Winning Your Claim For PTSD Disability Benefits

Why are Veterans who file for PTSD Disability Benefits frequently denied?

The three main reasons PTSD claims used to be denied are:

1.      (1) The rating officer provided a lower rating than was justified by the clinical presentation.

2.      (2) The VA concluded that the stressor the veteran experienced was not “an event that is outside the range of usual human experience and would have been markedly distressing to almost anyone.”

3.      (3) There was no evidence that the veteran was actually in combat.

These conclusions by the VA are no longer acceptable reasons for denial of benefits!

Recent VA rulings, Court rulings, and the replacement of the DSM-III-R with the DSM-IV as the basis for determination of disability, have dramatically changed the way the VA rates, or should rate, veterans applying for disability benefits.  The Department of Veterans’ Affairs has recently published a new manual, “Best Practice Manual for Posttraumatic Stress Disorder (PTSD) Compensation and Pension Examinations.”  With the publication of this manual, the VA has declared: “The Veterans’ Benefits Administration (VBA) and Veterans’ Health Administration (VHA) are committed to improving these services to veterans, and improving the quality of compensation and pension examinations for PTSD.”  The manual changes many of the assumptions that led to denial of PTSD claims in the past.  Review of this manual is thus critical to claimants and their attorneys.

What did the PTSD Study find?

The Veterans’ Benefits Administration reviewed 143 initial claims for PTSD.  This study revealed that at least 8% of exams were inadequate.  A common problem was that the examiner did not describe how the diagnosis met the rating listed in the manual for mental disorders, the DSM-IV.  In fact, it was noted that not only did examiners fail to list the DSM-IV criteria, but that some examiners erroneously used the DSM-III-R criteria.  For example, the criteria that a veteran had experienced “an event that is outside the range of usual human experience and would have been markedly distressing to almost anyone,” is a DSM-III-R criteria, not a DSM-IV criteria, and is no longer acceptable.

Some other frequent errors sited in this study:

–          Examiners failed to note whether other mental disorders were due in part to PTSD

–          Less than half of the examiners had the complete claim file for review

–          Examiners stated “minor PTSD symptoms” without naming them

The study also noted reluctance by the disability rating experts and the VA to grant 100% disability; the highest rating granted was 70% despite clear indication that the veteran had severe symptoms meriting 100% disability.  The authors of the study admonished: “It is no longer correct to say that total incapacitation for anxiety disorder is unusual.”

In addition, it was observed that officers were often denied benefits when the Global Assessment of Functioning (GAF) Scale was 60 (i.e. moderate symptoms), while the committee requires that in cases where the GAF is 60, a 30% disability must be assigned.

Upon review of the study, the committee made the following recommendations:

•         The clinician-administered PTSD scale CAPS, (Blake et al 1995), is recommended as the interview method of choice for conducting compensation and pension examination.  It requires approximately one hour, but may be abbreviated.

•         Psychometric tests must never be used alone to deny rating for PTSD — only to supplement and substantiate findings.

•         Professionals qualified to perform PTSD examinations should have a doctoral level training in psychopathology.

 

What is Posttraumatic Stress Disorder (PTSD)?

The DSM-IV has replaced the DSM-III-R, which focused solely on combat trauma.  The DSM-III-R criteria required, for example, that the veteran had experienced “an event that is outside the range of human experience and would have been markedly distressing to almost anyone.”  This criterion is no longer acceptable under the DSM-IV.

The DSM-IV Diagnostic Criteria for PTSD:

a)     The person has been exposed to a traumatic event in which both of the following have been present:

1.      The person has experienced, witnessed or been confronted with an event or events that involve actual or threatened death or serious injury, or threat to the physical integrity of oneself or others.

2.      The person’s response involved intense fear, helplessness, or horror.  (They note that assault violence, particularly of a criminal nature, is more likely to induce PTSD than a random act of God.  Factors surrounding the traumatic incident, such as absence of social support, may also influence the degree to which the stressful event is experienced.)

b)     The traumatic event is persistently re-experienced in one or more of the following ways:

1.      Recurrent and intrusive distressing recollections of the event, including images, thoughts or perceptions

2.      Recurrent distressing dreams of the event

3.      Acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur upon awakening or when intoxicated)

4.      Intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event

5.      Physiological reactivity upon exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event

c)      Persistent avoidance of stimuli associated with the trauma

d)     Persistent symptoms of increasing arousal (not present before the trauma), indicated by: difficulty in falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hyper-vigilance, exaggerated startle response

e)     Duration of the disturbance (symptoms) is more than one month

f)       The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.

 

Does a Veteran need to prove that he was involved in combat?

