Trial Magazine

For many years, the stigma associated with psychological disorders prevented veterans diagnosed with post-traumatic stress disorder (PTSD) from seeking treatment. But increased social acceptance and new research highlighting the need for improved mental health care for servicemembers have led the U.S. Department of Veterans Affairs (VA) to focus more on acknowledging PTSD and supporting veterans who suffer from it.¹

Helping veterans with PTSD get their VA benefits can be an incredibly rewarding—and challenging—experience. Before representing a veteran on any VA disability claim, you must have a solid grasp of the VA claims process.

The first step to represent claimants before  the VA is accreditation. Federal law prohibits anyone without VA accreditation from aiding veterans in their claims.² To become accredited, fill out VA Form 21a; attach any required documents, such as a certificate of good standing from your state bar; and mail or fax these to the VA Office of General Counsel.³

To successfully advocate for VA clients, you must be familiar with the Veterans Benefits Manual and the accompanying regulations.⁴ The manual breaks down how to navigate the VA system, and it provides tips and valuable information on topics such as common errors and challenges you may encounter during the claims process.

The VA operates two different disability benefits programs: VA compensation and VA pension.⁵ This article focuses on VA compensation, which includes the vast majority of veterans’ PTSD claims.

The VA considers disability compensation a monthly benefit paid to a veteran due to an injury, disease, or condition that is service connected.⁶ To be “service connected,” the disability must be “incurred or aggravated . . . in line of duty” during active military service.⁷ The phrase “in line of duty” covers anything that happened while the veteran was in service—he or she need not have been performing military duties when injured.⁸ The event could have occurred while the ­servicemember was off duty and off base. Latent medical conditions not discovered until years later, such as PTSD, are covered.⁹ Compensation is based on the degree of disability—not on financial need.¹⁰

Disability Claim Elements

To qualify for benefits, the veteran must prove a link between the injury and the current disability by providing competent evidence—typically through medical records from current medical providers and treatment records from the veteran’s time in the service.

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For veterans suffering from PTSD, the most important elements of proof is a medical diagnosis.

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Medical diagnosis. For veterans suffering from PTSD, the most important element of proof is a medical diagnosis.¹¹ PTSD is a mental disorder characterized by the Diagnostic and Statistical Manual for Mental Disorders (DSM-5) as a trauma- and stressor-related disorder.¹²

The criteria for a PTSD diagnosis vary, but most veterans suffering from this condition experience some of the following symptoms: emotional numb­ness long after the traumatic event; survivor’s guilt; nightmares about or flashbacks to the traumatic event; difficulty sleeping and concentrating; strong reactions to sounds mimicking the traumatic event; difficulty reconnecting emotionally with family and friends; and generalized anxiety, nervousness, or depression.¹³ The diagnosing doctor must be in good standing with the VA and must adhere strictly to the criteria set out in the DSM-4 or DSM-5 when diagnosing PTSD.¹⁴

Stressor. The veteran must provide evidence of a stressful event that occurred during military service.¹⁵ The incident need not have taken place during combat. PTSD stressors may occur in a war zone during mundane duties—or nowhere near a war zone. The VA also now ­recognizes an “in-service personal assault”—such as rape, ­physical assault, stalking, and harassment—as a stressor that could trigger ­service-connected PTSD.¹⁶

If a veteran was diagnosed with PTSD during service, the only necessary evidence of the stressful event is his or her personal account of the traumatic event that led to the diagnosis. Unless there is clear evidence the personal statement is false, the VA will accept the story as sufficient evidence that the event occurred.¹⁷

The requirements are slightly different if the veteran was diagnosed with PTSD after military service. In that case, the circumstances of the trauma make all the difference. If the stressor occurred during combat, the veteran’s personal statement is still the only evidence needed to satisfy this step.¹⁸ If the stressor is related to a persistent and debilitating fear of hostile military or terrorist activity, the only necessary evidence is the veteran’s story and a psychiatrist’s evaluation.¹⁹

In other circumstances, additional evidence may be required. For example, if the stressor is related to an in-service personal assault, the veteran may need to present evidence outside of military records to substantiate the claim.²⁰ A common example of such evidence is a lay statement that describes the stressor, either from the veteran or from someone who witnessed the event.

