Randall D. REIZENSTEIN, Appellant, v. James B. PEAKE, M.D., Secretary of Veterans Affairs, Appellee.
No. 06-1925.
United States Court of Appeals for Veterans Claims.
Argued May 20, 2008. Decided July 16, 2008.
22 Vet. App. 202
IV. CONCLUSION
Upon consideration of the foregoing analysis, the record on appeal, and the parties’ pleadings, the April 28, 2006, Board decision is AFFIRMED.
Kenneth M. Carpenter, of Topeka, Kansas, for the appellant.
Thomas E. Sullivan, with whom Paul J. Hutter, Acting General Counsel; R. Randall Campbell, Assistant General Counsel; and Gayle E. Strommen, Deputy Assistant General Counsel; were on the brief, all of Washington, D.C., for the appellee.
Before HAGEL, LANCE, and DAVIS, Judges.
HAGEL, Judge:
This case is before the Court to resolve the question of whether
Randall D. Reizenstein, through counsel, appeals a March 7, 2006, Board of Veterans’ Appeals (Board) decision that (1) denied entitlement to an initial disability rat-
I. FACTS
Mr. Reizenstein served on active duty in the U.S. Marine Corps from May 1968 to May 1970, including service in Vietnam. R. at 2; see also R. at 116. He also served in the U.S. Army from November 1974 to July 1977, and in the U.S. Navy from December 1980 to February 1981. Id.
In October 1996, he filed a claim for VA compensation for post-traumatic stress disorder. R. at 23. In December 1996, he underwent a VA “post-traumatic stress disorder exam,” although that examination focused mainly on his claim for a back condition. R. at 49-51. The examination gave an “impression” of post-traumatic stress disorder. R. at 51. A private physician examined Mr. Reizenstein in December 1996, at the request of VA, and gave a diagnosis of alcohol abuse, major depression, and mixed personality disorder with antisocial features, and assigned a Global Assessment of Functioning score of 50.1 R. at 48. Also in December 1996, another private physician, again on referral from VA, examined Mr. Reizenstein and diagnosed chronic post-traumatic stress disorder, and alcohol and polysubstance abuse, and assigned a Global Assessment of
In March 1998, Mr. Reizenstein was admitted to the Grand Junction, Colorado, VA medical center “Psychiatry Service” with an “initial impression” of alcohol intoxication, hallucinations, dysthymia,2 hypertension, and post-traumatic stress disorder. R. at 135. He remained in the hospital for four days, and upon discharge was diagnosed with, among other conditions, alcohol dependence, “post-traumatic stress disorder by history,” dysthymia, and personality disorder. R. at 134. The discharge report reveals “[h]allucinations, visual, with alcohol only; auditory with alcohol only.” Id. Mr. Reizenstein was assigned a Global Assessment of Functioning score of “current 31, highest is 41.” Id.
In August 1998, Mr. Reizenstein, through counsel, filed a Notice of Disagreement with the August 1997 regional office decision. R. at 140-45. In April 1999, the regional office issued a rating decision granting service connection for post-traumatic stress disorder and assigning a 30% disability rating effective November 7, 1996. R. at 153-56. The regional office stated that it was resolving doubt about the origin of Mr. Reizenstein‘s condition in his favor. R. at 154-55. In June 1999, Mr. Reizenstein filed a Notice of Disagreement with the assigned disability rating. R. at 164-66.
In an October 1999 rating decision and an October 2000 Statement of the Case, the regional office continued the 30% disability rating, and in June 2001, the Board denied entitlement to a higher initial disability rating. R. at 178-80, 191-200, 246-54. Mr. Reizenstein appealed and, in October 2002, this Court granted a joint motion for remand in order for the Board to provide an adequate discussion of Mr. Reizenstein‘s entitlement to staged ratings. R. at 258, 261.
