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Leslie Gaines, Senior Attorney

VA Vet Centers & PTSD: Proving Your Case

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As I work on claims involving disability benefits for PTSD, I often wonder if veterans are fully aware of the services available through the VA for treating their PTSD. Normally after reading pages and pages of mental health medical records that are at best less than thorough, and at worse, sometimes downright damaging, I find myself feeling discouraged for our veterans, and thinking about how we as advocates can better educate our clients to help them obtain the benefits they deserve.

Most veterans with PTSD are familiar with the main VA medical centers and outpatient clinics. But what I’ve seen is that many veterans are not aware that they may be eligible for treatment through the VA’s Vet Center Program. The Vet Centers offer individual and group counseling, not only for PTSD, but also for bereavement, MST, and other issues impacting veterans. Here is a link from the VA’s website for more information about this program:  http://www.vetcenter.va.gov/index.asp

So, how can obtaining treatment at a Vet Center help veterans with their disability claims. Here’s how:

  1. Proving the Diagnosis– One of the biggest issues facing veterans when trying to obtain service connection for PTSD, is proving that they have this condition in the first place. As discussed in some of our earlier blogs, you must have a “current diagnosis” in order to obtain service connected benefits. I have seen that veterans may be obtaining treatment at a VA medical center or clinic for various symptoms (and perhaps even be on medications); however, it is not uncommon for their medical records to fail to obtain an official diagnosis of PTSD, or for the records to just state “PTSD traits.” In my experience, the practitioners at the Vet Centers seem to do a much better job of thoroughly assessing veterans to come up with the correct diagnosis. The Vet Centers will also frequently administer psychological testing to help verify the diagnosis, which becomes very beneficial later on down the line when a Compensation and Pension examiner tries to challenge whether or not the veteran even has PTSD, despite the opinions of the treating practitioners to the contrary.
  2. Proving the Nexus –Once you’ve established that you have PTSD, you have to prove that the PTSD is somehow related to your military service. This is known as the “nexus.” The way you get to the nexus is through medical opinions. Oftentimes, I’ve seen that practitioners at the Vet Centers will take the extra time to carefully document the connection between what happened in service and the current condition. This is in contrast to the typical records I see from the main VA facilities, which normally fail to discuss any nexus, or, if an attempt to discuss nexus is made, it may not be sufficient for VA disability purposes. Again, without the nexus, there is no case. Once you have the nexus, then the biggest hurdle is…
  3. Proving the Rating – the rating is based upon the severity of symptoms. The VA uses the same rating schedule for most mental disorders to evaluate this issue. The key is that if you are experiencing severe PTSD symptoms, those symptoms have to be documented in order for the VA to get the rating correct. I have seen practitioners at the Vet Centers “go to bat” for their veterans in this regard. 

The bottom line is that it is important that the medical records properly reflect the true nature of the diagnosis and the symptoms, and ideally veterans should be proactive in this regard to ensure that their practitioners are (1) aware of the full impact the PTSD has had on their lives, and (2) documenting accordingly. If the treatment offered through the main VA facility is insufficient or not working for whatever reason, the VA’s Vet Center Program may be a viable alternative.

Leslie Gaines, Senior Attorney

Sleep Apnea and the VA: The Growing Elephant in the Room

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For years, the “elephant in the room” in the VA Schedule for Rating Disabilities has been sleep apnea.  However, there has been a growing controversy over the amount of money the VA pays veterans afflicted with this condition, and an increasing lobby to get rid of compensation for it. Recent articles have stated that in the year 2013, the VA paid close to $2 billion for sleep apnea claims alone.  As a result of the controversy, the VA has been strongly urged to reevaluate the rating schedule for this condition, which could potentially result in important changes down the line for veterans.

If you are a veteran who suffers from sleep apnea or suspect that you may have this condition, there are some important facts you should know.

First, you should know that sleep apnea is frequently undiagnosed and not easily identified by doctors during routine office visits.  This is a condition that occurs only during sleep, so it is not uncommon for a person to have sleep apnea and not know it, until a bed partner or family member alerts him/her to the symptoms.  Sleep studies are often needed in order for a definitive diagnosis to be made.

