In August 2008, Mr. Brown filed a claim for a service-connected disability payment for PTSD.

In a September 2008 treatment summary, Dr. Dunn stated that Mr. Brown's mental health symptoms were longstanding in duration, dating back to shortly after his separation from service, and had become chronic. Dr. Dunn opined that these symptoms had caused Mr. Brown a diminished quality of life, especially as it related to his work and social life.

During an October 2008 Veterans Affairs (“VA”) examination, Mr. Brown reported occasionally becoming very upset and irritable at home; retiring because he became very anxious and somewhat depressed at work and was unable to concentrate; and that he usually stayed home, had very few friends, did not enjoy much activity, and avoided crowds. The examiner noted occasional poor sleep and nightmares, and that these symptoms had occurred for at least the preceding 20 years and were mild to moderate. The examiner also documented other symptoms including depression, anxiety, and difficulty concentrating, but indicated that Mr. Brown was not suicidal. The examiner diagnosed PTSD.

In October 2008, a VA regional office (“RO”) granted a service-connected disability for Mr. Brown for PTSD with a 30 percent rating effective August 2008.

In November 2008, Mr. Brown filed a notice of disagreement (“NOD”) as to that decision.

During a February 2009 primary care visit, Mr. Brown reported occasional depressed mood, but he denied suicidal ideation.

In February 2010, the RO issued a statement of the case (“SOC”) continuing to deny a PTSD rating in excess of 30 percent.

In April 2010, Mr. Brown perfected his appeal, stating that he suffered from recurring suicidal ideations, isolation, depression, constant problems controlling his emotions, trouble with anger, sleep impairment, and feeling “always on edge,” and that he could not enjoy life and did not have any meaningful relationships.

In May 2012, Dr. Dunn noted that Mr. Brown complained of frequent and intermittent thoughts of suicide with no specific intent. Dr. Dunn stated that Mr. Brown's symptoms – which also included insomnia, intense “fits” of unprovoked anger, and isolation – were chronic, were expected to further deteriorate his level of functioning, permeated every facet of his daily life, and precluded him from enjoying meaningful familial and interpersonal relationships and caused him to feel a diminution of self-worth.

During a June 2012 decision review officer (“DRO”) hearing, Mr. Brown testified that he preferred to be at home by himself, that he experienced sleep impairment and nightmares, and that he “used to think about suicide a lot.”

In February 2015, a VA examiner noted occupational and social impairment due to mild to transient symptoms that decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress. The examiner documented the following symptoms: recurrent nightmares, markedly diminished interest or participation in significant activities, detachment or estrangement from others, trouble concentrating, sleep disturbance, depression, anxiety, and disturbances of motivation and mood.

During a September 2016 VA examination, Mr. Brown reported wanting to be by himself, getting angry quickly, and experiencing anxiety attacks when “things happen out of the norm.” The examiner noted occupational and social impairment due to mild to transient symptoms that decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress. The examiner indicated that Mr. Brown reported a remote history of suicidal ideation, “but convincingly denied current suicidal thoughts.”

The examiner documented the following symptoms: recurrent nightmares, persistent negative emotional state, markedly diminished interest or participation in significant activities, hypervigilance, chronic sleep impairment, depression, anxiety, suspiciousness, disturbances of motivation and mood, and slightly impaired memory.

In August 2017, the Board of Veterans' Appeals (the “Board”) denied a PTSD rating in excess of 30 percent.

The decision had a very practical effect. Under current rules, a 30 percent disability rating yields a monthly payment of $400.93; a 70 percent rating yields $1,312.40.

The Board acknowledged that although Mr. Brown had denied suicidal thoughts or ideation during the October 2008 VA examination and the February 2009 primary care visit, other medical evidence noted suicidal thoughts or ideation. The Board determined, however, that because the summary noted no specific intent, it weighed against finding a significant danger of self-harm. The Board further noted that, although Mr. Brown reported past suicidal ideations during the June 2012 DRO hearing, his testimony did not suggest that he continued to have recurrent suicidal thoughts. The Board explained that, during the September 2016 VA examination, the veteran reported only a remote history of suicidal thought, but convincingly denied recent or recurrent suicidal ideation. The Board concluded that although there were,

some periods during the course of the appeal during which [Mr. Brown] had exacerbated symptoms that included suicidal thoughts, when considering factors such as frequency and duration, the record weighs against a finding that [he] experienced suicidal ideation or thoughts to a degree that would support a rating higher than 30 percent.

Mr. Brown appealed. He argued that the Board had erred in rejecting symptoms of suicidal ideation and that its reasons or bases, particularly as to the frequency and duration of his symptoms, were inadequate for denying a PTSD rating in excess of 30 percent.

The Board, through Robert L. Wilkie, Secretary of Veterans Affairs, disputed Mr. Brown's assertions and urged the court to affirm the Board's August 2017 decision.

PTSD Ratings

Under federal regulations, 38 C.F.R. § 4.130, PTSD is rated as 30 percent disabling when it causes:

[o]ccupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

A 50 percent rating is warranted where evidence shows that PTSD causes:

[o]ccupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short – and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is appropriate where PTSD manifests with:

[o]ccupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.

The U.S. Court of Appeals for Veterans Claims Decision

The circuit court set aside the Board decision denying Mr. Brown a PTSD rating in excess of 30 percent and remanded the matter.

In its decision, the court explained that the Board's determination of the appropriate degree of disability was a finding of fact subject to the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4). The court added that, as with any finding on a material issue of fact and law presented on the record, the Board had to support its degree-of-disability determination with an adequate statement of reasons or bases that enabled the claimant to understand the precise basis for that determination and facilitated court review. To comply with this requirement, the court continued, the Board had to analyze the credibility and probative value of evidence, account for evidence it found persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claimant.

In this case, the court ruled, the Board “erroneously grafted risk of self-harm onto the symptom of suicidal ideation” when considering a rating greater than 30 percent but less than 100 percent. The court said that the language of Section 4.130 indicated that 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 – might cause occupational and social impairment with deficiencies in most areas, commensurate with a 70 percent rating. It also pointed out that, to the extent risk of self-harm was expressly mentioned in Section 4.130, it was referenced only in the criteria for a 100 percent evaluation as “persistent danger of hurting self.”

This error by the Board, the court ruled, “negatively impacted the Board's evaluation of Mr. Brown's PTSD.”

The court was not persuaded by the Board's contention that its analysis would have been incomplete had it stopped with a discussion of risk of self-harm and that it considered that Mr. Brown's suicidal ideation did not impair his social or occupational functioning to a degree warranting a rating in excess of 30 percent and, therefore, that its reasons or bases were adequate.

The court reasoned, first, that the Board did not consider or address Mr. Brown's April 2010 statement that he suffered from recurring suicidal ideations, which appeared to be favorable evidence, and that the Board had to “provide reasons for rejecting material evidence favorable to [Mr. Brown].”

Second, the court said, although the Board stated that when considering factors such as frequency and duration, the record weighed against a finding that Mr. Brown experienced suicidal ideation or thoughts to a degree that would support a rating higher than 30 percent, the Board did not explain how “four notations of suicidal ideation during the appeal period,” the presence of which “alone” might cause occupational and social impairment with deficiencies in most areas consistent with a 70 percent rating, was more commensurate with a 30 percent rating.

The court concluded that, on remand, Mr. Brown could submit additional evidence and argument, including those raised in his briefs – and that the Board “must consider any such evidence or argument submitted.”

The case is Brown v. Wilkie, No. 17-4738 (Vet. Claims Ct. App. May 24, 2019).