Webb: Lack of a Clear Mental Health Diagnosis, Saunders and Walsh further considered.

Webb v. Wilkie, Case Number 18-0966, decided March 26, 2020 discusses an unusual situation where a veteran clearly has some type of mental health disability, but does not have a clear diagnosis.  The Court ultimately remanded without addressing the central question. 

This VA conceded a combat-related stressor but denied PTSD due to a lack of a current diagnosis.  The Board had previously remanded noting an examiner had found chronic symptoms and avoidance of activities.  A new examiner noted an unspecified cannabis related disorder.  The veteran argued a cannabis-related disorder is a common symptom of PTSD.  Another VA examiner then explained the veteran did not re-experiencing symptoms as required for a diagnosis of PTSD.  The Board denied the claim. 

The veteran principally argued “his symptoms caused functional impairment and, therefore, pursuant to Saunders, constitute a "current disability" for purposes of establishing entitlement to disability compensation.”  Id. at *4-5.

The Court recognized the Clemons and Saunders arguments, but focused instead on the adequacy of the underlying VA examinations.  It noted:

The Court cannot address whether the Board erred by relying on the 2014 and 2016 VA

examinations because the Board did not make any explicit findings regarding the adequacy of those examinations or explain which examinations it relied on to deny the appellant's claim and, to the extent that it implicitly found either or both examinations adequate, its reasons are not readily apparent.

***

For example, resolving these issues would require the Court to surmise which examination reports the Board implicitly considered adequate and probative and then, in the first instance, potentially review both medical examination reports to determine (1) whether, as argued by the appellant, they contain inconsistent findings regarding the presence of symptoms to satisfy the diagnostic criteria for PTSD or whether, as argued by the Secretary, the examination reports are adequate when read as a whole; and (2) whether the 2016 examiner provided an adequate rationale for finding no psychiatric diagnosis despite test results that showed the presence of the following symptoms: "anxious arousal, anxiety, depression, anger, intrusive experiences, defensive avoidance, dissociation, sexual disturbance[,] and tension reduction behavior."

Id. at *7.

As a result of the determination that a new medical may need to be ordered on remand, “the Court notes that the question of whether a claimant may establish entitlement to disability compensation for a psychiatric disability based on symptoms and functional impairment absent a DSM diagnosis may become a moot issue.”  Id. at *8. 

Interestingly, Judge Falvey wrote an opinion concurring and dissenting in part.  He stated

“I do not agree that a remand of the PTSD claim could moot the question of whether

service connection may be granted absent a DSM diagnosis.”  Id. at *10.  He then notes:

Mr. Webb doesn’t just want compensation for PTSD or a different condition found in the

DSM. Instead, he argues that VA must compensate him for any symptom even without a diagnosis.  Even if Mr. Webb is eventually awarded service connection for a psychiatric disability diagnosed under the DSM, his dispute, and the implications of having his question about non-DSM eligibility go undecided, will not be resolved. At their core, the two are different issues.

Id. at *10.  Judge Falvey does finally state how he would come down on this issue, but does suggest his potential future reasoning by framing the issue as jurisdictional and saying: 

If the rating schedule defines psychiatric disabilities based on the DSM, that definition may be beyond our jurisdiction.  "Congress precluded [this] Court from 'review[ing] the schedule of ratings for disabilities adopted under section 1155 . . . or any action of the Secretary in adopting or revising that schedule.'

Id. at *10.

This is an interesting decision as it aligns with the obesity decision in Walsh to capitalize on the Saunders decision and attack the VA’s focus on a diagnosed condition.

Decision by Judge Meredith and joined in by Judge Toth.  Dissent and concurrence by Judge Falvey.

To know more about whether Thomas Andrews can help you, please visit my website.