PTSD in returning wounded warriors: ensuring medically appropriate evaluation and legal representation through legislative reform.

• Author: Liang, Bryan A.
• Position: Post traumatic stress disorder

1. INTRODUCTION

   It is forecasted that up to 20% of Iraq and Afghanistan War veterans have either been diagnosed with or will suffer from symptoms of Post Traumatic Stress Disorder (PTSD). (1) Many of these veterans face challenges negotiating the minefield of the Department of Veterans Affairs (VA) disability claims process--a process that includes a lengthy application (2) and strict deadlines)

   In order to receive a PTSD diagnosis and compensation, wounded warriors must work through two separate entities within the VA system. First, veterans must obtain a medical diagnosis from the Veterans Health Administration (VHA). Then, they must pursue disability compensation through the Veterans Benefit Administration (VBA). During this process, veterans confront a complex rating system with conflicting requirements. (4) Confusion, inaccuracies, and missed deadlines often result in denial of claims and appeals. (5) Veterans with PTSD are especially likely to fall through the cracks along the way. PTSD symptoms themselves, such as lack of concentration, (6) exacerbate the complexities faced by wounded warriors and prevent some veterans from successfully completing a claim for disability. (7)

   Statutes and VA regulations currently prohibit attorneys from receiving compensation for representing or assisting veterans during the initial application. These regulations essentially ban representation in all but a few cases. (8) In 2006, Congress enacted the Veterans Benefits, Healthcare, and Information Technology Act. (9) The Act allowed attorneys to be compensated for representing veterans only on appeal of denied disability claims. Prior to 2006, attorneys were allowed to represent veterans but could not be compensated for their work. (10)

   While compensating appellate representation was a step in the right direction, this focus is inappropriate, particularly for PTSD-affected veterans. Attorney representation at the initial stages of a claim would help veterans during their time of greatest need, resulting in a PTSD file that is complete with substantiated claims, filed on time, and focused on the claims process and tasks. This would hopefully result in an award of the maximum disability benefits to which these veterans are entitled.

   This piece proposes legislative reform that would allow veterans who struggle with the claims process, such as those with PTSD, the choice to hire an attorney to represent them during the initial claims process. It also calls for the use of clinically-focused evaluations of disability for PTSD and other mental health disorders through adherence to Diagnostic and Statistical Manual, Fourth Edition, Text Revision (DSM-IV-TR) diagnostic standards to bring rationality into the process. Part II provides a background on the VA and discusses disability compensation, adjudication of claims, and the instruments used to rate a disability. Part III discusses PTSD and the increasing recognition of the disorder as a key disability in recently wounded warriors returning from Operation Enduring Freedom/Operation Iraqi Freedom (OEF/OIF). Part IV reviews the inherent problems within the veteran compensation system, including those relating to PTSD, such as the VA's use of an outdated General Rating Formula (the Schedule), the confusing, combined use of the DSM-IVTR and the Schedule for rating PTSD, proof issues in showing a service connected stressor, and problems with assessments. Part V outlines the system of attorney representation for Social Security Disability Income claims, which are comparable in size and scope to VA disability claims, and details arguments for adopting a similar attorney-friendly system for wounded warriors. To address the concerns raised, Part VI contains a proposed statute that would reform the veteran disability evaluation and assessment system. It objectifies the medically-oriented wounded warrior evaluation by requiring DSM-IV-TR use and standards to assess potential PTSD disability. It also permits both VA and non-VA physicians to perform this evaluation to maximize the number of veterans identified for disability benefits. In addition, the proposed statute would adopt the Social Security Administration model, providing veterans with the opportunity to employ early attorney representation, thereby addressing issues veterans face when initially filing disability claims for PTSD. Reasonable limits on attorney charges would be put into place. In Part VII, the paper concludes with some final remarks.

