Petition for Writ of Certiorari — Joshua E. Bufkin, Petitioner v. Douglas A. Collins, Secretary of Veterans Affairs
Supreme Court briefDec 29, 2023
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APPENDIX TO THE PETITION FOR A WRIT
OF CERTIORARI
APPENDIX A
Bufkin Opinion of the
Federal Circuit (Aug. 3,
2023) ........................................ 1a
APPENDIX B
Thornton Opinion of the
Federal Circuit (Aug. 9,
2023) ...................................... 13a
APPENDIX C
Bufkin Opinion of the
Court of Appeals for
Veterans Claims (July
27, 2021) ................................ 18a
APPENDIX D
Thornton Opinion of the
Court of Appeals for
Veterans Claims (June
11, 2021) ................................ 32a
APPENDIX E
Bufkin Opinion of the
Board of Veterans’
Appeals (Feb. 6, 2020)........... 55a
APPENDIX F
Thornton Opinion of the
Board of Veterans’
Appeals (Jan. 23, 2019)......... 68a
APPENDIX G
Bufkin Judgment of the
Court of Appeals for
Veterans Claims (Aug.
18, 2021) ................................ 93a
APPENDIX H
Thornton Judgment of
the Court of Appeals for
Veterans Claims (July 6,
2021) ...................................... 94a
APPENDIX I
38 U.S.C. § 5107 .................... 95a
APPENDIX J
38 U.S.C. § 7261 .................... 96a
APPENDIX K
38 C.F.R. § 3.102 ................... 98a
1a
APPENDIX A
United States Court of Appeals
for the Federal Circuit
______________________
JOSHUA E. BUFKIN,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1089
______________________
Appeal from the United States Court of Appeals
for Veterans Claims in No. 20-3886, Judge Michael P.
Allen.
______________________
Decided: August 3, 2023
______________________
KENNETH M. CARPENTER, Law Offices of
Carpenter Chartered, Topeka, KS, argued for
claimant-appellant.
SARAH E. KRAMER, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondentappellee. Also represented by BRIAN M. BOYNTON,
PATRICIA M. MCCARTHY, LOREN MISHA PREHEIM;
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CHRISTINA LYNN GREGG, BRIAN D. GRIFFIN, Office of
General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before MOORE, Chief Judge, HUGHES and STOLL,
Circuit Judges.
HUGHES, Circuit Judge.
Joshua Bufkin appeals the final decision of the
United States Court of Appeals for Veterans Claims
denying service connection for an acquired psychiatric
disorder. Because we find no legal error in the
Veterans Court’s interpretation of its standard of
review and the benefit of the doubt rule, we affirm.
I
Mr. Bufkin served in the U.S. Air Force from
September 2005 to March 2006. In July 2013, he filed
a claim for service connection for several conditions,
including an acquired psychiatric disorder. In
support, he submitted VA medical records reflecting
his visits with a VA psychiatrist, Dr. Robert Goos,
between February 21 and June 21, 2013. In his notes,
Dr. Goos stated that “in every aspect he meets [the]
criteria
for
[post-traumatic
stress
disorder
(“PTSD”)],” J.A. 20, but he could not identify the
specific stressor or whether the stressor relates to Mr.
Bufkin’s military service. In March 2014, a VA
regional office denied service connection for PTSD
because “[t]he available medical evidence [was]
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insufficient to confirm a link between [his] symptoms
and an in-service stressor.” J.A. 23.
In July 2014, Mr. Bufkin submitted a lay
statement for his service connection claim for PTSD.
Subsequently, VA scheduled an examination with a
VA psychiatrist, who opined that his “symptoms do
not meet the diagnostic criteria for PTSD.” J.A. 26. In
an August 2015 decision, VA continued the denial of
service connection for lacking a PTSD diagnosis. Mr.
Bufkin filed a notice of disagreement, arguing that
Dr. Goos’ favorable 2014 opinion and the VA
examiner’s unfavorable 2015 opinion were in
equipoise, and therefore, VA was legally obligated to
grant service connection.
In April 2018, Mr. Bufkin underwent another VA
examination with a different examiner. The second
examiner also concluded that his symptoms “do[] not
meet [the diagnostic] criteria for PTSD.” J.A. 54. In
May 2018, VA issued a statement of the case,
continuing the denial of service connection for an
acquired psychiatric disorder. He appealed that
decision to the Board. While his appeal was pending,
VA received a statement from another VA
psychiatrist. The third examiner opined that in
addition to a severe anxiety disorder, he “suffers from
chronic PTSD due to a number of issues, but … [s]ome
examiners do not consider this to be PTSD.” J.A. 103.
In February 2020, the Board issued a decision
denying service connection for an acquired psychiatric
disorder. The Board found that the preponderance of
evidence supported a finding that Mr. Bufkin does not
have PTSD.
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The Veterans Court affirmed. The Veterans Court
found no error in the Board’s application of the benefit
of the doubt rule under 38 U.S.C. § 5107(b). Section
5107(b) provides that “[w]hen there is an approximate
balance of positive and negative evidence regarding
any issue material to the determination of a matter,
the Secretary shall give the benefit of the doubt to the
claimant.” In other words, if the competing evidence
is in “approximate balance” or “nearly equal,” then
the benefit of the doubt rule requires the Board to rule
in favor of the veteran. Lynch v. McDonough, 21 F.4th
776, 781 (Fed. Cir. 2021) (en banc). The Veterans
Court explained that the Board considered conflicting
medical statements but found Dr. Goos’ diagnosis of
PTSD less persuasive than the conflicting June 2015
opinion “because the June 2015 opinion provided a
more comprehensive review of appellant’s military
and medical history.” J.A. 8. The Veterans Court
concluded that this “finding is not clearly erroneous.
And thus, the benefit of the doubt doctrine does not
apply here.” Id. (footnote omitted).
Mr. Bufkin now appeals.
II
We review de novo the Veterans Court’s
interpretation of law. Bazalo v. West, 150 F.3d 1380,
1382 (Fed. Cir. 1998). Unless an appeal from the
Veterans Court decision presents a constitutional
issue, this Court may not review “a challenge to a
factual determination,” or “a challenge to a law or
regulation as applied to the facts of a particular case.”
38 U.S.C. § 7292(d)(2)(A)-(B).
5a
Because Mr. Bufkin argues that the Veterans
Court wrongly interpreted 38 U.S.C. § 7261(b)(1), we
have jurisdiction.
A
This case is another in a series challenging
various aspects of the benefit of the doubt rule. See,
e.g., Mattox v. McDonough, 56 F.4th 1369 (Fed. Cir.
2023); Roane v. McDonough, 64 F.4th 1306 (Fed. Cir.
2023). In Mattox, we held that “when conducting a
benefit-of-the-doubt-rule analysis, as in other
settings, the Board is required to assign probative
value to the evidence” rather than simply identifying
and labeling each piece of evidence as positive or
negative. Mattox, 56 F.4th at 1378. In Roane, we held
that the Veterans Court reviews “the Board’s factual
determinations for clear error while taking due
account of the Board’s application of the benefit of the
doubt rule.” Roane, 64 F.4th at 1311 (emphasis
added).
Here, Mr. Bufkin raises two related legal
arguments: first, whether § 7261(b)(1) requires the
Veterans Court to take due account of the Secretary’s
application of the benefit of the doubt rule without
consideration of the Board’s application; and second,
whether § 7261(b) requires a de novo, non-deferential
review of how the benefit of the doubt rule was
applied.
Mr. Bufkin first argues that the Veterans Court
erred by taking due account of the Board’s application
of § 5107(b) rather than taking due account of the
Secretary’s application of § 5107(b). Pet. Br. 9. In
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support, he points to the plain text of § 7261(b)(1),
which states “the Court shall … take due account of
the Secretary’s application of section 5107(b)
(emphasis added).” Section 5107(b), as quoted above,
codifies the benefit of the doubt rule. He contends that
§ 7261(b)(1)’s use of the term “Secretary,” not Board,
requires the Veterans Court to review how the benefit
of the doubt rule was applied throughout the claims
process, rather than the Board’s consideration of that
issue.
When construing the plain meaning of the
statute, we “must look to the particular statutory
language at issue, as well as the language and design
of the statute as a whole.” K Mart Corp. v. Cartier,
Inc., 486 U.S. 281, 291 (1988). Here, reading the
statutory text in a broader context, we hold that the
term “Secretary” in § 7261(b)(1) includes the
Secretary acting in his capacity as the Board for the
purpose of making a final agency decision.
The term “Secretary” in § 7261(b)(1) simply
mirrors the same term in § 5107(b), which states “the
Secretary shall give the benefit of the doubt to the
claimant (emphasis added).” See Atl. Cleaners &
Dryers, Inc v. United States, 286 U.S. 427, 433 (1932)
(“[T]here is a natural presumption that identical
words used in different parts of the same act are
intended to have the same meaning.”). Under
§ 5107(b), “the Secretary” reviews the record to
determine whether the benefit of the doubt rule
should apply. We have long interpreted “the
Secretary” in § 5107(b) to refer to the Board. See, e.g.,
Lynch, 21 F.4th at 781 (holding that the application
of the benefit of doubt rule under § 5107(b) depends
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on whether the Board is persuaded by the evidence);
Roane, 64 F.4th at 1310-11 (explaining that the “take
due account” language in § 7261 requires the
Veterans Court to review the Board’s application of
the benefit of doubt rule). Hence, when § 7261(b)(1)
refers to “the Secretary’s application of section
5107(b),” the term Secretary encompasses the Board
acting on behalf of the “Secretary” in § 5107(b).
Curiously, in parts of his brief, Mr. Bufkin concedes
that the “Secretary” in § 7261(b)(1) refers to the
Board. Pet. Br. 13 (“[W]hen Congress refers in
§ 7261(b)(1) to ‘the application of the provision of §
5107(b)’ this Court must assume that Congress was
referring to the Secretary acting in his capacity as the
Board.”).
This understanding is also consistent with how
the term Secretary was defined in the jurisdictional
statute, § 7104(a). Section 7104(a) reads, “[a]ll
questions … subject to decision by the Secretary shall
be subject to one review on appeal to the Secretary
(emphasis added).” When we previously considered
the meaning of “one review on appeal to the
Secretary,” we understood it to mean a review by the
Board acting on behalf of the Secretary. Disabled Am.
Veterans v. Sec’y of Veterans Affs., 327 F.3d 1339,
1347 (Fed. Cir. 2003). “By statute, the Board is an
agent of the Secretary,” id., and its jurisdictional
authority stems from delegation by the Secretary.
Hence, “the Secretary” is an umbrella term that
encompasses the Board in certain contexts.
Apart from the statutory text of § 7261(b)(1), Mr.
Bufkin also points to a different statutory provision,
§ 7252(b), as evidence that Congress intended the
8a
Veterans Court to review the entire records before the
Secretary, not just the Board. Pet. Br. 13-14. Section
7252(b) reads, “[r]eview in the [Veterans] Court shall
be on the record of proceedings before the Secretary
and the Board (emphasis added).” He argues that the
review by the Veterans Court necessarily includes the
application of the benefit of doubt rule, and therefore,
the Veterans Court erred by only reviewing the record
of proceedings before the Board. However, his
interpretation reads out the rest of § 7252(b), which
states “[t]he extent of the review [under § 7252(b)]
shall be limited to the scope provided in section 7261
of this title.”
The Veterans Court clearly can review the entire
record as long as its review is confined to the scope
prescribed in § 7261. See Tadlock v. McDonough, 5
F.4th 1327, 1331-32 (Fed. Cir. 2021); see also Bowling
v. McDonough, 38 F.4th 1051, 1057 (Fed. Cir. 2022);
Euzebio v. McDonough, 989 F.3d 1305, 1318 (Fed. Cir.
2021). For instance, in Bucklinger v. Brown, the
Veterans Court reviewed the entire record, including
those parts not explicitly relied on by the Board, to
determine if a plausible basis existed for the Board’s
factual determination. 5 Vet. App. 435, 439 (1993).
Unable to find one, the Veterans Court reversed the
Board’s decision, explaining that a reversal is
warranted under both the benefit of the doubt rule
and clearly erroneous standard applied to a finding of
fact under § 7261(a)(4). Id. This interpretation is
consistent with our understanding of the Veterans
Court’s review in a parallel provision, § 7261(b)(2),
which also directs the Veterans Court to take due
account of the Board’s application but for rule of
prejudicial error. There, we explained that “the take
9a
due account” provision authorizes the Veterans
Courts to “consult the full agency record, including
facts and determinations that could support an
alternative ground for affirmance.” Tadlock, 5 F.4th
at 1334.
So we agree with Mr. Bufkin that the Veterans
Court can review the entire record of proceedings
before the Secretary in determining whether the
benefit of the doubt rule was properly applied. Where
we part ways is with his expansive interpretation of §
7261(b)(1) that would require the Veterans Court to
sua sponte review the entire record to address the
benefit of the doubt rule even if there was no
challenge to the underlying facts found by the Board
or to the Board’s application of the benefit of the doubt
rule. Section 7261(a) explicitly prohibits such an
expansive interpretation of the Veterans Court’s
jurisdiction. It states, in relevant parts, that the
Veterans Court “shall decide” issues only “when
presented.” § 7261(a). We similarly observed that this
express jurisdictional limit in § 7261(a) shows
Congress’s intent not to “grant the Veterans Court
sua sponte powers that would set it apart from other
[Article III] courts.” Dixon v. McDonald, 815 F.3d 799,
803 (Fed. Cir. 2016). Therefore, if no issue that
touches upon the benefit of the doubt rule is raised on
appeal, the Veterans Court is not required to sua
sponte review the underlying facts and address the
benefit of the doubt rule.
Section 7252(b) cannot serve as an independent
basis to expand the Veterans Court’s scope of review
beyond what is prescribed in § 7261. All that is
required under § 7261(b)(1) is for the Veterans Court
10a
to review the Board’s application of the benefit of the
doubt rule. Of course, in the context of that review,
the Veterans Court can review the entire record, but
it does so in the context of whether the Board’s
application of the benefit of the doubt rule was
correct. The Veterans Court did not err by refusing to
examine independently how the benefit of the doubt
rule was applied during the claims process at the
regional office.
B
Mr. Bufkin next argues that § 7261(b) requires
the Veterans Court to conduct a “de novo, nondeferential” review of the Board’s application of the
benefit of the doubt rule. We recently addressed the
same issue in Roane. There, the veteran also argued
that the “take due account” language in § 7261(b)
requires the Veterans Court to conduct an “additional
and independent non[-]deferential review” of the
Board’s application of the benefit of the doubt rule.
Roane, 64 F.4th at 1309. We specifically “decline[d] to
adopt [such a] far-reaching interpretation of the
phrase ‘take due account.’” Id. We explained that the
scope of the Veterans Court’s review is limited by §
7261(c) and § 7261(a): § 7261(c) expressly prohibits de
novo review of material facts by the Veterans Court;
and § 7261(a) allows the Veterans Court to review
facts only under the clearly erroneous standard. Id. at
1310. Accordingly, we held that the Veterans Court
properly reviewed the Board’s factual determination
for clear error while taking due account of the Board’s
application of the benefit of the doubt rule. Id. at
1311.
