Single Judge Application, Evidentiary Guidlines, Medical Evidence, Competent Evidence, Jandreau v. Nicholson, 492 F.3d; Waters v. Shinseki, 601 F.3d

Excerpt from decision below:
"In any event, the Board admitted, on the one hand, that Mr. Byrd was competent to report his hallucinations, but required, on the other hand, competent medical evidence to substantiate these hallucinations. This is contrary to Jandreau v.
Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007), which held that lay
testimony is competent evidence of observable symptoms. See also Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010) (noting that "medical evidence" and "competent evidence" are "separate, although perhaps related, evidentiary guidelines").
Moreover, the Board seemingly rejected Mr. Byrd's reported hallucinations because they were not "persistent," as described in the rating criteria for a 100%
disability rating. 38 C.F.R. § 4.130.
However, although auditory and visual hallucinations are not explicitly
mentioned in the criteria for any lesser disability rating, the Board is not precluded from considering evidence of occasional hallucinations in concert with the assignment of a lesser disability rating. See Mauerhan, 16 Vet.App. at 442 (explaining that "the factors listed in the rating formula are 'examples' of
conditions that warrant particular ratings"). Consequently, the Court
concludes that the Board's statement of reasons or bases is inadequate and remand is therefore warranted. See Gilbert,
===========================================
----------------------------------------------------

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0479
JAMES E. BYRD, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before HAGEL, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: James E. Byrd appeals through counsel a February 2, 2009,
Board of
Veterans' Appeals (Board) decision denying entitlement to a disability
rating in excess of 30% for
post-traumatic stress disorder for the period of October 17, 2002, to
November 13, 2005. Record
(R.) at 3-22. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a)
and 7266(a) to review the
February2009Boarddecision.
BecausetheBoardfailedtoprovideanadequatestatementofreasons
or bases for its decision, the Court will vacate the February 2, 2009,
Board decision and remand the
matter for readjudication consistent with this decision.
I. FACTS
Mr. Byrd served on active duty in the U.S. Army from July 1967 to July
1969, including
service in Viet Nam.
In October 2002, Mr. Byrd filed a claim for VA benefits for post-traumatic
stress disorder.
Later that month, Mr. Byrd sought treatment for an undiagnosed psychiatric
condition that he
characterized as post-traumatic stress disorder and reported that he had "
been drinking a quart of
alcohol [a] day for many years." R. at 320. The physician informed Mr.
Byrd that "he could neither
be assessed nor treated for [post-traumatic stress disorder] until he ha[d]
at least 60 days of


documented sobriety." R. at 320. In November 2002, Mr. Byrd was
hospitalized at a VA medical
center for a period of 33 days. The treating physician acknowledged that
Mr. Byrd suffered from
post-traumatic stress disorder symptoms such as inability to sleep, fitful
sleep, nightmares, and
exaggerated startle response, but explained that Mr. Byrd denied suicidal
or homicidal ideation and
had no history of suicide attempts. The VA physician also noted that Mr.
Byrd reported being
violent in self-defense, including an incident of road rage where he "shot
a man in the cheek." R.
at 318. Upon discharge, he was found to be psychologically stable and
competent.
In March 2003, Mr. Byrd underwent a VA medical examination and reported
that he
experiencedflashbacks, nightmares,problemssleeping,wakingupfighting,
andheightenedreactions
to sound, but denied suicidal and homicidal ideation and auditoryor visual
hallucinations. Although
Mr. Byrd stated that he had a good relationship with his wife, he admitted
being irritable and angry
and avoiding other social relationships. The VA examiner described Mr.
Byrd as prone to
"vindictive behavior" and explained that he experienced "excessive anxiety,
tension, nervousness,
and depression," as well as "chronic feelings of insecurity," "withdraw[al]
from social interactions,"
and "avoidant behavior[] and intrusive thoughts." R. at 304, 306. The
examiner diagnosed Mr. Byrd
with post-traumatic stress disorder and alcohol dependence and assigned a
Global Assessment of
Functioning Score of 55.1
With regard to his employment history, the examiner noted that Mr. Byrd
hadworkedforanautomobilemanufacturerfrom1969to 2002andhadreceivedseveral
suspensions
from work for insubordination and aggressiveness, but was now "retired
from competitive
employment and likely unemployable for any other employment at [that] time
." R. at 306.
In April 2003, a VA regional office awarded Mr. Byrd a 30% disability
rating for post-
traumatic stressdisordereffectiveOctober17,2002. Mr.Byrdfileda
timelyNotice of Disagreement
with this decision and subsequently perfected his appeal. In a September
2004 hearing before the
Board, Mr. Byrd testified that he would "go off" on his wife three to four
times a week and that he
did not socialize with many people. R. at 214, 223. In December 2004, the
Board remanded Mr.
Byrd's claim for another VA medical examination.
A Global Assessment of Functioning score represents "the clinician's
judgment of the individual's overall level
of functioning" and is "useful in planning treatment and measuring its
impact[ ] and in predicting outcome." DIAGNOSTIC
AND STATISTICALMANUALOF MENTALDISORDERS 30 (4th ed. 1994); see Richard v.
Brown, 9 Vet.App. 266, 267 (1996).
1
2


