12-29 675
12-29 675
| Board of Vet. App. | Aug 31, 2016Background
- Veteran served active duty Feb 1996–Feb 2006 and appealed RO decision regarding increased ratings for PTSD and GERD.
- RO granted a 50% rating for PTSD effective July 27, 2010, but Veteran sought a higher rating; claim remained before the Board.
- Additional VA treatment records obtained during remand indicated worsening PTSD symptoms (medication increases, nightmares, sleep disturbance, functional interference, emergency psych visit in Nov 2015).
- GERD initially rated 10% (analogized to DC 7346); recent records and testing (April 2016 EGD, May 2016 FibroScan) and a May 2016 DBQ noted duodenal ulcers raising possible applicability of DC 7305 symptoms (pain, vomiting, weight loss, hematemesis/melena, anemia).
- Veteran raised additional claims (cirrhosis, diverticulitis, sleep apnea, renal disease, fatty liver) during appeal; no RO rating decision issued on those, so Board referred them to AOJ.
- Board concluded existing PTSD and GERD examinations were stale or incomplete and remanded for further development, records collection, and new VA examinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to >50% for PTSD from July 27, 2010 | PTSD has worsened since last exam; symptoms (nightmares, sleep loss, cognitive/functional impairment, recent ED psych visit) support higher rating | Existing 50% grant insufficient; RO/Board require current objective evidence and exam to assign higher schedular rating | Remanded: obtain outstanding mental-health records and schedule new VA PTSD exam with full review and rationale; readjudicate afterward |
| Entitlement to >10% for GERD from July 27, 2010 | New diagnostics (EGD showing duodenal ulcers) and symptoms may meet higher criteria analogous to DC 7305/7346 | Current 10% rating based on analogy to DC 7346; recent DBQ and missing EGD/FibroScan not of record—insufficient for higher rating | Remanded: obtain missing GI records and schedule new VA GI exam addressing DC 7305 and DC 7346 symptoms and provide rationale; readjudicate afterward |
| Service connection for additional hepatic/GI/renal/sleep conditions raised in June 2016 | Veteran raised claims for cirrhosis, diverticulitis, sleep apnea, renal disease, fatty liver during pendency | No RO rating decision yet on these issues; Board lacks jurisdiction to decide them now | Referred to AOJ for appropriate action (not decided by Board) |
Key Cases Cited
- AB v. Brown, 6 Vet. App. 35 (1993) (partial grant does not moot remaining issues on appeal)
- Caffrey v. Brown, 6 Vet. App. 377 (1994) (older examinations can be too remote to support decision on increased-rating claims)
- Allday v. Brown, 7 Vet. App. 517 (1995) (VA must provide an adequate medical examination that considers the veteran's history and symptomatology)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (veteran may submit additional evidence and argument after remand)