In May 2003, the Board remanded Mr. Reizenstein‘s claim for compliance with the
In May 2004, Mr. Reizenstein underwent a psychiatric examination performed by a private physician at the request of VA. R. at 347-50. That physician had also examined Mr. Reizenstein in December 1996. The examiner stated:
[Mr. Reizenstein‘s] current [Global Assessment of Functioning score] [of 60] is now free of contributions from alcohol and drug abuse and reflects only the ongoing sequelae of the [post-traumatic stress disorder], which in his case is primarily social impairment. . . . Occupationally he is not impaired at all and in fact has held his current job for the last 16 years and maintains that he likes it and functions well at it. The social impairment is his tendency to remain withdrawn and really socialize primarily with other veterans. He tends to shop at night to avoid people and has had difficulty maintaining long term relationships given his past three divorces. . . . Given the fortuitous coincidence that I had seen Mr. Reizenstein for Social Service [seven-and-a-half] years ago, it be-
R. at 350.
In December 2004, and again in July 2005, the regional office issued Supplemental Statements of the Case denying entitlement to an initial disability rating in excess of 30%. R. at 356-66, 400-02. Mr. Reizenstein appealed to the Board.
In March 2006, the Board issued the decision on appeal in which it denied entitlement to an initial disability rating in excess of 30%; granted a 50% disability rating from December 2, 1996, to March 21, 1998; granted a temporary total disability rating from March 22, 1998, to May 5, 1999; and denied a disability rating in excess of 30% from May 6, 1999. R. at 1-17. The Board granted the temporary total disability rating because “when [Mr. Reizenstein] was admitted to the hospital [in March 1998], it appears that [his] [Global Assessment of Functioning score] became more severe.” R. at 15. Further, the Board stated:
Though the attendant treatment record does not indicate a discharge diagnosis of [post-traumatic stress disorder] and instead renders a primary diagnosis of alcohol dependence, it is noted that the May 2004 examination report did not exclude the possibility that the [Global Assessment of Functioning] score of 31 [in the hospital discharge report] was in part due to [his] [post-traumatic stress disorder] symptomatology.
Id. The Board therefore resolved any doubt in Mr. Reizenstein‘s favor and granted a temporary total disability rating from March 22, 1998. Id. The Board next relied on a May 6, 1999, VA treatment note to find that, as of that date, “the severity of symptomatology had abated.” Id. Based on that treatment note and records from that time forward, the Board determined that Mr. Reizenstein was only entitled to a 30% disability rating from that date. R. at 15-17.
On appeal, Mr. Reizenstein argues that the Board provided an inadequate statement of reasons or bases for its assignment of disability ratings less than 100%, and for its assignment of an effective date of March 22, 1998, for the 100% disability rating. Appellant‘s Brief (Br.) at 6. Further, he argues that the Board reduced his temporary total disability rating without complying with the requirements of
In his brief, the Secretary states that Mr. Reizenstein‘s claim should be remanded because the Board provided an inadequate statement of reasons or bases, in that it failed to address the applicability of
On May 27, 2008, after oral argument, the Court issued an order requesting a memorandum of law from the Secretary regarding the regulatory history of
In response, Mr. Reizenstein contends that the Secretary has not addressed the issue of regulatory history raised by the Court in its May 27, 2008, order, because there is no regulatory history regarding the applicability of
II. ANALYSIS
A. Applicability of 38 C.F.R. § 3.343(a) to Staged Ratings
When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson, 12 Vet.App. at 126 (noting that staged ratings are assigned at the time an initial disability rating is assigned). Section 3.343(a) of Title 38, Code of Federal Regulations, provides: “Total disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical, or home treatment, or individual unemployability[,] will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition.” The Court is asked to determine whether
Although Mr. Reizenstein is correct that staged ratings have only been in existence since the Court‘s 1999 decision in Fenderson, some version of what became
The regulatory history provided by the Secretary indicates that Congress‘s purpose in enacting the
5. Continuance of total disability ratings heretofore made.
Total disability ratings made pursuant to the criteria established under the prior general and service pension laws, the
War Risk Insurance Act , as amended, or theWorld War Veterans Act, 1924 , as amended, for pension or disability compensation purposes, when warranted by the severity of the condition, and not granted purely because of hospitalization or home treatment, . . . will not be reduced, in the absence of clear error, without physical examination showing material improvement in physical condition.
(Mar. 27, 1934).
