Excerpt from decision below:
“The Court agrees with Mr. Matherne that the Board’s reasons or bases for its decision were inadequate in three respects. First, although the Board purported to assess the severity, frequency, and duration of the veteran’s psychiatric symptoms, it did so only with respect to his ability to establish and maintain effective relationships. See R. at 15-16. The remainder of the Board’s decision consists of mere recitations of the evidence followed by unexplained conclusions that the veteran’s symptoms do not cause the level of occupational and social impairment necessary for a higher evaluation. 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.”).
For instance, the Board noted that the veteran exhibited symptoms expressly listed in the criteria for a 70% evaluation—impaired impulse control and suicidal ideation—and for a 100%
evaluation—paranoid thoughts and a persistent danger of hurting himself—but did not mention the severity, frequency, and duration of those symptoms or otherwise attempt to quantify their impact in terms of occupational and social impairment, as required by Vazquez-Claudio, 713 F.3d at 116-17, and Bankhead, 29 Vet.App. at 22. Instead, the Board simply juxtaposed those symptoms against a list of the other symptoms listed in the 70% and 100% evaluation criteria that
the veteran did not have, apparently in an implicit attempt to discount their seriousness. Because
that approach runs afoul of the Court’s holding in Mauerhan, 16 Vet.App. at 442, the Board failed
7
to adequately explain its rejection of the favorable evidence of symptoms expressly listed in the
criteria for 70% and 100% evaluation. The Board’s reasons or bases for its decision were therefore inadequate in that regard. See Caluza, 7 Vet.App. at 506.
Second, while the Board noted some of Mr. Matherne’s psychiatric symptoms, R. at 16-17, it failed to address others that may suggest a greater degree of occupational and social impairment.
Significantly, the Board did not analyze or discuss the record evidence of speech impairment, attention disturbances, inability to do serial 7s or spell a word forward and backward, crying episodes, fear of driving, difficulty with executive functions, impaired judgment, social
inappropriateness, disorientation, and mild psychomotor agitation. R. at 129, 827, 829, 1054-56, 1058. Although the Board is presumed to have considered all evidence of record when making its decision, see Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007), that presumption does
not relieve the Board of its independent obligation to perform the analysis required by Vazquez-Claudio—that is, to assess the severity, frequency, and duration of psychiatric symptoms when determining the appropriate disability evaluation to assign for a service-connected mental disorder.
713 F.3d at 116-17. The Board’s failure to do so in this case and to otherwise address the foregoing
favorable evidence further diminishes its reasons or bases for its decision. See Caluza, 7 Vet.App. at 506.
Finally, the Board concluded that, for the period on appeal, Mr. Matherne’s serviceconnected
mental disorders did not cause the level of occupational and social impairment necessary for a 70% evaluation—i.e., occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood—without expressly assessing whether the veteran had deficiencies in any of those areas. As outlined above, the
evidence of record suggests that the veteran’s service-connected mental disorders caused deficiencies in work (difficulty with executive function; memory, concentration, and speech impairment; attention disturbances; and social inappropriateness), family relations (estrangement from his wife), judgment (impaired impulse control and judgment), thinking (suicidal ideation, persistent danger of hurting himself, paranoia, intrusive thoughts, fear of driving, and cognitive impairment), and mood (anxiety, depression, crying episodes). R. at 128, 190-91, 827, 882, 1054-55, 1058. Although a claimant cannot establish entitlement to a 70% evaluation merely by showing deficiencies in most of the listed areas, see Vazquez-Claudio, 713 F.3d at 118 (specifically rejecting that notion), the Board must adequately explain its finding that a service-connected
8
mental disorder did not cause occupational and social impairment with deficiencies in most of those areas to provide adequate reasons or bases for its decision, see Mittleider, 11 Vet.App. at 182; Gilbert, 1 Vet.App. at 57; see also Dennis, 21 Vet.App. at 22.
=====================
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 17-0139
ARMAND A. MATHERNE, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
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 Armand A. Matherne appeals through counsel a November
23, 2016, Board of Veterans’ Appeals (Board) decision denying an initial disability evaluation in
excess of 50% for generalized anxiety disorder and dysthymic disorder since October 29, 2008.
Record (R.) at 2-19. Single-judge disposition is appropriate in this case. See Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). This appeal is timely and the Court has jurisdiction to review the
Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the
Court will set aside the November 2016 Board decision and remand the matter for readjudication
consistent with this decision.
I. FACTS
Mr. Matherne served on active duty in the U.S. Army from October 1951 to September
1953, including as a medic in a MASH unit in Korea. R. at 517, 1053-54. In October 1952, he
was involved in a jeep accident and sustained multiple injuries. R. at 2948.
