introduction to benefits for veterans with...

Mo Siedor

Swords to Plowshares 1060 Howard Street San Francisco, CA 94103 www.stp-sf.org (415) 252-4788 [email protected]

Nicole M. Perez Legal Aid Foundation of Los Angeles Veterans Justice Center 7000 S. Broadway Los Angeles, CA 90003 www.lafla.org [email protected]

Introduction to Benefits for Veterans with Disabilities

© Swords to Plowshares 2016 © Legal Aid Foundation of Los Angeles 2016

SECOND HOUR

AGENDA Service-Connected

Disability Compensation

Evaluating and Developing the Claim

Post-Traumatic Stress Disorder and Military Sexual Trauma

LEARNING OBJECTIVES Recite the three elements for VA Service-Connected

Disability Compensation

List the five theories of Nexus - the 3rd element of Service-

Connected Compensation

Identify whether a Veteran appears entitled to VA Service-

Connected Compensation

Evaluate PTSD and PTSD/MST claims



TWO-STEP PROCESS HOUR 1: Eligibility – Does the claimant meet the threshold eligibility requirements? HOUR 2: Entitlement – Is the claimant entitled to the specific

benefit sought? Claimant is most often the veteran, but may be an eligible dependent of the veteran.

VA Benefits: Basic Determinations


VA Service-Connected Compensation is a benefit for veterans who have current physical or mental health conditions that can be linked to their military service. ELIGIBILITY: No minimal length of service requirement. All other eligibility requirements apply.

MONTHLY TAX-FREE BENEFIT: Not means-tested and not offset by other income.

Amount of benefit based on VA Disability Rating Schedule from 0% disabled (minimal current symptoms) to 100% disabled (very severe current symptoms).

What is VA Compensation?


RATING COMPENSATION RATING COMPENSATION

10% $133.17 60% $1,059.09

20% $263.23 70% $1,334.71

30% $407.75 80% $1,551.48

40% $587.36 90% $1,743.48

50% $836.13 100% $2,906.83

Additional benefits available for: Dependents, Individual Unemployability (TDIU), Loss of Special Senses, Housebound & Aid and Attendance.

Compensation Rates for a Single Veteran


TO BE ENTITLED, A VETERAN MUST PROVE* THREE ELEMENTS:

1. Current Disability: Veteran has a current physical or mental health

condition.

2. In-Service Incident: There was an incident on active duty that caused

the condition, or a condition was first manifest on active duty.

3. Nexus: There is a link between the current condition and the in-service

incident.

*Standard of Review: “Benefit of the Doubt” at 38 U.S.C. § 5107(b) “At least as likely as not” that the fact is true

Elements of Service-Connected Compensation


VETERAN MUST HAVE A CURRENT PHYSICAL OR MENTAL CONDITION

• Preferred proof is a current medical diagnosis documented by competent medical professional. 38 C.F.R. § 3.159

o Non-VA diagnosis is admissible in most circumstances

o Credibility is important: State medical qualifications, explain diagnosis and reasoning, utilize modern diagnostic tests and established medical treatises

• Veterans without a diagnosis may still apply, but they must include a declaration that articulates their current symptoms in order to obtain a free VA “Compensation & Pension” (C&P) Exam to determine diagnosis

Non-compensable conditions:

Personality disorder & Congenital defect. 38 C.F.R.§ 3.303(c)

Element #1: Current Disability


Element #1: Current Diagnosis

COMPETENT EVIDENCE OF CURRENT DIAGNOSIS Current Medical or Mental Health Treatment Records

• VA will have access to VA Healthcare Records • Veteran needs to submit signed “Release of Information” of private

medical records (VA Form 21-4142 & 21-4142a), or submit the private medical records with claim

• Include excerpts of those records documenting current diagnosis and severity of current symptoms

VA Disability Benefits Questionnaire (DBQ)

• 70+ DBQ forms available for medical providers to complete. Forms include details that VA needs to know when evaluating claims.

• http://www.benefits.va.gov/compensation/dbq_disabilityexams.asp Veteran’s sworn statement

http://www.benefits.va.gov/compensation/dbq_disabilityexams.asp




“INCIDENT” CAN BE ALMOST ANYTHING

Condition must have incurred or have been aggravated during military service:

• Veteran must have been on active duty at time incident occurred.

• Tip: Look at the Veteran’s DD-214 for dates of active duty

• Incidents do not need to be related to military activity, so long as they occurred while Veteran on active duty.

• Incidents include events, injuries, traumas, exhibiting initial symptoms of a condition, or an initial diagnosis of a condition.

