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Matthew Hill

Video Blog – VA Mental Health Ratings

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Matthew Hill: Hello and welcome to the Hill & Ponton Video Blog. I’m Matthew Hill.
Carol Ponton: I’m Carol Ponton.
Matthew Hill: Today we want to talk to you about the mental health diagnostic code ratings, one of the tricky little areas in there involves suicidal and homicidal thoughts and, basically, plans is kind of the next step up. But, we see a lot of veterans get tricked up on this. By tricked up, I mean that even if they’re having these a lot of times they won’t admit that to the doctors, which in the end hurts their claim because the VA is going to underrate them.
Carol Ponton: Right. If you have suicidal or homicidal thoughts, that is going to give you a much higher rating with the VA. It can often expedite your case. But, I find veteran after veteran will not admit that to the VA, because they have a fear. They have a fear that they will be Baker Acted and put in the hospital. I want to make sure that people understand, you will not be Baker Acted unless you have a present intention of going out and killing someone or killing yourself. If you just have thoughts and you have plans, but you don’t have a present plan to do those things, they’re not going to Baker Act you. They’re going to put that down and that shows the extent of your PTSD or your mental illness. When you don’t tell them, you get a much lower rating, and that’s not fair to you. But it’s this fear that keeps people from doing that. That, the fear of being Baker Acted and fear of having their guns taken away, neither one is going to happen. Okay?
Matthew Hill: And I’d also say, one of the hardest things about a C and P Exam in a mental health setting. The care you’ve had previously, hopefully, is with a doctor or a licensed mental social worker, someone you’ve developed a relationship with and you’ve learned to talk with, learn to trust. The problem is you go in and see a C and P Examiner, never seen this person before, don’t know what their intentions are, don’t know where they’re coming from, and it’s hard just to open up and to just be real and let them know what’s going on. And that’s just something you got to realize going in there, and you got to still rise above that. Because that examiner, they’re not going to prod you, they’re not going to really look into you like somebody’s treating you, like somebody’s has invested-
Carol Ponton: An interest.
Matthew Hill: Yeah. An interest. They’ve got a bunch of exams to do all day, and they’re going to ask you questions, and if you don’t open up and volunteer information like this, they’re going to give you the rating that looks nice on their little sheet. You know, again, this is your claim, these are your benefits, you just need to … it’s going to be uncomfortable, but it’s something that you need to do and they need to know what you’re going through.
Carol Ponton: And it’s not just the Compensation and Pension Exam, many don’t even tell their treating doctor because of these fears that they have. If don’t have a doctor you can tell that to, you need to get another doctor, but you need to tell them. And I’m telling you, they don’t want to Baker Act anybody, they just want to make sure that you’re not going to go out and shoot yourself or somebody else. There’s a big difference between that and just having thoughts, because of the depression. Please make sure they know the full extent of what’s going on with you.
Matthew Hill: Thank you for listening today. Matthew Hill and Carol Ponton for the Hill and Ponton Video Blog. We look forward to seeing you on this space sometime soon.
Mary Klements, Claims Advocate

Verifying Personal Trauma and Military Sexual Trauma Stressors

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When a veteran files a claim for PTSD, the VA must make reasonable efforts to verify the occurrence of the event which caused the mental disorder. Because not all stressors are the same, the VA has guidelines for different types of stressors. In a previous post, we discussed the circumstances under which the VA is and is not required to corroborate stressors. In this post, we will discuss another type of stressor: personal trauma.

How the VA Classifies Personal Trauma

Personal trauma for the purposes of VA disability claims refers to stressor events involving harm perpetrated by a person who is not considered part of an enemy force. This can include assault, battery, domestic violence, robbery, mugging, stalking, harassment, etc. Military sexual trauma (MST) is a subset of personal trauma and refers to sexual harassment, sexual assault, or rape that occurs in a military setting.

VA Requires Credible Evidence

In order for the VA to consider a claim for service-connection for PTSD due to personal trauma, there must be credible evidence to support the veteran’s assertion that the stressful event occurred. This, however, does not mean that the veteran must be able to supply actual proof that the incident occurred. This just means that there needs to be at least a proximate balance of positive and negative evidence that the event occurred.

Note: Personal trauma cases are a rare exception to the active/inactive duty rule. The VA has allowed that veterans whose stressor occurred during inactive duty for training are eligible to service connection in the same manner as those whose stressor occurred during active duty or active duty for training.

What qualifies as “credible evidence”?

In many cases of personal trauma, especially in MST cases, there are often coinciding factors which prevent the veteran from being able or willing to report a personal trauma incident. Therefore many incidents of personal trauma are not officially reported, and the victims of personal trauma may find it difficult to produce evidence to support the occurrence of the stressor.

