Schwab v. McDonough

Decision Date31 March 2022
Docket Number20-7178
PartiesCaryn C. Schwab, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee.
CourtUnited States Court of Appeals For Veterans Claims

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

Kenneth M. Carpenter, Esq. VA General Counsel.

Before PIETSCH, Judge.

MEMORANDUM DECISION

PIETSCH, Judge.

Caryn C. Schwab, surviving spouse of the veteran William J. Schwab [1]appeals through counsel a June 25, 2020 Board of Veterans' Appeals (Board) decision that denied entitlement to an initial disability rating greater than 50% for post-traumatic stress disorder (PTSD) and entitlement to an effective date earlier than November 16, 2012, for the award of special monthly compensation under 38 U.S.C. § 1114(s) (SMC(s)).[2] 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 as the issue is of "relative simplicity" and "the outcome is not reasonably debatable." Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will affirm the part of the June 25, 2020, Board decision concerning an initial disability rating greater than 50% for PTSD and an effective date earlier than November 16, 2012, for the award of SMC(s).

I. BACKGROUND

Mr. Schwab served on active duty in the U.S. Army from March 1966 to September 1975. Record (R.) at 750, 748, 752. He was awarded decorations including the Bronze Star Medal.

On June 30, 2011, Mr. Schwab filed a claim for service connection for coronary bypass surgery. R. at 1139-44. On September 20, 2011, he filed a claim for service connection for PTSD. R. at 1106. In June 2012, the RO granted service connection for coronary artery disease (CAD) status post coronary artery bypass graft with scars and assigned a 100% initial disability rating effective from June 30, 2011, and a 60% rating effective from September 1, 2011. R. at 1006-07.

In November 2012, Mr. Schwab filed a claim for service connection for tinnitus, R. at 921, and in November 2013, the RO granted that claim and assigned an initial rating of 10% effective November 16, 2012, R. at 811-15.

In August 2013, the RO granted service connection for anxiety disorder, not otherwise specified (claimed as PTSD), and assigned an initial rating of 10% effective September 20, 2011. R. at 864-72. Mr. Schwab timely appealed the psychiatric disorder rating. R. at 782-89. In January 2016, Mr. Schwab filed a formal claim for a total disability rating based on individual unemployability (TDR7), asserting that his psychiatric disorder, tinnitus, and heart condition prevented him from securing and following any substantially gainful occupation. R. at 703-04.

In April 2016, the RO granted an increased rating of 100%) for CAD, effective from January 29, 2016. R. at 355-60. In June 2016, the RO issued a rating decision and a Statement of the Case (SOC) granting an increased rating of 50% for an acquired psychiatric disability, including anxiety disorder and PTSD, effective from February 10, 2016. R. at 322-26, 327-38. The RO also granted entitlement to SMC(s) effective from February 10, 2016. R. at 322-26. The next month, Mr. Schwab filed a Substantive Appeal. R. at 302-13.

In January 2019, the Board granted an increased initial disability rating of 50% for PTSD and denied a rating greater than 50%; granted TDR7 due to CAD and PTSD combined from September 20, 2011, to January 29, 2016; and awarded SMC(s) for the period from January 29, 2016, to February 10, 2016. R. at 111-28. Mr. Schwab appealed the portion of the Board's January 2019 decision denying an initial rating greater than 50% for PTSD and denying an effective date earlier than January 29, 2016, for the award of SMC(s). Pursuant to a December 2019 joint motion by the parties, the Court vacated that portion of the January 2019 decision and remanded those matters for the Board to adequately discuss evidence of passive suicidal ideation for PTSD rating purposes, and for the Board to discuss whether Mr. Schwab's ratings would entitle him to TDIU before January 29, 2016, for SMC(s) purposes. R. at 48-53.

