Saturday, October 29, 2011

Single Judge Application, MacWhorter v. Derwinski, 2 Vet.App. 655, 656 (1992), Secretary's Failure to Address Arguments Are Conceded

Excerpt from decision below: "Specifically, he contends that the Board assigned the date as the time when he "first evidenced mild memory loss and suspiciousness" (R. at 31), despite evidence of memory impairment as early as 1998. The Secretary does not respond to these arguments,4 and the Court will construe the Secretary's omission as a concession of error. See MacWhorter v. Derwinski, 2 Vet.App. 655, 656 (1992) (warning the Secretary that failure to address all arguments may result in the Court determining those points are conceded)." ========================================= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-2307 CURTIS W. FETTY, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before DAVIS, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. DAVIS, Judge: U.S. Air Force veteran Curtis W. Fetty appeals pro se from an April 28, 2009,BoardofVeterans'Appeals(Board)decisionthatgranted30%disabilityratings, butnohigher, for post-traumatic stress disorder (PTSD)andpesplanus.1 For the reasons that follow, the Court will affirm in part, modifyin part, and set aside in part the April 2009 Board decision and remand matters for further proceedings consistent with this decision. I. ANALYSIS A. PTSD Mr. Fettyfirst argues that, for several reasons, the Board erred byfailingto assign a disability rating higher than 30% for his service-connected PTSD. A Board determination of the appropriate The Board also awarded service connection for a cervical spine disorder, assigned a separate 10% rating for degenerative joint disease of the bilateral first metatarsals, and denied service connection for hemorrhoids. Because Mr. Fetty presents no argument on appeal as to these matters, the Court deems these issues abandoned. See Ford v. Gober, 10 Vet.App. 531, 535 (1997). The Board also remanded a request for an earlier effective date prior to January 26, 1998, for the assignment of a 10% disability rating for service-connected bilateral pes planus. Because a final decision has not been issued as to the matter, that issue is not before the Court. See 38 U. S.C. § 7252; Hampton v. Gober, 10 Vet.App. 481, 483 (1997) ("Because a final decision has not been issued by the [ Board] with respect to the claims that were remanded, those claims cannot be reviewed by the Court on this appeal."). 1 degree of disability under the rating code is a finding of fact subject to the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); see Smallwood v. Brown, 10 Vet.App. 93, 97 (1997). "'A finding is "clearly erroneous" when although 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.'" Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Under the applicable diagnostic code (DC) for PTSD, the criteria for a 30% disability rating for PTSD is warranted where a veteran suffers from [o]ccupational and social impairment with occasional decrease in work efficiency andintermittentperiodsofinabilityto performoccupational tasks( althoughgenerally functioningsatisfactorily,withroutinebehavior,self-care, andconversationnormal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Criteria for a 50% disability rating are as follows: Occupational 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;disturbancesofmotivation andmood; difficultyin establishingand maintaining effective work and social relationships. A 70% disability rating is warranted when there is [o]ccupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411 (2011). 2 This Court has held that "the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code." Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Rather, the examiner must "consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the [Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition]." Id. Further, the Court held that the symptoms listed in § 4.130's rating formula are merely "examples" of symptoms that warrant certain ratings, and "are not intended to constitute an exhaustive list." Id. at 442. Because the diagnostic criteria are the essential rating criteria, however, it is not error to rely on such criteria. Sellers v. Principi, 372 F.3d 1318, 1327 (Fed. Cir. 2004) (holding that "the criteria listed in the [general rating formula] are . . . the rating formula adopted by the Secretary in rating [ PTSD] claims."). 