The VA has recognized this reality and has determined that, in the absence of official reports, claim developers should look for alternative evidence that may demonstrate the presence of markers. These markers include signs, events, or circumstances indicating the possibility that the claimed stressor occurred. This would be considered secondary evidence.

According to the VA’s internal manual, secondary evidence may include the following:

  • Lay statements
  • Indicating increased use or abuse of leave without an apparent reason, such as family obligations or family illness, or
  • Describing episodes of depression, panic attacks, or anxiety, but no identifiable reasons for the episodes, and
  • Evidence of behavioral changes that occurred around the time of the incident, including
  • Visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment
  • Use of pregnancy tests or tests for sexually-transmitted diseases around the time of the incident
  • Sudden requests that the veteran’s military occupational series or duty assignment be changed without other justification
  • Changes in performance and performance evaluations
  • 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 undereating
  • 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, and/or
  • The breakup of a primary relationship.

This is why it is very important to have a family member, spouse or significant other, or close friend write a statement about any behavior changes that they might have noticed during or after the veteran’s period of service. These become valuable testimonials that can significantly help the veteran obtain compensation benefits his or her mental disorder.

Cassandra Crosby, Claims Advocate

Changing an “Other Than Honorable Discharge” due to PTSD related Symptoms

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The character of a discharge is paramount in determining eligibility for a veteran when it comes to VA benefits. If a veteran has not been discharged according to the VA’s criteria, they will be ineligible for any benefits. However, there is a glimmer of hope for some who were victims of trauma.

Veterans who were discharged from the military prior to 1980, under “other than honorable” conditions for such issues as personality disorder, failure to adjust, or unsuitable for military duty due to symptoms that were related to PTSD, even though that was unknown at the time of their discharge, are able to request a change to their discharge under a ruling due to a case brought forth by students at Yale Law School. The class action suit, Monk v. Mabus, sought to grant changes to discharges to allow veterans who suffered from PTSD access to VA benefits they were entitled to due to the effects of the trauma they experienced as a part of their military service.

Other than Honorable discharges

These veterans, many of the Vietnam veterans discharged prior to the PTSD diagnosis was officially established in the Diagnostic and Statistical Manual of Mental Conditions (DSM-III) in 1980. Any veterans discharged prior to approximately that time frame for other mental health issues but whose symptoms at the time met the criteria for PTSD can file for an amended discharge and then proceed to file for benefits through the VA. Some of the discharges often given to those who actually suffered from PTSD were such things as “unsuitability,” “misconduct,” “unqualified for active duty,” “personality disorder,” ‘character or behavior disorder,” or similar issues. There is a section on the DD-214 called separation codes. This box usually has a 3 digit code in it that, when deciphered, tells the reason for discharge. Codes for the issues above usually start with the letter J. Reviewing the DD-214 and checking the codes can assist in determining the cause of discharge. Separation codes and their meanings can be found here.

PTSD Disability

PTSD is the third highest claimed disability among veterans. A psychologist or psychiatrist usually determines if Veterans meet the PTSD Criteria during a psychiatric evaluation. Criteria are broken up into several sections. However, because of the class action suit, the VA has been directed to give “liberal consideration” to various types of evidence relating to PTSD at the time of discharge including:

  • Service records documenting any symptoms that meet diagnostic criteria for PTSD or related conditions; and
  • A diagnosis of PTSD or PTSD related condition by a civilian provider.

Special consideration is also to be given to a VA determinations that document service-connected PTSD or PTSD related conditions. A veteran only has to apply with the information above to request a change in their discharge character.

How Does a Vet Know if They Should Apply for Change in Discharge?

PTSD determination is based on meeting criteria for several different aspects. Due to this ruling, not all aspects have to be met to have the discharge character changed. Remember though, if applying for VA benefits, all criteria will have to be met to meet the VA’s rating criteria. The criteria and expectations are as follows:

  • Criterion A: Both must be met:
    • The veteran was exposed to a traumatic event either by directly experiencing, witnessing, or confronted with an event that involved the threat of death or serious injury, including the death or serious injury of others; and
    • The veteran responded with intense fear, helplessness, or horror.
  • Criterion B: The traumatic event is re-experienced in one or more of the following ways:
    • Intrusive thoughts about the event;
    • Recurrent and distressing dreams of the event;
    • Acting or feeling that the event was recurring, having a sense of reliving the event (flashbacks or hallucinations);
    • Intense physical distress to reminders of the event; and/or
    • Intense emotional distress to reminders of the event.
  • Criterion C: The veteran avoids reminders of the event as indicated by three or more of the following:
    • Avoidance of thoughts, feelings, or conversations of the event;
    • Avoidance of activities, places, or people that remind the veteran of the event;
    • The inability to recall certain aspects of the event;
    • Diminished interest or participation in significant activities;
    • Feelings of detachment or estrangement from others;
    • Restricted range of affect (unable to feel love for others, etc.); and/or
    • Sense of foreshortened future (does not expect to have a future career, marriage, children, grandchildren, etc).
  • Criterion D: Feelings of increased arousal that were not present before the traumatic event indicated by two or more of the following:
    • Difficulty falling or staying asleep;
    • Irritability to outbursts of anger;
    • Difficulty concentrating;
    • Hypervigilance; and/or
    • Exaggerated startle response.
  • Criterion E: the symptoms have lasted for longer than one month, and;
  • Criterion F: the symptoms have caused significant distress of impairment in social, occupational, or other important areas of functioning

