Tuesday, February 17th, 2015
In general, in order to obtain service connection for a psychiatric or mental health condition, a veteran must submit the following: (1) documentation of a currently diagnosed condition, (2) evidence of an in-service event or injury, and (3) medical evidence which relates the currently diagnosed condition to the in-service event or injury. However, the VA treats post traumatic stress disorder (PTSD) differently.
First, the veteran must have a doctor diagnose PTSD using a specific set of criteria called the DSM-V criteria. Second, the veteran must have a claimed stressor(s) and provide credible, supporting evidence that the claimed stressor(s) actually occurred. Finally, there must be medical evidence which find a relationship between the currently diagnosed PTSD and the credible, in-service stressor. Thus, the primary difference between what is needed to win a claim for PTSD versus other psychiatric conditions is the requirement to provide evidence of a credible, in-service stressor.
Usually, there is information contained in a veteran’s service-records (to include treatment record, morning reports, or unit histories) which confirms or contradicts the claimed stressor. However, the nature of some stressors is such that the VA allows other evidence (outside of service records) to be used to verify the stressor. This only applies to the following specific stressors:
- Combat with the enemy. If a veteran engaged in combat with the enemy and the stressor is related to that combat, then the VA will look to see if the stressor is consistent with the circumstances or conditions of the veteran’s service. Provided there is no clear and convincing evidence which contradicts the stressor, the veteran’s statements alone will be sufficient to establish the occurrence of the claimed stressor.
- Fear of hostile military or terrorist activity. If a veteran experienced, witnessed, or was confronted with an in-service event which involved actual or threated death or serious injury (i.e., explosive devices; incoming artillery, rocket, or mortar fire; grenades; small arms or sniper fire), and the veteran felt fear, helplessness, or horror, then provided a VA psychiatrist or psychologist confirms the claimed stressor is sufficient to support a diagnosis of PTSD, the VA will look to see if the stressor is consistent with the circumstances or conditions of the veteran’s service. Provided there is no clear and convincing evidence which contradicts the stressor, the veteran’s statements alone will be sufficient to establish the occurrence of the claimed stressor.
- Prisoner of war. If the evidence confirms that a veteran was a prisoner of war, and the stressor is related to the prison-of-war experience, then the VA will look to see if the stressor is consistent with the circumstances or conditions of the veteran’s service. Provided there is no clear and convincing evidence which contradicts the stressor, the veteran’s statements alone will be sufficient to establish the occurrence of the claimed stressor.
- Personal assault. If a veteran asserts that he or she was personally assaulted in service, then the VA will look to sources other than service records to confirm the stressor. Such sources include (a) records from law enforcement, rape crisis centers, mental health centers, or hospitals; (b) tests for pregnancy or sexually transmitted diseases; (c) and statements from friends, family, roommates, or fellow service members. The VA will review these records to see if there is evidence of behavior changes which may provide evidence that the stressor occurred. Such behavior changes include (a) a request for transfer to another military assignment, (b) deterioration in work performance, (c) substance abuse, (d) episodes of depression, panic attacks, or anxiety without any clear cause, or (e) any unexplained economic or social behavior changes.
Often times the VA will only look to the service records to verify the stressor, and will not consider whether the stressor is one which can be corroborated by other records. Thus, it is helpful for the veteran to know if his or her stressor is one which can be verified through other evidence, and to point that out to the VA.
Tuesday, February 3rd, 2015
Obtaining maximum allowed disability benefits is key to ensuring that veterans and their dependents get what they are entitled. Too often VA denies a claim in part or in total without adequately assisting with the development of the evidence or deciding claims based on the existing law. After years of frustration dealing with the VA, some veterans may simply give up without understanding that there are qualified attorneys able to offer representation.
Below is a list of some of the most common misunderstandings:
Misunderstanding #1 – I can’t hire an attorney because I already have a service officer.
When initially filing a claim, or seeking a higher rating, the majority of veterans are initially represented by national service officers from veteran’s service organizations, such as the Disabled American Veterans or American Legion. Many veterans believe that if they have a service organization representative, they are not allowed to hire an attorney during an appeal or to handle particular claim(s) while the service officer handles another claim(s).
There is no law that requires you to be represented on all claims by the same organization. So, all veterans are allowed to be represented by an attorney and a service officer on different claims. There is also no law that says you must keep the same representative. So, you are allowed to switch from a service officer to an attorney. Some organizations have told us that their own policy is that unless they can represent a veteran on all their claims, they are not willing to represent a veteran at all. While this may be an organizations own policy, there is no law that requires this to be done. Therefore, you are allowed to have more than one representative as long as they are for different claims.
The important factor to keep in mind is that if you are dissatisfied with your current representative, whether it is a service officer or another attorney, you may always switch representatives.
Misunderstanding #2 – I can’t afford to have an attorney represent me at the VA or the Court.
Attorneys representing at the VA level, which includes the Regional Office and the Board of Veterans’ Appeals, by and large work on a contingency basis. That means the attorney will not get paid for any representation unless the veteran gets awarded disability compensation, i.e., retroactive benefits. In other words, your attorney will not get paid unless you win your case. The attorney will only get a percentage of the retroactive amount that VA awards.
The U.S. Court of Appeals for Veterans Claims is not part of the VA, and lawyers who represent veterans there generally do not require a veteran to pay any out-of-pocket fees. Generally, if the attorney is successful in prevailing at the Court, and a case is sent back to the VA to be redone, the attorney can ask for fees and expenses through a government program called the Equal Access to Justice Act (or EAJA). These funds do not come out of a veterans benefits.
Other rules require an attorney who is paid for representing you at the VA to offset any fees you owe by the EAJA fees paid for the same work at the Court.
Misunderstanding #3 –As long as I have a veterans benefits attorney represent me, I will win my case.
With the passage of a new law several years ago, which allowed veterans to hire and pay attorneys at an earlier stage in the claims process, more attorneys are advertising that they can handle veteran’s benefits issues. While there are attorneys who do advertise and practice veterans benefits law, not all who say they represent veterans actually provide the representation or fully understand the complexities of current VA laws and regulations, changes made to the laws, or the details of the claims process system.
Anyone considering hiring a lawyer should take care to ask the attorney about their experience in veteran’s benefits law to make sure that they can explain to you how VA “thinks” and go over what steps are needed to have the best chance to win your case and have it addressed in a timely manner.
David Lowenstein has been a veterans benefits attorney for more than 14 years, working first at the Department of Veterans Affairs Office of General Counsel for 8 years and then 6 years at a private law firm, Goodman Allen Donnelly. He can be contacted at firstname.lastname@example.org or at 301-761-1735.