Veteranclaims’s Blog

August 3, 2017

Single Judge Application; Bankhead v. Shulkin, No. 15-2404, 2017 WL 1131190, at *6 (Vet. App. Mar. 27, 2017); Suicidal Ideation;

Excerpt from decision below:

“The Court agrees with the appellant that the Board erred in its analysis of the appellant’s suicidal ideation. The Board acknowledged that the appellant “has reported occasional suicidal ideation.” R. at 15. The Board then stated that “the [appellant] has largely denied any suicidal intent, plan[,] or any attempt.” Id. This Court’s recent holding in Bankhead v. Shulkin makes clear that the “suicidal ideation” criterion under § 4.130 does not require suicidal intent, a plan, or preparatory behavior. No. 15-2404, 2017 WL 1131190, at *6 (Vet. App. Mar. 27, 2017) (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 be part of symptomatology sufficient to cause occupational and social impairment with deficiencies in most areas).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 15-2823
JIMMIE R. TURNER, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Jimmie R. Turner, through counsel, appeals a June 2, 2015, Board of Veterans’ Appeals (Board) decision in which the Board denied an initial disability rating over 50% for post-traumatic stress disorder (PTSD) and an earlier effective date for PTSD. Record of Proceedings (R.) at 1-24. This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a).
Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
For the following reasons, the Court will vacate the Board’s decision and remand the matter for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from November 1969 to August
1972. R. at 26. In July 2010, the appellant submitted a statement in support of his claim
requesting, among other things, the reopening of a previously denied PTSD claim. R. at 691-92.
In a clinical note dated that same month, the appellant’s treating physician noted that the
appellant had intermittent depression, insomnia, and reduced concentration. R. at 79. The
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doctor also noted that as a result of his PTSD symptoms, the appellant was unable to work as a
truck driver. Id.
An August 2010 treatment note stated that the appellant felt “chronically anxious” and
sometimes had a hard time being around other people due to his anxiety. R. at 77. A September
2010 VA medical report noted that the appellant was experiencing “major depression at a severe
intensity.” R. at 538. Additionally, the appellant reported that his depression and anxiety had
“prevented him from holding any one job for more than several months at a time for most of his
life.” Id. Further, the appellant reported that he was unemployed, having previously lost his job
as a truck driver because of the medications he was taking. R. at 539. When asked by the
examiner about suicidal ideation, the appellant stated that he had “control over it, but [it is] a
constant recurring thought.” R. at 540.
In January 2011, the appellant underwent a VA PTSD examination where the appellant
reported a progressive worsening of his PTSD symptoms since discharge from the military. R. at
471-86. The examiner noted that the appellant has a high school education and that he “had to
move from one job to the other because he could not sustain the stresses of a job for a reasonable
period of time.” R. at 475. The appellant reported “frequently get[ting] angry at work” and that
his PTSD symptomatology made it difficult for him to handle work stress. Id.
In September 2011, the regional office (RO) issued a rating decision granting service
connection for PTSD and major depressive disorder and awarding a 50% disability rating,
effective July 23, 2010. R. at 293-301. A November 2011 deferred rating decision noted the
issue of entitlement to total disability based on individual unemployability (TDIU) was
intertwined with the appellant’s PTSD claim and accordingly was remanded for further
development. R. at 261.
In April 2012, the appellant filed a claim of “[e]ntitlement to increased compensation
based on unemployability.” R. at 238. The appellant’s treating physician submitted a letter in
support of the appellant’s claim, stating that because of the appellant’s PTSD symptoms, he
“[gave] up his CDL professional truck driving license and is no longer physically or legally able
to drive professionally.” R. at 236. The appellant’s physician also stated that the appellant was
“totally disabled from any type of employment, even part time.” R. at 233.
In April 2013, the appellant stated that he experiences suicidal ideation, which the
examiner characterized as “suicidal thoughts but no suicidal intent.” R. at 191. A June 2013
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Statement of the Case continued the appellant’s 50% disability rating for PTSD and denied an
earlier effective date for PTSD. R. at 163-86. That same month, the RO denied the appellant’s
claim of entitlement to TDIU. R. at 151-59.
In March 2014, after development, the appellant testified before the Board, stating that he
had been divorced twice, and that he had to give up his parental rights because of “anger issues
with [his] wife.” R. at 1359-60. He also stated that he was isolated, and that his last job had
been in 2007. R. at 1360-62. Further, the appellant testified that he received Social Security
Disability income in part as a result of his PTSD. R. at 1366.
In June 2015, the Board issued the decision on appeal, denying an initial disability rating
in excess of 50% for PTSD and entitlement to TDIU. R. at 1-24. This appeal followed.
II. ANALYSIS
A. PTSD
The Board’s assignment of a disability rating is a finding of fact subject to the “clearly
erroneous” standard of review. 38 U.S.C. § 7261(a)(4); Smallwood v. Brown, 10 Vet.App. 93,
97 (1997). A finding of fact is clearly erroneous when the Court, after reviewing the entire
evidence, “is left with the definite and firm conviction that a mistake has been committed.”
