Client Win: CAVC No. 20-5734, Brown-Leonard v. McDonough (Major depressive disorder rating)
This case involves an Army veteran who served on active duty in 1991 and then from 2008 to 2009 who was seeking a service-connected major depressive disorder rating in excess of 30%.
The appeal was resolved through a joint motion to remand.
ISSUE ON APPEAL TO THE CAVC (Major depressive disorder rating)
A major depressive disorder rating is established using the criteria in the VA Schedule of Ratings for psychiatric disabilities. 38 C.F.R. §4.130. A veteran establishes a major depressive disorder rating by demonstrating the severity, frequency and durations of symptoms on that rating schedule. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013).
One of the criteria for a 70% major depressive disorder rating is the presence of suicidal ideation. Bankhead v. Shinseki, 29 Vet. App. 10 (2017). Suicidal ideation includes passing thoughts of suicide, that life would be better without you, wishing you were dead, daydreaming about being dead - thoughts are ideation. To establish a 70% rating, a veteran does not need to show suicide plans or attempts; the presence of suicidal ideation - alone may cause occupational or social impairment with deficiencies in most areas.
RESOLUTION AT THE CAVC.
The BVA failed to discuss a medical evidence and medical evaluation reports that, since at least 2015, the veteran experienced major depressive disorder symptoms such as depressed mood, diminished interest, loss of appetite, insomnia, fatigue and loss of energy, diminished concentration, and recurrent thoughts of suicidal ideation. The veteran had been referred for psychiatric treatment specifically for suicidal ideation in 2014.
When evaluating the evidence for the veteran's major depressive disorder rating, the BVA commented that the veteran's suicide was merely "fleeting suicidal ideation, without intention or plan."
The parties agreed that the BVA erred when it required evidence of more than thoughts of suicide to support a 70% major depressive disorder rating.
To be clear: veterans NEVER need to show suicidal intent or plan. And there is no such thing as "fleeting" suicidal ideation. Suicidal ideation is the existence of mere thoughts of suicide.
If you believe the VA or BVA has low-balled your major depressive disorder rating, or if you experience suicidal ideation as a symptom of any service connected psychiatric condition that the VA or BVA ignored, click here to have Attig | Curran | Steel take a look at your case.
OGC Attorney: Shekeba Morrad (link to attorney's bio on LinkedIn)
Veteran Representation at CAVC: Alexandra Curran (link to bio)
Board of Veterans Appeals Veterans Law Judge: Kalpana M. Parakkal (link to bio on Federal Pay website)
Attorney for the BVA: Kristen J. Kunz (we believe this is the attorney's LinkedIn bio - if we are wrong, email us and let us know)
Vets’ Rep at BVA: Matthew D. Hill (link to attorney bio on LinkedIn)
Date of BVA Decision:April 17, 2020
Date of CAVC Joint Motion to Remand: March 3, 2021
Link to CAVC Joint Motion to Remand