• Cannot be result of willful misconduct. 38 C.F.R. § 3.301

Or, condition incurred during a qualifying presumptive period after active duty. 38 C.F.R. §§ 3.307, 3.309

Element #2: In-Service Incident


COMPETENT EVIDENCE OF IN-SERVICE INCIDENT Service Treatment Records (Request using SF-180)

• Diagnosis during service or medical evidence of illness during service. • Medical evidence of illness during a presumptive period after service. 38

C.F.R. §§ 3.307, 3.309 • Preliminary diagnosis of a chronic condition. 38 C.F.R. § 3.303(b)

Official Military Personnel File (Request using SF-180) Competent Lay Evidence

• Statements of Support: Veteran’s sworn statement, “Buddy Statements,” statements from family, friends, employers, and other supporters

• Corroborating evidence: Photographs, newspaper articles, agency records, etc.

• Special rules for documenting events in combat and for PTSD. 38 C.F.R. §§ 3.304(d, f)

Element #2: In-Service Incident

© Swords to Plowshares 2016

Case Study—Maria

Question - ELEMENT 2

(Please switch to polling.)


Polling Question #1

While training at Fort Jackson, Maria injured her right knee when heavy equipment landed on it. She was treated in service and has had right knee problems even since. Would her right knee injury qualify for service-connected disability compensation?

a) Yes, because Maria was on active duty and it was not a result of willful misconduct.

b) Yes, but only if Maria served a minimum of 24 consecutive months on active duty.

c) Yes, but only if Maria’s income is low enough to qualify for service-connected disability compensation.

d) No, because it was not combat-related and it occurred on base in the United States.


VETERAN MUST SHOW NEXUS BETWEEN CURRENT CONDITION AND IN-SERVICE INCIDENT. • Usually requires a positive “linkage opinion” from a competent medical

professional who has reviewed the Veteran’s military and civilian records.

• When the Veteran doesn’t submit a competent “linkage opinion,” VA holds a free “C&P” examination to determine nexus.

CAN BE ESTABLISHED USING 5 THEORIES 1. Direct Service Connection 2. Aggravation 3. Secondary Service Connection 4. Presumptive Service Connection 5. VA Medical Care

Element #3: Nexus


DIRECT SERVICE CONNECTION—38 C.F.R. §§ 3.303, 3.304

• Basic Premise: Veteran must prove their current disability is

directly linked to the in-service incident. • Greatest challenge: Proving chronicity, aka “continuity of

symptomatology”

• Examples: o Veteran witnessed four people in her unit get severely wounded

during deployment and she now lives with PTSD.

o Veteran developed chronic ulcer that began during his service.

Element #3: Direct Nexus Theory


AGGRAVATION—38 U.S.C. § 1153; 38 C.F.R. §§ 3.306, 3.322 • Basic Premise: Veteran may be compensated for a disability which

began before active duty, but was made measurably worse than it would have been had the disability progressed naturally.

• Presumption of Soundness, 38 C.F.R. § 3.304(b)

o Rebuttable by clear and unmistakable evidence. o If rebutted, may still claim aggravation

• Greatest challenge: Proving military service aggravated natural

progression of condition. • Example: Veteran entered the service with a minor left wrist

problem which significantly worsened after a car accident in service.

Element #3: Aggravation Nexus


SECONDARY SERVICE CONNECTION—38 C.F.R. § 3.310

• Basic Premise: Any disability that is caused or aggravated by an already service-connected condition can be compensable. • Greatest challenge: Proving that the service-connected condition “at least as likely as not” caused or aggravated the new condition.

• Example: Veteran is service-connected for a right knee problem. After years of favoring her left side, she now has left knee and hip strain.

Element #3: Secondary Nexus


PRESUMPTIVE SERVICE CONNECTION 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309, 3.316, 3.317, 3.318

• Basic Premise: Some conditions can be automatically service-connected when the Veteran shows that the condition appeared within a certain time after service. • Greatest challenge: Staying abreast of the many presumptive conditions, and paying attention to the varying qualifying periods for presumptive eligibility.

Element #3: Presumptive Nexus


EXAMPLES OF PRESUMPTIVE SERVICE-CONNECTION

• Chronic and tropical diseases that manifest within one year of discharge, such as:

o Diabetes, arthritis, epilepsy, leukemia, psychosis.

o Cholera, dysentery, malaria.