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); Gilbert v. Derwinski, 1 Vet.App.
49, 52 (1990). As with any determination, the Board must provide a statement of the reasons or
bases adequate to enable an appellant to understand the precise basis for the Board’s decision as
well as to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App.
517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. To comply with this requirement, the Board must
analyze the credibility and probative value of the evidence, account for the evidence it finds
persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence
favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78
F.3d 604 (Fed. Cir. 1996) (table).
Under the current rating schedule for mental disorders, including PTSD, a 50% disability
rating is warranted when there is
[o]ccupational and social impairment with reduced reliability and productivity
due to such symptoms as: flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week; difficulty in
understanding complex commands; impairment of short- and long-term memory
4
(e.g., retention of only highly learned material, forgetting to complete tasks);
impaired judgment; impaired abstract thinking; disturbances of motivation and
mood; difficulty in establishing and maintaining effective work and social
relationships.
38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2016). A 70% disability rating is warranted
when there is
[o]ccupational and social impairment, with deficiencies in most areas, such as
work, school, family relations, judgment, thinking, or mood, due to such
symptoms as: suicidal ideation; obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure, or irrelevant; near-continuous
panic or depression affecting the ability to function independently, appropriately
and effectively; impaired impulse control (such as unprovoked irritability with
periods of violence); spatial disorientation; neglect of personal appearance and
hygiene; difficulty in adapting to stressful circumstances (including work or a
worklike setting); inability to establish and maintain effective relationships.
Id.
VA regulations state that “where there is a question as to which of two evaluations shall
be applied, the higher evaluation will be assigned if the disability picture more nearly
approximates the criteria for that rating. Otherwise, the lower rating will be assigned.” 38
C.F.R. § 4.7 (2016). The regulations also caution that “it is not expected . . . that all cases will
show all the findings specified in the [applicable DC].” 38 C.F.R. § 4.21 (2016). In Mauerhan
v. Principi, the Court held that the symptoms listed in DC 9411 are “not intended to constitute an
exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their
effects, that would justify a particular rating.” 16 Vet.App. 436, 442 (2006). The Court
concluded that “any suggestion that the Board was required, in complying with the regulation, to
find the presence of all, most, or even some, of the enumerated symptoms is unsupported by a
reading of the plain language of the regulation.” Id. Instead, the Board is required to “consider
all symptoms of a claimant’s condition that affect the level of occupational and social
impairment,” not just those listed in the regulation. Id. at 443.
Here, the appellant argues that the Board provided an inadequate statement of reasons or
bases as to why an initial disability rating in excess of 50% for PTSD was not warranted.
Appellant’s Brief (Br.) at 9. Specifically, the appellant argues that the Board erred by
determining that the appellant did not meet the 70% rating criterion for suicidal ideation because
his suicidal ideation did not include intent, a plan, or an attempt. Id. at 10. The Secretary argues
5
that the Board provided an adequate statement of reasons or bases for its decision and that the
Board’s assessment of the appellant’s suicidal ideation was correct. Secretary’s Br. at 14-22.
The Court agrees with the appellant that the Board erred in its analysis of the appellant’s
suicidal ideation. The Board acknowledged that the appellant “has reported occasional suicidal
ideation.” R. at 15. The Board then stated that “the [appellant] has largely denied any suicidal
intent, plan[,] or any attempt.” Id. This Court’s recent holding in Bankhead v. Shulkin makes
clear that the “suicidal ideation” criterion under § 4.130 does not require suicidal intent, a plan,
or preparatory behavior. No. 15-2404, 2017 WL 1131190, at *6 (Vet. App. Mar. 27, 2017) (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 be part of symptomatology sufficient to cause occupational and social impairment with
deficiencies in most areas). Although the Board is “not . . . absolutely prohibited from
considering [the appellant’s] risk of self-harm,” risk of self-harm is a concept separate and
distinct from “suicidal ideation,” which does not require any intent, plan, or action. Id. at *7.
Therefore, by analyzing whether the appellant intended or planned to commit suicide, or had
attempted suicide, the Board “erroneously grafted risk of self-harm onto the symptom of suicidal
ideation listed in the criteria for a 70% evaluation, negatively impacting the Board’s evaluation”
of the appellant’s service-connected PTSD. Id. Accordingly, the Board’s statement of reasons or
bases regarding the appellant’s suicidal ideation was inadequate, and the matter will be remanded
to the Board. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the
appropriate remedy “where the Board has incorrectly applied the law, failed to provide an
adequate statement of reasons or bases for its determinations, or where the record is otherwise
inadequate”).
B. TDIU
Total disability ratings will be assigned “when there is present any impairment of mind or
body which is sufficient to render it impossible for the average person to follow a substantially
gainful occupation.” 38 C.F.R. § 3.340(a) (2016). TDIU may be assigned to a veteran who