The most common reason for denial of a well diagnosed PTSD claim, is the VA Rating Officer’s conclusion that the veteran did not prove he was involved in combat.  While the focus of PTSD stressors is usually of combat stress, the VA now recognizes that that there are less common, but equally important stressors such as sexual harassment or sexual abuse during service.  Duties such as grave registration, morgue assignment, accidents involving injury, and even peacekeeping deployment may meet stressor criteria.  What is required in a PTSD claim is that the veteran show that he/she was exposed to a traumatic event during his/her military service, not necessarily combat trauma.

In August 1, 2010, the Veteran Court of Appeals in Cohen v. Brown 94-661 10 vet.  App dramatically changed the way PTSD is evaluated and rated.  The Board of Veteran Appeals denied Cohen’s request for benefits, because he never served in combat.  The Court reversed and held that noncombat stressors described by the veteran were sufficient to cause PTSD.

First, the Court sited that the stressor that caused the veteran to suffer from PTSD need not be unusually traumatic.  It is the effect of the stressor on a particular veteran that needs be assessed:

“Under the DSM-IV, the mental illness of PTSD would be treated the same as a physical illness for purposes of VA disability compensation in terms of a predisposition toward development of that condition.  For example, the court noted [that the] VA does not deny a service-connection award to a veteran whose lack of good balance causes him to fall and be injured during service even though a serviceperson with better balance would not have been injured at all.”

Second, the Court held that the stressor need not be combat stress.  The Veteran in Cohen v. Brown testified that while in Vietnam he was not a combat soldier:

“The veteran responded to the RO’s inquiry by explaining that although he was assigned an MOS of power generator equipment mechanic he “never performed these duties” and that “most of [his] duties consisted of convoys, heavy equip[ment] mechanic [and] guard duty”. R. at 82.  The military experiences he said he had considered “most terrifying, life threatening, or stressful” included the following: (1) Armed combat or enemy action; (2) mortar and rocket attacks; (3) treating or dealing with casualties; (4) convoys; and (5) many hours of work and lack of sleep.”

Finally, the Court held that the veteran’s lay testimony was sufficient to establish the existence of these stressors.

 

What stressors must be proven?

Concerning the adjudication of claims for PTSD, the VBA’s Adjudication Procedures Manual states:

(1)  PTSD does not need to have its onset during combat.  For example, vehicular or airplane crashes, large fires, floods, earthquakes, and other disasters would evoke significant distress in most involved veterans.  The trauma may be experienced alone (rape or assault) or in the company of groups of people (military combat). 

(2)  A stressor is not to be limited to just one single episode.  A group of experiences also may affect an individual, leading to a diagnosis of PTSD.  In some circumstances, for example, assignment to a grave registration unit, burn care unit, or liberation of internment camps could have a cumulative effect of powerful, distressing experiences essential to the diagnosis of PTSD.

(3)  PTSD can be caused by events that occurred before, during, or after service.  The relationship between stressors during military service and current problems/symptoms will govern the question of service connection.  Symptoms must have a clear relationship to the military stressor as described in the medical records.

(4)  PTSD can occur hours, months, or years after a military stressor.  Despite this long latent period, service-connected PTSD may be recognizable by a relevant association between the stressor and the current presentation of symptoms.  This association between stressor and symptoms must be specifically addressed in the VA examination report and to a practical extent supported by documentation.

(5)  Every decision involving the issue of service connection for PTSD alleged to have occurred as a result of combat must include a factual determination as to whether or not the veteran was engaged in combat, including the reasons or bases for that finding.  (See Gaines v. West, 11 Vet. App. 113 (1998))

 

What evidence is needed to prove combat stressors?

The following conclusive evidence is sufficient to prove combat stressors:

Any evidence available from the service department indicating that the veteran served in the area in which the stressful event is alleged to have occurred and any evidence supporting the description of the event are to be made part of the record.  Corroborating evidence of a stressor is not restricted to service records, but may be obtained from other sources (see Doran v. Brown, 6 Vet. App. 283 (1994)).  If the claimed stressor is related to combat, in the absence of information to the contrary, receipt of any of the following individual decorations will be considered evidence of participation in a stressful episode:

•         Air Force Cross

•         Air Medal with “V” Device

•         Army Commendation Medal with “V” Device

•         Bronze Star Medal with “V” Device

•         Combat Action Ribbon

•         Combat Infantryman Badge

•         Combat Medical Badge

•         Distinguished Flying Cross

•         Distinguished Service Cross

•         Joint Service Commendation Medal with “V” Device

•         Medal of Honor

•         Navy Commendation Medal with “V” Device

•         Navy Cross

•         Purple Heart

•         Silver Star

Other supportive evidence includes, but is not limited to: plane crash, ship sinking, explosion, rape or assault, duty in a burn ward or in a grave registration unit.  POW status, which satisfies the requirements of 38 CFR 3.1(y), will also be considered conclusive evidence of an in-service stressor.

 

What evidence is required to prove a Personal or Sexual Assault?

