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VA Claims: Disabled Veterans Community|Hadit.com

4 Powerful Ways to Improve Our VA Claims – From Veterans Court decisions

With 10 years of representing Veterans before VA Regional Offices all around the country and the BVA, I have a firm belief that Veterans can improve their VA Claims by following 8 Steps to Improve their VA Claim A recent non-precedential opinion of the Veterans Court seemed to follow those Steps in  pointing out the flaws in a BVA decision.
Guest Post from Veterans Law Blog
A recent non-precedential opinion of the Veterans Court seemed to follow those Steps in  pointing out the flaws in a BVA decision.
I’m going to teach you how the Veterans Court taught us the value of 4 of those Steps in a Vietnam Veteran’s PTSD increase claim:

General Facts of the Thomas Case.

The Veteran – who served in Vietnam from April 1969 – November 1970 – challenged the VA’s decision to grant an Impairment Rating of 10% for his  PTSD.  The Veteran thought he was entitled to a higher rating, above 50%.
The Veteran included — among other things — the following evidence in his claim:
  1. A statement from his wife that he “sat up all night waiting on the enemy”.
  2. VA Medical exam documenting suicidal and homicidal thoughts, hearing noises that sounded like booms
  3. A VA Medical exam that diagnosed the Veteran as “malingering”
  4. A private medical opinion that diagnosed PTSD, and documented poor short-term memory, poor coping skills, and an inability to handle changes in stressful situations
  5. A VA Medical Exam that documented intrusive daily thoughts of Vietnam, twice weekly nightmares, difficulty sleeping, problems concentrating, and detachment from others.
  6. VA Exams that documented hearing non-existent gunfire, isolation, jail time for fighting with his wife, and more.  The Veteran for example, did not know the 1st US President, concluded that 5+4 equalled 20, and thought the colors of the US flag were red and white.
  7. A private medical exam with a GAF Score of 49, and a statement that the Veteran was “adequately reliable” in the information he provided, given his level of functioning due to the mental health condition.
  8. A VA exam which “Un-diagnosed” malingering.
  9. A lot more favorable — and unfavorable — medical evidence, from private and VA practitioners.
The BVA, in 2012 (3 years after the most recent denial of the claim in 2009), concluded that the Veteran was not credible, and (this point may be arguable) that anybody who relied on the Veteran was not credible, and gave a “thumbs-up” to the VA on its denial of the increased impairment rating for Post Traumatic Stress (PTS, or PTSD).
In 2014, the Veterans’ Court vacated and remanded the BVA Decision.
The Veterans’ Court was concerned with the BVA decision: a common theme running through the decision is how the BVA assessed the evidence — not the weighing of it (the Veteran’s Court cannot weigh evidence).
Instead, the Court thought that the BVA did not properly assess legal issues related to the evidence-something that is wholly within the bailiwick of the Veteran’s Court.
And that is where the Court’s lesson begins.
[Editorial Note: The Court’s decision was not intended as a lesson — it was an opinion based on the law and facts of the case.  Reference to the “lesson” in the Court’s decision is based on my assessment of how other Veterans can LEARN from this case, and improve their OWN VA Claim or Appeal, hopefully, before it ever gets to the BVA.]

Lesson 1: Get your C&P Exam Results IMMEDIATELY after the exam (Step 2: Get your Claims File NOW!)

