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.
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