Client Win:CAVC No. 19-5619, Fernandez v. Wilkie (PTSD rating higher than 50-percent)
ISSUE ON APPEAL TO THE CAVC: PTSD rating higher than 50-percent.
The veteran appealed to the Board of Veterans Appeals (BVA) seeking a PTSD rating higher than 50-percent. The VA had performed a VA C&P examination and opinion in January 2019. Relying on that exam, the BVA found that the veteran was not entitled to a rating higher than 50% for his PTSD.
In its decision finding that the veteran was not entitled to a PTSD rating higher than 50-percent, the BVA focused on a couple categories of symptoms: family relationships, employment and treatment. The BVA noted the veteran's relationships with his children, ex-spouse, parents and his fear of crowds. The BVA surveyed the veteran's sporadic part-time work history (15-30 hours a week from 2015 - present). And the BVA considered that the veteran declined specialty mental health treatment and could get his prescriptions filled by his primary care provider.
Considering all of these factors, the BVA suggested that the veteran demonstrated occupational and social impairment in some but not most areas. The BVA noted that the veteran had not shown the inability to maintain relationships envisioned by the higher 70-percent mental health rating. As such, the BVA declined to award a PTSD rating higher than 50-percent.
RESOLUTION AT THE CAVC.
The veteran was represented in his CAVC appeal of the denial of a PTSD rating higher than 50-percent by attorney Alexandra Curran.
Ms. Curran argued that the BVA's analysis declining a PTSD rating higher than 50-percent, failed to consider the opinion of a July 2014 VA examiner who determined that Appellant’s “symptoms impair his functioning and productivity at all levels of functioning." And, in discussing the veteran's symptoms of social and occupational impairment, the BVA failed to consider the frequency, duration and severity of those symptoms.
Additionally, Ms. Curran noted that the veteran had asked for a BVA hearing, but the BVA failed to honor that request.
The VA Secretary, through his attorneys at the Office of General Counsel (OGC), agreed with attorney Alexandra the BVA erred on the grounds she asserted, above. Accordingly, the Court vacated the BVA decision and remanded the appeal for an assessment of whether the veteran is entitled to a PTSD rating higher than 50-percent.
If this sounds like your case, and the VA or BVA low-balled your PTSD rating, click here to have Attig | Steel take a look at your case.
OGC Attorney: Melissa A. Timbers (Link to attorney profile on OpenPayroll)
Veteran Representation at CAVC: Alexandra Curran (link to bio)
Board of Veterans Appeals Veterans Law Judge: Matthew W. Blackwelder (link to BVA attorney bio at FederalPay.org)
Vets’ Rep at BVA: Matthew D. Hill, Attorney (link to bio at Hill & Ponton website)
Date of BVA Decision: May 1, 2019
Date of CAVC Joint Motion to Remand: April 10, 2020