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Board erroneously denies Veteran increased rating in excess of 10% for PTSD, provides inadequate reasons and bases

Board erroneously denies Veteran increased rating in excess of 10% for PTSD, provides inadequate reasons and bases

Summary

The Veteran served on active duty in the Air Force from 1963 to 1967.  He filed a claim for service connection for PTSD in August 2004 and was denied. He appealed the denial and appeared to testify before the Board of Veterans’ Appeals in October 2006.  In September 2007, the Board remanded the claim for a new examination and additional evidence development.  After an examination in 2008, the Board remanded the case again in October.  It ordered an addendum opinion to the 2008 examination.  In April 2009 the Board ordered an additional addendum opinion from the examiner.  Finally, in August 2009 the DRO granted the Veteran service connection for PTSD with a noncompensible rating from August 2004, and a 10% disability rating from April 2008.

The Veteran disagreed with the assigned ratings and appealed to the Board.  In September 2014, the Board again remanded the Veteran’s claim for an examination to determine the nature and severity of his PTSD.  The Veteran was afforded that examination in September 2015.

Board denied  a rating in excess of 10% for PTSD, as well as a compensable rating prior to April 2008

In November 2016, the Board denied the Veteran an increased rating in excess of 10% for PTSD.  The Board found that prior to April 2008, the Veteran’s PTSD did not impair his social and occupational functioning to warrant a compensable rating.  Moreover, for the period after April 2008, the Board relied on the Veteran’s history of employment to find that he did not warrant a rating in excess of 10% for PTSD.

CCK appeals to the Court; CAVC agrees with CCK’s arguments

CCK argued that the Board failed to discuss evidence which might lead to a finding that a higher rating was in fact warranted for both time periods.  The Court agreed with this argument, finding that the Board was required to discuss all potentially favorable material evidence.  CCK was able to identify potentially favorable material evidence which the Board ignored.  CCK also argued, and the Court agreed, that the Board made findings that appeared to conflict with the record.  Finally, the Court agreed that although the Board mentioned some of the potentially favorable material evidence that CCK identified, it still erred because it failed to analyze it.  The Court reminded the Board that merely listing evidence before stating a conclusion does not constitute analysis.  On remand, the Board must provide an adequate statement of reasons and bases for its decision.

To read a copy of the Court’s decision, click here. 

Category: Court Wins

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