The VA has proposed
new regulations for Veterans trying to prove service connection for PTSD. After reading the
new regulations, I have come to some preliminary conclusions.
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.
LINKS:
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:
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.
The
new PTSD regulations are supposed to simplify the proof of an in-service stressor for both combat and non-combat veterans. According to the
regulation:
"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:
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.
CONCERNS
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.
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