General Webb v. Robert L. Wilkie ( 2020 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-0966
GENERAL WEBB, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued September 10, 2019 Decided March 26, 2020)
Christian A. McTarnaghan, with whom Dvora Walker was on the brief, both of
Providence, Rhode Island, for the appellant.
Drew A. Silow, Acting Deputy Chief Counsel, with whom Richard J. Hipolit, Acting
General Counsel; Mary Ann Flynn, Chief Counsel; and Monique A.S. Allen, Appellate Attorney,
all of Washington, D.C., were on the brief for the appellee.
Before MEREDITH, TOTH, and FALVEY, Judges.
MEREDITH, Judge, filed the opinion of the Court. FALVEY, Judge, filed an opinion
concurring in part and dissenting in part.
MEREDITH, Judge: The appellant, General Webb, through counsel appeals a
December 29, 2017, Board of Veterans' Appeals (Board) decision that denied entitlement to
disability compensation for a psychiatric disorder, including post-traumatic stress disorder
(PTSD). Record (R.) at 1-12. This appeal is timely, and the Court has jurisdiction to review the
Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). This matter was referred to a panel
of the Court, with oral argument,1 to address whether, pursuant to Saunders v. Wilkie, 886 F.3d
1356 (Fed. Cir. 2018), a claimant may establish entitlement to disability compensation for a
psychiatric disability based on symptoms and functional impairment absent a diagnosis that
conforms to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV).
For the reasons discussed below, the Court concludes that this case presents factual
disputes that should be resolved by the Board in the first instance and may moot the question posed
1
The University of Detroit Mercy School of Law hosted oral argument. The Court thanks the school for its
hospitality.
in the parties' briefs. Accordingly, the Court will vacate the Board's decision without at this time
resolving that question and remand the matter for further proceedings consistent with this decision.
I. BACKGROUND
The appellant, General Webb, served on active duty in the U.S. Army from April 1969 to
November 1971, including service in Vietnam. R. at 1669. His DD-Form 214 reflects that his
military occupational specialty (MOS) was a "57F20 Memorial Alt Spec" and that his related
civilian occupation was "Funeral Attend." Id. His service treatment records are silent for any
psychiatric complaints, treatment, or diagnoses. R. at 1616-53.
In April 2008, he filed a disability compensation claim for PTSD, describing sleepless
nights and difficulty adjusting to everyday life and in relationships. R. at 2538. He stated that his
MOS required him to pack and ship dead bodies, sometimes consisting of body parts only. Id. VA
treatment records reflect that he screened positive for PTSD during a preventative health
assessment in January 2009. R. at 1251. In December 2009, the appellant again described his
in-service stressors, R. at 2406, and reported that he suffered sleepless nights and anxiety attacks,
which caused two marriages to end, R. at 2408.
He underwent a PTSD examination in April 2010. R. at 2190-202. He reported trouble
falling and staying asleep, daytime fatigue, ritualistic behavior (checking that doors are locked),
panic attacks at funerals, difficulty concentrating, hypervigilance, and exaggerated startle
response. R. at 2195, 2199. He also indicated that he experienced symptoms of helplessness and
horror after service. R. at 2196. The examiner did not provide an Axis I diagnosis, noting that "[a]
more precise diagnosis can[]not be rendered as there is no objective data to support a more
definitive diagnosis." R. at 2200-01; see R. at 2202.
Later that month, a VA regional office (RO) conceded exposure to a combat-related
stressor but denied his claim for PTSD due to the lack of a current diagnosis. R. at 2184-89. The
appellant disagreed and perfected his appeal. R. at 1766-67, 2148-49. The Board remanded the
claim, then characterized only as a claim for PTSD, in June 2014 for a new examination. R. at
1730-36. In that regard, the Board found the April 2010 examination inconsistent with the
appellant's reported medical history, noting that, although "the examiner stated there was no
diagnosis, she also acknowledged the [appellant] had chronic symptoms, and that he engaged in
other activities to try and avoid his symptoms." R. at 1733.
