08-31 592
08-31 592
| Board of Vet. App. | Jun 30, 2016Background
- Veteran served May 2002–July 2007; injuries from a July 2006 IED blast with loss of consciousness and ongoing post‑traumatic headaches.
- Service connection initially granted (headaches and major depressive disorder), later PTSD was service‑connected and combined with depression.
- Appeals challenge increased ratings: for post‑traumatic headaches (seek >10% pre‑June 23, 2015 and >30% after) and for major depressive disorder/PTSD (seek >30%).
- Multiple VA exams (2007, 2011, June 2015) and treatment records show recurrent prostrating headaches; 2015 exam noted prostrating headaches about once per month and not causing severe economic inadaptability.
- Board found headaches meet criteria for 30% (monthly prostrating attacks) but not 50% (very frequent, prolonged, severe economic inadaptability); psychiatric claim remanded for another exam that addresses combined depression and PTSD.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rating for post‑traumatic headaches (period before and after June 23, 2015) | Headaches are more severe and prostrating, warranting a rating higher than 10% (pre‑6/23/15) and higher than 30% (after 6/23/15); interfere with work | VA/RO relied on VA examinations and treatment records showing prostrating attacks ~monthly and no evidence of very frequent, prolonged attacks causing severe economic inadaptability | Granted 30% for headaches prior to June 23, 2015; denied rating in excess of 30% for the entire appeal period (no 50% entitlement) |
| Rating in excess of 30% for major depressive disorder, to include PTSD | Veteran sought higher rating (>30%) for combined psychiatric conditions | VA psychiatric exam (June 2015) failed to consider already‑service‑connected PTSD; exam findings therefore inadequate | Claim REMANDED for new psychiatric examination and additional development to evaluate combined major depressive disorder and PTSD |
Key Cases Cited
- Fenderson v. West, 12 Vet. App. 119 (1999) (use contemporaneous evidence to assess initial rating and permit staged ratings for later change)
- Thun v. Peake, 22 Vet. App. 111 (2008) (steps for extraschedular rating consideration)
- Reonal v. Brown, 5 Vet. App. 458 (1993) (medical opinion based on inaccurate factual premise has no probative value)
- Sanders v. Nicholson, 487 F.3d 881 (2007) (VCAA notice defects not prejudicial where essential fairness unaffected)
- Johnson v. McDonald, 762 F.3d 1362 (2014) (extraschedular rating may be warranted for combined effect of multiple conditions in exceptional cases)
- Rice v. Shinseki, 22 Vet. App. 447 (2009) (TDIU may be part and parcel of a claim for increased rating)