Bowling v. Principi

KRAMER, Chief Judge,

concurring in the result.

For the following reasons, I concur in the remand ordered by the majority opinion.

As to the appellant’s claim for a total disability rating based on individual unem-ployability (TDIU) under 38 C.F.R. § 4.16 (b) (2000), the Board of Veterans’ Appeals (BVA or Board) concluded that the evidence did not support an assignment of a TDIU rating because “[w]hile the veteran has lost some time from work due to his [post-traumatic stress disorder (PTSD) ], he has not lost his job and remains employed.” Record (R.) at 28-29. The crucial issue before the Court is whether the Board should have referred the TDIU claim to the Director, Compensation and Pension Service, as directed by § 4.16(b).

The § 4.16(b) standard for referral is whether the appellant is “unemployable,” that is, “unable to secure and follow a substantially gainful occupation.” 38 C.F.R. § 4.16 (b). The relevant evidence is as follows: The appellant, although technically employed, was on medical disability leave for which he was not receiving any payment at the time of the July 1999 BVA decision. In a September 9, 1998, letter, a VA psychiatrist stated that, effective on that date and “until further notice,” the appellant was unable to work due to his PTSD. R. at 664. The appellant’s employer notified a VA regional office (RO) in November 1998 that the appellant was “on disability due to illness” and that he had last worked on August 1, 1998. R. at 674-75. In January 1999, a VA clinical psychologist noted that the appellant had been on medical leave since August 1998 and that he then received no income from his employment because he had exhausted his annual and sick leave. R. at 695-701. In a January 1999 VA social and industry survey report, the social worker noted that the appellant was currently on leave from his work and had been for the past six months due to his PTSD. R. at 703-06.

Based on this evidence, I find the following errors in the BVA decision. First, although the Board found that the appellant “remains employed,” it neither made a determination as to whether that employment was “a substantially gainful occupation” nor provided any explanation as to why, in the Board’s view, technical employment precluded a finding of unemployabili *18 ty pursuant to § 4.16(b). Second, there is some evidence of record that appears to reduce the clarity of the appellant’s employment status at the time of the Board decision (R. at 712-13), and the Board should have therefore clarified the appellant’s employment situation. In light of those BVA errors, I would have remanded for further development of the evidence as to the appellant’s employment status and readjudication of the matter to include an adequate statement of reasons or bases as to whether referral was required under § 4.16(b).

As to the appellant’s claim for a rating above 50% for PTSD, the Board held that a rating increase was not warranted because “the 50 percent criteria are more nearly approximated than the 70 percent criteria” (R. at 26). The evidence that best supports that decision is the January 1999 report by a VA clinical psychologist (R. at 695-701). That report, however, contains several significant omissions. First, the VA psychologist did not assess the appellant’s symptoms according to the 1996 Rating Schedule, see Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991), apparently for lack of a request to do so by the RO. Second, the VA psychologist did not reconcile his opinion with other medical evidence, which tended to support a higher rating (R. at 526-28, 655-56, 664). Third, the VA psychologist did not support with a specific explanation of symptoms his opinion that the appellant’s condition more closely matched the criteria of # 4 than # 5, which had been enumerated in a June 11, 1998, BVA remand of the PTSD claim (R. at 630-31; see also Ante-, at slip op. at 3-4). Therefore, because the Board depended heavily on an incomplete report, a remand to the Board is required.