2
The appellant underwent another PTSD examination in August 2014; the examiner opined
that he did not have a PTSD diagnosis that conformed to the Fifth Edition of the DSM (DSM-5).
R. at 1594. Instead, she diagnosed unspecified cannabis-related disorder and opined that he had
"[o]ccupational and social impairment due to mild or transient symptoms which decrease work
efficiency and ability to perform occupational tasks only during periods of significant stress." Id.
She also stated that "[a] link between subjective symptoms of nightmares, feeling uncomfortable
attending funeral services, trouble sleeping[,] and his military duties can[]not be established. [He]
exhibits poor sleep hygiene to include cannabis and alcohol use. His subjective symptoms are most
likely related to [c]annabis use." R. at 1601.
The appellant through his representative argued that the 2014 examination was inadequate
and cited VA research illustrating that a cannabis-related disorder is a common symptom of PTSD.
R. at 1508-11, 1538-42. The Board subsequently remanded the claim to obtain a new examination
assessing the nature and etiology of any acquired psychiatric disorder, including PTSD; the Board
instructed the examiner to apply the DSM-IV. R. at 1474-83.
In December 2016, a VA examiner opined that the appellant did not have PTSD or any
other mental disorder that conforms with the DSM-5 or DSM-IV. R. at 613, 619. The examiner
noted that test results were indeterminate regarding feigning, but showed valid, elevated scores for
symptoms associated with trauma: "anxious arousal, anxiety, depression, anger, intrusive
experiences, defensive avoidance, dissociation, sexual disturbance[,] and tension reduction
behavior." R. at 619. However, regarding his evaluation under the DSM-IV criteria for PTSD, the
examiner explained that the appellant did not have reexperiencing symptoms from criterion B and
only one symptom from criterion C. Id. Additionally, the examiner reported that no other
psychiatric diagnosis was assigned under the DSM-IV. R. at 620. He acknowledged that the 2014
examiner had diagnosed unspecified cannabis-related disorder but opined that there was
insufficient information to support the diagnosis. Id. Instead, he stated that the 2016 examination
results were consistent with the 2010 examination results, which did not result in assignment of a
diagnosis. Id.
The appellant's representative submitted another brief in May 2017, arguing in part that the
December 2016 examination was inadequate. R. at 566-68. He stated:
The appellant maintains that he has a mental disorder and that it has resulted in his
abuse of cannabis an[d] alcohol since he was in the Army. The exam[ination]
provided no logical explanation for the abuse and failed to even provide a diagnosis
3
under DSM-[5] to support that there is a disorder. Surely, the appellant has a
disorder, and it has resulted in self-medication since he was on active duty. The
Board was correct to remand the appeal for an adequate examination; however, it
appears that after two hours with an examiner, the Board is no closer to a competent
examination than prior to the remand.
R. at 567.
In the December 29, 2017, decision on appeal, the Board denied entitlement to disability
compensation for a psychiatric disability, including PTSD. R. at 2-12. Relevant to the issues raised
on appeal, the Board found that the DSM-IV applies; acknowledged, pursuant to Clemons
v. Shinseki, 23 Vet. App. 1 (2009) (per curiam order), that the claim is not limited to PTSD; and
summarized the April 2010, August 2014, and December 2016 VA examination reports. R. at 4-9.
The Board denied entitlement to disability compensation for PTSD, noting that the "VA examiners
determined that the [appellant] did not meet the criteria for PTSD" and that, "[i]n the absence of
proof of a current disability, there can be no valid claim." R. at 9. The Board then determined that
disability compensation was not warranted for "any psychiatric disorder," stating that service
treatment records are negative for any findings, complaints, or diagnoses, and that "[t]he competent
and probative evidence of record does not etiologically link any psychiatric disorder to service or
any incident during service." R. at 10. Regarding the appellant's diagnosed unspecified cannabis
disorder, the Board discounted his argument that it may be related to psychiatric symptoms that
were caused by or related to service, as speculative and lacking any probative value. Id. This appeal
followed.