Second, if you are contemplating filing a VA disability claim, it is important to document the symptoms and treatment so the condition can be adequately rated. This means, undergoing sleep studies and following up with the proper doctors. It is beneficial to keep sleep diaries to document any symptoms or treatments, such as chronic fatigue, persistent daytime hypersomnolence (i.e. excessive daytime sleepiness), or use of a CPAP machine.  If sleep apnea prevents you from working or significantly interferes with your work, that should also be documented.  Like most conditions, there is a tiered rating system for sleep apnea.  If the condition is asymptomatic, then a zero percent rating is warranted. However, if a breathing device is needed, then a 50 percent rating is assigned. So the treatment and symptoms make a difference.

Lastly, if you believe your sleep apnea is related to your military service, you should file a claim for this disability right away. This could mean that you suffered from diagnosed sleep apnea during service, or even if there was not a formal diagnosis, you could have experienced apnea symptoms during service, or been diagnosed post service but the apnea is secondary to another service connected condition, such as PTSD.  In either case, it is important to file the claim right away to preserve the effective date, and assuming service connection is granted, if the ratings change in the future, veterans who are rated under the current schedule will be grandfathered in.

Matthew Hill

Video Blog – PTSD and VA Service Connected Compensation

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Matthew: Welcome to the Hill & Ponton video blog! I’m Mathew Hill and this is Carol Ponton. We’d like to talk to you today about service connecting PTSD. There’s a lot that goes into the Service Connected component for PTSD. We’re not going to touch on the rating. We just want to focus on how you get the VA to recognize that your PTSD is related to your service. There are two main ways to do this. You have what’s called Direct Service Connection and then Presumptive.

With Direct Service Connection, you have to show that something in service happened that you have a current diagnosis of PTSD and that incident in service – that stressor – caused your PTSD. For years, proving the stressor was the bane of Vietnam veterans’ existence, frankly. They weren’t able to show that their PTSD was related to service, so they could never prove their stressor.

The VA has taken that away now for fear of hostile military action or activity that helps all veterans who were in a war zone. That’s a presumptive way now. If you were in a war zone, then the VA can say that you had fear of military hostile activity and you do not have to show that you had a stressor. You don’t have to go prove a stressor.
Going back to Direct Service Connection, what does it mean to prove a stressor?

To prove a stressor, you have to have independent evidence of your own word. If you were hit by a car in a car accident and you have a police report showing that you were in the accident, that would be independent verification. If you got into a fight and you have a friend fill out a buddy statement that you were in the fight and it occurred and you got hurt, that would be verification. That’s how you show direct service connection.

Back to the presumptive. This has made combat veterans lives a lot easier in that they don’t have to go out and find a buddy or find an after-action report of what happened to them while they were in a battle.
Now what they have to do is just show that their PTSD, their mental illness, is related to that battle and is related to what happened in service.

Of course, there are road blocks on all of these. One of the road blocks I see is proving a stressor. I spoke about the car accident. If it was 30 years ago, it might be hard to find a police report and the people you were with you might no longer know or they may now be deceased. Those can all be problems in showing Direct Service Connection.
The theme or reoccurrence I keep seeing on veterans who were in a war zone where they have the presumption that a stressor happened, again and again I see where veterans either don’t meet the criteria for PTSD or diagnosed with something else, according to the VA.

Carol: The VA has a list of seven things that you have to show. There are seven different criteria. If you meet all except one, you don’t have PTSD, according to them. One of the problems is when the veteran goes in to have his compensation and pension exam, a lot of times we’re talking about the thing that may be bothering you the most right now and you may forget that you get angry without any reason.

You may forget that you are hypervigilant. You may not even think to tell the person, “I get up and check the locks,” or “When I go someplace, I have to sit with my back to the door.” You may forget that you can’t be around people or don’t have any emotional attachment or don’t have nightmares. There are so many things that each of these criteria address that you have to name one in each criteria in order to meet their diagnosis.

Matthew: And you’re not told what the criteria is. A lot of times, it’s even more deceiving than that. Most of the veterans we work with treat for their health care at the VA. We see veterans who are diagnosed by their own VA doctors with PTSD. Then for a compensation and pension exam, they go in and their doctor says, “No, you don’t have PTSD.” By their doctor, I mean the VA benefits section (the examiner).

Carol: This would be despite the fact that the veteran has complained of each one of these criteria to his own VA doctor.

Matthew: That is a big problem we’re seeing: veterans not meeting all the criteria. The VA benefits section always takes the word of the compensation doctor and not the VA treating doctor.
When you go to an exam for your PTSD, you have to realize you need to talk about everything that’s going on. You have to assume that the doctor you’re seeing is not going to give any weight to your treating doctors.
I just had a case where the veteran was denied Service Connection for PTSD and he was in a VA inpatient hospital for PTSD for 30 days, but the VA would not recognize that.