The Court agrees with the Secretary that the caption and text of this Instruction, which eventually became
Here, the Board sought to ensure that Mr. Reizenstein was properly compensated for the varying severity of his condition during the pendency of his appeal of his initial disability rating by undertaking a complete review of the evidence to determine the appropriate disability ratings and the correct effective periods for those ratings. At the time of the Board‘s March 2006 decision, Mr. Reizenstein was in receipt of only a 30% disability rating for post-traumatic stress disorder. The Board‘s decision entitled him to “back pay” for the periods during which the Board determined that a 50% disability rating and a temporary total disability rating were warranted. His was not a situation in which he was in receipt of a particular level of compensation for a period of time and the Board‘s decision abruptly reduced the amount of compensation he was receiving without warning or evidence that his condition had improved. In short, Mr. Reizenstein is not a member of the class of veterans that Congress and VA sought to protect with
In O‘Connell, the Court was asked to determine whether
[The appellant] would have us compel VA to first assign the higher disability rating and then halt adjudication in order to issue a proposed reduction and provide the veteran with 60 days in which to submit additional evidence. Because . . . such procedure would not further the underlying purpose of [the regulation at issue], we refuse to compel it in the situation at hand.
O‘Connell, 21 Vet.App. at 93. The Court explained that the purpose underlying
Because staged ratings, such as those the Board assigned in this case, are retrospective in nature, and because
B. Reasons or Bases
Mr. Reizenstein‘s remaining arguments pertain to the Board‘s statement of rea-sons or bases for its decision. He argues that the Board did not adequately explain its reasons for denying entitlement to (1) an initial disability rating in excess of 30% for the period of November 7, 1996, to December 1, 1996; (2) a disability rating in excess of 50% for the period of December 2, 1996, to March 21, 1998; (3) a disability rating in excess of 30% for the period beginning May 6, 1999; and (4) an effective date earlier than March 22, 1998, for a temporary total disability rating. The Court disagrees.
In rendering its decision, the Board is required to provide a written statement of the reasons or bases for its “findings and conclusions[] on all material issues of fact and law presented on the record.”
The Board thoroughly outlined the rating schedule for post-traumatic stress disorder and recounted the evidence of record. With respect to the initial disability rating of 30%, assigned for the period of
Regarding the 50% disability rating assigned for this period, the Board determined that there was no evidence that Mr. Reizenstein had “illogical, obscure and irrelevant speech, unprovoked irritability with periods of violence, or spatial disorientation,” as required to substantiate a disability rating of 70%. R. at 15; see also
As of May 6, 1999, the Board determined that Mr. Reizenstein was not entitled to a disability rating in excess of 30%. The Board found that the severity of his post-traumatic stress disorder symptomatology had abated, in that various treatment records indicated that he did not have suicidal or homicidal ideation; he was generally well-groomed; he did not evidence any impaired judgment or memory problems; he did not have circumstantial, circumlocutory, or stereotyped speech, nor impaired abstract thinking, all of which are symptoms that could warrant a disability rating higher than 30%. R. at 15-16; see
In light of this discussion, the Court concludes that the Board‘s statement of reasons or bases for its determinations that Mr. Reizenstein was not entitled to an initial disability rating in excess of 30% for the period of November 7, 1996, to December 1, 1996, nor to a disability rating in
The Court finds Mr. Reizenstein‘s argument with respect to the effective date of his temporary total disability rating to be unpersuasive. He contends that the evidence on which the Board relied in granting a temporary total disability rating as of March 22, 1998, correctly supports an effective date for that rating of March 22, 1997. He bases his argument on the March 1998 hospital discharge report that states that his Global Assessment of Functioning score was “currently 31, highest is 41.” R. at 134. He argues that this statement indicates that his highest score in the past year was 41, which warrants a 100% disability rating effective one year earlier than the date of his admission to the hospital. However, the plain reading of that statement does not support his argument. Further, as the Board explained in its decision, it based its assignment of a temporary total disability rating on Mr. Reizenstein‘s admission to the hospital on March 22, 1998, for alcohol detoxification, and noted that it was then that his Global Assessment of Functioning score had become “more severe.” R. at 15. The Board noted that the hospital discharge reported revealed a primary diagnosis of alcohol dependence, but gave Mr. Reizenstein the benefit of the doubt, based on the May 2004 examination, that his score of 31 at the time of his hospitalization was related to his post-traumatic stress disorder. Id. The Court concludes that the Board provided adequate reasons or bases for assigning March 22, 1998, as the effective date for a temporary total disability rating. See Gilbert, 1 Vet.App. at 57. Accordingly, the Court will affirm the March 2006 Board decision.
III. CONCLUSION
In consideration of the foregoing, the March 7, 2006, Board decision is AFFIRMED.