Locke v. Wilkie, 18-3553

• Decision Date: 20 November 2019
• Docket Number: 18-3553
• Court: United States Court of Appeals For Veterans Claims
• Parties: Elliott L. Locke, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.

Elliott L. Locke, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.

No. 18-3553

United States Court of Appeals For Veterans Claims

November 20, 2019

Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

Before GREENBERG, Judge.

MEMORANDUM DECISION

GREENBERG, Judge:

Elliot L. Locke, through counsel appeals that part of a March 13 2018, Board of Veterans' Appeals decision that denied a disability rating in excess of 70% for depression and denied special monthly compensation based on aid and attendance and/or housebound status.^[1] Record (R.) at 2-19. The appellant argues that the Board failed to properly consider the appellant's entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s)(1) and failed to correctly apply the provisions of 38 C.F.R. §§ 4.3, 4.7, and 4.130 when assigning an initial rating for his service-connected depressive disorder from March 10, 2004. The Secretary agrees that the Board erred in failing to adjudicate SMC under 38 U.S.C. § 1114(s)(1), but otherwise argues for an affirmance of the Board decision on appeal. For the following reasons, the Court will vacate that part of the March 2018 Board decision on appeal, and remand the matters for readjudication.

Justice Alito noted in Henderson v. Shinseki that our Court's scope of review in this appeal is "similar to that of an Article III court reviewing agency action under the Administrative Procedure Act, 5 U.S.C. § 706." 562 U.S. 428, 432 n.2 (2011); see 38 U.S.C. § 7261. The creation of a special court solely for veterans and other specified relations such as their widows, is consistent with congressional intent as old as the Republic. See Hayburn's Case, 2 U.S. (2 Dall.) 409, 410 n., 1 L.Ed. 436 (1792) ("[T]he objects of this act are exceedingly benevolent, and do real honor to the humanity and justice of Congress."). "The Court may hear cases by judges sitting alone or in panels, as determined pursuant to procedures established by the Court." 38 U.S.C § 7254. Accordingly, the statutory command of Congress that a single judge may issue a binding decision, pursuant to procedures established by the Court, is "unambiguous, unequivocal, and unlimited." Conroy v. Aniskoff, 507 U.S. 511, 514 (1993); see generally Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).

From the beginning of the Republic, statutory construction concerning congressional promises to veterans has been of great concern. "By the act concerning invalids, passed in June, 1794, vol. 3. p. 112, the secretary at war is ordered to place on the pension list, all persons whose names are contained in a report previously made by him to congress. If he should refuse to do so, would the wounded veteran be without remedy? Is it to be contended that where the law, in precise terms, directs the performance of an act, in which an individual is interested, the law is incapable of securing obedience to its mandate? Is it on account of the character of the person against whom the complaint is made? Is it to be contended that the heads of departments are not amenable to the laws of their country?" Marbury v. Madison, 5 U.S. 137, 164, 2 L.Ed. 60, 69 (1803).

The appellant served on active duty in the U.S. Army from July 1973 to August 1993. See R. at 3. He is service connected for numerous disabilities including status post stent placement with coronary artery; lumbosacral strain with degenerative disc disease; hemorrhoids; radiculopathy left and right lower extremity with L4-S1 disc; hypertension; bilateral pes planus; and pancreatitis. See R. at 4.

In the March 2018 decision on appeal, the Board found that the appellant's depression

has been primarily manifested by such symptoms as audio and visual hallucinations; poor memory; suicidal ideation; speech intermittently disorganized; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and an inability to establish and maintain hardly any effective relationships outside of his spousal relationship.

R. at 18. The Board denied a 100% disability rating for depression because it found it "significant that his more severe symptoms, including hallucinations, have been controlled with medication and respond well to therapy." R. at 18. The Board also denied a higher rating because of a "stable relationship for years with his family," "social interactions in church," and a "willingness to engage with others as seen in his recent therapy sessions." R. at 19.

The Board also granted an earlier effective date for TDIU based on a finding that the combination of the appellant's service-connected disabilities rendered him unemployable. R. at 4. The Board did not address whether the appellant was entitled to TDIU solely as a result of this service-connected disability.

Finally, the Board denied SMC based on a finding that the appellant

is not shown, due to his service-connected disabilities, to be blind by VA criteria, bedridden, a patient in a nursing home, confined to his immediate premises, unable to avoid the hazards of his daily environment, or to have functional impairment such that he would be unable to accomplish ordinary daily living activities without assistance.

R. at 4.

The Court concludes that in denying a 100% disability rating for depression, the Board erred in failing to address the frequency, severity, and duration of the appellant's symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013) (holding that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration"). The Board listed the evidence relating to the appellant's depression, summarized the appellant's symptoms, but denied a higher rating because it found that the appellant's severe symptoms, such as hallucinations were well controlled by medications and the appellant had demonstrated some ability to interact socially. See R. at 18. This is not the proper analysis. The Board failed to explain why the frequency, severity, and duration of the appellant's symptoms did not warrant a higher rating. Remand is required for the Board to provide an adequate statement of reasons or bases for its severity of...