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Board Decision Denying Service Connection for Vertigo and Increased Rating for PTSD Relied on Inadequate Examinations

Board Decision Denying Service Connection for Vertigo and Increased Rating for PTSD Relied on Inadequate Examinations

Factual and Procedural History

The Veteran served on active duty in the United States Air Force from July 1965 to August 1991.  During service, he received treatment for left ear pain, and an examiner diagnosed him with mild high frequency hearing loss shortly after leaving the Air Force.  Following this diagnosis, the Veteran became service-connected for bilateral hearing loss and tinnitus.

Claim for Post-Traumatic Stress Disorder (PTSD)

In June 2009, the Veteran submitted a claim for service connection for PTSD, reporting that his PTSD symptoms began in service in 1972 and had worsened over the last few years.  The following year, a VA examiner opined that his psychiatric symptoms were severe and caused occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks.  In August 2010, the Regional Office granted service connection for PTSD and assigned a 30 percent evaluation effective June 18, 2009.  The Veteran appealed for a higher rating and attended another examination in December 2011.  In February 2013, the Regional Office denied an initial PTSD evaluation in excess of 30 percent, which the Veteran appealed to the Board of Veterans’ Appeals.  The Board remanded his claim to obtain a new VA examination in May 2016.  In April 2017, the Regional Office increased the Veteran’s PTSD evaluation to 70 percent, effective February 27, 2017, the date of his most recent examination.  The Veteran appealed once again, and the Board found that he was entitled to a 70 percent evaluation since December 16, 2011, and a 50 percent evaluation prior to that date.  However, the Board determined that the evidence of record did not support evaluations in excess of 50 percent prior to December 16, 2011, or in excess of 70 percent thereafter.

Claim for Vertigo

In April 2012, the Veteran filed a claim for service connection for dizziness and occasional staggering.  He stated that the condition began when he returned from service in Vietnam.  In July 2012, a VA examiner diagnosed the Veteran with benign paroxysmal positional vertigo and opined that the condition was less likely than not related to his service, or his service-connected bilateral hearing loss and tinnitus.  That same month, the Regional Office denied service connection for the Veteran’s vertigo.  The Veteran appealed this decision to the Board.  In an October 2017 decision, the Board continued to deny service connection for vertigo, to include as secondary to his service-connected bilateral hearing loss and tinnitus, on the basis of the examiner’s findings.

CCK Appeals to the Court of Appeals for Veterans Claims (CAVC)

CCK successfully appealed to the CAVC, the Board decision that denied (1) entitlement to service connection for vertigo, to include as secondary to bilateral hearing loss and tinnitus; and (2) an initial disability evaluation in excess of 50 percent for PTSD.  In regards to the Veteran’s increased rating claim for PTSD, CCK argued that the Board provided inadequate reasons or bases for denying a PTSD evaluation in excess of 50 percent prior to December 16, 2011.  Specifically, it did not account for all of the Veteran’s PTSD symptoms and did not properly asses their frequency, severity, and duration.  The Veteran had previously suggested more serious impairment, including obsessive rituals, constant anxiety, and his inability to establish relationships with anyone outside his family.  Additionally, CCK argued that the Board did not adequately explain its conclusion that his PTSD symptoms caused occupational and social impairment with reduced reliability and productivity, rather than occupational and social impairment with deficiencies in most areas listed in the criteria for a 70 percent evaluation.  Here, the Court agreed that the Board did not discuss any of the listed areas individually and, to the extent that it addressed the Veteran’s level of occupational and social impairment at all, it did so only in the most general and conclusory terms.

For the Veteran’s vertigo claim, CCK argued that the Board erred in relying on the July 2012 VA examination to deny direct and secondary service connection for vertigo.  Specifically, the examiner did not address whether the Veteran’s vertigo could have been caused by an injury during service.  The Court agreed and noted that the examiner’s rationale focused only on a potential “cause and effect relationship” between the Veteran’s vertigo and his bilateral hearing loss and tinnitus, without addressing linkage between his service and vertigo.

What the Court Decided

The Court set aside and remanded the Board decision denying service connection for vertigo and an initial PTSD evaluation in excess of 50 percent.  Accordingly, the Veteran’s case is sent back to the Board for readjudication.

To read the Court’s full decision, click here.

Category: Court Wins

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