Service connection. After providing the PTSD diagnosis and evidence of a valid stressor, the final step is to prove the service connection between the diagnosis and the stressor. In most cases, this is straightforward, because the medical records proving the diagnosis contain details about the stressor. If the medical records do not contain such details, a veteran might have to offer additional evidence that the PTSD is indeed being caused by the alleged stressor and not some other event in the veteran’s life.

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The VA is supposed to err in the veteran's favor when deciding whether the information privided is adequate—especially in cases involving mental illness.

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Claims Assessment

The VA is supposed to err in the ­veteran’s favor when deciding whether the information provided is adequate—especially in cases involving mental illness. The VA has a duty to “sympathetically” read and develop a veteran’s claims by finding all potential claims raised by the evidence.²¹

If a veteran has filed a claim for a service connection to PTSD but is later diagnosed with a different mental disorder, the VA still must approve the claim as long as the claim description was similar to or encompassed the description of the newly diagnosed mental disorder, the veteran’s symptoms apply to the newly diagnosed mental disorder, and the information that the veteran submitted supports the VA claim.²²

Disability rating. If a veteran establishes the claim elements, the VA will assign a percentage of disability.²³ For example, the PTSD ratings schedule lays out, among other percentages, the following:²⁴

• 100 percent: The veteran experiences total occupational and social impairment. Symptoms may include a gross impairment in thought processes or communication; persistent delusions or hallucinations; and an inability to perform daily activities, such as grooming.
• 50 percent: The veteran experiences reduced reliability and productivity. Symptoms may include panic attacks that occur more than once a week, impaired judgment, disturbances of mood, and trouble with relationships.
• 0 percent: The veteran has been formally diagnosed with PTSD, but his or her symptoms do not interfere with occupational or social functioning or are not severe enough to require continuous medication.

A veteran’s disability rating often is a hotly contested issue. The nature of PTSD means that symptoms are often subjective, making it difficult for veterans to prove objectively that they are suffering from all the symptoms they are claiming. The VA claims process allows veterans to apply for an increase in their disability grade if their service-connected condition worsens.

Payment. The VA has established different payment amounts for each disability rating. The payment amount for these claims is calculated based on the degree to which the veteran’s disability would impair the average person earning a living wage in the United States.²⁵ The higher the disability rating or evaluation grade, the higher the veteran’s monthly payment. The only other factor taken into account is the veteran’s number of dependents. Individual earning ability is not considered.

Effective date. Because the claims process can be long, months or even years of retroactive benefits may be owed to the veteran when the VA compensation benefits are awarded. No interest is owed for these retroactive payments.²⁶

To set the date from which the monthly benefits will be paid, the VA will look at the date it received the claim and the date that the entitlement to the benefit arose, and it will choose the later date.²⁷ What constitutes receipt of a claim can vary widely, and practitioners should not accept the VA’s assertion of its date of receipt at face value.²⁸ Any discrepancies about the appropriate date of receipt can be raised in an appeal of any VA decision.

Filing a Claim

Initiate a claim by filling out VA Form 21-526EZ—the application for disability compensation and benefits—accurately and completely. Attach any required dependent records, such as marriage and birth certificates, as well as medical evidence, such as medical and hospital records. Mail or take the application and supporting documents to the closest VA regional office, or apply online.²⁹ Keep a copy of all completed forms and materials in case the benefits are denied or the documents are lost. Do not submit both a mail and online application, as this could cause confusion.

Appealing denials. If the regional office issues an initial denial, the veteran can request that a decision review officer (DRO) review the claim. You initiate a DRO review by filing a “Notice of Disagreement.”

If the DRO upholds the denial, you can file an appeal with the Board of Veterans Appeals.³⁰ Be aware that after receiving the VA’s decision, called the “Statement of the Claim,” any formal appeal (using VA Form 9) must be filed within either 60 days of the date on the Statement of the Claim letter or within one year of the original disability rating decision.