2. BACKGROUND

   1. The Department of Veterans Affairs and Disability Compensation

      Veterans suffering from a disability as a result of military service are entitled to compensation. (11) As President Lincoln stated in his 1865 inaugural address, it is the government's social and moral obligation "to care for him who shall have borne the battle, and for his widow and his orphan," (12) that is, to care for those injured during war and to provide for the families of those who perished on the battlefield. The VA affirmed this belief in 1959 when they adopted this phrase as their official motto. (13)

      There are two Administrations within the Department of Veterans Affairs, each independent of the other, but both critical to the compensation process. The VHA provides medical care to veterans through a network of 153 hospitals and hundreds of community clinics and Vet Centers. (14) Hospitals within the VHA provide higher quality care than most private sector hospitals. (15) In most cases, VHA healthcare professionals, or those under contract with the VA, conduct the physical examinations required for benefit determinations. (16)

      The other administration that plays a role in veteran disability compensation is the VBA. The VBA's primary function is to manage nonmedical benefits for the VA through fifty-seven Regional Offices (RO's). (17) The VBA manages the Compensation and Pension Program for the VA, handles all claims processing, and schedules evaluations. (18)

      Unlike the VHA, the VBA does not have a successful performance record. (19) The VBA determines compensation through a ratings process that uses the Schedule and evidence from a veteran's service and medical records to determine disability compensation. (20)

   2. Compensation

      Compensation is meant to make up for occupational losses a veteran may experience due to a disability. (21) Yet the challenges that must be overcome to obtain compensation are significant, and recently injured veterans are often unable to successfully address them. For example, OEF/OIF wounded warriors are often vulnerable, because of severe emotional and physical disabilities, and face difficulties in supporting themselves financially. (22) In fact, many OEF/OIF veterans end up homeless. (23)

      Compensation for discharged veterans seeking service-related disability claims is based on a complex, three-step process. The first step in the process is filing a claim with the VA. Filing a claim involves a significant amount of paperwork. This is a daunting endeavor for those who lack focus and are unable to complete tasks, which is typical of veterans who return from engagements, particularly those with PTSD. Once a claim is filed, the veteran is assigned a claim number.

      The second step of the process is scheduling a Compensations and Pension Examination (C&P). The C&P is a physical and abbreviated mental status assessment that is used to determine the overall health of the veteran. These examinations are scheduled by the RO and are conducted by VA healthcare professionals or outside professionals who meet strict educational and licensing requirements. (24) Once the C&P is completed, the results are sent to the VBA for a "Rater" to review. The Rater determines whether the disability is connected to, or caused/aggravated by, military service.

      If no service connection is found, the claim is denied. If a service connection is found, then the Rater will grant, deny in part, or grant in part the veteran's claim. This includes determining the level of disability based on the percentage of lost occupational wages the "average" veteran would suffer as a result of the disability. (25) The Rater is required to calculate this percentage using the Schedule. Even if the Rater finds a service connection, he or she can rate a claim as 0% disabled, thus making the claim non-compensable, effectively denying the claim. (26) The Rater then must notify the veteran with a written decision. (27)

      Even if a veteran is diagnosed with, or even treated for, PTSD by a VHA treatment center, he or she is not eligible to receive compensation until a claim is granted by the VBA.

   3. Claims Adjudication

      Once a claim has been denied, granted in full, or granted in part, the veteran has the choice to do nothing, attempt to re-file the claim with new evidence, or appeal the claim result within one year. A large fraction of claims--approximately 39%--are denied each year at the local RO level. (28)

      To contest the denial of a claim a veteran must write a letter, known as a Notice of Disagreement (NOD), (29) to the VA stating that he or she disagrees with the decision. (30) Unfortunately, this requirement alone appears difficult for some wounded warriors, as fewer than 14% (31) of denied claims are contested. (32)

      If a claim is contested, the VA is required to issue a Statement of the Case (SOC) explaining the decision based on legal reasoning. (33) At that point, if the veteran still disagrees with the decision, the veteran has sixty days to file a formal appeal. (34)

      A formal appeal is a request for a hearing at the local RO or before the Board of Veterans Appeals (Board). Veterans who choose to have a hearing at the RO level will meet with a Decision Review Officer (DRO). A DRO has the authority to consider any other evidence in support of a veteran's claim. Veterans still have the right to appeal the decision of the DRO to the Board. Alternatively, veterans can appeal directly to the Board without DRO...