Veteranclaims’s Blog

September 28, 2017

Single Judge Application; Favorable Evidence; Caluza v. Brown, 7 Vet.App. 498, 506 (1995);

Excerpt from decision below:

“The October 2011 physician specifically found that the appellant was unemployable because of “nightmares, flashbacks, [] intrusive thoughts, memory disturbances, paranoia, hypervigilance,” and feelings of isolation and emotional disconnection. R. at 1930-31.
The December 2011 examiner did not address the appellant’s ability to work or even discount the findings of the October 2011 physician, yet the Board relied on his discussion of the appellant’s relationship with family and engagement in hobbies as more probative evidence of employability. R. at 19, 579-97. Remand is warranted for the Board to provide an adequate statement of its reasons or bases for finding that the December 2011 examination was more probative than the October 2011 physician’s finding. Gilbert, supra.
The Court also determines that the Board ignored favorable evidence in discounting the
March 2011 examination. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995)(finding that the Board must account for and provide the reasons for its rejection of any material evidence favorable to the claimant), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). The March 2011 examiner opined that the appellant “would likely have marked difficulties maintaining gainful employment” because numerous PTSD symptoms. R. at 884-85. Although the Board found that the Global Assessment of Functioning (GAF) score the March 2011 examiner assigned “is not reflective of the [v]eteran’s ongoing disability,” it failed to address the actual findings of the examiner in denying TDIU. R. at 19. Remand is required for the Board to adequately address the March 2011 examiner’s employability determination. Caluza, supra.