II. ANALYSIS
The appellant argues that the Board erred by relying on the 2014 and 2016 VA
examinations because the Board previously found the 2014 examination inadequate; and both
examinations are inadequate because the examiners utilized the DSM-5 instead of the DSM-IV
and provided insufficient support for their conclusions. Appellant's Brief (Br.) at 10-19; Reply Br.
at 1-8.2 He further asserts that the Board erred by failing to consider whether his lay statements are
evidence of a psychiatric disability other than PTSD. Appellant's Br. at 19-21 (citing Saunders,
886 F.3d at 1362); Reply Br. at 9-12. In this regard, he contends that his symptoms caused
2
On August 30, 2019, the appellant withdrew his argument that the examinations are inadequate due to the
examiners' use of the DSM-5 diagnostic criteria.
4
functional impairment and, therefore, pursuant to Saunders, constitute a "current disability" for
purposes of establishing entitlement to disability compensation. Appellant's Br. at 20-21; Reply
Br. at 10-11.
The Secretary counters that the 2016 examination report, because it reflects that the
examiner applied the DSM-IV, corrected any error in the 2014 examination, and that it is adequate
for adjudication purposes. Secretary's Br. at 6-12. He further contends that Saunders is limited to
the facts of that case—that pain alone, absent a diagnosis, may be compensated if it causes
functional loss. Id. at 12-13.
A. Law
Establishing that a disability is service connected for purposes of entitlement to VA
disability compensation generally requires medical or, in certain circumstances, lay evidence of
(1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a
nexus between the claimed in-service injury or disease and the current disability. See 38 U.S.C.
§ 1110; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Davidson
v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (2019). Establishing that
PTSD is service connected for purposes of entitlement to VA disability compensation requires
(1) a current medical diagnosis of PTSD, (2) a medically established link between the current
PTSD and the claimed in-service stressor, and (3) credible supporting evidence that the in-service
stressor occurred. 38 C.F.R. § 3.304(f) (2019); see Molitor v. Shulkin, 28 Vet. App. 397, 402-03
(2017).
Under certain circumstances, and as part of its duty to assist claimants, VA must provide a
medical examination. See 38 U.S.C. § 5103A(d). "[O]nce the Secretary undertakes the effort to
provide an examination [or opinion,] . . . he must provide an adequate one." Barr v. Nicholson,
21 Vet. App. 303, 311 (2007). A medical examination or opinion is adequate "where it is based
upon consideration of the veteran's prior medical history and examinations," Stefl v. Nicholson,
21 Vet. App. 120, 123 (2007), "describes the disability, if any, in sufficient detail so that the Board's
'evaluation of the claimed disability will be a fully informed one,'" id. (quoting Ardison v. Brown,
6 Vet. App. 405, 407 (1994)) (internal quotation marks omitted), and "sufficiently inform[s] the
Board of a medical expert's judgment on a medical question and the essential rationale for that
opinion," Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (per curiam).
5
The Board's determinations whether a medical examination or opinion is adequate and
whether the record establishes entitlement to service connection are findings of fact, which the
Court reviews under the "clearly erroneous" standard. D'Aries v. Peake, 22 Vet. App. 97, 104
(2008) (per curiam); Russo v. Brown, 9 Vet. App. 46, 50 (1996). A finding of fact is clearly
erroneous when the Court, after reviewing the entire evidence, "is left with the definite and firm
conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948); see Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990). As with any material issue of fact
or law, the Board must provide a statement of the reasons or bases for its determination "adequate
to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate
review in this Court." Allday v. Brown, 7 Vet. App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1);
Gilbert, 1 Vet. App. at 56-57.
