Member Loyal sent this one in. It’s a 2012 decision, too. It’s very unique for two reasons. The first being the Director of Comp. and Pensions denied the Vet for the extraschedular and then the VLJ promptly overturns the decision. This is rarer that a faery Blue moon with 8 rings around it.
Here’s a piece.
Conversely, the Director of Compensation and Pension found that the evidence did not demonstrate the Veteran’s service-connected PTSD was more disabling than the 50% assigned under the schedular criteria and there was no exceptional or unusual disability picture that rendered the schedular criteria inadequate. He further found that the evidence did not establish that the Veteran is unemployed and unemployable due to service-connected disabilities. However, because the Director provided no rationale in support of the opinion, it appears to be conclusory. We therefore afford that opinion relatively low probative value.
In addition, it is observed that the evidentiary record documents the Veteran’s complaints pertaining to a non-service-connected back disorder and he has, at times, expressed concern about his ability to work due to his back and leg pain such as in a June 2002 treatment record. However, it is notable that the Veteran’s treating psychiatrist specifically wrote in a past October 2000 treatment record that the Veteran’s psychiatric and physical (i.e., recurrent and chronic back pain) complaints were intertwined and inseparable. Similarly, the Veteran’s orthopedist wrote in a March 2003 treatment record that most of the Veteran’s reported symptoms were a manifestation of his psychiatric disability and he definitely needed to follow-up with his psychiatrist regarding such complaints.
Further, the Veteran is shown to have been diagnosed with psychiatric disorders other than PTSD by mental health professionals at various times relevant to the claim/appeal period, which are not service-connected. However, as it relates to psychiatric symptomatology attributable to these nonservice-connected psychiatric disorders for which the Veteran is currently diagnosed, the Board notes that it is not always clearly distinguishable which symptoms are attributable to the service-connected PTSD with insomnia or otherwise to a non-service-connected psychiatric disorder. For example, the October 2006 VA PTSD examiner specifically wrote that many of the Veteran’s PTSD symptoms overlapped considerably with major depression. Therefore, the Board has considered all of the Veteran’s psychiatric symptoms and diagnoses as part of his service-connected psychiatric disability in reaching its decision regarding entitlement to a TDIU. Mittleider v. West, 11 Vet. App. 181, 182 (1998).
Thus, upon consideration of the foregoing, the Board resolves reasonable doubt in favor of the Veteran in finding that he is unable to secure and follow a substantially gainful occupation by reason of service-connected PTSD. Giving the benefit of the doubt to the Veteran, the Board finds that he is entitled to an award of TDIU on an extraschedular basis. 38 C.F.R. §§ 4.3, 4.7.
You can send thank you letters to:
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans’ Appeals 810 Vermont Ave. NE Washington, D.C. 20420