Martinez-Bodon: Formal DSM-5 diagnosis required in order to be compensated for mental health disability

Martinez-Bodon v. McDonough, 28 F.4th 1241 (Fed. Cir. 2022)

HELD: VA REGULATIONS require a formal DSM-5 diagnosis in order to be compensated for a mental health disability.

Summary: Veteran had psychiatric symptoms, but no formal diagnosis. The Board denied service connection. Veteran argued that he didn’t need a diagnosis because Saunders v. Wilkie held that “pain that reaches the level of ‘functional impairment of earning capacity’ could constitute a ‘disability’ under 38 U.S.C. § 1110.”

The Court rejected this argument because the question in Saunders ”was whether conditions not on the rating schedule may still be considered for service connection purposes under § 1110.” VA regulations - 38 C.F.R. §§ 4.125, 4.130 - provide specific ratings for mental health conditions – so Saunders doesn’t apply. These regulations require a mental health diagnosis that conforms to the DSM-5.

Advocacy note: Make sure the record contains a formal DSM-5 diagnosis. Even if there are conflicting diagnoses. If the veteran doesn’t have a DSM-5 diagnosis, suggest that the veteran see a different practitioner. (You see 5 different psychologists, you’ll get 5 different diagnoses.)

Martinez-Bodon: In order to be a "disability" for VA benefits purposes, a mental health condition must have a DSM-5 diagnosis

Martinez-Bodon v. Wilkie, docket no. 18-3721 (August 11, 2020)

HELD: “The definition of ‘disability’ in section 1110 includes any condition that results in ‘functional impairment of earning capacity’” and this definition applies to psychiatric conditions. However, VA regulation “requires a DSM-5 diagnosis to compensate a psychiatric disability” – and while the Court can interpret the meaning of VA’s regulations within the rating schedule, it “lack[s] jurisdiction to determine whether the regulations are consistent with section 1110.” 

SUMMARY: Veteran filed a claim for disability benefits for diabetes and a mental health condition related to the diabetes. A VA examiner determined that he did not have a diagnosis that “met the criteria for a mental condition per DSM-5.” The RO granted service connection for diabetes, but denied the mental health claim. The veteran appealed to the Board and the Board confirmed the RO’s denial. 

On appeal to the Court, the veteran argued that the Board’s requirement of a diagnosis is inconsistent with Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that “pain alone, without a specific diagnosis or otherwise identified disease or injury, may constitute a disability under 38 U.S.C. § 1110.” He argued that as long as his mental health symptoms “‘caused impairment of earning capacity,’ they constitute a disability for service-connection purposes.” In the alternative, he argued that he should receive separate ratings for his anxiety and sleep problems – secondary to his service-connected diabetes – because those symptoms are not reflected in the rating for diabetes. 

The Court first found that the Federal Circuit in Saunders “defined ‘disability’ as ‘functional impairment of earning capacity’” and that it “gave no indication that it was defining that term differently for pain than it would have for any other condition.” The Court thus held that “Saunders is not limited to pain” and that “the definition of ‘disability’ in section 1110 includes any condition that results in ‘functional impairment of earning capacity’ . . . including the psychiatric condition at issue here.” 

The Court then turned to 38 C.F.R. §§ 4.125 and 4.130, which appear to require a formal diagnosis consistent with the DSM-5 – and examined these regulations in light of Saunders and in the context of an undiagnosed mental health condition. The Court first acknowledged that it cannot “review” the rating schedule – but found that this “jurisdictional limitation does not prevent” the Court from interpreting these regulations. The Court held that these regulations “require[] a DSM-5 diagnosis to compensate a psychiatric disability” and that “the Saunders definition of a ‘disability’ is constrained as relevant to this appeal by VA’s decision to limit the psychiatric disabilities it would compensate.” 

The Court stated that it “lacks jurisdiction to question what the Secretary decides constitutes a disability, including whether the Secretary’s definition of certain disabilities complies with section 1110” – and reiterated that it lacked “jurisdiction to review the Secretary’s regulations concerning mental health conditions contained in the rating schedule to determine whether they are consistent with section 1110.”

The Court rejected the veteran’s alternative argument regarding separately rating his mental health symptoms related to his diabetes – repeating that “VA’s rating schedule requires a DSM-5 diagnosis as a precondition for compensating veterans for psychiatric disabilities.” 

Webb: Can a veteran get disability compensation for mental health symptoms absent a diagnosis that conforms with the DSM?

Webb v. Wilkie, docket no. 18-0966 (March 26, 2020)

HELD: Because the Court found that this case “presents factual disputes that should be resolved by the Board in the first instance,” which may ultimately moot the panel question, the Court declined to address whether a veteran can establish entitlement to disability benefits for symptoms of a mental health condition in the absence of a confirmed dignosis that conforms with the DSM.

SUMMARY: Veteran filed a claim for disability benefits for PTSD. He underwent several VA examinations that described mental health symptoms, but found that he did not have a diagnosis that conformed with the Diagnostic and Statistical Manual of Mental Disorders (DSM). His representative raised several arguments regarding the adequacy of the medical opinions, but the RO and the Board denied his claim based on the lack of a confirmed diagnosis.

At the Court, Mr. Webb argued that the Board “erred by failing to consider whether his lay statements are evidence of a psychiatric disability other than PTSD.” He asserted that his “symptoms caused functional impairment and … constitute a ‘current disability’ for purposes of establishing entitlement to disability compensation,” citing Saunders v. Wilkie, 886 F.23d 1356 (Fed. Cir. 2018).

The Secretary argued that “Saunders is limited to the facts of that case—that pain alone, absent a diagnosis, may be compensated if it causes functional loss.”

Unfortunately, the Court did not address this important question because it found that “the Board did not make any explicit findings regarding the adequacy of [the VA] examinations or explain which examinations it relied on to deny the appellant’s claim and, to the extent that it implicitly found either or both examinations adequate, its reasons are not readily apparent.” Because the Board did not make these “necessary factual findings in the first instance,” the Court declined to address the question that was the reason this case was sent to a panel.

Bankhead: RATING MENTAL HEALTH CONDITIONS, SUICIDAL IDEATION

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.

*14-15.

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. 

FULL DECISION