, guilt,
and low energy. R. at
1515, 1519, 1528, 1531.
An April 2013 VA examiner noted Ms. Ramsey’s report of depressed mood,
lethargy,
thoughts of death, diminished interest in activities, excessive sleep, and
isolative behavior. R. at 59.
The veteran was still enrolled in her online doctoral program and stated
that the online coursework
was preferable because she did not have to leave her house or be around
people. R. at 62. She
expressed fear that something bad would happen when she left her house
because she never knew
when to expect an anxiety attack. Id. She stated: “I think I can get a job
. . . it is the matter of
keeping a job” and explained she would be uncomfortable telling an
employer about her disability
Major depressive disorder is “a mood disorder characterized by the
occurrence of one or more
major depressive episodes,” which are “a period of two weeks or longer
characterized by daily and day-long
depressed mood or loss of interest or pleasure in virtually all activities
.” It may include “altered appetite,
weight, or sleep patterns, psychomotor agitation or retardation,
diminished capacity for thinking,
concentration, or decisiveness, lack of energy and fatigue, feelings of
worthlessness, self-reproach, or
inappropriate guilt, recurrent thoughts of death or suicide, and plans or
attempts to commit suicide.”
DORLAND’S at 551, 635.
A GAF score between 31 and 40 (out of 100) denotes: “Some impairment in
reality testing or
communication (e.g., speech is at times illogical, obscure, or irrelevant)
OR major impairment in several
areas, such as work or school, family relations, judgment, thinking, or
mood (e.g., depressed [individual]
avoids friends, neglects family, and is unable to work[.]” DSM-IV-TR at 34.
The Court notes that Ms.
Ramsey’s GAF score is lower than the 41-50 range, which denotes: “Serious
symptoms . . . OR any serious
impairment in social, occupational, or school functioning (e.g., no
friends, unable to keep a job).” Id.
8
7
6

and how it might affect her ability to be at work on time every day. R.
at 61. She reported that for
the past year, she had hired a home care assistant who came to her house
for four hours a day, five
days a week, to assist with cleaning, laundry, and household chores. R. at
62. Ms. Ramsey also
reported that she attempted to go for a meal with a friend during the
previous week and experienced
an anxiety attack. R. at 63.
The April 2013 examiner concurred with the April 2011 VA examiner’s major
depressive
disorder diagnosis and found that the veteran’s symptoms had neither
improved nor worsened since
the last examination but opined that depression and anxiety did not
interfere with employability. Id.
He stated: “It is certainly possible that this veteran could maintain
gainful employment if her
occupational setting [i.e., more isolated work environment] were
consistent with her preferences. In
fact, activation (i.e., employment) is frequently recommended as treatment
for depression and may
improve the veteran’s overall psychological functioning.” R. at 66.
In November 2013, the Board issued a decision denying an evaluation in
excess of 50% and
TDIU. R. at 3-30. The Board acknowledged symptoms experienced by Ms.
Ramsey that are
contemplated in the criteria for a 70% evaluation, including suicidal
ideation, near-continuous panic
and depression, impaired concentration, and circumstantial or disconnected
speech. R. at 19-20. It
assessed Ms. Ramsey’s symptoms and concluded that the severity of each
symptom had remained
“stable” throughout the appeal period. R. at 19-20. The Board concluded
that Ms. Ramsey was not
unable to establish and maintain effective relationships based on
herinteractions with her familyand
her ability to “communicate effectively with health care providers and to
establish and maintain
relationships as necessary to obtain health care.” R. at 21. The Board
concluded that, despite Ms.
Ramsey’s agoraphobia, she was “able to assist family members,” “goes out
with family and friends,”
and “has appeared for more than 50 VA appointments over the pendency of
the appeal.” R. at 23.
The Board noted that “the completion of on-line academic courses does not
reduce the
severity of symptoms due to agoraphobia, suicidal ideation, or depression”
but concluded that the
online course work “d[id] establish that [her] symptoms do not preclude
work-like achievements to
the extent that such symptoms would have in the absence of technology now
available and in the
absence of [her] demonstrated ability to use that technology.” Id.
Accordingly, the Board denied an
evaluation in excess of 50%. R. at 24.
7

