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

Parrott: EAJA - LOCAL V. NATIONAL CPI

Parrott v. Shulkin, docket no. 2016-1450 (Fed. Cir. Mar. 13, 2017)

HELD: Where an attorney works in multiple locations, the correct method for calculating attorney fees is the local Consumer Price Index (CPI) approach, which is based on the cost of living where the legal services were actually performed, and the EAJA application should apportion the attorney’s “time to those locations and use[] the CPI for each locality.”

SUMMARY: The Equal Access to Justice Act (EAJA) provides for an hourly rate of $125 – and allows for an adjustment to this rate to reflect the increased cost of living. The increase is based on one of two calculations: the national Consumer Price Index (CPI) or the local CPI. The national approach focuses on the “national scope of the statutory cap and the ease of computation,” whereas the local approach focuses on where an attorney works and has an office.

In this case, Ms. Parrott’s attorney has his principal office in Dallas, Texas, with additional offices in San Francisco, California and Little Rock, Arkansas. The attorney worked on Ms. Parrott’s case at all three offices. In the EAJA application, he calculated the attorney fee using the CPI rate for Washington, DC. He asserted that this was consistent with the Court’s prior holding in Mannino v. West, 12 Vet.App. 242, 243 (1999), which applied “the local cost-of-living increase actually experienced … where work was performed nationally but always before the Court in Washington, DC.” The Secretary objected to the EAJA application, asserting that the appropriate rate was the CPI for Dallas, the location of the attorney’s principal office.

The CAVC disagreed with both parties, and determined that the fairer approach was to “use the local CPI to calculate the hourly rate for each of the three locations in which [the attorney] performed work and to then review [the attorney’s] itemized billing statement and apportion each billing entry to the firm office where the work resulting in the entry was performed.” Because this approach would require the Court “to seek additional information” from the appellant and her attorney and to “calculate four separate hourly rates,” the Court declined to take on this task and instead ruled that the attorney was entitled to the statutory $125 hourly rate.

On appeal to the Federal Circuit, the attorney argued that the “EAJA does not mandate a particular method for computing attorney fees,” and because statutory ambiguity should be construed in the veteran’s favor, he should be allowed to use the CPI approach that yields the highest fee. This “optimal yield” approach would allow the attorney to use the CPI for Washington, DC. The Secretary argued that the local CPI approach is more consistent with the language of the EAJA and produces fairer results. The Secretary resisted the “optimal yield” approach, noting that the EAJA is not a veterans benefits statute. He further argued that because the EAJA “represents a waiver of sovereign immunity … [it] should be strictly construed in the government’s favor.”

The Federal Circuit examined the language of the statute, discussed the relevant case law, and determined that “the local CPI approach, where a local CPI is available … is more consistent with EAJA than the national approach.” The Court held that the CAVC did not err in ruling that the local CPI approach was the correct calculation method, and that it correctly determined that the attorney’s EAJA application should have apportioned his time to the different locations of his offices and used the CPI’s for each locale.

The Federal Circuit disagreed with the proposed “optimal yield” approach, finding nothing in the statute that would permit a claim for “the highest fee.” The Court found that this approach “runs afoul of the statutory text and EAJA’s prohibition against windfalls.” The Court added that the doctrine of resolving interpretive doubt in the veteran’s favor does not apply to EAJA because EAJA is not a veterans benefits statute.

Finally, the attorney argued that the decision to award the statutory rate of $125 per hour was an abuse of discretion because the CAVC did not permit him to resubmit a corrected EAJA application. The Federal Circuit determined that it lacked jurisdiction “to review all discretionary actions” of the CAVC, and stated that its “jurisdiction attaches when the Veterans Court commits an abuse of discretion rising to the level of legal error.” The Court found that the CAVC “did not interpret any law or regulation in declining to permit [the attorney] to resubmit a corrected EAJA application.” Rather, the CAVC simply determined that the requested fee was not reasonable and “used its broad discretion” to calculate what it deemed an appropriate fee. The Court found no legal error in the CAVC’s ruling.

FULL DECISION

Miller: RATING WHOLLY SENSORY CONDITIONS

Miller v. Shulkin, docket no. 15-2904 (Mar. 6, 2017)

HELD: The regulation for rating peripheral neuropathy provides for “a maximum disability rating for wholly sensory manifestations of incomplete paralysis of a peripheral nerve” and does not cover non-sensory manifestations. Nevertheless, a claimant who has sensory and non-sensory manifestations is not automatically entitled to a higher rating.

SUMMARY: Veteran Earl Miller appealed the Board’s denial of a disability rating higher than 10% for his service-connected peripheral neuropathy of the left foot. The symptoms he described in written submissions and in hearing testimony include the inability to walk more than 4-5 blocks, to stand for more than 15-20 minutes, to run, or to climb a flight of stairs. He also reported frequent stumbling and falling. A VA examiner stated that he had a noticeable limp, walked with a cane, and had difficulty standing because of the peripheral neuropathy. The examiner stated that he did not feel that Mr. Miller was employable because of his peripheral neuropathy.

At a Board hearing, he described his symptoms and stated that he used a cane regularly. His wife testified that he fell at least three times a day and that she had stopped working to take care of him. The Board denied a disability rating higher than 10%.

Peripheral neuropathy is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8620. For all peripheral nerve conditions, the regulation states: “When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.” 38 C.F.R. § 4.124a. This issue in this case is whether peripheral nerve conditions that are more than “wholly sensory” must be automatically rated, at a minimum, as “moderately severe.” Mr. Miller argued that because the regulation applies to peripheral nerve disorders that are “wholly sensory,” conditions that are more than wholly sensory must be rated at least “moderately severe,” which warrants a 40% disability rating under VA’s rating schedule. The Secretary argued that the language in the regulation created a maximum disability rating for wholly sensory conditions – not a minimum for conditions that are more than sensory.