11a
Here, the Veterans Court properly considered the
Board’s application of the benefit of the doubt rule.
The Veterans Court explicitly noted the Board’s
consideration of conflicting medical opinions and the
Board’s conclusion that “the June 2015 opinion
[finding that he did not have PTSD] [is] more
persuasive than the opinions showing a diagnosis of
PTSD.” J.A. 8. The Veterans Court concluded that the
Board did not misapply the benefit of the doubt rule,
because, as the Board explained, “the June 2015
opinion provided a more comprehensive review of [Mr.
Bufkin]’s military and medical history.” J.A. 8; Lynch,
21 F.4th at 781 (holding that the benefit of the doubt
rule “does not apply when [the Board] is persuaded by
the evidence to make a particular finding”). The
Veterans Court also found that the underlying facts
supporting the Board’s conclusion are not clearly
erroneous. J.A. 8. Hence, the Veterans Court applied
the appropriate standard of review, clear error, and
properly took account of the Board’s application of the
benefit of the doubt rule.
III
Because we conclude that the Veterans Court did
not err by taking due account of the Board’s
application of the benefit of the doubt rule and applied
the appropriate standard of review under
§ 7261(b)(1), we affirm.
AFFIRMED
COSTS
No costs.
12a
APPENDIX B
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NORMAN F. THORNTON,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-2329
______________________
Appeal from the United States Court of Appeals
for Veterans Claims in No. 20-882, Judge Joseph L.
Falvey, Jr.
______________________
Decided: August 9, 2023
______________________
KENNETH M. CARPENTER, Law Offices of
Carpenter Chartered, Topeka, KS, argued for
claimant-appellant.
EVAN WISSER, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
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Washington, DC, argued for respondent-appellee.
Also represented by BRIAN M. BOYNTON, ELIZABETH
MARIE
HOSFORD,
PATRICIA
M.
MCCARTHY;
CHRISTOPHER O. ADELOYE, Y. KEN LEE, Office of
General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before LOURIE, CLEVENGER, and STARK, Circuit
Judges.
CLEVENGER, Circuit Judge
Norman F. Thornton appeals from the final
decision of the United States Court of Appeals for
Veterans Claims (“Veterans Court”) affirming the
decision of the Board of Veterans’ Appeals (“Board”),
which denied his claim for a rating above 50% for his
service-connected disability from post-traumatic
stress disorder (“PTSD”). Thornton v. McDonough,
No. 20-0882, 2021 WL 2389702 (Vet. App. June 11,
2021). For the reasons set forth below, we affirm the
final decision of the Veterans Court.
I
Section 5107(b) of Title 38 provides that “[w]hen
there is an approximate balance of positive and
negative evidence regarding any issue material to the
determination of a matter, the Secretary shall give
the benefit of the doubt to the claimant.” If the
competing evidence on a material issue is in
“approximate balance” or “nearly equal,” the benefit
of the doubt rule requires the Board to decide the
material issue in favor of the veteran. Lynch v.
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McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (en
banc).
In this case, Mr. Thornton argued to the Board
that he was entitled to the benefit of the doubt
regarding the issue of his entitlement to an increased
rating for his PTSD. After assessing the evidence of
record concerning the severity, frequency, and
duration of Mr. Thornton’s symptoms, the Board
concluded that “[t]here is no doubt to be resolved; a
higher rating is not warranted. 38 U.S.C. § 5107(b).”
Mr. Thornton appealed the Board’s adverse
decision to the Veterans Court. The scope of the
Veterans Court’s review authority is set forth in 38
U.S.C. § 7261. Relevant to this case, § 7261(a)(4)
requires the Veterans Court to review adverse
material fact determinations by the Board for clear
error. In testing such fact determinations for clear
error, § 7261(b) requires the Veterans Court to review
the entire record of proceedings in the case before the
Secretary, including the parts of the record before the
Board, and, as part of that review, to “take due
account of the Secretary’s application of section
5107(b) of this title.” 38 U.S.C. § 7261(b)(1).
Because the overall evidence on the degree of Mr.
Thornton’s PTSD was not in approximate balance, the
Veterans Court concluded that the benefit of the
doubt rule did not apply—the same conclusion
reached by the Board after its assessment of the
record. Thus, on review by the Veterans Court, no
clear error was shown in the Board’s assessment of
the balance of the factual evidence concerning the
severity of Mr. Thornton’s PTSD.
15a
II
Mr. Thornton’s appeal to this court argues that
the Veterans Court misinterpreted § 7261(b)(1)’s
requirement that the Veterans Court, when
undertaking review pursuant to § 7261(a), “take due
account of the Secretary’s application of section
5107(b) of this title.” In addition to the § 7261(a)
review of Mr. Thornton’s claim of entitlement to the
benefit of the doubt which the Veterans Court
conducted, Mr. Thornton argues that “taking due
account” of the benefit of the doubt rule requires the
Veterans Court to conduct an additional separate and
independent de novo review of the entire record, to
assure that the veteran has not improperly been
denied the benefit of the doubt. Further,
Mr. Thornton argues that “taking due account”
requires that this additional level of review be
conducted sua sponte by the Veterans Court even if
the veteran has not challenged a Board’s
determination that the benefit of the doubt rule does
not apply.
The same interpretation questions Mr. Thornton
raises in this case recently were presented to and
decided by this court in Bufkin v. McDonough,
No. 2022-1089 (Fed. Cir. Aug. 3, 2023). As the
decision in Bufkin explains, the statutory command
that the Veterans Court “take due account” of the
benefit of the doubt rule does not require the Veterans
Court to conduct any review of the benefit of the doubt
issue beyond the clear error review required by
§ 7261, and “if no issue that touches upon the benefit
of the doubt rule is raised on appeal, the Veterans
Court is not required to sua sponte review the
16a
underlying facts and address the benefit of the doubt
rule.” Bufkin, slip op. at 7-9.
Because Mr. Thornton’s preferred interpretation
of § 7261(b)(1) was rejected in Bufkin, we must also
reject it in this appeal. Other than the statutory
interpretation issue, Mr. Thornton does not fault the
decision of the Veterans Court, and we thus affirm the
Veterans Court’s decision.
AFFIRMED
COSTS
No costs.
17a
APPENDIX C
Designated for electronic publication only
UNITED STATES COURT OF APPEALS
FOR VETERANS CLAIMS
No. 20-3886
JOSHUA E. BUFKIN, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
ALLEN, Judge: Appellant Joshua E. Bufkin
served the Nation honorably in the United States Air
Force from September 2005 to March 2006. 1 In this
appeal, which is timely and over which the Court has
jurisdiction, 2 he contests a February 6, 2020, Board of
Veterans’ Appeals decision that denied him
entitlement to service connection for an acquired
psychiatric disorder, including PTSD, depression,
intermittent explosive disorder, and chronic
1 Record (R.) at 1487.
2 See 38 U.S.C. §§ 7252(a), 7266(a).
18a
adjustment disorder. 3 Because the Board applied the
correct legal principles, did not clearly err with
respect to its factual determinations, and provided an
adequate statement of its reasons or bases, we will
affirm the February 2020 Board decision.
I. ANALYSIS
Appellant makes several arguments concerning
purported errors in the Board’s decision, for which he
seeks reversal. First, appellant argues that the
Board’s denial of entitlement to service connection for
PTSD was arbitrary, capricious, and not in
accordance with law. 4 Second, he contends that the
Board’s denial of service connection for an acquired
mental disorder other than PTSD was arbitrary,
capricious, and not in accordance with law. 5 Third,
appellant asserts that the Board misapplied the
standard of proof defined in Gilbert v. Derwinski, 1
Vet.App. 49 (1990). Finally, he argues that the Board
misapplied the “benefit of the doubt” doctrine set forth
in 38 U.S.C. § 5107(b). The Secretary defends the
Board’s decision in full and urges that we affirm. We
agree with the Secretary.
At the outset, the Court notes that appellant’s
arguments are interrelated and overlap in significant
respects. Therefore, instead of addressing each
argument separately, we will address some of these
3 R. at 5-15.
4 Appellant’s Brief (Br.) at 4-8.
5 Appellant’s Br. at 8-11.
19a
arguments jointly to take into account the overlap
among them.
A. The General Legal Landscape
Establishing
service
connection
generally
requires evidence of (1) a current disability; (2) inservice incurrence or aggravation of a disease or
injury; and (3) a nexus between the claimed in-service
disease or injury and the present disability. 6 The
Court reviews the Board’s findings regarding service
connection for clear error. 7 The Board must provide “a
written statement of reasons or bases for its findings
and conclusions on all material issues of fact or law.” 8
To comply with its requirement to provide an
adequate statement of reasons or bases, “the Board
must analyze the credibility and probative value of
the evidence, account for the evidence it finds
persuasive or unpersuasive, and provide the reasons
for its rejection of any material evidence favorable to
the claimant.” 9 Moreover, the Board must address
evidence favorable to appellant, which includes
6 See Hickson v. West, 12 Vet.App. 247, 253 (1999); 38 C.F.R.
§ 3.303(a) (2021).
7 38 U.S.C. § 7261(a)(4); Dyment v. West, 13 Vet.App. 141, 144
(1999).
8 38 U.S.C. § 7104(d)(1). Gilbert v. Derwinski, 1 Vet.App. 49, 56-
57 (1990).
9 Kahana v. Shinseki, 24 Vet.App. 428, 433 (2011) (citing Caluza
v. Brown, 7 Vet.App. 498, 506 (1995)); Gilbert, 1 Vet.App. at 5657.
20a
competent medical and lay evidence. 10 If the Board
fails to do so, remand is appropriate. 11
B. Acquired Psychiatric Conditions
Appellant crafts several arguments attempting to
explain why the Board’s denial of service connection
for both PTSD and various acquired psychiatric
disorders other than PTSD is arbitrary, capricious,
and otherwise unlawful. First, appellant highlights a
fair bit of conflicting evidence that the Board
addressed. He contests the Board’s finding that a
June 2015 VA examiner’s opinion was more
comprehensive and persuasive than other medical
evidence of record. Specifically, appellant asserts that
the Board ignored medical opinions and PTSD
diagnoses by his VA treating psychiatrist, “Dr. G.” 12
In addition, appellant asserts that the Board failed to
a make a competency determination regarding Dr. G’s
PTSD diagnosis. 13 As we will explain more below, this
is not the case. The Secretary counters that the Board
explained why the June 2015 opinion was more
persuasive and had more probative value than others.
10 Kahana, 24 Vet.App. at 433.
11 Tucker v. West, 11 Vet.App. 369, 374 (1998).
12 Appellant’s Br. at 6-7. The Board referred to appellant’s VA
psychiatrist as “Dr. G.” We note that Dr. G examined appellant
on various occasions, including February 2013, May 2013, and
June 2015.
13 Appellant’s Br. at 6.
21a
We find the Secretary’s argument persuasive in this
regard.
It is the Board’s prerogative as factfinder to
assess the evidence of record and determine the
credibility and weight to be assigned to that
evidence. 14 The Board must address evidence
favorable to appellant, which includes both competent
medical and lay evidence. 15 The Board reviewed
conflicting evidence of record as to whether appellant
had a PTSD diagnosis, including VA treatment
records showing treatment and diagnosis for PTSD in
May 2013 and December 2019. Contrary to
appellant’s assertions, the Board’s statement of
reasons or bases for denying appellant service
connection for PTSD is adequate for one principal
reason, which concerns the Board’s assessment of Dr.
G’s findings as compared to conflicting medical
evidence of record. As we mentioned above, the Board
must provide reasons for rejecting material evidence
favorable to the claimant. 16 That is precisely what the
Board did here. Namely, the Board weighed
appellant’s PTSD diagnosis against other relevant
evidence. Unlike Dr. G, two other VA examiners
opined that appellant had intermittent explosive
disorder and chronic adjustment disorder instead of
14 See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997);
Owens v. Brown, 7 Vet.App. 429, 433 (1995).
Kahana v. Shinseki, 24 Vet.App. at 433 (citing Caluza v.
Brown, 7 Vet.App. 498, 506 (1995)); Gilbert, 1 Vet.App. at 56-57.
15
16 Id.
22a
PTSD. 17 The Board understood that Dr. G’s
statements were material, relevant, and at times
favorable to appellant’s claim. The Board recited Dr.
G’s findings that appellant “suffered from PTSD as a
direct result of his treatment by the military,” 18
recognizing that appellant expressed powerlessness
because he felt “forced by his superiors to” choose
“between divorcing his spouse or leaving the
military.” 19 On the other hand, the Board assessed
the June 2015 VA examiner’s opinion in substantial
detail because the June 2015 examiner highlighted
important differences when compared with Dr. G’s
findings.
To begin with, the June 2015 opinion is
unfavorable to appellant’s claim because the
examiner opined that appellant’s psychiatric
disabilities were not related to his service. 20 The
Board recounted the June 2015 examiner’s opinion
that appellant’s behavior and thoughts did not meet
the Diagnostic and Statistical Manual of Mental
Disorders (DSM-5) requirements for a PTSD
diagnosis and instead he “suffered from adjustment
disorder with mixed disturbance of emotion and
17 R. at 12 (citing R. at 270 (Jan. 2018 medical opinion)); R. at
183 (Jun. 2015 medical opinion).
18 R. at 10.
19 R. at 7.
20 R. at 11.
23a
conduct.” 21 The Board pointed to the examiner’s
opinion that appellant’s only intrusive memory was
his anger towards the military for what appellant
perceived to be the military’s hostility towards him
when his wife made suicidal threats concerning
appellant’s continued military service. 22 As the Board
explained, the examiner opined that this event did not
constitute a PTSD-trauma-event because it was not
unwanted or intrusive; appellant “reported he wanted
to think about these memories.” 23 The June 2015
examiner explained that the suicidal threats
appellant’s spouse made did not meet the criteria for
PTSD.
Moreover, the Board weighed the examiners’
differing assessments of appellant’s behavioral
symptoms. Dr G. opined that appellant “was
hypervigilant and paranoid.” 24 In contrast, the June
2015 examiner found that appellant “did not exhibit
hypervigilance” but instead, he showed personality
traits that fueled his paranoia. 25 The Board found the
June 2015 opinion more persuasive because the June
2015 examiner, unlike Dr. G., reviewed appellant’s
file more fully and considered appellant’s military and
21 R. at 8.
22 Id.
23 Id. (emphasis added).
24 R. at 9.
25 Id.
24a
medical history. 26 The Board’s finding is consistent
when reviewing the evidence of record. A snapshot of
the relevant medical opinions shows that the June
2015 VA psychologist provided a thorough and
complete review of appellant’s file and produced a
detailed opinion explaining why appellant’s
symptoms correspond with intermittent explosive
disorder and chronic adjustment disorder. 27 And
although appellant does not mention this, the Board’s
recounting of the June 2015 examiner’s findings is
consistent with Dr. G’s other findings that appellant’s
“symptoms [are] consistent with [PTSD] but [the
examiner] could not ascertain the primary trauma”
and whether appellant’s PTSD “is related to military
or growing up is not clear.” 28 Given the detailed and
comprehensive nature of the June 2015 opinion, the
Court can discern why the Board rejected Dr. G’s
opinions. Thus, we find that the Board adequately
explained its reasons and bases for doing so. And the
Board’s assessment of this competing evidence is not
clearly wrong.
