the military order of the purple heart march 2010 training ... training... · the military order of...

THE MILITARY ORDER OF THE PURPLE HEART

MARCH 2010 TRAINING

TUESDAY MARCH 23, 2010

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TABLE OF CONTENTS Tuesday

TOPIC PAGE NO.

Special Monthly Compensation..... ………………….………………………………..4 VA Proposed PTSD Rule………………………………..…....……………...……....20 Mental Disability Evaluation……………………………………..…....……...……....27 Game Changers: Recent Cases that Make a Difference…………………………………………….…..…....……...……....32

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SPECIAL MONTHLY COMPENSATION

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SPECIAL MONTHLY COMPENSATION (VBM 5.6)

I. General Information About Special Monthly Compensation (SMC) (38

U.S.C. § 1114)

A. SMC is paid in addition to the monthly service-connected compensation that is paid by assigning an evaluation under the Schedule for Rating Disabilities (SRD) in Part 4 of 38 C.F.R.

B. SMC compensates veterans for the service-connected loss or loss of use of

body parts or functions

1. Payments are for personal inconvenience, social difficulties and the severe nature of the disability

C. If any evidence shows possible entitlement to SMC, VA must consider

SMC entitlement D. Veterans mistakenly denied SMC may be awarded retroactive benefits if

they can show clear and unmistakable error II. Basis SMC Levels

A. SMC(k) – Includes Loss or Loss of Use, Aid and Attendance Benefits, and Housebound Benefits (38 U.S.C. § 1114(k))

1. Basic Information

a. Entitlement does not depend on the amount or severity of loss or loss of use

b. SMC(k) is paid in addition to other disability compensation c. Effective 12/1/09, the SMC(k) benefit is $96 for each loss or loss of

use

2. Loss or Loss of Use of a Creative Organ (38 C.F.R. § 3.350(a)(1))

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a. Veterans are entitled to SMC(k) if they have lost or lost the use of: i. One or both testicles ii. One or both ovaries iii. Another creative organ – a body part used for reproduction

b. Veterans who lost the use of a creative organ prior to service, but

have a service-connected loss of the organ are entitled c. Veterans who undergo voluntary sterilization prior to or during

service, but later have a service-connected loss of the organ are entitled

d. Loss of use secondary to service-connected impotence entitles a

veteran

3. Loss or Loss of Use of a Hand or Foot (38 C.F.R. § 3.350(a)(2))

a. Veterans are entitled to SMC(k) if their hand or foot does not effectively work i. They cannot grasp or manipulate objects with their hand, or ii. They cannot balance or push off with their foot

b. Automatically proven if the veteran has:

i. Extremely unfavorable complete ankylosis of the knee (it is stuck in an unfavorable position and cannot bend)

ii. Complete ankylosis of two major joints in an arm or leg iii. Shortening of a leg by at least 3 ½ inches

4. Loss of Use of Both Buttocks (38 C.F.R. § 3.350(a)(3))

a. Veterans are entitled to SMC(k) if they lose the use of both of their

buttocks i. There is severe bilateral damage to muscles in the buttocks

(must be a 50 percent evaluation under DC 5317, for each buttock), AND

ii. They cannot, without assistance, (1) Rise from a seated or stooped position and maintain

postural stability iii. “Assistance” includes using one’s own hands or arms, or a

special appliance

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5. Loss of Use or Blindness of One Eye (38 C.F.R. § 3.350(a)(4))

a. Veterans are entitled to SMC(k) if they are blind in one eye

i. They only perceive light and darkness (1) They cannot recognize test letters one foot away (2) They cannot distinguish objects, hand movement or the

number of fingers held up three feet away ii. They cannot perceive any light iii. An eyeball was removed after the eye muscles and optic nerve

were severed (enucleation)

6. Deafness in Both Ears (38 C.F.R. § 3.350(a)(5))

a. Veterans are entitled to SMC(k) for deafness in both ears i. Hearing loss in both ears is rated 100%

b. Examinations must be conducted in a VA authorized audiology clinic

7. Loss of Voice or Aphonia (38 C.F.R. § 3.350(a)(6))

a. Veterans are entitled to SMC(k) if they have a disability to a speech

organ that constantly prevents them from speaking b. Veterans can receive the benefit if they use a prosthetic device or a

non-speech organ to produce sounds

8. Loss of Breast Tissue (38 C.F.R. § 3.350(a))

a. Female veterans are entitled to SMC(k) for loss of 25% or more of tissue from a single breast or both breasts in combination (including loss by mastectomy or partial mastectomy), or following receipt of radiation treatment of breast tissue.

B. SMC(s) – Housebound or Total Rating Plus 60% (38 U.S.C. § 1114(s), 38 C.F.R. § 3.350(i))

1. Veterans may be entitled to SMC(s), or housebound benefits, if they

have one disability rated 100% or are entitled to total disability benefits

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based on individual unemployability (TDIU) (see Bradley v. Peake, 22 Vet. App. 280 (2008)) and: a. Have a disability or disabilities of a different body system rated at

least 60%, OR

b. Are permanently housebound due to service-connected conditions

i. Permanently housebound means that they are substantially confined to their home and it is reasonably certain the disability or disabilities causing the confinement will continue throughout their lives

2. SMC(s) is paid in addition to compensation awarded under the SRD.

As of 12/1/09:

a. It is $320 higher than monthly compensation for a 100% rating b. The monthly benefit is $2,993 for a veteran with no dependents

3. SMC(k) can be paid in addition to SMC(s)

C. Regular Aid and Attendance Under SMC(l) (38 U.S.C. § 1114(l), 38 C.F.R.

§ 3.352(a))

