12-07 412
12-07 412
| Board of Vet. App. | Nov 30, 2017Background
- Veteran served active duty Aug 1965–May 1967 (Vietnam Era); claim comes from RO Cleveland and appealed to the Board.
- RO granted service connection for PTSD effective May 26, 2009, with a 30% rating in April 2011; Veteran sought a higher rating and appealed through the DRO, SOC, and Board.
- After multiple procedural steps and a remand/implementation delay, VA exams were performed in Feb 2011 (VA) and Feb 2017 (VA), plus a private psych exam in Apr 2013; lay evidence includes a spouse affidavit describing marked functional problems.
- Medical records show chronic PTSD symptoms (nightmares, depression, panic, memory/concentration problems, irritability, social isolation) and variable GAF scores (around 49–60) over time; alcohol use and MDD also documented.
- Board granted a staged increased rating: 50% for PTSD prior to Feb 16, 2017, and 70% from Feb 16, 2017; it denied ratings higher than those and remanded the effective-date issue (earlier than May 26, 2009) for issuance of a SOC.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Veteran is entitled to an initial rating >30% for PTSD before Feb 16, 2017 | Veteran: symptom history and GAFs (~49–50) and spouse affidavit show greater impairment justifying 50% or 70% | VA/Board: February 2011 exam and whole record do not show deficiencies in most areas or total impairment needed for >50% | Granted: 50% prior to Feb 16, 2017 (no higher) |
| Whether Veteran is entitled to rating >70% for PTSD from Feb 16, 2017 onward | Veteran: 2017 exam and treatment notes show near‑continuous panic/depression, suicidal ideation, impaired impulse control and hygiene supporting >70% (including 100%) | VA/Board: 2017 evidence supports severe impairment but not total occupational/social impairment required for 100% | Denied: no rating in excess of 70% from Feb 16, 2017 |
| Whether effective date earlier than May 26, 2009 should be assigned for service connection | Veteran filed NOD (Oct 2017) disputing effective date | VA has not issued SOC on that issue yet | REMANDED to RO/AMC for issuance of a SOC so Veteran may perfect an appeal |
Key Cases Cited
- Manlicon v. West, 12 Vet. App. 238 (1999) (SOC required before Board can adjudicate effective‑date appeal)
- AB v. Brown, 6 Vet. App. 35 (1993) (AOJ action on increased‑rating claim does not deprive Board jurisdiction when max schedular rating not assigned)
- Francisco v. Brown, 7 Vet. App. 55 (1994) (focus on current severity for rating determinations)
- O'Connell v. Nicholson, 21 Vet. App. 89 (2007) (permitting staged ratings for separate time periods)
- Fenderson v. West, 12 Vet. App. 119 (1999) (standards for staged ratings and adjudication)
- Mauerhan v. Principi, 16 Vet. App. 436 (2002) (symptom lists in §4.130 are examples, not exhaustive)
- Vazquez‑Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013) (§4.130 requires symptoms to cause occupational/social impairment in most referenced areas for higher ratings)
- Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Board need only address issues raised by claimant or reasonably raised by record)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (veteran may submit additional evidence during remand development)
- Carpenter v. Brown, 8 Vet. App. 240 (1995) (GAF explained as measure of social/occupational functioning)
- Richard v. Brown, 9 Vet. App. 266 (1996) (further context for GAF usage)