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14-34 721
14-34 721
| Board of Vet. App. | Apr 30, 2018
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Background

  • Veteran served on active duty (Navy) 1963–1966 and has service‑connected PTSD; he sought an increased rating beginning October 26, 2010.
  • RO increased PTSD rating from 30% to 50% (July 2012) and later to 70% (April 2015); appeal to the Board remained pending seeking a higher rating.
  • Veteran requested a VLJ hearing but did not appear; the hearing request was deemed withdrawn.
  • Board considered whether symptoms produced total occupational and social impairment warranting a 100% rating under Diagnostic Code 9411 (38 C.F.R. § 4.130).
  • VA examinations and treatment records (including Feb 2015 VA PTSD exam) showed relationships and functioning inconsistent with total social/occupational impairment.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Entitlement to rating in excess of 70% for PTSD (i.e., 100% rating) Veteran asserted his PTSD produces total occupational and social impairment and thus merits 100% Board/VA argued record lacks evidence of total social/occupational impairment or 100% level symptoms Denied; preponderance of evidence shows impairments consistent with 70%, not total impairment

Key Cases Cited

  • Brady v. Brown, 4 Vet.App. 203 (1993) (avoids pyramiding; same symptomatology cannot be compensated twice)
  • AB v. Brown, 6 Vet.App. 35 (1993) (award of increased rating during appeal does not moot pending appeal)
  • Francisco v. Brown, 7 Vet.App. 55 (1994) (focus on present level of disability when adjudicating increases)
  • Doucette v. Shulkin, 28 Vet.App. 366 (2017) (Board need not address issues not raised by claimant or reasonably raised by record)
  • Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (Board not required to search record and raise procedural arguments not urged by claimant)
  • Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) (applies Scott to duty to assist arguments)
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Case Details

Case Name: 14-34 721
Court Name: Board of Veterans' Appeals
Date Published: Apr 30, 2018
Docket Number: 14-34 721
Court Abbreviation: Board of Vet. App.