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.

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