Easing the Stressor Requirement for PTSD

The following is taken from the N.Y. Times, July 7, 2010.

Veterans Affairs to Ease Claim Process for Disability

By JAMES DAO

The government is preparing to issue new rules that will make it substantially easier for veterans who have been found to have post-traumatic stress disorder to receive disability benefits for the illness, a change that could affect hundreds of thousands of veterans from the wars in Iraq, Afghanistan and Vietnam.

The regulations from the Department of Veterans Affairs, which will take effect as early as Monday and cost as much as $5 billion over several years according to Congressional analysts, will essentially eliminate a requirement that veterans document specific events like bomb blasts, firefights or mortar attacks that might have caused P.T.S.D., an illness characterized by emotional numbness,irritability and flashbacks.

For decades, veterans have complained that finding such records was extremely time consuming and sometimes impossible. And in the wars in Afghanistan and Iraq, veterans groups assert that the current rules discriminate against tens of thousands of service members — many of them women — who did not serve in combat roles but nevertheless suffered traumatic experiences.

Under the new rule, which applies to veterans of all wars, the department will grant compensation to those with P.T.S.D. if they can simply show that they served in a war zone and in a job consistent with the events that they say caused their conditions. They would not have to prove, for instance, that they came under fire, served in a front-line unit or saw a friend killed.

The new rule would also allow compensation for service members who had good reason to fear traumatic events, known as stressors, even if they did not actually experience them.

There are concerns that the change will open the door to a flood of fraudulent claims. But supporters of the rule say the veterans department will still review all claims and thus be able to weed out the baseless ones.

“This nation has a solemn obligation to the men and women who have honorably served this country and suffer from the emotional and often devastating hidden wounds of war,” the secretary of veterans affairs, Eric K. Shinseki, said in a statement to The New York Times. “This final regulation goes a long way to ensure that veterans receive the benefits and services they need.”

Though widely applauded by veterans’ groups, the new rule is generating criticism from some quarters because of its cost. Some mental health experts also believe it will lead to economic dependency among younger veterans whose conditions might be treatable.

Disability benefits include free physical and mental health care and monthly checks ranging from a few hundred dollars to more than $2,000, depending on the severity of the condition.

“I can’t imagine anyone more worthy of public largess than a veteran,” said Dr. Sally Satel, a psychiatrist and fellow at the American Enterprise Institute, a conservative policy group, who has written on P.T.S.D. “But as a clinician, it is destructive to give someone total and permanent disability when they are in fact capable of working, even if it is not at full capacity. A job is the most therapeutic thing there is.”

But Rick Weidman, executive director for policy and government affairs at Vietnam Veterans of America, said most veterans applied for disability not for the monthly checks but because they wanted access to free health care.

“I know guys who are rated 100 percent disabled who keep coming back for treatment not because they are worried about losing their compensation, but because they want their life back,” Mr. Weidman said.

Mr. Weidman and other veterans’ advocates said they were disappointed by one provision of the new rule: It will require a final determination on a veteran’s case to be made by a psychiatrist or psychologist who works for the veterans department.

The advocates assert that the rule will allow the department to sharply limit approvals. They argue that private physicians should be allowed to make those determinations as well.

But Tom Pamperin, associate deputy under secretary for policy and programs at the veterans department, said the agency wanted to ensure that standards were consistent for the assessments.

“V.A. and V.A.-contract clinicians go through a certification process,” Mr. Pamperin said. “They are well familiar with military life and can make an assessment of whether the stressor is consistent with the veterans’ duties and place of service.”

The new rule comes at a time when members of Congress and the veterans department itself are moving to expand health benefits and disability compensation for a variety of disorders linked to deployment. The projected costs of those actions are generating some opposition, though probably not enough to block any of the proposals.

The largest proposal would make it easier for Vietnam veterans with ischemic heart disease, Parkinson’s disease and hairy-cell leukemia to receive benefits.

The rule, proposed last fall by the veterans department, would presume those diseases were caused by exposure to Agent Orange, the chemical defoliant, if a veteran could simply demonstrate that he had set foot in Vietnam during the war.

The rule, still under review, is projected to cost more than $42 billion over a decade.

Senator Jim Webb, Democrat of Virginia and a Vietnam veteran, has asked that Congress review the proposal before it takes effect. “I take a back seat to no one in my concern for our veterans,” Mr. Webb said in a floor statement in May. “But I do think we need to have practical, proper procedures.”