Applying for Review of Discharge based on PTSD

Veterans can download the Application for the Review of Discharge, DD-293 to apply for a change in their discharge. By filling out and attaching any evidence that identifies symptoms of PTSD experienced in service; trauma experienced in service; or lay evidence of behavior changes that can be identified by the criteria for PTSD, you can submit your application for a change in your discharge. Veterans can receive assistance with this process at their local VSO.

Cassandra Crosby, Claims Advocate

Mental Health Care and OTH Discharges

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As we opened the newspapers the week of March 7th, 2017, we read the tragic story of another veteran who lost his life to desperation and hopelessness. The sad fact is that 22% of all suicides in the United States are veterans and we can prevent this.

The VA Secretary announced on March 8th, 2017 that the VA intends to expand provisions for mental health care to veterans with other than honorable administrative discharges. This is a show of force between the VA and the current administration that suicide is a top priority and shows that there is recognition that suicide among all veterans needs to be addressed by the VA, not just suicides among those with honorable discharges.

This plan will affect over 500,000 veterans who are currently ineligible for treatment because of their discharge status. But what about compensation rights as well?

Mental Health the cause of an OTH Discharge

For many of these veterans, their mental health issues were the cause of their other than honorable (OTH) discharge. Reviewing the circumstances of the discharge may be required to determine if an in-service event may have led to a mental health condition that, then, in turn, led to actions of behaviors causing grounds for an administrative discharge.  Unfortunately, with PTSD and other MH conditions, they do not always manifest the same in every person who experiences them. People also do not always react to the symptoms in the same way. Where one person may become reckless and start drinking and disobeying orders, another may become reclusive and start not showing up for work. Women also experience trauma differently than men, and people who have been traumatized previously again experience symptoms differently than those who are going through a trauma for the first time. Because of these differences, without screening every active duty member and veteran who has been exposed to trauma, we can’t possibly identify everyone who has PTSD or another MH disorder.

And we need to, identify everyone. Why? Because of what happened on March 7th, 2017, and every other day that over 20 veterans are committing suicide in this country. PTSD and other MH conditions, while not the cause of the suicides, increase the risk that someone who is experiencing frustration with jobs, family relationships, of the VA system itself is more likely to give up than seek help. It has been shown that the suicide rates among veterans who receive services from the VA are markedly decreased compared to those veterans who do not receive services (VA Benefits and Suicide among Veterans).  This proposed change by the VA Secretary and the administration of allowing OTH discharged veterans receive mental health care at VA facilities is a step in the right direction at reducing the suicide rates among our most valued heroes.

What You Can Do

If you know of a veteran who has been exposed to trauma, even if they do not seem to exhibit symptoms of PTSD or any other mental health disorder, please try to get them to get screened for services. Often times PTSD does not manifest immediately, it can sometimes take months or even years for symptoms to get to the point where the veteran is no longer able to control them or keep them hidden from others. This does not mean that all veterans who experienced trauma have a mental health condition, but it does mean that they should get checked at least as a preventative measure to ensure they are not at risk. Often times veterans will be screened and not even realize some of the things they are going through are symptoms of PTSD. Four out of five Vietnam Veterans experience PTSD symptoms 25 years post-war. This needs to be addressed and they need to be helped.

What about that OTH Discharge?

Veterans with an OTH discharge, while they will be eligible for MH services in the future under the new plan, will not be eligible for compensation benefits due to the character of their discharge.  However, if the veteran feels that they were discharged due to the effects of a traumatic experience and the mental health symptoms that arose from that trauma, they can file an Application for the Review of Discharge or Dismissal from the Armed Forces of the United States. The veteran will need to prove their case with documentation so having any medical records, evidence of a traumatic event or statements from witnesses, treatment for your mental health issues, and possibly a statement from your doctor that links your mental health condition to the traumatic event and the behaviors in-service that led to the discharge would be very helpful in supporting the case.  They may also retain assistance from a representative from a local veteran organization. If the veteran is able to change their discharge character to “other than dishonorable” or “general” then the veteran will be eligible to file for compensation benefits for the disability caused by the trauma experienced in-service.