B. Adequacy of VA Examinations
The appellant argues that the 2014 examination is inadequate in part because the examiner
conflated the issue of whether he had a current diagnosis with whether there was a nexus between
that diagnosis and service; provided no response as to whether he exhibited symptoms to satisfy
criterion C for a diagnosis of PTSD 3 —"[p]ersistent avoidance of stimuli associated with the
traumatic event"—but later in his report noted that the appellant "does not feel comfortable
attending funerals"; and failed to consider whether his cannabis disorder was related to any
psychiatric issues. R. at 1599-601; see Appellant's Br. at 13-14. Regarding the 2016 examination,
he contends that the examiner made inconsistent findings concerning the presence of symptoms to
satisfy criteria B and C; provided no response under the heading "symptoms" but also noted that
testing revealed elevated scores for symptoms associated with trauma; and, similar to the April
2010 examiner, failed to explain why a diagnosis was not rendered despite the presence of chronic
symptoms. Appellant's Br. at 15-18. He further asserts that he raised the issue of the adequacy of
this examination below, yet the Board provided no reasons or bases as to whether VA satisfied the
duty to assist. Id. at 18-19.
3
Both editions of the DSM organize the diagnostic criteria for PTSD by letters, beginning with the letter
"A." See DSM-5 at 271-72 (5th ed. 2013); DSM-IV at 467-68 (4th ed. 1994). For example, a diagnosis of PTSD under
the DSM-IV requires at least one symptom under criterion B (persistently reexperiencing the traumatic event) and
three or more from criterion C ("[p]ersistent avoidance of stimuli associated with the trauma and numbing of general
responsiveness"). DSM-IV at 468.
6
The Secretary maintains that the Board recounted the findings of the various examinations
but relied in part on the 2016 examination report, in which the examiner found no diagnosis under
the DSM-IV, to deny the claim. Secretary's Br. at 6-7. The Secretary further contends that the
appellant's arguments are based on lay hypothesizing as to what the evidence indicates; examiners
do not have a reasons-or-bases requirement; and, based on a reading of the 2016 examination
report as a whole, it is evident that it is adequate. Id. at 8-11.
The Court cannot address whether the Board erred by relying on the 2014 and 2016 VA
examinations because the Board did not make any explicit findings regarding the adequacy of
those examinations or explain which examinations it relied on to deny the appellant's claim and,
to the extent that it implicitly found either or both examinations adequate, its reasons are not readily
apparent. See R. at 6-10 (summarizing the evidence, including the VA examination reports, and
considering whether entitlement to disability compensation was warranted without explaining
whether the examinations were adequate or why the Board considered them probative), 9 (referring
to the "treating VA examiners" before concluding that the appellant had not been diagnosed with
PTSD), and 10 (stating that the "competent and probative evidence does not etiologically link any
psychiatric disorder to service" without identifying any specific medical evidence); see also
D'Aries, 22 Vet. App. at 104. Although the parties make competing arguments as to whether the
VA examinations were adequate, see Appellant's Br. at 10-19; Reply Br. at 1-8; Secretary's Br. at
6-12, the Court's review is frustrated by the Board's failure to make the necessary factual findings
in the first instance, see Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) ("[A]ppellate
tribunals are not appropriate fora for initial fact finding."); see also 38 U.S.C. § 7261(c).
For example, resolving these issues would require the Court to surmise which examination
reports the Board implicitly considered adequate and probative and then, in the first instance,
potentially review both medical examination reports to determine (1) whether, as argued by the
appellant, they contain inconsistent findings regarding the presence of symptoms to satisfy the
diagnostic criteria for PTSD or whether, as argued by the Secretary, the examination reports are
adequate when read as a whole; and (2) whether the 2016 examiner provided an adequate rationale
for finding no psychiatric diagnosis despite test results that showed the presence of the following
symptoms: "anxious arousal, anxiety, depression, anger, intrusive experiences, defensive
avoidance, dissociation, sexual disturbance[,] and tension reduction behavior." R. at 619; cf. R. at
7
1733 (Board finding the 2010 examiner's rationale inconsistent with the appellant's medical history
because she stated that there was no diagnosis yet acknowledged chronic symptoms).
