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PTSD Don't let it Win - FILE A CLAIM with VA

How To File a Claim for PTSD

To win a claim for service-connected benefits for post-traumatic stress disorder (PTSD), the veteran must provide evidence of three criteria:

A. A current medical diagnosis of PTSD (according to the diagnostic criteria in the DSM-IV);

B. Credible supporting evidence that the claimed in-service stressor occurred; and,

C. Medical evidence of a causal nexus b/n the current diagnosis of PTSD and the claimed in-service stressor(s).

See Sizemore v. Principi, 18 Vet.App. 264, 269 (2008); see also 38 C.F.R. 3.304(f) (2007).  At first, these three criteria seem simple enough to satisfy.  However, once a claimant truly understands what the VA is looking for with respect to each of these elements, his or her chances of having the VA grant the PTSD claim the first time around improves tremendously.  More importantly, if you put your service-connection claim for PTSD together in the correct sequential order, then the likelihood of the VA granting your claim is even better. 

A. The First Element – A Current Diagnosis of PTSD

By way of review, posttraumatic stress disorder is a mental disorder characterized by the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV) as an anxiety disorder.  It appears in the VA’s Schedule for Rating Disabilities under 38 C.F.R. 4.130 as diagnostic code 9411.  

The first element is probably the most clear-cut: the veteran must have a current diagnosis of PTSD from a medical professional who is competent to diagnose the disorder.  There is no way around this; if the veteran wants the VA to compensate him or her for a medical condition such as PTSD, then at some point, the veteran will need to be evaluated by a physician.  I have had clients whose PTSD is so severe that leaving the house was an incredible challenge.   In cases like that, the doctor will need to explain in writing that the veteran’s PTSD is severe such that regular treatment and, or counseling is counter-productive.  Still, at the very least, the veteran will need a physician’s or a psychiatrist’s diagnosis of PTSD to ultimately prevail on a claim for VA service-connected benefits.

It’s worth noting that, in 1999, the VA amended its PTSD regulation, 38 C.F.R. 3.304(f) to remove an earlier requirement of a “clear diagnosis” of PTSD.  The amendment is retroactively effective to March 7, 1997.  Unfortunately, VA decisions denying a veteran’s PTSD claim due to lack of a “clear diagnosis” continue to reappear at various levels of the VA adjudication system.  Such a decision should be appealed.  If the claim is unappealable because it has already become final, a claim can be filed to revise the previous final decision based on clear and unmistakable error (C&UE).

The reference to the “correct sequential order” is important here.  Quite simply, without documentation of a current diagnosis of PTSD, the VA will not proceed to the next step of reviewing the veteran’s claimed in-service stressor(s) and/or researching to see if they can be corroborated.

B. The Second Element – Credible Supporting Evidence re the Claimed In-Service Stressor(s)

The second element needed is credible supporting evidence that the claimed in-service stressor(s) happened.  (The veteran would have reported these to the doctor and, or described them in a written statement to the VA.)  See 38 CFR § 3.304(f).  As an initial matter, if the veteran’s military records document any award or decoration establishing his/her participation in combat or his MOS (military occupation specialty) is obviously combat related, then corroboration of an in-service stressor is not required because the VA must accept these awards as proof of the veteran’s exposure to combat.  For veterans whose military records are void of any notation regarding combat exposure, it can be a much tougher battle to win (excuse the pun).

It may help the veteran seeking service connection for PTSD to think of this second element in this way: in basic terms, an in-service stressor is the event(s) that are the underlying cause of the veteran’s current PTSD.  So, just as a veteran seeking service connection for a current disability (other than PTSD) must point to some in-service injury (or show that its onset was coincident with his military service), so too must a veteran with PTSD be able to point to some documentation (other than his written statement) that the in-service event happened.  Note that the rating authority in the VA Regional Office is prohibited by law from determining whether or not the veteran’s claimed in-service stressor is enough to cause PTSD – that is for a doctor to determine.  See VA Fast Letter No. 08-08, p.3, “Additional Guidance on Posttraumatic Stress Disorder (April 7, 2008).

Over the years, decisions issued by the U.S. Court of Appeals for Veterans Claims (the Veterans Court – which is not part of the VA) have done a great job of clarifying the kinds of evidence that will be accepted as corroborating a veteran’s claimed in-service stressors.  The current case law from the Veterans Court makes clear that a veteran’s unit records need not refer to the veteran by name in order to provide credible supporting evidence of the veteran’s claimed stressors.  See, e.g., Pentecost v. Principi, 16 Vet.App.124 (2002) (holding that the Board erred in “insisting that there be corroboration of the veteran’s personal participation”); see also Suozzi v. Brown, 10 Vet.App. 307, 310-11 (1997) (evidence that veteran’s company received heavy casualties during an attack, even without specific evidence that the veteran was “integrally involved in the attack” was sufficient to reopen the veteran’s claim for PTSD).

One key part of the second element is the consistency of the veteran’s description of the claimed in-service stressor(s).  If the veteran is constantly changing his story as to what is causing his PTSD, the VA will use these changes in the veteran’s story to question the veteran’s veracity and, or integrity.  Thus, the veteran should try to ensure that the written description(s) of the claimed in-service stressors is factually similar to what he or she reports to the doctor.  Another important aspect to remember is that the corroborating evidence of an in-service stressor need not be limited to official military documentation.  True, the VA prefers official military records as the corroborating documentation of an in-service stressor, but the Veterans Court has made clear that corroborating evidence can come from many different sources.  

It’s important to know that the VA cannot deny a veteran’s claim for PTSD simply because the VA could only corroborate one of the veteran’s claimed in-service stressors, even though he described several more.  Also, according to the VA’s own procedural manual (the M21-1MR), it is improper for the VA to deny a PTSD claim with a valid diagnosis of PTSD because of an unconfirmed stressor until the case has been reviewed by the JSRRC, the National Archives and Records Administration or the Marine Corps University Archives.  If any of these facilities request additional information and/or a more specific description of the stressor(s), the VA is required to request the additional information from the veteran.  If the veteran does not respond, that may be valid grounds for the VA to deny a claim based on an unconfirmed stressor. 

C. The Third Element – The Medical-Nexus Opinion

The veteran will need more than just a diagnosis of PTSD from the medical professional.  He or she will need a medical-nexus opinion from a doctor too.  This is an important document in a veteran’s claim because a doctor’s medical-nexus opinion links or relates a veteran’s current medical condition to that veteran’s period of military service. However, for PTSD claims, the medical-nexus opinion must explain with some specificity the underlying cause or etiology for the veteran’s PTSD.  In that vein, the U.S. Veterans Clinicians Guide contains the criteria that must be used by examiners at VA Medical Centers in performing initial evaluations and review examinations for PTSD disability claims.

Though it is frustrating proof of the VA bureaucracy, it can happen that a veteran submits medical documentation of a PTSD diagnosis and a VA examiner’s favorable medical-nexus opinion, but still is denied because the VA was unable to corroborate the veteran’s claimed in-service stressor(s).  Even more maddening is that once the VA does receive credible evidence of stressor corroboration, the VARO will then schedule another VA medical-nexus evaluation to re-confirm the etiology of the PTSD.  Unfortunately, it is within the VA’s purview to do this, and though it is frustrating, the veteran is encouraged to attend all C&P exams.  Otherwise, it’s an easy way for the VA to deny the claim – again.