Golden: GAF scores, rating psychiatric conditions

Golden, Jr. v. Shulkin, 29 Vet.App. 221 (Feb. 23, 2018)

HELD: “Given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Court holds that the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies.” 

SUMMARY: Veteran is service connected for PTSD, rated 70%. He appealed for a higher rating – and his appeal was certified to the Board in June 2015. The Board denied a higher rating based on the veteran’s GAF scores –even though it acknowledged that the DSM-5 applied to claims certified to the Board after August 4, 2014, and that this edition of the DSM had eliminated the use of GAF scores. 

The Court recognized that VA is required to evaluate a disability “in relation to its history,” per 38 C.F.R. § 4.1, and to consider all medical and lay evidence of record –which may include GAF scores.The Court emphasized that VA’s ”rating analysis for psychiatric disorders has always been ‘symptom driven,’ meaning that ‘symptom[s] should be the fact finder’s primary focus” when assigning a rating.” The Court thus clarified: “to the extent that the Board may have been tempted to use numerical GAF scores as a shortcut for gauging psychiatric impairment, such use would be error.” 

FULL DECISION

Turner: 38 C.F.R. § 3.156(b), "constructively" received VA medical records

Turner v. Shulkin, 29 Vet.App. 207 (Feb. 8, 2018)

HELD: Under38 C.F.R. §3.156(b), if new and material evidence (which could include VA treatment records)  is “received” during the one-year appeal period following a regional office (RO) decision, the RO is required to consider that evidence as having been submitted with the original claim and proceed accordingly.” VA treatment records can be “constructively” received, which requires VA adjudicators to “have sufficient knowledge, within the one-year appeal period following an RO decision, that the records exist, although they need not know the contents of such records.” Until the RO reconsiders the claim with the newly received (or constructively received) evidence, “the denied claim remains pending.”

FULL DECISION

Harvey: Attorney serving as expert witness

Harvey v. Shulkin, docket no. 16-1515 (Feb. 7, 2018)

HELD: Whether an attorney’s submission should be treated as a medical opinion depends on several factors, including (1) the text of the submission, (2) the identification of the author as attorney or medical professional, (3) the indicators of legal advocacy/argument in the submission, and (4) the presence of a medical opinion with supporting rationale. 

SUMMARY: Mr. Harvey appealed the denial of service connection for sleep apnea. At the agency level, he was represented by David Anaise, a licensed medical doctor, attorney, and accredited VA representative. In his “appeal brief” to the RO, he stated that the veteran’s sleep apnea was more likely related to his service-connected PTSD on a secondary basis, and cited supporting medical literature. The Board denied service connection, relying on a negative C&P opinion and stating that “[t]here are no contrary opinions of record.” 

On appeal to the Court, Mr. Harvey argued that the denial was in error because the Board failed to address the favorable medical opinion “submitted by his attorney-physician representative.” The Court noted that VA law does not establish requirements for determining “whether a specific submission constitutes a medical opinion” and declined to “prescribe absolute requirements” for such determinations. The Court held that these determinations are “to be undertaken individually,” and that the Board may “be obligated to assess whether that submission is a medical opinion and consider it in adjudicating a claim.” 

The Court outlined several factors that should be considered in making this assessment, including whether the author of the submission identified himself/herself as a medical professional, whether the content of the submission indicated that it was legal argument, and whether the content of the submission indicated that it was a medical opinion. Because Mr. Anaise did not identify himself as acting in the capacity of a medical professional, and because the submission contained indications of legal argument and no indication that it was a medical opinion (i.e., there was no language, such as “in my medical opinion”), the Court determined that the Board did not err by failing to treat this submission as a medical opinion. 

The Court also ordered oral argument for the parties to address the ethical issue of an attorney representative serving as an expert witness in a case. Because the Court held that Mr. Anaise’s “brief” was not a medical opinion, it found there was no violation of Rule 3.7 of the Model Rules of Professional Conduct.