1. Lost Earnings Mr. Fetty asserts that the Board erred in discounting evidence demonstrating that his PTSD resulted in "impairment of his earnings." Appellant's Brief (Br.) at 18. Specifically, he reasoned in October 2000 that had he become an airline pilot after separation from the Air Force, by 2000 he would have been a junior airline captain earning approximately $132,000 per year. See Record (R.) at 1399-1400. He contends that his PTSD symptoms precluded him from following that career path, and instead, he was a government lawyer earning approximately $70,000 per year. See id. He asserts that this lost income should be equated to a level of occupational impairment in the 50% rating criteria. Appellant's Br. at 18. The Board considered Mr. Fetty's argument in this regard, but onlyas it pertained to an extra- schedular rating, holding that this Court's decision in Thun v. Shinseki, 22 Vet.App. 111 (2008), explained that an extraschedular rating "'does not contemplate or require a calculation of the income that may not have been realized because of a service-connected disability.' " R. at 40 (quoting Thun, 22 Vet.App. at 117). Mr. Fetty replies that Thun "did not state that impairment of earning power has no bearing on the schedular disability level assigned." Appellant's Br. at 18 (emphasis added). The Court disagrees that the Board should have considered the perceived earning capacity impairment when assigning a disability rating. Instead, the Board is to consider the symptoms that affect occupational impairment. See Mauerhan, 16 Vet.App. at 443 ("[T]he rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social 3 impairment."). Thus, it is the underlying symptoms that may prevent him from practicing in his chosen profession, such as anxiety or impairment in judgment, that are relevant to a disability rating assessment, not the discrepancy in salaries. In addition, although Thun does not speak directly to this issue, it provides support for the notion that actual wages play no part in a schedular disability rating. In that decision, the Court acknowledged that "manyveterans receiving benefits mayexperience a greater or lesser impairment of earning capacity than average as a result of their disability"; however, the rating schedule is based on an "average impairment in earning capacity." 22 Vet.App. at 116. The Court specifically stated that "the actual wages or income earned by a particular veteran are not considered relevant to the calculation of the average impairment of earning capacity caused by a disability." Id. In sum, the Court finds no clear error in the Board's failure to consider Mr. Fetty's perceived loss of actual wages when determining his appropriate disability rating. 2. Weighing of Symptoms Mr. Fettyfurthercontends that the Board did not appropriatelyweigh the evidence of record. Specifically, he contends that the record contains statements as to symptoms that "do fit in the 50[%] rating category" (Appellant's Br. at 19 (identifying isolation, bruxism,2 depression, anxiety, numbness, obsessive behavior, hyper-vigilance, and short and intermediate- termmemoryloss)), but the Board erroneously found that "'there is no indication that such emotions amounted to 'disturbances' of motivation or mood necessary for assignment of a 50[%] rating.'" Appellant's Br. at 19 (quoting R. at 28). The Court is not persuaded that the evidence of record is so indicative of a 50% disability rating as to render clearly erroneous the Board's conclusion that "the evidence clearly indicates that symptomatology associated with the Veteran's PTSD meets the criteria for assignment of a 30[%] evaluation." R. at 27. Although Mr. Fetty contends that the evidence corresponds with a 50% disability rating, the Board evaluated the evidence and provided adequate justification for the 30% rating. In particular, the Board described Mr. Fetty's "normal" speech, coherence, "good" long-term Bruxism is "involuntary, nonfunctional, rhythmic or spasmodic gnashing, grinding, and clenching of teeth (not including chewing movements of the mandible), usually during sleep, sometimes leading to occlusal trauma." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 257 (32nd ed. 2012). 2 4 memory, "little or no difficulty understanding complex commands," no evidence of impairment of thought processes, "little evidence" of mood and motivation disturbances, and Global Assessment of Functioning (GAF) scores ranging from 62 to 85, which are " predominately reflective of slight to mild symptoms." R. at 29. The Board also acknowledged Mr. Fetty's anxiety, memory loss, and the evidence of difficulty in establishing and maintaining effective work and social relationships, including his preference to be alone. The Board determined, however, that difficulty with work and social relationships is onlyone of the criteria for a 50% rating, but in contrast, a 30% disabilityrating contemplates his level of anxietyand memoryloss, and his predominant disabilitypicture, including sleeping difficulties, depressed mood, and anxiety. Mr. Fetty's predominant issues, the Board reasoned, "fit[] precisely into the criteria for a 30[%] rating." R. at 29. The Board also noted that Mr. Fetty met two of the seven criteria listed under a 70% rating; Mr. Fetty argues that the Board should therefore have explained why he was not then entitled to a rating of at least 50% under the equipoise standard. That a claimant displays exemplary symptoms from a higher rating