**UNITED STATES COURT OF VETERANS APPEALS**

No. 93-135

[Neil S. Massey, Appellant,]{.smallcaps}

v\.

[Jesse Brown,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Argued August 8, 1994Decided December 6, 1994 )

*Ronald L. Smith* for the appellant. *C. Larry O\'Rourke* entered an
appearance.

*R. Randall Campbell*, Deputy Assistant General Counsel, with whom *Mary
Lou Keener*, General Counsel, *Norman G. Cooper*, Assistant General
Counsel, and *Deborah W. Singleton*, were on the brief, for the
appellee. *Adrienne Koerber*, Deputy Assistant General Counsel, entered
an appearance.

Before NEBEKER, *Chief Judge*, and MANKIN and STEINBERG, *Judges*.

MANKIN, *Judge*: Neil S. Massey (appellant) appeals an October 28, 1992,
decision of the Board of Veterans\' Appeals (BVA or Board) denying
entitlement to an increased rating for a neurosis currently rated at 10%
disabling. The appellant claims the BVA erred and its decision should be
reversed because the relevant evidence in the record compels that he is
entitled to a 30% disability rating under the benefit of the doubt rule.
However, the Secretary urges remand for the Board to develop further the
reasons or bases for its conclusion. The Court will vacate the decision
of the Board and remand the matter for further development and
readjudication.

**I. Factual Background**

The appellant served in the United States Navy from July 15, 1942, to
August 9, 1944. He is currently service connected for psychoneurosis
rated at 10% disabling under 38 C.F.R. § 4.132, Diagnostic Code (DC)
9405 (1993). The present degree of disability was assigned by a rating
decision dated March 23, 1976, designating an effective date of November
18, 1975, and a service connection date of April 1, 1946, and granting a
0% disability rating from April 1, 1946, to November 18, 1975. The
appellant has also apparently been found permanently and totally
disabled for non-service-connected pension. In July 1987, the appellant
requested an increased rating due to an increase in the severity of his
psychoneurosis. In support of his claim, he submitted a letter from W.C.
Harvey, Jr., M.D., stating that he demonstrated increased inflexibility,
required more medication, and was having greater difficulty in coping
with his underlying disabilities affecting walking, standing, and
sitting. Dr. Harvey recommended that he be evaluated by VA for a 30%
rating.

The record further discloses that the appellant was examined by Dr.
Robert C. Calkins, a private psychiatrist, on April 30, 1987. Dr Calkins
found that he

> talked incessantly and ruminated about what a \"bad deal\" he\'s
> getting. Mood and affect was paranoid, depressed, agitated and
> markedly angry. Intelligence appears low average. Insight and judgment
> is poor. Sensorium is clear and he is oriented times three.
> Calculations are poor and abstract thinking is extremely concrete.

Under Axis I Dr. Calkins diagnosed the appellant with dysthymic
disorder, and under Axis II he diagnosed him as paranoid, with
passive-aggressive personality disorder. (At the time of the April 30,
1987, examination, Axis I was defined as \"Clinical Syndromes,
Conditions Not Attributable to a Mental Disorder That Are a Focus of
Attention or Treatment, and Additional Codes.\" [American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders:
DSM-III]{.smallcaps} 23 (3d ed. 1980). Axis II was defined as
\"Personality Disorders and Specific Developmental Disorders.\" *Id*.
\"Axes I and II comprise the entire classification of mental disorders
plus Conditions Not Attributable to a Mental Disorder That Are a Focus
of Attention or Treatment.\")

The appellant was also examined by a VA psychiatrist, Dr. Nellie T.
Anosa, on August 18, 1987. The examination was specifically limited to
an examination of his service-connected psychoneurosis. Dr. Anosa
concluded:

> Mental status examination shows a male who is ambulatory, . . . alert
> and coherent and appears to be of average intelligence, no evidence of
> any Psychosis; affect and mood were appropriate. Memory was
> unimpaired, there were no delusional ideas expressed. Impression is
> anxiety neurosis, veteran is in my opinion competent for VA purposes.

The appellant submitted a statement from Anne E. Talbot, R.N., M.S.,
C.S., a psychotherapist, dated in February 1988. This psychotherapist
stated:

> \[The appellant\] has asked me to write a report recommending that he
> be evaluated as 50% psychiatrically disabled.
>
> While it is not my prerogative to specify a disability determination,
> I will state that \[the appellant\] does present with serious
> impairment of his ability to establish and maintain effective or
> favorable relationships with people . . . . This disorder results in
> markedly limited social and occupational functioning.