If you wait to  see your C-File until you are at the BVA – or worse, before the Veterans Court – you will have very little time to get evidence in the record to counter very negative evidence like a diagnosis of malingering.
I recommend that Veterans request their C-File from the VA shortly after the VA C&P Exam.  If you already have your C-File, then request the 3 documents that comprise the C&P Exam: the VBA Request for an exam (formerly, the VA Form 2507), the Examiner’s notes, and the Opinion itself.
This eBook has instructions how to get not only your C-File, but also all 3 documents that comprise the VA C&P Exams in a way that the VA MUST comply with:

Lesson 2: You must use “5 Star Evidence”.  (Step 5: Use 5 Star Evidence)

The 1st Star is Competence.   Competence is largely about WHO can offer certain evidence.
The 2nd Star is Credibility. Credibility is about the WEIGHT that the BVA should assign to individual “pieces” of evidence.
In this case, the BVA appears to have — without explanation-decided that any evidence (except the VA Medical evidence) that relied on the Veteran’s statements lacked CREDIBILITY.
What saved this Veteran was 2 things: first, he had a LOT of COMPETENT medical and lay evidence from a lot of sources that recorded their first-hand observations — not just echoing what the Veteran said.
Because that evidence was in the file, the BVA’s error started when it gave less weight to competent evidence that it thought lacked credibility, without explanation.
Lesson? If lay evidence is the bullet, and medical evidence is the rifle, when you are trying to service connect and/or properly rate a mental health condition you will need a LOT of bullets.
In this eBook, I have 2 worksheets that will help you identify as much Lay Evidence of Symptoms and Limitations as you can, as well as a template for a Sworn Declaration that may save you the costs of Notary Fees while demonstrating the credibility of your lay evidence:

Lesson 3: Fight the Right Battle on the Right Battlefield (Step 6: Choose Your Battlefield)

The Veterans Court reviews LEGAL issues.
The Veterans Court cannot weigh evidence (unless the BVA weighing was clearly erroneous — and those decisions are rare).
Since the BVA Weighs evidence, you need to be spending that 2.5 year period between decision and BVA Hearing getting as much lay and medical evidence into your file as you can.
Submit the evidence in a way that makes it easier for the BVA Judge to see why you have the better facts than it would be for the BVA Judge to deny your claim.
If you get a bad C&P exam calling you a mooching faker with PTSD, go out and get a private exam/opinion.  Ask that examiner diagnose your condition, review all of the evidence in your C-File (and say that he/she did that review), ANDoffer an opinion as to the adequacy — or inadequacy of the VA Exam/Opinion.
You can learn about the stages of the VA Claims Process – and what happens at each stage — in this eBook:

Lesson 4:  A Diagnosis of Malingering is an Atomic Bomb in Your VA Claim. (Step 7: Get Help)

Malingering is a “medical condition” in and of itself.
Though there are strict criteria for diagnosing it which are not often followed, and criteria that need to be distinguished from other conditions or symptoms of other conditions (such as complex avoidance  strategies or hyperbolic cries for help), it is a dangerous diagnosis to carry through the VA Claims Process.
It cannot be left unanswered, in my opinion.
I have a real problem with the word ‘malingering’.
First, I have only seen ONE soldier ‘malinger’ in the last 20 years.  Its just not that common in the Veterans’ community — this is a group of people who have “fulfill your mission despite your personal pain”pounded into them from Day One of Boot Camp.
Here’s the story of the 1 Malinger-er that I knew.  The soldier smashed his fingers with a fire extinguisher to get out of a Field Training Exercise. Joke was on him, in the end. He got busted a rank AND had to go on the exercise anyway — working as the Colonel’s radio operator due to his busted fingers.
This particular Colonel was a notorious pain-in-the-a** to work for.  In fact, it was rumored that he had a Layer of Hell named after him.  One of these days I’ll have to tell you about his escapades.
Second, one Veteran recently told me of a VA Doctor who said that 60% of Veterans are malingerers, and that his cure for the backlog was to dismiss all PTSD claimants as “malingerers”.
That’s some scary stuff to hear from a medical professional.
Aren’t they supposed to treat — not judge?
And how do you know if your PTSD condition is in the 40% or the 60%? Seriously, that’s a scary comment from a VA Doctor.
Any time you see the word “malinger” in your case — or any word that suggests malingering — the best thing for you to do is get in touch with an attorney ASAP.  That is going to need to be fixed, or its going to haunt your claim — as it did Mr. Thomas’s – for years.