The Court may not resolve these factual disputes or evaluate their potential effect on the
Board's findings. See Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (holding "that the
evaluation and weighing of evidence are factual determinations committed to the discretion of the
factfinder—in this case, the Board"); see also Hensley, 212 F.3d at 1263. Thus, remand is
warranted. See Tucker v. West, 11 Vet. App. 369, 374 (1998) ("[W]here the Board has incorrectly
applied the law, failed to provide an adequate statement of reasons or bases for its determinations,
or where the record is otherwise inadequate, a remand is the appropriate remedy.").
Because the adequacy of the VA examinations remains an open issue and an additional or
clarifying medical opinion may be ordered on remand, the Court notes that the question of whether
a claimant may establish entitlement to disability compensation for a psychiatric disability based
on symptoms and functional impairment absent a DSM diagnosis may become a moot issue.4 See
Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009) (noting that "the Court will not ordinarily consider
additional allegations of error that have been rendered moot by the Court's opinion or that would
require the Court to issue an advisory opinion"). Additionally, because the lack of factual findings
by the Board prevents the Court from reviewing whether the record has been adequately developed
to assess the nature of the appellant's mental health condition, regardless of the diagnosis, see
Clemons, 23 Vet. App. at 5 (explaining that an initial claim for benefits must be "considered a claim
for any . . . disability that may reasonably be encompassed" by the claim), we decline to assess
whether the Board erred by failing to address a potential theory of entitlement—a theory that was
contrary to existing precedent at the time the Board rendered its decision—based on the current
state of the record.5 See Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000) (holding that the
4
Further, although the Board seemingly denied entitlement to disability compensation for a psychiatric
disability other than PTSD due to the lack of a current disability, see R. at 3 (Finding of Fact), in its analysis, the
Board appeared to suggest that the denial was based on the lack of nexus, see R. at 10 (stating that "[t]he competent
and probative evidence of record does not etiologically link any psychiatric disorder to service or any incident during
service[, and that] there is no contrary competent evidence showing it is at least as likely as not that any psychiatric
disability is related to service") (emphasis added). Without clarity on what bases the Board denied disability
compensation for a psychiatric disability other than PTSD, answering the legal question may be advisory. See
Waterhouse v. Principi, 3 Vet. App. 473, 474-76 (1992).
5
The Court further notes that the initial briefing as to this matter, which collectively amounts to 6 pages,
does not fully explore this legal question. In that regard, it was only in the Secretary's notice of supplemental authority,
which he filed 1 week prior to oral argument, that the issue of VA's regulations pertaining to service connection for
PTSD, diagnoses of mental disorders, and VA's adoption of the DSM was first referenced. See 38 C.F.R. §§ 3.304(f),
8
Court "may hear legal arguments raised for the first time with regard to a claim that is properly
before the [C]ourt, [but] it is not compelled to do so in every instance"); Mariano v. Principi,
17 Vet. App. 305, 318 (2003) (remanding a question of regulatory interpretation for the Secretary
to answer in the first instance); McCormick v. Gober, 14 Vet. App. 39, 45 (2000) (remanding
because Board determinations on certain enumerated questions would be helpful to the Court's
review of the matter, would likely benefit the Court by producing better records for appellate
review of a Board decision, and could result in VA self-correcting and amending its ways, which
would protect VA administrative authority and promote judicial efficiency).
On remand, the appellant is free to submit additional evidence and argument on the
remanded matter, including the specific arguments raised here on appeal, and the Board is required
to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet. App. 529, 534
(2002) (stating that, on remand, the Board must consider additional evidence and argument in
assessing entitlement to the benefit sought); Kutscherousky v. West, 12 Vet. App. 369, 372-73
(1999) (per curiam order). The Court reminds the Board that "[a] remand is meant to entail a
critical examination of the justification for the decision," Fletcher v. Derwinski, 1 Vet. App. 394,
397 (1991), and the Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112.
III. CONCLUSION
After consideration of the parties' pleadings, oral argument, and a review of the record, the
Board's December 29, 2017, decision is VACATED and the matter is REMANDED for further
proceedings consistent with this decision.
