Veterans Disability Benefits: VA Issues New PTSD Regulations.By Chris Attig | Permalink
October 27th in VA Benefits.
First, while the new regulations do seem to “relax” the evidentiary burden for a lot of Veterans, it may increase the burden for others.
Second, where the old regulations were not easy to comply with and not very fair, they were easy to read and understand – the veteran knew, given his/her situation, what he/she had to prove to establish service connection for Post-Traumatic Stress Disorder. With the old regulations, veterans with PTSD at least knew where the “line in the sand” was; with these new regulations, it is not easy to see where the VA is re-drawing the “line in the sand”.
That being said, I am hopeful that the new regulations will be applied fairly and evenly, and am hopeful that they will turn out be a good thing for Veterans in the long run.
So, before diving into a summary of the new PTSD regulations, here are some links that the Veteran representing themselves pro-se may find helpful.
1) E9-20339, the proposed new regulations as published in the Federal Register.
2) Dept. of Veterans Affairs FAQ on the new PTSD regulations. I have attached the VA Fact Sheet as either a PDF or a Website link:
- PDF Version: Department of Veterans Affairs: VA’s Fact Sheet and FAQ for new PTSD Regulations
- Website Link: Click here for a link to the Fact Sheet and FAQ on the Department of Veterans’ Affairs website
SUMMARY OF NEW REGS.
So what do these new PTSD regulations do? This is not a complete summary of what they do or what they change. If you have a current claim in which you are trying to service-connect your PTSD, I highly recommend that you contact an attorney with experience handling Veteran disability compensation claims for Veterans with PTSD, as the best strategy is going to be different in each and every case.
“A Veteran will be able to establish the occurrence of an in-service stressor through his or her own testimony, provided that: (A) the Veteran is diagnosed with PTSD; (B) 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; (C) the Veteran’s symptoms are related to the claimed stressor; (D) the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service and the record provides no clear and convincing evidence to the contrary.”
WHO IS AFFECTED
If you thought the new PTSD regulation was a mouthful, wait until you read this. The new rule will apply to claims:
- received by VA on or after July 13, 2010;
- received before July 13, 2010 but not yet decided by a VA Regional Office;
- appealed to the Board of Veterans’ Appeals on or after July 13, 2010;
- appealed to the Board before July 13, 2010, but not yet decided by the Board; and
- pending before VA on or after July 13, 2010, because the Court of Appeals for Veterans Claims vacated a Board decision and remanded for re-adjudication.
It is clear that the new PTSD regulations will not apply to all claims, even though the new PTSD regulation itself says it will apply to all claims. This is a big red-flag for me. As my first Battalion Fire Support Officer (shout-out to Captain Weeks) used to say – “mean what you say and say what you mean”. I don’t have a clue what the VA says or means when it simultaneously extends and limits application of the new PTSD regulations as it does.
What is clear to me is that the new PTSD regulation DOES NOT APPLY TO PTSD claims that are currently pending judicial review at the Court of Appeals for Veterans Claims or claims that are pending appeal of the CAVC review at the Federal Circuit Court of Appeals. Watching the CAVC and Federal Circuit decisions on PTSD claims over the next 2-5 years might give us some insight into why this was the case. Or, it may be a function of poor regulation writing. Or, I may be completely mis-reading the new PTSD regulations. If I am wrong, I will happily eat crow – but I remain skeptical and will keep a watchful eye on how the VA handles claims for service-connection over the next few years.
1) The regulation is a mouthful – in my 17 years experience dealing with government bureaucracies, regulations that are clear and concise are usually the most easily and fairly applied. Regulations that use too many words are generally the result of conflicting goals by the authors of the regulation and Congress – and this new PTSD regulation uses far too many words. In short, I see landmine after landmine for the Veteran – particularly when the VA decides that it’s own medical examiners are not competent to provide these opinions.