category, however, does not necessarily entitle that claimant to a higher rating. Rather, when there is a question as to which of two ratings to apply, the Board will assign the higher rating only if the veteran's disability "more nearly approximates" the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2011). Here, as stated previously, the Board adequately explained why Mr. Fetty's symptoms did not more nearly approximate a rating in excess of 30%. Error does occur, however, when the Board fails to consider evidence that certain symptoms that are not listed in the diagnostic criteria are causing economic or social impairment that is equivalent to the impairment caused by the enumerated symptoms. Mauerhan, 16 Vet.App. at 443 ("If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned."). Thus, as to those unlisted symptoms, the inquiry is whether the claimant displays relevant symptoms beyond those listed in the rating criteria. See id.; 38 C.F.R. § 4.130, DC 9440 (stating that veteran must display "such symptoms"). Only after it has been established that a veteran displays relevant symptoms that are not contained 5 in the diagnostic criteria must the Board consider the question of how those symptoms affect employment and social relationships. Mauerhan, 16 Vet.App. at 443. In this regard, Mr. Fetty asserts that the Board failed to consider " unlisted symptoms such as bruxism, moderate to severe Axis IV stressors, significant loss of income, and intermediate term memory loss." Appellant's Br. at 19. With the exception of the " significant loss of income" discussed above, the Court will address each of these factors in turn. First, with respect to bruxism, Mr. Fetty has asserted that this condition is related to anxiety; however, the Board expressly considered reports of anxiety in its assignment of a 30% disability rating. Mr. Fetty has not demonstrated the inadequacy in the Board's consideration of this factor. Asto "moderateto severeAxis IVstressors"and"intermediate-termmemoryloss," Mr.Fetty has not demonstrated the Board's failure to expressly consider these factors was prejudicial. See Shinseki v. Sanders, 556 U.S. 396 (2009) (placing the burden on the appellant to allege prejudiceand explain how the asserted error caused harm). With regard to "moderate to severe Axis IV stressors," Mr. Fetty references a February 2002 report noting, without further explanation, Axis IV ("psychosocial and environmental problems") as "[m]oderate to severe: Concerns about his health." R. at 1110. It is not at all clear that this notation is related to PTSD, let alone that the Board's express consideration of this notation could entitle him to a higher disability rating. See Shinseki, supra. As to "intermediate memoryloss," a 2007 examiner noted that Mr. Fetty"spokeofoccasional short and intermediate term memoryloss." R. at 561. Although the Board did not expresslymention theasserted"intermediate-termmemoryloss,"theCourt cannotdeemthis omission prejudical to Mr. Fetty. The Board expressly discussed, and thus considered, the 2007 report in which the notation appeared. In addition, Mr. Fettyhas not persuasively argued that his assertion of "intermediate-term memory loss" is a factor equivalent to that listed in the 50% disability rating. See Mauerhan, supra. The Court notes that a 30% disabilityrating expressly contemplates "mild memoryloss" of anytype, but in contrast, as the Board recognized, a 50% disability rating contemplates impairment of both "short- and long-term memory" (the latter of which had been described as " good" in Mr. Fetty's case (see R. at 27)). For these reasons, Court is unpersuaded that remand is warranted for the Board's consideration of these symptoms. 6 3. Staged Ratings Mr. Fetty next argues that the Board erroneously assigned an effective date for his 30% staged disability rating in the first instance.3 He also asserts that, assuming that the Board had jurisdiction to assign an effective date, it erroneously chose November 3, 2004, as the date entitlement to a 30% disability rating arose. Specifically, he contends that the Board assigned the date as the time when he "first evidenced mild memory loss and suspiciousness" (R. at 31), despite evidence of memory impairment as early as 1998. The Secretary does not respond to these arguments,4 and the Court will construe the Secretary's omission as a concession of error. See MacWhorterNext Document v. Derwinski, 2 Vet.App. 655, 656 (1992) (warning the Secretary that failure to address all arguments may result in the Court determining those points are conceded). On remand, the Board must remand the matter to the regional office (RO) for an effective-date assignment for the grant of a 30% disability rating for PTSD, taking into account all relevant evidence of record. 