More than two million service members have deployed to Iraq or Afghanistan since 2001, and by some estimates 20 percent or more of them will develop P.T.S.D.

More than 150,000 cases of P.T.S.D. have been diagnosed by the veterans health system among veterans of the two wars, while thousands more have received diagnoses from private doctors, said Paul Sullivan, executive director of Veterans for Common Sense, an advocacy group.

But Mr. Sullivan said records showed that the veterans department had approved P.T.S.D. disability claims for only 78,000 veterans. That suggests, he said, that many veterans with the disorder are having their compensation claims rejected by claims processors. “Those statistics show a very serious problem in how V.A. handles P.T.S.D. claims,” Mr. Sullivan said.

Representative John Hall, Democrat of New York and sponsor of legislation similar to the new rule, said his office had handled dozens of cases involving veterans who had trouble receiving disability compensation for P.T.S.D., including a Navy veteran from World War II who twice served on ships that sank in the Pacific.

“It doesn’t matter whether you are an infantryman or a cook or a truck driver,” Mr. Hall said. “Anyone is potentially at risk for post-traumatic stress.”

Bryant: The Board's Duty to fully explain the issues and suggest evidence

Bryant: The BVA’s Duty?

The case of Walter A. Bryant v. Eric K. Shinkseki, Opinion Number 08-4080, decided July 1, 2010, affirmed and reversed in part a denial of service-connection for various conditions.

The Court’s decision principally used the opportunity to further discuss the Board member’s duty to fully explain the issues as well as the duty to suggest the submission of evidence possibly overlooked. Here, the Board member began the hearing by noting four issues for appeal and identifying them. However, the Court found “Although this statement explained the issues in terms of the scope of the claim for benefits, it did not ‘explain fully’ the outstanding issues material to substantiate the claim, which in this instance were current disability and medical nexus.” Id. at *10. The Court continued, “Even though the hearing officer made inquiries during the hearing regarding whether any doctor had ever related the appellant’s claimed disabilities to service and the basis for asserting a disability, at no point did the Board member explain that these issues were material to substantiate the claim—i.e., that they were the reasons the appellant’s claims were denied by the RO. Accordingly, the Board member erred as to the first duty—to fully explain the issues”. Id. at *10.

The duty to suggest the submission of evidence possibly overlooked was more complicated. The Court looked at the allegations of frostbite, hearing loss and tinnitus first and found that a VA medical examination stated the appellant did not have a diagnosis for these conditions. The Court then found, “Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the appellant’s claim for benefits for frostbite, hearing loss, and tinnitus.” Id. at *11. However, regarding the claim for service connection for squamous cell carcinoma, the Court noted a diagnosis for a skin cancer that is a form of a squamous cell carcinoma and noted the lack of medical evidence addressing the nexus between the skin cancer and an in-service event or injury “gave rise to the possibility that evidence had been overlooked, and the Board hearing officer should have suggested that the appellant secure and submit this evidence if he could”. Id. at *11.

However, what the Court gives it can also take away in the form of its notice requirement. Remember the Court found a breach of the Board member’s duty to fully explain the issues and a duty to suggest the submission of evidence possibly overlooked with regard to the squamous cell carcinoma. First, the Court considered prejudice to the appellant. The Secretary had argued that section 5103(a) notice letters eliminated any possibility for prejudice but the Court refused this argument on the basis that these were two different notice requirements with different intents. However, when specifically considering frostbite, hearing loss, and tinnitus, the Court found that “although the Board hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the record reflects that they were developed by the Secretary—to include medical examination reports on each of the disabilities and any nexus to service—and there was no indication that the represented appellant had any additional information to submit. Accordingly, the ‘clarity and completeness of the hearing record’ was intact with respect to these disabilities and the purpose of § 3.103(c)(2) was fulfilled.” Id. at *12-*13. Regarding the squamous cell carcinoma, the Court found prejudice because the failure to lay out the material issues combined with a failure to suggest medical evidecnce as to service-connection, “evidence that was lacking at the time of the hearing, and that remained lacking through final Board decision.” Id. at *13.

