16-34 692
16-34 692
| Board of Vet. App. | May 10, 2017Background
- Veteran served on active duty 1943–1945 and appealed a May 2015 RO decision that continued a 30% rating for service-connected PTSD.
- Claim for increased rating filed March 2014; VA provided VCAA notice and procured VA psychiatric examinations in Sept. 2014 and July 2016.
- Veteran reported wartime nightmares, avoidance of crowds, introversion, anxiety and weekly depression; examiners noted flattened affect, anxiety, and difficulty with social/work relationships but largely normal cognition, hygiene, and orientation.
- Examiners found primarily mild-to-moderate, stable PTSD symptoms; one examiner observed the Veteran likely minimized symptoms.
- Board concluded the symptoms more nearly approximated the 50% criteria (reduced reliability/productivity) but did not meet 70% criteria (deficiencies in most areas); awarded a 50% rating effective from the claim date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Veteran is entitled to an increased PTSD rating above 30% | PTSD symptoms (nightmares, anxiety, social impairment) warrant >30% and possibly 70% | VA/Board: exam evidence shows symptoms align with 50% criteria, not 70% | Awarded 50%, but no higher |
| Adequacy of VA’s duty to assist (exams, records) | VA failed to provide adequate development (implicit claim) | VA provided VCAA notice, obtained records and adequate VA examinations | Duty-to-assist satisfied |
| Whether schedular criteria contemplate the disability (extraschedular referral) | Veteran’s disability is so exceptional it may require extraschedular rating | Schedular criteria reasonably describe symptoms (anxiety, nightmares, social/work impairment) | No extraschedular referral required |
| Whether TDIU should be inferred | Veteran’s retirement and symptoms imply unemployability | Record shows retirement long before, good coworker relations, no contention of unemployability | TDIU not inferred or awarded |
Key Cases Cited
- Barr v. Nicholson, 21 Vet. App. 303 (VA must provide an adequate examination once it undertakes one)
- Schafrath v. Derwinski, 1 Vet. App. 589 (review entire history when rating disabilities)
- Francisco v. Brown, 7 Vet. App. 55 (present level of disability controls in increase claims)
- Hart v. Mansfield, 21 Vet. App. 505 (requirement to consider staged ratings)
- Gilbert v. Derwinski, 1 Vet. App. 49 (benefit of the doubt rule when evidence is in approximate balance)
- Sellers v. Principi, 372 F.3d 1318 (assign equivalent rating when symptoms cause comparable impairment)
- Mauerhan v. Principi, 16 Vet. App. 436 (interpretation of rating criteria for mental disorders)
- Vazquez-Claudio v. Shinseki, 713 F.3d 118 (70% rating requires symptoms producing deficiencies in most areas)
- Thun v. Peake, 22 Vet. App. 111 (three-step extraschedular referral framework)
- Thun v. Shinseki, 572 F.3d 1366 (affirming Thun framework)
- Rice v. Shinseki, 22 Vet. App. 447 (TDIU cannot be inferred without evidence of unemployability)