The cause number of this appeal, and the veteran's name, have been withheld to protect the veteran's privacy.
In this case, the BVA denied an increased rating of 70% to a veteran for his service-connected PTSD. The BVA also found the veteran was not entitled to TDIU. The veteran appealed the BVA's decision to the U.S. Court of Appeals for Veterans Claims (CAVC). The appeal was handled by Alexandra Curran, an appellate attorney at the law firm of Attig | Steel.
The appeal was resolved through a joint motion to remand. The VA's attorney agreed with Ms. Curran's arguments that the BVA erred when it found that an increased VA rating for a mental health condition was not warranted. The VA also agreed that the BVA erred when it found the veteran did not raise the issue of TDIU when he sought an increased rating for the veteran's disabilities.
There were two issues in this appeal.
The first issue involves how the BVA should consider evidence of suicide when assessing a mental health impairment rating. Suicidal ideation, that is, thoughts of death or thoughts of engaging in suicide-related conduct, may be evidence indicative of a 70 percent rating for PTSD or any mental health condition.
Many times, the VA will find that the veteran did not experience suicidal ideation because he or she did not have a specific plan or time frame. However, the rating criteria do not require a veteran provide evidence of specific means, plans or time frames. Suicidal ideation - thoughts of death or thoughts of engaging in suicide-related conduct - may be sufficient evidence to support a 70 percent rating for a psychiatric disability.
Any reports of suicidal ideation should be considered in the context of an increased rating claim, as they are a critical factor in the VA rating schedule that supports a higher rating for a mental health condition.
For attorneys representing veterans before the BVA and VA, do not limit your argument for a 70 percent rating to evidence of suicidal ideation. While it is a powerful rating factor, evidence showing that a veteran is in a state of continuous panic or depression affecting the ability to function independently or appropriately, has deficiencies in most areas (work, school family relations, etc), and evidence of a veteran's persistent danger of hurting himself/ herself or others is equally powerful.
The second issue in this appeal involve the veteran's entitlement to TDIU. Even if a veteran does not make an explicit claim for TDIU, if he or she seeks an increased rating and submits (or the file already includes) evidence of unemployability, the VA must consider entitlement to TDIU. Thus, the BVA (or the VA in a rating decision) errs when it fails to address TDIU under those circumstances.
Evidence of unemployability includes, but is not limited to, missed time from work, verbal or physical altercations with colleagues or supervisors, modifications to schedule such as change in shift or assigned duties, inability to work with others, and problems related to trouble with memory, focus and concentration.
It is worth noting that some of these symptoms overlap with the symptoms of occupational and social impairment that one might expect the BVA to consider when issuing a disability rating for a mental health condition. However, the BVA may not use the legal standard for a PTSD rating as a basis for denying TDIU.
The VA Office of General Counsel agreed that the BVA erred in denying a rating greater than 50% for PTSD, and that the BVA's finding that TDIU was not reasonably raised by the record lacked adequate reasons and bases. The appeal is on its way back to the BVA for these errors to be fixed.
If you have a case where the BVA failed to properly consider suicidal ideation in rating your PTSD or mental health condition, or the BVA failed to consider TDIU in your appeal, and if you would like us to take a look at your BVA decision for possible appeal to the Court of Appeals for Veterans Claims (CAVC), click here to have Attig | Steel take a look at your case.
OGC Attorney: James L. Heiberg
Board of Veterans Appeals Veterans Law Judge: Amy C. Ishizawar
Vets’ Rep at BVA: Veterans of Foreign Wars (VFW)
Date of BVA Decision: July 11, 2018 (Link to redacted BVA Decision)
Date of Joint Motion to Remand: January 2019