Saturday, August 31, 2013

CINC's statement today.

More war?

Are we really considering entering another war right now?

The Waiting Game

A recent Washington Post article shows signs of progress in VA’s efforts to reduce the more than 800,000 claim backlog. Director Thomas Murphy reports that “the number of pending cases has decreased by 74,000 over the past 45 days.”

VA has pledged to complete all cases that have been pending for more than 125 days by the end of 2015. NBC News has reported that VA officials are indicating that St. Paul, Minnesota, Sioux Falls, South Dakota, and Providence, Rhode Island have already achieved this goal. This represents 3 of VA’s 56 Regional Offices. However, wait times at 12 VA Regional Offices still exceed 400 days on average.

While these reports may provide some hope to the thousands of veteran’s still waiting for their claims to be processed, the elimination of the backlog at the VA Regional Office level may be creating delays at the appeals level.

In 2012, the Board of Veterans Appeals handled 49,600 claims. In the first 6 months of this year, the Board has already received 37,000 claims. This number could reach 100,000 within the next 4 years.

Already veteran’s are experiencing wait times in excess of 1,000 days from the time an appeal is submitted to the Regional Office to the time a decision is issued by the Board of Veteran’s Appeals.

Efforts to reduce VA’s backlog at the local level does not currently include efforts to reduce the wait time for veterans who appeal Regional Office decisions, which is likely to continue growing as VA issues decisions on the more than 800,000 pending claims.

Board members hope that VA’s transition to electronic records will help to reduce this wait time. In the meantime, Laura Eskenazi, the principal deputy vice chairman of the Board of Veterans Appeals, reports that they have already begun hiring new attorneys to handle wave of new appeals expected as VA continues to process the backlogged claims.

To see the complete articles discussed above, please follow the links below:

Monday, August 26, 2013

The PTSD Series - Part 4

This posting will briefly discuss how to prove the final element of a PTSD claim to the VA: medical evidence of a link between the current PTSD and the In-Service Stressor.

Generally speaking, if you can prove the first element – a current diagnosis of PTSD – you can prove this element. Why? Because your psychiatrist or treating physician’s report to the VA should include not only a discussion of the diagnosis of PTSD as discussed earlier, but also should include some information about the event which caused the PTSD.

While this evidence will not be helpful to prove that the in-service stressor occurred, it will help establish the link between that stressor and the PTSD.

How much evidence of a link do you need? The legal standard is that the evidence must be in “equipoise”. Evidence is in equipoise if there is an equal amount of evidence on either side of a particular argument. All you need to provide is enough evidence to show that the in-service event that caused your PTSD was a “contributing factor” to the PTSD.

As long as your medical report properly describes the symptomatology of your PTSD, adequately describes the stressor event, conforms to the DSM-IV, and acknowledges and reconciles reports that support a mental disorder other than PTSD, then you probably have enough evidence to show the third element of your claim.

A special note – if you have been treated (or diagnosed) for an anxiety disorder or PTSD while in the service, you should include these records in your claim for disability to the VA – the VA has a duty to assist you in finding these records or any records that can help prove your claim. Why should you include them? If you were treated for PTSD while in-service, then it is hard to imagine circumstances where the treatment wasn’t for the in-service stressor event, or an in-service event which aggravated or contributed to a prior or current diagnosis of PTSD.

If you have any questions about whether your medical evidence adequately proves a linkage between your current diagnosis of PTSD and in-service stressor, you should consult with a Veterans Service Organization or a VA Benefits Attorney.

Friday, August 23, 2013

The PTSD Series - Part 3

The topic covered in this installment is the second element of a VA Disability claim for PTSD: The veteran must provide credible evidence of an “in-service stressor”.

In plain English, this means you have to show credible evidence that the stressful event or events that caused the PTSD occurred in-service.

There are, generally speaking, two categories of “in-service stressors”: a) Combat Stressors when the Veteran served in combat, and b) Stressors when the Veteran did not engage in combat or experienced a non-combat stressor. The standards are quite different, and will be discussed below. In either case, the veteran must be able to show that it is “at least as likely as not” that the claimed in-service stressor occurred”. You can show this by showing corroborating evidence of the stressing event and a stressor event that is capable of being documented.