Cassandra Crosby, Claims Advocate

Guide to Proving Service Connection of PTSD

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Service connection for an injury or illness seems easy to prove; medical records documenting that the injury or illness occurred or was first treated while in service is enough to show service connection. Some are easy such as falling off a ladder and connecting that with later back problems. However, some are much more difficult, especially when there may not be any treatment records at all. The most prevalent of these is PTSD.

Victims of PTSD often do not seek treatment

Because of stigma, denial, not knowing they have PTSD, or other issues, many service members do not seek out treatment for PTSD while they are in service or sometimes for years after discharge. PTSD is the third most prevalent disability claim in the VA system yet is probably the least treated.  Many veterans did not seek out mental health treatment in service due to the stigma and possibility of being discharged for mental instability. Often, if they were fortunate, they would seek help at a local community mental health agency or a private doctor whose records could be available to assist with filing their claim, showing in service treatment. However, this is not very often the case. Most often, service members go without treatment altogether.  Only about 50% of Veterans with PTSD seek treatment, and then only about 50% of those receive adequate treatment. When Veterans finally do seek services, it is often at a point where they have reached a very low point in their lives. Many have lost relationships, jobs, homes, and even their self-worth before they seek help. Some have been hospitalized, fallen victim to substance abuse, or have legal problems because of the symptoms of PTSD and how they manifest. Unfortunately, many also commit suicide before they can get help, or because they are not getting the help they need quick enough.

What Causes PTSD?

PTSD can be caused by many different issues and can manifest in very different ways for each individual. What may trigger PTSD symptoms in one person, may not cause any symptoms in another. The VA bases their PTSD definitions on the DSM-V Criteria. The criteria for PTSD are: whether the veteran was directly exposed to a traumatic event; if they witnessed a traumatic event; if they learned that a close friend or relative was exposed to a traumatic event (if involving death it must have been violent or accidental in nature); or repeated or extreme indirect exposure to aversive details of the event (such as first responders, medics, firemen, etc.).  There are also criteria for intrusion symptoms; avoidance, negative alterations in cognitions and mood; alterations in arousal and reactivity, duration, functional significance, and exclusion. When these areas are reviewed, a determination is then made if the Veteran meets the DSM-V criteria for PTSD.

Because everyone has different coping skills and reactions; someone who sees death and destruction on a daily basis serving as a medic in a war zone may meet no criteria for PTSD, yet someone who experiences a fire in their barracks during basic training may end up experiencing many criteria for PTSD. It doesn’t mean a person is strong or weak, only that their minds have reacted differently to different events and they may have different coping skills to deal with what they are exposed to.

Service Records v. Service Medical Records

One of the first things that the VA does when a Veteran files a claim for PTSD is request service medical records. If the Veteran has experienced a traumatic event that may have caused immediate injury or that the Veteran sought out medical or mental health treatment for, it would be present in their medical records. Also, since the onset of the Gulf War, pre- and post-deployment questionnaires address the questions of mental health issues as a course of record. However, again that stigma is present and someone who may not want to be medically discharged or sent back stateside may not seek treatment or tell the truth on forms in order to keep their job and duty station.

So, if there are no medical records, how can someone go about proving that the incident occurred in service? One way is be requesting that the VA review your Service Records as well as your medical records. By reviewing your service records, there may be what are called markers to PTSD or mental health issues such as sudden disciplinary issues, a sudden drop in performance review scores; a request for a change in duty station or different squad, company, or platoon; records of going AWOL; or other issues such as excessive drinking, dereliction of duty, insubordination, etc. Any types of behaviors that were not present before the incident but become prevalent after may be considered markers of a traumatic event.

Other forms of “Proof”

There are a few other ways to show that a traumatic event happened when you don’t have any “proof” of it. Stressor verification can be determined by:

  1. Buddy Statements – written statements from friends, other service members, or relatives who either witnessed the event, discussed it with you when it happened, or noticed a behavior change after the event.
  2. Help Program records – if you called any support groups, helplines, churches, or other programs that offered support and help, document it or try to get copies of your records with those agencies.
  3. Civilian reports such as police reports if the incident was reported to civilian authorities but not military authorities (for example, a car accident and the Veteran’s best friend is killed while he is home on leave);

A Veteran will also have to fill out a PTSD Stressor Statement form and attend a C&P Exam. There are tips on what to do to prepare for the C&P Exam here.

Getting Help

Getting help with filing your claim helps increase the chances of it getting approved. However, for those with PTSD, it can also relieve some of the stress that Veterans experience dealing with the claims process. If you need help filing your claim, please call your local Veteran’s Organization for assistance or an attorney if you have an initial denial. Professional help increases your chances of winning your claim by almost 25% and can greatly reduce the stress on you.