The case will move from the regional office to the Board of Veterans Appeals, which can consider new evidence and can seek medical opinions on its own before deciding an appeal. Further adverse decisions can be appealed to the Court of Appeals for Veterans Claims and then the Court of Appeals for the Federal Circuit. The U.S. Supreme Court has final jurisdiction.

Reapplying for benefits. Veterans may reapply if their claims are denied.³¹ Attorneys who are reopening claims should be aware that new evidence will be necessary for the VA to revisit the case. The evidence should address the reason the benefits were previously denied. Such evidence must be considered “new and material” and address how the VA erred in making its original decision.³²

Family Benefits

In some cases, benefits are available to certain members of an injured veteran’s family, such as dependents of a living veteran who is unable to support them or surviving family members of a veteran who has died.³³ Benefits can include death compensation, death pension, accrued benefits, and dependency and indemnity compensation (DIC).³⁴

Note that the benefits that eligible dependents and survivors receive are based solely on their qualifying family relationship to the veteran. Access to these benefits depends on the circumstances surrounding the ­veteran’s service, as well as the veteran’s ­relationship to the family member. For example, if the deceased veteran was receiving either a VA pension or VA disability compensation, the surviving spouse may be given the veteran’s benefits for the month that he or she died as a one-time payment.³⁵

Other benefits may be available to certain surviving family members of a deceased veteran. For example, if the veteran had previously filed VA claims, family members may be entitled to some lump-sum or accrued benefits.³⁶ In some cases, survivors are given access to monthly VA benefits such as DIC and the death pension.³⁷

Service-connected disabilities. When a veteran’s death certificate lists a service-connected disability as the primary cause of death, that will be enough evidence for the qualified surviving family members to receive death benefits.³⁸

However, if the service-connected disability is not the primary cause of death, the veteran’s dependents may still qualify for DIC if the veteran was continuously rated “totally disabled” for 10 years immediately preceding death, continuously rated totally disabled from the date of military discharge and for at least five years immediately preceding death, or if the veteran was a former prisoner of war continuously rated totally disabled for at least one year immediately preceding death.³⁹

Helping veterans with PTSD file VA disability claims can be difficult—you must adhere to strict rules at every step of the process. But the benefits of supporting veterans through this work greatly outweigh the challenges.

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Marc Whitehead is the founder of Marc Whitehead & Associates in Houston. He can be reached at www.disabilitydenials.com.

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Notes

1. Barton F. Stichman et al., Veterans Benefits Manual §3.6.1.2 (1999) [hereinafter Veterans Benefits Manual]. Between 11 percent and 20 percent of returning Iraq War veterans are estimated to have PTSD in a given year, with about 30 percent of Vietnam War veterans suffering from PTSD in their lifetimes. Nat’l Ctr. for PTSD, How Common Is PTSD?, U.S. Dep’t of Veterans Aff. (Oct. 3, 2016), www.ptsd.va.gov/public/PTSD-overview/basics/how-common-is-ptsd.asp.

2. See VA Off. of Gen. Couns., VA Accreditation Program: How to Apply for VA Accreditation as an Attorney or Claims Agent, www.va.gov/OGC/docs/Accred/HowtoApplyforAccreditation.pdf. More information about the accreditation process and requirements is available at www.va.gov/ogc/accreditation.asp. 

3. Special rules govern attorney compensation for work on VA claims. Generally, attorneys representing VA clients cannot charge for helping to file an initial application. Beyond the initial application, accredited attorneys may be compensated for services rendered in connection with a VA claim. The attorney must comply with all power of attorney requirements and may assess fees only at certain points in the process. See Senior Veterans Serv. Alliance, About Accreditation & Fees (2017), www.veteransaidbenefit.org/about_accreditation_and_fees.htm.

