Navy Veteran Wins TDIU Rating for PTSD from In-Service Personal Assault

In February 2012, S.M. hired Friedman Disability after the VA denied his claim for service connection for his post-traumatic stress disorder (PTSD) caused by an in-service personal assault. The VA had erroneously ruled that S.M. failed to prove such an assault occurred.

S.M. enlisted in the United States Navy in 1976, and was honorably discharged in 1980 after he was assaulted by two fellow service members and taken to a hospital by a stranger for care. S.M.’s discharge papers noted that he was having trouble sleeping and suffered from depression, early signs of the PTSD caused by this assault.

In spite of this favorable evidence, and S.M.’s subsequent inability to follow a substantially gainful occupation because his anger and irritability resulted in his inability to relate effectively to his coworkers and supervisors, the VA denied his claim for service connection for PTSD in a 2011 rating decision.

The Seattle Regional Office ruled that S.M. had failed to prove he ever had been assaulted. Our firm filed a notice of disagreement to this denial. Mr. Friedman represented S.M. at in-person hearing before a decision review officer at the regional office. Our firm also obtained lay witness statements supporting S.M.’s claim, showing that his personality had changed over the course of his service.

To support S.M.’s claim, our firm also referred him to, and obtained a report from an examining psychiatrist, Dr. H., who has extensive experience diagnosing and treating veterans with PTSD. Based on Dr. H.’s detailed examination report and opinion that S.M. had PTSD, our firm proved to the VA that the claimed in-service stressor had more likely than not occurred. In a 2015 rating decision, the VA granted S.M. a 50 percent schedular rating for his PTSD resulting in an award of more than $51,000 in past-due benefits.

Our firm and S.M. were not satisfied with the 50 percent disability rating, given that S.M. had been unable to work since 2011, and that the medical evidence of record indicated that S.M was unable to secure or follow a substantially gainful occupation. Our firm, therefore, filed a second NOD showing that S.M.’s PTSD warranted at least a 70 percent schedular rating, and that he was entitled to a total disability rating based on individual unemployability (TDIU). Mr. Friedman then represented S.M. at a second administrative hearing before a decision review officer at the regional office.

Based on S.M.’s hearing testimony and our written arguments, the VA in a January 2018 rating decision granted S.M. a TDIU rating for his PTSD with major depression and alcohol dependence. This resulted in a second award of more than $143,000 in past-due benefits, and current disability paid at the 100 percent rate.