Most importantly, remember that no matter what happens with your claim, it is vital that you seek help to deal with your symptoms. PTSD is one of the leading causes of suicide among Veterans and seeking help will reduce the risk of suicide. If you are experiencing thoughts of harming yourself or others, please call 911 immediately. Other resources available for Veterans include:

  • 911 or go to the nearest emergency room;
  • Veterans Crisis Line – 1-800-273-8255 and press 1 or text 838255;
  • Wounded Warrior Project
  • The Soldier Project has a list of resources including homeless programs, financial assistance for medications, therapy programs, and support groups.
Allison Reddick, Attorney

Do sleep apnea and PTSD have overlapping factors?

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Around 8% of the US population will experience PTSD in their life. While it is more common for veterans to suffer from PTSD than the average person due to the variety of stressful situations they experience, the VA estimates that the number of veterans that suffer from PTSD varies by service era:

  • Operations Iraqi Freedom (OIF) and Enduring Freedom (OEF): About 11-20 out of every 100 Veterans (or between 11-20%) who served in OIF or OEF have PTSD in a given year.
  • Gulf War (Desert Storm): About 12 out of every 100 Gulf War Veterans (or 12%) have PTSD in a given year.
  • Vietnam War: About 15 out of every 100 Vietnam Veterans (or 15%) were currently diagnosed with PTSD at the time of the most recent study in the late 1980s, the National Vietnam Veterans Readjustment Study (NVVRS). It is estimated that about 30 out of every 100 (or 30%) of Vietnam Veterans have had PTSD in their lifetime.

As the statistics show, PTSD is a condition seen among many veterans. To learn more about PTSD, click here. With PTSD comes a variety of symptoms that affect sleep including difficulty falling asleep, nightmares, flashbacks, and insomnia. Scientific research now shows that there is another sleep disorder which is linked to PTSD: sleep apnea. Sleep apnea occurs when a person’s breathing repeatedly stops and starts during sleep.

Here are the common signs and symptoms of sleep apnea

  • Loud snoring, which is usually more prominent in obstructive sleep apnea
  • Episodes of breathing cessation during sleep witnessed by another person
  • Abrupt awakenings accompanied by shortness of breath, which more likely indicates central sleep apnea
  • Awakening with a dry mouth or sore throat
  • Morning headache
  • Difficulty staying asleep (insomnia)
  • Excessive daytime sleepiness (hypersomnia)
  • Attention problems
  • Irritability

So how is sleep apnea related to PTSD in veterans?

Research has shown that there are factors that overlap in both disorders which affect and aggravate each other. Overlapping factors include disturbed sleep in combat, excessive sleep deprivation, fragmented sleep, hyperarousal, and chronic stress. Although all of these symptoms contribute to the interaction between sleep apnea and PTSD, the main culprits seem to be sleep deprivation and chronic stress. Studies have shown that patients exhibiting these symptoms tend to have increased frequency and length of apneic events. Research has also shown that as the severity of PTSD increases in a person, the chances of developing sleep apnea increases as well because of the interplay between the shared factors of the two disorders. Although in this blog, we focused on PTSD, sleep apnea is also associated with other forms of mental illness, click here to learn more.

The important takeaway message is that if you are a veteran suffering from PTSD, it is important to get a screening for sleep apnea.            If you have undiagnosed sleep apnea, you could be suffering from symptoms that can be treated. Reports have also shown that receiving the appropriate treatment for sleep apnea can improve PTSD symptoms. It is also important to be screened for sleep apnea because if left untreated, sleep apnea can lead to the development of other health issues including:

  • High blood pressure
  • Stroke
  • Heart failure, irregular heartbeats, and heart attacks
  • Diabetes
  • Depression
  • Worsening of ADHD
  • Headaches

Although sleep apnea is commonly associated in society with older, overweight individuals, the interplay with PTSD has a lot of younger, fit individuals being diagnosed with sleep apnea. At the end of the day, regardless of your demographics, if you are suffering from PTSD, it is important to ask your doctor for a screening for sleep apnea to prevent further complications of your health as well as potentially treat some of your current symptoms.

Melanie Franco, Attorney

VA Benefits for PTSD – Fear of Hostile Military Activity

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We’ve been looking at the requirements for a PTSD claim of an in-service stressor. We know that generally, you need evidence to corroborate your stressor, but that there are certain situations where it is easier. The first situation we looked at was when a veteran is diagnosed with PTSD in service. The second type of stressor we looked at was for veterans who were in combat. Today we will talk about stressors related to fear of hostile military or terrorist activity.

An in-service stressor has to be corroborated. The general rule is that the VA will not accept your statement as proof that the in-service stressor occurred. But because this often proves very difficult, the VA has provided certain situations or exceptions, where the VA will accept the veteran’s statement as sufficient proof of the stressor.

