A Better Understanding of the Current PTSD Rules as of July 2010

Ever since the new amendment, regarding the adjudication of service connection for post traumatic stress disorder (PTSD), left the printing press there have been many discussions on various Veteran Support Boards that have addressed this issue with extremely passionate debate, and often inaccurate, opposing opinions.

This has left many with a complete lack of understanding and often a cynical assumption that this rule was adopted only to cheat more veterans from earned benefits. However, a careful analysis and better understanding of the amendment reveals that this is far from accurate and, in fact, this rule will help many veterans that, before, were unable to obtain service connection for their disability.

The debate usually centers around this one excerpt from the rule while virtually ignoring all other associated, yet beneficial, aspects of the rule:

This amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred if a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran’s symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service.

Many have interpreted this to restrictively imply that only a diagnosis from a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted will be accepted and considered in evaluating a claim. There have been others that have taken it a step further and suggested that a diagnosis from any other Licensed Mental Health Professional, such as a Licensed Clinical Social Worker, private IMO, etc.. will be refused and not considered in a claim for PTSD after this ruling. This interpretation is unfounded and can be easily disproven by closely reading, and fully understanding, the accompanying parts of the ruling that can be found here and are identified below.

Consideration of Veteran’s Evidence (excerpt from Final Rule 39843)

Some commenter's asserted that the requirement for a confirmatory opinion from a VA practitioner or contract examiner discriminates against veterans with PTSD or veterans whose claims are based on a particular type of stressor and potentially violates their right to equal protection under the law. Another commenter asserted that the rule violates due process by denying a claimant the ability to submit competent medical evidence from private mental health professionals to rebut the VA opinion. One commenter suggested that the rule should specifically provide for rebuttal of the VA examiner’s opinion with non-VA evidence.

Also, commenter's asserted that the rule would not permit a veteran to submit evidence from a private physician or psychologist or would require VA to reject such an opinion, thereby conflicting with VA’s obligation to consider all evidence of record, and would violate the benefit of the doubt rule. Another commenter asserted that, absent the opinion of a VA psychiatrist or psychologist confirming that the claimed stressor is adequate to support a PTSD diagnosis and that the veteran’s symptoms are related to the claimed stressor, VA adjudicators would not weigh or analyze the evidence. Other commenter's asserted that the rule would violate 38 CFR 3.303(a) and 38 U.S.C. 5107(b). These concerns are unfounded.

Nothing in the rule precludes a claimant from submitting private medical evidence, permits VA to ignore any evidence that is submitted, or requires VA to reject an opinion from a private physician or psychologist. Statute and regulation require VA to consider all information and lay and medical evidence of record when deciding a claim for veterans benefits. 38 U.S.C. 5107(b); 38 CFR 3.303(a).

Service connection for PTSD requires medical evidence diagnosing the disability, medical evidence establishing a link between the veteran’s current symptoms and an in-service stressor, and credible evidence corroborating occurrence of the stressor. 38 CFR 3.304. If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity, the evidentiary standard for establishing occurrence of the stressor can be reduced but only if a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a PTSD diagnosis and that the veteran’s symptoms are related to the stressor. If such confirmation is made in accordance with the rule, VA will not require evidence corroborating occurrence of the claimed stressor.

Failure to obtain such confirmation, however, does not necessarily result in denial of the claim. If such confirmation is not made in accordance with the rule, VA will assist the claimant in obtaining evidence to corroborate occurrence of the claimed stressor. VA will consider all evidence of record, including evidence submitted by the claimant, give the claimant the benefit of the doubt when the evidence is in equipoise, and determine whether the requirements for establishing service connection for PTSD under 38 CFR 3.304(f) have been satisfied, not withstanding any failure to satisfy the requirements of new section 3.304(f)(3). 38 U.S.C. 5103A and 5107(b); 38 CFR 3.303(a) and 3.102.

As you can see there is nothing in this final rule that prevents a veteran from submitting, and the VA from considering, evidence from a source other than a VA psychiatrist as some have opined. What this rule did, in fact, was make it easier on those that have been denied service connection for PTSD because of lost records, insufficient unit record keeping, etc.. It also relieves the rating officer from the burden, and often added time, in the process of confirming occurrence of the claimed stressor with JSRRC, NARA, NPRC, etc.. again, only if a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a PTSD diagnosis and that the veteran’s symptoms are related to the stressor. Third, there must be in the record no clear and convincing evidence to the contrary, and fourth, the claimed stressor must be consistent with the places, types, and circumstances of the veteran’s service for the veteran’s lay testimony alone to establish the occurrence of the claimed stressor.

VA Social Workers, Counselors, and Former Clinicians

Some commenter's urged VA to accept confirmatory opinions from VA social workers, counselors, therapists, and former psychiatrists and psychologists. One commenter contended that consistency in examinations by such providers is guaranteed by VHA Handbook 1160.01, Uniform Mental Health Services in VA Medical Centers and Clinics, and VA Handbook 5005/23, Part II, Appendix G39, providing the requirements for appointment as a VHA social worker.

As explained above, a C&P examination is forensic evidence for purposes of determining whether a veteran is entitled to disability compensation for PTSD and, if so, how much. This rule requires the medical opinion of a VA psychiatrist or psychologist, or a contract psychiatrist or psychologist, because VA can rely on the consistency and quality of examinations conducted by such individuals. These handbooks, on the other hand, pertain to care of VA patients, not C&P examinations, and to the appointment of personnel. They do not ensure the degree of training, information, and experience necessary to ensure quality and consistency in examinations.

With regard to former VA psychiatrists and psychologists, some former clinicians may not have been CPEP-certified depending upon when they were employed by VA. In addition, their examinations would not be subject to ongoing CPEP review, nor would they have access to a veteran’s claims file to conduct the review required by the PTSD examination protocol. Therefore, VA would be unable to ensure standardization, consistency, and quality of their examinations. For that reason, we decline to permit their medical opinions to qualify for the evidentiary liberalization provided by this rule.

After reading and fully understanding this section we can see that no where does it state that a diagnosis by other Licensed Mental Health Professionals, such as a Licensed Clinical Social Worker, Private IMO, etc.. will be refused to be considered in a claim for PTSD. However it does clearly states that their opinion will not be considered to qualify for the evidentiary liberalization provided by this rule.

In other words; if you are seeking to service connect a PTSD diagnosis and will have to take advantage of the new evidentiary liberalization covered by this rule, because your circumstances preclude you from substantiating your claimed stressor through the normal manner, you will have to follow the requirements of this rule stating that a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, has confirmed that the claimed stressor is adequate to support a PTSD diagnosis and that the veteran’s symptoms are related to the stressor.

Keep in mind that this rule did not change the basic DSM IV criteria required to be diagnosed for PTSD nor does it effect the requirement that the VA will consider all evidence of record, including evidence submitted by the claimant, give the claimant the benefit of the doubt when the evidence is in equipoise, when determining whether the requirements for establishing service connection for PTSD under 38 CFR 3.304(f) have been satisfied.