PTSD UPDATES and Mental Strategies - Purple Heart · VA uses the same criteria for ... PTSD UPDATES and Mental Strategies . ... •If symptoms in desired rating, Document! •Point

PTSD UPDATES

and Mental Strategies

Celeste Krikorian MOPH NSO Training Orlando, FL March 2013

OBJECTIVES:

o Using the New PTSD rule.

o Stressors that are neglected. Cline

o How to make the most of your claim.

o 4.130. Significance of Symptoms.

o Acheiving 100% for Mental Claim.

MOPH NSO Training Orlando, FL March 2013o 2

PTSD UPDATES


New PTSD Rule: 38 C.F.R.3.304(f)(3):

• Fear of Hostile Military/Terrorist Activity

• Relaxation of the evidentiary burden

• Lay stmt. of stressor enough

• Key: No Stressor Verification Needed

MOPH NSO Training Orlando, FL March 2013 3

PTSD UPDATES


Fear of hostile military or terrorist activity:

Vet experienced, witnessed, or was confronted with

event that involved actual or threatened death or

serious injury, or a threat to the physical integrity of

Vet or others, such as from improvised explosive

device; vehicle-imbedded explosive device; incoming

artillery, rocket or mortar fire; grenade; small arms

fire, including suspected sniper fire; or attack upon

friendly military aircraft, and Vets response involved a

psychological or psycho-physiological state of fear,

helplessness, or horror. MOPH NSO Training Orlando, FL March 2013 4

PTSD UPDATES


Mental Strategy 1: Possible Case Scenarios

• Combat Stressor cannot be verified

• In war zone but not personally in combat.

• Re-open PTSD claim denied prior to new rule.

• Vet previously denied PTSD, SC for other mental disorder.


PTSD UPDATES


TO PROVE:

Lay stmt. of Stressor due to Fear of Hostile Military or Terrorist Activity

VA Doctor must decide claimed stressor supports PTSD dx.

VA Doctor must decide symptoms related to that stressor

Consistent with circumstances of service


PTSD UPDATES


Important Facts:

1. Rule not limited to Iraqi/Afghan Vets.

2. VA Doctor needed. If can easily show

Combat award, go with 3.304 (f)(2)

3. To Re-open under New Rule, use Lay

Stmts., MOS, Personnel Records.

4. If case pending before VA on 7/13/2010,

then Eff. date is date of claim.


PTSD UPDATES


NEW:Cline v. Shinseki: 38 CFR 3.156(c)(2)

Mental Strategy 2:Possible Case Scenario

Stressor Verification: Vet submitted Stressor

Statement that was not verified by JSRRC.

Vet loses due to lack of stressor verification.

Vet reopens. Stressor is verified.


PTSD UPDATES


Cases filed Prior to October 2006:

38 CFR 3.156(c) basically allowed that if Vet submitted insuffic. stressor stmts. that were later verified by Vet’s more clarified submission or by later verification by VA or JSRRC, Vet was entitled to Reconsideration possibly allowing earlier eff. date (EED) to date of original claim or date entitlement arose whichever is later.


PTSD UPDATES


Example: Vet filed a claim in 1993 for PTSD. He had dx of PTSD related to a stressor based on seeing a comrade drown. He provided a stressor statement stating, “I saw my comrade Buddy drown.” He lost his case due to the lack of a verifiable stressor. In 2005, Vet reopened his claim and clarified that “Buddy” was John Doe. JSRRC verified stressor. Vet asked for Reconsideration. Vet granted earlier eff. date of original claim in 1993.


PTSD UPDATES


After October 2006:

38 CFR 3.156(c)(2) limits reconsideration.

“…section does not apply to records that VA

could not have obtained when it decided the

claim because the records did not exist when

VA decided the claim, or because the claimant

failed to provide sufficient information for VA

to identify…or obtain from…respective

service department” (JSRRC).


PTSD UPDATES


After October 2006:

38 CFR 3.156(c)(2) limits reconsideration.

IF inability to initially verify stressor was based upon lack of detailed information from veteran, then no reconsideration.

IF VA or JSRRC failed to verify earlier stressor statement that contained sufficient info., Vet still entitled to reconsideration.


PTSD UPDATES


Mental Rating Schedule: 38 C.F.R. 4.130:


VA uses the same criteria for evaluating

most mental diseases. In practice, Vet may

have numerous diagnoses evaluated under

same schedule.


PTSD UPDATES


Example:

Vet has had several mental diagnoses since

separating from service 10 years ago. They

include depression, PTSD and anxiety.

1. How should you frame your claim?

2. What if claim was previously filed for

depression only?


PTSD UPDATES


How should you frame your claim?

“Entitlement to service connection for

mental disorder, to include PTSD.”


PTSD UPDATES


Tips:

File your claim as broad as possible

If PTSD is an option, go for it

PTSD doesn’t require continuity of

symptomatology

Other diagnoses can be symptoms of PTSD


PTSD UPDATES


What if claim was previously filed for

depression only?

• Ask VA to broaden claim to include all

mental diagnoses.

• Cite Clemons v. Shinseki

• Point out: Vet is lay person not expert


PTSD UPDATES



Vet wants a higher rating but does not

exhibit most symptoms in rating desired.


PTSD UPDATES


PTSD/MENTAL Ratings: 38 C.F.R. 4.130: What Matters:

Total occupational and social impairment: 100%

Occup. & social impairment, deficiencies in most areas: 70%

Occup. & social impairment w reduced reliability/productivity: 50%

Occup. & social impairment w occasional decrease in work

effic. & intermittent periods of inability to perform occup. tasks: 30%

Occup. & social impairment due to mild or transient symptoms: 10%

Formal Dx Mental condition, but symptoms not severe enough: 0%


PTSD UPDATES


Tips:

• Focus on the tx recs and use to show occup. and social impairment criteria.

• If symptoms in desired rating, Document!

• Point VA to work history or lack thereof

• Use GAF scores to Vet’s advantage

• Remember 38 CFR 4.3 and 4.7


PTSD UPDATES



Vet is currently rated 70% for mental

disorder. Vet is not working. Vet does not

have total social impairment or symptoms

for 100% rating.


PTSD UPDATES


Answer:

Ask for TDIU (total disability based on

individual unemployability) 38 CFR 4.16

Remember inability to obtain substantial

gainful employment must be due to

mental disorder or combo of SC

disabilities meeting 70%.


PTSD UPDATES


TDIU: 38 CFR 4.16

Criteria required:

• One disability rated at 60% or

• Two or more combined at 70% where at least

one disability is rated at 40%.

• Consider: Common etiology/single accident


PTSD UPDATES


QUESTIONS?


PTSD UPDATES


Documents

PTSD UPDATES and Mental Strategies - Purple Heart · VA uses the same criteria for ... PTSD UPDATES and Mental Strategies . ... •If symptoms in desired rating, Document! •Point