Stressor Related to Fear of Hostile Military or Terrorist Activity

In July 2010, the VA changed the rules to make it easier for veterans to establish an in-service stressor by eliminating the requirement for corroborating evidence. This applies to cases where a VA psychiatrist/psychologist has diagnosed PTSD and the stressor “is related to the veteran’s fear of hostile military or terrorist activity.” The VA did this because they recognized that there is scientific research relating PTSD to exposure to the inherently stressful nature of places, types, and circumstances of service in which fear of hostile military or terrorist activities is ongoing. The studies showed that veterans had mental and physical health effects from stressors related to deployment to a war zone even though they did not personally participate in combat.

Here is what you will need to qualify for this:

  • Your stressor is related to your fear of hostile military or terrorist activity (we will talk about what this means below)
  • A VA psychiatrist or psychologist, or a psychiatrist/psychologist that is contracted by the VA
  • They need to confirm that your stressor is adequate to support a diagnosis of PTSD
  • They need to confirm that your symptoms are related to the claimed stressor
  • The stressor has to be consistent with the places, types, and circumstances of your service
  • There should be no clear and convincing evidence to the contrary

If you meet these requirements, then your lay testimony or statement, alone may establish the occurrence of your in-service stressor.

Fear of hostile military or terrorist activity means:

  • You experienced, witnessed, or were confronted with an event or circumstance that involved
    • actual or threatened death or serious injury, or
    • a threat to your physical integrity or someone else’s, and
  • Your response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.

Some examples would be the threat of an actual or potential improvised explosive device;  a vehicle-imbedded explosive device; incoming artillery; rocket or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft.

The regulation applies to all veterans who experienced “fear of hostile military or terrorist activity” regardless of where they were when they experienced this fear. It applies to veterans who served in Iraq, Afghanistan, and any other veteran who served during any period of time in any location, they don’t have to have served in a combat zone. What “fear of hostile military or terrorist activity” doesn’t include is sexual assault or hostile criminal actions of US military personnel directed against other US military personnel.

This regulation only applies to claims that were received after July 13, 2010, or were pending at that time. If the claim that led to the award of service connection for PTSD was pending on July 13, 2010, then the benefits that are awarded are given an effective date of the date the claim was received, even if it was before July 13, 2010. But claims that were denied before July 13, 2010 will not be reopened or readjudicated without new and material evidence to reopen it. The VA, however, will accept a veteran’s statement regarding an in-service stressor as new and material evidence for the purpose of reopening a previously denied claim, if the veteran’s records show service in a  location involving exposure to hostile military or terrorist activity.

This regulation should help many veterans establish their claim for service connection for PTSD.

Melanie Franco, Attorney

VA Benefits for PTSD – Combat Stressor

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In previous posts, we’ve looked at the requirements for establishing service connection for PTSD. One of those requirements is a stressor that occurred during service that causes the veteran to develop PTSD. An in-service stressor has to be corroborated. The general rule is that the VA will not accept your statement as proof that the in-service stressor occurred. But because this often proves very difficult years after service, the VA has provided certain situations or exceptions, where the VA will accept the veteran’s statement as sufficient proof of the stressor.

We already looked at the first exception, which is when the veteran is diagnosed with PTSD in service. In that case, if the veteran was diagnosed with PTSD during service and the claimed stressor is related to service and is consistent with the circumstances of the veteran’s service, and there is no other evidence showing otherwise, then the veteran’s statement about the in-service stressor is taken to be true.

In-Combat Stressor

If you were in combat during active duty, all you need is lay evidence to prove your stressor. This means that if the evidence shows that you engaged in combat with the enemy, and you later develop PTSD because of that combat experience, your statement alone is enough to establish that the stressor occurred in service. There are two exceptions to this: 1) if the stressor is not consistent with the circumstances, conditions, or hardships of your service, and 2) there is clear and convincing evidence that the stressful event did not occur. Absent these two exceptions, combat veterans will have an easier time proving their stressor because there does not need to be evidence in the record proving your stressor actually occurred. Even a brief participation in combat triggers these rules, and a similar rule applies to former prisoners-of-war claiming a stressor related to their prisoner-of-war experience.

The two exceptions mean that although your statement will be taken to be true, it has to be inherently credible. When a veteran claims PTSD and states that he served in combat and identifies the stressor that occurred in combat but it is not inherently credible (meaning it can’t be believed in it of itself), the VA takes several steps to develop the evidence in the case. The VA is supposed to develop the case for evidence of combat service and additional service that the combat stressor actually took place.

If you don’t know whether or not your veteran was in combat, the following are ways to find and prove that they were:

  • Military service records often reveal that a veteran engaged in combat with the enemy
  • A veteran’s MOS may also show evidence of combat (like infantryman indicating combat experience)
  • Granting certain military decorations, awards, and citation shows combat and might even be evidence of the veteran having participated in a stressful episode
  • Buddy statements, letters home to friends or family, or other supportive evidence might show combat experience and must be considered.