We also note that appellant’s argument
concerning a competency determination regarding
Dr. G’s opinions is misplaced. Appellant asserts that
determining whether evidence is competent is a
“threshold determination” that “does not require the
Board … to weigh competing facts,” but rather “to
assess … whether evidence exists … whether that
26 R. 8.
27 See generally R. at 183-94.
28 R. at 944, 951.
25a
evidence is competent.” 29 Appellant is, perhaps,
correct as a theoretical matter that an adjudicator
must determine whether evidence is competent. But
that proposition is neither here nor there in the
context of this appeal. There is no way to read the
Board decision other than that the Board considered
Dr. G’s opinion to be competent medical evidence.
After all, why would the Board have spent so long
balancing that evidence against the VA medical
opinion? If the Board had not considered Dr. G’s
evidence competent, there would have been no need
to weigh it against other evidence. It is the Board’s
role to weigh competing evidence and to support the
weight it assigns to such evidence. 30 Here, the Board
did precisely what it is charged to do. The Board
identified relevant medical treatment records,
including February 2014, June 2015, June 2018, and
December 2019 examination reports. The Board
assessed these reports, noting that it did not find “any
competent opinions supported by a rationale” that
provided a positive nexus between appellant’s current
psychiatric diagnoses and his service. 31 Appellant
clearly disagrees with how the Board assessed the
facts before it. We have considered appellant’s
arguments about the Board’s factual determinations
concerning PTSD and conclude that the Board did not
clearly err in weighing the evidence.
29 Appellant’s Br. at 6 (emphasis omitted).
30 See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997);
Owens v. Brown, 7 Vet.App. 429, 433 (1995).
31 R. at 12.
26a
Next, we address appellant’s arguments
concerning service connection for a psychiatric
condition other than PTSD. Appellant first asserts
that the Board allegedly required a chronic condition
to exist during service for service connection to be
established. 32 With respect to this argument,
appellant refers to the Board’s finding that a “chronic
psychiatric disorder was not shown in service.” 33
Although the Board does make this finding and
reiterates it again in its decision, 34 the Board provides
a comprehensive rationale as to why it denied
appellant entitlement service connection for his
psychiatric conditions other than PTSD. It did not
simply deny appellant service connection based on a
lack of a chronic condition during service. As we
explained above, the Board considered several
relevant medical opinions and adequately explained
why it found the June 2015 opinion most persuasive,
thereby finding that appellant’s conditions are not
related to service.
With regard to these opinions, appellant makes a
secondary argument suggesting that the Board
favored the opinions of “VA examiners” over that of
appellant’s VA psychiatrist Dr. G. 35 Each examiner
the Board refers to possessed the expertise to report
on the circumstances of appellant’s service and the
32 See Appellant’s Br. at 9 .
33 Reply Br. at 6 (citing R. at 5).
34 See, e.g., R. at 12.
35 Appellant’s Br. at 9, 10; Reply Br. at 8.
27a
status of his psychiatric conditions. Here, the Court
can discern what weight the Board attributed to each
VA examiner’s opinion—regardless of whether they
were a psychiatrist or psychologist. The Board
correctly identified the material and relevant medical
opinions that address appellant’s claim for service
connection and provided coherent assessments for
each. Overall, appellant has not met his burden of
demonstrating error in the Board’s decision.
C. Benefit of the Doubt
Finally, also regarding the Board’s assessment of
the evidence, appellant raises two interrelated
arguments asserting that the Board misapplied the
benefit of the doubt doctrine when it weighed the
evidence. 36 Appellant contends that the Board
misapplied the standard of proof as defined in Gilbert
v. Derwinski, 1 Vet.App. 49 (1990), alleging that when
there are two competing opinions, appellant must
prevail on the merits if one of those opinions is
favorable. 37 Second, appellant argues that the Board
misapplied the benefit of the doubt doctrine under 38
U.S.C. § 5107. We see little, if any, distinction
between these arguments. So, we will address them
together.
The benefit of the doubt doctrine states that
“[w]hen there is an approximate balance of positive
and negative evidence regarding any issue …, the
Secretary shall give the benefit of the doubt to the
36 See, e.g., Appellant’s Br. at 11-19.
37 Reply Br. at 8-9.
28a
claimant.” 38 But “the benefit of the doubt rule is
inapplicable when the preponderance of the evidence
is found to be against the claimant.” 39 In other words,
when such preponderance of the evidence is found to
weigh against an appellant’s claim, the Board
“‘necessarily has to determine that the evidence is ‘not
nearly equal’ or ‘too close to call,’ and the benefit of
the doubt rule therefore has no application.’” 40
In Mattox, the Court addressed the function of the
benefit of the doubt doctrine and its application to a
set of facts that is very similar to the facts presented
on appeal here. 41 The veteran in Mattox sought
entitlement to service connection for PTSD. There
were two relevant medical opinions pertaining to the
veteran’s claim—one in which he received a PTSD
diagnosis and another which contained no such
diagnosis. 42 The veteran argued that because one
medical opinion consisted of a PTSD diagnosis, the
38 38 U.S.C. § 5107(b); see 38 C.F.R. § 3.102 (2021).
39 Ortiz v. Principi, 274 F.3d 1361, 1366 (Fed. Cir. 2001); Lynch
v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021) (“[I]f the
positive and negative evidence is in approximate balance (which
includes but is not limited to equipoise), the claimant receives
the benefit of the doubt”).
40 Mattox v. McDonough, __ Vet.App. __ __, 2021 WL 1604717, at
*10 (Apr. 26, 2021) (citing Ortiz v. Principi, 274 F.3d 1361, 1365
(Fed. Cir. 2001)).
41 Appellant’s counsel also represented the veteran in Mattox,
where counsel presented a benefit-of-the-doubt argument
similar to that on appeal here.
42 Mattox, __ Vet.App. __, 2021 WL 1604717, at *10.
29a
evidence was in equipoise such that the benefit of the
doubt applied. However, the Mattox Court rejected
the veteran’s argument, stating that he overlooked
the weight assigned to the PTSD diagnosis and the
Board’s finding that “the diagnosis was not based on
[the veteran’s] full disability picture.” 43 The Court
further explained that the benefit of the doubt
doctrine “considers the quality of the evidence, not
merely the quantity.” 44 In Mattox, the Court
concluded that it need not apply the benefit of the
doubt rule where the Board found that the
preponderance of the evidence weighed against the
veteran’s claim. 45
Here, the Board found that the preponderance of
the evidence weighed against the claim. 46 Similar to
Mattox, appellant received a PTSD diagnosis by at
least one examiner but other examiners did not make
such a diagnosis. And, importantly, the Board here
found the June 2015 opinion more persuasive than
the opinions showing a diagnosis of PTSD because the
June 2015 opinion provided a more comprehensive
review of appellant’s military and medical history. As
we concluded above, that finding is not clearly
43 Id.
44 Id. (emphasis in original).
45 Id.
46 R. at 13.
30a
erroneous. 47 And thus, the benefit of the doubt
doctrine does not apply here. 48
In sum, the Board fully explained the bases for its
decision, allowing us to engage in meaningful judicial
review. We have carefully reviewed the evidence and
the Board’s assessment of it, and we conclude that the
Board’s decision to deny service connection for an
acquired psychiatric disorder, which includes
posttraumatic stress disorder (PTSD), depression,
intermittent explosive disorder, and chronic
adjustment disorder is not clearly wrong and is
supported under relevant legal principles.
II. CONCLUSION
After consideration of the parties’ briefs, the
governing law, and the record, the Court AFFIRMS
the Board’s February 6, 2020, decision.
DATED: July 27, 2021
Copies to:
Kenneth M. Carpenter, Esq.
VA General Counsel (027)
47 See 38 U.S.C. § 7261(a)(4); Gilbert, 1 Vet.App. at 53.
48 See Ortiz, 274 F.3d at 1366.
31a
APPENDIX D
Designated for electronic publication only
UNITED STATES COURT OF APPEALS
FOR VETERANS CLAIMS
No. 20- 0882
NORMAN F. THORNTON, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
FALVEY, Judge: Army veteran Norman F.
Thornton through counsel appeals a January 23,
2019, Board of Veterans’ Appeals decision denying a
rating above 50% for post-traumatic stress disorder
(PTSD) and denying a rating above 40% for a
disability manifested by fatigue, joint pain,
gastrointestinal bleeding, headaches, shortness of
breath, nausea, body shakes, and diarrhea as due to
an undiagnosed illness. 1 The appeal is timely, the
1 The Board granted entitlement to a total disability rating based
on individual unemployability (TDIU). Record (R.) at 5. This is a
32a
Court has jurisdiction to review the Board decision,
and single-judge disposition is appropriate. See 38
U.S.C. §§ 7252(a), 7266(a); Frankel v. Derwinski, 1
Vet.App. 23, 25-26 (1990).
As for the PTSD claims, we are asked to decide
whether the Board incorrectly applied the rating
schedule, the benefit of the doubt doctrine, the rule on
the assignment of the higher of two ratings, and the
duty to maximize benefits, and whether the Board
gave an adequate statement of reasons or bases. As
for the undiagnosed illness claim, we are asked to
decide whether the Board incorrectly selected an
analogous rating or incorrectly applied 38 C.F.R. §
4.88b, Diagnostic Code (DC) 6354, and whether the
Board gave an adequate statement of reasons or
bases. For the reasons below, we will affirm the
Board’s decision.
I. BACKGROUND
Mr. Thornton served on active duty from October
1988 to December 1991. R. at 1357. In November
1994, VA granted service connection for a “disability
manifested by fatigue, joint pain, gastrointestinal
bleeding, headaches, night sweats, nightmares,
shortness of breath, nausea, numbness in both hands,
body shakes, and diarrhea due to an undiagnosed
illness
(Environmental
Hazard
in
Gulf
War/Undiagnosed
Illness)
[hereinafter
‘the
undiagnosed illness’],” with a 40% rating. See R. at
favorable finding that this Court cannot disturb. See Medrano v.
Nicholson, 21 Vet.App. 165, 170 (2007).
33a
1932. In February 2005, the regional office (RO)
granted service connection for PTSD with a 10%
rating. R. at 1928. In February 2015, Mr. Thornton
applied for increased ratings for PTSD and the
undiagnosed illness (listed as Gulf War Syndrome)
and for service connection for a disconnect
(dissociative) disorder. R. at 1679.
In a July 2015 VA examination to evaluate the
undiagnosed illness, the VA examiner noted that the
illness was undiagnosed but completed an
examination form for chronic fatigue syndrome (CFS).
R. at 1300-03. Mr. Thornton reported that he “[wore]
out real easy,” and could work for only six to seven
hours on a typical day. Id. Mr. Thornton also reported
that he could not distinguish his tiredness from his
PTSD. R. at 1301. The examiner concluded that CFS
restricted Mr. Thornton’s routine daily activities to
50% to 75% of his pre-illness level, but that he had no
incapacitation. R. at 1302. The examiner noted that
Mr. Thornton had slept poorly since returning from
the Gulf War, where he had chemical exposure, and
that he also suffered joint aches, muscle spasms, limb
numbness, carpal tunnel syndrome, PTSD, and
depressive symptoms likely due to his PTSD, id., but
had not suffered gastrointestinal bleeding in a “long
time” and experienced less nausea, R. at 1303. The
examiner concluded that, “[b]ased on his
[neuropsychological] testing and veteran’s own
testimony, a fair amount of his symptoms are related
to his PTSD and therefore, not undiagnosed
symptoms.” Id.
Also in July 2015, he underwent a VA
examination to evaluate his PTSD. R. at 1304-13. The
34a
examiner found that Mr. Thornton suffered
occupational and social impairment with reduced
reliability and productivity. R. at 1305. The examiner
noted that Mr. Thornton was married but separated,
had a good relationship with his two children, and
participated in medieval reenactment events with
friends. R. at 1307. Mr. Thornton reported that he had
done some “side jobs” in the prior five years, but that
the biggest barrier to employment was “sudden
intense fatigue that comes out of nowhere,” and that
memory lapses also hindered his work. R. at 1308.
The examiner found that Mr. Thornton exhibited
symptoms of PTSD such as depressed mood, anxiety,
sleep impairment, and “difficulty in adapting to
stressful circumstances.” R. at 1310-11.
In July 2015, the RO increased the PTSD rating
to 50%, continued the 40% rating for the undiagnosed
illness, and denied service connection for a disconnect
(dissociative) disorder. R. at 1074.
In a December 2015 VA examination to evaluate
the undiagnosed illness, the examiner noted that Mr.
Thornton had gone through a series of maintenance
and service jobs. R. at 951. The examiner described
his symptoms as debilitating fatigue, headaches,
migratory joint pains, sleep disturbances, episodic
chills, and weight loss (which Mr. Thornton
attributed to dietary changes). R. at 951-52. Mr.
Thornton denied having gastrointestinal, bowel, or
bladder symptoms. R. at 952. The examiner
determined that the veteran’s routine daily activities
were restricted to 50% to 75% of his pre-illness level,
but he had no periods of incapacitation. Id.
35a
In a December 2015 VA PTSD examination, the
examiner found that Mr. Thornton had occupational
and social impairment with reduced reliability and
productivity. R. at 944. The examiner noted that he
was still separated from his wife but had a new
girlfriend, had good relationships with his children,
and continued to participate in medieval reenactment
with friends. R. at 945. Mr. Thornton reported that he
was supposed to work in summer 2015 but had a
“memory lapse” and forgot to report to the job. R. at
946. The examiner noted that Mr. Thornton exhibited
sleep disturbances, depressed mood, anxiety, mild
memory loss, “difficulty in adapting to stressful
circumstances,” and nightmares, slept only three to
four hours a night, and felt depressed “a lot,” and
anxious up to four or five days a week. R. at 947-48.
But the examiner found that Mr. Thornton was alert
and oriented, appropriately groomed, and had no
psychotic symptoms. R. at 948. The examiner
determined that Mr. Thornton had moderate
impairment in reliability and productivity. R. at 949.
In December 2015, the RO continued the 50%
rating for PTSD and the 40% rating for the
undiagnosed illness. R. at 918. In December 2016, Mr.
Thornton filed his Notice of Disagreement. R. at 87582. That same month, the RO issued a Statement of
the Case (SOC), continuing the 50% rating for PTSD
and the 40% rating for the undiagnosed illness. R. at
767-801. In February 2017, Mr. Thornton perfected
his appeal. R. at 765-66.
In an April 2017 VA examination evaluating the
undiagnosed illness, the examiner noted that the
veteran’s fatigue was “frequently intertwined with his
36a
PTSD” and that it would be “mere speculation” to
estimate how the conditions affected each other. Id.