A separate opinion by Judge Lance make two suggestions to increase the effectiveness of the majority opinion. First, the Board should be required to look at the most recent Regional Office decision (i.e., the most recent Supplemental Statement of the Case) and clearly explain what elements of the claim were found deficient and what type of evidence would help the appellant prevail. Second, and perhaps most important, the dissent expressed concern the prejudice requirement essentially gutted the duty to fully explain the issues in many cases. The dissent believes the prejudice standard enacted by the Court (whether the error affected the clarity and completeness of the hearing record) destroys the opportunity for the appellant to have an opportunity to submit favorable evidence by failing to ensure the veteran understands what issues require the submission of favorable evidence.

The Case is important for clarifying the Board member’s duties and while it does not create any additionally duty, it certainly provides appellant’s before the Court of Appeals with another strong line of argument. However, a determination of a breach of these duties and possible requires a case by case that will likely result in more issues being argued before the Court.

Decision by Judge Kasold and Davis with a separate opinion by Judge Lance.

Fournier: When is a Denial a Denial?

Fournier: When is a Denial a Denial?

The case of Richard C. Fournier v. Eric K. Shinkseki, Opinion Number 08-1087, decided June 18, 2010, affirmed a denial of an earlier effective service-connection date.

The facts are simple. The veteran had served for approximately 5 years when while walking on the street near his base he was hit on the head during an assault. He was subsequently honorably discharged for unsuitability based on having an inadequate personality disorder. The veteran was ultimately service-connected for a mood disorder secondary to a head injury but was seeking an earlier effective date based on a filing in 1971. Importantly, he had initially filed for service-connection in 1968 and again in 1971 before finally being connected after a 1980 filing.

The veteran argued the 1971 denial was defective based on reasons of notice and thus still pending. Specifically, the veteran argued the 1971 denial was so misleading as to fail to notify him of the reason for disallowing the claim and further that the RO should have had a duty to read the claim for a nervous disorder sympathetically to include psychoneurotic disorders. The argument essentially boiled down to saying a better explanation of the denial would have allowed the veteran to know what evidence he needed to substantiate his claim. The problem was that this was a duplicate claim in that a claim had been denied in 1968 and the veteran had not submitted any new evidence.

The Court rejected the claim and focused the question of a pending claim on law which states a claim remains alive until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that he claim was adjudicated or an explicit adjudication of a subsequent claim for the same disability. The Court then determined the 1971 claim denial letter clearly complied with then existing regulations and that a reasonable person would have not have delayed filing an appeal of the decision. The Court then elaborated on the sympathetic reading requirement to say it does not “obligate [the VA] to read a claimant’s mind.”

The case also involved language from the M21-1 manual which required a formal rating decision setting forth the denial; however, the Court found the language applied to claims requiring reconsideration, new and material evidence, or increased ratings and that this claim was merely duplicative without presenting new evidence.

The Court used the opportunity to clarify its view of the M21-1 manual. It repeated that the manual can result in either substantive or interpretative rules, with substantive rules being ones the VA has to follow. This is in contrast to the VA which likes to see the manual as merely interpretative. Of course, whether a rule is substantive or interpretative is essentially a call for the Court which will be guided by looking to see if the manual “created” additional rights beyond those of preexisting regulations on the same subject. Here, the Court held the manual provision did not establish or alter the criteria for benefits but illuminated a suggested procedural practice (issuing a formal rating decision); therefore, the manual provision does not limit the agency’s action.

Decision drafted by Chief Judge Greene and joined in by Judges Hagel and Davis.

Raugust: VA Medical Benefits and the 24-Month Rule

Raugust: VA Medical Benefits and the 24-Month Rule

The case of Richard C. Raugust v. Eric K. Shinkseki, Opinion Number 08-2064, decided June 11, 2010, was a matter of first impression where the Court affirmed the constitutionality of the 24-month minimum service requirement.

The veteran served for 17 months and 25 days before receiving an honorable discharge. The Court noted the reason for his separation was for “misconduct – pattern of misconduct”. The veteran requested access to VA health care benefits but was denied because of the 24-month minimum service requirement. This rule which was established by Congress only applies to those who enlisted after September 7, 1980, and requires an individual serve at least 24 continuous months of active duty to qualify for any VA benefits. Importantly, there are some exclusions from the 24-month minimum service requirement, which include: discharge based on hardship or early discharge agreement or due to a disability.

The veteran appealed on two grounds: a failure to assist and a constitutional challenge to the rule.