In November 2002, Mr. Matherne filed a claim for service connection for post-traumatic
stress disorder (PTSD), R. at 1623, which was denied by a VA regional office (RO) in February
2003, R. at 1588-98. He filed a timely Notice of Disagreement (NOD) as to that decision in April
2
2003, R. at 1558-60; the RO issued a Statement of the Case (SOC) in February 2004 continuing to
deny the claim, R. at 1498-1516; and he timely perfected an appeal to the Board later that month,
R. at 1475-77.
After further development not relevant here, see, e.g., R. at 1465-74, Mr. Matherne was
afforded a VA psychiatric examination in October 2008, R. at 1052-61. He tearfully reported that
he and his wife often “get into it” and indicated that she was currently staying with his daughter.
R. at 1054-55. He stated that he had some friends that he rarely sees and that he had no leisure
activities other than walking. R. at 1054. The veteran further described feelings of loneliness,
hopelessness, and worthlessness; sleep impairment, including nightmares and insomnia that left
him fatigued; hyperstartle reaction; depression and tearfulness; and feeling as if he is being
followed. R. at 1056-58. On mental status examination, Mr. Matherne’s speech was hesitant and
slow, his mood was dysphoric, he was unable to do serial 7s or spell a word forward and backward,
and his remote, recent, and immediate memory were mildly impaired. R. at 1056, 1058. He
indicated that he had not driven a car since the jeep accident in 1953 because he felt like he
“couldn’t do it.” R. at 1058. The examiner diagnosed generalized anxiety and dysthymic disorders
and opined that those conditions were more likely than not related to service, including his combat
experiences and the jeep accident. R. at 1059-60.
In August 2009, the Board denied service connection for PTSD but granted service
connection for generalized anxiety disorder and dysthymic disorder. R. at 971-84. The following
month, the RO assigned a 30% evaluation for those service-connected mental disorders effective
November 8, 2002—the date of his claim—and a 50% evaluation effective October 29, 2008—the
date of the most recent VA examination. R. at 942-62. The veteran filed a timely NOD as to the
assigned evaluations in June 2010, R. at 912; the RO issued an SOC in November 2012 denying
higher initial evaluations, R. at 711-31; and he timely perfected an appeal later that month, R. at
707.
In the meantime, Mr. Matherne was afforded a VA traumatic brain injury (TBI)
examination in April 2011 in conjunction with another claim and he complained of sleep
disturbances, fatigue, memory loss, difficulty with executive functions, irritability, and
restlessness. R. at 827. He also reported impaired judgment, occasional social inappropriateness,
and occasional disorientation. R. at 829. The examiner indicated that he was unable to state,
without resort to speculation, which of the veteran’s psychiatric problems were related to TBI and
3
which were related to the service-connected mental disorders. Id. However, a subsequent VA
TBI examiner found that, although the veteran suffered a mild TBI in the jeep accident, none of
his current psychiatric problems was related to that TBI. R. at 504-05.
In April 2013, Mr. Matherne telephoned the VA medical center in New Orleans and stated
that he was going to jump off a bridge. R. at 190. A VA suicide prevention coordinator later
contacted the veteran’s wife, who reported that he “makes these comments all the time.” R. at 191.
At a VA psychiatric medication check the following month, the veteran described himself as very
depressed and anxious, and it was noted that he had a sad affect with decreased range. R. at 190.
At a September 2014 Board hearing, Mr. Matherne testified that he did not go out and
mostly stayed home and watched television. R. at 3040. He stated that he did not have any friends,
R. at 3044, and agreed with his representative’s assertion that he had “little to no social activity”
except for interacting with his wife and daughter, R. at 3046.
In November 2014, the Board increased the veteran’s psychiatric evaluation to 50%, but no
higher, prior to October 29, 2008,1 and remanded for further development the issue of entitlement
to an evaluation in excess of 50% since that date. R. at 418-29. Pursuant to that remand order,
Mr. Matherne was afforded another VA psychiatric examination in October 2015, at which time
he stated that, although he had “all right” relationships with his wife and children, he had no close
friends and primarily spent his days watching television. R. at 128. He endorsed nightmares and
other sleep difficulties, fatigue, avoiding thoughts about service, hyperstartle reaction, feelings of
being followed, hypervigilance, disturbances of mood, and occasional feelings of worthlessness.