The Thomas Case

History of PTSD in Veterans: Civil War to DSM-5 by Matthew J. Friedman, MD, PhD Senior Advisor and former Executive Director, National Center for PTSD

[no_toc]Exposure to traumatic experiences has always been a part of the human condition. Attacks by saber tooth tigers or twenty-first century terrorists have likely led to similar psychological responses in survivors of such violence. Literary accounts offer the first descriptions of what we now call posttraumatic stress disorder (PTSD). For example, authors including Homer (The Iliad), William Shakespeare (Henry IV), and Charles Dickens (A Tale of Two Cities) wrote about traumatic experiences and the symptoms that followed such events.

The PTSD diagnosis has filled an important gap in psychiatry in that its cause was the result of an event the individual suffered, rather than a personal weakness. PTSD became a diagnosis with influence from a number of social movements, such as Veteran, feminist, and Holocaust survivor advocacy groups. Research about Veterans returning from combat was a critical piece to the creation of the diagnosis. War takes a physical and emotional toll on Servicemembers, families, and their communities. So, the history of what is now known as PTSD often references combat history.

Early attempts at a medical diagnosis

Accounts of psychological symptoms following military trauma date back to ancienttimes. The American Civil War (1861-1865) and the Franco-Prussian War (1870-1871) mark the start of formal medical attempts to address the problems of military Veterans exposed to combat. European descriptions of the psychological impact of railroad accidents also added to early understanding of trauma-related conditions.
 

Nostalgia, Soldier’s Heart, and Railway Spine

Prior to U.S. military efforts, Austrian physician Josef Leopold (1761) wrote about “nostalgia” among soldiers. Among those who were exposed to military trauma, some reported missing home, feeling sad, sleep problems, and anxiety. This description of PTSD-like symptoms was a model of psychological injury that existed into the Civil War.
 
A second model of this condition suggested a physical injury as the cause of symptoms. “Soldier’s heart” or “irritable heart” was marked by a rapid pulse, anxiety, and trouble breathing. U.S. doctor Jacob Mendez Da Costa studied Civil War soldiers with these “cardiac” symptoms and described it as overstimulation of the heart’s nervous system, or “Da Costa’s Syndrome.” Soldiers were often returned to battle after receiving drugs to control symptoms.
The thought that physical injury led to PTSD-like symptoms was supported by European reports of “railway spine.” As rail travel became more common, so did railway accidents. Injured passengers who died had autopsies that suggested injury to the central nervous system. Of note, Charles Dickens was involved in a rail accident in 1865 and wrote about symptoms of sleeplessness and anxiety as a result of the trauma.

Shell Shock

In 1919, President Wilson proclaimed November 11th as the first observance of Armistice Day, the day World War I ended. At that time, some symptoms of present-day PTSD were known as “shell shock” because they were seen as a reaction to the explosion of artillery shells. Symptoms included panic and sleep problems, among others. Shell shock was first thought to be the result of hidden damage to the brain caused by the impact of the big guns. Thinking changed when more soldiers who had not been near explosions had similar symptoms. “War neuroses” was also a name given to the condition during this time.
During World War I, treatment was varied. Soldiers often received only a few days’ rest before returning to the war zone. For those with severe or chronic symptoms, treatments focused on daily activity to increase functioning, in hopes of returning them to productive civilian lives. In European hospitals, “hydrotherapy” (water) or “electrotherapy” (shock) were used along with hypnosis.

Battle Fatigue or Combat Stress Reaction (CSR)

In World War II, the shell shock diagnosis was replaced by Combat Stress Reaction (CSR), also known as “battle fatigue.” With long surges common in World War II, soldiers became battle weary and exhausted. Some American military leaders, such as Lieutenant Gen. George S. Patton, did not believe “battle fatigue” was real. A good account of CSR can be found in Stephen Crane’s Red Badge of Courage, which describes the acute reaction of a new Union Army recruit when faced with the first barrage of Confederate artillery.
Up to half of World War II military discharges were said to be the result of combat exhaustion. CSR was treated using “PIE” (Proximity, Immediacy, Expectancy) principles. PIE required treating casualties without delay and making sure sufferers expected complete recovery so that they could return to combat after rest. The benefits of military unit relationships and support became a focus of both preventing stress and promoting recovery.

