Increased rating for PTSD and TDIU denial based on faulty reasoning

Increased rating for PTSD and TDIU denial based on faulty reasoning

Summary

The Veteran served in the United States Army from 1968 to 1969.  He filed a claim for an increased rating for his service-connected post-traumatic stress disorder (PTSD) in May of 2007.  In this claim, the Veteran also requested that he be paid at the 100-percent level and receive a total disability rating due to individual unemployability (TDIU).  His claim was denied in September of 2007 and he filed an appeal in November of that same year.  In April of 2008, his rating was increased from 50% to 70% back to May of 2007, when he requested an increased rating.  In March of 2009, the Veteran was denied a rating above 70% and TDIU.  He filed an appeal in April of 2009 and was once again denied in August of 2009.  The Veteran then appealed his case to the Board of Veterans’ Appeals.

Board continues denial for increased rating for PTSD and TDIU

In April 2011, the Board issued a decision remanding the appeal for an updated VA examination.  The appeal returned to the Board and was remanded once again in December of 2013 in order to obtain updated treatment records and a new exam.  After updated treatment records were compiled and reviewed and the necessary exams were completed, the Board issued a new decision in September of 2015.  The Board denied the Veteran entitlement to an increased rating for his PTSD and TDIU.  The Board found that the Veteran’s PTSD symptoms did not constitute total occupational and social impairment, and did not meet the requirements for compensation at the 100% level.

CCK’s appeal to the CAVC

CCK successfully appealed to the Court of Appeals for Veteran’s Claims the Board decision that denied the Veteran an increased rating for PTSD as well as TDIU.  The Board relied on three VA examinations that found the Veteran’s PTSD symptoms did not impact his ability to perform activities of daily living.  The Board also determined the Veteran did not have total social impairment because the Veteran was able to eat meals in the company of his mother.  The Board found that the Veteran’s symptoms did not have an extreme enough impact on his ability to work to entitle him to TDIU.

CAVC agrees with CCK

CCK argued, and the Court agreed, that the Board erred in denying an increased rating for PTSD and TDIU.  The Board found that the Veteran was not entitled to a rating in excess of 70% for his PTSD.  The Board erred when it equated the Veteran’s regular contact with family members with a lack social impairment.  The Court noted that the 100% rating criteria requires total social impairment, not total social isolation.

The Court also found that the Board erred when it denied TIDU.  The Board erred when it accepted the conclusions of the VA examinations and failed to provide its own analysis of whether TDIU was warranted.  The Board also failed to consider the favorable opinions of record that found the Veteran was unemployable.  The Court set aside the Board’s decision and remanded the case for further development.

To read the Court’s decision, click here. 

Category: Court Wins