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Court Wins

Board erred in denial of increased rating for PTSD and in finding that TDIU was not raised by record

Michael Lostritto

May 17, 2017

Updated: November 20, 2023

Court Win- Increased Rating right leg fracture

CCK Appealed Veteran’s Board of Veterans’ Appeals Denial to Court

CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) a Board of Veterans’ Appeals decision that denied the Veteran an increased rating for his post-traumatic stress disorder (PTSD), and erroneously found that entitlement to Total Disability Based on Individual Unemployability (TDIU) had not been raised by the record.

CCK argued that the Board failed to provide proper analysis of the Veteran’s PTSD symptoms, which included passive homicidal ideation, memory and concentration problems, irritability or outbursts of anger, and an inability to deal with co-workers that eventually caused him to retire from his job.

CCK Argued Board Erred in PTSD Denial

CCK argued, and the Court agreed, that the Board failed to consider favorable and relevant evidence when it denied the Veteran a rating in excess of 30% for PTSD.

Board Failed to Find TDIU Raised by the Record

The Court also agreed with CCK’s argument that the Board erred when it determined that the issue of TDIU was not currently in appellate status and was not reasonably raised by the record on appeal. The Court held that when the Veteran filed a Notice of Disagreement during the appeal period, he was presumed to be seeking the maximum benefit allowed by law “and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded.” AB v. Brown, 6 Vet.App. 35, 38 (1993).

The Court cited to Rice v. Shinseki and held that when the issue of TDIU arises in connection with an appeal of an increased rating claim, as here, it is not a separate claim, but is considered as part of the claim for increased compensation. 22 Vet.App. 447, 452-54 (2009). Thus, the Board erred because once the increased rating claim was in appellate status by virtue of the Notice of Disagreement submitted, TDIU became part of the claim and was subsequently raised by the record. Also, contrary to the Board’s finding, the Veteran submitted a TDIU application indicating he was no longer able to work due to his service-connected PTSD and that he left his job because of it.

The Court Remands Veteran’s Case

The Court found that remand was required for the issue of an increased rating for PTSD because the Board did not explain how the Veteran’s symptoms were not commensurate with the symptoms enumerated within the higher rating criteria. Such symptoms include memory impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, impaired impulse control, or difficulty adapting to stressful circumstances, including work.

The Court also remanded the Veteran’s case back for the Board to properly and adequately address the merits of the Veteran’s entitlement to TDIU based upon the record on appeal that reasonably raised the issue.

Read the Court’s decision.

About the Author

Bio photo of Michael Lostritto

Michael joined CCK in September of 2016 as an Attorney, was named Supervising Attorney in 2021, and now serves as a Managing Attorney. His practice focuses on the representation of disabled veterans before the Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

See more about Michael