Sweet dreams aren't made of these: how the VA's disability compensation program leaves veterans alone in the nightmare of posttraumatic stress disorder.

• Jurisdiction: United States
• Date: 01 May 2011
• Author: Haar, Alexandra S.

"Walkin' tall, machine gun man, They spit on me in my homeland. Gloria sent me pictures of my boy. Got my pills 'gainst mosquito death, My buddy's breathin' his dyin' breath. Oh God, please, won't you help me make it through." (1) I. Introduction

Posttraumatic stress disorder (PTSD) already afflicts a large number of veterans, (2) and these numbers are only rising with the wars in Iraq and

Afghanistan. (3) The daunting psychological effects of war have been acknowledged since the World War ii era, albeit under the names of shell shock, traumatic war neurosis, and combat exhaustion. (4) With the Global War on Terror, servicemen and servicewomen have deployed and redeployed to remote areas, (5) and officials in the Department of Veterans Affairs (VA) and the Department of Defense (DOD) are struggling to meet the psychological needs of present and future veterans who suffer from PTSD. (6) From 1999 to 2006, PTSD diagnoses in veterans increased by 126%, while diagnoses of other anxiety disorders decreased by 34%. (7) Even more troubling, these numbers may underrepresent the actual impact of PTSD on the Armed Forces, as soldiers fear the stigma of weakness associated with having a psychological disorder, (8) and VA clinicians can easily confuse PTSD with other disorders such as depression or brain injury. (9) in light of all these difficulties, it is important to focus specifically on compensation rules regarding PTSD.

Over the past few years, the media has begun to bring the veteran's story to the public. In 2007, reporters exposed the deplorable conditions at the Walter Reed Army Medical Center (10) and other VA facilities. (11) included on the list of deteriorating facilities were many psychiatric wards, (12) where veterans were forced to tolerate not only "mouse droppings, belly-up cockroaches, stained carpets, [and] cheap mattresses" (13) but also PTSD and other disorders. (14) Then, in 2009, the shootings at Fort Hood shocked the nation, (15) and regardless of the shooter's actual reasons, (16) the tragedy forced the public to look at the immense stress experienced by mental health professionals at VA facilities. (17) With PTSD at the forefront of many Americans' minds, the time is ripe for us to explore what is being done to treat veterans with this disorder.

After providing a basic overview of the VA's disability compensation program, this Note will examine the ways in which the regulations would and do apply to veterans who seek treatment for PTSD. Specifically, this Note explores the scientific underpinnings--or lack thereof--of the medical aspects of the regulations. This Note will also look at the particular training deficiencies that affect a clinician's ability to accurately diagnose a veteran with PTSD, as well as the unique effects of VA procedures on veterans. In concluding that the current system is grossly insufficient, this Note will provide several specific suggestions as to how the compensation program can be revised to better treat veterans who suffer from PTSD.

2. The Department of Veterans Affairs' Disability Compensation Program

   Over the past four decades, the Department of Veterans Affairs (18) has developed and expanded regulations in the U.S. Code of Federal Regulations (C.F.R.) (19) so that those who serve in the Armed Forces (20) may receive disability compensation after their return home. To receive such compensation, a veteran must submit an application that describes evidence of a disability and explains why the veteran believes it is connected to military service. (21) A connection between service and the disability, called a service connection, is established if the claimant can demonstrate that the "injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein." (22)

   The C.F.R. includes specific criteria for various diagnoses, (23) and VA publications lay out formalized diagnostic procedures. (24) The VA may provide a medical examination, called a compensation and pension examination ("C & P exam"), to determine whether the disability is in fact service connected. (25) These exams were designed specifically for disability rating purposes, (26) and their results (27) are included in veterans' medical records so that raters may make informed decisions. (28)

   if a rater deems an injury service connected, a veteran is entitled to monthly disability compensation. (29) The amount of compensation depends on the degree (zero percent to one hundred percent, with one hundred percent being the most disabled) to which the veteran is disabled. (30) If a rater deems an injury not service connected, (31) a disatisfied veteran may file a Notice of Disagreement with the regional VA office (32) and has the right to have a reviewer reconsider the decision. (33) A veteran who files a Notice of Disagreement must receive a Statement of the Case from the regional office that provided the rating. (34) Upon filing a Notice of Disagreement and receiving a Statement of the Case, a veteran may file a Substantive Appeal (35) with the Board of Veterans Appeals (BVA). (36) Further appeals may be taken to the Court of Appeals for Veterans Claims (CAVC), (37) then to the Court of Appeals for the Federal Circuit, (38) and ultimately to the Supreme Court.