The examiner found that Mr. Thornton’s undiagnosed
illness restricted his routine daily activities by less
than 25% of his pre-illness level. 2 R. at 755. In
September 2017, the RO issued a Supplemental SOC
(SSOC), which continued the 50% rating for PTSD
and the 40% rating for the undiagnosed illness. R. at
695-703.
In January 2019, the Board found that the
evidence weighed against an increased rating for the
undiagnosed illness claim and that Mr. Thornton’s
overall level of occupational and social impairment
was most consistent with the 50% rating and so
denied an increased rating for PTSD. R. at 12, 17-18.
This appeal followed.
II. ANALYSIS
To begin, we note that Mr. Thornton argues that
the Secretary has not shown that the Board correctly
applied the law. Reply Brief (Br.) at 4, 5. This implies
that the Secretary bears the burden of showing no
error. But Mr. Thornton, as the appellant, has the
burden of showing error—that the Board incorrectly
applied the law. See Hilkert v. West, 12 Vet.App. 145,
151 (1999) (holding that the appellant has the burden
of showing error), aff’d per curiam, 232 F.3d 908 (Fed.
Cir. 2000) (table). With that in mind, we now turn to
Mr. Thornton’s specific arguments.
2 The examiner explained that this meant that “more than 75%
of the pre-illness level of activities are not restricted.” R. at 755.
37a
A. The PTSD Claim
1. Rating Criteria
Mr. Thornton argues that the Board erred when
it continued the 50% rating for PTSD and that a
correct application of the rating schedule entitles him
to a 70% rating. Appellant’s Br. at 4, 11. He argues
that the Board did not assess the severity, frequency,
or duration of his PTSD symptoms, and that it did not
assess the occupational and social impairment caused
by those symptoms. Id. at 6-7. He argues that the
Board’s failures mean that it did not determine his
overall disability picture and so it could not have
properly applied the rating criteria. Id. at 10-11. He
does not challenge the Board’s underlying findings of
fact. Reply Br. at 3. The Secretary argues that,
because Mr. Thornton does not challenge the
adequacy of the VA examinations or argue that the
Board overlooked any evidence, he has not shown that
the Board’s application of the rating criteria was
prejudicial error. Secretary’s Br. at 8-9.
PTSD is evaluated under 38 C.F.R. § 4.130, DC
9411. That provision provides that a 50% disability
rating is warranted when PTSD causes
[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
38a
highly learned material, forgetting to
complete
tasks);
impaired
judgment;
impaired abstract thinking; disturbances of
motivation
and
mood;
difficulty
in
establishing and maintaining effective work
and social relationships.
38 C.F.R. § 4.130, DC 9411 (2020) (emphasis added).
A 70% disability rating is warranted when PTSD
causes
[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; nearcontinuous 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. (emphasis added).
When deciding a mental health rating, VA must
engage in a “holistic” analysis that assesses
symptoms according to their severity, frequency, and
39a
duration. Bankhead v. Shulkin, 29 Vet.App. 10, 22
(2017). In particular, “[t]he 70 percent disability
rating regulation contemplates initial assessment of
the symptoms displayed by the veteran, and if they
are of the kind enumerated in the regulation, an
assessment of whether those symptoms result in
occupational and social impairment with deficiencies
in most areas.” Vazquez-Claudio v. Shinseki, 713 F.3d
112, 118 (Fed. Cir. 2013); see also Emerson v.
McDonald, 28 Vet.App. 200, 212 (2016).
Here, we do not find that the Board failed to
properly apply the rating criteria for PTSD under
§ 4.130. The Board considered Mr. Thornton’s
symptoms and the resulting level of impairment. See
Vazquez-Claudio, 713 F.3d at 118. The Board
determined that, based on a combination of the VA
examiners’ opinions and Mr. Thornton’s lay
statements, his memory issues most closely
approximated impairment of short- and long-term
memory loss, a characteristic of the 50% rating. R. at
16; see § 4.130. Because Mr. Thornton himself said
that his chronic fatigue was the main obstacle to
steady employment, the Board determined that his
memory lapses due to PTSD did not alone cause
significant occupational impairment. R. at 17; see R.
at 1308 (July 2015 examination). And given his good
relationships with his children and participation in
social or recreational activities, the Board found his
social impairment due to PTSD to be minimal. R. at
17. The Board acknowledged that both VA examiners
found that he had “difficulty in adapting to stressful
circumstances,” a characteristic of the 70% rating. Id.;
see R. at 948, 1311. But the Board noted that those
same examiners still found that his occupational
40a
impairment was best characterized as reduced
reliability and productivity, which fits the 50% rating
criteria. R. at 17; see R. at 949, 1305. The Board
correctly noted that it must engage in a holistic
analysis, considering not only the presence of
symptoms but also the level of impairment. Id. (citing
Bankhead, 29 Vet.App. at 20); see Vazquez-Claudio,
713 F.3d at 118. Throughout its analysis, the Board
not only took note of his symptoms but, crucially,
considered their impact on his occupational and social
functioning, thus complying with the legal
requirements for determining the degree of disability.
R. at 15-17; see Vazquez-Claudio, 713 F.3d at 118.
Thus, Mr. Thornton has not shown that the Board’s
application of § 4.130 was erroneous. See Hilkert, 12
Vet.App. at 151.
2. Benefit of the Doubt
Mr. Thornton argues that the Court must
undertake two reviews. He argues that the Court
must first review whether the Board’s application of
38 C.F.R. § 4.3 was “arbitrary, capricious, an abuse of
discretion, or not otherwise an in accordance with
law,” and whether it was supported by an adequate
statement of reasons or bases. Appellant’s Br. at 1617 (citing 38 U.S.C. § 7261(a)(3)(A)). He argues that
under this review the Board failed to correctly apply
§ 4.3 and assign a 70% rating for his PTSD. Id. at 16,
22. He argues that the Court must then conduct a
review under 38 U.S.C. § 7261(b)(1), which requires
the Court to take due account of the Board’s
application of 38 U.S.C. § 5107(b), the statutory basis
for giving the claimant the benefit of the doubt. Id. at
17. He argues that a reasonable doubt arose over the
41a
degree of his PTSD disability and thus the Board
erred when it did not resolve the doubt in his favor by
assigning a 70% rating. Id. at 18-19. In response, the
Secretary argues that Mr. Thornton is effectively
asking the Court to use section 7261(b)(1) to reweigh
the evidence, which the Court cannot do. Secretary’s
Br. at 11-12.
Both the statute and the regulation require that,
if there is an approximate balance of evidence for and
against the claimant’s position, then the Secretary
must decide the matter in the claimant’s favor, with §
4.3 referring specifically to doubt about the claimant’s
degree of disability. 3 But if the Board finds that the
evidence is not approximately balanced, then there is
no doubt to resolve, and if the Board thus does not
apply § 4.3, that decision is not arbitrary, capricious,
3 Section 5107(b) requires that, “[w]hen there is an approximate
balance of positive and negative evidence regarding any issue
material to the determination of a matter, the Secretary shall
give the benefit of the doubt to the claimant.” Section 4.3
requires that, “[w]hen after careful consideration of all
procurable and assembled data, a reasonable doubt arises
regarding the degree of disability such doubt will be resolved in
favor of the claimant.” A “reasonable doubt” exists where there
is “an approximate balance of positive and negative evidence
which does not satisfactorily prove or disprove the claim” 38
C.F.R. § 3.102 (2020). “Balance” means a state of “equipoise” or
“to be equal in value,” and so an “approximate balance” is “when
the evidence in favor of and opposing the veteran’s claim is found
to be almost exactly or nearly equal.” Ortiz v. Principi, 274 F.3d
1361, 1364 (Fed. Cir. 2001); see also Lynch v. McDonough, ___
F.3d ___, ___, No. 20-2067, slip op. at 8 (Fed. Cir. June 3, 2021)
(“[I]f the positive and negative evidence is in approximate
balance (which includes but is not limited to equipoise), the
claimant receives the benefit of the doubt.”).
42a
an abuse of discretion, or not otherwise in accordance
with law. Mayhue v. Shinseki, 24 Vet.App. 273, 282
(2011). Although the Court must “take due account of
the Secretary’s application of” that provision, 38
U.S.C. § 7261(b)(1), the Board’s determination under
section 5107(b) of whether the evidence is
approximately balanced is a factual one that the
Court reviews for clear error. Mariano v. Principi, 17
Vet.App. 305, 313 (2003); Roberson v. Principi, 17
Vet.App. 135, 146 (2003).
Mr. Thornton fails to show that the Board erred
in its application of either provision. See Hilkert, 12
Vet.App. at 151. He does not explain how the evidence
is approximately balanced and thus caused a
reasonable doubt over whether he warranted a 50%
or a 70% rating. The Board did not forget to consider
either section 5107(b) or § 4.3; it simply found that
there was no doubt to resolve. R. at 18. In one
instance, the Board found a reasonable doubt over
whether Mr. Thornton’s memory lapses were due to
his PTSD and it resolved that doubt in his favor by
finding that his memory lapses were attributable to
that condition. R. at 15. But the Board found that
overall the evidence showed a moderate degree of
impairment better contemplated by the 50% rating
than by the 70% rating, R. at 17; that the evidence
was not approximately evenly balanced, R. at 16; and
that there was no doubt to be resolved on that issue,
R. at 18.
As the overall evidence was not in approximate
balance, § 4.3 simply did not apply, and thus the
Board’s decision not to apply the provision was not
arbitrary, capricious, an abuse of discretion, or not
43a
otherwise an in accordance with law. See Mayhue, 24
Vet.App. at 282. In accordance with section
7261(b)(1), the Court takes due account of the Board’s
application of section 5107(b)—and finds no error.
The Board was required by section 5107(b) to
determine whether a reasonable doubt existed, and it
complied, finding no doubt to resolve. R. at 18. The
outcome of that analysis is a factual finding, see
Mariano, 17 Vet.App. at 313; Roberson, 17 Vet.App.
at 146, and Mr. Thornton does not challenge the
Board’s factual findings, Reply Br. at 3. Thus, he has
not shown error in the Board’s application of section
5107(b). See Hilkert, 12 Vet.App. at 151.
3. Choosing Between Two Ratings
Mr. Thornton also argues that the Board failed to
correctly apply 38 C.F.R. § 4.7 and assign the higher
70% rating. Appellant’s Br. at 14. He argues that the
Board failed to define what it meant by his “disability
picture,” id. at 14-15, and that without identifying or
describing his disability picture the Board could not
have correctly applied § 4.7, id. at 16. Mr. Thornton
argues that “disability picture” should be given its
ordinary meaning, which he says is “what, for the
individual veteran[,] his or her disability looks like to
an outside observer.” Id. at 15. The Secretary argues
that the Board properly considered his disability
picture, noting his symptoms and resulting
impairment, and properly found that his disability
picture warranted a 50% rating. Secretary’s Br. at 1011.
Mr. Thornton has not shown that the Board’s
failure to define “disability picture” is prejudicial
44a
error. Although the Board did not define “disability
picture,” it discussed his symptoms and their level of
impairment; by his own standard, the Board gave an
image of what his disability “look[ed] like to an
outside observer.” See R. at 16-17; Appellant’s Br. at
15. Thus, we are unpersuaded that the Board’s failure
to define the phrase “disability picture,” when it still
discussed his condition in detail, rises to the level of
prejudicial error. See Waters v. Shinseki, 601 F.3d
1274, 1278 (Fed. Cir. 2010) (holding that the
appellant has the burden of showing prejudicial
error).
And we do not find the Board’s application of § 4.7
erroneous. The regulation does not mandate the
choice of the higher rating in every instance, but only
when the higher rating “more nearly approximates
the criteria required for that rating.” 38 C.F.R. § 4.7
(2020). Here, the Board found that Mr. Thornton’s
condition did not “more nearly approximate” the 70%
rating. R. at 17. The Board noted that he exhibited
one symptom—difficulty adapting to stressful
circumstances—characteristic of a 70% rating, but his
condition as a whole was more consistent with a 50%
rating because his other symptoms resulted only in
moderate impairment. R. at 17. When the claimant’s
condition more closely matches the lower rating, then
the regulation precludes assigning a higher rating. 38
C.F.R. § 4.7; see also Bankhead, 29 Vet.App. at 19.
The Board’s choice among ratings complied with § 4.7,
and so Mr. Thornton has not shown the Board’s
decision on that point was erroneous. See Hilkert, 12
Vet.App. at 151.
45a
4. Duty to Maximize Benefits
Mr. Thornton also argues that the Secretary’s
obligation to maximize benefits under 38 C.F.R.
§ 3.103(a) is manifested in the provisions of §§ 4.3
(resolving doubt in favor of the veteran) and 4.7
(assigning the higher of two evaluations). Appellant’s
Br. at 11. He appears to argue that the Board, by not
resolving doubt in his favor and assigning a rating
higher than 50% for PTSD, failed to maximize
benefits. Although he is correct about the obligation
to maximize benefits, that maximization is limited to
what “can be supported in law while protecting the
interests of the Government.” 38 C.F.R. § 3.103(a)
(2020). Because we find that the Board did not err
when applying §§ 4.3 and 4.7, we thus do not find that
the Secretary failed in his obligation under § 3.103(a).
5. Reasons or Bases
Mr. Thornton also argues that the Board gave an
inadequate statement of reasons or bases for its
determination that the preponderance of the evidence
was against a 70% PTSD rating. Appellant’s Br. at 1617. In response, the Secretary argues that the Board
gave an adequate statement of reasons or bases,
particularly when it noted consistencies between the
July and December 2015 VA examinations and when
it noted that, although one of Mr. Thornton’s
symptoms aligned with a 70% rating, the evidence as
a whole warranted a 50% rating. Secretary’s Br. at 1011.
As with any finding on a material issue of fact and
law presented on the record, the Board must support
46a
its determination of the appropriate rating 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, 56-57 (1990). To comply with this requirement,
the Board must analyze the credibility and probative
value of evidence, account for evidence it finds
persuasive or unpersuasive, and provide reasons for
rejecting 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).
We find that the Board gave an adequate
statement of reasons or bases. The Board summarized
the findings of the July and December 2015 VA
examinations. R. at 14-15. The Board acknowledged
his difficulty doing work but found, based on his own
reports, that his occupational impairment was due to
his chronic fatigue rather than his PTSD, and that
PTSD’s effects were “mild to moderate,” not the level
contemplated by the 70% rating. R. at 16-17. It also
acknowledged that, although he displayed a symptom
characteristic of the 70% rating, “difficulty adapting
to stressful circumstances,” it explained that it must
engage in a holistic analysis and on balance his
symptoms were more closely contemplated by a 50%
rating. R. at 17. It noted that both the July and
December 2015 examiners found that his
occupational impairment was best characterized as
reduced reliability and productivity, which is
consistent with the criteria for a 50% rating. R. at 17.
The Board accounted for the favorable evidence and
gave the precise bases for its determinations, so we
find that its statement of reasons or bases was
47a
adequate. See Caluza, 7 Vet.App. at 506; Gilbert, 1
Vet.App. at 56-57.