Finally, the Court addressed the appellant’s argument that “the Board improperly relied on its own medical judgment to determine that the article reflected a correlative rather than a causal relationship between PTSD and sleep apnea.” The Court discussed the medical treatise evidence that had been submitted and stated that it is within the Board’s purview to interpret such treatise’s meaning and assess its probative value. The Court found that the Board correctly applied the legal standard required for assessing service connection on a secondary basis. The Court explained that that “correlation” between a service-connected condition and a secondary condition is not sufficient to establish secondary service connection; “a causation or aggravation relationship is required.” 

FULL DECISION

George: 38 C.F.R. § 3.156(c) & CUE

George v. Shulkin, 29 Vet.App. 199 (Feb. 5, 2018)

HELD: Upon receiving new service records, VA must “reconsider” a claimant’s original claim even if service connection has already been granted with a later effective date. However, “given the imprecise definition of ‘reconsider’ under § 3.156(c)(1),” the Court in this case did not find CUE in the Board’s determination that a proper reconsideration occurred. 

SUMMARY: In 1998, the RO denied Mr. George’s claim for service connection for PTSD because there was no confirmed PTSD diagnosis and no in-service stressor. In 2003, the veteran requested reopening. VA obtained service records, confirming the in-service stressor, and granted service connection, effective 2003. Mr. George appealed, arguing that 1998 denial should be reconsidered under 38 C.F.R. § 3.156(c). 

In 2012, on appeal to the CAVC, the parties agreed to remand for Board to consider the applicability of § 3.156(c). The Board subsequently remands for a retrospective medical opinion to determine when Mr. George’s PTSD first manifested. The C&P examiner opined that the condition first manifested in 2003, based on the 2003 C&P examiner’s report. 

In 2014, the Board denies entitlement to an earlier effective date, noting that the grant could go back to 1997, but that the first evidence of a PTSD diagnosis was not until 2003. The veteran did not appeal this decision. 

In 2015, Mr. George filed a motion to revise the 2014 decision on the basis of clear and unmistakable error (CUE), arguing that the Board misapplied § 3.156(c). The Board determined that there was no CUE in the 2014 decision because the medical evidence did not support a PTSD diagnosis prior to 2003. 

On appeal to the CAVC, the veteran argued that the Board erred in determining that the 2014 decision was not CUE because the Board did not “reconsider” his claim under § 3.156(c)(1), but instead only reviewed the proper effective date under § 3.156(c)(3). He argued that the finality of the original 1997 decision “‘had been undone’ by receipt of new service treatment records, and because the RO never engaged in a full readjudication, the Board erred when it found no CUE.” 

At the very beginning of its opinion, the Court emphasized that “our resolution of the claimed error here under § 3.156(c) is largely dictated by the fact that we consider that matter through the prism of CUE.” (Advocacy note: This point must be emphasized. Had the veteran directly appealed the effective date assigned in the 2003 decision, this issue would not have been subjected to the heightened CUE standard.)

The CAVC discussed § 3.156(c) and found that “upon receiving official service department records in 2007, VA had a duty to ‘reconsider’ the appellant’s 1997 claim for service connection for PTSD, despite the fact that service connection for PTSD was granted in 2007 with an effective date of 2003.” The Court noted that “what would satisfy the reconsideration required is a gray area under existing law,” and noted that “§ 3.156(c) is about more than effective dates; it’s also about development of the claim in at least some respect.” Nevertheless, the Court determined that the Board “applied the correct legal principles under § 3.156(c) when it reviewed the 2014 decision.” 

Turning to the question of whether the 2015 Board properly determined that there was no CUE in the 2014 decision, the Court stated: “given the imprecise definition of ‘reconsider’ under § 3.156(c)(1), the Board’s determination that a proper reconsideration occurred based on the gathering of new evidence and the reweighing of old evidence, is not arbitrary and capricious under the deferential CUE standard.” 

In a footnote, the Court acknowledged the appellant’s argument that had the Board conducted a “‘full readjudication’ in 2014, his lay statements may have triggered VA’s duty to assist.” The Court stated that the duty-to-assist argument could have been raised on direct appeal, but noted that it is well established that a duty-to-assist violation cannot be CUE. 

FULL DECISION