In September 2005, Mr. Byrd presented at a VA medical center with
complaints of sleep
disturbances, irritability, memoryproblems, poor concentration, decreased
energyand appetite, and
depression. Mr. Byrd denied suicidal and homicidal ideation and reported "
visual hallucination[s]
of seeing shadows while driving at night," which the VA physician
characterized as "questionable."
R. at 195-96. The physician also stated that Mr. Byrd's speech was "clear,
coherent, and goal
directed,"hehad"[n]o grosscognitive impairment,"andwasconsidereda"low"
riskto harmhimself
and others. R. at 195-96. The physician diagnosed him with post-traumatic
stress disorder and
hypertension, assigned him a Global Assessment of Functioning score of 60,
and prescribed
medication "to help his paranoid thought and sleep disturbance." R. at 196.
In November 2005, Mr. Byrd underwent another VA medical examination. Mr.
Byrd
described himself as "averyangryindividual" who "is capable of great
violence, including homicide
when provoked" and "is quick to anger with only minor provocation." R. at
145. He also reported
experiencingpanic attacks, anxiety, depression, irritability, chronic
difficulties with anger including
sudden outbursts, intolerance, poor motivation, and passive thoughts of
death one or two times per
week, but denied suicidal and homicidal ideation, auditory and visual
hallucinations, paranoia, and
delusions. The VA examiner diagnosed him with severe post-traumatic stress
disorder, alcohol
dependence, depression, and dysthymia, and assigned a Global Assessment of
Functioning score of
40. The examiner explained that Mr. Byrd suffered from "major impairment
in such areas as work,
school, family relations, judgment and mood," had no friends, and suffered
from "frequent panic
attacks and frequent passive suicidal thoughts," and opined that Mr. Byrd
was unemployable. R. at
147.
The examiner attributed the "worsening of his [post-traumatic stress
disorder]
symptomatology" to "his retirement, increased free time, and . . . current
events, such as the [w]ar
in Iraq and his response to the difference in civilian treatment of Iraqi
veterans compared to Vietnam
veterans." Id.
In December 2005, the regional office awarded Mr. Byrd staged disability
ratings for his
post-traumaticstressdisorder,assigninga30%disabilityratingfromOctober17,
2002,to November
13, 2005, and a 50% disability rating thereafter. In March 2007, the Board
denied Mr. Byrd's claim
for a further increase of the staged disability ratings assigned by the
regional office in December
2005. Mr. Byrd appealed the Board decision, and in October 2007, the Court
granted the parties'
3


