13-22 060
13-22 060
Board of Vet. App.Sep 18, 2017Background
- Veteran served 1971–1973; service connection for PTSD granted by DRO in July 2010 with a 30% rating effective April 15, 2008. Appeal seeks an initial rating in excess of 30%.
- RO and VA complied with VCAA duties; VA obtained service and VA treatment records and provided VA examinations (2007, 2016) per Board remand.
- Medical records and VA exam findings show symptoms including nightmares, anxiety/hypervigilance, intermittent auditory phenomena (reported in 2007), sleep disturbance, concentration problems, and occasional panic; GAF recorded at 55 in 2008.
- Lay statements (family) allege frequent nightmares, panic attacks, and some forgetfulness; Veteran reported work-related concentration problems and retiring in 2016 due to mental health after long employment.
- 2016 VA examiner found only mild/transient symptoms with occupational/social impairment limited to occasional decrease in work efficiency; examiner concluded PTSD may not meet full criteria currently.
- Board found evidence does not show occupational/social impairment of the severity required for a 50%, 70%, or 100% schedular rating; increased rating and extraschedular TDIU referral denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to an initial rating >30% for PTSD | Veteran: symptoms (nightmares, panic, concentration loss, missed work, long-term functional impact) warrant higher rating | VA/Board: record and VA exams show only occasional decreased work efficiency and mild/transient symptoms; insufficient for higher schedular ratings | Denied — rating remains 30% (evidence preponderates against higher rating) |
| Extraschedular consideration / TDIU referral | Veteran: stopped working and reported inability to function at work, suggesting referral | VA/Board: sustained 43-year employment and exam findings of only occasional work impairment do not support extraschedular or TDIU referral | Denied — referral not warranted |
| VCAA duty to notify and assist compliance | Veteran: (implicit) claim pursued; waived some consideration at hearing | VA/Board: complied with VCAA, obtained records, provided exams, and substantially complied with remand | Held satisfied — duty to assist and notification requirements met |
| Staged ratings / retrospective severity | Veteran: earlier evidence (family statements, 2007 reports) may show worse periods | VA/Board: considered entire period; evidence does not demonstrate rating-level symptoms at any portion warranting >30% | No staged or higher ratings assigned; uniform 30% rating maintained |
Key Cases Cited
- Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir.) (symptom-driven evaluation under §4.130; frequency, severity, duration determine rating)
- McGrath v. Gober, 14 Vet. App. 28 (Vet. App.) (evidence must show symptoms at the time they are alleged; timing of evidence matters)
- Stegall v. West, 11 Vet. App. 268 (Vet. App.) (remand compliance requires substantial compliance with Board directives)
- Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir.) (once service connection is granted, no additional VCAA notice is required for downstream rating disputes)
- Gilbert v. Derwinski, 1 Vet. App. 49 (Vet. App.) (preponderance of evidence standard and benefit-of-the-doubt rule in veterans claims)
- Fenderson v. West, 12 Vet. App. 119 (Vet. App.) (staged ratings are appropriate when different levels of disability are shown for separate periods)
