Lynch v. Wilkie

• Decision Date: 17 April 2020
• Docket Number: 19-3106
• Parties: Joe A. Lynch, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.
• Court: United States Court of Appeals For Veterans Claims

Joe A. Lynch, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.

No. 19-3106

United States Court of Appeals For Veterans Claims

April 17, 2020

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

Joe A Lynch VA General Counsel (027)

Before SCHOELEN, Senior Judge. ^[1]

MEMORANDUM DECISION

SCHOELEN, Senior Judge:

The pro se appellant, Joe A. Lynch, appeals an April 15, 2019, Board of Veterans' Appeals (Board) decision that denied a disability rating greater than 30% for post-traumatic stress disorder (PTSD). Record (R.) at 3-9. 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). Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will affirm the Board's decision.

I. BACKGROUND

The appellant served on active duty in the U.S. Marine Corps from June 1972 to July 1976. R. at 334.

On March 2, 2016, he filed a claim for PTSD, R. at 375-76, and in support submitted a private treatment report from Dr. Newsome, who evaluated him on two separate occasions in March 2015, R. at 365-66. The appellant reported symptoms of sleep problems, anger, phobias about confined spaces, panic attacks, mood swings, frequent nightmares, feelings of sadness and depression, memory problems, lack of friendships, social isolating, and antisocial behaviors outside the home. R. at 365. Dr. Newsome reported that the appellant completed the PTSD checklist and that the results supported a diagnosis of PTSD. R. at 366. She further opined that the appellant's "performance of his job functions and social interactions are severely limited due to his . . . PTSD symptomatology"; that "his lack of social support is increasing because of his inability to control physical and emotional reactions"; and that "[h]is family relations, judgment, thinking, and mood are increasingly limiting his current quality of life." Id.

On August 5, 2016, the appellant underwent a VA PTSD examination. R. at 164-74. The examiner diagnosed PTSD with symptoms of anxiety and chronic sleep impairment but noted that the appellant "is not reporting occupational or social functional impairment." R. at 166, 171. The appellant reported a social and family history, specifically that he found his 24-year marriage to his current wife "generally fulfilling and supportive"; that he currently felt an emotional connection to his wife, children, and family; and that he "remain[ed] socially connected to his church and with friends at this time." R. at 166. He "described his current work performance as 'excellent'[;] . . . that he is in good standing with his current employer[;] and [that his] relationships with co-workers and supervisors through the years were characterized as typically positive and productive." Id. The examiner opined that the appellant's symptoms were "not severe enough either to interfere with occupational and social functioning or to require continuous medication." R. at 165. Finally, the examiner reviewed Dr. Newsome's treatment report and opined that

[t]he level of impairment observed by Dr. Newsome was not observed or reported during today's exam. For example, the claimant described his current work performance as a fraud investigator as "excellent." Dr. Newsome characterized his job performance ability as "severely limited."

R. at 166.

In August 2016, the RO granted service connection for PTSD and assigned a 30% disability rating, effective March 2, 2016. R. at 124. In October 2016, the appellant filed a Notice of Disagreement, along with Dr. Jabbour's September and October 2016 private psychological evaluations as supporting evidence. R. at 70-87. At the September 2016 initial evaluation, the appellant reported symptoms of recurring nightmares, insomnia, irritable mood, and difficulty concentrating. R. at 76-77. Regarding his social adaptability, he reported that his relationship with his two children from his first marriage had been distant for some time, but that his relationship with his daughter from his second marriage was very close and loving; that he and immediate family members were not as close as they had been; that his friendships had declined over time; and that his self-isolation had affected marital intimacy. Id. He also reported that at work he experienced problems with focus and concentration, noting that "I can't compete at work or in the environment that I'm in any longer." R. at 77. Dr. Jabbour diagnosed PTSD and prescribed medication to treat it. Id.

At the appellant's second evaluation in October 2016, Dr. Jabbour documented PTSD symptoms of depressed mood, anxiety, suspiciousness, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a work-like setting, inability to establish and maintain effective relationships, and suicidal ideation. R. at 86. He diagnosed the appellant with PTSD and noted that "[s]ome of his symptoms present as quite notable, e.g.[, ] [d]ifficulty sleeping and dreams about his past traumas, [a]nhedonia, irritability and inability to focus." R. at 87.

In July 2017, the appellant underwent a second VA PTSD examination. R. at 47-57. He reported difficulty showing emotions to his wife and family, social isolation, anxiety attacks, insomnia, irritability, anger outbursts, nightmares, paranoia, and memory difficulties. R. at 52-53. The examiner noted PTSD symptoms of anxiety and suspiciousness, R. at 55, and she also addressed the conflicting medical evidence regarding the severity of the appellant's PTSD symptoms, noting that

[i]t appears that the Veteran did report more social and occupational problems at his 2016 appointments with Dr. Jabbour, although Dr. Jabbour's conclusions on a DBQ [VA Disability Benefits Questionnaire] were more extreme than what was supported by available evidence. For example, Dr. Jabbour . . . indicat[ed] that the Veteran has an "inability" to have relationships with others, although he had reported having friendships and family relationships. Dr. Jabbour . . . indicat[ed] that the Veteran has difficulty with social and work relationships, although the Veteran reported no problems with work relationships and reported having friendships. At the current . . . exam[ination], the Veteran reported that his family is "close," which contradicts Dr. Jabbour's documentation about distance in family relationships. At the current . . . exam[ination], the Veteran reported that he is efficient in his work, which contradicts Dr. Jabbour's statement that he has problems with reliability and productivity. Integrating these findings, the Veteran's social and occupational impairment appears to be currently . . . worse than what was reported at the 2016 [VA] exam[ination] . . . but less severe than Dr. Jabbour's 2016 conclusions.

R. at 48. The examiner found the appellant's occupational and social impairment represented by "occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation." R. at 49.

The RO issued a Statement of the Case in August 2017 continuing the 30% rating, R. at 45, and the appellant filed a timely Substantive Appeal, R. at 31. In the April 2019 decision here on appeal, the Board found that the appellant's occupational and social impairment was "manifested by occasional decrease in work efficiency and intermittent inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation." R. at 3.

II. ANALYSIS

The appellant argues that, in denying a disability rating greater than 30% for PTSD, the Board misapplied 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.303 and wrongly found that he was not entitled to the benefit of the doubt. Appellant's Informal Brief (Br.) at 2. He also argues, based upon the two private examinations of record, that his PTSD symptoms were more serious than the Board found. Id. at 4 ("Attachment #2"). Finally, he refers to a Board decision granting service connection for PTSD to another claimant, alleging that had the "luck of the draw" been different and another veterans law judge assigned to his own case, his claim would have been decided favorably. Id. at 4-5.

The Secretary responds that the Court should affirm the Board's decision because the appellant's contentions are nothing more than a disagreement with the Board's weighing of the evidence. Secretary's Br. at 7. He also contends that "the Board also addressed other PTSD symptoms, which may be indicative of a higher rating, but indicated that there was no evidence that such symptoms interfered with his ability to perform activities of daily living." Id. at 7-8.

Under the current rating schedule for mental disorders, including PTSD, a 50% disability rating is warranted when there is

[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 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, Diagnostic Code (DC) 9411 (2019). A 70% disability rating is warranted when there is

[o]ccupational and social impairment, with

...