10-27 121
10-27 121
| Board of Vet. App. | Jun 30, 2017Background
- Veteran served active duty Mar 1969–Mar 1973; service connection for PTSD was granted in 2010 with an initial 30% rating.
- RO later assigned staged increases: 50% effective Feb 6, 2013 and 70% effective Sept 16, 2014; Veteran appealed the earlier-period ratings (pre-Feb 6, 2013 and Feb 6, 2013–Sept 16, 2014).
- Record contains multiple VA and Vet Center treatment notes (2007–2014) documenting PTSD symptoms including nightmares, hypervigilance, irritability, occasional violent outbursts, memory problems, panic attacks, situational suicidal ideation, and GAF scores generally in the 50–65 range.
- April 2017 joint motion by the parties vacated part of the May 2016 Board decision and remanded the claim for readjudication of whether ratings should exceed 30% (pre-Feb 6, 2013) and exceed 50% (Feb 6, 2013–Sept 16, 2014).
- The Board considered the full record, resolved equipoise in the veteran’s favor, and awarded a 70% rating (but no higher) for both contested periods.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PTSD rating should exceed 30% for period prior to Feb 6, 2013 | Veteran: symptoms (panic, memory loss, anger/outbursts, suicidal ideation, impaired relationships/adaptation) support at least 70% | VA/Board: exam findings showed mild-to-moderate symptoms consistent with 30% (no total occupational/social impairment) | Awarded 70% (resolving reasonable doubt in veteran’s favor) |
| Whether PTSD rating should exceed 50% for Feb 6, 2013–Sept 16, 2014 | Veteran: symptom worsening (panic attacks, suicidal ideation, difficulty adapting, impaired relationships) supports 70% | VA/Board: Feb 2013 examiner found 50% level (reduced reliability/productivity) | Awarded 70% for the period (insufficient evidence for 100%) |
Key Cases Cited
- AB v. Brown, 6 Vet. App. 35 (1993) (veteran presumed to seek maximum rating absent indication otherwise)
- Quartuccio v. Principi, 16 Vet. App. 183 (2002) (VCAA notice requirements)
- Hartman v. Nicholson, 483 F.3d 1311 (2007) (no additional VCAA notice required for downstream issues after service connection is granted)
- Pelegrini v. Principi, 18 Vet. App. 112 (2004) (timing of VCAA notice relative to initial AOJ decisions)
- Vazquez-Claudio v. Shinseki, 713 F.3d 112 (2013) (rating must be based on symptoms and their occupational/social impact)
- Mauerhan v. Principi, 16 Vet. App. 436 (2002) (symptom lists in the mental disorders rating schedule are illustrative, not exhaustive)
- Sellers v. Principi, 372 F.3d 1318 (2004) (clarifies use of illustrative symptom lists in rating criteria)
- Richard v. Brown, 9 Vet. App. 266 (1996) (use of GAF as evidence of functioning)
- Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Board not required to consider extraschedular referral when not raised or reasonably raised)
- Rice v. Shinseki, 22 Vet. App. 447 (2009) (TDIU is part of rating claims when raised by the record)