R. at 128-29. The examiner noted mild psychomotor agitation and jumpiness and indicated that
the veteran also suffered from anxiety and difficulty in establishing and maintaining effective work
and social relationships. R. at 129. She opined that the veteran’s current psychiatric symptoms
were attributable to his anxiety disorder, rather than the in-service TBI, and concluded that those
symptoms caused occupational and social impairment with occasional decreases in work
efficiency and intermittent periods of inability to perform occupational tasks. R. at 126-27.
Following an October 2015 Supplemental SOC, R. at 114-24, the Board in November 2015
denied a psychiatric evaluation in excess of 50% since October 29, 2008, R. at 78-88. Mr.
1 The veteran timely appealed the Board’s denial of an evaluation in excess of 50% prior to October 29, 2008,
and this Court granted a joint motion to remand that issue in November 2015. R. at 91-101. That issue is not part of
the current appeal.
4
Matherne timely appealed that decision to the Court, which, in September 2016, granted a JMR
stipulating that the Board had provided inadequate reasons or bases for its decision because it had
improperly discounted the severity of the veteran’s April 2013 statements that he was going to
jump off a bridge. R. at 39-45.
In November 2016, the Board issued the decision currently on appeal, which denied an
evaluation in excess of 50% for generalized anxiety disorder and dysthymic disorder since October
29, 2008. R. at 2-19. The Board acknowledged that the veteran had some symptoms listed in the
criteria for higher evaluations—namely, impaired impulse control and suicidal ideation for a 70%
evaluation and a belief that people were following him and a “persistent danger of hurting himself”
for a 100% evaluation—but declared that those symptoms could “[]not be viewed in isolation of
the other evidence of [his] overall functioning,” which showed a “level of functioning greater than
that contemplated by the 70[% evaluation] category.” R. at 15. In support of that finding, the
Board listed all the symptoms in the 70% and 100% evaluation that the veteran did not have and
explained why his social problems did not amount to an inability to establish and maintain effective
relationships. R. at 15-17. The Board additionally noted some of the veteran’s other symptoms,
which the Board found consistent with the level of occupational and social impairment associated
with a 50% evaluation. R. at 16. This appeal followed.
II. ANALYSIS
Mr. Matherne argues that the Board misapplied 38 C.F.R. § 4.130 and provided inadequate
reasons or bases for its decision because it did not adequately assess the severity, frequency, and
duration of his psychiatric symptoms and failed to properly quantify the level of occupational and
social impairment that they caused. Appellant’s Brief (Br.) at 6-12; Reply Br. at 1-7. The Secretary
disputes these contentions and urges the Court to affirm the Board decision because the Board’s
denial of a higher evaluation was not clearly erroneous and was adequately explained. Secretary’s
Br. at 7-15.
Mental disorders are evaluated as 50% disabling when they cause
[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
5
mood; difficulty in establishing and maintaining effective work and social
relationships.
38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2017). To qualify for the next higher evaluation
of 70%, a mental disorder must manifest with
[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.
Id.
Use of the term “such symptoms as” in § 4.130 indicates that the list of symptoms that
follows is non-exhaustive, meaning that VA is not required to find the presence of all, most, or
even some of the enumerated symptoms to assign a particular evaluation. Vazquez-Claudio v.
Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed.
Cir. 2004); Mauerhan v. Principi, 16 Vet.App. 436, 442 (2002). However, because “[a]ll nonzero
disability levels [in § 4.130] are also associated with objectively observable symptomatology,” and
the plain language of the regulation makes it clear that “the veteran’s impairment must be ‘due to’
those symptoms,” “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.” Vazquez-Claudio, 713 F.3d at 116-17. “[I]n the context of a
70[%] rating, § 4.130 requires not only the presence of certain symptoms but also that those
symptoms have caused occupational and social impairment in most of the referenced areas.” Id.
at 117. In sum, VA is required to perform a “holistic analysis” in which it “assesses the severity,
frequency, and duration of the signs and symptoms of the veteran’s service-connected mental
disorder; quantifies the level of occupational and social impairment caused by those signs and
symptoms; and assigns an evaluation that most nearly approximates that level of occupational and
social impairment.” Bankhead v. Shulkin, 29 Vet.App. 10, 22 (2017).
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
6
there 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 findingon a material issue of fact and law presented on the record, the Board must support its serviceconnection determination with an adequate statement of reasons or bases that enables the claimant
to understand the precise basis for that determination and facilitates review in this Court. 38 U.S.C.