4. See Veterans Benefits Manual, supra note 1. 

5. A VA pension plan is a needs-based disability plan for elderly veterans. Pensions are paid when any total disability—whether service-connected or not—leads a veteran to require financial assistance. These payments are substantially less than VA compensation payments and are available only to certain veterans, such as those who served during a period of war and are now totally disabled. Veterans are paid a flat amount, and VA pension benefits are offset by other income, dollar for dollar. See Veterans Benefits Manual, supra note 1, at §3.1.1.1.

6. See U.S. Dep’t of Veterans Aff., Disability Compensation (2018), www.benefits.va.gov/compensation/types-disability.asp. 

7. 38 U.S.C. §101(16) (2017); 38 C.F.R §§3.1(k), 3.303(a) (2017). 

8. 38 U.S.C. §105; 38 C.F.R §3.1(m).

9. See U.S. Dep’t of Veterans Aff., Claims Based Post-Service—Diseases After Service (2018), www.benefits.va.gov/compensation/claims-postservice-index.asp.

10. See U.S. Dep’t of Veterans Aff., Types of Compensation (2018), www.benefits.va.gov/compensation/types-compensation.asp. 

11. See, e.g., Harth v. West, 14 Vet. App. 1, 4–7 (2000).

12. Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013). The DSM-5 superseded the DSM-4 in 2013. Practitioners should be familiar with the differences between the two versions because the DSM that applies to a particular claim depends on the timing of the diagnosis and when the claim was filed. See Veterans Benefits Manual, supra note 1, at §§3.6.3.1 and 3.6.3.2.

13. Veterans Benefits Manual, supra note 1, at §3.6.1.1.

14. 38 C.F.R. §§3.304(f), 4.125(a).

15. U.S. Dep’t of Veterans Aff., Claims for Service Connection (SC) for Post-Traumatic Stress Disorder (PTSD) (2017), https://tinyurl.com/ycfowwa6. 

16. Id.; Veterans Benefits Manual, supra note 1, at §3.6.4.4.1. 

17. Veterans Benefits Manual, supra note 1, at §3.6.4.1. 

18. Id. at §3.3.3. 

19. Id. at §3.6.4.3.

20. Id. at §3.6.4.4.1. See id. at §3.6.4.4 for discussion of other circumstances under which more evidence may be required.

21. See, e.g., Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378, 1383–84 (Fed. Cir. 2001); see also Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000).

22. Id.

23. See U.S. Dep’t of Veterans Aff., Benefit Rates (2018), www.benefits.va.gov/compensation/rates-index.asp.

24. 38 C.F.R. §4.130. The rating formula also includes descriptions of 70, 30, and 10 percent disability ratings. 

25. 38 C.F.R. §4.1.

26. See, e.g., Arnesen v. Principi, 300 F.3d 1353, 1359 (Fed. Cir. 2002). 

27. See 38 U.S.C. §§5110(a), 5111; 38 C.F.R. §§3.31, 3.400.

28. Veterans Benefits Manual, supra note 1, at §8.1.1. 

29. Id. at §12.4.2.1. Online applications can be submitted at www.ebenefits.va.gov/ebenefits/homepage.

30. See U.S. Dep’t of Veterans Aff., Veterans Appeals Improvement and Modernization Act of 2017, www.benefits.va.gov/benefits/appeals.asp.

31. See Vets.gov, Reopened Claim, U.S. Dep’t of Veterans Aff., www.vets.gov/disability-benefits/apply/claim-types/reopened-claim.

32. See U.S. Dep’t of Veterans Aff., Types of Claims (2018), www.benefits.va.gov/compensation/types-claims.asp. 

33. Veterans Benefits Manual, supra note 1, at §7.2.

34. Id. at §7.3.

35. Id. at §7.3.6.

36. Id. at §7.3.1.1.

37. Id. at §7.3.2.

38. U.S. Dep’t of Veterans Aff., Rating Dependency and Indemnity Compensation (DIC) and Death Compensation Claims (2017), https://tinyurl.com/y7r8fgxq; see also U.S. Dep’t of Veterans Aff., Federal Benefits for Veterans, Dependents and Survivors (2018), www.va.gov/opa/publications/benefits_book/benefits_chap13.asp.

39. See id.