10-00 399
10-00 399
| Board of Vet. App. | Apr 28, 2017Background
- Veteran served Aug 1982–Aug 1992 and Feb–Aug 2003; claimed service connection for right wrist/hand/thumb and increased rating for service‑connected PTSD. RO decisions: Sept 2004 denied service connection for right thumb/hand; Mar 2007 denied reopening; Nov 2007 continued 30% PTSD rating (appeal here).
- Veteran filed NODs/withdrawals and miscellaneous filings; Board treats a Jan 2008 submission as a timely NOD for the Nov 2007 decision; appeal period considered from Sept 26, 2006 onward (one year before the Sept 26, 2007 claim).
- New post‑2007 VA and private treatment records document current right wrist/hand diagnoses (tenosynovitis, ganglion cyst, DJD) not of record at March 2007. Board finds this evidence new and material to reopen the prior denial.
- Extensive VA and private psychiatric records (2006–2016) document progressive PTSD symptoms (sleep impairment, depression, irritability, social isolation, memory/cognitive problems, occupational difficulties). Multiple examiners found occupational/social impairment of varying severity.
- Board grant: claim to reopen for right wrist remanded for orthopedics exam and nexus opinion; PTSD ratings increased and staged: 30% from Sept 26, 2006, and 70% from July 2, 2007 (no higher rating warranted).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether new and material evidence reopens right wrist/hand/thumb claim | New VA/private medical records show current right wrist/hand diagnoses linked to in‑service injury; thus reopen claim | Prior final denial (Mar 2007) stands unless new evidence meets "new and material" threshold | Reopened: new and material evidence present; claim remanded for orthopedist exam and nexus opinion |
| Entitlement to service connection for right wrist/hand/thumb | (Downstream, after reopening) Veteran alleges current disability due to in‑service injury (rope fall/hand fracture) | No current disability shown previously; needs medical nexus to service | Remanded to AOJ for development (exam, diagnoses, nexus opinion) |
| Entitlement to increased rating for PTSD (staged periods) | PTSD symptoms worsened since 2006; seeks higher staged ratings covering relevant dates | RO maintained 30% (with prior staging); VA argues evidence supports defined staged ratings but not total impairment | Granted: 30% from Sept 26, 2006; 70% from July 2, 2007. No higher (50% earlier than July 2 not supported; 100% never shown). |
| Extraschedular/TDIU entitlement | Veteran’s unusual/exceptional symptoms or inability to maintain substantially gainful employment warrant extraschedular/TDIU | Symptoms are largely contemplated by the schedule; Veteran has worked and evidence does not show inability to obtain/follow substantially gainful employment | Denied: no extraschedular referral; TDIU not raised—preponderance of evidence does not show total unemployability |
Key Cases Cited
- Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir.) (duty to notify cured by subsequent adequate notice and readjudication)
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir.) (VCAA notice/assistance principles)
- Fortuck v. Principi, 17 Vet. App. 173 (Vet. App.) (presumption of credibility for newly submitted evidence when deciding reopening)
- Shade v. Shinseki, 24 Vet. App. 110 (Vet. App.) (low threshold for reopening: "reasonable possibility" language is enabling)
- Shedden v. Principi, 381 F.3d 1153 (Fed. Cir.) (elements required to establish service connection)
- Baldwin v. West, 13 Vet. App. 1 (Vet. App.) (evidence evaluation in service‑connection determinations)
- Gilbert v. Derwinski, 1 Vet. App. 49 (Vet. App.) (reasonable doubt rule / preponderance standard)
- Mauerhan v. Principi, 16 Vet. App. 436 (Vet. App.) (examples in mental disorders rating criteria are illustrative, not exhaustive)
- Mittleider v. West, 11 Vet. App. 181 (Vet. App.) (VA may not attribute symptoms between service‑connected and nonservice‑connected mental disorders absent clinical distinction)
- Hart v. Mansfield, 21 Vet. App. 505 (Vet. App.) (staged ratings when disability exhibits distinct levels during appeal period)
- Thun v. Peake, 22 Vet. App. 111 (Vet. App.) (extraschedular referral standard)
- Fanning v. Brown, 4 Vet. App. 225 (Vet. App.) (extraschedular principles)
- Rice v. Shinseki, 22 Vet. App. 447 (Vet. App.) (TDIU development and when the record raises the issue)