The need for adequate reasons and bases from a BVA Judge is particularly acute when the findings and conclusions pertain to the degree of disability resulting from a mental health condition. Mittleider v. West, 11 Vet. App 181 (1998).
In rating PTSD, proof of “difficulty” establishing relationships supports a 50% rating while a 70% rating requires an “inability” to establish relationships; the BVA limited the veteran to a 30% rating for his PTSD, finding that he had “some problems” in establishing and maintaining effective work and social relationships.
Does the BVA err when it denies the appellant an increased PTSD rating from 30% to 50% by using the criteria for a 70%
The CAVC vacated and remanded for the BVA to consider the proper symptoms for rating PTSD in light of the actual language of the VA Diagnostic Codes' PTSD rating criteria.
The Veterans Court decision made the point clear, stating that the BVA conflated the standard required for a 50% PTSD rating with the standard required for a 70% PTSD rating.
The veteran's PTSD rating, in this case, required consideration of the fact that he had an ability to establish and maintain effective work and social relationships.
The 50% PTSD rating criteria contemplates a difficulty establishing those relationships, and the 70% PTSD rating criteria contemplates an inability to establish relationships.
1. Paying attention to words in the VA Diagnostic Code's rating criteria.
Proving that your client’s disability picture equates to a certain rating level is one of the more challenging aspects of veterans law.
It requires not only an understanding of how to prove various symptoms with lay and medical evidence, but also how to prove the subtle - and not so subtle - gradations in varying percentages.
Rating criteria for mental health conditions are notoriously subtle in their distinctions.
Here, the difference between a 50% PTSD rating and 70% PTSD rating turns on a single word: is the veteran unable to establish relationships (70%) or does he have mere difficulty establishing them (50%)?
Because the past due on this case dates back over 12 years, the difference in monthly past-due attributable to this single word in the PTSD rating criteria could be somewhere in the vicinity of $72,000.
2. Wins and Losses at the BVA turn on fact, not law.
Every decision from an appellate court turns more or less on the quality and strength of the facts.
Judge Schoelen’s approach to a decision is consistent from case to case: the Judge lays out core facts, followed by the party’s positions, a decision, and applies the law to the facts to provide the necessary reasoning.
Decisions in this style - whether we agree with the outcome or not - invariably demonstrate two things. First, the power of having the right facts in your record when you seek judicial review at federal appellate court. Second, how a judge or the court might apply the law to a particular set of facts.
If you are a practitioner at the BVA grappling with how to prove a particular legal element, hop on Lexis or Westlaw and study Judge Schoelen’s decisions on similar elements to those at issue in your case.
Her decisions can really help you evaluate the actual weight of various types of facts in a particular legal element.
Deciding Judge: Judge Mary J. Schoelen (link to bio on CAVC website)
OGC Attorney: James L. Heiberg
Veteran Representation at CAVC:Christopher Boudi, Esq.
Board of Veterans Appeals Veterans Law Judge: Jacqueline E. Monroe
VA Regional Office: Chicago, Illinois
Veteran's Rep at BVA: Bosley & Bratch
Date of Decision: October 18, 2017
* Photograph of Judge Mary J. Schoelen courtesy Claire Duggan, who is believed to hold the copyright.