joint motion for remand, which instructed the Board to "further address"
Mr. Byrd's "increase in
symptomatology [since] June 2002." R. at 88.
After further development, including a January 2008 Board decision and a
June 2008 joint
motion for remand granted by the Court, Mr. Byrd submitted an October 2008
private medical
opinion addressinghis increasedpost-
traumaticstressdisordersymptomsbetweenOctober2002and
November2005. Although the private physician did not personallyexamineMr.
Byrd,the physician
based his opinion on "a thorough review of available medical documentation
[,] including two [VA
e]xaminations dated March 13, 2003, and November14, 2005." R. at 28.
Specifically, the physician
opined that "Mr. Byrd has suffered from a severe and debilitating form of [
post-traumatic stress
disorder]," with a significant "history of and capacity for anger and
violence." R. at 29. The
physician concluded that Mr. Byrd's "level of severe anger[,] which has
been a documented and
significant part of his [post-traumatic stress disorder] since at least
2002[,] renders [him] severely
disabled and unemployable since 2002." Id.
In February 2009, the Board issued the decision currently on appeal, which
denied
entitlement to a disability rating in excess of 30% for post-traumatic
stress disorder for the period
of October17, 2002, to November13, 2005. Specifically, the Board reviewed
theevidence of record
and determined that Mr. Byrd's symptoms of post-traumatic stress disorder,
including "nightmares
and chronic sleeping problems, hypervigilance, anxiety, tension,
nervousness, moderate to severe
depression, avoidant behavior, anger and irritability, and intrusive
thoughts," "most closely
approximate the criteria for a 30[% disability] rating under [Diagnostic
Code] 9411." R. at 21. The
Board also referred the issue of entitlement to a total disability rating
based on individual
unemployability to the regional office and found that "the extent to which [
Mr. Byrd] might be
unemployable due to his [post-traumatic stress disorder], but does not
meet the criteria for a rating
in excess of 30[%] prior to November 14, 2005 . . . is properly considered
in [his] total disability
rating due to individual unemployab[i]lity claim . . ., which has been
referred to the [regional
office]."2
In addition, the Board noted that Mr. Byrd was competent to report his
auditoryand visual
2
There is no such thing as a freestanding claim for a total disability
rating based on individual unemployability.
A request for entitlement to a total disability rating based on individual
unemployability "involves an attempt to obtain
an appropriate rating for a disability or disabilities, either as part of
the initial adjudication of a claim, or . . . as part of
a claim for increased compensation." Rice v. Shinseki, 22 Vet.App. 447,
453-54 (2009).
4


hallucinations but "not competent to diagnose himself as being psychotic,
having gross impairment
in thought processes, or as being delusional due to a psychiatric
condition." R. at 19. Accordingly,
the Board determined that there was no competent medical evidence of
hallucinations or delusional
behavior. Finally, the Board discounted the October 2008 private medical
opinion because the
physician who rendered the opinion did not personally examine Mr. Byrd.
II. ANALYSIS
A. Board's Determination of Appropriate Disability Rating
Mr. Byrd first argues that the Board's determination that he was not
entitled to a disability
rating in excess of 30% for his post-traumatic stress disorder for the
period of October 17, 2002, to
November 13, 2005, was clearlyerroneous. Specifically, he contends that,
because the March 2003,
November 2005, and October 2008 medical opinions indicated that he was
unemployable, he is
necessarily entitled to a disability rating in excess of 30%. The Court
disagrees.
Mr. Byrd is correct that the regulation for rating mental disorders,
including post-traumatic
stressdisorder,speaksin termsof"[o]ccupationalandsocialimpairment." 38C.F.
R. §4.130(2010).
However, the fact that the medical opinions of record indicate that Mr.
Byrd is unemployable does
not compel the conclusion that he is automatically entitled to a 100%
schedular disability rating for
"[t]otal occupational and social impairment," or even to a disability
rating in excess of 30%, which
represents "[o]ccupational and socialimpairmentwithoccasionaldecrease[s]
in work efficiencyand
intermittent periods of inability to perform occupational tasks." Id. The
disability ratings outlined
in the rating schedule "represent . . . the average impairment in earning
capacity resulting from . . .
diseases and injuries and their residual conditions in civil occupations."
38 C.F.R. § 4.1 (2010).
Because the degrees of disability specified in the rating schedule are
generally"considered adequate
to compensate for considerable loss of working time from exacerbations or
illnesses proportionate
to the severity of the several grades of disability," id., the Board may
evaluate evidence of
unemployability and determine the appropriate schedular disability rating
to be assigned, including
a disability rating that is less than total. See Wood v. Derwinski, 1 Vet.
App. 190, 193 (1991) ("The
[Board] has the duty to assess the credibility and weight to be given to
the evidence.").
5


