Bankhead v. Shulkin, docket no. 15-2404 (Mar. 27, 2017)

HELD: Under 38 C.F.R. § 4.130, “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 cause social and occupational impairment with deficiencies in most areas,” thus warranting a 70% disability rating – and does not require “evidence of more than thoughts,” inpatient treatment or hospitalizations, or total social and occupational impairment.

SUMMARY: Mr. Bankhead was service connected for PTSD, rated 50% disabling. His medical records were replete with evidence of suicidal ideation, but he also repeatedly denied having any plan or intent to harm himself. The Board determined that he was not entitled to a 70% rating because even though his medical records showed many of the symptoms associated with that higher rating, “those symptoms did not manifest with sufficient frequency and severity to meet the criteria for a higher evaluation.” The Board based this determination on its findings that he was at “low risk of self-harm,” was treated on an outpatient basis, was not hospitalized or subject to in-patient treatment, was credible in “his assurances that he would refrain from self-harm,” and that he “retained some social and occupational functioning.”

On appeal, the CAVC recognized that 38 C.F.R. § 4.130 “‘requires not only the presence of certain symptoms’ but also that those symptoms have caused the level of occupational and social impairment associated with a particular disability evaluation.” *8 (citing Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013)). The Court discussed the “longstanding public concern over the prevalence and risk of suicide among veterans” and looked to various sources to define “suicidal ideation.” *9-10. The Court found that “suicidal ideation does not require suicidal intent, a plan, or prepatory behavior” and that “both passive and active suicidal ideation are comprised of thoughts.” *10.

The Court noted that the criteria for a 70% disability rating includes “suicidal ideation” as a symptom that is representative of “social and occupational impairment with deficiencies in most areas” and that “the presence of suicidal ideation alone” may cause such impairment. *10-11. “Suicidal ideation” is only contained in the 70% rating criteria. The Court found that the Board first erred by appearing to require “more than thought or thoughts to establish the symptom of suicidal ideation,” particularly since risk of actual self-harm is “referenced in the criteria for a 100% evaluation.” *11. The Court held that the Board’s failure to differentiate between Mr. Bankhead’s suicidal ideation and his risk of self-harm “resulted in conflation of distinct concepts” and rendered its reasons or bases inadequate. *12.

The second error identified by the Court was the Board’s finding that Mr. Bankhead was not entitled to a 70% rating because he had not been hospitalized or required in-patient treatment. Id. This imposed “a higher standard than the criteria in the DC for mental disorders,” and the Court held that “VA is not at liberty to create evaluation criteria out of thin air in an individual case and then use the absence of those criteria in the veteran’s records to deny a particular mental disorder evaluation.” *12-14.

The third error found by the Court was the Board’s impermissible melding of the 70% and 100% criteria based on its determination that Mr. Bankhead “still retained some social and occupational functioning.” *14. The Court noted that while the 100% rating requires “total occupational and social impairment, a 70% evaluation requires only occupational and social impairment in most areas.” The Court summarized its holding by stating that

VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. [Citation omitted.] Where, as here, the Board fails to adequately assess evidence of a sign or symptom experienced by the veteran, misrepresents the meaning of a symptom, or fails to consider the impact of the veteran’s symptoms as a whole, its reasons or bases for its denial of a higher evaluation are inadequate.


Unfortunately, despite the ample evidence of record of suicidal ideation to support the 70% disability rating, the Court determined that the appropriate remedy was remand and not reversal to enable the Board to address the evidence of suicidal ideation and consider the potential applicability of staged ratings. *16. 


Vilfranc: RATING TMJ

Vilfranc v. McDonald, docket no. 15-0904 (Jan. 5, 2017)


HELD: The diagnostic code for temporomandibular joint dysfunction (TMJ), 38 C.F.R § 4.150, Diagnostic Code (DC) 9905, allows for “only a single disability rating for limitation of inter-incisal motion.” 

SUMMARY: Veteran Mary Vilfranc appealed a Board decision that denied entitlement to a disability rating in excess of 10% for TMJ, arguing that she was entitled to separate disability ratings for each joint.

The Secretary argued that Ms. Vilfranc was not entitled to an additional rating because she had not shown that she has more than one distinct disability. The Secretary also argued that DC 9905 supports the assignment of a single rating because the temporomandibular joints operate as a single unit.

In her reply brief, Ms. Vilfranc argued that 38 C.F.R. § 4.59 supported the assignment of separate compensable ratings because she experienced pain in each joint.

The Court first discussed the “location and function of the temporomandibular joints,” explaining that the temporomandibular is the combination of three facial bones – the mandible and two temporal bones – that are connected and act in concert, aided by the temporomandibular joint on each side. The Court rejected Ms. Vilfranc’s argument under 38 C.F.R. § 4.59, stating that this regulation provides for a minimum compensable rating for a joint that is actually painful even when evaluating a condition that is not predicated on range of motion – and that she is already in receipt of the minimum compensable rating (10%) for actual limitation of motion. The Court reiterated, “§ 4.59 is meant to compensate a claimant whose pain does not cause enough limitation of motion in a joint to reach a compensable level; it is not for application where, as here the claimant already has a compensable level of limitation of motion.”

The Court then addressed whether the Secretary’s interpretation of DC 9905 – as limiting a claimant to a single disability rating for TMJ – was reasonable and thus entitled to deference. Relying, on the Federal Circuit’s opinion in Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), which dealt with a similar argument regarding the assignment of a single disability rating for tinnitus even when the condition is experienced in both ears, the Court determined that the regulation in question was ambiguous, but that the Secretary’s interpretation was reasonable, even though it was offered for the first time in a brief. The Court concluded that “a claimant is entitled to only a single disability rating for limitation of inter-incisal motion under 38 C.F.R. § 4.150, Diagnostic Code 9905.”






Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. Mar. 8, 2016)

HELD: Section 4.40 does not provide for a rating separate from 38 C.F.R. § 4.71a.

SUMMARY: Section 4.40 “speaks generally in terms of disability of the musculoskeletal system, and explains what may cause a functional loss,” but does not explicitly provide a rating for any disability. Instead, “§ 4.40 must be viewed in light of the explicitly listed disability ratings for the musculoskeletal system in § 4.71a.” The guidance provided in § 4.40 “is intended to be used in understanding the nature of a veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”

In this case, the veteran was rated 20% for his back condition and appealed for a higher rating. The Board determined that he was not entitled to a higher rating because his pain did not limit his flexion to 30 degrees or less, which is what is required for the higher rating. The Veterans Court agreed, noting that the Board had conceded that Mr. Thompson had additional functional loss due to pain – but that functional loss still did not restrict his motion to 30 degrees or less, such as to warrant a higher rating. 

The Federal Circuit affirmed the CAVC’s decision, stating that 38 C.F.R. § 4.40 “makes clear that functional loss may be due to pain and that pain may render a part seriously disabled.” Nevertheless, the Court maintained that “an applicant for disability benefits is rated based on the criteria set forth in § 4.71a.”