Does the stressor need to be life-threatening? Not always. The Court of Appeals for Veterans’ Claims has found that while a life-threatening stressor supports a PTSD diagnosis, it is not a required element for a PTSD claim. (If you have been denied benefits for a PTSD claim because the VA concluded that the in-service stressor was not “life-threatening” you should consult a VA Benefits Attorney or a Veterans’ Service Organization to inquire whether you can obtain retroactive benefits.)

Returning to our topic, there are two categories of in-service stressors: combat related and non-combat related.

1) Proving a Combat-related stressor. Even a brief period of participation in combat will trigger provisions which are very helpful in securing PTSD disability benefits. If you engaged in combat, you only need to present your statement of the occurrence of the stressor event in order to prove this element.

The VA shall resolve every reasonable doubt in favor of the veteran, and may rebut your statement only be clear and convincing evidence to the contrary. Unless the stressor is not consistent with you circumstances of your combat service (i.e., you have a non-combat MOS) or if there is clear and convincing evidence (this is a lot of evidence) that the event didn’t occur, the VA cannot generally rebut your statement. You will need more than just your statement, though. Additional evidence that can help are your DD-214, statements from your fellow unit members, letters home to family or friends, combat related decorations (Purple Heart, Combat Infantryman’s Badge, etc.) are helpful to corroborate your claim so that the VA is unable to rebut it. The veteran should provide information from the JSRRC (Joint Services Records Research Center) to help verify that the stressing event occurred.

2. Proving a non-combat related stressor. The VA regulations for proving a non-combat related stressor are a little more strenuous than the combat-related stressor. The VA’s PTSD Regulation appears at 38 C.F.R. 3.304(f), and requires that you, the veteran, provide “credible supporting evidence that the claimed in-service stressor occurred”.

The VA must assist you in developing evidence that supports the existence of the stressor – unless there is no reasonable likelihood that the assistance would help to substantiate the claim. This evidence need not be found in your military records, although that sure helps. The Court of Appeals for Veterans Claims has said that as long as you can provide “independent evidence of the occurrence of the stressful event, and the evidence implies [your] personal exposure”, you will satisfy this element. What sort of evidence should you get? Sworn declarations or affidavits from other soldiers in your unit would be most helpful – but not every event has witnesses. One thing is certain – a statement from your psychiatrist or treating physician that your version is credible is not sufficient.

In our next topic, we will discuss the final necessary element for a PTSD claim to the VA: the causal link between the diagnosis of PTSD and the in-service stressor.

Monday, August 19, 2013

The PTSD Series - Part 2

Medical Records

The topic covered in this installment is the medical evidence a veteran (or that veteran’s advocate, attorney or representative) needs to secure disability benefits for PTSD. As you recall from the previous blog post, medical evidence of a current diagnosis is the first thing the Veteran needs to prove in his/her claim for PTSD disability benefits.

This post will address the two big issues in this element of a PTSD claim: how much medical evidence is enough, and what type of medical evidence is needed.

How much evidence you need to prove depends on when you filed your claim. If you have a Board of Veterans’ Appeals decision issued after March 7, 1997, the veteran need only show that it is “at least as likely as not” that you have the PTSD condition. Prior to March 7, 1997, the standard was that the veteran needed a “clear diagnosis” of PTSD – this is no longer the proper standard. (If you have a BVA decision after March 7, 1997, which denies your PTSD claim on the basis of the lack of a “clear diagnosis” of PTSD, you should consider contacting a Veteran Service Organization or contact a VA Benefits attorney – the VA may have committed error in denying your claim).

