"It is the duty of the people to care for him who shall have borne the battle, his widow, and orphan."
-Abraham Lincoln

Friday, April 21, 2017

Cantrell: TDIU and the “Protected Environment”

Cantrellv. Shulkin, Case Number 15-3439, decided April 17, 2017 considers whether the term “protected environment” in the TDIU context.

The veteran worked as a park ranger, but had significant bilateral hip pain and gastrointestinal issues.  He sought an award of TDIU stating he worked in a protected environment in light of the substantial and numerous accommodations provided by the employer.  and was denied by the Board which found he did not work in a “protected environment.”  The veteran appealed.
During the case, the Court specifically ordered the VA to provide its definition of a protected environment and was told that "VA has purposely chosen not to prescribe a
precise definition of 'protected environment,' allowing the factfinder to make the determination on a case-by-case basis."  Id. at *10.

The Court did not take well to the VA’s position stating “VA's failure to define employment "in a protected environment" or to otherwise specify the factors that adjudicators should consider in making that determination frustrates judicial review of that issue because the Court is unable to meaningfully assess the propriety of the Board's reliance on the factors it cited in this case. The Court simply cannot sanction a statement of reasons or bases that amounts to finding that Mr. Cantrell was not employed in a protected environment  "because I say so." Accordingly, the Court concludes that the Board provided inadequate reasons or bases for denying entitlement to TDIU, necessitating remand.”  Id. at *11-12 (internal citations omitted).

The Court found the term “protected environment” was ambiguous, but declined to define the term at this time instead remanding giving the VA an opportunity to first define the term.

Judge Lance concurred but focused on stating the veteran’s income should impact the calculation (i.e., “whether the claimant receives the same pay as similarly situated coworkers who are not disabled—is also a factor relevant to whether the claimant is employed in a protected”).  He also noted the impact of the ADA and that employers must provide reasonable accommodations and that where an employer must do so payment of TDIU could constitute a “second paycheck on the back of the taxpayer.”
environment.

The decision exposes what has long been recognized as a glaring failure by the VA to really define protected work environments.  However, I fear it will only result in an adoption of a definition by the VA that is anything but veteran friendly.


Decision by Judge Bartley, joined in by Judge Schoelen with a concurring opinion by Judge Lance.

Thursday, April 20, 2017

Bankhead: Mental Health Ratings Examined

Bankhead v. Shulkin, Case Number 15-2404, decided March 27, 2017 examines the necessary requirements for mental health ratings and looks especially at the term “suicidal ideation.”
The Board granted a rating of 50% for a major depressive disorder but refused a higher rating.  “The Board recognized that the veteran exhibited many of the symptoms related to a higher disability evaluation, including suicidal ideation, irritability, difficulty sleeping, depression, social isolation, panic attacks, and memory impairment. Nevertheless, the Board concluded that those symptoms did not manifest with sufficient frequency and severity to meet the criteria for a higher evaluation.”  Id. at *6.  The veteran appealed.

First, the veteran attacked the Board’s interpretation of suicidal ideation.  The Court considered the various definitions of suicidal ideation and concluded “In sum, both passive and active suicidal ideation are comprised of thoughts: passive suicidal ideation entails thoughts such as wishing that you were dead, while active suicidal ideation entails thoughts of self-directed violence and death.”  Id. at *10.

It then determined:

The criteria for a 70% evaluation under § 4.130 lists "suicidal ideation" as a symptom VA
deems representative of occupational and social impairment with deficiencies in most areas.  Suicidal ideation appears only in the 70% evaluation criteria. There are no analogues at the lower evaluation levels.  Additionally, there are no descriptors, modifiers, or indicators as to suicidal ideation in the 70% criteria (including no specific mention of "active" suicidal ideation, "passive" suicidal ideation, suicidal "intent," suicidal "plan," suicidal "prepatory behavior," hospitalization, or past suicide attempts). Thus, the language of the regulation indicates that the presence of suicidal ideation alone,
that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.

Id. at *10-11 (internal quotations omitted).

The Court noted the record reflected recurrent suicidal thoughts of varying severity, frequency and duration, but noted the Board determined “passive” suicidal ideation did not rise to the level contemplated by a 70% or 100% rating “because he was "at sufficiently low risk of self-harm throughout the period," he had been "consistently treated on an outpatient basis during the period at issue" and there were "no instances where he was hospitalized or treated on an inpatient basis or domiciliary care," "his treating sources have considered his assurances that he would refrain from self-harm to be credible," and he "retained some social and occupational functioning."  Id. at *11.  The Court explained the Board erred because it required evidence more than thoughts to establish suicidal ideation or that he had been hospitalized or treated on an inpatient basis. 

The Court then took a moment to instruct that “[t]he presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria is not necessarily dispositive of any particular disability level, even though, as noted, the Federal Circuit in Vazquez-Claudio found it pertinent that the severity, frequency, and duration of a symptom such as memory loss could be tracked through several disability levels.  In any event, however, VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment.” Id. at *14.

The Court remanded for such a determination.  It also found fault with the failure to consider higher staged ratings as the Board focused on lower ratings.  Finally, it denied the veteran’s argument that the issue of TDIU had been reasonably raised.  It noted problems at work, but stated they did not rise to a suggestion of unemployability.

This decision is a master source for attacking the VA’s often erroneous mental health ratings, which frequently graft limiting language to the plain language of the Diagnostic Code.


Decision by Judge Bartley, joined by Judges Schoelen and Greenberg.