11-18 470
11-18 470
| Board of Vet. App. | Aug 31, 2016Background
- Veteran served in Vietnam (active duty Jul 1966–Apr 1969); service‑connected for PTSD rated 50%.
- Administrative history: RO denied increase (Dec 2010); Board denied increase (Sept 2015); Court vacated and remanded (May 2016 JMR); claim returned to Board for readjudication.
- Relevant medical and lay evidence: multiple VA exams (2009, 2010, 2014, 2016), VA treatment notes, private opinion (May 2009), and SSA records; GAF scores ranged ~48–62.
- Symptomatology shown in record: intrusive memories, nightmares, avoidance, depressed mood, irritability, hypervigilance, sleep/concentration problems, social isolation, occasional increased irritability/arguments; no documented persistent psychosis, continuous panic, or sustained neglect of hygiene.
- Employment/functional history: last full‑time work 1999 (conflicting statements whether stopped due to PTSD or cardiac issues); SSA disability awarded for physical conditions (back, hypertension), not psychiatric disability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PTSD rating should be increased above 50% | Veteran contends PTSD causes greater occupational/social impairment (near total inability to work, frequent panic, neglect of hygiene, suicidal thoughts) | VA argues record shows symptoms consistent with 50% (reduced reliability/productivity) and does not show deficiencies in most areas required for 70% | Denied — evidence more nearly approximates 50% throughout the appeal period |
| Whether private and some treatment opinions establish unemployability | Veteran/priv. physician: PTSD render him totally unemployable since ~1999 | VA: private opinion lacks adequate rationale/record review; SSA denial for psychiatric disability undermines claim | Private/VA treatment opinions unpersuasive; preponderance of evidence against award of higher rating |
| Weight to give exam findings vs. lay statements/GAFs | Veteran and spouse: contemporaneous statements describe worsening isolation, poor hygiene episodes, and marked impairment | VA relied on objective exam findings by mental health clinicians; GAFs informative but not determinative | Board credits clinicians’ exam findings over lay assertions and treats GAFs as non‑dispositive |
| Whether remand or further development required before decision | Veteran previously requested earlier effective date and extraschedular/TDIU issues remained pending | Board noted outstanding development for extraschedular/TDIU and will address separately; current record adequate for rating decision | No further development required for the increased‑rating determination; other issues remanded for later adjudication |
Key Cases Cited
- Barr v. Nicholson, 21 Vet. App. 303 (Vet. App. 2007) (examination adequacy requires consideration of pertinent medical history and current severity)
- Francisco v. Brown, 7 Vet. App. 55 (Vet. App. 1994) (increase claims focus on current level of disability)
- Gilbert v. Derwinski, 1 Vet. App. 49 (Vet. App. 1990) (preponderance of evidence standard governs VA adjudication)
- Mauerhan v. Principi, 16 Vet. App. 436 (Vet. App. 2002) (rating criteria examples are not exhaustive; equivalence may justify a rating)
- Monzingo v. Shinseki, 26 Vet. App. 97 (Vet. App. 2012) (examination must be read as a whole to determine rationale)
- Nieves‑Rodriguez v. Peake, 22 Vet. App. 295 (Vet. App. 2008) (medical opinions must provide adequate rationale to be probative)
- Peyton v. Derwinski, 1 Vet. App. 282 (Vet. App. 1991) (importance of tracing medical history in rating decisions)
- Schafrath v. Derwinski, 1 Vet. App. 589 (Vet. App. 1991) (Board must consider other applicable provisions even if not raised)
- Vazquez‑Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013) (symptom‑driven evaluation; consider frequency, severity, duration; examples are illustrative)
- Hart v. Mansfield, 21 Vet. App. 505 (Vet. App. 2007) (consider staged ratings for different periods)
- Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (Vet. App. 2006) (VCAA notice requirements)
- Fenderson v. West, 12 Vet. App. 119 (Vet. App. 1999) (standards for assigning ratings when medical findings change)