Client Win: CAVC No. 20-4774, Scott v. McDonough (BVA ignores evidence of total occupational and social impairment)
This case involves involves an Air Force veteran (2000, 2003 - 2004) and his appeal to the BVA seeking a rating above 50% for his service-connected PTSD due to suicidal ideation and total occupational and social impairment. The appeal was resolved through a joint motion to remand.
ISSUE ON APPEAL TO THE CAVC (BVA ignores evidence of total occupational and social impairment)
The Board of Veterans Appeals must include a written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record. 38 U.S.C. § 7401(d)(1).
The BVA also has a duty to analyze the probative value of evidence, account for that which it finds persuasive or unpersuasive, and explain the basis for its rejection of evidence materially favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995).
In this case, the issue was whether the BVA erred when it awarded only a 50-percent rating for PTSD without discussing favorable evidence of total occupational and social impairment due to the veteran's PTSD.
RESOLUTION AT THE CAVC.
In February of 2018, the veteran’s private psychologist concluded that the veteran had total occupational and social impairment. The Board failed to address this opinion, as well as lay statements from the veteran’s mother and ex-wife.
The Board also noted that the veteran has shown suicidal ideation. However, there was evidence that indicated the veteran experienced suicidal ideation in recent years. The Board did not reconcile its 50% rating with the veteran’s statements that he continued to experience these thoughts in the present day.
Total occupational and social impairment is a factor related to a 100% rating for PTSD. Suicidal ideation is a symptom that is emblematic of a 70-percent rating.
The VA Office of General Counsel attorney agreed that the Board erred when it failed to provide an adequate statement of reasons or bases for its decision awarding only a 50% rating for PTSD.
If you believe that the VA has issued a ratings decision that does not properly rate your service-connected PTSD, or a BVA decision denying you service connection or a proper VA PTSD rating, and would like help appealing to the BVA or the CAVC, click here to have Attig | Curran | Steel take a look at your case.
Case Details
OGC Attorney: Lishayne King (link to attorney's bio on OpenGovNY.com)
Veteran Representation at CAVC: Alexandra Curran (link to bio)
Board of Veterans Appeals Veterans Law Judge: L. Howell (link to our firm's cases involving Judge Howell's decisions)
Attorney for the VA at the Board: T. Kokolas
Vets’ Rep at BVA: Brian D. Hill, Attorney (link to attorney's bio on Hill and Ponton website)
Date of BVA Decision: March 16, 2020
Date of CAVC Joint Motion to Remand: February 8, 2021
Link to CAVC Joint Motion to Remand