Once the veteran submits his claim, the VA has a duty to assist in finding information. After the VA receives the information from the veteran and the service department, the VA must write to the US Army and Joint Services Records Research Center (JSRRC), who then researches the available records attempting to verify the stressing experiences the veteran states. Then they will search for evidence to corroborate the occurrence of a stressor from any time period. (Note: the Marine Corps records are kept separately and must be requested from the Marine Corps and Special Collections or Commandant of the Marine Corps, but the VA is supposed to do that). The VA cannot deny a PTSD claim where the veteran has a valid PTSD diagnosis because of an unconfirmed stressor until the JSRRC has reviewed it, or the National Archives and Records Administration, or the Marine Corps. If any of those agencies requests a more specific description of the stressor, the VA must immediately request that the veteran provide the requested information, even when the veteran has previously provided some information. If you don’t respond to the request for information, that may be grounds to deny a claim based on an unconfirmed stressor.

Once the evidence is developed, the VA must determine whether the veteran engaged in combat and whether the claimed stressor relates to combat. If the veteran testifies to combat action that is not confirmed by his or her MOS or military record, the VA must make a finding as to the credibility of the veteran’s statement as to their duties and provide reasons for its finding of whether the veteran engaged in combat.

Once a veteran seeking service connection for PTSD establishes that they engaged in combat with the enemy, the VA must accept the veteran’s statement as proof that the alleged stressor happened during combat, even if there are no official records or supporting evidence.

Melanie Franco, Attorney

VA Benefits for PTSD – Personal Assault

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We’ve been looking at the requirement for a PTSD claim of an in-service stressor. We know that generally, you need evidence to corroborate your stressor, but that there are certain situations where it is easier. The first situation we looked at was when a veteran is diagnosed with PTSD in service. The second type of stressor we looked at was for veterans who were in combat. The third scenario is for stressors related to fear of hostile military or terrorist activity. Today we will look at in-service personal assault.

An in-service stressor has to be corroborated. The general rule is that the VA will not accept your statement as proof that the in-service stressor occurred, and that you will need evidence that the stressor occurred. But because this often proves very difficult, the VA has provided certain situations where it is easier to prove your stressor. One of those situations is for in-service personal assault.

In-service Personal Assault as Stressor for PTSD

Personal assault is “an event of human design that threatens or inflicts harm.”

Some examples are:

  • Rape
  • Physical assault
  • Domestic battering
  • Robbery
  • Mugging
  • Stalking
  • Harassment

These incidents do not only apply to female veterans, male veterans may also be victims of personal assault.

The VA has acknowledged that personal assaults are often not officially reported and victims may find it difficult to produce evidence to support that the assault actually happened. There are, therefore, two rules in place the VA must follow: 1) When the veteran states that he or she did not report an in-service sexual assault, the VA cannot rely on the absence of service records documenting the assault to conclude that it did not happen, and 2) the VA may not rely on a veteran’s failure to report the assault as evidence that it did not happen. The VA has recognized that alternative evidence can establish an in-service assault even if military records don’t document that it occurred. This makes finding alternative sources critical and the VA has a special obligation to assist in cases where the veteran is claiming personal assault.

The VA has to tell the veteran that evidence other than that found in service records can be submitted, and the VA has to allow the veteran the opportunity to submit such evidence. Some types of evidence that can be used to support a PTSD claim based on a personal assault are:

  • Records from law enforcement authorities
  • Rape crisis centers
  • Mental health counseling centers
  • Hospitals or physicians
  • Pregnancy tests or tests for STDs
  • Statements from family members, roommates, fellow service members or clergy.

In any of these sources, you are looking for evidence of behavior changes following the claimed assault, as this is one type of relevant evidence that can be found in these sources.

Examples of behavior changes that may constitute credible evidence of the stressor include:

  • A request for a transfer to another military duty assignment
  • Deterioration in work performance
  • Substance abuse

Other examples of what you could use as evidence are:

  • Personal diaries or journals
  • Visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment
  • Lay statements indicating increased use or abuse of leave without an apparent reason
  • Lay statements describing episodes of depression, panic attacks, or anxiety but for no identifiable reasons
  • Episodes of depression, panic attacks, or anxiety without an identifiable cause
  • Unexplained economic or social behavior changes
  • Increased use of over-the-counter medications
  • Evidence of substance abuse such as drugs or alcohol
  • Increased disregard for military or civilian authority
  • Obsessive behavior such as overeating or undereating
  • Increased interest in tests for STDs
  • 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
  • The breakup of a primary relationship

Some other sources of information include:

  • Rape crisis center or center for domestic abuse
  • Vet center
  • Counseling facility
  • Health clinic
  • Family members or roommates
  • Faculty members
  • Civilian police officers
  • Medical reports from civilian physicians or caregivers who may have treated the veteran either immediately after the incident or sometime later
  • Fellow service persons
  • Chaplain or clergy

Whatever evidence you have, submit it to the VA and the VA can then submit any evidence it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. In PTSD claims based on personal assault, medical opinions that happened after the stressor can corroborate the claimed stressor and must be considered by the VA in determining whether the evidence establishes that the stressor occurred. But this does not mean that the VA must accept a medical examiner’s opinion as credible evidence of the claimed in-service stressor. Instead, the VA must weigh the medical examiner’s opinion against other evidence of record and determine whether it corroborates the claimed stressor.