In the June 2020 decision on appeal, the Board denied an initial disability rating greater than 50% for PTSD and an effective date earlier than November 16, 2012, for the award of SMC(s). R. at 5-19. Regarding the PTSD rating, the Board incorporated by reference factual background from its January 2019 decision; acknowledged evidence from Dr. Liss, Mr. Schwab, and Mrs. Schwab; explained what symptoms and functional impairments were shown by the medical and lay evidence of record; discussed Dr. Liss's evaluation of passive suicidal ideation; and explained why it found that Mr. Schwab's overall disability picture more closely approximated the 50% rating rather than a higher rating. R. at 9-12.[3] Regarding SMC(s), the Board concluded that an effective date earlier than November 16, 2012, was not warranted because it found that Mr. Schwab's PTSD alone did not warrant a TDJU. R. at 15-17.

II. ANALYSIS

The Court reviews the Board's findings of fact, including the Board's determinations concerning the probative value of the evidence, under the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); Hickson v. Shinseki, 23 Vet.App. 394, 404 (2010). The Board is required to provide reasons or bases for its findings and conclusions on all material issues of fact and law presented in the record, and those reasons or bases must be adequate to enable an appellant to understand the precise basis for the Board's decision as well as to facilitate review in this Court. 38 U.S.C. § 7104(d)(1) (2020); 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 the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), off'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The Court reviews de novo the Board's legal conclusions for whether they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 38 U.S.C. § 7261(a)(3)(A).

A. Arguments Concerning Both the PTSD Rating and SMC(s)

On appeal, Mrs. Schwab argues that, as a matter of law, the Court should reverse the Board's denials because the Board did not apply the benefit of the doubt standard under 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102 (2020). And she asserts that under section 5107(b), and pursuant to the Federal Circuit's June 3, 2021, decision in Lynch v. McDonough, 999 F.3d 1391, 2021 U.S. App. LEXIS 16533 (Jun. 3, 2021), "Board decision[]making is only about classifying the evidence of record as either positive evidence or negative evidence." Appellant's Brief (Br.) at 7.[4] She further argues that the Board is prohibited from making findings of fact concerning the evidence. Id. at 7-10. She asserts that these arguments apply to both matters before this Court. Br. at 5.

In response, the Secretary urges the Court to affirm the Board's decision.

The Court is not persuaded by Mrs. Schwab's arguments.

First, Mrs. Schwab asks the Court to "determine whether the Board's reliance on the preponderance of the evidence standard of proof on both of these issue[s] is contrary, as a matter of law, to the only standard of proof applicable to adjudications for VA benefits" and that the only applicable standard of proof is the benefit of the doubt standard. Br. at 5; Reply (Rep.) Br. at 3.

The benefit of the doubt rule under subsection 5107(b) states 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." 38 U.S.C. § 5107(b); see 38 C.F.R. § 3.102 (2020). In Ortiz v. Principi, the Federal Circuit interpreted section 5107(b) and § 3.102 to determine "whether the benefit of the doubt rule can be applied in cases in which the Board finds that a preponderance of the evidence is against the veteran's claim for benefits." 247F.3d 1361, 1364-66 (Fed. Cir. 2001). The Federal Circuit in Ortiz held that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant." Id. at 1364.

Then, in Lynch v. McDonough, the Federal Circuit discussed Ortiz and noted an argument analogous to Mrs. Schwab's:

As to whether Ortiz correctly concluded that the benefit-of-the-doubt rule does not apply when "the preponderance of the evidence is found to be against the claimant," 274 F.3d [1361, 1364 (Fed. Cir. 2001)], Mr. Lynch argues that Ortiz was wrongly decided because "the totality of the . . . evidence can both preponderate in one direction and be nearly or approximately in balance," .... Mr. Lynch contends that "these two standards cannot co-exist" . . .

21 F.4th 776, 2021 U.S. App. LEXIS 37307, *10 (Dec. 17, 2021). The Federal Circuit held:

Ortiz correctly established that the benefit-of-the-doubt rule does not apply when a factfinder is persuaded by the evidence to make a particular finding. See 274 F.3d at 1365-66. And Ortiz made clear that, under its formulation, a finding by "the preponderance of the evidence" reflects that the Board "has been persuaded" to find in one direction or the other. 274 F.3d at 1366. . . . [T]o eliminate the potential for confusion going forward, we depart from Ortiz's "preponderance of the evidence" language and determine that the benefit-of-the-doubt rule simply applies if the competing evidence is in "approximate balance," which
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