The type of evidence necessary is this: an examination by a doctor, preferably a psychiatrist, and a written report. That report should discuss the doctor’s medical opinion that the incident you allege triggered your PTSD was medically sufficient to support a diagnosis of PTSD and that your symptoms were adequate enough for the doctor to diagnose PTSD. This gets a little tricky – you still need to prove the link between the stressor event and the current condition, and your doctor’s testimony that they are linked may not be enough. This is because the question of “linkage” is a question of fact for the VA, not a medical matter.

If the VA doubts the medical evidence you provided, it must follow one of two courses of action. It can either a) set aside its doubts and accept your medical evidence, or b) seek clarification of the portions of the report that cause it to doubt the medical evidence. If the VA does not get the clarification it needs, it can either a) return the report for more clarification or b) obtain independent medical evidence concerning the portions of the report the VA doubts or needs clarified.

Now that you now what (and how much) information you need to provide to VA, what does the doctor need to put in the report to aid your claim. It is imperative that your doctor follow the PTSD criteria in the DSM-IV; using an older DSM (DSM III and DSM III-R) is going to delay your claim and require medical reevaluation under the DSM-IV. This is because the criteria in the DSM-III and III-R are significantly different than the DSM-IV criteria.

The change to the PTSD criteria in DSM-IV benefits veterans in many ways, and leads to an interesting point. The VA used to use the DSM III and DSM III-R. In 1996, the VA adopted DSM-IV as the standard for evaluating mental health impairments. If your claim for disability benefits due to PTSD was rejected prior to 1996, and you have a diagnosis of PTSD dated after 1994, you may be able to reopen your claim for benefits and have it evaluated under the new criteria. At the very least, you should be able to file a new claim for benefits. You should consider consulting an attorney if this issue sounds like it might apply to you.

Thursday, August 15, 2013

The PTSD Series - Part 1

Diagnostic Criteria for PTSD

A November 13, 2007, CBS report found that at a significant number of our soldiers returning from Iraq and Afghanistan are committing suicide.

According to the report, since 2005, a total of 6,256 Iraq veterans have killed themselves after returning home. To put that figure into perspective, the total number of US Soldiers killed in Iraq currently totals around 4400. New reports are being developed and the suicide numbers continue to rise despite the efforts of all agencies involved in identifying and treating potentially suicidal military members.

One cause of these suicides may be untreated Post Traumatic Stress Disorder (PTSD). PTSD is a mental health condition which, according to the American Psychiatric Associations Diagnostics and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV) is:

“[T]he development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury or other threat to one’s physical integrity…[the response to which is] intense fear, helplessness, or horror.”

In other words – seeing people kill or be killed on a regular and recurring basis can damage your mental health. It may start with a general feeling of emotional numbness after a traumatic event.

There may be guilt about surviving when others did not, anxiety, depression, flashbacks and nightmares, insomnia, and worse. Untreated, the condition can lead to drug or alcohol abuse and suicide.

Many veterans returning from service in Iraq and Afghanistan suffer from PTSD – sometimes it won’t surface for weeks, months or years. When service-connected PTSD surfaces, it is a compensable condition and the veteran is entitled to disability benefits.

A veteran may find it difficult to prove to the VA that he or she has PTSD. The next few days of this blog will be dedicated to laying out some basic requirements for proving entitlement to PTSD to the VA.

Generally speaking, to successfully claim disability benefits for PTSD, a veteran (or their attorney or advocate), must show three (3) factors:

1) Medical evidence of a current diagnosis of PTSD. A veteran need only prove, by competent medical evidence (consistent with the criteria of the DSM-IV) that it is at least as likely as not that the veteran has disabling PTSD.

2) Credible evidence of an “in-service stressor”. There are, generally speaking, two categories of “in-service stressors”: a) Combat Stressors when the Veteran served in combat, and b) Stressors when the Veteran did not engage in combat or experienced a non-combat stressor. The standards are quite different, and will be discussed in greater detail in the coming days.

3) A link, or connection, between the current condition and the “in-service stressor”. This is the murkiest element of the three, but generally speaking, if the Veteran can show medical evidence – by a lay expert – that the in-service stressor was at least a contributory factor for the current symptoms, then the veteran should be able to secure benefits for this condition.