4. Consideration of Evidence in First Instance Mr. Fettyalso contends that the Board erred when it considered a November 2004 VA PTSD examination report that was not reviewed by the RO in the first instance. The implication is that the Board erred when it considered this new evidence without remanding the case for initial consideration by the agency of original jurisdiction or without having obtained the appellant's waiver, in violation of Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); see also 38 C.F.R. § 19.31(b)(1) (2011) (requiring VA to issue a Supplemental StatementoftheCasewhentheAgencyoforiginaljurisdiction receivesadditionalpertinentevidence after a Statement of the Case). It appears that Mr. Fetty is currently assigned a 10% disability rating for PTSD effective January 1998 and a 30% rating from November 2004. The Secretary stated that he was "unable to address Appellant's complaint that the grant of an increased rating to 30% for his PTSD resulted in an 'unwanted staged rating.' Because the increased rating represents a grant of the benefit sought, Appellant has failed to demonstrate that the grant was erroneous, or that he has been somehow [ ] prejudiced by the award of an increased rating." Secretary's Br. at 10-11. This response disregards Mr. Fetty's argument as to the Board's jurisdiction and the appropriateness of the assigned effective date. 4 3 7 In Disabled American Veterans, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) invalidated a regulation because it effectively allowed the Board to consider additional evidence, not previously of record, without having to remand the case to the agency of original jurisdiction forinitial consideration orto obtaintheappellant'swaiver. DisabledAmericanVeterans, 327 F.3d at 1348. This practice, the Federal Circuit held, was a violation of the provision of 38 U.S.C. § 7104(a), entitling claimants to "one review on appeal to the Secretary." Id. The Court is unconvinced, however, that error occurred in this instance. First, although Mr. Fetty summarily deems the PTSD examination "pertinent," he fails to provide guidance to the Court as to this requirement; the Court cannot determine that Mr. Fetty suffered prejudicial error without an indication of how consideration of the document could provide him a rating in excess of the 30% awarded by the Board.5 See 38 C.F.R. § 19.31(b)(1); see also Hyatt v. Nicholson, 21 Vet.App. 390, 395 (2007) ("Appellants before the Court bear the burden of demonstrating error below."); Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (concluding that appellant had the burden of demonstrating error in the Board's decision), aff'd, 232 F.3d 908 (Fed. Cir. 2000). In any view of the matter, the fact that the July 2008 Supplemental Statement of the Case did not explicitly discuss the PTSD examination does not show that the RO did not consider it; the RO is obligated to base its determination on the entire evidence of record, and in the absence of clear evidence to the contrary, it is presumed to have done so. See Gonzales v. West, 218 F.3d 1378, 1381 (2000) (holding that, "absent specific evidence indicating otherwise, all evidence contained in the record at the time of the RO's [decision] must be presumed to have been reviewed by [VA], and no further proof of such review is needed"). Accordingly, the Court holds that Mr. Fetty has not shown that the Board erred in its consideration of the evidence in question. The Court further holds that the Board did not acquire and consider evidence in violation of the 38 U.S.C. § 7104(a) mandate to provide one review on appeal to the Secretary. Although this Court holds that there is no known basis on which to consider whether the document is pertinent to a rating in excess of 30%, the Court expresses no opinion as to whether the document can impact the effective date for the 30% disability rating, which will be evaluated by the RO on remand. 5 8 B. Pes Planus Mr. Fetty also argues that the Board erred in its consideration of an April 2003 private foot examination and an October 2004 podiatry report that the RO had not previously considered. Although the RO is presumed to have reviewed the April 2003 examination, submitted in 2003, the October 2004 podiatryreport is another matter. That report was not submitted until September 2008 – after the last Supplemental Statement of the Case in July 2008. Thus, the Court discerns that the RO could not have considered the information contained therein. Indeed, in a September 2008 letter to VA, Mr. Fetty provided the October 2004 report and expressly requested that the RO issue a Supplemental Statement of the Case considering both the April 2003 and October 2004 reports. It appears that the Board ignored this request and went on to consider the documents without first obtaining a waiver. Becauseboth documents potentiallysupport a 50% disabilityrating( eitherafter clarification of the reports or on a sympathetic reading), the Court cannot deem harmless the Board's error. See 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004). Thus, the Court will remand Mr. Fetty's increased-rating