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

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


CCK successfully appealed to the Court a Board decision that denied the Veteran an increased rating for PTSD, and erroneously found that TDIU had not been raised by the record.  The Board failed to provide proper analysis of the Veteran’s symptoms, which included passive homicidal ideation, memory and concentration problems, irritability or outbursts of anger, and an inability to deal with co-workers that caused him to retire.  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.

Remand was required 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.


Additionally, the Court 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 held remand was appropriate for the Board to properly and adequately address the merits of the Appellant’s entitlement to TDIU based upon the record on appeal that reasonably raised the issue.

To read the Court’s decision, click here.

Category: Court Wins

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