B. Undiagnosed Illness
1. Choice of Diagnostic Code
Mr. Thornton argues that the Board incorrectly
applied 38 C.F.R. § 4.20 by analogizing his
undiagnosed illness to CFS, rated under 38 C.F.R.
§ 4.88b, DC 6354. Appellant’s Br. at 22-23. He argues
that, because the undiagnosed illness includes
symptoms like gastrointestinal bleeding, a more
closely analogous rating would be post-gastrectomy
syndrome 4 under 38 C.F.R. § 4.114, DC 7308. Id. at
23-24. He asks the Court to reverse the Board’s
decision to select DC 6354 and direct the Board to
assign DC 7308. Id. at 24. 5 The Secretary argues that
Mr. Thornton’s current symptoms are indeed more
analogous to CFS and so the Board correctly assigned
DC 6354. Secretary’s Br. at 13-14.
An unlisted condition may be rated under the DC
for a different disease if the conditions are “closely
analogous.” 38 C.F.R. § 4.20 (2020); see also Vogan v.
Shinseki, 24 Vet.App. 159, 161 (2010); Lendenmann
v. Principi, 3 Vet.App. 345, 351 (1992). The Court may
Gastrectomy is the removal of all or part of the stomach.
DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 754 (33d ed.
2020).
4
5 Although Mr. Thornton observes that DC 7308 provides for
both 40% and 60% ratings, Appellant’s Br. at 23-24, he does not
specify which rating he wants the Board to choose.
48a
set aside the Board’s choice of DC only if “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” Stankevich v. Nicholson, 19
Vet.App. 470, 472 (2006); Butts v. Brown, 5 Vet.App.
532, 538-39 (1993).
CFS is rated as 40% disabling where “debilitating
fatigue” and cognitive impairments (including
forgetfulness) are “nearly constant and restrict daily
activities from 50 to 75 percent of the pre-illness
level.” 38 C.F.R. § 4.88b, DC 6354 (2020). Postgastrectomy syndrome is rated as 40% disabling
where there are “less frequent episodes of epigastric
disorders with characteristic mild circulatory
symptoms after meals but with diarrhea and weight
loss.” 38 C.F.R. § 4.114, DC 7308 (2020). It is rated as
60% disabling where there is “nausea, sweating,
circulatory disturbance after meals, diarrhea,
hypoglycemic symptoms, and weight loss with
malnutrition and anemia.” Id.
Here, we do not find that the Board’s choice of DC
6354 to rate by analogy the undiagnosed illness was
arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law. The Board
considered the July and December 2015 and the April
2017 VA examinations, all of which assessed Mr.
Thornton for CFS. R. at 9-11. The Board noted that
he suffered nightmares and night-sweats but found
that those were due to his PTSD and not the
undiagnosed illness. Id. It also found that he had not
suffered gastrointestinal bleeding for years and that
there was limited evidence about diarrhea and
nausea. Id. Indeed, in the July 2015 examination, Mr.
Thornton himself reported that he had not suffered
49a
gastrointestinal bleeding in a “long time” and was
experiencing less nausea. R. at 1302-03. In the
December 2015 examination, he denied any
gastrointestinal problems and, although reporting
weight loss, he attributed it to dietary changes, not to
the undiagnosed illness. R. at 952. The record shows
that symptoms of CFS, like fatigue and forgetfulness,
were consistently present, but that several symptoms
of post-gastrectomy syndrome, like gastrointestinal
problems and circulatory problems, were not. Thus,
we cannot say that the Board’s choice of DC 6354
(CFS) was arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.
See Stankevich, 19 Vet.App. at 472; Butts, 5 Vet.App.
at 538-39.
Although Mr. Thornton also invokes the Board’s
duty to provide an adequate statement of reason or
bases for its choice of DC, he does not provide any
argument that the Board’s reasons or bases were
inadequate in this regard. Appellant’s Br. at 24. Thus,
we find his argument on this point to be undeveloped,
and so we will not consider it. See Locklear v.
Nicholson, 20 Vet.App. 410, 416 (2006).
2. Application of DC 6354
Mr. Thornton argues in the alternative that, even
if the choice of DC 6354 were correct, the Board’s
application of DC 6354 was clearly erroneous.
Appellant’s Br. at 25, 28. He argues that the Board
failed to define “pre-illness level” or “incapacitation”
as used in the rating criteria, meaning that the Court
cannot determine whether the Board correctly
applied the rating criteria of DC 6354. Id. at 25, 26-
50a
27. The Secretary argues that the Court should
simply abide by the ordinary meaning of “pre-illness”
level and no further definition from the Board was
necessary. Secretary’s Br. at 15-16. He also argues
that “incapacitation” is defined in the regulation. Id.
at 16.
We may easily dispose of Mr. Thornton’s
arguments about the definition of “incapacitation.”
DC 6354 rates debilitating fatigue that either
restricts routine daily activities or that results in
periods of “incapacitation.” § 4.88b. The regulation
states that “incapacitation exists only when a licensed
physician prescribes bed rest and treatment.” Id. The
Board twice noted this definition in its decision, R. at
5, 11, but found that Mr. Thornton never experienced
any periods of incapacitation, R. at 11. (Both the July
and December 2015 examiners found no
incapacitation due to CFS. R. at 952, 1302.) Instead,
he was rated based, not on incapacitation, but on the
restriction of his routine daily activities. Id.
(Similarly, both the July and December 2015
examiners found that his routine daily activities were
restricted to 50% to 75% of his pre-illness level. R. at
952, 1302.) The term “incapacitation” was already
defined in the regulation, the Board repeated that
definition, and incapacitation was not an issue before
the Board. Thus, Mr. Thornton has shown no error.
See Hilkert, 12 Vet.App. at 151.
“Pre-illness level” is not defined in the regulation
or in the Board decision, but, as the Secretary argues,
unless otherwise directed, the ordinary meaning of a
phrase controls. Secretary’s Br. at 15 (citing
Prokarym v. McDonald, 27 Vet.App. 307, 310 (2015)
51a
(“In the absence of an express definition, words are
given their ordinary meaning.”)). He argues that the
“pre-illness level” means the level of routine daily
activities that the claimant engaged in before the
illness. Secretary’s Br. at 15. “[I]f the meaning of the
regulation is clear from its language, then that is the
end of the matter.” Tropf v. Nicholson, 20 Vet.App.
317, 320 (2006). Further discussion is needed only
when there is ambiguity, which arises “when the
application of the ordinary meaning … of the
regulation fails to answer the question at issue.” Roby
v. Wilkie, 31 Vet.App. 91, 98-99 (2019) (citing Tropf,
20 Vet.App. at 321 n.1). By the plain language of the
phrase, “pre-illness level” simply means the state of a
claimant’s routine daily activities before the onset of
CFS symptoms; there is no ambiguity to address. See
Tropf, 20 Vet.App. at 320. Thus, we agree with the
Secretary that the ordinary meaning governs.
Mr. Thornton cites Johnson v. Wilkie, 30 Vet.App.
245, 255 (2018), arguing that the Board must disclose
the standard under which it is operating. Appellant’s
Br. at 26. But Johnson focused on a situation where
the Board failed to define a term of degree
(specifically, “very frequent”) that could be applied
inconsistently across similar cases without a clear
definition. 30 Vet.App. at 255. “Pre-illness” is a term
whose meaning is apparent: before the illness. See
Prokarym, 27 Vet.App. 310. Although the “level” of
claimants’ pre-illness routine daily activities may
vary, the degree of impairment looks at the effect of
CFS symptoms on the individual claimant’s
employment and daily life as compared to that
claimant’s employment and daily life before the
illness. See Vazquez-Flores v. Shinseki, 24 Vet.App.
52a
94, 106 (2010) (noting that DC 6354’s assessment of
how fatigue restricts routine daily activities is not
objective evidence but “more general evidence”
discussing “the impact upon employment or daily
life”). This assessment does not require further
definition like “very frequent” did in Johnson v.
Wilkie.
The veteran also cites Hood v. Brown, 4 Vet.App.
301, 302 (1993), which dealt with the Board’s failure
to define a term that the Court found “qualitative”
rather than “quantitative” in nature, see id. at 303.
But he does not make any argument about whether
the phrase “pre-illness level” is qualitative or
quantitative, and so we will decline to address it. See
Locklear, 20 Vet.App. at 416. Thus, Mr. Thornton has
not shown that the Board erred when it did not define
“pre-illness level.” See Hilkert, 12 Vet.App. at 151.
III. CONCLUSION
On consideration of the above, the appealed parts
of the January 23, 2019, Board decision are
AFFIRMED.
DATED: June 11, 2021
Copies to:
Kenneth M. Carpenter, Esq.
VA General Counsel (027)
53a
APPENDIX E
BOARD OF VETERANS’ APPEALS
FOR THE SECRETARY OF VETERANS AFFAIRS
IN THE APPEAL OF
SS [REDACTED]
JOSHUA E. BUFKIN Docket No. 18-28 418A
Represented by
KENNETH M. CARPENTER, Attorney
DATE:
February 6, 2020
ORDER
Entitlement to service connection for an acquired
psychiatric disorder, to include posttraumatic stress
disorder (PTSD), depression, intermittent explosive
disorder, and chronic adjustment disorder is denied.
FINDINGS OF FACT
1. The preponderance of the evidence fails to establish
the Veteran has been diagnosed with PTSD at any
time during the appeal period or proximate thereto.
2. A chronic psychiatric disorder was not shown in
service; and, the preponderance of the evidence fails
to establish that the Veteran’s diagnosed depression,
intermittent explosive disorder, and chronic
adjustment disorder are etiologically related to his
active service.
54a
CONCLUSION OF LAW
The criteria for service connection for acquired
psychiatric disorder, to include PTSD, depression,
intermittent explosive disorder, and chronic
adjustment disorder have not been met. 38 U.S.C.
§§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304.
REASONS AND BASES FOR
FINDINGS AND CONCLUSION
The Veteran served in the United States Air Force
September 2005 through March 2006.
This matter comes before the Board of Veterans’
Appeals (Board) on appeal from a rating decision
issued by a Department of Veterans Affairs (VA)
Regional Office (RO) in Boise, Idaho.
The Veteran has submitted new evidence pertaining
to this appeal; he waived Agency of Original
Jurisdiction (AOJ) review of such evidence in January
2020. 38 C.F.R. § 20.1304(c).
The Veteran was denied entitlement to service
connection for these matters in a March 2014 rating
decision. Service records relevant to the claimed
disabilities have been associated with the claims file
since then. Under 38 C.F.R. § 3.156(c), at any time
after VA issues a decision on a claim, if VA receives or
associates with the claims file relevant official service
department records that existed and had not been
associated with the claims file when VA first decided
the claim, VA will reconsider the claim,
notwithstanding the requirement under subpart (a)
55a
that there first be new and material evidence to
reopen the claim. See also Vigil v. Peake, 22 Vet. App.
63 (2008). In light of the aforementioned records, the
Board will consider the service connection claims on
the merits, without addressing any threshold issue of
whether new and material evidence has been received
to reopen the claims. See 38 C.F.R. § 3.156(c).
A February 2014 memo notes that service treatment
records are missing from the Veteran’s claim file; his
service and VA treatment records have been obtained
and associated with his claims file. See 38 U.S.C. §
5103A; 38 C.F.R. § 3.159(c).
Entitlement to service connection for PTSD and
depression with anxiety, intermittent explosive
disorder, and chronic adjustment disorder with
disturbances of emotions and conduct.
Service connection may be granted for a disability
resulting from disease or injury incurred in or
aggravated by active military, naval, or air service. 38
U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection
may be granted for any disease initially diagnosed
after service when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d). Service
connection for a disability requires evidence of: (1) a
current disability; (2) a disease or injury in service,
and; (3) a relationship or nexus between the current
disability and any injury or disease during service.
Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).
Establishing service connection for PTSD generally
requires: (1) medical evidence diagnosing PTSD;
56a
(2) credible supporting evidence that the claimed inservice stressor actually occurred; and (3) medical
evidence of a link between current symptomatology
and the claimed in-service stressor. 38 C.F.R.
§ 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128
(1997).
The Veteran contends that combat training, the death
of a fellow servicemember, and his spouse’s mental
health caused his PTSD. In January 2014, the Joint
Services Records Research Center informed the
Veteran it could not verify his alleged stressors.
The Veteran’s medical records contain conflicting
information as to whether he has been diagnosed with
PTSD. VA medical center (VAMC) records note a
diagnosis of PTSD. However, there is no indication
that the author subjected the Veteran’s stressors to
DSM-5 criteria for PTSD.
The Veteran submitted a medical report from
Dr. R. G., M.D., a VA staff psychiatrist, who
diagnosed the Veteran with PTSD. Dr. G stated that
the Veteran’s spouse suffered from depression. The
Veteran reported he felt forced by his superiors to
make a choice between divorcing his spouse or leaving
the military. The Veteran chose to leave the military
because he refused to abandon his spouse and
contribute to her death. His anger and powerlessness
for having to make this decision never left him. The
Veteran suffered from hypervigilance, distrust of
others, irritability, nightmares, avoidance, emotional
numbing, hyperarousal, anxiety, fear, sleep
disturbance, and violent anger. Dr. G. opined that the
Veteran met every criterion for PTSD. He also opined
57a
that the primary stressor was the perceived threat to
his spouse’s life.
The Veteran underwent two VA examinations. A
June 2015 VA examiner determined the Veteran did
not meet the diagnostic criteria for PTSD under DSM5 and that the Veteran suffered from adjustment
disorder with mixed disturbance of emotion and
conduct, persistent form. The examiner stated that
there are three diagnostic requirements for PTSD
which must be present: (1) exposure to a PTSD
trauma that meets the DSM-5 definition;
(2) problems due to persistent reexperiencing trauma
in the form of intrusive unwanted memories of the
trauma/event, or recurring nightmares of the event,
or flashbacks of the event; and (3) avoidance of stimuli
associated with the event. Unless all three are
present, no diagnosis of PTSD can be given.
The only intrusive memory of a trauma the Veteran
identified was that he was mad at the military for the
way he was treated and thought of his discharge as a
personal affront to his abilities in the Air Force. The
examiner stated no matter how “unfairly” or
“uncaring” or “rejecting” the Veteran perceived the
military’s actions to be, these actions in no way meet
the DSM-5 definition of a PTSD trauma event.
Additionally, in order to meet the DSM-5 definition of
intrusive memories, the memories have to be
unwanted. The Veteran reported he wanted to think
about these memories, thus, they are not intrusive as
defined by the DSM. Finally, with regards to the
avoidance requirement, the Veteran stated he made
no effort to avoid memories of “how the military
treated him.” He stated he did not want to forget these
58a
memories, dwelling on them daily to remind himself
of how he was “mistreated” by the military.