§ 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990); see Mittleider v. West, 11 Vet.App.181, 182 (1998) (explaining that the need for adequate reasons or bases is “particularly acute when[Board] findings and conclusions pertain to the degree of disability resulting from mental disorders”). To comply with this requirement, the Board must analyze the credibility and probative
value of evidence, account for evidence that it finds persuasive or unpersuasive, and provide
reasons for its rejection of 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 Court agrees with Mr. Matherne that the Board’s reasons or bases for its decision were inadequate in three respects. First, although the Board purported to assess the severity, frequency, and duration of the veteran’s psychiatric symptoms, it did so only with respect to his ability to
establish and maintain effective relationships. See R. at 15-16. The remainder of the Board’s decision consists of mere recitations of the evidence followed by unexplained conclusions that the veteran’s symptoms do not cause the level of occupational and social impairment necessary for a higher evaluation. 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.”).
For instance, the Board noted that the veteran exhibited symptoms expressly listed in the
criteria for a 70% evaluation—impaired impulse control and suicidal ideation—and for a 100%
evaluation—paranoid thoughts and a persistent danger of hurting himself—but did not mention
the severity, frequency, and duration of those symptoms or otherwise attempt to quantify their
impact in terms of occupational and social impairment, as required by Vazquez-Claudio, 713 F.3d
at 116-17, and Bankhead, 29 Vet.App. at 22. Instead, the Board simply juxtaposed those
symptoms against a list of the other symptoms listed in the 70% and 100% evaluation criteria that
the veteran did not have, apparently in an implicit attempt to discount their seriousness. Because
that approach runs afoul of the Court’s holding in Mauerhan, 16 Vet.App. at 442, the Board failed
7
to adequately explain its rejection of the favorable evidence of symptoms expressly listed in the
criteria for 70% and 100% evaluation. The Board’s reasons or bases for its decision were therefore
inadequate in that regard. See Caluza, 7 Vet.App. at 506.
Second, while the Board noted some of Mr. Matherne’s psychiatric symptoms, R. at 16-17,
it failed to address others that may suggest a greater degree of occupational and social impairment.
Significantly, the Board did not analyze or discuss the record evidence of speech impairment,
attention disturbances, inability to do serial 7s or spell a word forward and backward, crying
episodes, fear of driving, difficulty with executive functions, impaired judgment, social
inappropriateness, disorientation, and mild psychomotor agitation. R. at 129, 827, 829, 1054-56,
1058. Although the Board is presumed to have considered all evidence of record when making its
decision, see Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007), that presumption does
not relieve the Board of its independent obligation to perform the analysis required by Vazquez-
Claudio—that is, to assess the severity, frequency, and duration of psychiatric symptoms when
determining the appropriate disability evaluation to assign for a service-connected mental disorder.
713 F.3d at 116-17. The Board’s failure to do so in this case and to otherwise address the foregoing
favorable evidence further diminishes its reasons or bases for its decision. See Caluza, 7 Vet.App.
at 506.
Finally, the Board concluded that, for the period on appeal, Mr. Matherne’s serviceconnected
mental disorders did not cause the level of occupational and social impairment
necessary for a 70% evaluation—i.e., occupational and social impairment with deficiencies in most
areas, such as work, school, family relations, judgment, thinking, or mood—without expressly
assessing whether the veteran had deficiencies in any of those areas. As outlined above, the
evidence of record suggests that the veteran’s service-connected mental disorders caused
deficiencies in work (difficulty with executive function; memory, concentration, and speech
impairment; attention disturbances; and social inappropriateness), family relations (estrangement
from his wife), judgment (impaired impulse control and judgment), thinking (suicidal ideation,
persistent danger of hurting himself, paranoia, intrusive thoughts, fear of driving, and cognitive
impairment), and mood (anxiety, depression, crying episodes). R. at 128, 190-91, 827, 882, 1054-
55, 1058. Although a claimant cannot establish entitlement to a 70% evaluation merely by
showing deficiencies in most of the listed areas, see Vazquez-Claudio, 713 F.3d at 118 (specifically
rejecting that notion), the Board must adequately explain its finding that a service-connected
8
mental disorder did not cause occupational and social impairment with deficiencies in most of
those areas to provide adequate reasons or bases for its decision, see Mittleider, 11 Vet.App. at
182; Gilbert, 1 Vet.App. at 57; see also Dennis, 21 Vet.App. at 22. The Board’s failure to do so
in this case prevents Mr. Matherne from understanding the precise basis for the Board’s denial of
a psychiatric evaluation in excess of 50% and frustrates judicial review of that issue. See Gilbert,
1 Vet.App. at 57.
Accordingly, the Court concludes that the Board provided inadequate reasons or bases for
its decision, necessitating remand. 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”).
III. CONCLUSION
Upon consideration of the foregoing, the November 23, 2016, Board decision is SET
ASIDE and the matter is REMANDED for readjudication consistent with this decision.
DATED: March 27, 2018
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)
Veteranclaims's Blog 