09-40 573
09-40 573
| Board of Vet. App. | Feb 2, 2017Background
- Veteran served on active duty Aug 1965–Aug 1969 and appealed VA RO decisions regarding PTSD rating and TDIU beginning from a Sep 2008 RO decision.
- Originally rated 50% for PTSD; RO increased rating to 70% effective Aug 10, 2015; appeal continued to Board.
- Board remanded in Feb 2016 for development; VA complied (exams in 2008 and Aug 2015, treatment/SSA records obtained).
- Medical and treatment records show longstanding PTSD symptoms: irritability/unprovoked anger, social avoidance/isolation, sleep disturbance, impaired concentration; GAFs ~50–55.
- VA examiners (2008, 2015) found symptoms would limit work to positions with minimal public contact; evidence shows conflicts at last employment prior to retirement in 2002.
- Board found symptoms produced occupational and social impairment with deficiencies in most areas (70% criteria) but not total impairment (100%); evidence in equipoise on unemployability, resolving doubt in veteran’s favor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PTSD rating should exceed 50% (and exceed 70% after Aug 10, 2015) | PTSD symptoms cause severe occupational/social impairment warranting >50% and possibly 100% | RO maintained 50% (later 70% effective Aug 10, 2015); symptoms not total occupational/social impairment | Granted 70% for entire appeal period; not entitled to >70% or 100% |
| Whether veteran is entitled to TDIU based on service‑connected PTSD | PTSD prevents securing/following substantially gainful employment given conflicts, sleep/concentration issues | Evidence mixed; examiners indicated limited types of work may be possible; ultimate TDIU determination is adjudicative | Granted TDIU for entire appeal period because evidence is in equipoise and doubt resolved for veteran |
Key Cases Cited
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (adequacy of VA examinations)
- Stegall v. West, 11 Vet. App. 268 (1998) (requirement of compliance with Board remand directives)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit of the doubt doctrine)
- Thun v. Peake, 22 Vet. App. 111 (2008) (extraschedular rating and general rating criteria scope)
- Geib v. Shinseki, 733 F.3d 1350 (2013) (ultimate TDIU determination is adjudicative, not medical)
- Gonzales v. West, 218 F.3d 1378 (2000) (Board need not discuss every piece of evidence)