The examiner addressed Dr. G.’s letter in support of
the Veteran’s claim for PTSD. The examiner believed
that if Dr. G. reviewed the Veteran’s military and
medical history, particularly the Air Force
psychiatrist treatment document and training record
note, Dr. G.’s ultimate diagnosis would have been
impacted. The VA examiner noted that the Veteran’s
military record indicates he joined the Air Force, did
well in basic training, married his wife, and entered
individual training to become a Security Forces
airman. The Veteran began repeatedly failing his
required training classes and could not progress to job
assignment, likely leading to separation from the
military. His instructors met with him to determine
why he was having problems and the Veteran
requested a meeting with a psychiatrist. The Veteran
informed the psychiatrist that his wife did not want
him to be in the military and began making suicidal
threats. This conflict resulted in significant stress,
making it difficult to focus. The examiner noted that
the Chief of the Behavioral Evaluation Service
concluded that the Veteran was recommended for
separation with an opportunity to return to active
duty at a later date if his humanitarian situation were
lessened to the point where he could be effective. The
examiner noted that the Veteran believed it was in
the best interest of his family and Air Force that he
be separated from service. Paradoxically, the Veteran
reported to Dr. G. that the Air Force forced him to
choose between his wife and a hardship discharge.
59a
Addressing the Veteran’s spouse’s threats of suicide,
the examiner stated that the threat of suicide could
possibly meet DSM-5 requirements but there is no
indication that there was a suicide attempt in this
case. Suicide threats and gestures, especially when
there is a long history of these behaviors without
actual suicide attempts, as indicated by the Veteran,
do not meet the PTSD trauma definition. The Veteran
did not report having intrusive memories,
nightmares, and flashbacks of his spouse’s suicidal
gestures or threats. Additionally, the Veteran’s
perception that the military did not care whether the
spouse lived or died is not relevant to the definition of
PTSD. The examiner expanded upon this statement
by explaining the Veteran’s spouse did not live with
the Veteran nor did she live on base, she did not seek
medical treatment from the military, and was
reportedly uncooperative with treatment efforts. The
examiner noted that the military was powerless of her
actions. Even if the Veteran’s perception that the
military was uncaring towards his spouse was
accurate, the examiner stated that it is irrelevant to
the definition of a PTSD trauma event.
Dr. G stated that the Veteran was hypervigilant and
paranoid. The VA examiner explained, superficially
the Veteran’s symptoms may sound like PTSD,
however, hypervigilance in the context of PTSD refers
to protecting one’s self from a re-occurrence of the
trauma event. The Veteran did not exhibit
hypervigilance, rather his behavior indicated
underlying personality traits that do not rise to the
level of a personality disorder but do fuel his
paranoia. The examiner believed these behaviors,
attitudes, and thoughts are often not caused by
60a
conscious decisions but are instead below the level of
the patient’s awareness. The examiner ultimately
opined that the Veteran’s claimed condition was less
likely than not caused by service because the Veteran
does not meet the DSM-5 diagnostic requirements for
PTSD.
The Veteran underwent an April 2018 VA
examination. The examiner found that the Veteran’s
symptoms do not meet the diagnostic criteria for
PTSD under DSM-5. The Veteran was diagnosed with
intermittent explosive disorder and adjustment
disorder. The examiner opined that the Veteran’s
claimed stressor did not meet Criterion A of DSM-5
and was inadequate to support a diagnosis of PTSD.
The examiner opined that the Veteran’s claimed
condition was less likely than not incurred in or
caused by service. He opined that the Veteran’s
symptoms started a year after discharge and there is
no evidence supporting a diagnosis of PTSD.
The Veteran also submitted a medical opinion dated
in December 2019 from Dr. C. M., M.D., a VA staff
psychiatrist, who diagnosed the Veteran with PTSD
due to a number of issues. Dr. M. opined that the
primary issue was that the Veteran was forced out of
the military due to intense family problems. Dr. M.
further opined that some examiners do not consider
that to be PTSD, but it was clearly traumatic for the
Veteran and that, at a minimum, he developed a
severe anxiety disorder.
The Board finds that the preponderance of the
evidence supports a finding that the Veteran does not
suffer from PTSD. The Veteran underwent several
61a
examinations to determine the exact nature of the
Veteran’s disability and two VA examiners opined
that the Veteran’s claimed stressors do not meet the
criteria set forth in the DSM-5 for PTSD. The Board
finds the June 2015 VA examiner’s findings especially
persuasive. As explained by the examiner, the
Veteran does not suffer from problems due to
persistent re-experiencing of trauma in the form of
intrusive unwanted memories of the trauma,
flashbacks of the event, or avoidance of stimuli
associated with the event because the Veteran wants
to think about these past experiences and makes no
effort to avoid memories. The examiner found that the
Veteran dwells on his memories.
Although the Veteran submitted a report by Dr. G.
indicating the Veteran suffered from PTSD as a direct
result of his treatment by the military, the Board
finds that the June 2015 VA examiner more than
adequately explained why Dr. G’s diagnosis would
have been impacted had he been provided an
opportunity to review the Veteran’s Air Force
psychiatric report and training record note, both of
which provide specific details leading up to the
Veteran’s Hardship Discharge.
The Veteran submitted the statement of S.B., his
mother and a registered nurse. She opined that the
Veteran displayed symptoms of PTSD ever since
separating from the military. Although S.B. is a
medical professional, there is no indication that she
subjected the Veteran’s symptoms to the diagnostic
criteria as set forth in DSM-5. As such, the Board
finds her statement to have no probative value.
62a
Consideration has been given to the Veteran and his
spouse’s personal assertion that he has PTSD that is
proximately due to his service. To that point, lay
persons are competent to provide opinions on some
medical issues, see Kahana v. Shinseki, 24 Vet. App.
428, 435 (2011). However, as to the specific issues in
this case, the diagnosis and etiology of PTSD, this
falls outside the realm of common knowledge of a lay
person. See Jandreau v. Nicholson, 492 F.3d 1372,
1377 n.4 (Fed. Cir. 2007). Importantly, the record
does not demonstrate that the Veteran nor his spouse
have special training or acquired any medical
expertise in evaluating psychiatric disorders such as
PTSD. See King v. Shinseki, 700 F.3d 1339, 1345
(Fed.Cir.2012). Accordingly, this lay evidence does
not constitute competent medical evidence and lacks
probative value.
Turning to the claim for service connection for
depression with anxiety and chronic adjustment
disorder with disturbances of emotions and conduct
the Veteran has been diagnosed with depression with
anxiety, intermittent explosive disorder, and chronic
adjustment disorder. Element (1) of Shedden has
been met.
Turning to elements (2) and (3) of Shedden. Two VA
examiner’s opined that the Veteran’s psychiatric
disabilities were less likely than not related to active
service.
The June 2015 examiner diagnosed the Veteran with
depression, anxiety, and chronic adjustment disorder.
Based on his review of the evidence, he concluded this
condition was not present while the Veteran was on
63a
active service. The examiner believes that the onset
began after leaving the military. The VA examiner
also believed that the Veteran spouse’s opposition to
his staying in the military and her attempts to
convince him to leave ultimately led to his Hardship
Discharge. Specifically, the examiner opined the
Veteran’s explosive anger is a significant factor in his
life and the underlying cause is a key diagnostic issue.
The examiner believed that the Veteran’s
understandable anger towards his wife’s coercion to
leave the military is viewed by the Veteran as
unacceptable and he displaced this anger onto the
military.
The January 2018 examiner diagnosed the Veteran
with intermittent explosive disorder and chronic
adjustment disorder with mixed disturbance of
emotion and conduct, persistent form. The 2018
examiner opined that the Veteran’s symptoms started
one year after his discharge and she did not find any
evidence indicating his claimed disabilities were
incurred in or cause by military service. The 2019
opinion from Dr. M. indicating a severe anxiety
disorder does not contain an opinion supported by a
rationale clearly relating that to service. The Board
notes that the record does not contain any competent
opinions supported by a rationale relating a currently
diagnosed psychiatric disorder to the Veteran’s
military service.
Consideration has been given to the Veteran and his
spouse’s personal assertion that his psychiatric
symptoms developed during service. However, the
diagnosis and etiology of an acquired psychiatric
disorder falls outside the realm of common knowledge
64a
of a lay person. See Jandreau, 492 F.3d at 1377 n.4.
As noted above, the record does not demonstrate that
the Veteran nor his spouse have special training or
acquired any medical expertise in evaluating
psychiatric disorders. See King, 700 F.3d at 1345.
Accordingly, this lay evidence does not constitute
competent medical evidence and lacks probative
value.
For these aforementioned reasons, the Board finds
that the preponderance of the evidence is against the
Veteran’s claim of service connection for PTSD and
depression with anxiety and chronic adjustment
disorder with disturbances of emotions and conduct.
In reaching these conclusions, the Board notes that
under the provisions of 38 U.S.C. § 5107(b); 38 C.F.R.
§ 3.102, a reasonable doubt is to be resolved in the
claimant’s favor in cases where there is an
approximate balance of positive and negative
evidence in regard to a material issue. However, as
the preponderance of the evidence is against the
Veteran’s claim, that doctrine is not applicable. See
Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claims
are denied.
65a
/s/ L. Barstow
L. BARSTOW
Acting Veterans Law Judge
Board of Veterans’ Appeals
Attorney for
M. Mahmoudi,
the Board
Associate Counsel
The Board’s decision in this case is binding only with
respect to the instant matter decided. This decision is
not precedential, and does not establish VA policies or
interpretations of general applicability. 38 C.F.R.
§ 20.1303.
66a
APPENDIX F
BOARD OF VETERANS’ APPEALS
DEPARTMENT OF VETERANS AFFAIRS
IN THE APPEAL OF
[REDACTED]
NORMAN F.
Docket No. 17-09 054
THORNTON
Represented by
Shannon K. Holstein, Attorney
DATE:
January 23, 2019
ORDER
Entitlement to a rating in excess of 40 percent for a
disability manifested by fatigue, joint pain,
gastrointestinal bleeding, headaches, shortness of
breath, nausea, body shakes, and diarrhea as due to
an undiagnosed illness is denied.
Entitlement to a rating in excess of 50 percent for
posttraumatic stress disorder (PTSD) is denied.
Entitlement to a total disability rating based on
individual unemployability (TDIU) is granted.
FINDINGS OF FACT
1. The Veteran’s disability manifested by fatigue,
joint pain, gastrointestinal bleeding, headaches,
shortness of breath, nausea, body shakes, and
diarrhea is not shown to be manifested by symptoms
that restrict his routine daily activities to less than 50
67a
percent of his pre-illness level and have not resulted
in periods of incapacitation.
2. During the appeal period, the Veteran’s PTSD more
nearly approximated occupational and social
impairment with reduced reliability and productivity
due to such symptoms as: depressed mood, anxiety,
chronic sleep impairment, mild memory loss,
impairment of short and long-term memory, and
difficulty in adapting to stressful circumstances.
3. The Veteran’s service-connected PTSD and chronic
fatigue syndrome have precluded him from securing
or maintaining substantially gainful employment.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 40 percent for
disability manifested by fatigue, joint pain,
gastrointestinal bleeding, headaches, shortness of
breath, nausea, body shakes, and diarrhea have not
been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1,
4.2, 4.3, 4.6, 4.7, 4.10, 4.88b; Diagnostic Code (DC)
6354.
2. The criteria for a rating in excess of 50 percent have
not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§
4.1-4.16, 4.130, DC 9411.
3. The criteria for a TDIU have been met. 38 U.S.C.
§§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16,
4.19.
68a
REASONS AND BASES FOR
FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the U.S. Army
from October 1988 to December 1991.
This matter comes before the Board of Veterans’
Appeals (Board) on appeal from July 2015 and
September 2015 rating decisions of a Department of
Veterans Affairs (VA) Regional Office (RO).
The Veteran did not submit a notice of disagreement
to these decisions; however, additional VA treatment
records and a VA examination report were received
within the year of their issuance. Since the RO never
determined whether the additional evidence
constituted new and material evidence with respect to
the July and September 2015 rating decisions, they
never became final and are the ones currently on
appeal to the Board. See Beraud v. Shinseki, 766 F.3d
1402, 1407 (Fed. Cir. 2014); Buie v. Shinseki, 24 Vet.
App. 242, 251-52 (2010)(even in increased rating
claims, when VA receives new and material evidence
within one year of a rating decision, 38 C.F.R. § 3.156
(b) requires any subsequent decision to relate back to
the original claim).
The Board notes that the matter of whether a routine
future examination is warranted for the Veteran’s
undiagnosed illness was included in a September
2017 supplemental statement of the case. This is not
an appealable issue. Thirty-eight C.F.R. § 3.327(b)
provides
general
guidelines
about
when
reexamination is not necessary. Thirty-eight C.F.R.
§ 3.327(a) states that paragraph (b) does not limit
69a
VA’s
authority
to
request
reexamination
(“Paragraphs (b) and (c) of this section provide
general guidelines for requesting reexaminations, but
shall not be construed as limiting VA’s authority to
request reexaminations, or periods of hospital
observation, at any time in order to ensure that a
disability is accurately rated.”). Also, as the Court
noted in Collier v. Derwinski, it has never held that
38 CFR § 3.327(b) confers any sort of substantive
right on an appellant to avoid being scheduled for a
future VA examination, if necessary. See Collier v.
Derwinski, 2 Vet. App. 247, 251 (1992).
In January 2018, the appellant submitted additional
evidence after the most recent supplemental
statement of the case in September 2017. Waiver of
RO consideration of the additional evidence is
presumed given the date of the Veteran’s substantive
appeal. See 38 U.S.C. § 7105(e).
Increased Rating
Ratings are based on a schedule of reductions in
earning capacity from specific injuries or combination
of injuries. The ratings shall be based, as far as
practicable, upon the average impairments of earning
capacity resulting from such injuries in civil
occupations. 38 U.S.C. § 1155. Generally, the degrees
of disability specified are considered adequate to
compensate for considerable loss of working time from
exacerbations or illnesses proportionate to the
severity of the several grades of disability. 38 C.F.R.
§ 4.1.
70a
Where there is a question as to which of two
evaluations shall be applied, the higher evaluation
will be assigned if the disability picture more nearly
approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38
C.F.R. § 4.7. When, after careful consideration of all
procurable and assembled data, a reasonable doubt
arises regarding the degree of disability such doubt
will be resolved in favor of the claimant. 38 U.S.C. §
5107(b); 38 C.F.R. §§ 3.102, 4.3.
1. Entitlement to a rating in excess of 40 percent
for a disability manifested by fatigue, joint pain,
gastrointestinal bleeding, headaches, shortness
of breath, nausea, body shakes, and diarrhea.
The Veteran seeks a rating in excess of 40 percent for
his disability manifested by fatigue, joint pain,
gastrointestinal bleeding, headaches, shortness of
breath, nausea, body shakes, and diarrhea. The
appeal period before the Board begins on February 23,
2014, one year prior to the date VA received the claim
for an increased rating. Gaston v. Shinseki, 605 F.3d
979, 982 (Fed. Cir. 2010). As noted in the
Introduction, new and material evidence was added
within one year of the July 2015 rating decision. 38
C.F.R. § 3.156(b).