Here,theBoardconsideredtheevidenceofunemployabilityin
therecordanddeterminedthat
"the record does not reflect occupational and social impairment due to
. . . the symptoms listed in
the criteria for a 50[% disability] rating under [Diagnostic Code] 9411,
or any symptoms that could
be considered to approximate the severity [of] such symptomatology." R. at
17. This is precisely
the sort of factual finding that is contemplated by the rating schedule,
see 38 C.F.R. § 4.1, and that
is uniquely within the purview of the Board, see Wood, 1 Vet.App. at 193.
Moreover, to the extent
that Mr. Byrd asserts that the "uncontroverted entirety of the evidence"
compels the assignment of
a higher disability rating, Appellant's Br. at 14, this argument amounts
to nothing more than a
disagreement with the way the Board weighed the evidence. See Washington v.
Nicholson,
19 Vet.App. 362, 369 (2006) (holding that it is the Board's responsibility
to determine the
appropriate weight to be given to evidence). Although the Court may have
decided this issue
differently in the first instance, the Court may not substitute its
judgment for the determinations of
the Board on issues of material fact. Hersey v. Derwinski, 2 Vet.App. 91,
94 (1992). Accordingly,
the Court concludes that the Board's determination that Mr. Byrd was not
entitled to a disability
rating in excess of 30% for his post-traumatic stress disorder for the
period of October 17, 2002, to
November 13, 2005, was not clearly erroneous. See Smallwood v. Brown, 10
Vet.App. 93, 97
(1997).
In addition, the record does not support Mr. Byrd's assertion that the
Board declined to
consider evidence of unemployability in assigning a schedular disability
rating for post-traumatic
stress disorder because it was only "properly considered" in the context
of the referred issue of
entitlement to a total disability rating based on individual
unemployability. Appellant's Br. at 14
(quoting R. at 17). Rather, the Board explicitly considered this evidence
and determined that it was
insufficient to warrant the assignment of a disability rating greater than
30%. The Board then
explained "that the extent to which [Mr. Byrd] might be unemployable due
to his [post-traumatic
stress disorder], but does not meet the criteria for a [disability] rating
in excess of 30[%] . . . is
properly considered" in conjunction with the referred issue of entitlement
to a total disability rating
based on individual unemployability. R. at 17; see Previous DocumentLocklearNext Document v. Shinseki, __
Vet.App. __, __, No. 09-
2675, slip op. at 9, 2011 WL 474693 at *6 (Feb. 11, 2011) ("[T]he criteria
for entitlement to [a total
disability rating based on individual unemployability] differs from [a]
schedular rating [for a mental
6


disorder]."). Accordingly, the Court concludes that Mr. Byrd has failed
to carry his burden of
demonstrating error in this regard. See Hilkert v. West, 12 Vet.App. 145,
151 (1999).
B. Reasons or Bases
Mr. Byrd next contends that the Board's statement of reasons or bases for
its decision was
inadequate because the Board (1) ignored evidence of unemployability; (2)
treated the criteria in the
rating schedule as requirements for assigning a higher disability rating
in violation of Mauerhan v.
Principi, 16 Vet.App. 436, 442 (2002); (3) improperlydiscounted the
October 2008 private medical
opinion; (4)improperlyrejectedevidenceofauditoryandvisual hallucinations;(
5) failedto consider
the November 2005 VA medical examination; and (6) failed to consider
whether Mr. Byrd was
entitled to a temporary 100% disability rating pursuant to 38 C.F.R. § 4.
29.
In rendering its decision, the Board is required to provide a written
statement of the reasons
or bases for its "findings and conclusions[] on all material issues of
fact and law presented on the
record." 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable
a claimant to understand
the precise basis for the Board's decision, as well as to facilitate
review in this Court. See Gilbert
v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement,
the Board must analyze
the credibility and probative value of the evidence, account for the
evidence that it finds to be
persuasive or unpersuasive, and provide the reasons for its rejection of
any material evidence
favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995),
aff'd per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table). The Board may commit error requiring
remand when it fails
to provide an adequate statement of its reasons or bases. See Gilbert, 1
Vet.App. at 57.
1. Evidence of Unemployability
First, Mr. Byrd argues that the Board's statement that evidence of
unemployability was only
properlyconsidered in the context of the referred issue of entitlement to
a total disabilityratingbased
on individual unemployability and not with regard to the assignment of a
schedular disability rating
rendered the Board's statement of reasons or bases inadequate. As
discussed in Part II.A above, this
argumentis premisedonMr.Byrd'smischaracterization oftheBoard's statement
and, therefore,fails
for the same reasons as stated above.
7


