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Veterans Law

Board Lacks Adequate Reasons and Bases in Denying SMC A&A Based on PTSD Alone

Michael Lostritto

November 13, 2018

Updated: November 20, 2023

Court wins - TDIU

Summary of the Case

The Veteran served in the United States Air Force from February 1966 to December 1969.  In July of 1993, he was granted an increased rating of 100% for his service-connected PTSD.  Subsequently, in September of 2011, the Veteran filed a claim for special monthly compensation (SMC) based on the need for regular aid and attendance (A&A).  In doing so, he submitted a lay statement from his wife explaining that his PTSD “increased” and his personal hygiene became worse.  However, in February of 2012, the Regional Office denied SMC based on PTSD, his only service-connected condition at the time.  In October of 2013, the Veteran filed for service connection for Parkinson’s Disease, which was granted.  In July of 2016, the Board granted SMC based on A&A due to his Parkinson’s Disease, but remanded the issue of SMC based on A&A due to his PTSD alone.  After obtaining a VA examination to address this issue, it was ultimately denied in April 2017.

Board denies SMC A&A Based on PTSD

On April 13, 2017, the Board of Veterans’ Appeals issued a decision denying SMC based on A&A due to the Veteran’s PTSD alone.  In its decision, the Board relied heavily on the January 2017 VA examination.  Specifically, the examiner concluded that despite severe psychosocial challenges, the appellant did not satisfy the criteria for aid and attendance on the basis of PTSD alone.  The Board found that the probative value of the January 2017 examiner’s opinion outweighed that of the lay evidence of record, specifically the statement from the Veteran’s wife.

CCK argues the Board’s reasons and bases for denying SMC A&A are inadequate

CCK successfully appealed to the Court of Appeals for Veterans Claims the Board decision that denied SMC for A&A based on the Veteran’s PTSD alone.  CCK argued that the Board’s statement of reasons or bases for its decision was inadequate.  Namely, the Board merely adopted the opinion of the examiner as its own.  It failed to explain why other favorable evidence, such as the wife’s statement and the fact that the Veteran was hospitalized in January 2017 as a high-risk patient, did not warrant a higher level of SMC.  Overall, CCK asserted that the Board misapplied the law when it assigned less probative weight to the lay statements without adequately explaining why.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board’s statement of reasons or bases was inadequate.  First, the Board failed to support its finding that the probative value of the January 2017 VA examiner’s opinion outweighed that of the lay evidence of record, despite finding the wife’s statement to be factual.  Second, the Board simply adopted the opinion of the January 2017 examiner as its own without discussing any of the particular findings of the examiner or other evidence of record that was potentially favorable to the Veteran.  The Court affirmed that when determining the credibility and weight given to evidence, the Board must provide reasons for its rejection of any material evidence favorable to the claimant, which it failed to do in this case.  Accordingly, the Court vacated the Board’s decision and remanded the case.

To read the Court’s decision, click here.

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.

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