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-2858
RODNEY L. WAKE, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENBERG, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
GREENBERG, Judge: The appellant, Rodney L. Wake, appeals through counsel that part
of a July 13, 2016, Board of Veterans’ Appeals (Board) decision that denied him a total disability
rating based on individual unemployability (TDIU).1 Record (R.) at 2-20. The appellant argues
that the Board (1) misinterpreted the law regarding non exertional employment; (2) failed to
account for the appellant’s education and work experience; (3) ignored the impact of the appellant’s
service-connected tinnitus condition; and (4) provided an inadequate statement of reasons or bases
for its decision. Appellant’s Brief at 6-18. For the following reasons, the Court will vacate that
part of the Board’s July 13, 2016, decision on appeal and remand the matter for readjudication.
Justice Alito noted in Henderson v. Shinseki that our Court’s scope of review in this appeal
is “similar to that of an Article III court reviewing agency action under the Administrative
Procedure Act, 5 U.S.C. § 706.” 562 U.S. 428, 432 n.2 (2011); see 38 U.S.C. § 7261. The
creation of a special court solely for veterans, and other specified relations, is consistent with
congressional intent as old as the Republic. See Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 n., 1
1 The Board also granted the appellant an initial disability rating of 70%, but no higher, for post-traumatic
stress disorder. To the extent this finding is favorable, the Court will not disturb it. See Medrano v. Nicholson, 21
Vet.App. 165, 170 (2007). The appellant otherwise presents no argument with respect to the appellant’s schedular
rating for PTSD and the Court deems the matter abandoned. See Pederson v. McDonald, 27 Vet.App. 276, 285
(2015) (en banc) (holding that, where an appellant abandons an issue or claim, the Court will not address it).
2
L. Ed. 436 (1792) (“[T]he objects of this act are exceedingly benevolent, and do real honor to the
humanity and justice of Congress.”). “The Court may hear cases by judges sitting alone or in
panels, as determined pursuant to procedures established by the Court.” 38 U.S.C. § 7254.
Accordingly, the statutory command of Congress that a single judge may issue a binding decision,
pursuant to procedures established by the Court, is “unambiguous, unequivocal, and unlimited.”
Conroy v. Aniskoff, 507 U.S. 511, 514 (1993); see generally Frankel v. Derwinski, 1 Vet.App. 23,
25-26 (1990).
From the beginning of the Republic statutory construction concerning congressional
promises to veterans has been of great concern. “By the act concerning invalids, passed in June,
1794, vol. 3. p. 112, the secretary at war is ordered to place on the pension list, all persons whose
names are contained in a report previously made by him to congress. If he should refuse to do so,
would the wounded veteran be without remedy? Is it to be contended that where the law, in precise
terms, directs the performance of an act, in which an individual is interested, the law is incapable
of securing obedience to its mandate? Is it on account of the character of the person against whom
the complaint is made? Is it to be contended that the heads of departments are not amenable to the
laws of their country?” Marbury v. Madison, 5 U.S. 137, 164, 2 L. Ed. 60, 69 (1803).
The appellant served on active duty in the U.S. Army from December 1965 through
October 1967, primarily as a clerk. R. at 1011 (DD Form 214). While in service, the appellant
was physically and sexually abused while serving a 30-day sentence of hard labor in the Fort Hood
Post Stockade. R. at 809, 872, 876-77, 958.
In June 2009 the appellant filed for benefits based on service connection for PTSD and
hearing loss. R. at 1486-87. In May 2011 the appellant underwent a VA examination, where the
examiner opined that the appellant “would likely have marked difficulties maintaining gainful
employment” because of functional limitations, including
[s]creening out environmental stimuli: an inability to block out sounds, sights, or
odors that interfere with focusing on tasks. Marked difficulty tolerating noise and
crowds. Sustaining concentration: restlessness, shortened attention span,
distraction, and difficulty understanding or remembering verbal directions [. . .]
[h]andling time pressures and multiple tasks: difficulty getting along, fitting in,
contributing to group work, and reading social cues. Responding to negative
feedback: difficulty understanding and correctly interpreting criticism or poor
grades. May not be able to separate person from task (personalization or
3
defensiveness due to low self-esteem).
R. at 884-85.
In October 2011 treating provider at the VA hospital wrote that the appellant was
unemployable because of worsening chronicity and severity of his PTSD symptoms, specifically
“nightmares, flashbacks, [] intrusive thoughts, memory disturbances, paranoia, hypervigilance,”
and feelings of isolation and emotional disconnection. R. at 1930-31.
In December 2011 the appellant underwent a VA examination where the examiner found
that his PTSD symptoms, including mild memory loss and impaired judgment, “cause clinically
significant distress or impairment in social, occupational, or other important areas of functioning.”
R. at 594-95. The examiner also noted that the appellant’s relationship with his children was
improving and that he was participating in hobbies. R. at 586-88.
In April 2014 the appellant underwent a VA examination, where the examiner found that
he was independent for all “basic” and “instrumental” activities of daily life, such as hygiene,
eating, housework, and managing his finances, but that overall his functional capacity “has mildly
declined.” R. at 2224, 2231. The examiner also noted that the appellant “ha[d] not worked since
the previous examination. [The appellant] described poor motivation and memory/concentration
difficulty that impacts daily tasks.” R. at 2229.
In July 2016 the Board denied TDIU, finding that “mental status examinations, throughout
the appeals period, did not reveal impairment that would render him unable to secure or maintain
employment.” R. at 18-19. The Board acknowledged the finding of the October 2011 physician
that the appellant was unemployable, but found that the December 2011 examination was more
detailed and probative, relying on the December 2011 examiner’s finding that the appellant “had
good relationships with family members” and participated in his hobbies. R. at 19. This appeal
followed.
The Court determines that the Board provided an inadequate statement of reasons or bases
for finding that the December 2011 examination was more probative that the October 2011
examination. See Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (finding that Congress
mandated, by statute, that the Board provide a written statement of reasons or bases for its
conclusions that is adequate to enable the appellant to understand the precise basis for the Board’s
4
decision and to facilitate review in this Court); see also 38 U.S.C. § 7104(d)(1) (“Each decision of
the Board shall include . . . a written statement of the Board’s findings and conclusions, and the
reasons or bases for those findings and conclusions, on all material issues of fact and law presented
in the record.”). The October 2011 physician specifically found that the appellant was
unemployable because of “nightmares, flashbacks, [] intrusive thoughts, memory disturbances,
paranoia, hypervigilance,” and feelings of isolation and emotional disconnection. R. at 1930-31.
The December 2011 examiner did not address the appellant’s ability to work or even discount the
findings of the October 2011 physician, yet the Board relied on his discussion of the appellant’s
relationship with family and engagement in hobbies as more probative evidence of employability.
R. at 19, 579-97. Remand is warranted for the Board to provide an adequate statement of its
reasons or bases for finding that the December 2011 examination was more probative than the
October 2011 physician’s finding. Gilbert, supra.
The Court also determines that the Board ignored favorable evidence in discounting the
March 2011 examination. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995)(finding that the
Board must account for and provide the reasons for its rejection of any material evidence favorable
to the claimant), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). The March 2011 examiner opined
that the appellant “would likely have marked difficulties maintaining gainful employment”
because numerous PTSD symptoms. R. at 884-85. Although the Board found that the Global
Assessment of Functioning (GAF) score the March 2011 examiner assigned “is not reflective of
the [v]eteran’s ongoing disability,” it failed to address the actual findings of the examiner in
denying TDIU. R. at 19. Remand is required for the Board to adequately address the March
2011 examiner’s employability determination. Caluza, supra.
Because the Court is remanding the appellant’s claim, it will not address his remaining
arguments. See Dunn v. West, 11 Vet.App. 462, 467 (1998). On remand, the appellant may
present, and the Board must consider, any additional evidence and arguments. See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). This matter is to be provided expeditious treatment. See
38 U.S.C. § 7112; see also Hayburn’s Case, 2 U.S. (2 Dall.) at 410, n. (“[M]any unfortunate and
meritorious [veterans], whom Congress have justly thought proper objects of immediate relief,
may suffer great distress, even by a short delay, and may be utterly ruined, by a long one.”).
5
For the foregoing reasons, that part of the Board’s July 13, 2016, decision on appeal is
VACATED, and the matter is REMANDED for readjudication.
DATED: September 26, 2017
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

Advertisements
Older Posts »

Blog at WordPress.com.