The Court first acknowledged that Mr. Miller’s condition is more than “wholly sensory.” The Court examined the language of the regulation and determined that it “provides only a maximum disability rating for wholly sensory manifestations” and “contains no mention of non-sensory manifestations.” The Court found that the provision of a maximum 20% disability rating for wholly sensory manifestations did not entitle a claimant with more than sensory manifestations to a higher rating.

Mr. Miller had also argued that VA’s Adjudication Procedures Manual (M21-1) support his position because it defined both mild and moderate symptoms in “wholly sensory” terms, but it defined “severe” symptoms as involving “more than sensory findings . . . such as atrophy, weakness, and diminished reflexes.” The Court determined that it did not have to consider the M21-1 provision, since it already concluded that the language of the regulation was clear. The Court further noted that the Secretary changed the language in the M21-1 after the parties filed their briefs in this case – and that the new portion now states that the regulation does not mean that any non-sensory impairment “must be evaluated as greater than moderate.”

The Court discussed the Board’s rationale for its determination that Mr. Miller was not entitled to a higher rating, and found that the Board had considered the objective and subjective evidence of record and adequately explained its decision.

FULL DECISION

Doucette: RATING HEARING LOSS

Doucette v. Shulkin, docket no. 15-2818 (Mar. 6, 2017)

HELD: “[T]he rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment,” but do not explicitly contemplate “other functional effects, such as dizziness, vertigo, ear pain, etc.” – and the Board does not have to assess whether referral for extraschedular consideration is warranted unless this is raised by the claimant or the evidence of record.  

SUMMARY: Veteran Richard Doucette appealed the Board’s denial of a compensable disability rating for his hearing loss, arguing that the Board misapplied 38 C.F.R. § 3.321(b)(1) and failed to adequately explain its determination that referral for extraschedular consideration was not warranted.

The Court first noted that VA’s “rating criteria for hearing loss, unlike a majority of the conditions in VA’s rating schedule, do not list any specific symptoms or functional effects.” *3 (citing 38 C.F.R. §§ 4.85, 4.86). Instead, VA rates this condition based on a “mechanical application of a veteran’s audiometric testing results to a rating table.” The testing includes puretone audiometry and speech discrimination that “measure a veteran’s ability to hear certain frequencies at specific volumes and to understand speech.” *4. VA’s rating tables “correlate the results of audiometric testing with varying degrees of disability.” The Court thus held that VA’s “rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA’s audiometric tests are designed to measure.” *4-5.

The Court determined, however, that the rating criteria do not account for other functional effects, “such as dizziness, vertigo, ear pain, etc.” – and further held that the rating schedule did not explicitly contemplate “effects other than difficulty hearing or understanding speech.” *5. Nevertheless, the Court found that referral for extraschedular consideration was not warranted in all hearing loss cases, and that the “Board is only obligated to discuss extraschedular referral for hearing loss when there is evidence in the record which reveals that the appellant’s hearing loss presents exceptional or unusual circumstances or where the appellant has asserted that a schedular rating is inadequate.” *6-7.

The Court reiterated that it was not suggesting “that the rating criteria contemplate all functional impairment due to a claimant’s hearing loss.” The Court pointed out that “a hearing loss claimant could provide evidence of numerous symptoms,” such as “ear pain, dizziness, recurrent loss of balance, or social isolation due to difficulties communicating, and the Board would be required to explain whether the rating criteria contemplate those functional effects.” *8.

The Court found that Mr. Doucette’s hearing difficulties were “contemplated by the schedular rating criteria for hearing loss” and that he had not asserted that his schedular rating was inadequate. The Court thus affirmed the Board’s determination that referral for extraschedular consideration was not warranted. *9.

In dicta, the Court commented that the rating criteria for hearing loss “has led to confusion and inconsistent results for both veterans suffering from hearing loss and adjudicators evaluating their claims,” and questioned “whether it is time for VA to revisit this portion of the rating schedule.” *11.

Judge Schoelen dissented. Although she agreed with the majority that referral for extraschedular consideration was not warranted unless it was raised by the claimant or the record, she believes that the rating criteria for hearing loss “are inadequate to contemplate a veteran’s functional effects and entire disability picture.” She stated that “[b]ecause no symptoms are listed in the rating schedule for hearing loss, there is no way to adequately compare the ‘level of severity and symptomatology’ to the rating criteria,” which is required in determining whether referral for extraschedular consideration is warranted. She pointed out the Court’s prior holding that stated “[u]nlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted.” * 13 (quoting Martinak v. Nicholson, 21 Vet.App. 447, 455 (2007).  

Advocacy note: Even though VA is required by law to construe a claimant’s submissions liberally and assist in developing a claim – and even though VA adjudicators are required to understand the intricacies of VA law and its rating schedule – this decision emphasizes (or maybe even adds to?) the claimant’s burden in establishing entitlement to an appropriate disability rating. One significant flaw in this decision is that it presumes that claimants understand the meaning of “referral for extraschedular consideration” and how to request it, which is a pretty big presumption to impose on claimants seeking benefits in an allegedly claimant-friendly system. In light of this decision, claimants should clearly identify all symptoms related to hearing loss – and, if the rating schedule is not adequately reflecting the level of disability, explain why and request referral for extraschedular consideration.

FULL DECISION