Ms. Talbot also agreed with Dr. Calkin\'s April 30, 1987, opinion that
the appellant has a \"significant personality disorder.\"

A second VA psychiatric examination was conducted on September 26, 1988,
by Dr. J. Babin. Dr. Babin found that the appellant had

> \[n\]o thought disorder\--speech clear\--\[the appellant\] describes
> \[a\] phobia re\[garding\] water since his grandson\'s death \[due to
> drowning\]\--(he identified \[the\] body)\--has an obsession
> re\[garding\] being impotent because of having a steel washer loose in
> his hip socket\--No aud\[itory\]/visual halluc\[inations\], paranoia
> or any symptoms of psychosis\--describes general anxiety state \[and\]
> easy irritability\--not suic\[idal\]/hom\[icidal\]\--cognitive ability
> . . . \[recent\] memory . . . impaired . . . past memory
> adequate\--poor abstract thought. Tends to be concrete in
> thinking\--\[the appellant\] is competent for VA purposes.

He was diagnosed on Axis I as having general anxiety disorder, phobia of
water, and obsessive thought about impotency. He was diagnosed as having
no Axis II condition; i.e., no personality disorder was found. This
finding conflicts with the findings of Dr. Calkin\'s April 30, 1987,
examination and Ms. Talbot\'s March 22, 1988, examination. It appears,
however, to be in accord with the prior VA examination by Dr. Anosa on
August 18, 1987.

In a rating decision dated December 6, 1988, the VA regional office (RO)
denied the appellant\'s claim for an increased rating. The decision
based the denial on the September 26, 1988, examination and stated: \"VA
exam shows \[that the veteran\] describes phobia about water since his
grandson\'s death. He has easy irritability \[and\] general anxiety
state. He tends to be concrete in his thinking. There was no thought
disorder \[and\] speech was clear.\"

The appellant filed his Notice of Disagreement as to this decision on
January 31, 1989. Thereafter, he submitted a statement from Mr. Martin
R. Gordon, dated June 15, 1989. Mr. Gordon stated that he had personally
observed that the symptoms of the appellant\'s condition had grown worse
over time: \"I noticed that \[the appellant\] was getting worse, he
would fly off the handle for no reason and get so upset he would get
sick and have to go bed.\"

The appellant appeared at a personal hearing on appeal on August 6,
1990. He testified under oath, \"I\'m very irritable, it\'s hard for me
to get . . . along with anybody and I guess you can call me a loner but
the first little thing will set me off.\" He also stated that his
condition has made him so irritable that he has struck others, and that
his level of anxiety has caused him to discontinue activities outside of
his home or with others. One of his representatives testified that the
appellant had been treated by Dr. Pete Johnson. On October 25, 1990, the
hearing officer confirmed and continued the 10% rating.

The Board then remanded the case to the RO, based upon an issue not here
on appeal\--entitlement to benefits due to disablement by treatment or
vocational rehabilitation, 38 U.S.C. § 1151. After the RO addressed the
remanded issue, the Board addressed the appellant\'s claim for an
increased rating for neurosis. The Board found that the evidence of
record did not indicate that the appellant\'s symptomatology as
manifested by his service-connected psychoneurosis satisfied the
criteria for a rating in excess of 10% disabling. The Board determined:

> On mental status examination \[in September 1987\], the \[appellant\]
> was both alert and coherent, with no evidence of psychosis. Both his
> affect and mood were appropriate, and his memory was unimpaired. As of
> the time of a more recent VA psychiatric examination in September
> 1988, the \[appellant\] stated that he had been depressed \"off and
> on\" for a period of years following the death of his grandson . . . .
> On further evaluation at the September 1988 examination, the
> \[appellant\] gave no history of hospitalization for his
> service-connected psychiatric disability. Mental status examination
> disclosed no evidence of any thought disorder . . . . The
> \[appellant\'s\] cognitive ability and recent memory were somewhat
> impaired. Past memory was adequate, and there was some evidence of
> poor abstraction ability, as evidenced by the \[appellant\'s\]
> tendency to be somewhat concrete in his thinking.

This appeal followed.

**II. Analysis**

*A. Claim for Increased Rating*

The appellant contends that the Board\'s October 28, 1992, decision
should be reversed because the relevant evidence in the record indicates
that he is entitled to a 30% disability rating under the benefit of the
doubt rule in 38 U.S.C. § 5107(b). He argues that the benefit of the
doubt rule must be applied \"every time the Board makes a material
determination in a case.\" Appellant\'s Brief at 10. On the contrary, as
this Court held in *Gilbert v. Derwinski*, 1 Vet.App. 49, 53-56 (1990),
section 5107(b) expressly provides that this rule must be applied only
when the evidence is in relative equipoise. *See* *also* *Hayes v.
Brown*, 5 Vet.App. 60, 69-70 (1993).