1. Veterans who need the regular aid and attendance of another person to perform the normal functions of daily life are entitled to SMC(l)

a. The need may be due to service-connected physical or mental

disabilities

2. SMC(l) is paid instead of disability compensation under the SRD 3. VA looks at the veteran’s condition as a whole, considering:

a. Whether the veteran requires regular care and assistance for protection from the hazards of daily life

b. Whether the veteran can do the following without assistance:

i. Dress and undress

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ii. Stay clean and presentable iii. Feed himself or herself iv. Use a restroom

4. Bedridden veterans meet the requirements for regular aid and

attendance

a. A disability requires the veteran to remain in bed

5. The veteran does not need to require constant aid and attendance, only regular aid and attendance

6. Aid and attendance does not need to be provided by a professional

a. Veterans who require the help of a professional may be eligible for a

higher level of SMC III. Higher SMC Levels

A. General Information

1. VA will not consider higher SMC levels until a veteran has established entitlement to basic SMC

2. Higher levels of SMC are paid instead of disability compensation under

the SRD

3. A veteran can receive SMC(k) in addition to a higher level of SMC, if SMC(k) is based on a different condition than the bases for the higher level of SMC

B. Levels of Loss, Loss of Use and Blindness for SMC(l) through (o)

1. Levels of Severity for a Disability of a Lower Extremity

a. Loss or Loss of Use - Leg Below Knee: loss below the knee or loss of use of a foot

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b. Loss or Loss of Use - Leg Above Knee: loss or loss of use of above the knee, or loss with complications preventing natural knee action with a prosthetic

c. Loss of Leg Near Hip: loss that prevents the use of a prosthetic leg

2. Levels of Severity for a Disability of an Upper Extremity

a. Loss or Loss of Use - Hand: loss below the elbow or loss of use of a hand

b. Loss or Loss of Use - Arm Above Elbow: loss or loss of use above

the elbow, or loss with complications preventing natural elbow action with a prosthetic

c. Loss of Arm Near Shoulder: loss that prevents the use of a

prosthetic arm

3. Levels of Severity for Visual Impairment

a. Vision - 5/200: 5/200 visual acuity or worse b. Vision - Light Perception Only: the ability only to recognize light

and darkness

c. Vision - No Light Perception: total blindness in both eyes or enucleation

4. Intermediate Rates

a. There are half step increases of SMC from level(l) to (o)

C. SMC(l) (38 U.S.C. § 1114(l))

1. Veterans are entitled to SMC(l) if they have any of the following conditions:

a. Loss or loss of use of both legs below the knee

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b. Loss or loss of use of one leg below the knee and loss or loss of use of one hand

c. Vision - 5/200 in both eyes

d. Need regular aid and attendance

e. Are permanently bedridden

2. Monthly payments effective 12/1/09:

a. $654 higher than compensation for a 100% rating b. $3,327 for a veteran with no dependents

D. SMC(l ½) (38 U.S.C. § 1114(p)(l ½))

1. Veterans are entitled to SMC(l ½) if they have any of the following conditions:

a. Loss or loss of use of a leg below the knee and loss or loss of use of

the other leg above the knee b. Loss or loss of use of a leg below the knee and loss or loss of use of

an arm above the elbow

c. Loss or loss of use of one leg above the knee and loss or loss of use of a hand

d. Vision - 5/200 in one eye and vision - light perception only in the

other eye



E. SMC(m) (38 U.S.C. § 1114(m))

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1. Veterans are entitled to SMC(m) if they have any of the following conditions:

a. Loss or loss of use of both hands b. Loss or loss of use of both legs above the knee

c. Loss or loss of use of an arm above the elbow and loss or loss of use

of a leg above the knee

d. Vision - light perception only in both eyes

e. Loss or loss of use of a leg below the knee and loss of the other leg near the hip

f. Loss or loss of use of a leg below the knee and loss or loss of use of

an arm near the shoulder

g. Loss of a leg near the hip and loss or loss of use of a hand

h. Vision - 5/200 in one eye and vision - no light perception in the other

i. Blindness in both eyes that causes a veteran to need regular aid and

attendance

2. Monthly payments effective 12/1/09


F. SMC(m ½) (38 U.S.C. § 1114(p)(m ½))

1. Veterans are entitled to SMC(m ½) if they have any of the following conditions:

a. Loss or loss of use of a leg above the knee and loss of the other leg

near the hip

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b. Loss or loss of use of a leg above the knee and loss of an arm near the shoulder

c. Loss or loss of use of an arm above the elbow and loss of a leg near

the hip

d. Loss or loss of use of a hand and loss or loss of use of an arm above the elbow

e. Vision - light perception only in one eye and vision - no light

perception in the other eye


a. $1,250 higher than compensation for a 100% rating b. $3,923 for a veteran with no dependents

G. SMC(n) (38 U.S.C. § 1114(n))

1. Veterans are entitled to SMC(n) if they have any of the following conditions:

a. Loss or loss of use of both arms above the elbow b. Loss or loss of use of a hand and loss of an arm near the shoulder

(amputation required)

c. Loss of both legs near the hip (amputation required)

d. Loss of a leg near the hip and loss of an arm near the shoulder (amputation required)

e. Vision - no light perception in both eyes


a. $1,503 higher than compensation for a 100% rating

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b. $4,176 for a veteran with no dependents

H. SMC(n ½) (38 U.S.C. § 1114(p)(n ½))

1. Veterans are entitled to SMC(n ½) if have the following condition:

a. Loss or loss of use of an arm above the elbow and loss of an arm near the shoulder