2) I am concerned with the language in the new PTSD regulations requiring a VA psychiatrist or psychologist to confirm in-service stressors – too many Veterans do not and will not seek diagnosis or treatment from the VA. They go through private doctors for a variety of reasons – better diagnosis and treatment, more treatment options, and privacy of treatment are just a few of those reasons. While the language does not exclude the use of private psychiatrists or psychologists to establish and service-connect PTSD, it will likely be applied that way. I worry that the only use of private opinions from non-VA psychologists and psychiatrists will be to offset a shoddy examination and opinion from a VA psychologist or psychiatrist who meets with the Veteran for only as much time as it takes me to brush my teeth.
3) Third, the new PTSD regulation is ambiguous – it says that a Veteran may establish the incurrence of an in-service stressor through his/her own testimony – but only if a VA psychologist or psychiatrist confirms the adequacy of the stressor. I read this to say that a Veteran may establish “X” through his own testimony, but the testimony of another person must establish the adequacy of “X”. It sounds like the way the Insurance Defense Lobby writes “tort-deform” laws…designed to trick, trap, and torture. Many questions are left unanswered by this confusing and ambiguous language.
4) My chief worry is that, in their application, the new PTSD regulations will have negative results. Some VA benefit attorneys do not share my concerns. Other VA Benefit Attorneys have different – and greater – concerns than I do. I do not claim to be an expert on the new PTSD regulations (and to be truthful, no attorney or VSO should tell the Veteran that they fully understand these new PTSD regulations). Generally, however, here are my worries about the application of the new PTSD regulations
Fear #1: Fewer veterans will seek treatment for mental health conditions such as PTSD because they will read the new PTSD regulations as limiting proof of service-connection to the opinion of a VA psychologist or psychiatrist.
Fear #2: In its application, the VA will use the new PTSD regulations to say that establishing service-connection requires “testimony” from the Veteran, creating more VA Regional Office denials and more appeals to the BVA – which cannot handle the caseload that it has now. Then, they will use VA Opinion Mercenaries (i.e., VA C&P Examiners) to attempt to discredit the private physicians who are trying to treat the Veteran’s condition.
Fear #3: In its application, the VA will interpret the new PTSD regulations to require that Veterans need a medical opinion on their PTSD – and that medical opinion can only be had from a VA Psychologist or Psychiatrist. In short, I fear that the VA will use the new PTSD regulations to make it harder to prove PTSD – not easier.
WHAT SHOULD VETERANS WITH PTSD CLAIMS DO?
First and foremost, if you have a pending PTSD claim, consider whether or not it is to your advantage to file a new and/or reopened claim for disability compensation specifically asking for adjudication of the new/reopened claim under the new PTSD rule. IF YOU ARE REPRESENTED BY A VETERAN SERVICE ORGANIZATION OR AN ATTORNEY, CONSULT WITH YOUR REPRESENTATIVE TO MAKE SURE THAT THIS APPROACH IS RIGHT FOR YOUR CLAIM.
Second, contact an attorney with experience representing Veterans in their VA disability claims. There are several strategies that need to be evaluated and/or discussed about your pending claim for disability compensation due to PTSD.
The Attig Law Firm represents U.S. Veterans who have been denied disability benefits for injuries that resulted from their military service. The Firm currently represents peace-time and war-time veterans of all branches of the military, at all levels of the claim process (VA Regional Office, Board of Veterans’ Appeals, and the Court of Appeals for Veterans’ Claims). Contact the Attig Law Firm if you would like to discuss your claim for disability benefits before the VA.
No post on this website is meant to be legal advice and the posts on this website do not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the Veteran, some power. This information is not widely or easily accessible to Veterans. The information presented on this website is a general description of law and processes; each case is different, and there may be approaches listed here that are not accurate or applicable to your case. Likewise, their may be information that is applicable to your case that is not provided on this Veterans Disability Compensation Blog.
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It is best to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine your particular case. If you would like to discuss your VA claim with a lawyer who handles VA Benefits and Disability Appeals, contact the Attig Law Firm, PLLC, for a free consultation with a VA Benefits attorney.