In this instance, however, we are unable to determine whether the
benefit of the doubt rule was rejected properly because the Board failed
to apply the relevant regulation, 38 C.F.R. § 4.132, Diagnostic Code
(DC) 9405 (1993). We recognize that the regulatory framework under which
the Board must operate frequently presents \"a confusing tapestry for
the adjudication of claims.\" *Hatlestad v. Derwinski*, 1 Vet.App. 164,
167 (1991) (unemployability of particular claimant); *see also* *Hood v.
Brown*, 4 Vet.App. 301, 303 (1993) (explanation of reasons or bases
regarding claim under DC 9405). Indeed, the schedule of ratings for
psychoneurotic disorders under DC 9405 in 38 C.F.R. § 4.132 does not
present a clear basis for describing the degree of impairment. *See
Hood*, 4 Vet.App. at 303.

Due to the lack of clarity in the § 4.132 diagnostic codes (DCs), the
Board\'s conclusions regarding a claimant\'s degree of impairment \"must
be justified by a clear statement of reasons or bases and not by the
equivalent of \'because I say so.\'\" *Id*. Before the Court can
determine whether the Board has provided an adequate statement of
reasons or bases, however, the Court must assess whether the Board has
applied correctly the provisions of DC 9405. In this instance, we find
as a matter of law that the Board has not correctly applied the relevant
regulation.

The diagnostic code under which the appellant\'s condition was rated, DC
9405, states: \"Dysthymic disorder; Adjustment disorder with depressed
mood; Major depression without melancholia.\" 38 C.F.R. § 4.132, DC
9405. The appellant is currently rated as 10% disabled and seeks an
increased rating. The next higher rating is 30%, the criteria for which
are \"Definite impairment in the ability to establish or maintain
effective and wholesome relationships with people. The psychoneurotic
symptoms result in such reduction in initiative, flexibility, efficiency
and reliability levels as to produce definite industrial impairment.\"
38 C.F.R. § 4.132 (General Rating Formula for Psychoneurotic Disorders,
following DC 9411).

The Board found that the appellant \"was both alert and coherent, with
no evidence of psychosis.\" The Board further found that \"his affect
and mood were appropriate, and his memory was unimpaired.\" It indicated
that \"the \[appellant\] gave no history of hospitalization\" and a
\"\[m\]ental status examination disclosed no evidence of any thought
disorder.\" The Board also found that his \"cognitive ability and recent
memory were somewhat impaired.\" Finally, the Board found that
\"\[p\]ast memory was adequate, and there was some evidence of poor
abstraction ability, as evidenced by the \[appellant\'s\] tendency to be
somewhat concrete in his thinking.\"

At the outset we note that these findings, except with respect to
capacity for abstract thought, generally appear not to relate to the
rating criteria set out for DC 9405. There is no discussion of the
impairment or absence of the ability to establish and maintain
relationships. There is no discussion of the reduction in or absence of
initiative, efficiency, or reliability levels so \"as to produce
definite industrial impairment.\"

Rather, the Board\'s findings relate to rating criteria which are almost
entirely outside the DC 9405 criteria. The rating criteria require no
findings as to alertness, coherence, evidence of psychosis, affect,
mood, or memory. Nevertheless, the Board found discussion of these
factors to be probative. For example, the Board found persuasive the
fact that the appellant had not been hospitalized for his disability and
showed \"no evidence of psychosis.\" Yet, nowhere in the rating formula
is there any requirement regarding hospitalization or psychosis. On the
other hand, the Board determined that there was \"some evidence of poor
abstraction ability, as evidenced by the \[appellant\'s\] tendency to be
somewhat concrete in his thinking.\" Although abstraction ability and
concrete thinking appear to relate to the DC 9405 criterion of lack of
\"flexibility,\" the Board was clearly erroneous in its conclusion that
the appellant was \"somewhat concrete in his thinking.\" To the
contrary, the only evidence of record showed that the appellant\'s
\"abstract thinking is extremely concrete\", that he has \"poor abstract
thought,\" and that he \"tends to be concrete in thinking\". We thus
reverse that conclusion. *See* 38 U.S.C. § 7261(a)(4) (Court to reverse
\"clearly erroneous\" findings of the Board).

The Board\'s consideration of factors which are wholly outside the
rating criteria provided by the regulations is error as a matter of law.
*Pernorio v. Derwinski*, 2 Vet.App. 625, 628 (1992). \"In using a
standard that exceeded that found in the regulation, the Board committed
legal error.\" *Id*. Therefore, the case will be remanded for the Board
to be readjudicated under the correct DC criteria.