The rating code does not include an entry for the
Veteran’s undiagnosed illness manifested by fatigue,
joint pain, gastrointestinal bleeding, headaches,
shortness of breath, nausea, body shakes, and
diarrhea. Therefore, his disability has been rated by
analogy under the rating code for chronic fatigue
syndrome, as this disability has symptoms that are
71a
nearly identical to the Veteran’s undiagnosed illness.
38 C.F.R. § 4.20. DC 6354 provides ratings for chronic
fatigue syndrome consisting of debilitating fatigue,
cognitive impairments (such as inability to
concentrate,
forgetfulness,
confusion),
or
a
combination of other signs and symptoms.
A 40 percent disability rating is assigned for signs and
symptoms of chronic fatigue syndrome that are nearly
constant and restrict routine daily activities to 50 to
75 percent of the pre-illness level, or the signs and
symptoms wax and wane, resulting in periods of
incapacitation of at least four but less than six weeks
total duration per year. 38 C.F.R. § 4.88b, DC 6354.
A 60 percent disability rating is assigned for signs and
symptoms of chronic fatigue syndrome that are nearly
constant and restrict routine daily activities to less
than 50 percent of the pre-illness level, or signs and
symptoms that wax and wane, resulting in periods of
incapacitation of at least six weeks total duration per
year. Id.
A maximum 100 percent disability rating is assigned
for signs and symptoms of chronic fatigue syndrome
that are nearly constant and so severe as to restrict
routine daily activities almost completely and which
may occasionally preclude self-care. Id.
For the purpose of rating chronic fatigue syndrome,
the condition will be considered incapacitating only
while it requires bed rest and treatment by a
physician. Id.
72a
Turning to the evidence of record, the Veteran
underwent VA examinations for his undiagnosed
illness in July 2015, December 2015, and April 2017.
During the July 2015 VA examination, he reported
that he “wears out real easy” and was not working.
The examiner noted that migratory joint pains and
sleep disturbance were attributable to his
undiagnosed illness. The Veteran also reported that
he gets so exhausted that all he wants to do is sleep.
He reported that he walks for exercise for one half to
one mile every day or every other day which does not
cause excessive fatigue. The examiner also noted that
he reported some shortness of breath with exercise,
primarily when walks up a hill but noted that he is an
old smoker and does have some obstruction on his
pulmonary function tests in 2011. He also reported
being seen for migraine headaches. The examiner
generally attributed these signs and symptoms to his
undiagnosed illness. The examiner found that there
was no cognitive impairment attributable to the
Veteran’s undiagnosed illness, his symptoms did not
result in periods of incapacitation, and that his
symptoms wax and wane. The examiner opined that
the Veteran’s symptoms restrict his routine daily
activities to 50 to 75 percent of the pre-illness level.
The Veteran reported that he is rejuvenated with a 15
to 30-minute nap during the day and that he can
return to his project or job after a nap. The Veteran
also reported night sweats, occasional shakes,
shortness of breath, and occasional nausea and
vomiting. The Veteran also reported that he will
occasionally have spurts of diarrhea, about once a
month, he will have a day where he has two or three
loose stools. The examiner opined that the Veteran’s
73a
chronic fatigue syndrome/ undiagnosed illness
impacted his ability to work. However, he has been
able to work part-time jobs, and was currently
working.
During the December 2015 VA examination, the
examiner noted debilitating fatigue, headaches, joint
pain, and sleep disturbance as signs and symptoms
attributable to his chronic fatigue syndrome. The
Veteran reported that after awakening in the
morning, he will sometimes return to bed after 30
minutes because of fatigue and stays in bed until
early afternoon. He otherwise would take naps two to
three times per week for 30 minutes. He did not
require continuous medication for control of his
symptoms. The Veteran also reported generalized
joint pain and episodic chills but denied
gastrointestinal, bowel, and bladder symptoms. The
examiner found that the Veteran did not have any
cognitive impairment due to his chronic fatigue
syndrome, his symptoms do not result in periods of
incapacitation, and that the Veteran’s symptoms wax
and wane. The Veteran reported that he is able to be
more active on some days as opposed to others
without known reasons or patterns. He informed the
examiner that he generally tried to stay busy, work
on hobbies (such as woodworking, medieval reenactment projects, jewelry work). He reported that
he was able to do his own activities of daily living,
keep his trailer clean. His trailer has a small area
(about 30-60”) to mow and/or shovel, and he reported
that he was sometimes able to mow it in one session.
The examiner opined that the Veteran’s symptoms
restrict his routine daily activities to 50 to 75 percent
of the pre-illness level. The examiner opined that the
74a
Veteran’s chronic fatigue syndrome impacted his
ability to work.
VA treatment records show the Veteran was engaged
in horseback riding during the appeal. He was shown
to have sustained some injuries in May 2016 after
falling from his horse.
An opinion regarding the effect of the Veteran’s
symptoms on his routine daily activities was obtained
in March 2017. The examiner reviewed the claims file
and the prior examination reports; an in-person
examination was not conducted. The VA examiner
opined that the Veteran’s headaches, shortness of
breath, and fatigue remain as due to an undiagnosed
illness and not to the Veteran’s nonservice-connected
obstructive sleep apnea. A cogent rationale was
provided for the opinion. The examiner also opined
that the Veteran’s nightmares and night sweats are
due to his service-connected PTSD rather than his
chronic fatigue syndrome. The VA examiner opined
that the Veteran’s symptoms of his chronic fatigue
syndrome restrict his routine daily activities by less
than 25 percent of the pre-illness level. The examiner
explained that the Veteran’s mental health provider,
and the December 2015 examiner, found his
nightmares and night sweats are related to his PTSD,
not his undiagnosed illness. The examiner indicated
that the Veteran’s records have been negative for
gastrointestinal bleed and/or body shakes for many
years and there is limited documentation in the
record regarding diarrhea and nausea. This Board
notes this confirmed by a review of the record. The
examiner also noted that the Veteran’s ability to ride
a horse would take a fair amount of stamina and
75a
coordination which would not be expected in someone
with significant chronic fatigue.
In light of the foregoing, the Board finds that a rating
in excess of 40 percent for the Veteran’s disability is
not warranted. The evidence does not show that the
Veteran’s symptoms nearly constant and restrict
routine his daily activities to less than 50 percent of
his pre-illness level. All of the VA examiners who
interviewed him, and reviewed the evidence in the
claims file, opined that his symptoms restricted his
routine daily activities to no less than 50 percent of
his pre-illness level. The Board also finds it notable,
as did the March 2017 examiner, that the Veteran is
able to ride horses. A July 2015 VA PTSD
examination report shows he participates in medieval
re-enactments and attends two to three events per
year, as well as meetings and practice sessions
between events. His chronic fatigue syndrome has
also not been found to result in periods of
incapacitation (i.e., requiring bed rest and treatment
by a physician). At the July 2015 examination, the
Veteran reported that he is rejuvenated by a short
nap. The examiner also specifically determined that
his symptoms did not result in periods of
incapacitation. The December 2015 examiner
likewise opined that his symptoms do not result in
periods of incapacitation. The Board also notes that
the March 2017 VA examiner opined that the
Veteran’s nightmares and night sweats are due to his
service-connected PTSD rather than his undiagnosed
illness. As such, those symptoms are more
appropriately considered in the evaluation of his
PTSD.
76a
The Board acknowledges the contention raised by the
Veteran’s representative in a January 2018
correspondence that the Veteran, in addition to being
rated under DC 6354, should also receive separate
evaluations for his symptoms attributable to his
chronic fatigue syndrome/undiagnosed illness such as
headaches, joint paint, gastrointestinal issues, and
carpal tunnel syndrome which affect separate body
systems. However, the Board finds that separate
evaluations are not warranted. In light of the fact that
DC 6354 provides ratings based upon the extent to
which all manifestations of chronic fatigue syndrome
(specifically including fatigue, cognitive impairments,
and “a combination of other signs and symptoms”)
restrict routine daily activities, result in periods of
incapacitation, or require treatment with medication,
separate ratings for such manifestations would be
inappropriate.
The Board also acknowledges the representative’s
reference to the VA Adjudication Procedures Manual
(M21-1) which provides guidance for rating qualifying
chronic
disabilities.
See
January
2018
Correspondence. However, the M21-1 provisions are
not substantive rules and are not binding on the
Board. See Overton v. Wilkie, No. 17-0125, 2018 U.S.
App. Vet. Claims LEXIS 1251 (Sept. 19, 2018).
For these reasons, the preponderance of the evidence
is against the Veteran’s claim, there is no reasonable
doubt to be resolved, and the claim must be denied.
38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Hart
v. Mansfield, 21 Vet. App. 505 (2007). Neither the
Veteran nor his representative has raised any other
issues, nor have any other issues been reasonably
77a
raised by the record. See Doucette v. Shulkin, 28 Vet.
App. 366 (2017).
2. Entitlement to a rating in excess of 50 percent
for PTSD.
The Veteran seeks a rating in excess of 50 percent for
his PTSD. As with the claim for an increased rating
for undiagnosed illness, the appeal period before the
Board begins on February 23, 2014, one year prior to
the date VA received the claim for an increased
rating. Gaston, 605 F.3d at 982.
The Veteran’s PTSD has been evaluated under the
General Rating Formula for Mental Disorders. 38
C.F.R. § 4.130, DC 9411.
Under DC 9411, a 50 percent rating is warranted for
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; disturbances of motivation and
mood; difficulty in establishing and maintaining
effective work and social relationships. Id.
A 70 percent rating is warranted when there is
occupational 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
78a
interfere
with
routine
activities;
speech
intermittently illogical, obscure, or irrelevant; nearcontinuous 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 work-like setting);
inability to establish and maintain effective
relationships. Id.
A 100 percent rating is warranted when there is total
occupational and social impairment, due to such
symptoms as: gross impairment in thought processes
or
communication;
persistent
delusions
or
hallucinations; grossly inappropriate behavior;
persistent danger of hurting self or others;
intermittent inability to perform activities of daily
living (including maintenance of minimal personal
hygiene); disorientation to time or place; memory loss
for names of close relatives, own occupation, or own
name. Id.
The rating of psychiatric disorders is ultimately based
upon their resultant level of occupational and social
impairment. 38 C.F.R. § 4.130; Vazquez-Claudio v.
Shinseki, 713 F.3d 112, 117-18 (2013). The
evaluation, however, is symptom-driven, meaning
that the symptomatology should be the fact-finder’s
primary focus in determining the level of occupational
and social impairment. Vazquez-Claudio, 713 F.3d at
116-17. This includes consideration of the frequency,
severity, and duration of those symptoms. 38 C.F.R. §
4.126(a); Vazquez-Claudio, 713 F.3d at 117.
79a
Significantly, however, the symptoms enumerated in
the rating criteria are merely examples of those that
would produce such level of impairment; they are not
exhaustive, and VA is not required to find the
presence of all, most, or even some of the enumerated
symptoms to assign a particular evaluation. VazquezClaudio, 713 F.3d at 115; Mauerhan v. Principi, 16
Vet. App. 436, 442-43 (2002).
Turning to the evidence of record, the Veteran
underwent a psychiatric VA examination in July
2015. With regards to the Veterans’ social
functioning, he reported that he has a good
relationship with his children and speaks to them
almost daily. He also reported that he has two
siblings, and has a great relationship with his mother.
While he reported that he is not close to his father, it
appears the reasoning is due to issues unrelated to
the Veteran’s PTSD. The Veteran reported having
friends, including four to five close friends that he
sees on a regular basis. The Veteran participates in
medieval re-enactments through a world-wide club
and attends two to three events per year, as well as
meetings and practice sessions between events. As for
occupational impairment, the Veteran reported that
he has done mostly “side jobs” over the past four to
five years. The Veteran reported that while working
at a motel doing handyman and maintenance jobs, he
reported that he was accused of being unreliable.
The examiner reported that the following symptoms
were present: depressed mood, anxiety, chronic sleep
impairment, mild memory loss, and difficulty in
adapting to stressful circumstances. The examiner
noted that the Veteran was alert and oriented to
80a
person, place, and time. He interacted in a logical,
coherent manner. His speech was normal, and there
were no signs of a thought disorder, hallucinations, or
delusions. The Veteran appeared plainly groomed and
casually dressed. The Veteran reported that his
concentration is pretty good “most of the time.” The
Veteran also reported that he has had memory lapses
where he does things and does not remember what he
was doing. He reported that these lapses vary in
frequency. The Veteran reported nightmares at
various frequencies. The examiner opined that the
Veteran’s PTSD manifested in occupational and social
impairment with reduced reliability.
The Board notes that the July 2015 VA examiner
indicated that the Veteran’s periods of confusion and
memory lapses may not be due to his PTSD. However,
the only explanation provided by the examiner was
that the episodes do not appear to be trauma based
and that those with PTSD do not dissociate unless
they are in the middle of a flashback. Additionally,
the examiner reported that the Veteran did not have
any other mental disorder diagnosis, and he did not
provide any other diagnosis or disorder that could
cause the Veteran’s memory lapses. Essentially, the
VA examiner indicated that the Veteran’s memory
lapses may not be due to his PTSD, but he did not
provide any other potential etiology for such episodes.
Moreover, a 2012 neurology consult did not find any
diagnosis that could be etiologically related to the
Veteran’s memory lapses. Thus, because the
Veteran’s treating VA psychiatrist has attributed
these memory lapses to his PTSD, and memory issues
are known to be associated with PTSD, resolving
81a
reasonable doubt in favor of the Veteran, the Board
finds that the Veteran’s episodes of confusion and
memory loss are attributable to his PTSD and will be
considered in this evaluation.
The Veteran underwent another VA psychological
examination in December 2015. Regarding the
Veteran’s social functioning, he reported that he has
a girlfriend of six months and that the relationship is
going well. He again reported that he has a good
relationship with his children and that his daughter
is living with him. The Veteran also reported that he
sees his mother several days per week and has three
to four close friends, one of whom he speaks to a few
times per week. He also reported belonging to a
society. As for occupational impairment, the Veteran
reported that he is not currently working, and that
while he was supposed to work in the summer of 2015,
he had a memory lapse and forgot he was supposed to
work.
The examiner noted the following symptoms:
depressed mood, anxiety, chronic sleep impairment,
mild memory loss, and difficulty in adapting to
stressful circumstances. The examiner reported that
the Veteran was alert and oriented to person, place,
and time. He was casually dressed and appropriately
groomed, with speech and eye contact within normal
limits. His affect was constricted. The examiner did
not find any signs of a thought disorder,
hallucinations, or delusions. The examiner opined
that the Veteran’s PTSD manifested with
occupational and social impairment with reduced
reliability.
82a
The examiner also noted that the Veteran’s PTSD
resulted in moderate impairment of short-term
memory, concentration, mood, reliability, and
productivity. The examiner found no significant
impairment of his judgment, abstract thinking, selfcare, or ability to interact with supervisors or
coworkers.
The Veteran has received ongoing VA treatment for
his PTSD. VA treatment records during the appeal
period are generally consistent with the symptoms
endorsed by the Veteran during the July and
December 2015 VA examinations.
