Case: 20-7701 Remand for Army Veteran’s denial of a Rating in Excess of 50 Percent for PTSD

Case: 20-7701

Facts of Case

The Veteran served in the Army from 1979 to 1985. She filed a claim for Post Traumatic Stress Disorder (PTSD) after working in the surgical clinic at the 2nd General Hospital in Germany during the Beirut Barracks Bombing in 1983. The experience left her with haunting memories and many symptoms of PTSD.

The Department of Veterans Affairs (VA) connected the veteran with a 50 percent rating. However, her facts warranted a higher rating of at least 70 percent because she was found to have suicidal ideation and many symptoms outlined in the higher ratings criteria.

The veteran appealed to the Board of Veterans’ Appeals (BVA), which continued to deny a rating in excess of 50 percent. In denying a rating in excess of 50 percent, the BVA relied on the fact that the veteran did not have any reported hospitalizations despite multiple notations of suicidal ideation. Further, the BVA focused on the fact that the veteran was not totally disabled, a requirement for a 100 percent rating.

The law says that neither the VA nor the BVA can rely on the absence of hospitalizations in order to gauge the severity of suicidal ideations when assessing a 70 percent rating. They also cannot apply a total disability 100 percent rating framework to the assessment of a 70 percent rating, which improperly melds the criteria of higher ratings with that of lower ratings.

The crux of the analysis is that the veteran must exhibit deficiencies in “most” areas within the ratings scheme to be entitled a 70 percent mental health rating. But suicidal ideation alone may entitle a Veteran to a 70 percent disability rating. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (finding the presence of suicidal ideation, alone, may cause social and occupational impairment with deficiencies in most areas). But it may be the case that a veteran could have suicidal ideation and not have deficiencies in most areas contemplated by the higher ratings brackets.

However, the VA and BVA here improperly assessed the effects of the veteran’s suicidal ideation with the lack of hospitalization in order to gauge the severity and argue that the veteran did not exhibit deficiencies in most areas as contemplated by the 70 percent ratings criteria. This is improper under Bankhead.

Moreover, the BVA impermissible melded the criteria for 70 percent and 100 percent evaluations under 38 C.F.R. § 4.130. Specifically, the Board determined that the suicidal ideation exhibited by the Veteran did not warrant an evaluation greater than 50 percent, despite more than one report of suicidal ideation, because the record reflected that she was “generally functioning satisfactorily.” Although a 100 percent evaluation under § 4.130 requires total occupational and social impairment, a 70 percent evaluation requires only occupational and social impairment with deficiencies in most areas. 38 C.F.R. § 4.130. Therefore, to the extent that the Board denied a 70 percent evaluation for on the basis that the veteran did not exhibit total occupational and social impairment – the level required for a 100 percent evaluation - it erred in applying a standard that exceeded that set forth in the relevant evaluation criteria. See Pernorio v. Derwinski, 2 Vet. App. 625, 628.

VA conceded the Errors and Offered a Joint Motion for Remand

The VA agreed that the BVA’s statement of reasons and bases were inadequate because it improperly used the lack of hospitalizations to gauge the severity of the veteran’s suicidal ideations and improperly melded the criteria of the 100 percent rating with that of the 70 percent rating.

The Court vacated the Board’s denial of a rating in excess of 50 percent for PTSD and remanded the claim back down to the Board to address these issues.

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