• Conditions of POWs

• Gulf War Illness

• Traumatic Brain Injury: Establishes presumptions for conditions secondary to TBI

• Multiple Sclerosis manifest within seven years of discharge

• ALS manifest at any time after service



PRESUMPTIVE SERVICE CONNECTION – AGENT ORANGE EXPOSURE 38 C.F.R. §§ 3.307, 3.309

Qualifying service during presumptive period • Set foot in Vietnam during specified period • Served in Vietnam’s inland waterways • Some service in Thailand and Korea • Some service at domestic storage locations

Examples of qualifying conditions • Diabetes Mellitus

o Look out for secondary conditions • Prostate Cancer • Lung Cancer • Parkinson’s Disease • Certain Heart Disease • … and many more.



VA MEDICAL CARE—38 U.S.C. § 1151

• Basic Premise: Injury or aggravation of an injury caused by VA hospitalization, VA medical treatment, or VA vocational rehabilitation can be compensable as if service-connected. • Greatest challenges: Proving VA negligence and the complicated intricacies between this theory and Federal Tort Claims Act claims. • Example: Veteran undergoes surgery at VA and a surgical tool is left inside that causes the Veteran to limp and injure his knee. The knee condition can be “service-connected.”

Element #3: Section 1151 Nexus


Case Study—Maria

Question - ELEMENT 3



Polling Question #2

Assume Maria has already satisfied Elements 1 & 2. In order to prove nexus for her knee condition, which of the following evidence would be helpful to her claim? A. She doesn’t need nexus evidence because her injury will be

presumed to be service-connected. B. Statements from Maria and others detailing symptoms from the

time of the incident to present, describing the linkage in connection. C. Medical opinion from a doctor finding that the current knee

condition is as likely as not related to the in-service injury. D. Both B & C.


ELIGIBILITY

ENTITLEMENT: SERVICE-CONNECTION 1. Current medical condition 2. In-service event or diagnosis • Incurred or aggravated • Special standards for proving PTSD stressors • Presumptive conditions

3.Nexus • 5 theories: Direct, Aggravation, Secondary,

Presumptive, VA Medical Care

Once entitlement is established, VA determines Rating

Review: Service-Connected Disability Compensation


• Determine Rating for Each Condition (0% - 100%)

o Based on VA Schedule for Rating Disabilities - 38 C.F.R. § 4.40 et seq.

o Can be temporary or permanent

• Final Rating (Monthly Award) = Aggregated Rating for all Conditions

o Combined Ratings Table - 38 C.F.R. § 4.25

o Avoidance of pyramiding - 38 C.F.R. § 4.14

• Application of Special Benefits

o Total Disability Based on Individual Unemployability

o Special Monthly Compensation (discussed in Hour 3)

Service-Connected Disability Compensation: Rating


Will not change the veteran’s rating percentage, but the veteran will receive payment as if rated at 100%

• Medical or vocational opinion is helpful

• Use VA Form 21-8940

ELIGIBILITY CRITERIA:

• One service-connected disability is rated 60%, or multiple service-connected disabilities aggregate to 70%, and

• The combination of service-connected disabilities renders the veteran unable to work entirely, or “unable to secure or follow a substantially gainful occupation.”

• 38 C.F.R. §§ 4.16

Total Disability for Individual Unemployability (TDIU)


RATING INCREASE • Veteran may request increased rating at any time.

RATING REDUCTION

• When a condition is not rated as permanent, VA may schedule a re-evaluation.

• VA has burden of demonstrating actual improvement.

• Higher burden for 100% ratings and ratings in effect for five or more years.

• No reduction after 20 years of continuous rating. 38 C.F.R. § 3.951(b)

Service-Connected Disability Compensation: Rating


These common service-connected conditions have unique

rules and regulations and require special consideration.

• Post-Traumatic Stress (PTS or PTSD*)

• Military Sexual Trauma (MST)

*You may see this condition expressed as both PTSD (as listed in the DSM-V) or as PTS. While the clinical diagnostic code is a mental health disorder, it can be contrary to anti-

stigmatization efforts and care to call a response to extremely traumatic events a disorder.

PTSD Claims


PTSD is a mental health condition that can occur after exposure to

actual or threatened death, serious injury, or sexual violence in one

(or more) of the following ways:

• Directly experiencing trauma

• Witnessing a trauma in person

• Learning that a trauma occurred to friend or family

• Repeated exposure to the aversive details of the traumatic

event(s)

The disturbance causes clinically significant distress or impairment in

social, occupational, or other important areas of functioning.

What is Post-Traumatic Stress?


