06-38 935
06-38 935
| Board of Vet. App. | Jan 31, 2017Background
- Veteran served 1959–1972 with Vietnam service; awarded service connection for PTSD in Aug 2005 (RO implemented in Sept 2005) with an initial 10% rating effective Sept 9, 2002.
- Veteran filed a NOD in May 2006 and a VA Form 9 in Oct 2006 challenging rating and effective date; separate SOCs issued Oct and Dec 2006 addressing rating and earlier effective-date claim.
- RO later increased PTSD ratings: 30% effective Apr 24, 2006 (May 2009) and 50% effective Aug 21, 2007 (June 2016); RO combined PTSD with neuropsychiatric manifestations of Parkinson’s and granted 70% from May 24, 2013 and 100% from Mar 5, 2015.
- Record contains VA and private treatment records, multiple VA psychiatric examinations (2004, 2009, 2015) and a Board hearing (Feb 2008); VA examined neurocognitive decline after stroke/PD events in 2013.
- Board found symptom profiles supported staged ratings: 30% from Sept 9, 2002–Apr 24, 2006; 50% from Aug 21, 2007–May 24, 2013; and 100% for combined neuropsychiatric impairment due to Parkinson’s disease and PTSD from May 24, 2013; also found the Veteran did not timely perfect a substantive appeal regarding the Sept 2005 effective date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Higher initial/subsequent ratings for service‑connected PTSD (various periods) | PTSD symptoms warrant ratings higher than assigned (seek staged/higher ratings and TDIU) | Evidence does not show symptoms meeting criteria for higher schedular ratings prior to May 24, 2013 | Granted 30% from 9/9/2002–4/24/2006; denied >30% for 4/24/2006–8/21/2007; denied >50% for 8/21/2007–5/24/2013. |
| 2) Rating greater than 70% for combined neuropsychiatric impairment (May 24, 2013–Mar 5, 2015) | Combined Parkinson’s neuropsychiatric decline + PTSD produces total occupational and social impairment meriting 100% | Scheduler criteria analyzed; evidence of delirium, dementia, impaired ADLs supports highest rating | Granted 100% rating for neuropsychiatric impairment due to Parkinson’s disease and PTSD from 5/24/2013 to 3/5/2015. |
| 3) Timeliness of substantive appeal re effective date (Sept 9, 2002) | Veteran argues for earlier effective date; contends appeals were perfected | AOJ/Board: no timely substantive appeal or extension filed within 60 days after Dec 22, 2006 SOC; law dispositive | Denied — Board found no timely substantive appeal as to the Dec 2006 SOC, so appeal on effective-date issue was not perfected. |
| 4) Entitlement to TDIU due to PTSD prior to May 24, 2013 (including extra‑schedular) | Veteran seeks TDIU for period before 5/24/2013, arguing unemployability from PTSD | AOJ had not adjudicated TDIU; Board finds record insufficiently developed for final decision and PTSD ratings prior to 5/24/2013 do not meet schedular TDIU thresholds | REMANDED to AOJ for initial adjudication of TDIU (including extra‑schedular consideration) for 9/9/2002–5/24/2013. |
Key Cases Cited
- Fenderson v. West, 12 Vet. App. 119 (distinguishing initial‑rating claims from increases after service connection)
- Rice v. Shinseki, 22 Vet. App. 447 (permitting Board to expand appeal to include TDIU raised during proceedings)
- Vazquez‑Claudio v. Shinseki, 713 F.3d 112 (symptom‑driven analysis under 38 C.F.R. § 4.130)
- Mauerhan v. Principi, 16 Vet. App. 436 (rating criteria examples; non‑exhaustive symptom lists)
- Percy v. Shinseki, 23 Vet. App. 37 (VA waiver of timeliness objection when VA’s actions lead appellant to believe appeal was perfected)