On remand, the Board may obtain a new psychiatric examination if the
examination will aid the Board in making an informed decision. However,
since the appellant\'s claim relates to an increase in his disability
claimed originally in 1987, the Board must limit the examination to the
symptoms present after 1987 and before August 6, 1990, the date of the
RO hearing. In conducting an examination, the examining physician must
take into account the records dating prior to 1987 and compare them to
the records and symptoms regarding the appellant\'s condition between
1987 and August 6, 1990. *See* *Green v. Derwinski*, 1 Vet.App. 121, 124
(1991). If the psychiatric examiner is unable to determine the symptoms
present during that 1987-90 period, the Board must decide the question
of the 1987-88 disability rating on the basis of the current records.
Furthermore, if the psychiatric examination does not provide any
information regarding the appellant\'s symptoms from 1987 to August 6,
1990, and the Board nonetheless elects to use it in providing its
reasons or bases for again denying the appellant\'s claim, the Board
must provide the justification for its reliance on the examination.

We note that the appellant has presented a well-grounded claim for a
rating increase. 38 U.S.C. § 5107(a); *see* *Proscelle v. Derwinski*, 2
Vet.App. 629 (1992). The VA has a duty to assist a veteran to develop a
claim that is well grounded. 38 U.S.C. § 5107(a); 38 C.F.R. 3.159
(1993); *see* *Littke v. Derwinski*, 1 Vet.App. 90 (1990). The duty to
assist is neither optional nor discretionary, and includes the duty to
assist a claimant to obtain records pertinent to his claim. *Littke*, 1
Vet.App. at 92. Here, the appellant submitted a statement from Dr.
Harvey indicating that he was treating the appellant and one of the
appellant\'s representatives testified that the appellant had been
treated by Dr. Pete Johnson. Such treatment records do not appear in the
record, yet they could be supportive of the appellant\'s claim. Thus,
the Board is instructed to assist the appellant in obtaining these
records. Furthermore, the record contains the sworn testimony of Mr. H.
Duane Riddle, one of the appellant\'s service representatives, before a
personal hearing board in August 1990. Mr. Riddle testified that the
appellant had been treated by Dr. Pete Johnson. On remand, the Board
must also seek to obtain any relevant records from Dr. Johnson\'s
treatment. Any such records obtained that relate to the appellant\'s
state prior to August 6, 1990, should be made available to the examiner.

*B. The Secretary\'s Authority to Assign*

*Error and Recommend Remedy*

The appellant contends that the Board\'s decision should be reversed
based upon the benefit of the doubt rule. The Secretary asserts, on the
other hand, that the case should be remanded for a more thorough
development of reasons or bases. In response, the appellant argues that
the Secretary is not empowered to raise issues which are not raised by
the appellant, and his counsel expressly eschews raising the inadequacy
of the Board\'s decision.

The appellant argues that because he is the party to file a Notice of
Appeal and frame the issues, U.S. Vet. App. R. 3 and 28(a)(3), the
Secretary\'s confession of error and suggestion of a remedy in a form
not presented by the appellant is an inappropriate expansion of the
issues. The appellant claims that this constitutes an
appeal\--\"seek\[ing\] review\"\--in this Court by the Secretary and is
specifically prohibited by this Court\'s organic legislation. 38 U.S.C.
§§ 7252(a), 7266(a).

These arguments were briefed in *Johnson v. Brown*, \_\_ Vet.App. \_\_,
No. 93-89 (Sept. 28, 1994), where the appellant\'s counsel was the same
as here. The Court held there:

> Under this broad authority \[of 38 U.S.C. § 7261(a)(1)\]\--indeed,
> mandate\--to carry out comprehensive judicial review of BVA decisions,
> the Court undoubtedly would have jurisdiction to consider those same
> Board errors if raised by the appellant or noted, sua sponte, by the
> Court itself. Hence, the fact that these errors were raised by the
> Secretary cannot deprive the Court of jurisdiction to consider them.
>
> . . . \[A\]lthough the Court does not dispute the appellant\'s
> contention that in order to seek court review a party must file an
> NOA, *see* 38 C.F.R. § 7266(a); *Griggs v. Provident Consumer Discount
> Co.*, 459 U.S. 56, 58 (1982) (per curiam); *Jurgens v. McKasy*, 905
> F.2d 382, 385 (Fed. Cir. 1990); *McCall v. Brown*, 6 Vet.App. 215, 217
> (1994) (per curiam order); *Cerullo* \[*v. Derwinski*, 1 Vet.App. 195,
> 197 (1991)\], the Court does not find merit in the appellant\'s
> arguments equating confession of errors with \"seeking review\".

*Johnson*, \_\_ Vet.App. at \_\_, slip op. at 6.

**III. Conclusion**

Upon consideration of the record, the parties\' pleadings, and their
oral arguments, the Court VACATES the October 28, 1992, decision of the
Board of Veterans\' Appeals and REMANDS the matter for further
development and readjudication consistent with this opinion.