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.