Client Win: CAVC No. 21-2655, (BVA overlooked evidence of suicidal ideation in claim for an increased PTSD rating)
This case involves the BVA judge's inadequate reasoning of a denial of a veteran's claim for an increased rating for PTSD.
The appeal was resolved through a joint motion to remand.
ISSUE ON APPEAL TO THE CAVC (BVA overlooked evidence of suicidal ideation in claim for an increased PTSD rating)
In this case, the question before the Court was whether the BVA provided inadequate reasons and bases for its denial of an increased PTSD rating.
RESOLUTION AT THE CAVC.
This case was resolved through a Joint Motion to Remand.
The parties agreed that the BVA judge failed to consider the impact of suicidal ideation in denying an increased rating for PTSD greater than 50-percent.
This error is basic - and the fact that the BVA keeps making it speaks to their uselessness as an administrative tribunal.
In 2017, the Veterans Court issued a holding in the Bankhead case specifically holding that suicidal ideation is the hallmark of the 70-percent rating for PTSD. Bankhead v. Shulkin, 29 Vet. App. 10 (2017).
In Bankhead, the Court made very clear that a veteran need not even act on suicidal ideation in order to have sufficient symptomatology to merit a 70-percent increased rating for PTSD.
The record in this case was replete with evidence of an increased rating for PTSD - specifically, the medical record showed a clear and undeniable history of chronic suicidal ideation, across a multi-year period, showing ideation, plan, method and intent to carry out the plan.
The VA's C&P examiners noted an "increased risk for suicide" with "a plan and method." The veteran told the VA he had a pistol and a plan but has yet to "pull[ ] the trigger."
Despite all this evidence, BVA "judge" Harvey P. Roberts (and the attorneys at the BVA who support him) inexplicably found that suicidal ideation was "occasional" and rated it at 50-percent, denying the veteran an increased rating for PTSD of 70-percent.
The BVA also failed to consider evidence that the veteran was a persistent danger to himself or others, meriting a possible increased rating for PTSD at the 100-percent rate.
If you believe the VA or BVA issued a decision that improperly rated your PTSD, or assigned the wrong effective date, click here to have Attig | Curran | Steel take a look at your case.
OGC Attorney: Debra Bernal (link to attorney's bio on LinkedIn)
Veteran Representation at CAVC: Haley Smith (link to bio)
Board of Veterans Appeals Veterans Law Judge: Harvey P. Roberts (link to blog posts involving this BVA VLJ)
Attorney for the BVA: Eric Mondesir (link to attorney's info on "Open Payrolls" website)
Vets’ Rep at BVA: Carol J. Ponton, Attorney (link to attorney's bio on Linked In)
Date of BVA Decision: March 23, 2021
Date of CAVC Joint Motion to Remand: September 15, 2021
Link to CAVC Joint Motion to Remand