2. Mauerhan v. Principi
Second, Mr. Byrd argues that the Board treated the criteria outlined in §
4.130 as
requirements for assigning a higher disability rating in violation of
Mauerhan, 16 Vet.App. at 442.
Specifically, he contends that the Board's reasons or bases for its
decision is inadequate because "it
is difficult to tell from the decision on appeal whether or to what extent
the Board applied the Court's
holding in Mauerhan." Appellant's Br. at 19. The Court disagrees.
In Mauerhan, the Court explained that "the factors listed in the rating
formula [for mental
disorders] are 'examples' of conditions that warrant particular ratings,"
which were intended to assist
the adjudicator in differentiating between levels of disability, a task
that would be "extremely
ambiguous" without the listed factors. 16 Vet.App. at 442. However, the
Court made clear that "any
suggestion that the Board was required, in complying with the regulation,
to find the presence of all,
most, or even some, of the enumerated symptoms is unsupported by a reading
of the plain language
of the regulation." Id. Thus, this "list of examples[] provides guidance
as to the severity of
symptoms contemplated for each rating, in addition to permitting
consideration of other symptoms,
particular to each veteran and disorder, and the effect of those symptoms
on the claimant's social and
work situation." Id.
Here, the Board recited the rating criteria for assigning a 30%, 50%, 70%,
and 100%
disability rating for post-traumatic stress disorder. However, contrary to
Mr. Byrd's contention, the
Board did not mechanically apply the list of factors at each level as if
they were prerequisites to the
next higher disability rating. Rather, the Board set forth Mr. Byrd's
symptoms and diagnoses as
reflected in the evidence of record (excluding the November 2005 VA
medical opinion, see Part
II.B.5 below), which included symptoms that are listed in the rating
criteria in § 4.130 and others that
are not, such as Mr. Byrd's anger and his inability to cry. The Board then
evaluated all of his
symptoms and determined that they "most closely approximate the criteria
for a 30[% disability]
rating." R. at 21. Based on the foregoing, the Court concludes that the
Board's actions in this case
comply with the Court's holding in Mauerhan and, therefore, the Board's
statement of reasons or
bases is not inadequate in that regard. See Gilbert, 1 Vet.App. at 57; see
also Hilkert, 12 Vet.App.
at 151.
8


3. October 2008 Private Medical Opinion
Third, Mr. Byrd asserts that the Board improperly discounted the October
2008 private
medical opinion because the physician did not personally examine him.
Although Mr. Byrd is
correct that retrospective medical opinions can be probative in certain
instances, see, e.g., Chotta v.
Peake, 22 Vet.App. 80 (2008), the Board is permitted to favor one opinion
over another provided
that it gives an adequate statement of its reasons and bases for doing so.
See Simon v. Derwinski,
2 Vet.App. 621, 622 (1992). Here, the Board explained that it ascribed
more probative value to the
March2003andNovember2005VAmedicalopinions that,
unliketheOctober2008privatemedical
opinion, included personal evaluations of Mr. Byrd conducted
contemporaneous to the staged rating
period at issue in this case. Such an assessment of evidence is within the
Board's purview as
factfinder, see Washington, 19 Vet.App. at 369, and the Court concludes
that the Board's statement
explaining its reasons or bases for discounting the October 2008 private
medical opinion is adequate
to facilitate judicial review and to enable Mr. Byrd to understand the
precise basis for this
determination. See Gilbert, 1 Vet.App. at 57.
4. Hallucinations
Fourth, Mr. Byrd argues that the Board improperly rejected his reports of
experiencing
auditory and visual hallucinations. The Court agrees.
In September 2005, Mr. Byrd reported experiencing unspecified
auditoryhallucinations and
"visual hallucination[s] of seeing shadows while driving at night." R. at
195-96, 198. The Board
explained that auditory and visual hallucinations demonstrated post-
traumatic stress disorder
symptoms "more severe than a 30[%] disability rating indicates" and
acknowledged that Mr. Byrd
was competent to report the occurrence of such hallucinations. R. at 19.
However, the Board stated
that Mr. Byrd was "not competent to diagnose himself as being psychotic,
having gross impairment
in thought processes, or as being delusional due to a psychiatric
condition." Id. The Board therefore
concluded that the "competent medical evidence of record reflects no
hallucinations or delusional
behavior, much less persistent delusions or hallucinations," and that "
even considering [Mr. Byrd]'s
reported symptoms of seeing and hearing things in September 2005, such
reports . . . do not, without
competent medical evidence indicating that [he] had delusions or
hallucinations related to post-
traumatic stress disorder, warrant a disability rating in excess of 30[%]."
R. at 19-20.
9