Regarding the failure to assist, the Board admitted it did not find the duty to assist satisfied but instead said any deficiencies are moot because no reasonable possibility exists that additional records would substantiate the claim. The veteran argued the service records might have addressed some of the exclusions to the 24-month minimum service requirement. The Court admitted that conceivably records could address an exclusion, but then pointed to the fact there was “no specific reason to believe” records would reveal an exclusion because the veteran had not made a specific and credible allegation that an exclusion would be established by the records. The Court found without a specific and credible reason to believe the additional records would tend to establish an exception, the Board did not commit clear error in concluding there was no need to obtain additional records.

Regarding the constitutional challenge, the veteran argued the 24-month minimum service requirement violated the guarantee of equal protection. The argument was that the provision created an arbitrary absurdity because only fractionally longer or shorter service could determine eligibility. The Court properly assessed under equal protection clause jurisprudence and found a rational basis for the creation of the 24-month minimum service requirement, reduction of attrition.

The problem with this decision is that the Court seems to have forgotten the VA duty to assist is founded upon the principle that the system is proudly non-adversarial and gives the benefit of the doubt to the veteran. The result is a large number of veterans are unrepresented prior to the case reaching the Court. What happens to an attorney that looks at the case and realizes the veteran has a good argument for fitting within an exclusion to the 24-month minimum service requirement but that the records are not a part of the record and the veteran did not know to make the argument earlier? Should he just tell the veteran to start over or can he rely on the fact that the VA did not fulfill the duty to assist and use that failing to get the case sent back to the Board to address the information and arguments he has found?

In that vein, perhaps the lesson to a veteran is to find representation before you reach the Court of Appeals. Of course, we can hope the Federal Circuit Court of Appeals gets its crack at the case and re-imposes on the VA and the Court of Appeals for Veterans Claims the inviolate requirement of the duty to assist.

Decision drafted by Judge Hagel and joined in by Judges Moorman and Lance.

King v. Shinseki: What Does It Take To Reopen A Claim?

King: What Does It Take To Reopen A Claim?

The case of Earlee King v. Eric K. Shinseki, Opinion Number 07-1214, decided May 28, 2010, affirmed a denial for an earlier effective date for service connected schizophrenia.

The veteran was initially denied service connection by the VA in 1992 and the Board in 1993. Thereafter he continued to be treated by the VA. The veteran was finally granted service connection and a 100% disability rating going back to 2000. However, medical notes from prior to 2000 discussed his schizophrenia and a specifically a 1997 medical report noted the veteran told the physician he wanted to file a claim for service connection for his schizophrenia. The veteran sought to use this notation as proof that he had reopened his claim and should be granted an earlier effective date.

The majority found these notations “failed to manifest the requisite intent to reopen a previously denied schizophrenia service-connection claim” and “the VA examiner’s suggestion to Mr. King in December 1997 that he file a service-connection claim reveals that neither party had reason to believe that any claim had been presented”.

A dissent by Judge Hagel argues that there are only three requirements to be fulfilled to file an informal claim: (1) written communication, (2) an intent to apply for benefits, and (3) identifying the benefits sought. Judge Hagel then argues that all three requirements were fulfilled in that the physician rendered the communication into writing and the veteran intended to apply for a benefit, service-connection for schizophrenia. Essentially Hagel argues it is not important who writes an informal claims, the veteran, a representative, or even as in this case a VA physician and that the majority got it wrong when it measured intent and found King did not intent to seek benefits.

The majority’s reasoning is troublingly incomplete. They denied based on the veteran lacking intent to apply for benefits because the physician told him that he should file for service-connection, this is problematic because the measure of intent is the veteran’s at the time of the request and not the physician’s intent or what the veteran should have known after being instructed by the physician. Either King intended to request benefits when talking to the VA physician or he did not.

Perhaps the Court could have gotten out of the subjective intent question by more strictly policing the “written requirement”, however, a strong counterargument could be made that the physician (due to the close doctor-patient relationship) was acting as the veteran’s representative when filling out the form. Still, I am sympathetic to the Court and the VA in that allowing VA physician notes to be used to seek an earlier effective date could open a can of worms in light of the inherently different roles of the VA physician and VA ratings adjudicator.

The lesson from the case is that if you want to reopen a denied claim, due so in writing and for that matter make sure you keep a copy.

Decision by Chief Judge Green and Judge Davis with a dissent by Judge Hagel.

