Mayhue: PTSD, Earlier Effective Dates, and TDIU

Mayhue: PTSD and Earlier Effective Dates

The decision in Samuel L. Mayhue v. Eric K. Shinkseki, Opinion Number 09-0014, decided January 18, 2011, involved fixing the proper disability rating for a veteran suffering from PTSD.

The veteran had previously applied for service connection for PTSD in 1995 but did not attend a compensation and pension examination. His claim was denied. He sough to reopen his claim in 2000 which was initially denied but then granted in 2005 effective from 2000 based on stressor verification showing his unit was attacked several times in Vietnam. The veteran appealed seeking a higher rating for his PTSD, an earlier effective date, and a TDIU. The VA increased his rating to 70% but otherwise denied an earlier effective date and TDIU.

Here, the Court applied 38 CFR 3.156(c)(2) which allows for an earlier effective rating as early as the date of the original claim when a claim is reconsidered based on newly discovered service records. The veteran had initially claimed various specific allegations including witnessing a friend’s death and fleeing from attack on road duty but was ultimately granted based on attacks on his unit. He had failed to complete a stressor worksheet and return it during but the Court said 3.156 still applied because all the VA needed to verify the attacks on his unit was his unit number.

The Court also granted remand on the claim for TDIU. The VA had only considered evidence for purposes of TDIU that was one year prior to the date the veteran specifically requested TDIU, which was in his NOD. The Court clarified the request for TDIU was not a new claim because it was received within one year of the VARO decision granting PTSD and should have been considered when determining the appropriate rating. Thus, evidence of unemployment from prior to the year before specifically requesting TDIU could come in and result in an earlier effective date for TDIU.

The veteran also sought a higher schedular disability rating for his PTSD based on a failure to provide adequate statement of reasons or bases. The Court refused to remand on this issue as the BVA had thoroughly discussed his disability picture and explained why his symptoms more nearly approximated a 70% rating than a 100% rating.

The Court’s 38 CFR 3.156(c)(2) analysis is helpful as I’ve seen several veterans claiming PTSD who were initially denied when it was determined very specific reported stressors were deemed to be unable to be verified and then they were later service connected after showing a unit was attacked.

Decided by J. Hagel, Moorman and Lance.