Denial of Increased Rating for Psychiatric Disability Contained Error

CCK Law: Our Vital Role in Veterans Law

Summary

The Veteran served on active duty in the U.S. Army from 1968 to 1970. He was granted service connection for a psychiatric disability and granted a 30% rating in 2012.  The Veteran filed a Notice of Disagreement with the assigned rating.

Board denied increased ratings for psychiatric disability

In 2016, the Board denied the Veteran an increased rating prior to September 2013 for an acquired psychiatric disability.  The Board did grant a 50% rating, but no higher, from the date of the decision. The Board also denied extraschedular referral and remanded the issue of entitlement to TDIU.  The Veteran appealed the denial of higher ratings to the Court of Appeals for Veterans Claims (CAVC).

CCK appeals to the Court

CCK successfully appealed to the Court the denial of higher ratings. Specifically, CCK appealed for a rating in excess of 30% prior to, and as of, September 2013 for the Veteran’s acquired psychiatric disability.  CCK also appealed the denial of referral for extraschedular consideration.

CAVC agreed with CCK’s arguments

CCK argued, and the Court agreed, that the Board erroneously concluded the Veteran’s symptoms generally fell within the 30% criteria.  In denying a higher disability rating for the period prior to September 2013, the Board mistakenly focused on the symptoms within the rating criteria that it determined the Veteran did not have.  The Board relied primarily on the 2013 VA examiner’s notation regarding the Veteran’s main symptoms.  However, it did not fully address all of the Veteran’s symptoms or their severity.  For the subsequent time period, the Court agreed that the Board erred when it discounted the Veteran’s suicidal ideation by focusing its analysis on whether the Veteran had a plan or was likely to act on his suicidal thoughts.

Further, the Court agreed that the Board erred when it prematurely denied extraschedular referral in light of its TDIU remand. In its remand instructions, the Court requested VA to provide any necessary examinations regarding whether he was able to obtain and maintain gainful employment in light of all of his service-connected disabilities. The Board merely stated that the Veteran’s symptoms were consistent with the rating criteria by referring to its prior analysis, and since it failed to adequately discuss the symptoms earlier in its decision, its reasons or bases for denying referral were also inadequate.