This explanation is deficient for a number of reasons. First, the rating
criteria for a 100%
disability rating does not require a diagnosis of psychosis or a
delusional psychiatric condition;
rather, "persistent delusions or hallucinations" are included in a
nonexhaustive list of symptoms that
demonstrate "[t]otal occupational and social impairment." 38 C.F.R. § 4.
130; see Mauerhan,
16 Vet.App. at 442 (holding that the phrase "such symptoms as" in § 4.130
indicates that the listed
criteria "are not intended to constitute an exhaustive list, but rather
are to serve as examples of the
type and degree of the symptoms, or their effects, that would justify a
particular rating"). Similarly,
"gross impairment in thought processes or communication" is a separate
entry on this list and,
therefore, Mr. Byrd's lack of a diagnosis of gross impairment in thought
processes should not affect
the Board's evaluation of his reported hallucinations. Id. In any event,
the Board admitted, on the
one hand, that Mr. Byrd was competent to report his hallucinations, but
required, on the other hand,
competent medical evidence to substantiate these hallucinations. This is
contrary to Jandreau v.
Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007), which held that lay
testimony is competent
evidence of observable symptoms. See also Waters v. Shinseki, 601 F.3d
1274, 1277 (Fed. Cir.
2010) (noting that "medical evidence" and "competent evidence" are "
separate, although perhaps
related, evidentiary guidelines").
Moreover,theBoardseeminglyrejectedMr.
Byrd'sreportedhallucinationsbecausetheywere
not "persistent," as described in the rating criteria for a 100%
disability rating. 38 C.F.R. § 4.130.
However, although auditory and visual hallucinations are not explicitly
mentioned in the criteria for
any lesser disability rating, the Board is not precluded from considering
evidence of occasional
hallucinations in concert with the assignment of a lesser disability
rating. See Mauerhan,
16 Vet.App. at 442 (explaining that "the factors listed in the rating
formula are 'examples' of
conditions that warrant particular ratings"). Consequently, the Court
concludes that the Board's
statement of reasons or bases is inadequate and remand is therefore
warranted. See Gilbert,
1 Vet.App. at 57.
5. November 2005 VA Medical Examination
Fifth, Mr. Byrd contends that the Board failed to consider the November
2005 VA medical
opinion. The Secretaryconcedes that the Board did not discuss this medical
opinion, but asserts that
the Board was not required to discuss it because it was not relevant to
the issue of the severity of Mr.
10