Melanie Franco, Attorney

VA Benefits for PTSD – Part 3 – The Link

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We have been looking at claims for PTSD and what it takes to get service-connected. A claim for PTSD has three requirements: 1) a diagnosis of PTSD 2) an in-service stressor 3) a link between the diagnosis and in-service stressor. In our first post, we looked at what PTSD is and the first requirement. In the second post, we took a closer look at proving the in-service stressor. In this post, we will be looking at our third requirement, the link between the diagnosis of PTSD and the in-service stressor.

Nexus Link Between PTSD Diagnosis and In-Service Stressor

The third requirement for service connection of PTSD is a nexus link established by medical evidence between the current symptoms and the in-service stressor. This link has to be provided by a medical expert, it cannot be a lay opinion by an individual.

Establishing the link between the diagnosis of PTSD and the stressor is easier than the other two requirements for PTSD. Once you meet the first requirement showing you have a current diagnosis, it’s not hard to meet the third. The medical report containing the diagnosis of PTSD will usually also have information about the traumatic event that caused it and link the diagnosis to the event.

Examination reports should also always:

  • Sufficiently describe symptomatology
  • Identify or adequately describe the stressor
  • Acknowledge and reconcile prior reports that don’t support a diagnosis of PTSD
  • Conform to the Diagnostic Statistics Manual

It’s important that any private medical report also includes this information.

The standard for the medical nexus is the same as for the rest of the VA, the medical evidence in the record only needs to be in equipoise, or roughly even, on whether the veteran’s current symptoms are connected to the in-service stressor. This is the standard of “at least as likely as not.”

If after reviewing the evidence, the VA doubts whether the veteran’s stressor contributed to the PTSD symptoms, the medical reports must be returned for clarification. If the VA denies a claim for PTSD because it does not find the veteran’s nexus medical evidence convincing, it must say so in its decision and include an adequate statement of its reasons, along with identify the medical evidence in the record showing that the medical link was not proven.

As long as there is a clear relationship between an in-service stressor and a current diagnosis of PTSD, a veteran whose service records show no evidence of a mental disorder prior to service, can be entitled to service connection for PTSD. Even if PTSD develops many years after service, the VA has recognized that PTSD can develop hours, months, or even years after a stressor.

Once the veteran has submitted a medical diagnosis of PTSD, the VA is now limited in its ability to deny a claim for not showing a current disability. The record would have to contain medical evidence directly contradicting the diagnosis of PTSD for the VA to find the veteran doesn’t have a current disability. Then the VA must accept that the stressor described by the veteran to the examiner was medically sufficient to support a diagnosis of PTSD, and that the veteran’s symptoms were adequate for the examiner to diagnose PTSD. If the VA doubts whether the described stressors were sufficient to cause PTSD, or the adequacy of the symptomatology described in the diagnostic report, the VA must do one of two things: 1) put aside the doubts and accept the medical report as sufficient for rating purposes, or 2) return the medical report for clarification (not necessarily to the same examiner). If clarification isn’t provided when the report is sent back, then the VA must either return the examination report again or obtain independent medical evidence concerning the issue. Ultimately, the VA cannot reject a competent diagnosis of PTSD without an adequate statement of reasons or bases for its decision, and unless it can point to other medical evidence in the record to support its conclusion that the veteran does not have PTSD.

There are some cases where there are conflicting diagnoses in the record, where one expert opinion might conclude that the veteran has PTSD, and another expert concludes that the veteran either a) does not have PTSD, but does have another mental disorder, or b) does not have PTSD or any other mental disorder. When the evidence conflicts like this, the VA must analyze and weight the conflicting evidence in the record and making a finding one way or the other as to whether the veteran has PTSD. If the VA finds that the negative evidence outweighs the positive evidence of PTSD, the veteran can appeal. But if the BVA finds that the veteran also does not have PTSD, that decision will be upheld by a reviewing court as long as the decision is supported by medical evidence, has a plausible basis in the record, and is supported by an adequate statement of reasons and bases. The key to winning cases where there are conflicting diagnoses is to have the stronger evidence on your side.