As to TDIU, the Board listed Ms. Ramsey’s work experience during and
since service, her
academic studies, and the medical reports opining for and against
employability. R. at 28. The Board
then concluded that the preponderance of the medical evidence established
thattheveteran’s service-
connected disability did not preclude gainful employment. R. at 28.
Accordingly, it declined to refer
the case for consideration of extraschedular TDIU. Id. This timely appeal
followed.
II. ANALYSIS
Every Board decision must include a written statement of reasons or bases
for its findings
and conclusions on all material issues of fact and law; this statement
must be adequate to enable the
appellant to understand the precise basis for the Board’s decision and to
facilitate informed review
by this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517,
527 (1995). The Board
must analyze the credibility and probative value of evidence, account for
the persuasiveness of
evidence, and provide reasons for rejecting 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). “The
need for a statement of reasons or bases is particularly acute when [Board]
findings and conclusions
pertain to the degree of disability resulting from mental disorders.”
Mittleider v. West, 11 Vet.App.
181, 182 (1998).
A. Schedular Disability Evaluation in Excess of 50%
Ms. Ramsey argues that the Board did not focus on evaluating the effects
of her symptoms
and erroneouslydetermined that her ability to “communicate effectively
with health care providers”
supported a 50% evaluation. Appellant’s Brief (Br.) at 9, 11-15. The
Secretary responds that the
Board considered the frequency and duration of her symptoms when it ”
explained that the majority
of [her] symptoms remained stable” and “also addressed the social and
occupational effects of her
symptoms, thus considering their severity.” Secretary’s Br. at 5, 15-20.
Ms. Ramsey’s arguments are
persuasive.
Disabilityevaluations are generallydetermined byapplying the criteria in
VA’s Schedule for
Rating Disabilities, which is based on average impairment in earning
capacity. 38 U.S.C. § 1155;
38 C.F.R. § 4.1 (2014). In a request for an increased disability
evaluation, the relevant issue is the
veteran’s current level of disability. Proscelle v. Derwinski, 2 Vet.App.
629, 632 (1992). When
8

evaluating mental disorders, VA is required to “consider the frequency,
severity, and duration of
psychiatric symptoms.” 38 C.F.R. § 4.126(a) (2014). VA is not required to ”
find the presence of all,
most, or even some, of the enumerated symptoms set forth in the various
rating percentage criteria”
but, rather, must use the examples as “guidanceas to the severityof
symptoms contemplated for each
rating.” Mauerhan v. Principi, 16 Vet.App. 436, 442 (2002); see 38 C.F.R. §
4.130 (2014),
Diagnostic Code (DC) 9411 (explaining that deficiencies must be the result
of “such symptoms as”
and listing a variety of examplary symptoms); see also Vazquez–Claudio v.
Shinseki, 713 F.3d 112,
115 (Fed. Cir. 2013) (emphasizing the symptom-based nature of the required
analysis).
A 50% disability evaluation for dysthymia requires: “Occupational and
social impairment
with reduced reliability and productivity.” 38 C.F.R. § 4.130, DC 9433.
The symptoms listed as
possible examples of such impairment are:
flattened affect; circumstantial, circumlocutory, or stereotyped speech;
panic attacks
more than once a week; difficultyin understanding complex commands;
impairment
of short- and long-term memory (e.g., retention of only highly learned
material,
forgetting to complete tasks); impaired judgment; impaired abstract
thinking;
disturbances of motivation and mood; difficulty in establishing and
maintaining
effective work and social relationships.
Id.
A70%disabilityevaluationrequires:”Occupationalandsocialimpairment,
withdeficiencies
in most areas, such as work, school, family relations, judgment, thinking,
or mood.” Id. The
symptoms listed as possible examples of such impairment are:
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.
In this case, the Board described each of Ms. Ramsey’s symptoms in turn
and concluded, in
each case, that the symptom in question “remained stable.” R. at 19-20.
The Board then conclusorily
stated that Ms. Ramsey’s symptoms were “consistent with the types of
symptoms and severity of
9