Byrd's post-traumatic stress disorder prior to November 2005. The
Secretary's argument is
unpersuasive.
The VA examiner began his medical opinion by discussing Mr. Byrd's "
psychosocial
adjustment since the last exam[ination]" in March 2003. R. at 145.
Specifically, Mr. Byrd reported
"an increase in his [post-traumatic stress disorder symptomatology" since
his retirement in June
2002, including panic attacks, anxiety, depression, irritability, chronic
difficulties with anger
including sudden outbursts, intolerance, poor motivation, and passive
thoughts of death one or two
times per week. R. at 145-46. Mr. Byrd also explained that, since his last
examination in March
2003,hehadbecome"averyangryindividual"who"iscapableofgreat violence,
includinghomicide
when provoked" and "is quick to anger with only minor provocation." R. at
145. The examiner then
attributedMr.Byrd's increasedpost-traumaticstressdisordersymptoms to "
hisretirement,increased
free time, and . . . current events, such as the [w]ar in Iraq and his
response to the difference in
civilian treatment of Iraqi veterans compared to Vietnam veterans," all of
which occurred before
November 2005.3
R. at 147.
Accordingly, the November 2005 VA medical examination contains potentially
favorable
evidence that could support a disability rating in excess of 30% for Mr.
Byrd's post-traumatic stress
disorder for the period of October 17, 2002, to November 13, 2005.
Although "a discussion of all
evidence is not required when . . . the Board has supported its decision
with thorough reasons or
bases regarding the relevant evidence," Dela Cruz v. Principi, 15 Vet.App.
143, 149 (2001), the
Court concludes that the Board's failure to explain whyit rejected this
potentiallyfavorable evidence
renders its statement of reasons or bases inadequate. See Caluza, 7 Vet.
App. at 506.
6. Temporary Total Disability Rating
Sixth, Mr.Byrd asserts that the Board's statement ofreasons
orbaseswasinadequatebecause
the Board did not address the issue of entitlement to a temporary 100%
disability rating pursuant to
38 C.F.R. § 4.29. This regulation, in pertinent part, provides: "A total
disability rating (100 percent)
will be assigned . . . when it is established that a service-connected
disability has required hospital
3
The Court takes judicial notice of the fact that U.S. military action in
Iraq began on March 20, 2003. See Smith
v. Derwinski, 1 Vet.App. 235, 238 (1991) ("Courts may take judicial notice
of facts not subject to reasonable dispute."
(citing FED. R. EVID. 201(b))).
11


treatment in a Department of Veterans Affairs or an approved hospital for
a period in excess of 21
days." 38 C.F.R. § 4.29 (2010). Although the Secretary argues that this
issue is being raised for the
first time on appeal, the record reveals that Mr. Byrd was hospitalized at
a VA medical from
November 18, 2002, to December 30, 2002, a period exceeding 21 days.
Accordingly, the Court
concludes that entitlement to a temporary total disability rating under §
4.29 was reasonably raised
by the record and the Board was, therefore, obligated to consider it. See
38 U.S.C. § 7104(a);
Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991).
The Court acknowledges the Secretary's argument that the Board's failure
to consider
entitlement to benefits under § 4.29 was harmless error because Mr. Byrd
was hospitalized for
alcohol dependence and not for treatment of post-traumatic stress disorder,
which had not been
diagnosed at the time. However,thereasonforMr. Byrd's hospitalization is
unclear from the record.
See R. at 317-18 (discussing Mr. Byrd's history of substance abuse and
psychiatric history, noting
that Mr. Byrd "had a hard time after returning from Vietnam," and listing
his "post-traumatic stress
disorder symptoms"). Moreover, Mr. Byrd filed a claim for VA benefits for
post-traumatic stress
disorderinOctober2002,amonth beforehis hospitalization,
andwassubsequentlyawardedbenefits
effective October 17, 2002. Because the Board made no factual findings on
the matter, and because
the Court "is not a trier of fact and is not in a position to make . . .
factual determination[s],"
Zevalkink v. Brown, 102 F.3d 1236, 1244 (Fed. Cir. 1996), the Court will
remand the matter to the
Board for adjudication in the first instance. See also Hensley v. West,
212 F.3d 1255, 1263 (Fed. Cir.
2000) (explaining that "appellate tribunals are not appropriate fora for
initial fact finding").
C. Compliance with the Court's October 2007 Remand
Finally, Mr. Byrd argues that the Board failed to ensure compliance with
the Court's October
2007 remand because the Board failed to discuss the November 2005 VA
medical examination.
Although the parties dispute what the joint motion for remand actually
instructed the Board to do,
the Court has already concluded that the Board committed error in not
discussing this medical
examination. See Part II.B.5 above. Consequently, because the Court will
remand the Board
decision for a new statement of reasons or bases, including consideration
of the November 2005 VA
medical examination, there is no need to further address this particular
allegation of error.
12


III. CONCLUSION
Uponconsideration oftheforegoing,theFebruary2,2009,
BoarddecisionisVACATEDand
the matter REMANDED for readjudication consistent with this decision.
DATED: April 26, 2011
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
13