Development of the PTSD diagnosis

In 1952, the American Psychiatric Association (APA) produced the first Diagnostic and Statistical Manual of Mental Disorders (DSM-I), which included “gross stress reaction.” This diagnosis was proposed for people who were relatively normal, but had symptoms from traumatic events such as disaster or combat. A problem was that this diagnosis assumed that reactions to trauma would resolve relatively quickly. If symptoms were still present after six months, another diagnosis had to be made.
Despite growing evidence that trauma exposure was associated with psychiatric problems, this diagnosis was eliminated in the second edition of DSM (1968). DSM-II included “adjustment reaction to adult life” which was clearly insufficient to capture a PTSD-like condition. This diagnosis was limited to three examples of trauma: unwanted pregnancy with suicidal thoughts, fear linked to military combat, and Ganser syndrome (marked by incorrect answers to questions) in prisoners who face a death sentence.
In 1980, APA added PTSD to DSM-III, which stemmed from research involving returning Vietnam War Veterans, Holocaust survivors, sexual trauma victims, and others. Links between the trauma of war and post-military civilian life were established.
The DSM-III criteria for PTSD were revised in DSM-III-R (1987), DSM-IV (1994), DSM-IV-TR (2000), and DSM-5 (2013) to reflect continuing research. One important finding, which was not clear at first, is that PTSD is relatively common. Recent data shows about 4 of every 100 American men (or 4%) and 10 out every 100 American women (or 10%) will be diagnosed with PTSD in their lifetime.
An important change in DSM-5, is that PTSD is no longer an Anxiety Disorder. PTSD is sometimes associated with other mood states (for example, depression) and with angry or reckless behavior rather than anxiety. So, PTSD is now in a new category, Trauma- and Stressor-Related Disorders. PTSD includes four different types of symptoms: reliving the traumatic event (also called re-experiencing or intrusion); avoiding situations that are reminders of the event; negative changes in beliefs and feelings; and feeling keyed up (also called hyperarousal or over-reactive to situations). Most people experience some of these symptoms after a traumatic event, so PTSD is not diagnosed unless all four types of symptoms last for at least a month and cause significant distress or problems with day-to-day functioning.

Today and tomorrow

Today VA operates more than 200 specialized programs for the treatment of PTSD. In Fiscal Year (FY) 2013, more than a half million Veterans diagnosed with PTSD received treatment at VA medical centers and clinics.
VA is committed to provide the most effective, evidence-based care for PTSD. It has created programs to ensure VA clinicians receive training in state-of-the-art treatments for PTSD. At of the end of FY 2013, VA had trained more than 5000 of its clinicians to use Cognitive Processing Therapy (CPT) or Prolonged Exposure (PE), which are cited by the Institute of Medicine Committee on Treatment of PTSD as proven to be effective treatments for PTSD.
VA’s National Center for PTSD was created in 1989 by an act of Congress, and celebrated its 25th anniversary on August 29, 2014. We continue to be at the forefront of progress in the scientific understanding and treatment of PTSD. In addition to improving upon existing treatments, we are researching effective new treatments. We are also developing new educational products such as our What is PTSD?whiteboard video. For more information on the National Center for PTSD, please visit our About Us section of the website.

Sources

National Center for PTSD May 2017
Portions of this fact sheet originally appeared in a Veterans Day observance post on VA’s blog, VAntage Point (November 7, 2013). For more information about the history of the PTSD diagnosis, see PTSD History and Overview in the Professional Section of our website.

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