Army Veteran Wins TDIU Rating for PTSD After Improperly Rejected NOD

J.J. hired Friedman Disability to represent him in April of 2015 after the VA denied him a schedular rating of greater than 50 percent for his service-connected post-traumatic stress disorder (PTSD) and denied him a total disability rating based on individual unemployability (TDIU). The VA had also improperly rejected J.J.’s timely-filed Notice of Disagreement (NOD) to the 2014 decision, claiming that an NOD could not be filed for a disability that also had a pending claim (PTSD in this case).

J.J. enlisted in the United States Army in 2002, serving until he was honorably discharged in 2006. During J.J.’s term of service, he was regularly exposed to the fear of hostile military activity, and also suffered a traumatic brain injury (TBI) that exacerbated the impact of J.J.’s PTSD on his social and cognitive functioning. After J.J. was discharged, he struggled to hold down a job and to function socially, and his suicidal ideation worsened until he was hospitalized for ten months in 2012 following a suicide attempt. The VA granted J.J. a temporary 100 percent rating during his hospitalization, but did not increase the permanent rating for his PTSD above 50 percent despite J.J.’s lack of substantial improvement and the fact that suicidal ideation is a key criterion for a 70 percent or higher rating.

When J.J. came to Friedman Disability, our firm obtained his complete VA and private medical records in addition to his complete disability claims file. In order to supplement the favorable medical evidence already on record, our firm then obtained a Disability Benefits Questionnaire (DBQ) from J.J.’s treating psychologist, who found that J.J.’s PTSD and TBI caused total occupational impairment.

Our firm also reconstructed and explained to the VA in our NOD the procedural history of J.J.’s claim to prove that the VA had erred in rejecting his 2014 NOD: although pending claims and NODs cannot exist for the same condition simultaneously, when both are filed it is the VA’s responsibility to let the veteran choose which avenue to pursue rather than rejecting one in favor of the other. In a December 2015 rating decision the VA agreed with our analysis and awarded J.J. a 70 percent rating for his PTSD and a TDIU rating with a 2012 effective date. This resulted in an award of more than $67,000 in past-due benefits and current disability paid at the 100 percent rate.