BVA failed to consider PTSD Rating greater than 50%
"Symptom hunting" is a common BVA error in a PTSD rating appeal, and we believed the BVA engaged in this practice when it denied our client anything more than a 50 percent PTSD rating.
Here's how it happens: using the list of examples of rateable symptoms in the VA's mental health diagnostic code, the BVA judge hunts through the record for those exact symptoms.
The problem with this approach is that assigning a PTSD rating is not a mechanical exercise - the BVA judge is required to conduct a "holistic analysis" of the Veteran's condition before assigning a rating. This requires evaluating - and comparing - the PTSD symptoms the veteran does have, and comparing their frequency, chronicity and severity to the VA's rating criteria for PTSD.
In this case, the BVA judge hunted for symptoms to support a 50 percent PTSD rating, and to deny TDIU.
After an extensive record review, and detailing the symptoms the veteran had which were not considered when the BVA judge assigned the 50 percent PTSD rating, the parties agreed to vacate the BVA decision and send it back through a Joint Motion to Remand.
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Link to the BVA Decision on CAVC Website.
Link to the Joint Motion to Remand the CAVC Website.
OGC Attorney: Shereen M. Marcus
Veteran Representation at CAVC: Chris Attig (link to bio)
Board of Veterans Appeals Veterans Law Judge: Derek R. Brown
Regional Office: Montgomery, Alabama VARO
Vets’ Rep at BVA: Adam Werner
Date of BVA Decision: March 15, 2016
Date of CAVC Judgment on Remand: January 21, 2017