Cases involving PTSD as a result of a personal or sexual assault pose a particular problem.  Evidence of personal assault may be lacking.  The examiner must look at other supporting documents that may prove the existence of a stressor; a visit to a medical or counseling clinic without a specific diagnosis, or a specific ailment, or a sudden request for transfer, may suggest the existence of a sexual assault.  Lay statement regarding leave without absence, change in performance, episode of depression by lay statement, increased or decreased use of prescription medication or over-the-counter medication, evidence of substance abuse such as alcohol, and unexplained economic or social behavior changes, may all point to the occurrence of a specific traumatic experience.

Personal assault is an event of human design that threatens or inflicts harm.  Examples of personal assault are rape, physical assault, domestic battery, robbery, mugging, and stalking.  If the military record contains no documentation that a personal assault occurred, alternative evidence might still establish an in-service stressful incident.  Behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor.

Examples of behavior changes that may indicate a stressor include (but are not limited to):

• Visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment

• Sudden requests that the veteran’s military occupational series or duty assignment be changed without other justification

• Lay statements indicating increased use or abuse of leave without any apparent reason such as family obligations or family illness

• Changes in performance and performance evaluations

• Lay statements describing episodes of depression, panic attacks, or anxiety, but no identifiable reasons for the episodes

• Increased or decreased use of prescription medications

• Increased use of over-the-counter medications

• Evidence of substance abuse such as alcohol or drugs

• Increased disregard for military or civilian authority

• Obsessive behavior such as overeating or under eating

• Pregnancy tests around the time of the incident

• Increased interest in tests for HIV or sexually transmitted diseases

• Unexplained economic or social behavior changes

• Treatment for physical injuries around the time of the claimed trauma, but not reported as a result of the trauma

• Breakup of a primary relationship

In personal assault claims, secondary evidence may need interpretation by a clinician, especially if it involves behavior changes.  Evidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician.

 

Is the Veteran’s own testimony sufficient to establish a stressor?

A combat veteran’s lay testimony alone may establish an in-service stressor for purposes of service connecting PTSD (Cohen v. Brown, 94-661 (U.S. Ct. Vet. App. March 7, 1997)).  However, a noncombat veteran’s testimony alone does not qualify as “credible supporting evidence” of the occurrence of an in-service stressor as required by 38 CFR 3.304(f).  After-the-fact psychiatric analyses which infer a traumatic event are likewise insufficient in this regard (Moreau v. Brown, 9 Vet. App. 389 (1996)).

 

What other evidence may assist in establishing a stressor?

A stressor is not limited to just a single episode; a group of experiences, such an assignment to a Grave Registration Unit, or a Burn Care Unit have a cumulative effect that can result in PTSD.

PTSD can be due to events, which occur before, during or after service, and not specifically in relationship to the military stressors.  PTSD may present after a long latent period; even years.  Thus the rating examiner must not restrict the search for corroborating evidence of stressors to service records; other sources must be looked at as well.

In Doran v. Brown, 6 Vet. App. 283, 290-91 (1994), the U.S. Court of Appeals for Veterans Claims (Court) stated, “the absence of corroboration in the service records, when there is nothing in the available records that is inconsistent with other evidence, does not relieve the BVA of its obligations to assess the credibility and probative value of the other evidence.”  In Doran, the Court cited a provision of the VA ADJUDICATION PROCEDURE MANUAL M21-1 to read, in part, that “[C]orroborating evidence of a stressor is not restricted to service records, but may be obtained from other sources.”

The evidence necessary to establish the occurrence of a recognizable stressor during service – to support a diagnosis of PTSD – will vary depending upon whether the veteran engaged in “combat with the enemy,” as established by recognized military combat citations or other official records.  See, e.g., Hayes v. Brown, 5 Vet. App. 60, 66 (1993); Doran v. Brown, 6 Vet. App. 283, 289 (1994).

When there is a current diagnosis of PTSD, the sufficiency of the claimed in-service stressor is presumed.  Cohen, 10 Vet. App. at 144.  Nevertheless, credible evidence that the claimed in-service stressor actually occurred is still required.  38 C.F.R. § 3.304(f).  And credible supporting evidence of the actual occurrence of an in-service stressor cannot consist solely of after-the-fact medical nexus evidence.  See Moreau v. Brown, 9 Vet. App. 389, 396 (1996).  Corroboration does not require, however, “that there be corroboration of every detail including the appellant’s personal participation in the identifying process.”  Suozzi v. Brown, 10 Vet. App. 307, 311 (1997).

