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BVA Failed to Consider 70 PTSD Rating criteria

BVA Failed to Consider 70 PTSD Rating criteria

The law firm of Hill and Ponton approached Attig | Steel after the BVA judge denied their veteran a higher 70 percent PTSD rating. They had put a lot of work and energy into helping a veteran, and the BVA decision seemed to gloss over their thorough presentation of PTSD symptomatology.

This case had 2 major issues - both of which were fixed by Attig | Steel on appeal to the Court of Appeals for Veterans Claims:

1) the BVA did not consider a 70 percent PTSD rating (or higher) for this veteran's service connected PTSD, and,

2) the BVA decision rating the veteran's vertigo under a rating code that did not maximize the veteran's disability compensation.

First, the BVA did not consider the 70 percent PTSD rating criteria, such as the veteran's  suicidal ideation or auditory hallucinations. (While a 70 percent PTSD rating does not require suicidal ideation, the BVA errs when it does not consider, holistically, the symptoms of a veteran's PTSD).

In granting a 30 percent PTSD rating for one part of a rating period and a 50 percent PTSD rating for another part, the BVA also failed to consider that the veteran's PTSD medication caused him to sleep 15-16 hours at a time and  required he seek a reduced work schedule.

The BVA did not consider (people calling his name and warning him) and “seeing visions in the past”, and that other PTSD symptoms were more severe than assessed in the BVA  decision:

  • suicidal ideation
  • problems with memory
  • sleep or cognitive processing
  • irritability with temper problems
  • cognitive difficulties
  • mood, temper and temperament problems
  • multiple divorces
  • concerns of domestic violence
  • notation of a poisoned relationship with his immediate family members
  • a severe impact on the veteran's ability to work.

Second, the BVA erred when it rated the veteran's unlisted vertigo under a Diagnostic Code (DC) 6204, which is used to evaluate peripheral vestibular disorders.  Because the condition more closely approximated Meniere's Syndrome, the BVA erred when it failed to consider a higher rating under the provisions of DC 6205 (Meniere’s syndrome). Instead, the BVA found  DC 6205 did not apply because Appellant was not diagnosed with Meniere’s syndrome: a classic BVA misunderstanding of the concept of "rating by analogy".

Attig | Steel coordinated with the law firm of Hill & Ponton to handle the veteran's remand to the BVA. 

Does this case sound like your VA Rating Decision or BVA Decision? If so, click here to have  Attig | Steel take a look at your case.

Link to the BVA Decision on CAVC Website.

Link to the Joint Motion to Remand the CAVC Website.

Case Details

OGC Attorney: Michael G. Imber

Veteran Representation at CAVC: Chris Attig (link to bio)

Board of Veterans Appeals Veterans Law Judge:Matthew W. Blackwelder

Regional Office: St. Petersburg, Florida VARO

Vets’ Rep at BVA: Sara K. Hill (link to bio)

Date of BVA Decision: February 23, 2017

Date of CAVC Judgment on Remand: December 21, 2017

 

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