symptoms described in the criteria for a 50[%] evaluation,” despite the
fact that several of the
symptoms that Ms. Ramsey exhibited and the Board discussed are
contemplated in the criteria for
a 70% evaluation, including suicidal ideation, near-continuous panic and
depression, impaired
concentration, and circumstantial or disconnected speech. R. at 20.
Althoughestablishingthatsymptoms
mayhaveremainedstableduringtheappealperiodmay
support that staged disability evaluations are not needed, see Fenderson v.
West, 12 Vet. App. 119,
126 (1999) (VA maygrant staged ratings, which are “separate ratings . . .
for separate periods of time
based on facts found”), such an analysis does not address the social and
occupational effects these
symptoms have on the veteran’s ability to function during the appeal
period and is not, therefore, an
adequate substitute for the required analysis. See Vazquez–Claudio, 713
F.3d at 116-17 (“[I]n the
context of a 70[%] [evaluation], § 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”); see also Proscelle, 2 Vet.App. at 632. Remand is warranted to
correct this error. 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 rest of the Board’s discussion does not cure this shortcoming; instead,
it raises more
questions. IndiscussingwhetherMs. Ramseyhasthesymptom of”inabilityto
establishandmaintain
effective relationships,” the Board stated: “The clinical evidence
establishes that the [v]eteran was
able to communicate effectively with health care providers and to
establish and maintain
relationships as necessary to obtain health care.” R. at 21. No additional
explanation was provided
before the Board found that the veteran, therefore, did not manifest that
symptom, which is listed at
the 70% level. See 38 C.F.R. § 4.130 DC 9433.
The Board’s reliance on a veteran’s ability to communicate with medical
providers as evidence that she can establish and maintain effective relationships is problematic. First, it is completely unclear that a medical provider’s relationship with a veteran may be used as evidence of a veteran’s ability to begin and maintain effective relationships because the medical provider is essentially paid to sustain that relationship. Second, such an analysis sets up an untenable situation: a veteran who is able to show up for treatment and talk to providers creates evidence against his or
10

her claim by virtue of “establishing and maintaining an effective
relationship” with a medical
provider. See 38 C.F.R. § 4.130. On the other hand, a veteran who does
not show up for treatment
and talk to medical providers would be unable to receive the treatment to
which the veteran may be
entitled, see 38 U.S.C. § 1710 and 1712A and, incidentally, would also be
unable to generate any
medical evidence relative to the claim. See id. Congress cannot have
intended this result when it
established a VA health care system and a veteran-friendly veterans
benefits system. See,e.g., Evans v. Shinseki, 25 Vet.App. 7, 14 (2011) (noting the “veteran-friendly, non-adversarial” nature of the VA benefits system).

In addition, the Board described Ms. Ramsey’s interactions with her family
members and concluded that, “throughout the appeal, the [v]eteran demonstrated close relationships with her family, especially her sisters” and this “evidence establishes that the [v]eteran was able to maintain family relationships. R. at 21. Although the veteran and the Secretary argue in their briefs about whether the regulation allows a claimant to maintain any relationships at all, this argument is
misplaced. One symptom listed under a 70% disability evaluation is the “inability to establish and maintain effective relationships.” 38 C.F.R. § 4.130, DC 9411 (emphasis added). In this case, the Board listed some of the interactions Ms. Ramsey had with family members but failed to discuss whether these relationships could be considered effective. R. at 21. It did not address the fact that many of the interactions appear to consist of interventions by the
veteran’s family members necessitated by service-connected disability symptoms. For example, an April 2011 VA examiner, cited by the Board, reported that Ms. Ramsey required her sister’s help to drive, cook, shop for
groceries, and perform household chores. R. at 97. That the severity of
the service-connected psychiatric disability requires a family member to provide daily assistance to the veteran, and thus have a relationship with the veteran, cannot, without further explanation, be used to support that the veteran has an effective relationship with that family member.
Nor did the Board address the fact that Ms. Ramsey’s recent relationship
with her son
apparently consisted primarily of violent arguments (R. at 207) and that
she reported an anxiety
attack when she tried to go for lunch with a friend (R. at 63).
Accordingly, the Court concludes that,
although the Board acknowledged the veteran’s interactions with others, it
failed to provide reasons
or bases for its conclusion that those interactions constituted the
maintenance of effective
11