FALVEY, Judge, concurring, in part, dissenting in part: I join the Court's decision to
remand Mr. Webb's PTSD claim. But I would address Mr. Webb's argument about a non-DSM
4.125(a), 4.130(a) (2019); see generally Carbino v. Gober, 10 Vet. App. 507, 511 (1997), aff'd sub nom. Carbino v.
West, 168 F.3d 32, 34 (Fed. Cir. 1999) ("[I]mproper or late presentation of an issue or argument . . . ordinarily should
not be considered."); Woehlaert v. Nicholson, 21 Vet. App. 456, 463 (2007). Unlike other cases in which the Court has
exercised its discretion to hear late-raised arguments, see, e.g., Crumlich v. Wilkie, 31 Vet. App. 194, 202 (2019)
(addressing a late-raised argument where "the Court was presented with a compelling allegation that the regulation
VA ask[ed the Court] to apply conflict[ed] with the appellant's statutory rights and the Secretary's concessions
appeared to confirm that allegation" and the Court thereafter obtained a written response from the Secretary), we
decline to do so under these circumstances.
9
diagnosis. I do not agree that a remand of the PTSD claim could moot the question of whether
service connection may be granted absent a DSM diagnosis.
Mr. Webb doesn’t just want compensation for PTSD or a different condition found in the
DSM. Instead, he argues that VA must compensate him for any symptom even without a diagnosis.
Even if Mr. Webb is eventually awarded service connection for a psychiatric disability diagnosed
under the DSM, his dispute, and the implications of having his question about non-DSM eligibility
go undecided, will not be resolved. At their core, the two are different issues.
At first blush it may seem that, because VA uses a uniform set of criteria for rating
psychiatric disabilities, avoiding this question may be prudent and appropriate. But this is not so
for several reasons. First, 38 C.F.R. § 4.126(d) requires that when a disability has been diagnosed
as both a physical and a mental disorder, VA must evaluate it using the code that represents the
more disabling aspect of the condition. Second, even if Mr. Webb is ultimately granted service
connection for a DSM disability, he will be entitled to compensation for both the DSM and non-
DSM disability symptoms only if VA cannot distinguish them. See Mittleider v. West, 11 Vet. App.
181, 182 (1998) (per curiam order) And third, other benefits may flow from whether Mr. Webb's
symptoms are attributed to his service-connected disability or not. See e.g., 38 U.S.C. 1310(a)
(allowing for compensation in some cases for spouses, children, and parents of a veteran who died
due to a service-connected disability). Thus, a grant for any DSM disability would not resolve all
that Mr. Webb seeks from VA. And so, I would address the merits of his dispute about whether
the Board's opinion conflicts with the definition of disability as articulated by the Federal Circuit
decision in Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018).
What's more, because this question stems from a precedential decision of our reviewing
Court that itself transformed existing precedent, it particularly deserves our attention. Even more
so when the answer lies at the edges of our jurisdiction as it does here. If the rating schedule defines
psychiatric disabilities based on the DSM, that definition may be beyond our jurisdiction.
"Congress precluded [this] Court from 'review[ing] the schedule of ratings for disabilities adopted
under section 1155 . . . or any action of the Secretary in adopting or revising that schedule.'
38 U.S.C. § 7252(b)." Wingard v. McDonald, 779 F.3d 1354, 1356 (Fed. Cir. 2015) (alterations in
original). "The Federal Circuit and section 7252 are unequivocal in their language that this Court
is precluded from reviewing the content of the rating schedule. . . [T]he Federal Circuit expressly
10
held that reviewing what should be considered a disability is no different from direct review of the
content of the rating schedule." Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018).
Thus, even though I agree that the Board needs to provide better reasons or bases, I would
also address whether it must consider service connection for a psychiatric disability absent a formal
diagnosis under the DSM. This is an important question that can entitle Mr. Webb to greater
benefits and he should have an answer from this Court or, if need be, the Federal Circuit.
11