On March 27, 2017, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Bankhead v. Shulkin, vacating and remanding the Board of Veterans’ Appeals (Board) decision denying entitlement to a rating greater than 50% for major depressive disorder.
The Court examined the term “suicidal ideation” located in 38 C.F.R. § 4.130’s criteria for a 70% disability evaluation for a service-connected psychiatric disorder.
Mr. Bankhead, the veteran, argued that the Board “mischaracterized his suicidal ideation as wholly ‘passive,’ conflated suicidal ideation with risk of self-harm, and failed to adequately explain why fluctuations in suicidal ideation and impaired impulse control did not, at a minimum, warrant the assignment of staged evaluations.”
The Court initially addressed the list of symptoms contained in the 50%, 70%, and 100% evaluations and reaffirmed the well-established idea that the list is non-exhaustive, indicating that VA does not need to find the presence of all of the symptoms to assign a particular evaluation. The Court also restated the concept that “although the veteran’s symptoms are the ‘primary consideration’ in assigning a disability evaluation under § 4.130, the determination as to whether the veteran is entitled to a particular evaluation ‘also requires an ultimate factual conclusion as to the veteran’’ level of [occupational and social] impairment. . . .’”
The Court then discussed the concept of “suicidal ideation,” a symptom listed under the 70% rating criteria for a psychiatric disorder. It found, after explaining various definitions, studies and VA practice guidelines, that “both passive and active suicidal ideation are comprised of thoughts. . . .” And it further commented that the language of the VA regulation indicates the presence of suicidal ideation alone is sufficient without “descriptors, modifiers, or indicators.”
The evidence specific to Mr. Bankhead’s case demonstrated numerous suicidal thoughts and behaviors of varying severity, frequency, and duration. The Board recognized this, but it determined that the veteran’s “passive” suicidal ideation did not rise to the level contemplated in a 70% rating because he (1) was at a low risk of self-harm, (2) had been treated on an outpatient basis, (3) retained social and occupational functioning, and (4) assured treating sources that he would refrain from self-harm.
Based on the particular facts in the case, the Court found that the Board “erroneously grafted risk of self-harm onto the symptom of suicidal ideation listed in the criteria for a 70% evaluation.” The Court also found that the Board erred by imposing a higher standard than in the rating criteria by requiring that the veteran had to be hospitalized or treated on an inpatient basis. Significantly, the Court stated that “although the mental disorders rating schedule provides leeway for VA adjudicators to consider symptoms a veteran experiences that are not listed in the schedule, VA is not at liberty to create evaluation criteria out of thin air in an individual case and then use the absence of those criteria in the veteran’s records to deny a particular mental disorder evaluation.”
Read a full Court decision.
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