10-02 185
10-02 185
Board of Vet. App.Apr 28, 2017Background
- Veteran served on active duty July 1986–July 1990 and appealed VA RO rating decisions beginning in 2009; multiple Board hearings and remands occurred (2012–2016).
- Service connection: right knee disability (complex history of diagnostic codes and prior ratings) and adjustment disorder with mixed emotional features; separate 10% rating exists for post‑operative ruptured right quadriceps/tendons (muscle group XIV).
- Veteran reports depressive episodes, sleep impairment, concentration problems, homelessness, separated from spouse, and inability to maintain steady employment for ~15 years; vocational records show manual labor history and a criminal record restricting occupational choices.
- Multiple VA mental health exams (2008, 2015) and testing found adjustment disorder with intermittent mild-to-moderate depressive symptoms, GAF scores in the mid‑50s to 60s, and mostly mild occupational/social impact; examiners concluded limited, intermittent concentration deficits and sleep effects.
- VA knee examinations were found inadequate; Board remanded for updated orthopedic testing to clarify which muscle groups (XIII vs XIV) and joint components contribute to current disability and for extraschedular TDIU referral.
Issues
| Issue | Plaintiff's Argument (Veteran) | Defendant's Argument (VA/Board) | Held |
|---|---|---|---|
| 1. Rating >30% for adjustment disorder | Symptoms (depression, sleep, concentration) cause greater occupational/social impairment warranting >30% | Record shows only intermittent/mild symptoms; exams support max 30% | Denied — rating in excess of 30% not warranted |
| 2. Extraschedular consideration for psychiatric disability | Combined disabilities and vocational impact warrant extraschedular referral | Board: schedular criteria adequately describe disability; no exceptional picture shown | Not referred — extraschedular referral not required (but Veteran may raise collective extraschedular issues on remand) |
| 3. Increased rating for right knee (muscle groups/joint) | Knee disability causes significant functional limitation and employment problems | RO’s current characterization and prior exams unclear/inadequate; further testing needed | Remanded — additional VA orthopedic exam and record development ordered |
| 4. Entitlement to TDIU (including extrascheduler) | Unable to secure/follow substantially gainful employment due to service‑connected knee and limited work options | Veteran lacks required schedular combined ratings; extraschedular TDIU requires higher‑level consideration | Remanded — refer to Director/Under Secretary for extraschedular TDIU consideration and obtain further development |
Key Cases Cited
- Vazquez‑Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir.) (requirement to link specific symptoms to rating criteria)
- Gilbert v. Derwinski, 1 Vet. App. 49 (benefit of the doubt where evidence is in approximate balance)
- Correia v. McDonald, 28 Vet. App. 158 (exam adequacy under 38 C.F.R. § 4.59/requirement to test functional loss)
- Stegall v. West, 11 Vet. App. 268 (obligation to comply with Board remand instructions)
- Bowling v. Principi, 15 Vet. App. 1 (Board cannot grant extraschedular TDIU in first instance; referral required)
- Mauerhan v. Principi, 16 Vet. App. 436 (analysis of symptom equivalence to schedular criteria for psychiatric ratings)
- Thun v. Peake, 22 Vet. App. 111 (standard for extraschedular consideration)