Mere presence in a combat zone is not sufficient to show that a veteran actually engaged in combat with enemy forces.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), affirmed on reconsideration, 1 Vet. App. 406 (1991).  On the other hand, whether a veteran has submitted sufficient corroborative evidence of claimed in-service stressors is a factual determination.  Pentecost v. Principi, 16 Vet. App. 124 (2002).  And in both Pentecost and Suozzi, it was held that specific evidence that a veteran was actually with his unit at the time of an attack is not required to verify that attack as a PTSD stressor.  Pentecost, 16 Vet. App. at 128 (holding that the Board erred in “insisting that there be corroboration of the veteran’s personal participation”); Suozzi, 10 Vet. App. 310-11 (evidence that veteran’s company received heavy casualties during an attack, even without specific evidence that the veteran was “integrally involved in the attack” was sufficient to reopen his claim for service connection for PTSD).

Pursuant to the holdings in Pentecost and Suozzi, there does not need to be corroboration of each and every detail of a veteran’s personal participation in the alleged combat activity in Vietnam.  Rather, the mere fact that his unit was involved in that combat activity is reason enough, alone, to presume that he experienced the type of stressor alleged in that capacity.  Thus, his combat stressor must be conceded, particularly when all reasonable doubt is resolved in his favor concerning this.  See 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

 

 

Alcohol and Drug Abuse in PTSD cases

The VA is prohibited by statute, 38 U.S.C. § 1110, from paying compensation to a veteran whose disability is a result of his own alcohol and drug abuse.  However, when a veteran’s alcohol or drug abuse disability is secondary to or is a result of or aggravated by a primary service-connected disorder, the veteran may be entitled to compensation.  See Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001).  Therefore, it is important to determine the relationship, if any, between a service-connected disorder and a disability resulting from the veteran’s alcohol or drug abuse.  The rating officer should separate, to the extent possible, the effects of the alcohol or drug abuse from the effects of the other mental disorder(s).  If it is not possible to separate the effects in such cases, an explanation must be given.

In Allen v. Principi, 237 F.3d 1368 (Fed. Cir., 2001) the Court held:

“We therefore conclude, based on the language of the statute and the pertinent legislative history, that 38 U.S.C. § 1110 does not preclude compensation for an alcohol or drug abuse disability secondary to a service-connected disability or use of an alcohol or drug abuse disability as evidence of the increased severity of a service-connected disability. We would stress that the holding of the case is quite limited. Veterans can only recover if they can adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service- connected disorder. We foresee that such compensation would only result where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran’s primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing.

On remand, the Board will have to determine whether Allen’s alcohol abuse disability is secondary to his PTSD, or whether it demonstrates the increased severity of his PTSD disability. If it finds sufficient evidence demonstrating a causal connection, Allen could be entitled to an increase in his schedular rating. But if the Board finds that Allen’s alcohol abuse is willful and did not result from his PTSD, Allen could not receive additional compensation for a willful alcohol abuse disability.”

Psychological Tests in PTSD claims

Regarding psychological tests, the Committee recommended the use of the Minnesota Multiphasic Personality Inventory (MMPI).  The Committee did caution that inherent in the test is the risk of over-reporting, citing validity scales that are elevated in people who attempt to exaggerate their symptoms.  However, studies of Vietnam combat veterans and child abuse survivors show elevated scores as a result of chronic posttraumatic difficulties or comorbid affective symptoms as opposed to over endorsement.

In 1997, the Veterans Administration mandated that a GAF (Global Assessment of Functioning) score be assigned at regular intervals for veterans receiving mental health care.  The GAF score is often used in disability rating boards and was included in the DSM profile.  A high GAF may be erroneously assigned to a Veteran suffering from PTSD because his symptom severity and functionality can fluctuate.  Studies have also shown that the difference in GAF scores assigned by different raters for the same patient could easily vary by 20 points; where one rater considered the symptoms to be mild and the other judged them to be moderate to severe, and it is often seen that raters vary by as much as 8 points on the same examination.  The Committee also noted that Veteran Administration practitioners seem to have a bias against assigning low GAF scores for PTSD; thus a high GAF (>61) by itself, should not be a reason to deny veteran disability benefits.

In addition, there is no published information associated with the DSM-IV, which instructs examiners on the valid methods for partitioning the GAF score by comorbid clinical condition.  It is VBA policy that the examiner must assign GAF scores for comorbid disorders.  If he does not do so, he is required to explain why.  Failure to address comorbid mental conditions, such as depression or anxiety, has been seen as a major error in rating decisions that must be corrected.

The Committee stressed the importance of recording episodes of aggression against self or others.  If applied correctly, these behaviors will drop the GAF into a lower range.  If these features are present clinically, they should not be overlooked or minimized by the clinician.

Finally, the Committee recommended that the GAF score should only be used as a crosscheck against the examiner’s own evaluation, based on reports of signs and symptoms; if they do not match, the practitioner is advised to re-examine the evidence.  However, there is no reason to change an evaluation because the GAF score differs in the assessment level of functioning from that of the evaluation