claim for pes planus to the Board with instructions for the RO to consider the documents in a Statement of the Case. Next, Mr.FettyarguesthattheBoard"might haveconsideredevidenceofsomeoneelse'sfoot injury that VA has carelessly placed into Appellant's record." Appellant's Br. at 24. Although this commingling of records is unfortunate, there is no evidence that the Board relied on the misfiled documents. Consequently, any such error is not prejudicial to Mr. Fetty. C. Bilateral Hammertoes, Chondromalacia Patella, and Calf Muscle Pain and Cramps Mr. Fetty next contends that the Board denied service connection for these disabilities, despite the fact that it had no jurisdiction to do so. The Secretary asserts that these matters are not before the Court, and that the Court has no jurisdiction over any claims other than those framed in the Board decision on appeal. Within its decision, the Board made the following statement: "Nor is the Veteran entitled to separate disability ratings for his knee pain, calf pain . . . and hammertoes." R. at 38. The Board did not, however, list these matters among its framed issues, nor did it expressly deny service 9 connection. To the extent that the Board's statement could be read as an implicit denial of service connection, theBoard's statementis inappropriategiven that no appeal had been perfected as to these matters. Thus, the Court will modify the April 2009 Board decision to delete the Board's reference to disability ratings for knee pain, calf pain, and hammertoes. See Henderson v. Shinseki, 131 S. Ct. 1197, 1205 (2011) (recognizing the Court's power to affirm, modify, or reverse Board decisions). D. Extraschedular Rating Lastly, Mr. Fetty contends that he has asserted that a schedular rating is inadequate based on factors related to his service-connected heart disability, including his frequent cardiac exercise sessions and the perceived economic impairment resultingfrom PTSD ( addressed supra). Although the Board did discuss an extraschedular rating, it limited its discussion to symptoms related to PTSD and pes planus. The Board did not consider anyfactors related to Mr. Fetty's service-connected heart disability. The fact that Mr. Fetty's heart disability is not on appeal is of no moment. The Board must evaluatewhether"theratingscheduleis inadequateto evaluateaclaimant'sdisabilitypicture." Thun, 22 Vet.App. at 116 (emphasis added). The "disability picture" includes all of the service-connected disabilities. See 38 C.F.R. § 3.321(b)(1) (goal of extraschedular consideration is to arrive at "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities" (emphasis added)). Mr. Fetty has presented evidence that his "heart disability requires [ three] hours of aerobic workouts per week, which impacts his earning potential and presents additional expenses," that he must travel to "Brooks AFB Hospital, TX, every three years, possibly for life, for cardiac re- evaluations," and that his service-connected disabilities have reduced his earning capacity. It is not the duty of the Court to determine in the first instance whether these constitute exceptional or unusual factors. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table) (requiring the Board to 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). In this case, the Board's limitation of its discussion to the symptoms attributable to those service- connected disabilities currently on appeal frustrates this Court's review of the matter. See Gilbert, 1 Vet.App. at 57 (an 10 adequate statement of reasons or bases enables a claimant to understand the precise basis for the Board's decision and to facilitate review in this Court). The Court will therefore remand the matter of extraschedular consideration for readjudication consistent with this decision. II. CONCLUSION On consideration of the foregoing, the Court SETS ASIDE the April 28, 2009, Board decision as to (1) the effective date of Mr. Fetty's 30% disability rating for PTSD, (2) an increased disabilityratingforbilateral pesplanus,and (3) extraschedularconsideration, and REMANDS those matters for further proceedings consistent with this decision. In pursuing these claims on remand, Mr. Fetty will be free to submit additional evidence and argument in support of them, and the Board is required to consider any such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A final decision by the Board following the remand herein ordered will constitute a new decision that, if adverse, may be appealed to this Court upon 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 Mr. Fetty. See Marsh v. West, 11 Vet.App. 468, 472 ( 1998). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by the Court). The Court also MODIFIES the Board decision to eliminate reference to separate disability ratings forkneepain,calfpain,andhammertoes,andAFFIRMS theremainderoftheBoarddecision. DATED: September 30, 2011 Copies to: Curtis W. Fetty, Esq. VA General Counsel (027) 11