10-40 502
10-40 502
| Board of Vet. App. | Aug 2, 2016Background
- Veteran served active duty 1977–1992; appeal from May 2010 RO decision; remanded in Feb 2014 and partially granted increases in Sept 2014, leaving issues before the Board.
- Service‑connected disabilities at issue: depressive disorder, sinusitis (reclassified from maxillary to frontal effective May 1, 2014), and lumbosacral strain (remanded).
- VA examinations: March 2010 (mental, GAF 58; mild–moderate impairment) and May 2014 (mental and sinus exams showing worsened symptoms after May 1, 2014); sinus CT largely normal with small mucous retention cyst.
- Staged‑rating approach applied with May 1, 2014 as the change point for ratings.
- Board found depressive disorder warranted 50% rating prior to May 1, 2014 and 70% from May 1, 2014, but not higher; sinusitis denied increase above 0% pre‑May 1, 2014 and above 10% thereafter.
- Lumbosacral strain remanded for clarification whether IVDS findings and reported incapacitating episodes are related to or aggravated by the service‑connected muscle strain.
Issues
| Issue | Plaintiff's Argument (Veteran) | Defendant's Argument (VA) | Held |
|---|---|---|---|
| 1. Rating >30% before May 1, 2014 and >70% after for depressive disorder | Symptoms and functional impairment justify higher ratings (reliability, productivity, social/work impairment) | Record and VA exams do not show deficiencies consistent with higher or total impairment | Granted 50% pre‑May 1, 2014; denied >70% from May 1, 2014 (70% awarded from May 1, 2014) |
| 2. Rating >0% before May 1, 2014 and >10% after for sinusitis (frontal) | Sinus symptoms/frequency justify higher schedular rating | Treatment/exam evidence shows fewer qualifying incapacitating/non‑incapacitating episodes than required | Denied (0% pre‑May 1, 2014; 10% from May 1, 2014 remains) |
| 3. Extraschedular referral for depressive disorder or sinusitis | Disability picture may be exceptional and not captured by schedular criteria | Schedular criteria adequately contemplate symptomatology; no exceptional/collective impact shown | Referral for extraschedular rating not warranted |
| 4. Rating for lumbosacral strain (IVDS/incapacitating episodes) | VA exam reports IVDS with incapacitating episodes; may support higher rating or IVDS assignment | Need medical opinion to determine relation between IVDS and service‑connected strain and whether episodes meet regulatory definition | REMANDED for medical opinions and evidence on bed‑rest prescriptions |
Key Cases Cited
- AB v. Brown, 6 Vet. App. 35 (1993) (awarded increases not representing total grant remain before the Board)
- Vazquez‑Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013) (primary consideration in psychiatric ratings is the veteran's symptoms)
- Mauerhan v. Principi, 16 Vet. App. 436 (2002) (rating criteria examples are not exhaustive)
- Thun v. Peake, 22 Vet. App. 111 (2008) (three‑step extraschedular referral inquiry)
- Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014) (extraschedular consideration for combined effects in exceptional cases)
- Mittleider v. West, 11 Vet. App. 181 (1998) (VA must consider all psychiatric symptoms when other diagnoses are present)
- D'Aries v. Peake, 22 Vet. App. 97 (2008) (substantial, not strict, compliance with remand instructions)