The other thing we see on that is the VA misdiagnosing the veteran or saying, “No, you don’t have PTSD. You have alcohol abuse,” or “You’re feigning your symptoms.” They like to use these tests that say, “The veteran is overreacting. He couldn’t have had this bad of an experience.” It’s a slap in the face to the veteran and it’s a big problem, because the VA says, “You’re now a malingerer.” That’s what they’re labeled with. And if the veteran didn’t have enough problems already dealing with the disability the government gave them, now they’re called a liar on top of it. It’s really pathetic a lot of times.

Carol: It’s very infuriating. You need to know that we can get beyond this. We see these cases all the time. Don’t leave it where it is. Please file an appeal. Please pursue this, because you’re entitled to these benefits. If you keep appealing and you get the evidence in the right way, you’re going to win. And you should win.

Matthew: That’s a great point. Unfortunately, the way the system is set up is it’s always easier for the VA to deny than to grant you benefits. One person can always deny you the benefits. To grant you benefits, sometimes it can take two or three people to actually all sign off on your benefits.
Keep appealing. Don’t just sit on the denial and think the government is right. You are entitled to these benefits.

Carol: Figure out what it is that made them deny you. Sometimes veterans just file an appeal and they don’t give the VA what they’re asking for. For instance, in this one case that I just reviewed, the veteran needed to talk about one of the A-F criteria. That’s what they were missing.

Matthew: In his defense, the VA doesn’t make it clear.

Carol: No, he didn’t know. That’s why if you know why you’ve been denied, it’s easier to win.

Matthew: This was our discussion on PTSD in Service Connection. Stay tuned! We will be doing a video soon on PTSD and Rating.

Matthew Hill

Winning VA Service Connected Compensation for PTSD

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PTSD is the only mental illness to have its own VA regulation.  For a veteran to receive service connected compensation for PTSD, he must show three things.  First, he must have a current diagnosis of PTSD.  Second, he must provide credible supporting evidence of a stressor while the veteran was in service.  Third, he must have a medical nexus (link) between the PTSD and what happened in service.

The diagnosis of PTSD must have been provided by a qualified medical professional, which is either a medical doctor or a Ph.D. in psychology.  Even though the VA uses licensed mental health social workers treat veterans—not to mention that these medical professional are competent and well trained— the VA will not accept their opinions diagnosing PTSD.

Regarding the credible supporting evidence of a stressor, the veteran has to provide evidence in addition to his testimony of what happened in service.  This evidence can be in the form of service records, buddy statements, newspaper reports, unit records— anything that supports the stressor that the veteran talks about.

As far as the nexus is concerned, it has to be provided by a doctor and the doctor must link the PTSD to the verified stressor.  This link is a little more complicated than it seems because most veterans have multiple stressors.  Let me give you an example, where a veteran had two stressors in service, one verified and one not.  For the first stressor, the veteran was in a car accident in service in which his best friend was killed.  There are service records and hospital records backing up this stressor.  The second stressor was when the vet was in his bunk and some fellow soldiers came into the room and threw a grenade at him.  The grenade was a dummy but the veteran did not know that and he still has nightmares about it.  There is no independent verification of this stressor.  For the veteran to receive service connected compensation for his PTSD, the doctor would have to relate his PTSD specifically to the car accident in service because that is the only stressor with independent verification.

There are certain situations where the VA does not make the veteran show independent verification of a stressor.  If a veteran was diagnosed with PTSD in service then the VA will not ask for proof of a stressor.  If the veteran can prove that he was in combat and that his PTSD is related to combat then he does not have to provide the VA independent verification of a stressor.  Similarly, if the veteran was a POW then he does not have to provide verification of a stressor if the stressor is related to being a POW.

Recently, the VA added a new presumption where the veteran does not have to show verification of his stressor.  If a VA doctor finds that the veteran’s PTSD relates to fear of hostile military or terrorist activity then the VA will not require independent verification of the stressor.  Of course, there are a couple of catches here.  It has to be a VA doctor to do this—if the veteran has a diagnosis of PTSD related to fear of hostile military or terrorist activity from a private doctor then the VA is still going to require the veteran to show proof of the stressor.  Another problem with this rule is if the VA doctor finds that the veteran does not have PTSD but depression or anxiety or a mood disorder that is related to fear of hostile military or terrorist activity the VA will require the veteran to show proof of the stressor.  This rule only works if the VA doctor relates PTSD to a fear of hostile military or terrorist activity.