3. PTSD-SPECIFIC COMPENSATION REGULATIONS: SHORTCOMINGS ON PAPER AND IN PRACTICE

   To comport with the regulations regarding the specific diagnosis of PTSD, a diagnosis must include (1) "medical evidence diagnosing the condition," (2) a link between service and the disability, and (3) credible evidence to support a finding of an in-service stressor. (39) Although the VA has a statutory duty to assist a veteran in substantiating a claim, (40) the regulations create an initial bias against a veteran claiming disability--particularly disability that was aggravated during service--by creating the presumption that "every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled in service." (41) Assuming that a veteran is able to move his claim past this initial barrier, the veteran must then battle the "crude and overly general" (42) PTSD regulations. This Note looks first at the difficulty veterans have demonstrating symptoms of PTSD that fall within the regulations as "medical evidence," (43) and then at the practical problems that additionally burden veterans with PTSD.

   1. The Medical Evidence Requirement Ignores Established Psychological Research, Thereby Failing to Control for Inaccurate Diagnoses

      To be diagnosed with any disability in accordance with the C.F.R., "the disability [must] be symptomatic at the time service-connection is sought or awarded." (44) in other words, the veteran must exhibit current symptomatology, or have "a current medical diagnosis," of PTSD. (45)

      A psychological diagnosis is supposed to be based on C & P exam results (46) and on a clinician's observances during a psychiatric interview. (47) However, the psychiatric interviews are optional, (48) and the veteran generally is not allowed to present the medical opinion of his or her own private psychiatrist. (49)

      The Diagnostic and Statistical Manual of Mental Disorders IV--Text Revision, (50) the most up-to-date compilation of mental disorders used by mental health professionals, (51) lists six diagnostic criteria for PTSD. (52) An individual (1) experiences a traumatic event. (53) Then, this person (2) reexperiences that event through dreams or hallucinations, (3) purposefully avoids trauma-related stimuli, and (4) experiences numbing of general responsiveness and increased alertness. (54) These altered behaviors (5) endure for more than one month and (6) result in clinically significant distress. (55)

      Despite the fact that the regulations mandate that ratings must coincide with DSM criteria, (56) the courts have adhered to the view that "the symptoms listed in the DSM[] do not replace, but rather supplement the criteria listed in the general rating formula as the basis for rating PTSD claims." (57) In fact, the courts have limited the use of the DSM so that the BVA may use it "only as the basis for a return of the examination report to the RO [regional office] for clarification or further examination." (58) The courts have thereby relaxed the requirements so that the DSM need not be used during the initial examination, any future examinations, or any reviews of such examinations. (59)

      Because the regulations are silent on exactly how to diagnose PTSD, and DSM criteria are only "auxiliary," (60) the obvious solution for the rater is to turn to the general rating formula for mental disorders. (61) indeed, raters are encouraged to prefer the general rating schedule over resources like the DSM because the rating schedule was designed with the VA compensation system in mind. (62) Although the rating schedule purports to be "based upon" the DSM, (63) it deviates substantially from the manual. For example, personality disorders, which the DSM lists as diagnosable psychological disorders, are specifically excluded from compensation consideration. (64) The rating system is based on a sixty-year-old model focusing on schizophrenia (65) and lists a hodgepodge of symptoms, from memory loss to obsessional rituals to disorganized speech, (66) none of which are symptoms of PTSD. (67) Plus, the primary factors in rating decisions are earnings capacity and employment compensation, (68) which ignore the fact that mental disorders can occur in episodes (e.g., anxiety disorders that manifest themselves in panic attacks) (69) and therefore may not affect the majority of one's time at work. (70) In addition, clinicians are not instructed on how to identify and measure such amorphous characteristics as social functioning and mental competency, (71) and they are therefore prone to "subjective decision making." (72) Although the clinician guidelines lay out the (optional)...