Post-Traumatic Stress Symptoms

DSM-V Symptoms

• Recurrent, involuntary, and intrusive memories • Flashbacks and nightmares • Psychological distress when exposed to triggers • Avoidance of stimuli associated with the trauma • Inability to recall key aspects of the trauma • Hyper-vigilance • Difficulty concentrating or sleeping • Exaggerated startled response • Irritable behavior and angry outbursts • Reckless/self-destructive behavior • Sense of foreshortened future/suicide

Symptoms must last more than one month and can begin any time following the “stressor” event, even years later.


Veterans and PTSD

• Veterans with PTSD may face a broad range of physical, cognitive, behavioral, emotional, and social challenges.

• According to the VA, the number of Veterans with PTSD varies by

service era:

• Operations Iraqi Freedom and Enduring Freedom: Between 11-20% who served in OIF or OEF have PTSD in a given year • Gulf War (Desert Storm): About 12% Gulf War Veterans have PTSD in a given year • Vietnam War: About 30% of Vietnam Veterans have had PTSD in their lifetime


Service-Connection of Post-Traumatic Stress

Requirements of a claim for PTSD:

• Current diagnosis

• “Stressor” event in service

• Nexus between current diagnosis and stressor event


Element #1: Diagnosing PTSD

A competent mental health professional must diagnose PTSD

• Diagnosis must be in accordance with the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-V)

• MD, PhD, (LCSW in some jurisdictions)

• The Veteran, family members, friends, and the representative may describe how the veteran has symptoms of PTSD, but this will not be sufficient to prove a PTSD diagnosis


Element #2: In-Service Stressor

EVIDENCE OF THE IN-SERVICE STRESSOR DEPENDS ON THE

CIRCUMSTANCES:

If diagnosed in service, and stressor is related to that service and consistent with

circumstances of veteran’s service, veteran’s statement is sufficient evidence of

stressor. 38 C.F.R. § 3.304(f)(1)

If in combat or a prisoner of war, and stressor is related to that combat or POW

experience, and consistent with circumstances of veteran’s service, veteran’s

statement is sufficient evidence of stressor. 38 C.F.R. § 3.304(f)(2),(4)

If from fear of hostile military or terrorist activity not in combat, veteran’s

statement plus VA medical opinion that symptoms are consistent with stressor are

sufficient evidence of stressor. 38 C.F.R. § 3.304(f)(3)

If from personal assault (including sexual assault), veteran’s statement plus

objective corroborating evidence is sufficient evidence of stressor. 38 C.F.R. §

3.304(f)(5)

If none of the above apply, veteran must prove that the specific stressor occurred.


Element #3: PTSD Nexus

NEXUS requires a medical opinion that current PTSD is the

result of the in-service stressor.

STANDARD: The doctor should opine that it is at least “as

likely as not” the veteran’s PTSD is a result of the in-service stressor. In order to be credible, the doctor’s opinion should state that she reviewed relevant military, lay, or corroborating evidence to substantiate that the stressor is consistent with the veteran’s military service.


Rating a PTSD Claim

• Most mental health ratings use the same “Schedule of

ratings—Mental disorders” Table. 38 C.F.R. § 4.130

• Not objective criteria

• The listed symptoms are not an exclusive or exhaustive list. Rather it serves as an example of symptoms that would justify a total rating.

Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002)


RISKS FOR HOMELESSNESS

Rating Schedule

38 C.F.R. § 4.130

100% 70%

Total occupational and social impairment, due to such symptoms as:

Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as:

Gross impairment in thought processes or communication

Speech intermittently illogical, obscure, or irrelevant

Persistent danger of hurting self or others Suicidal ideation

Intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene)

Neglect of personal appearance and hygiene

Memory loss for names of close relatives, own occupation, or own name

Inability to establish and maintain effective relationships

If rated 70%, consider TDIU if PTSD renders veteran unemployable.


PTSD Based on Military Sexual Trauma

MILITARY SEXUAL TRAUMA (MST) is a “psychological trauma,

which in the judgment of the VA mental health professional,

resulted from a physical assault of a sexual nature, battery of

a sexual nature, or sexual harassment which occurred while

the veteran was serving on active duty or active duty for

training.” 38 U.S.C. § 1720D(a)(1)

Sexual Harassment is “repeated, unsolicited verbal or physical contact of a sexual nature which is threatening in character”. 38 U.S.C. § 1720D(f)


Military Sexual Trauma

Military sexual trauma (MST) refers to both sexual harassment

and sexual assault that occurs in military settings. It often goes

unreported due to stigma and fear of potential loss of military

career.

In 2014, of the 11,400 estimated assaults on men, only 13%

were reported, whereas of the 8,600 estimated assaults on

women, only 40% were reported.

While sexual assaults average 1 every 30 minutes, only 1 in 4

are reported.