relationships. See Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007) (“[M]
erely listing the evidence
before stating a conclusion does not constitute an adequate statement of
reasons or bases.” (citing
Abernathy v. Principi, 3 Vet.App. 461, 465 (1992))). On remand, the Board
must provide adequate
reasons or bases for its reliance on evidence as to the veteran’s ability
to establish and maintain
effective relationships. See Allday, 7 Vet.App. at 527; Caluza, 7 Vet.App.
at 506.
B. Extraschedular Evaluation
If, after comparing the level of severity and symptoms of a claimant’s
disability with the
established criteria, the RO or the Board determine that the rating
schedule does not adequately
describe the claimant’s level of disability and that the claimant’s
exceptional disability picture
exhibits other related factors, such as “marked interference with
employment” or “frequent periods
of hospitalization,” then the case must be referred to the Under
Secretaryfor Benefits or the Director
oftheCompensation andPension Serviceto determinewhetherto
assignanextraschedulardisability
evaluation to “accord justice.” 38 C.F.R. § 3.321(b)(1) (2014); see Thun
v. Peake, 22 Vet.App. 111,
116 (2008), aff’d, 572 F.3d 1366 (Fed. Cir. 2009). The Board may conclude
that a claim does not
warrant referral as long as it provides an adequate statement of the
reasons or bases for its
conclusion. Thun, 22 Vet.App. at 116; Bagwell v. Brown, 9 Vet. App. 337,
339 (1996); Floyd v.
Brown, 9 Vet. App. 88, 95 (1996); see Caluza, 7 Vet.App. at 506.
In addressing whether referral was warranted, the Board noted that Ms.
Ramseyhad not been
employed at anypoint during the appeal period, but concluded that she had
not experienced “marked
interference with employment” because “she remained able to engage in
significant academic
achievement, [and] suchisconsideredawork-likeactivity.”R. at25. The Board
did not explain how,
in Ms. Ramsey’s situation, obtaining an online degree from home in the
field of mental health
counseling could be equated with work of any type, especially given that
the service-connected
disability in question causes severe agoraphobia, unpredictable episodes
of severe depression, and
panic attacks. The Board’s assumption that academic achievements
constitute a work-like activity,
without discussing anyof the above issues, frustrates judicial review,
renders inadequate the reasons
or bases for its decision, and requires remand. See Tucker, 11 Vet.App. at
374.
12

C. Extraschedular TDIU
Ms. Ramsey argues that the Board erred when it concluded that she was not
entitled to
extraschedular TDIU because her ability to pursue higher education should
be equated with the
ability to obtain and maintain substantially gainful employment.
Appellant’s Br. at 9, 15-18. The
Secretary responds that Ms. Ramsey “has not argued that her disability
causes her to be in an
exceptional or unusual situation such that she is unlike other [v]eterans
with the same disability” and
that, in any case, “the most probative evidence of record supports the
Board’s finding that she is not
unable to obtain or maintain substantially gainful employment.”
Secretary’s Br. at 4-5, 6-14. Ms.
Ramsey’s arguments are persuasive.
TDIU will be awarded when a claimant meets certain percentage standards
and is unable to
secure or follow a substantially gainful occupation as a result of service-
connected disabilities.
38 C.F.R. § 4.16(a) (2014). However, a veteran who does not meet these
percentage standards will
be referred for extraschedular TDIU consideration if that veteran is ”
unable to secure and follow a
substantially gainful occupation by reason of service-connected
disabilities.” 38 C.F.R. § 4.16(b);
see Hatlestad v. Brown, 5 Vet.App. 524, 529 (1993).
When determining whether a veteran’s service-connected disabilities
preclude him or her
from securing or following substantially gainful employment, the Board is
required to consider and
discuss the veteran’s educational and occupational history and explicitly
relate these factors to the
disabilities of the individual veteran. Cathell v. Brown, 8 Vet.App.539,
544 (1996). The Board may
not “merely allude to educational and occupational history, attempt in no
way to relate these factors
to the disabilities of the appellant, and conclude that some form of
employment is available.” Id.; see
Gleicher v. Derwinski, 2 Vet.App. 26, 28 (1991). “Substantially gainful
employment” does not
include employment in a protected environment such as a family business or
sheltered workshop.
38 C.F.R. § 4.16(a). Furthermore, the fact that a veteran may be able to
work around the house
cannot necessarily be equated with the ability to show up for work every
day. Friscia v. Brown, 7
Vet.App. 294, 297 (1995) (Hard work around one’s own house does not
necessarily correlate with
the ability to engage in substantially gainful employment.).
The Board noted that Ms. Ramsey’s 50% combined evaluation means she could
only be
referredforconsideration ofextraschedularTDIUifherservice-
connecteddysthmia, alone,rendered
13