meets certain disability percentage thresholds and is “unable to secure or follow a substantially
gainful occupation as a result of service-connected disabilities.” 38 C.F.R. § 4.16(a) (2016). If a
veteran fails to meet the percentage standards set forth in § 4.16(a) but is “unemployable by
6
reason of service-connected disabilities,” the rating boards should submit the matter to the
Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b).
An award of TDIU does not require a showing of 100% unemployability. See Roberson
v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). However, an award of TDIU requires that the
claimant show an inability to undertake substantially gainful employment as a result of a serviceconnected
disability or disabilities. 38 C.F.R. § 4.16(b) (“[A]ll veterans who are unable to secure
and follow a substantially gainful occupation by reason of service-connected disabilities shall be
rated totally disabled.”). In determining whether a claimant is unable to secure or follow a
substantially gainful occupation, the central inquiry is “whether the veteran’s service-connected
disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown,
5 Vet.App. 524, 529 (1993). When making this determination, VA may not consider nonservice-
connected disabilities or advancing age. 38 C.F.R. §§ 3.341, 4.19 (2016); see also Van
Hoose v. Brown, 4 Vet.App. 361, 363 (1993).
Unlike the regular disability rating schedule, which is based on the average work-related
impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular
circumstances.” Rice v. Shinseki, 22 Vet.App. 447, 452 (2009). Therefore, when the Board
conducts a TDIU analysis, it must take into account the veteran’s education, training, and work
history. Hatlestad v. Derwinski, 1 Vet.App. 164, 168 (1991) (level of education is a factor in
deciding employability); see Friscia v. Brown, 7 Vet.App. 294, 295-97 (considering veteran’s
experience as a pilot, his training in business administration and computer programming, and his
history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet.App.
532, 534 (1994) (considering veteran’s eighth-grade education and sole occupation as a farmer);
Moore v. Derwinski, 1 Vet.App. 356, 357 (1991) (considering veteran’s master’s degree in
education and his part-time work as a tutor). Whether a claimant is unable to secure or follow
substantially gainful employment is a finding of fact that this Court reviews under the “clearly
erroneous” standard. 38 U.S.C. § 7261(a)(4); Bowling v. Principi, 15 Vet.App. 1, 6 (2001).
In the decision on appeal, the Board denied entitlement to TDIU. R. at 17-19. In
reaching its decision to deny entitlement, the Board noted that the appellant was receiving Social
Security Administration (SSA) disability benefits for his PTSD, but ever since SSA’s
determination of entitlement was rendered in 2001, the appellant’s “PTSD symptomatology
appears to have substantially improved.” R. at 17. As support for this proposition, the Board
7
pointed to multiple treatment records provided by the appellant’s treating physician. Id. In light
of the Court’s remand regarding the appellant’s PTSD, specifically regarding suicidal ideation,
the Court agrees with the appellant that the Board’s statement of reasons or bases regarding the
denial of entitlement to TDIU is inadequate.
Although the Board found that the appellant’s PTSD symptomatology appeared to be
“constantly improving . . . throughout the period on appeal” (R. at 19), the Court has already
noted that the Board’s statement of reasons or bases was inadequate for denying the appellant a
70% disability rating for PTSD because the Board “erroneously grafted risk of self-harm onto the
symptom of suicidal ideation listed in the criteria for a 70% evaluation.” See Bankhead, supra.
In denying entitlement to TDIU, the Board relied in part on the April 2013 VA examination,
which explicitly noted the appellant’s suicidal ideation. R. at 191. Because the Board used a
medical examination that identified the appellant’s suicidal ideation to deny entitlement to TDIU,
and because the Board did not properly analyze the appellant’s suicidal ideation in the context of
his PTSD, the Board could not have opined with any certainty that the appellant’s PTSD
symptoms had “substantially improved” over the past 14 years. Accordingly, the Board’s
statement of reasons or bases regarding TDIU is inadequate and the Court will remand the matter
for further adjudication. See Tucker, Allday, and Caluza, all supra.
C. Additional Arguments
Given this disposition, the Court will not, at this time, address the other arguments and issues
raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order)
(holding that “[a] narrow decision preserves for the appellant an opportunity to argue those
claimed errors before the Board at the readjudication, and, of course, before this Court in an
appeal, should the Board rule against him”). On remand, the appellant is free to submit
additional evidence and argument on the remanded matters, and the Board is required to consider
any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002)
(stating that, on remand, the Board must consider additional evidence and argument in assessing
entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per
curiam order). The Court has held that “[a] remand is meant to entail a critical examination of
the justification for the decision.” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The
Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring the Secretary
to provide for “expeditious treatment” of claims remanded by the Court).
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III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and a review of the
record, the Board’s June 2, 2015, decision is VACATED and the matter is REMANDED to the
Board for further proceedings consistent with this decision.
DATED: April 25, 2017
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)

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