I. SMC(o) (38 U.S.C. § 1114(o))

1. Veterans are entitled to SMC(o) if they have any of the following conditions:

a. Loss of both arms near the shoulder

b. Two or more conditions that would entitle them to SMC(1) through

(n) if no condition was considered twice (38 C.F.R. § 3.350(e)(1)(ii))

c. Deafness in both ears rated at least 60% (at least one ear is service

connected) and service-connected blindness with vision in both eyes no better than 5/200 (38 C.F.R. § 3.350(e)(1)(iii))

d. Total service-connected deafness in one ear or deafness in both ears

rated at least 40% (at least one ear is service connected) and service-connected blindness with both eyes having only light perception or worse (38 C.F.R. § 3.350(e)(1)(iv))

e. Paraplegia (38 C.F.R. § 3.350(e)(2))

f. Helplessness (38 C.F.R. § 3.350(e)(4))


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J. Additional Disabilities that Increase the Level of SMC (38 U.S.C. §

1114(p))

1. Veterans with service-connected disabilities separate from the conditions that entitle them to SMC(l) through (n ½) may be entitled to increased SMC

a. If separate disabilities combine to 50% - 90%, SMC is increased a

half step (38 C.F.R. § 3.350(f)(3)) b. If separate disabilities combine to 100%, SMC is increased a full

step (38 C.F.R. § 3.350(f)(4))

c. SMC cannot be increased above SMC(o)

d. The separate disabilities must involve different body parts or systems than the disabilities that create entitlement to SMC(1) through (n ½)

2. Veterans may be entitled to higher SMC, depending on their degree of

disability, if they are blind in both eyes, and deaf or have lost or lost use of a hand or foot (38 C.F.R. § 3.350(f)(2))

3. Loss or loss of use of 3 extremities entitles a veteran to the next higher

of SMC (38 C.F.R. § 3.350(f)(5)) K. SMC(r-1) and SMC(r-2) - Special Aid and Attendance

1. Seriously disabled veterans may be entitled to SMC(r-1) Special Aid and Attendance (38 U.S.C. § 1114(r-1))

a. Requirements:

i. They are entitled to SMC(o), AND

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ii. They meet the requirements for Regular Aid and Attendance

(SMC(l))

b. Monthly payments effective 12/1/09:

i. $3,996 higher than compensation for a 100% rating ii. $6,669 for a veteran with no dependents

2. More-seriously disabled veterans may be entitled to SMC(r-2) Special

Aid and Attendance (38 U.S.C. § 1114(r-2))

a. Requirements:

i. They are entitled to SMC(o), ii. They meet the requirements for Regular Aid and Attendance

(SMC(l)),

iii. They require a licensed health care professional (or someone under the supervision of a professional) to provide them with personal health care services everyday in their home

b. Monthly payments effective 12/1/09:

i. $4,997 higher than compensation for a 100% rating ii. $7,650 for a veteran with no dependents

IV. The SMC Formula A. The formula described below can be used to determine the proper rate of SMC when there is a combination of loss (or loss of use) of the hands and feet, or vision impairment involving both eyes. In most instances this formula should help advocates determine the proper SMC rate between SMC(l) and SMC(o) and the formula should help advocates understand how the various levels of SMC are

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assigned. The formula is designed to help advocates understand SMC so that they can best represent their clients. B. Note that the formula does not cover all possible entitlements to SMC—in that sense it is not an all-inclusive formula. There are additional entitlements to SMC such as combined deafness and blindness that occur rarely and are not covered by this formula. C. When thinking about the various levels of SMC it helps to think in divisions of three. For example: • SMC at the levels established by 38 U.S.C. §§ 1114(l) through (o) generally

involve: anatomical loss (amputation) or loss of use of a lower extremity at three levels, anatomical loss (amputation) or loss of use of an upper extremity at three levels, or visual impairment at three levels;

• Lower Extremity - there are three levels of disability used to evaluate the higher levels of loss or loss of use of the lower extremity: (1) loss or loss of use of the leg below the knee (anatomical loss below the knee or loss of use of the foot); (2) loss or loss of use of the leg above the knee (anatomical loss above the knee or loss of use at a level, or with complications preventing natural knee action with prosthesis in place); or (3) loss of the leg near the hip (anatomical loss so near the hip as to prevent use of a prosthetic appliance);

• Upper Extremity -- there are three levels of disability used to evaluate the higher levels of loss of use of the upper extremity: (1) loss or loss of use of the hand (anatomical loss below the elbow or loss of use of the hand); or (2) loss or loss of use of the arm above the elbow (anatomical loss above the elbow or loss of use of an arm at a level, or with complications preventing natural elbow action with prosthesis in place); or (3) loss of the arm near the shoulder (anatomical loss so near the shoulder as to prevent use of a prosthetic appliance); and

• Visual Impairment -- there are three levels of disability used to evaluate the higher levels of SMC for visual impairment: (1) vision - 5/200 (5/200 visual acuity or less); or (2) vision - light perception only (blindness having light perception only); or (3) vision- no light perception (blindness without light perception in both eyes or enucleation (removal) of the eyes).

D. The formula is based on a point total. Even point totals (2, 4, 6, 8) correspond to SMC (l), (m), (n), and (o). Odd point totals (3,5,7) correspond to the intermediate SMC rates – SMC (l ½), (m ½), and (n ½). Please note that once 8 points (entitlement to SMC(o)) has been awarded, the formula should not be used.

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• SMC (l) = 2 points • SMC (l ½) = 3 points • SMC (m) = 4 points • SMC (m ½) = 5 points • SMC (n) = 6 points • SMC (n ½) = 7 points; and • SMC (o) = 8 points. E. Advocates using the formula must first determine if there is a combination of loss of use or anatomical loss of (1) both hands/arms; (2) both feet/legs; (3) a hand/arm and a foot/leg or (4) visual impairment of at least 5/200 in both eyes. If there is a combination, then the advocate should start assigning point totals. Advocates should note that while the point totals for feet/legs and hands/arms may be combined, vision impairment may not be combined with loss, or loss of use of the feet/legs or the hands/arms. • Assign one point for the lowest level of impairment that qualifies for SMC. For

example, loss or loss of use of a foot, loss or loss of use of a hand, or 5/200 visual acuity or less is worth one point.

• Assign two points for the second level of loss, loss of use, or vision impairment. For example, loss or loss of use of the leg above the knee (anatomical loss above the knee or loss of use at a level, or with complications preventing natural knee action with prosthesis in place) is worth two points.

• Assign three points for the highest level of loss, loss of use, or vision impairment.

• Add two extra points if there is loss, or loss of use, of both hands/arms. • Add one extra point if a veteran has additional single permanent disability or

combinations of permanent disabilities independently ratable at 50 to 90 percent.

• Add two extra points if a veteran has additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployability.

NOTE #1: Loss of use of a hand (1 point) and light perception only in one eye (2 points) cannot be combined. This veteran would be entitled to only two SMC (k)s.

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NOTE #2: SMC (o) can also be assigned when a veteran has two awards of SMC (l) through (n½). For example, if a veteran suffers both the loss of use of both feet and also is service-connected for 5/200 visual acuity or less in both eyes, that veteran would be entitled to two awards of SMC (l). Because the veteran is entitled to two SMC awards of (l) that veteran would automatically be entitled to SMC (o). NOTE #3: If a veteran is entitled to two SMC awards of SMC (l) or higher and either one of the combined disabilities that made the veteran entitled to SMC (l) also causes the veteran to be in need of regular aid and attendance (or a combination of the disabilities cause the veteran to be in need of aid and attendance), then the veteran would be entitled to SMC (r)(1).

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VA PROPOSED PTSD RULE

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VA PROPOSED PTSD RULE

VETERANS SERVICE ORGANIZATON

COMMENTS

1. Last August VA proposed to amend rule (38 CFR 3.304(f)) concerning

stressor determinations for PTSD. In their effort to liberalize the evidentiary

standard for proving an in-service stressor, they have proposed to add another

category based on the veteran's fear of hostile military or terrorist activity in which

veterans can be afforded a more relaxed standard in proving an in-service stressor.

2. Prior to the proposal of the new rule, with few exceptions, veterans had to

provide corroboration of their in-service stressor through the assistance of the VA

stressor verification process or by providing evidence in addition to their lay

statement in support of incident(s) claimed to cause in-service stressor(s).

3. Three categories currently allow for an in-service stressor to be proven by

the veteran's lay testimony alone:

1) When a veteran is diagnosed with PTSD in service 2) When a veteran was engaged in combat with enemy and the claimed

stressor(s) is related to that combat or 3) When a veteran was a prisoner-of-war and the claimed stressor(s) is related

to prisoner-of-war experience(s). (See 38 CFR §§ 3.304(f)(1)(2)(3)). 4. The proposed rule is intended to address current warfare circumstances. VA

pointed out that stressors associated with war zone deployment are not limited to

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combat. It is intended to acknowledge the inherently stressful nature of places,

types, and circumstances of service where the fear of hostile military or terrorist

activities is ongoing.

5. Adopting the Institute of Medicine's PTSD research, the VA acknowledged

limiting stressors proven by a veteran’s statement only to combat situations may

fail to recognize stressors in a war zone or in combat aftermath such as:

1) Vigilance against unexpected attacks, 2) Absence of defined front line, 3) Difficulty of distinguishing enemy combatants from civilians 4) Ubiquity of improvised explosive devices.

6. The Proposed Rule:

“If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contract, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in -service stressor.” (74 Fed.Reg. 42,617 (Aug. 24, 2009)

7. The VA states in the Federal Register:

“VA proposes to limit the confirmation of a claimed stressor to examination by VA psychiatrist or psychiatrists or psychologist whom VA has contracted to ensure standardization and consistency of mental

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health evaluations and reporting of these evaluations which will be based upon uniform VA examination protocols.” (74 Fed. Reg. at 42618)

8. The VA accepted 174 comments on the proposed rule by VSOs, veterans

groups, congressional members and other interested parties. The VSOs were

generally happy with the VA’s effort to expand the relaxed evidentiary standard in

verifying the required PTSD in-service stressor(s). However, it is clear that the

biggest concern with the rule by VSOs and other interested groups is the

restriction of stressor confirmation and diagnosis to VA psychologists and

psychiatrists.

9. In their comments, the VSOs gave numerous reasons for their objection to

restriction of in-service stressor verification and diagnosis to VA mental health

care providers. The VSOs pointed out that the restriction as to VA

psychiatrist/psychologists and VA contractors was contrary to established VA

statute, regulation and case law and contrary to the paternalistic nature of VA.

10. A) Statute. The statutory basis for objection to the restriction of in-service

stressor verification and diagnosis to VA personnel:

38 USC § 5125 provides:

For purposes of establishing any claim for benefits a report of a medical examination administered by a private physician that is provided by a claimant in support of a claim for benefits under that chapter may be accepted without a requirement for confirmation by an

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examination by a physician employed by the Veterans Health Administration if the report is sufficiently complete to be adequate for the purpose of adjudicating such claim.

11. In comments, VSOs objected that 38 USC § 5125 provides that private

medical evidence must be considered by VA when adjudicating compensation

claims. The statute makes clear that a private medical opinion alone is enough to

grant service connection.

12. B) Regulation: The regulatory basis for objection to the restriction of in-

service stressor verification and diagnosis to VA personnel:

1) 38 CFR § 4.125(a) provides that:

Diagnoses of all mental disorders must conform to American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) (1994)

14. In comments, VSOs stated that 38 CFR § 4.125(a) indicates that if medical

evidence of a private psychiatrist/psychologist follows DSM-IV, there is no reason

why VA should not accept the evidence under the new PTSD rule.

15. Other VSOs agreed that the VA can expect conformity to the DSM-IV by

private physicians.

16. 2) Under 38 CFR § 3.159(a)(1):

Competent medical evidence (necessary for proving a claim for VA benefits) means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or

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opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.

17. VSOs commented that 38 CFR § 4.125(a) makes no distinction between

evidence from a VA physician/VA-contract physician and evidence from a private

physician.

18. 3) 38 CFR § 3.159(c)(1) (excerpt):

Duty to Assist. VA is to make reasonable efforts to obtain all records relevant to deciding claim to include all Federal records and records not in Federal custody including private medical care providers.

19. VSOs pointed out that 38 CFR § 3.159(c)(1) makes no distinction between

various types of records indicating private medical records are on equal footing

with VA medical records.

20. Many veterans organizations agreed.

21. 4) 38 CFR § 3.303(a) (excerpt):

Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.

22. C) VA case law authority:

23. 1) Guerrieri v. Brown, (4 Vet.App. 467 (1993),

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VSOs submitted that in discussing 38 CFR 3.303(a), the CAVC court in

Guerrieri stated, “The VA historically has adjudicated claims and

administered benefits in a paternalistic, non-adversarial setting.”

24. 2) Brown v. Gardner, 513 U.S. 115, 117-18 (1994), Hodge v. West, 155

F.3d 1356, 1361 n.1 (Fed. Cir. 1998); Allen v. Brown, 7 Vet.App. 439, 446

(1995)(en banc).

25. Other VSOs commented that the proposed rule precluding use of medical

reports from private psychiatrists/psychologists unlawfully narrows the scope of a

statute (38 USC § 5125), an action prohibited by the U.S. Supreme Court.

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MENTAL DISABILITY EVALUATION

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Mental Disability Evaluation The symptoms listed after “such as” are non-exclusive examples. Not one

symptom listed after “such as” has to be shown to be evaluated 10, 30, 50, 70

percent.

In Mauerhan v. Principi, 16 Vet. App. 436, 440-44 (2002), the CAVC stated that:

• “First, the symptoms recited under both the 30% and 50% ratings in 38 C.F.R. §

4.130 follow the phrase "such symptoms as." By definition, "such as" means

"for example" or "like or similar to." See WEBSTER'S NEW WORLD

DICTIONARY (3rd coll. ed. 1988) 1337.”

• “The use of the term "such as" demonstrates that the symptoms after that phrase

are not intended to constitute an exhaustive list, but rather are to serve as

examples of the type and degree of the symptoms, or their effects, that would

justify a particular rating.”

• Accordingly, any suggestion that the Board was required, in complying

with the regulation, to find the presence of all, most, or even some, of the

enumerated symptoms is unsupported by a reading of the plain language of

the regulation.”

70%

Occupational and social impairment, with deficiencies in most areas, such as

work, school, family relations, judgment, thinking, or mood, due to such

symptoms as: suicidal ideation; obsessional rituals which interfere with

routine activities; speech intermittently illogical, obscure, or irrelevant; near-

continuous panic or depression affecting the ability to function

independently, appropriately and effectively; impaired impulse control

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(such as unprovoked irritability with periods of violence); spatial

disorientation; neglect of personal appearance and hygiene; difficulty in

adapting to stressful circumstances (including work or a worklike setting);

inability to establish and maintain effective relationships

LOOK FOR SYMPTOMS THAT MAY CAUSE:

1. Occupational and social impairment

a. If this is a claim for increase – usually occupational and social

impairment has been conceded

2. Deficiencies in most areas

3. “Areas” defined as:

a. work,

b. family relations,

c. judgment,

d. thinking,

e. school

f. mood

50% Occupational and social impairment with reduced reliability and

productivity due to such symptoms as: flattened affect; circumstantial,

circumlocutory, or stereotyped speech; panic attacks more than once a week;

difficulty in understanding complex commands; impairment of short- and

long-term memory (e.g., retention of only highly learned material, forgetting

to complete tasks); impaired judgment; impaired abstract thinking;

disturbances of motivation and mood; difficulty in establishing and

maintaining effective work and social relationships

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2. Reduced reliability and productivity 30%

Occupational and social impairment with occasional decrease in work

efficiency and intermittent periods of inability to perform occupational tasks

(although generally functioning satisfactorily, with routine behavior, self-

care, and conversation normal), due to such symptoms as: depressed mood,

anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep

impairment, mild memory loss (such as forgetting names, directions, recent

events)





2. Occasional decrease in work efficiency

3. Intermittent periods of inability to perform occupational tasks

DEFINITIONS

• IMPAIRMENT

o Weakening, damage, or deterioration, especially as a result of injury

or disease

• DEFICIENT

o A lack or shortage of something -- not up to a normal standard

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• FAMILY RELATIONS

o Behavioural, psychological, and social relations among various

members of the nuclear family and the extended family. (from online

medical dictionary)

• JUDGEMENT

o The capacity to assess situations or circumstances and draw sound

conclusions; good sense

• THINKING

o A way of reasoning; judgment

• MOOD

o The emotional state or state of mind of an individual.

• RELIABILITY

o dependability:

• PRODUCTIVITY

o Relative measure of the efficiency of a person - A measure relating a

quantity or quality of output to the inputs required to produce it.

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http://www.mondofacto.com/facts/dictionary?Behavioural

http://www.mondofacto.com/facts/dictionary?psychological

http://www.mondofacto.com/facts/dictionary?social

http://www.mondofacto.com/facts/dictionary?relations

http://www.mondofacto.com/facts/dictionary?members

http://www.mondofacto.com/facts/dictionary?nuclear+family

http://www.mondofacto.com/facts/dictionary?family

GAME CHANGERS: Recent Cases that Make a Difference

I. Game Changing Case a. Diagnosis

i. What constitutes a diagnosis? ii. If there are multiple diagnosis for a single disability does the

veteran need to file multiple claims? 1. Ex. Vet claims SC for PTSD, but is diagnosed with

another mental disorder, not PTSD 2. Does the vet have to start from scratch?

b. Clemons v. Shinseki -- Background

i. Claimed PTSD ii. VA medical records show anxiety disorder and others

iii. BVA denied because there is no diagnosis of PTSD

c. Clemons v. Shinseki – Holding i. Vet was incompetent to self diagnose mental condition

ii. Evidence showed claim was for any mental disability that may reasonably be encompassed, based on:

1. Description of symptoms 2. Description of claim 3. Information gathered/submitted in support of claim

iii. Key Quotes 1. “Appellant did not file to receive benefits only for a

particular diagnosis, but for the affliction his mental condition, whatever that is, causes him.”

2. Vet’s “claim for benefits based on PTSD encompassed benefits based on an anxiety disorder and/or a schizoid disorder b/c evidence developed during processing of claim indicated that the symptoms for which [he] was seeking VA benefits may have been caused by an anxiety and/or schizoid disorder”

More details:

In Clemons v Shinseki, 23 Vet.App. 1(2009), the veteran expressly filed an

original claim of entitlement to service connection for posttraumatic stress disorder (PTSD), which was subsequently denied by the BVA on the grounds that the claimant had not been diagnosed with PTSD. The veteran had been variously

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diagnosed with an acquired psychiatric disorder, anxiety disorder NOS with PTSD features, and schizoid personality disorder, but had not been diagnosed with PTSD. The Court held that the “Board erred when it failed to weigh and assess the nature of the current condition the appellant suffered when determining the breadth of the claim before it.” The Court, noting the multiple diagnoses of record, ruled that the the BVA should have construed the veteran’s claim not as a “claim to receive benefits only for a particular diagnosis, but for the affliction his mental condition, whatever that is, causes him.”

d. Advocacy Tips i. VA must determine scope of claim

ii. Single claim can encompass more than 1 condition iii. Argue for a broad reading of any claim where veteran is

incompetent to diagnose 1. Ex. Vet claims SC for ulcers, but has dx of GERD,

chronic gastritis, and hiatal hernia 2. Ex. Vet claims SC for asbestosis, but has dx of pleural

plaques and pleural effusions

e. So what? i. Even though vet claimed SC for a specific condition, VA may

be obligated to consider SC for other diagnosed conditions as well—

ii. If the vet mentions or if vet’s records relate symptoms of the other conditions

More detailed look at claims raised in the record:

Where the evidence in the claims file reasonably raises the question whether the claimant is entitled to a benefit that the claimant did not expressly request, the claimant can appeal the RO’s failure to adjudicate that benefits claim to the BVA.

The VA has a duty to give a sympathetic reading to the claimant’s statements and determine all potential claims reasonably raised by the record. Beverly v. Nicholson, 19 Vet. App. 394, 404-05 (2005). This duty is imposed on the Board regardless of whether the veteran is represented by counsel. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). When a veteran files a claim the VA is obligated to not only consider the claims specifically mentioned by the veteran, but also all benefits to which the veteran might be entitled that are supported by the evidence of record.

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The Federal Circuit has held on several occasions that the decision in

Roberson v. Principi requires the VA to give a sympathetic reading to the veteran's filings by determining all potential claims raised by the evidence and applying all relevant laws and regulations.

Moreover, there are several directives in the VA Adjudication Procedures

Manual, M21-1 Manual Rewrite (Manual M21-1MR) that stress that all inferred issues also must be adjudicated. For example:

Manual M21-1MR, Part III, subpart iv, 2.A.1. states: "Review cases when they are received to determine whether there is a proper claim and an issue within the jurisdiction of the rating activity. Consider the existence of proper service and statutory or regulatory bars, and sufficiency of evidence necessary for resolution of all issues, including inferred ones."

Manual M21-1MR, Part III, subpart iv, 6.B.2. states: "When preparing a decision, the Rating Veterans Service Representative (RVSR) must recognize, develop, and/or decide all issues, whether expressly claimed, implied, informal, potential, mandated, or ambiguous."

Manual M21-1MR Part III, subpart iv. 6.B.3. states: "An inferred issue is derived from the consideration or outcome of related issues. Often the primary and inferred issues share the same fact pattern."

As a result of the VCAA, the VA now not only has to infer some claims that

were not specifically discussed by the claimant, the VA is obligated to comply with the duty to assist and the duty to notify with respect to those inferred claims.

The U.S. Court of Appeals for the Federal Circuit has made clear on a

number of occasions that the VA “has a duty to ‘fully and sympathetically develop a veteran’s claim to its optimum.’” Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (quoting Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). What this means is that the VA must “give a sympathetic reading to the veteran’s filings by ‘determining all potential claims raised by the evidence, applying all relevant laws and regulations.’” In direct appeals, this rule applies regardless of whether the veteran was represented by an attorney or a veterans service officer in the proceedings before the agency.

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As Beverly v. Nicholson, 19 Vet.App. 394 (2005), demonstrates, if the RO

and the BVA violate this principle by failing to determine that a claim for benefit X is also a claim for benefit Y, the claimant can remedy this error by appealing to the Court of Appeals for Veterans Claims. In Beverly, a veteran with service connected schizophrenia appealed to the Board of Veterans’ Appeals from a regional office decision denying his claim for reimbursement of the costs he incurred at a residential care facility. While the reimbursement claim was pending before the BVA, the veteran submitted a medical examination report that stated that the veteran required the daily personal health care services of a skilled provider without which he would require hospital, nursing home, or other institutional care. The Board denied the claim for reimbursement, but did not address the issue whether the veteran was entitled to special monthly compensation (SMC) on the ground that he required aid and attendance due to the severity of his service connected disability.

The veteran appealed the Board’s decision to the Court of Appeals of

Veterans Claims and retained an attorney who realized that there was a strong argument that the BVA should have recognized from a sympathetic reading of the record that the evidence reasonably raised the issue of entitlement to SMC. Accordingly, the attorney argued to the CAVC on behalf of the veteran that the Board violated its duties under Roberson by failing to recognize a claim for SMC. The Court held that the case should be remanded to the Board for it to determine in the first instance whether the veteran’s “submissions and arguments reasonably raised an informal claim . . . . for SMC for aid and attendance.” The result of this victory is that if the Board were to agree on remand that an informal claim for SMC was raised and the veteran thereafter were to prevail on this informal claim, the date the veteran submitted the medical report indicating that he was in need of aid and attendance would serve as the date of claim for purposes of determining the effective date.

II. Power of Lay Evidence a. Davidson v. Shinseki – Background

i. Widow claimed DIC ii. Death Certificate indicated accidental drowning

iii. Widow claimed death due to anxiety disorder related to service iv. VAE said it “not at least as likely as not” that death was result

of acquired psych disability v. Widow submitted written & oral testimony that vet committed

suicide b/c of a mental disorder related to service

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b. Davidson v. Shinseki – BVA decision i. BVA found Widow “not competent to provide a probative

(persuasive) opinion on a medical matter such as the etiology of a disability”

c. Davidson v. Shinseki – CAVC decision i. CAVC agreed, said lay statements “do not eliminate the need

for a valid medical opinion establishing a nexus between [a veteran’s] death and the in-service disease”

d. Davidson v. Shinseki – Federal Circuit Holding i. 38 U.S.C. § 1154(a) requires VA to give due consideration to

“all pertinent medical and lay evidence” ii. Fed Cir has held that lay evidence can be competent and

sufficient to establish a diagnosis: 1. Layperson is competent to identify the condition 2. Layperson is reporting a contemporaneous medical

diagnosis 3. Lay testimony describing symptoms at the time supports

a later diagnosis by a medical professional iii. CAVC & VA were wrong to conclude that “a valid medical

opinion” was required to establish nexus e. Advocacy Tips

i. Can sometimes argue lay testimony alone competent to show a diagnosis (Jandreau)

ii. Can sometimes argue lay testimony competent to establish nexus

1. Ex. Consistent complaints of headaches from service, later diagnosed as migraines

a. Competent to establish nexus? 2. Ex. Consistent complaints of anxiety, nightmares,

flashbacks from service, later diagnosed as PTSD a. Competent to establish nexus?

f. So what? i. lay testimony may not be categorically rejected in cases where

"the determinative issue involves either medical etiology or a medical diagnosis

ii. More room for advocates to use lay statements iii. Are medical opinions as crucial as we thought?

More detailed look at use of lay evidence for medical nexus:

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Over the years, several decisions of the U.S. Court of Appeals for Veterans Claims have suggested that where a disability is the type of condition that can be observed by a lay person, medical evidence may not be necessary to establish the existence of a current disability. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the U.S. Court of Appeals for the Federal Circuit clarified the appropriate use of lay evidence stating: “Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” This case obvouisly served as much of the foundation for Davidson.

The CAVC appeared to apply this principle in Barr v. Nicholson, 21

Vet.App. 303 (2007). There, the veteran sought service connection for varicose veins. The veteran had submitted his own lay testimony that visible varicose veins appeared during service. His service medical records were silent as to the condition during service. After reviewing several medical treatises on the nature of varicose veins, the Court held that “because varicose veins may be diagnosed by their unique and readily identifiable features, the presence of varicose veins is not a determination "medical in nature" and is capable of lay observation.” The Court concluded that credible lay evidence alone is competent to establish the existence of varicose veins. Other conditions that have been found capable of lay observation include flat feet and ear fungus.

III. Conditions Not on Presumptive List a. SC due to herbicide Exposure

i. Two Questions 1. Can a veteran win service connection for a disability

claimed as due to herbicide exposure under a theory of direct service connection?

2. If so, what type of medical nexus opinion is necessary? b. Stefl v. Nicholson – Background

i. Vet claimed SC for disease not on presumptive AO list ii. Positive, but speculative, medical nexus opinion

iii. VA obtained Medical Nexus Opinion 1. Dr. opined vet’s disability not related to AO 2. Reasoned disease not on VA’s list of diseases presumed

to be related to Agent Orange exposure c. Stefl v. Nicholson – Holding

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i. Direct service connection must be considered if raised by the record

ii. The absence of the vet’s diagnosed illness on the list at 38 C.F.R. § 3.309(e) is insufficient reason to deny SC

d. New Case – Polovick v. Shinseki i. Vet claimed SC for malignant glioma, a cancer not listed on

presumptive list ii. Positive evidence -- Veteran provided three medical nexus

opinions: 1. Dr. Dixon

a. Vet’s treating physician b. Malignant glioma “may well be” connected to

veteran’s exposure to AO 2. Dr. Bash

a. Board Certified radiologist/neuroradiology b. Glioma “more likely than not” related to AO

exposure c. Based on review of studies used for IOM report

i. IOM required “minimum 95% confidence level” to make presumptive list

ii. Bash’s analysis of IOM studies & other studies revealed it was “more likely than not”

d. Long time lapse b4 emergence of tumor consistent w “time lags associated w evolution” of this type of tumor

3. Dr. Montemarano a. Board certified radiologist, section chief at Walter

Reed b. Tumor “likely” due to AO exposure c. Agreed w Dr. Bash’s statistical analysis

i. Noted 2004 IOM update re: brain tumors and AO

d. Interval between exposure to AO & emergence of tumor consistent w/ time period expected for induction and growth

e. No other risks factors f. AO can cause genetic mutations

e. Polovick v. Shinseki – BVA Decision i. VA provided Medical Nexus Exam & Opinion

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ii. Drs. Mullick and Murakata 1. Opined glioma unlikely due to AO 2. Reasoned IOM’s 2002 study found “limited/suggestive

evidence of no association” to brain tumors 3. New literature didn’t show different data than that used

by IOM f. Polovick v. Shinseki – Holding

i. Absence of illness on presumptive list insufficient to deny SC ii. BVA cannot reject SC for sole reason that there is insufficient

statistical evidence to add disease to presumptive list iii. Allowing BVA to do so would result in denial of SC “simply

because there is no presumptive service connection” g. So what? h. Stefl & Polovick mean:

i. Possible for vet to win SC for disability claimed as due to herbicide exposure under a theory of direct service connection

ii. Gives advocates ideas re: how to win these claims iii. What does it take to win?

i. Advocacy Tips i. Winning SC for disability not on list & claimed as due to AO is

difficult ii. Need strong medical opinions

iii. Opinions can address IOM report, other medical literature, whether vet has no other risk factors, timeline re exposure & emergency of tumor, statistical confidence level

IV. Congenital Conditions

a. Quirin v. Shinseki – Background i. Vet medically “acceptable for induction”

ii. Separation exam indicated impaired vision 20/60 in right & 20/100 in left

iii. 1992 VAE—vet has congenital optic atrophy b. Quirin v. Shinseki – BVA Holding

i. BVA cited VAGC that congenital defects “more or less stationary in nature” & congenital diseases “capable of improving or deteriorating”

ii. BVA concluded condition was a congenital defect iii. And there was no additional disability superimposed upon that

defect c. Quirin v. Shinseki – Court Holding

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i. BVA failed to apply VAGC opinion properly 1. VA Gen. Coun. Prec. 82-90

a. Provides guidance to determine if a disability is eligible for compensation

b. Divides conditions between congenital defects and congenital diseases

c. Diseases can get compensation d. Defects cannot

ii. If a injury or disability is superimposed on a defect, possible to receive compensation for the superimposed injury

iii. Evidence of worsening condition must be addressed iv. Presumption of soundness applies b/c entrance exam silent as to

eyes v. BVA improperly assumed vet’s visual acuity poor at induction

as at separation vi. Needed to address whether clear & unmistakable evid rebuts

pres of aggravation or if increase due to natural progress d. Advocacy Tips

i. Pay attention to any worsening in service 1. May indicate disability is disease not defect 2. Review VAGC opinion for guidance

ii. If VA inconsistent in labeling disability, demand clarification iii. Outline the proper VA inquiry for the claim adjudicator—

whether condition is static or changing e. Note Johnson (L.E.) v. Shinseki, __ Vet.App. __, No. 07-0987 (Jan.

21, 2010) i. BVA denied vet SC for spina bifida b/c it was a congenital or

developmental defect 1. No evid of superimposed disability 2. It was a congenital defect it could not have been

aggravated by service (since defects are not able to worsen or improve)

ii. The CAVC affirmed f. So what?

i. It opens up more possibilities for veterans and advocates ii. Advocates may be able to get a medical opinion as to whether

the vet’s condition is a defect or disease process (i.e., capable of worsening or improving)

iii. Quirin affirms that advocates and the VA should always look for:

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1. evidence of worsening in medical records—that may indicate whether defect or disease and is relevant to aggravation

2. advocates should always look for a superimposed condition—especially in cases like Johnson where there is clear evidence that condition is a defect

More detailed look at congenital conditions:

VA regulations specify that "congenital or developmental defects," "absent, displaced or supernumerary parts," "refractive error of the eye," "personality disorder and mental deficiency" are not considered diseases or injuries for purposes of disability compensation. 38 C.F.R. §§ 3.303(c), 4.9 (2009); see 38 C.F.R. 4.127 (2009). This prohibition on compensation for congenital and developmental defects has been upheld by the Courts.

Unfortunately, it is not always clear whether a particular condition should be

treated as a "defect" or as a "disease." The distinction is important because service-connected disability compensation is available for a congenital or hereditary disease that first manifests in service or that is aggravated by service, but compensation is not available for a congenital or developmental defect even if the defect is first identified during service.

If there is a question about whether a condition should be considered a

"defect" or a "disease," advocates and veterans SHOULD treat the condition as a disease unless compensation has expressly prohibited for the condition. One common rule of thumb is that a congenital condition that is static and does not change (such as being born with only one kidney) is a defect while a congenital condition that can improve or deteriorate (such as flat feet) is a disease.

Change, however, is not the only factor considered. In Terry v. Principi, 340

F.3d 1378, 1382-86 (Fed. Cir. 2003), the U.S. Court of Appeals for the Federal Circuit said that presbyopia (the age-related eye changes which lead one to move reading material farther away) results from the normal aging process and upheld the VA's position that presbyopia is neither a "disease" or an "injury" for which compensation can be paid.

Remember also, if a disease or injury is superimposed upon a congenital or

developmental defect during a veteran's period of service, the resulting disability may be eligible for service connection.

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