The records during that time frame show that the
Veteran appeared well groomed. The Veteran had fair
memory, insight, and judgment. He was oriented to
time, place, and person. The Veteran consistently
denied any suicidal or homicidal ideations. He also
denied any delusions and hallucinations. The
Veteran’s speech was relevant and coherent. An
August 2015 VA treatment record shows that the
Veteran reported he had been busy the past month as
he had friends come and visit him. The same record
also notes that the Veteran reported occasional
episodes of amnesia that last about an hour or so. A
May 2016 VA treatment record shows that the
Veteran reported that he was moving in with his
girlfriend and maintained good contact with all of his
family members.
The Board finds that the Veteran’s PTSD has been
properly evaluated at the 50 percent level throughout
the appeal period. The Veteran’s PTSD has been
manifested by symptoms such as mood disturbances
83a
including depression and anxiety, sleep impairment,
and impairment of short and long-term memory. The
Board notes that the July and December 2015 VA
examiners reported mild memory loss rather than
long-term memory loss as a symptom. However, after
review of the record, including the Veteran’s lay
statements regarding his memory lapses, the Board
finds that the Veteran’s memory issues more closely
approximate impairment of short and long-term
memory rather than mild memory loss.
The Veteran’s symptoms have not more nearly
approximated the criteria for a rating in excess of 50
percent at any time, and the evidence is not
approximately evenly balanced. Throughout the
appeals period, the Veteran was alert, well oriented,
and well groomed. Speech was normal and he showed
no psychotic symptoms. Significantly, the Veteran did
not exhibit illogical, obscure, or irrelevant speech;
near-continuous panic or depression affecting the
ability to function independently, appropriately and
effectively; suicidal ideation; impaired impulse
control; spatial disorientation; or neglect of personal
appearance and hygiene.
In terms of occupational impairment, the effects of
PTSD are relatively mild to moderate. Although the
Veteran reports that his memory lapses have affected
his occupational functioning, the evidence does not
demonstrate significant occupational impairment due
solely to his PTSD symptoms. The Veteran has
reported that he has only worked “side jobs” for the
past four to five years, but he attributes that
primarily to “sudden intense fatigue” due to his
chronic fatigue syndrome. See July 2015 VA
84a
Examination. Additionally, the December 2015 VA
examiner found moderate impairment in reliability
and
productivity.
Thus,
while
the
Board
acknowledges that the Veteran’s memory lapses due
to his PTSD affects his occupational functioning, his
PTSD symptoms alone do not cause significant
occupational impairment such as that contemplated
by the 70 or 100 percent rating criteria.
Moreover, throughout the appeal period, the Veteran
has had good relationships with his children and
mother. He also has several close friends and
participates in social activities. The Veteran also has
a good relationship with his girlfriend and has moved
in with her. Additionally, the Veteran does not report
any significant difficulties in establishing and
maintaining effective relationships. Overall, any
effect on his social functioning appear to be minimal.
The Board acknowledges that the July 2015 and
December 2015 VA examiners reported that the
Veteran has difficulty in adapting to stressful
circumstances which is a symptom enumerated in the
70 percent criteria. However, the presence of a single
symptom is not dispositive of any particular disability
level. VA must engage in a holistic analysis in which
it assesses the severity, frequency, and duration of the
signs and symptoms, quantifies the level of
occupational and social impairment caused by those
symptoms, and assigns an evaluation that more
nearly approximates that level of occupational and
social impairment.). See Bankhead v. Shulkin, 29 Vet.
App. 10, 20 (2017). Despite noting that the Veteran
has demonstrated difficulty in adapting to stressful
circumstances, the VA examiners both opined that his
85a
overall level of occupational and social impairment is
best characterized as reduced reliability and
productivity. Their opinions are considered competent
and highly probative as they are skilled to render
such assessments and as they reviewed the claims file
and conducted interviews and evaluations of the
Veteran. The cumulative evidence of record shows
that the Veteran’s overall level of occupational and
social functioning is consistent with the moderate
degree of impairment that is contemplated by a 50
percent rating.
The Board also acknowledges the representative’s
contention that the VA examinations of record are not
a sufficient basis to deny an increased evaluation. See
January 2018 Submission of Argument and Evidence.
However, the Board finds that the VA examinations
of record are adequate for ratings purposes as the
opinion and findings were based upon consideration
of the Veteran’s prior medical history and
examinations, it described the disability in sufficient
detail so that the Board’s evaluation is a fully
informed one, and it contained reasoned
explanations. The examiner specifically noted the
Veteran’s reported history and current symptoms in
detail. There is no indication that the examinations
were not sufficient for ratings purposes, particularly
when considered along with the other evidence of
record.
In sum, the severity, frequency, and duration of the
Veteran’s symptoms do not result in of the level of
occupational and social impairment contemplated by
a rating in excess of 50 percent. There is no doubt to
be resolved; a higher rating is not warranted. 38
86a
U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Hart v.
Mansfield, 21 Vet. App. 505 (2007). There are no other
issues expressly or reasonably raised by the record.
3. Entitlement to a total disability rating based
on individual unemployability.
The Veteran seeks entitlement to a TDIU.
Specifically, he contends that his PTSD and chronic
fatigue syndrome preclude him from obtaining or
maintaining substantially gainful employment, or in
the alternative, that his chronic fatigue syndrome
alone precludes him from such. See September 2015
VA 21-8940; January 2018 Submission of Argument
and Evidence.
Total disability ratings for compensation may be
assigned when a veteran is unable to secure and
follow a substantially gainful occupation. See 38
U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In
reaching such a determination, the central inquiry is
“whether the Veteran’s service connected disabilities
alone are of sufficient severity to produce
unemployability.” Hatlestad v. Brown, 5 Vet. App.
524, 529 (1993); see Van Hoose v. Brown, 4 Vet. App.
361, 363 (1993) (the ultimate question is whether the
Veteran is capable of performing the physical and
mental acts required by employment, not whether he
can find employment). Consideration may be given to
the Veteran’s level of education, special training, and
previous work experience when arriving at this
conclusion; factors such as age or impairment caused
by nonservice-connected disabilities are not to be
considered. 38 C.F.R. §§ 3.341, 4.16, 4.19.
87a
Section 4.16(a) provides a rating hurdle for schedular
consideration of a TDIU. If there is only one such
disability, this disability shall be ratable at 60 percent
or more; if there are two or more disabilities, there
shall be at least one disability ratable at 40 percent or
more, and sufficient additional disability to bring the
combined rating to 70 percent or more. Id.
The Board notes that the Veteran meets the
schedular requirements for a TDIU. He is serviceconnected for: (1) PTSD rated 50 percent from
February 23, 2015; and (2) a disability manifested by
fatigue, joint pain, gastrointestinal bleeding,
headaches, shortness of breath, nausea, body shakes,
and diarrhea rated 40 percent from January 16, 2001.
His combined evaluation is 70 percent from February
23, 2015. As such, he meets the schedular criteria for
a TDIU from February 23, 2015, the date of the
increased rating claim.
The Veteran evidence shows that the Veteran
completed training for cabinet making and received a
bachelor’s degree in business and marketing. See
September 2015 and January 2018 Veteran’s
Application for Increased Compensation Based on
Unemployability (VA Form 21-8940). With regards to
the Veteran’s occupational history, a review of the
record shows that he has worked in retail and as a
contract carpenter for several years. See September
2015 VA Form 21-8940; July 2015 VA PTSD
Examination. The Veteran also has reported that he
has worked “side jobs” for the past four to five years,
such as doing handyman or maintenance work, light
plumbing, roof repair, and mowing grass.
88a
A July 2015 VA PTSD examination report shows that
the Veteran reported that his main barrier to work is
the sudden intense fatigue. He also reported that part
of the reason he is unable to work is due to his
memory, i.e. he forgets to go places. During a
December 2015 VA examination, the Veteran
reported that he was supposed to work in the summer
of 2015 but had a memory lapse and forgot he was
supposed to work.
During a July 2015 VA examination for the Veteran’s
undiagnosed illness, he reported that he gets so
exhausted and all he wants to do is sleep. He reported
that he can be up for a complete day and will then
sleep 12-24 hours. At a December 2015 VA
examination, the Veteran reported that he will
sometimes go back to bed after waking up and stay in
bed until early afternoon.
VA treatment records show that the Veteran has
reported that he is unable to hold a job consistently
mainly due to his chronic fatigue. In a February 2016
VA treatment record, the Veteran reports that when
he has episodes of PTSD issues or fatigue he is usually
relieved from his job.
Issues regarding the Veteran’s memory lapses are
described in detail above.
The December 2015 VA examiner found that the
Veteran’s undiagnosed illness impacted his ability to
work. The examiner noted that the Veteran should
avoid overly strenuous and/or stressful activities. She
indicated that light (non-labor intensive) work
89a
allowing regular breaks would not be a limiting
factor.
The Veteran submitted a private vocational opinion
in January 2018 by A.J. A.J. opined that it was more
likely than not that the Veteran is unable to secure
and follow substantial gainful employment due to his
service-connected disabilities. A.J. reviewed the
Veteran’s VA claims file, medical history, and
education and work history. A cogent rationale was
provided for her opinion.
Based on a review of all of the evidence of record, and
resolving reasonable doubt in the Veteran’s favor, the
Board finds that the combined impact from his
service-connected PTSD and disability manifested by
fatigue, joint pain, gastrointestinal bleeding,
headaches, shortness of breath, nausea, body shakes,
and diarrhea together reasonably preclude him from
securing or maintaining substantially gainful
employment.
In coming to this conclusion, the Board acknowledges
the Veteran’s reports that he has worked “side jobs”
over the last four to five years. However, the record
shows that such work has been sporadic at best, and
the ability to work sporadically is not substantially
gainful employment. Moore v. Derwinski, 1 Vet. App.
356, 358 (1991).
Resolving all reasonable doubt in the Veteran’s favor,
a TDIU is warranted. Accordingly, the claim for TDIU
is granted.
/s/ D. Johnson
90a
D. Johnson
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR
THE BOARD
E. Mortimer,
Associate Counsel
91a
APPENDIX G
Not Published
UNITED STATES COURT OF APPEALS
FOR VETERANS CLAIMS
NO: 20-3886
JOSHUA E. BUFKIN, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
JUDGMENT
The Court has issued a decision in this case. The
time allowed for motions under Rule 35 of the Court’s
Rules of Practice and Procedure has expired.
Under Rule 36, judgment is entered and effective
this date.
Dated: August 18, 2021
FOR THE COURT:
GREGORY O. BLOCK
Clerk of the Court
By: /s/ Anthony R. Wilson
Deputy Clerk
Copies to:
Kenneth M. Carpenter, Esq.
VA General Counsel (027)
92a
APPENDIX H
Not Published
UNITED STATES COURT OF APPEALS
FOR VETERANS CLAIMS
NO: 20-882
NORMAN F. THORNTON, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
JUDGMENT
The Court has issued a decision in this case. The
time allowed for motions under Rule 35 of the Court’s
Rules of Practice and Procedure has expired.
Under Rule 36, judgment is entered and effective
this date.
Dated: July 6, 2021
FOR THE COURT:
GREGORY O. BLOCK
Clerk of the Court
By: /s/ Anne P. Stygles
Deputy Clerk
Copies to:
Kenneth M. Carpenter, Esq.
VA General Counsel (027)
93a
APPENDIX I
United States Code
Title 38. Veterans’ Benefits
38 U.S.C. § 5107
§ 5107. Claimant responsibility;
benefit of the doubt
(a) Claimant responsibility.— Except as otherwise
provided by law, a claimant has the responsibility to
present and support a claim for benefits under laws
administered by the Secretary.
(b) Benefit of the doubt.— The Secretary shall
consider all information and lay and medical evidence
of record in a case before the Secretary with respect
to benefits under laws administered by the Secretary.
When there is an approximate balance of positive and
negative evidence regarding any issue material to the
determination of a matter, the Secretary shall give
the benefit of the doubt to the claimant.
94a
APPENDIX J
United States Code
Title 38. Veterans’ Benefits
38 U.S.C. § 7261
§ 7261. Scope of review
(a) In any action brought under this chapter, the
Court of Appeals for Veterans Claims, to the extent
necessary to its decision and when presented, shall—
(1) decide all relevant questions of law, interpret
constitutional, statutory, and regulatory provisions,
and determine the meaning or applicability of the
terms of an action of the Secretary;
(2) compel action of the Secretary unlawfully
withheld or unreasonably delayed;
(3) hold unlawful and set aside decisions, findings
(other than those described in clause (4) of this
subsection), conclusions, rules, and regulations
issued or adopted by the Secretary, the Board of
Veterans’ Appeals, or the Chairman of the Board
found to be—
(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(B) contrary to constitutional right, power,
privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or
limitations, or in violation of a statutory right; or
95a
(D) without observance of procedure required by
law; and
(4) in the case of a finding of material fact adverse
to the claimant made in reaching a decision in a case
before the Department with respect to benefits
under laws administered by the Secretary, hold
unlawful and set aside or reverse such finding if the
finding is clearly erroneous.
(b) In making the determinations under subsection
(a), the Court shall review the record of proceedings
before the Secretary and the Board of Veterans’
Appeals pursuant to section 7252(b) of this title and
shall—
(1) take due account of the Secretary’s application of
section 5107(b) of this title; and
(2) take due account of the rule of prejudicial error.
(c) In no event shall findings of fact made by the
Secretary or the Board of Veterans’ Appeals be subject
to trial de novo by the Court.
(d) When a final decision of the Board of Veterans’
Appeals is adverse to a party and the sole stated basis
for such decision is the failure of the party to comply
with any applicable regulation prescribed by the
Secretary, the Court shall review only questions
raised as to compliance with and the validity of the
regulation.
96a
APPENDIX K
Code of Federal Regulations
Title 38. Pensions, Bonuses, and Veterans’ Relief
38 C.F.R. § 3.102
§ 3.102 Reasonable doubt.
It is the defined and consistently applied policy of the
Department of Veterans Affairs to administer the law
under a broad interpretation, consistent, however,
with the facts shown in every case. When, after
careful consideration of all procurable and assembled
data, a reasonable doubt arises regarding service
origin, the degree of disability, or any other point,
such doubt will be resolved in favor of the claimant.
By reasonable doubt is meant one which exists
because of an approximate balance of positive and
negative evidence which does not satisfactorily prove
or disprove the claim. It is a substantial doubt and one
within the range of probability as distinguished from
pure speculation or remote possibility. It is not a
means of reconciling actual conflict or a contradiction
in the evidence. Mere suspicion or doubt as to the
truth of any statements submitted, as distinguished
from impeachment or contradiction by evidence or
known facts, is not justifiable basis for denying the
application of the reasonable doubt doctrine if the
entire, complete record otherwise warrants invoking
this doctrine. The reasonable doubt doctrine is also
applicable even in the absence of official records,
particularly if the basic incident allegedly arose under
combat, or similarly strenuous conditions, and is
97a
consistent with the probable results of such known
hardships.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.