her unemployable. R. at 27. The Board listed Ms. Ramsey’s work experience,
academic studies, and
the medical reports opining for and against employability, then concluded
that the preponderance
of the medical evidence established that the veteran’s dysthymia did not
preclude gainful
employment. R. at 28.
As noted above, merely listing the evidence before stating a conclusion,
as the Board did
here, does not constitute an adequate statement of reasons or bases. See
Dennis, 21 Vet.App. at 22
(citing Abernathy, 3 Vet.App. at 465). To provide an adequate statement of
reasons or bases
generally, the Board must discuss the relevant evidence, not merely list
facts then summarily state
a conclusion. See Caluza, 7 Vet.App. at 506. To provide an adequate
statement of reasons or bases
for its determination as to referral for extraschedular TDIU consideration,
the Board maynot simply
mention a veteran’s educational and occupational history: it must
explicitly relate these factors to
the disabilities of the individual veteran. Cathell, 8 Vet.App. at 544.
Here, although the Board noted that Ms. Ramsey had worked as a pharmacy
technician and
substitute teacher, it failed to analyze and account for numerous pieces
of material evidence favoring
referral, thus rendering inadequate the reasons or bases for its decision.
See Cathell, 8 Vet.App. at
544; Caluza, 7 Vet.App. at 506. The Board did not discuss (1) that an in-
service Medical Board
determined that Ms. Ramsey’s depression rendered her unable to perform her
work duties as a
pharmacy technician, causing her discharge (R. at 1068); (2) that she had
only worked once after
service, had only worked for six months, had been unable to work for more
than 26 consecutive
days, and had quit that job because she had been in danger of being fired (
R. at 95, 291); (3) that
2001 Social Security records indicated that Ms. Ramseysuffered from an
inability to perform work-
related tasks (R. at 269-89, 301-28); or (4) that she asserted that her
service-connected symptoms
and medication prevented her from obtaining and maintaining employment (R.
at 839-40 (August
2001 statement), 733 (February 2007 statement), 108 (April 2011 statement),
62 (April 2013
statement)).
NordidtheBoarddiscusshowMs. Ramsey’s service-connectedsymptoms ofdaytime
fatigue
(R. at62),hypersomnia(R.at188,767),frequenttearfulness(id.),
shakinghandsandrapidbreathing
(R. at 768), low energy (R. at 1517), and difficulty concentrating (R. at
1515) might affect her
employability.TheBoard did not discuss theApril2010VAphysician’s
conclusionthatMs. Ramsey
14

