09-25 114
09-25 114
Board of Vet. App.Jun 15, 2017Background
- The Veteran served on active duty from August 1965 to June 1969 and received a Combat Action Ribbon.
- This VA PTSD claim originated at the Pittsburgh, Pennsylvania RO and proceeded to Board review after prior remands in 2012 and 2013; hearings were held in November 2012.
- VA examinations were conducted in May 2008, May 2013, and May 2016, with GAF scores ranging from 60 to 70 across periods.
- From November 27, 2007 through December 20, 2009, the Veteran exhibited depressed mood, anxiety, sleep disturbance, and work/social impairment, leading to early retirement on December 20, 2009.
- The Board initially granted 30% for PTSD prior to December 20, 2009 and 70% after that date, finding no basis for a higher rating or for TDIU based on the evidence.
- As of May 2013 and May 2016 examinations, the Veteran was deemed unable to work due to PTSD only to the extent of preventing sustained gainful employment, but not to the level of 100% total disability; combined ratings and treatment records show continued employability considerations, and TDIU was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| PTSD rating before December 20, 2009 | PTSD warranted 30% prior to 12/20/2009 | PTSD not higher than 10% before 12/20/2009 | 30% warranted prior to 12/20/2009 |
| PTSD rating after December 20, 2009 | PTSD should be 70% after 12/20/2009 | 70% not established or higher than 70% not warranted | 70% after 12/20/2009 (not higher) |
| Entitlement to TDIU | PTSD and combined disabilities render unemployable | PTDIU not met; Veteran remains employable with treatment | TDIU denied |
Key Cases Cited
- Mauerhan v. Principi, 16 Vet. App. 436 (2002) (provides framework for evaluating symptoms to match rating criteria)
- Stefl v. Nicholson, 21 Vet. App. 120 (2007) (ensures exam adequacy and consideration of medical history)
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (competent and credible evidence standard for VA examinations)
- Stegall v. West, 11 Vet. App. 268 (1998) (remand doctrine; need to correct defects in prior development)
- Rice v. Shinseki, 22 Vet. App. 447 (2009) (claims for TDIU—not a separate claim but part of underlying disability evaluation)
- Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013) (symptom frequency/severity must align with assigned rating under 4.130)
- Van Hoose v. Brown, 4 Vet. App. 361 (1993) (unemployability analysis requires more than mere unemployment)
- Thun v. Peake, 22 Vet. App. 111 (2008) (governing norms; rating contemplates overall disability picture)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit-of-the-doubt doctrine applicability)