19-32 432
19-32 432
| Board of Vet. App. | Aug 13, 2021Background
- Veteran served Sept 1999–Mar 2005; service‑connected for PTSD with unspecified depressive disorder and assigned a 70% rating effective May 4, 2015.
- VA and SSA examiner records (2014–2017) and private therapy notes document anxiety, isolation, depressed mood, anger outbursts, memory/concentration deficits, chronic sleep impairment, and marked difficulty in work settings; examiners noted deficiencies in most areas of occupational/social functioning.
- No treatment or examination record showed symptoms consistent with total occupational and social impairment (e.g., persistent delusions/hallucinations, grossly inappropriate behavior, intermittent inability to perform ADLs, disorientation, or memory loss for close relatives or own name).
- Veteran reported multiple job losses due to missed work and poor performance, has not held steady employment since ~2011–2012, lives with family and retained custody/relationships with his children, and participated in therapy with some periods of improvement.
- Although TDIU was not formally pled, the Board found it was reasonably raised by the record and testimony and that the preponderance of evidence shows the Veteran cannot secure or follow a substantially gainful occupation due to his service‑connected disabilities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Veteran is entitled to an initial rating >70% for PTSD/depressive disorder | Veteran: symptoms are more severe and warrant 100% (total occupational/social impairment) | VA/AOJ: record shows impairment with deficiencies in most areas but not total occupational/social impairment | Denied — rating remains 70% (no evidence of total impairment) |
| Whether Veteran is entitled to TDIU (individual unemployability) | Veteran: unemployable due to service‑connected PTSD/depression (missed work, poor performance, cognitive/behavioral symptoms) | VA/AOJ: (previously not awarded; issue required adjudication and merits assessment) | Granted — TDIU awarded, effective May 4, 2015 |
Key Cases Cited
- Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (entire medical history must be considered for rating evaluations)
- Fenderson v. West, 12 Vet. App. 119 (1999) (severity from initial rating to present is considered for increased evaluation)
- Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings appropriate when disability changes over distinct periods)
- Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (framework for assessing suicidal ideation in mental‑disability ratings)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence competency to report symptoms/effects)
- Rice v. Shinseki, 22 Vet. App. 447 (2009) (claim for increased evaluation may encompass TDIU)
- Layno v. Brown, 6 Vet. App. 465 (1994) (contrasting limits on lay competency in certain contexts)