Particular aspects of military culture make it more difficult and complicated to report military sexual trauma.

Loyalty to unit.

Strict code of chain of command.

Emphasis on self-reliance.

Minimization of weakness.

Effect on career. (Can’t just quit and find another job.)

Need to rely on perpetrators for safety/security.

Report may not be believed, or victim may be punished.

Military Sexual Trauma


Service-Connecting PTSD Based on MST

SPECIAL RULES APPLY TO ESTABLISH ELEMENT #2:

MST STRESSOR IN-SERVICE

The VA acknowledges that because personal trauma, include MST,

is “an extremely personal and sensitive issue, many incidents are

not officially reported, and the victims of this type of in-service

trauma may find it difficult to produce evidence to support the

occurrence of the stressor.” Manual M21-1MR, Part IV, Subpart ii,

1.D.17.f.

Alternative evidence, aside from service records, may establish

occurrence of an incident of MST.


Element #2: Evidence of In-service MST Incident

NON-MILITARY RECORDS • Law enforcement records

• Rape crisis centers, mental health counseling

• Pregnancy and/or STD test requests

• Statements from family, service members, clergy

BEHAVIOR CHANGES • Request for transfer to another unit

• Deterioration in work performance

• Substance abuse

• Episodes of depression, panic attacks, or anxiety without an identifiable cause

• Unexplained economic or social behavior changes 38 CFR § 3.304(f)(5)


Polling Question #3

After returning from deployment, Maria went out to a bar with her friends. A guy in their group, Owen, kept buying her drinks and Maria drank more than she intended. Afterwards, Owen walked her back to her bunk. She laid down in her bed fully dressed and passed out. She woke up briefly and realized that Owen was on top of her having sex with her. She tried to kick him off but she was too inebriated and she passed out again. When she woke in the morning, her pants were down and she realized that what happened was not a dream. After her discharge from the Army, she began treatment at the VA where she was diagnosed with PTSD based on military sexual trauma. She is seeking your assistance with her service-connected compensation claim for PTSD.



Polling Question #3 - continued

In addition to her own personal statement, what other evidence is required for Maria to prevail in her claim for service-connected compensation for PTSD? A. A diagnosis for PTSD. B. A diagnosis for PTSD and objective corroborating evidence of the in-

service assault. C. A diagnosis for PTSD, objective corroborating evidence of the in-service

personal assault, and medical opinion that her PTSD is the result of the in-service personal assault.

D. A diagnosis for PTSD, objective corroborating evidence of the in-service personal assault, medical opinion that her PTSD is the result of the in-service personal assault, and proof that she served in combat.


Polling Question #4

Shortly after the assault, Maria went on leave back to her hometown. While there, Maria’s parents were shocked by the change in her behavior: she was irritable, short tempered, and would not talk to them about what was wrong. She would not look them in the eye when she talked to them. She slept for long hours and seemed uninterested in moving forward with her life. When she returned to base, she was forced to see Owen on a daily basis. She was so distressed that she showed up late a couple of times to formation and received a counseling note. She self-medicated with marijuana and alcohol, and tested positive for THC. She was later discharged for drug abuse. (Please switch to polling.)


Polling Question #4 - continued

Which of the following would be helpful evidence to corroborate Maria’s personal statement about the sexual assault? A. Lay statements from her parents about her change in

behavior B. Evidence that she was late to formation twice C. Evidence of her drug use D. All of the above.


Common Issues with PTSD Claims

MISCONDUCT DISCHARGE—PTS symptoms may manifest in service and lead to a misconduct reason for discharge. SUBSTANCE ABUSE—If substance abuse is secondary to disabling condition, it may qualify as a secondary service-connected condition(s). MISDIAGNOSIS IN SERVICE—Personality disorder is common DIAGNOSIS OF SIMILAR CONDITIONS—Anxiety disorder, panic, phobia, OCD—each of these requires continuity of symptoms and treatment; PTSD does not.


Be patient if the veteran repeats his or her stories and

experiences, and avoid interrupting.

Do not misinterpret presenting symptoms of post-traumatic stress disorder.

COMMON SYMPTOMS OF POST-TRAUMATIC STRESS DISORDER INCLUDE:

Avoiding eye contact.

Feeling emotionally numb.

Irritability and agitation—especially when discussing the trauma.

Inability to remember key aspects of the trauma.

Avoiding activities, places, thoughts, or feelings that evoke memories of

the trauma.

If the veteran is in crisis, remain calm and be supportive. Make sure you have

relevant contact information on hand for crisis centers if necessary.

Tips: Communicating with People with PTSD

Cultural Competency Tip

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