DIC: What is Intentional and Wrongful

DIC: What is Intentional and Wrongful

The case of Keith A. Roberts v. Eric K. Shinkseki, Opinion Number 06-2699, decided May 17, 2010, remanded a denial for DIC.

This remand occurred after the Court of Appeals for the Federal Circuit vacated and remanded and a decision by the court which affirmed denial of disability and indemnity benefits to a woman because she killed her husband, the veteran.

The woman had entered a plea of nolo contendre and been found guilty of manslaughter. 28 C.F.R. section 3.11 prohibits receipt of any DIC benefits for someone who intentionally and wrongfully caused the death of the veteran. The case was reversed because in Florida (the site of the crime and plea) intent is not necessarily an element of manslaughter, and the Court required that the VA make a factual determination as to whether a possible beneficiary intentionally or wrongfully caused the death.

Many States do not require intent for manslaughter which means the VA can not simply deny a claim based on the conviction but must make a further factual determination regarding intentionality and wrongfulness.

Decision by Judges Kasold, Davis and Schoelen.

Roberts: Severing Service Connection Based on Fraud

Severing Service Connection for PTSD Based on Fraud

The case of Keith A. Roberts v. Eric K. Shinkseki, Opinion Number 05-2425, decided April 23, 2010, affirmed the severing of service connection for PTSD based on fraud.

Here, the Board had severed service connection for PTSD based on fraud and clear and unmistakable error. Additionally, they denied service connection for a number of ailments that were alleged to have been secondary to the PTSD. Finally, the Board denied service connection for dysthymia and depression.

The Court largely affirmed by affirming the severance of service connection and denial of service connection on any secondary theory, while reversing as to depression and dysthymia because the Board had not considered whether they were directly related to service.

Factually, the veteran claimed that he witnessed his friend’s death in an accident while working on an airplane and led the efforts to try to save his friend. However, at some time the veteran had filed a complaint with the VA Office of Inspector General regarding VA mishandling of his claim. The Office of Investigations investigated and found that the veteran was not actually a witness to his friend’s death and according to other witnesses not even a friend to the decedent.

The Court found the veteran had committed fraud. The Court closely looked at sections 3.105, 3.957, and 3.500. If service connection has existed for 10 years the VA generally cannot sever service connection. However, the Court found “when fraud is found to have formed the basis for an award of service-connected benefits, regardless of the length of time a claimant has been in receipt of these benefits, severance of the award can be made upon a showing of fraud.”

Judges Hagel wrote and Schoelen joined in a concurring and dissenting opinion. In it, Judge Hagel saw the issue of this case as the fair process of adjudication of the claim. Basically, they disagreed with the failure to provide 3.105(d) protections. These are essentially notice of reasons of severance and allowing a beneficiary 60 days to present evidence. Additionally, 3.105(d) shifts the burden to the VA and requires clear and unmistakable error in the original rating decision.

Judge Hagel also expressed concern regarding the impact of the Court’s action on a situation such as this one where the veteran claimed various PTSD stressors but the VA only awarded on one of them. He wrote that “I believe that-certainly before VA may sever service-connection in a case such as Mr. Roberts’-where VA is aware of other stressors that could serve as a basis for continuing the award of post-traumatic stress disorder, VA must consider the validity of the other potential stressors. After such review, if VA determines that the accumulated evidence regarding another potential stressor is not adequately developed, it should be take appropriate steps to further develop that evidence.”

He also called into question the adequacy of the medical examination which found the veteran did not have PTSD. The examination basically found that because the stressor was no longer considered valid, the veteran could not possibly have PTSD. Notably, the examination did not discuss other possible stressors. Disturbingly, the VA tabbed what it considered to be “pertinent evidence” while saying the “much of the other documentation consists of duplicate copies of the claims folder.” Judges Hagel and Schoelen found a medical examination undertaken in such a manner did not meet standards of basic fair play (that evidence be procured in a manner that is impartial, unbiased, and neutral).

The case is difficult because the bad actions by the veteran make it understandable that the Court and VA would reach a conclusion of severance. However, Judges Hagel and Schoelen certainly raise important objections, especially as to the potential duty to develop other stressors that were raised at the original during the initial claim and concerns over the impartiality of the medical examination. This might be an example of bad facts making bad law.

Decision by Judge Greene, with a dissenting opinion by Judge Hagel and joined in by Judge Schoelen. And, a concurring opinion by Judge Lance..