had “trouble keeping a formal schedule” due to her unpredictable anxiety,
panic attacks, nightmares,
and disturbed sleep. R. at 149. Nor did the Board discuss how Ms. Ramsey
could obtain and
maintain substantially gainful employment when her agoraphobia, which is a
symptom of her
service-connected dysthymia (R. at 188, 1519, 1535), caused her to be
virtually unable to leave her
home (R. at 188, 811).
AlthoughMs. Ramseyhasobtainedseveralonlinedegrees
sinceseparatingfromthemilitary,
most of her postservice education appears to be in the field of mental
health counseling, a field
that–by definition–appears to require at least some interaction with
others. R. at 62, 149, 1535. The
Board did not discuss how the symptoms of Ms. Ramsey’s service-connected
dysthymia, including
anyproblems establishing and maintaining effective work and social
relationships, would affect her
ability to work in this profession. See Cathell, 8 Vet.App. at 544; Caluza,
7 Vet.App. at 506.
Instead, the Board appears to have relied solely on the April 2013
examiner’s opinion that
Ms. Ramsey was employable in a situation that met her “preference” for a ”
more isolated work
environment”withoutaccountingforallrelevantevidence,
includingthatnotedabove,andproviding
adequate reasons or bases for its findings and conclusions. See Gabrielson
v. Brown, 7 Vet.App. 36,
40 (1994) (“The [Board] cannot evade [its] statutory responsibility merely
by adopting [a medical
examiner’s] opinion as its own, where, as here, the [medical examiner’s]
opinion fails to discuss all
the evidence which appears to support appellant’s position.”); see also
Cathell, 8 Vet.App. at 544;
Caluza, 7 Vet.App. at 506.
D. Additional Issues on Remand
The Court notes additional issues that the Board should consider on remand.
See Quirin v.
Shinseki, 22 Vet.App. 390, 395 (2009) (noting that the Court may provide
guidance on additional
issues to ensure a proper decision on remand). First, the potential
mischaracterization of Ms.
Ramsey’s service-connecteddisabling condition was reasonablyraised
bythemedicalevidence.The
April 2011 VA examiner expressly noted that he diagnosed Ms. Ramsey with
major depressive
disorder rather than dysthymic disorder. R. at 97. Although it would not
change the diagnostic code
under which the veteran is evaluated, the Court notes that the April 2011
VA examiner expressly
noted that major depressive disorder “exceeds in severity the symptoms
associated with dysthymic
15

disorder.” Id. Therefore, it may be appropriate on remand for VA to
consider whether Ms. Ramsey’s
service-connected disability should be recharacterized as major depressive
disorder.
The Court also notes that the Board declined to consider staged
disabilityevaluations, noting
that “the [v]eteran herself has stated that there was no increase in
symptoms prior to 2005.” R. at 24;
see Fenderson, 12 Vet. App. at 126 (VA may grant staged ratings, which are ”
separate ratings . . .
for separate periods of time based on facts found”). Although Ms. Ramsey
has obtained a higher
degree in mental health counseling, the Board’s lack of discussion as to
her competence to opine on
psychiatric issues means the Court must assume the Board treated her
report as to no worsening as
a lay statement rather than a medical opinion. See 38 C.F.R. § 3.159 (a)(
1) (2014). The Court notes
that the Board’s use of Ms. Ramsey’s lay statements against her claim in
the matter of a staged
evaluation is inconsistent with the Board’s rejection of her lay
statements on other matters, such as
her assertions that her symptoms and associated medication prevent her
from obtaining and
maintainingemployment.SeeR.at839-40(August 2001statement),733(
February2007statement),
108 (April 2011 statement), 62 (April 2013 statement). On remand, the
Board must ensure that it
treats such evidence consistently and provides adequate reasons or bases
for its findings and
conclusions. See Allday, 7 Vet.App. at 527; Caluza, 7 Vet.App. at 506.

III. CONCLUSION
On remand, Ms. Ramsey is free to submit additional evidence and argument,
including the
arguments raised in her briefs to this Court, in accordance with
Kutscherousky v. West, 12 Vet.App.
369, 372-73 (1999) (per curiam order), and the Board must consider any
such evidence or argument
submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
The Board shall proceed
expeditiously, in accordance with 38 U.S.C. §§ 5109B and 7112. A final
decision by the Board
following the remand herein ordered will constitute a new decision that,
if adverse, maybe appealed
to this Court on the filing of a new Notice of Appeal with the Court not
later than 120 days after the
date on which notice of the Board’s new final decision is mailed to Ms.
Ramsey. See Marsh v. West, 11 Vet.App. 468, 472 (1998).
Upon consideration of the foregoing, the Board’s November5, 2013, decision
is SET ASIDE
and the matter is REMANDED to the Board for further proceedings consistent
with this decision.
16

DATED: December 4, 2014
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
17

Advertisements

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Blog at WordPress.com.

%d bloggers like this: