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WEEK Four

Agenda

Special Compensation Issues

PTSDHerbicide exposure presumptionsGulf War service presumptions

Quiz

PTSDDirect Service Connection

Regulatory Changes inStressor Criteria to establishservice connection for PTSD

effective July 13, 2010

No Changes in Evaluation Criteria

To Appreciate the To Appreciate the New PTSDNew PTSD

Stressor CriteriaStressor CriteriaWe Must Understand We Must Understand

the Old Criteria!the Old Criteria!

OLD CRITERIA

(1) If the evidence establishes a diagnosis of posttraumatic stress disorder during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor.

(2) If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor.

(3) If the evidence establishes that the veteran was a prisoner-of-war under the provisions of §3.1(y) of this part and the claimed stressor is related to that prisoner-of-war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor.

(4) If a posttraumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident.

VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred.

To prove a service-connection claim for PTSD, the veteran is required to provide “credible supporting evidence that the claimed in-service stressor occurred.” That is, the veteran must show that the stressful event(s) which the he alleges resulted in PTSD actually happened during military service unless proof of combat experience by combat awards are consistent with claim.

Veteran’s oral history will not suffice in the absence of combat award.

PTSD does not need to have its onset during combat.

For example, vehicular or airplane crashes, large fires, floods, earthquakes, and other disasters would evoke significant distress in most involved persons.

The trauma may be experienced alone (rape or assault) or in the company of groups of people (military combat).

A stressor may not to be limited to just one single episode. A group of experiences also may affect an individual, leading to a diagnosis of PTSD.

For example, assignment to a grave registration unit, burn care unit, medivac unit (pilot, crew member), combat trauma unit (nurse, doctor) or liberation of internment camps could have a cumulative effect of powerful, distressing experiences essential to a diagnosis of PTSD.

PTSD as a medical finding can be caused by events which occur before, during or after service.

The relationship between stressors during military service and current symptoms will govern the question of service connection.

Symptoms must have a clear relationship to the military stressor as described in the medical reports.

PTSD can occur hours, months, or years after a military stressor. Despite this long latent period, service-connected PTSD may be recognizable by a relevant association between the stressor and the current presentation of symptoms.

This association between stressor and symptoms must be specifically addressed in the VA examination report and to a practical extent supported by documentation.

Every decision involving the issue of service connection for PTSD alleged to have occurred as a result of combat must include a factual determination by VA as to whether or not the veteran was engaged in combat, including the reasons or bases for that finding.

Any evidence available from the service department indicating that the veteran served in the area in which the stressful event is alleged to have occurred and any evidence supporting the description of the event are to be made part of the record. Corroborating evidence of a stressor is not restricted to service records, but may be obtained from other sources. If the claimed stressor is related to combat, in the absence of information to the contrary, receipt of any of the following individual decorations will be considered evidence of participation in a stressful episode:

Air Force CrossAir Medal with "V" DeviceArmy Commendation Medal with "V" DeviceBronze Star Medal with "V" DeviceCombat Action RibbonCombat Infantryman BadgeCombat Medical BadgeDistinguished Flying CrossDistinguished Service CrossJoint Service Commendation Medal with "V" DeviceMedal of HonorNavy Commendation Medal with "V" DeviceNavy CrossPurple HeartSilver Star

A combat veteran's lay testimony alone may establish an in-service stressor for purposes of service connecting PTSD .

However, a noncombat veteran's testimony alone does not qualify as "credible supporting evidence" of the occurrence of an in service stressor as required by 38 CFR 3.304(f).

After-the-fact psychiatric analyses which infer a traumatic event are likewise insufficient in this regard.

Personal assault is an event of human design that threatens or inflicts harm. Examples of this are rape, physical assault, domestic battering, robbery, mugging, and stalking.

If the military record contains no documentation that a personal assault occurred, alternative evidence might still establish an in-service stressful incident. Behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor.

In personal assault claims, secondary evidence may need interpretation by a clinician, especially if it involves behavior changes. Evidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician.

NEW PTSDSTRESSOR CRITERIA

All prior criteria remains in place. Nothing has been eliminated from prior regulation.

There has been a new paragraph added to the regulation which addresses those cases that cannot be resolved based on verified combat participation.

New Paragraph(3) 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 contracted, 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 claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor.

For purposes of this paragraph, ‘‘fear of hostile military or terrorist activity’’ means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.

The new rule will apply to claims:

•received by VA on or after July 13, 2010; •received before July 13, 2010 but not yet decided by a VA regional office; •appealed to the Board of Veterans' Appeals on or after July 13, 2010; •appealed to the Board before July 13, 2010, but not yet decided by the Board; and •pending before VA on or after July 13, 2010, because the Court of Appeals for Veterans Claims vacated a Board decision and remanded for re-adjudication.

What does this final regulation do? This final regulation liberalizes the evidentiary standard for Veterans claiming service connection for post traumatic stress disorder (PTSD). Under prior regulations governing PTSD claims, unless the Veteran was a combat Veteran, VA adjudicators were typically required to undertake extensive record development to corroborate whether a Veteran actually experienced the claimed in-service stressor.

How does this final regulation help Veterans?

The final regulation will simplify and streamline the processing of PTSD claims, which will result in Veterans receiving more timely decisions. A Veteran will be able to establish the occurrence of an in-service stressor through his or her own testimony, provided that:

(1) the Veteran is diagnosed with PTSD;

(2) a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted confirms that the claimed stressor is adequate to support a PTSD diagnosis;

(3) the Veteran's symptoms are related to the claimed stressor;

and

(4) the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service and the record provides no clear and convincing evidence to the contrary.

This will eliminate the requirement for VA to search for records, to verify stressor accounts, which is often a very involved and protracted process. As a result, the time required to adjudicate a PTSD compensation claim in accordance with the law will be significantly reduced.

What circumstances will still require stressor verification through DoD’s Joint Services Records Research Center (JSRRC) , VBA’s Compensation &Pension Service (C&P Service), or other entity if a Veteran claims that his or her stressor is related to a fear of hostile or terrorist activity?

The regulatory revision will greatly lessen the need for undertaking development to verify Veterans’ accounts of in-service stressors. Now, stressor development may only need to be conducted if a review of the available record, such as the Veteran’s service personnel and/or treatment records, is inadequate to determine that the claimed stressor is “consistent with the places, types and circumstances of the veteran’s service.”

As the regulatory revision seems to require an enhanced role for the examining VA mental health professional, whose role is it to determine whether the claimed stressor is consistent with the Veteran’s service?

VA adjudicators, not the examining psychiatrist or psychologist, will decide whether the claimed stressor is consistent with the Veteran’s service.

Is a Veteran's testimony about “fear of hostile military or terrorist activity” alone sufficient to establish a stressor?

Yes, if the other requirements of the regulation are satisfied, i.e., a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a PTSD diagnosis and that the Veteran's symptoms are related to the claimed stressor, and the stressor is consistent with the “places, types, and circumstances of the Veteran’s service.”

Are the stressors accepted as adequate for establishing service connection under new § 3.304(f)(3) limited to those specifically identified in the new regulation?

No. The examples given in the revised regulation do not represent an exclusive list in view of the use of the modifying phrase “such as” that precedes the listed examples. Any event or circumstance that involves actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, would qualify as a stressor under new § 3.304(f)(3).

The new regulation will provide fair evaluation for Veterans whose military records have been damaged or destroyed, or for whom no definitive reports of combat action appeared in their military records, even though they can report such actions and it is reasonable to believe that these occurred, given the time and place of service.

This will be especially beneficial to women Veterans, whose records do not specify that they had combat assignments, even though their roles in the military placed them at risk of hostile military or terrorist activity.

QUESTIONS ?QUESTIONS ?

Service Connection due to Herbicide Exposure

38CFR 3.309 (e)Requires exposure to herbicides by:

Service in Vietnam

OR other specific locations

List of recognized locations

OR proof of individual exposureLets Look at the Current List of Conditions Recognized to be the result of Exposure

Amyloidosis (AL)Chloracne or other acneform diseaseType 2 diabetes mellitusHodgkin’s disease Chronic lymphocytic leukemia (CLL)Multiple myelomaNon-Hodgkin’s Lymphoma (NHL)Acute and sub-acute peripheral neuropathyPorphyria cutanea tarda (PCT - liver disease)Prostate cancerRespiratory cancers (cancer of the lung, bronchus,

larynx, or trachea) Soft tissue sarcoma (other than osteosarcoma,

chondrosarcoma, Kaposi’s sarcoma, or mesothelioma)

Added to list of presumptive conditions:

All chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia CLL)

Parkinson’s disease

Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina)

Note : For purposes of this section, the term ischemic heart disease does not include:hypertensionor peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke,or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease.

How will the VA deal How will the VA deal with prior claims?with prior claims?

The Nehmer Court Decision applies!

What is the Nehmer Court Decision?

38 CFR 3.816This section states effective-date rules required by orders of a United States district court in the class-action case of Nehmer v. United States Department of Veterans Affairs for disability or death caused by a condition presumptively associated with herbicide exposure. Nehmer class member means:(i) A Vietnam veteran who has a covered herbicide disease; or(ii) A surviving spouse, child, or parent of a deceased Vietnam veteran who died from a covered herbicide disease.

(1) If VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose

(2) If the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose

Veterans who served on open sea ships off the shore of Vietnam during the Vietnam War are sometimes called “Blue Water Sailors.”

In January 2009, the US Supreme Court effectively let stand an earlier court ruling that requires a Veteran to have served on land or on the inland waterways of Vietnam in order to be presumed exposed to Agent Orange.

Agent Orange & Blue Water Sailors

General Counsel Opinion: Service on a deep-water naval vessel in waters off the shore of the Republic of Vietnam does not constitute service in the Republic of Vietnam.

38 CFR 3.307: A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.

Some ships offshore also conducted operations on the inland waterways of Vietnam. Veterans are presumed exposed to Agent Orange if they served aboard these ships when the ships were on the inland waterways of Vietnam anytime between January 9, 1962 and May 7, 1975.

PRESUMPTION: Sailors that served on ships confirmed to have served on the inland waters or on ships that are confirmed to have docked are presumed to have had feet on the ground. A presumption of feet on the ground results in presumed exposure to herbicides.

VA and DOD continue to cooperate to establish the expanding list of naval vessels that served on the inland waterways of Vietnam.

If no presumption can be shown Blue Water Veterans must show on a factual basis that they were exposed to herbicides during military service in order to receive disability compensation for diseases associated with herbicide exposure. 

Current list of ships.

QUESTIONS ?QUESTIONS ?

Presumptive Service Connection

Persian Gulf War – Undiagnosed illness

38CFR 3.317

Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness during the Persian Gulf War or to a degree of 10% or more not later than December 31, 2016.

Expanded List of Presumptive Conditions for Service Connection due to Service

in Iraq and Afghanistan

38 CFR 3.317: For Gulf War Veterans (Desert Shield / Desert Storm), VA has previously recognized certain unexplained clusters of symptoms existing for six months or more as associated with military service in the Gulf.  The illnesses must have appeared during active duty in the Southwest Asia Theater of Operations or by December 31, 2016, and be at least 10 percent disabling. 

The Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations during the Persian Gulf War.

The term Gulf War veteran means a veteran who served on active military, naval, or air service in the Southwest Asia theater ofoperations.

Illnesses include medically unexplained clusters of symptoms that have existed for six months or more, such as:

Chronic fatigue syndrome

Fibromyalgia

Irritable bowel syndrome

OR any diagnosed or undiagnosed illness that VA’s Secretary determines should be presumed to be associated with Gulf War service

Signs or symptoms of an undiagnosed illness may include:Abnormal weight loss Cardiovascular signs or symptoms Fatigue Gastrointestinal signs or symptoms Headache Joint pain Menstrual disorders Muscle pain Neurologic signs or symptoms Neuropsychological signs or symptoms Signs or symptoms involving the skin Signs or symptoms involving respiratory system Sleep disturbances

VA has added nine specific infectious diseases as associated with military service in Southwest Asia during the Gulf War from 1990 to the present and in Afghanistan on or after September 19, 2001. The nine diseases are:

Brucellosis Campylobacter jejuni Coxiella burnetii (Q fever) Malaria Mycobacterium tuberculosis Nontyphoid Salmonella Shigella Visceral leishmaniasis West Nile virus

QUESTIONS ?QUESTIONS ?

QUIZQUIZ