Another situation where the VA has reduced the burden of proof on the veteran is where the stressor involves an in-service personal assault.  The VA has admitted that instances of assault in service are both underreported and under recorded, in that most people are too embarrassed to report these attacks and then even where someone did report it the report is never officially filed by the authority responsible for doing so.

Most commonly, an in-service personal assault is a rape or a sexual assault.  This type of claim is typically referred to as a military sexual trauma or an MST.  But an in-service personal assault can take other forms—being physically assaulted or even verbally harassed.

In these situations, the VA will look for evidence outside the veteran’s service records such as records from law enforcement, rape crisis centers or pregnancy tests.  The VA will also accept evidence of behavior changes such as statements from relatives as to how the veteran was before service compared to how he was after service.

Matthew Hill

PTSD and VA Service Connected Benefits

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PTSD is the only mental illness to have its own VA regulation. For a veteran to receive service connected compensation for PTSD he must show three things. First, he must have a current diagnosis of PTSD. Second, he must provide credible supporting evidence of a stressor while the veteran was in service. Third, he must have a medical nexus (link) between the PTSD and what happened in service.

The diagnosis of PTSD must have been provided by a qualified medical professional, which is either a medical doctor or a Ph.D. in psychology. Even though the VA uses licensed mental health social workers to treat veterans—not to mention that these medical professional are competent and well trained— the VA will not accept their opinions diagnosing PTSD.

Regarding the credible supporting evidence of a stressor, the veteran has to provide evidence in addition to his testimony of what happened in service. This evidence can be in the form of service records, buddy statements, newspaper reports, unit records— anything that supports the stressor that the veteran talks about.

As far as the nexus is concerned, it has to be provided by a doctor and the doctor must link the PTSD to the verified stressor. This link is a little more complicated than it seems because most veterans have multiple stressors. Let me give you an example, where a veteran had two stressors in service, one verified and one not. For the first stressor, the veteran was in a car accident in service in which his best friend was killed. There are service records and hospital records backing up this stressor. The second stressor was when the vet was in his bunk and some fellow soldiers came into the room and threw a grenade at him. The grenade was a dummy but the veteran did not know that and he still has nightmares about it. There is no independent verification of this stressor. For the veteran to receive service connected compensation for his PTSD, the doctor would have to relate his PTSD specifically to the car accident in service because that is the only stressor with independent verification.

There are certain situations where the VA does not make the veteran show independent verification of a stressor. If a veteran was diagnosed with PTSD in service then the VA will not ask for proof of a stressor. If the veteran can prove that he was in combat and that his PTSD is related to combat then he does not have to provide the VA independent verification of a stressor. Similarly, if the veteran was a POW then he does not have to provide verification of a stressor if the stressor is related to being a POW.

Recently, the VA added a new presumption where the veteran does not have to show verification of his stressor. If a VA doctor finds that the veteran’s PTSD relates to fear of hostile military or terrorist activity then the VA will not require independent verification of the stressor. Of course, there are a couple of catches here. It has to be a VA doctor to do this—if the veteran has a diagnosis of PTSD related to fear of hostile military or terrorist activity from a private doctor then the VA is still going to require the veteran to show proof of the stressor. Another problem with this rule is if the VA doctor finds that the veteran does not have PTSD but depression or anxiety or a mood disorder that is related to fear of hostile military or terrorist activity the VA will require the veteran to show proof of the stressor. This rule only works if the VA doctor relates PTSD to a fear of hostile military or terrorist activity.

Another situation where the VA has reduced the burden of proof on the veteran is where the stressor involves an in-service personal assault. The VA has admitted that instances of assault in service are both underreported and under recorded, in that most people are too embarrassed to report these attacks and then even where someone did report it the report is never officially filed by the authority responsible for doing so.

Most commonly an in-service personal assault is a rape or a sexual assault. This is commonly referred to as a military sexual trauma or an MST. But an in-service personal assault can take other forms—being physically assaulted or even verbally harassed.

In these situations, the VA will look for evidence outside the veteran’s service records such as records from law enforcement, rape crisis centers or pregnancy tests. The VA will also accept evidence of behavior changes such as statements from relatives as to how the veteran was before service compared to how he was after service.