PTSD Attorney for Veterans

Post-traumatic stress disorder (PTSD) is a condition many veterans have heard of, but are not familiar with its intricate parts, or even if they are suffering from PTSD. PTSD is widely misunderstood and underestimated by veterans and the VA alike. This section helps to explain 1) what PTSD is, 2) how service connection for PTSD is established, 3) what to expect from a Compensation & Pension (C&P) exam for PTSD, 4) how PTSD is rated by the VA, 5) how to receive Total Disability Based on Individual Unemployability, 6) what to do after the VA decision, 7) and helpful resources.

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What is PTSD?

PTSD is a mental health condition classified as a trauma and stressor-related disorder by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). The DSM-V has described PTSD as re-experiencing or re-living a traumatic event (the “stressor”), typically accompanied by increases in arousal, nightmares, flashbacks, difficulty sleeping, concentrating, and remembering. Requirements for PTSD include exposure to a traumatic event which meets stipulations and symptoms from each one of four symptom groups: intrusion, avoidance, negative alterations in cognitive function and mood, and alterations in arousal and reactivity. The sixth criterion deals with the duration of symptoms, the seventh measures functioning, and the eighth criterion sets apart symptoms as non-attributable to substances or a co-occurring medical condition.

Symptoms of PTSD

Include avoiding situations that are reminiscent of the traumatic event (memories may be triggered by sights, sounds, or even smells), negative changes in beliefs and feelings, feeling jittery or always on alert and lookout for threats, being startled or agitated by loud noises or surprises, and experiencing the need to have your back to the wall in a public place. To be diagnosed with PTSD, these symptoms must create significant distress or impairment in a veteran’s social and occupational functioning.

A veteran’s PTSD can be caused by many experiences, including combat, in-service personal assault or harassment, military sexual trauma, or other traumatic events. Not everyone exposed to trauma will develop PTSD; in fact, most do not. PTSD is often life altering for those who do develop it. Symptoms of PTSD can be debilitating not only for the sufferer, but for their family too. Also, many veterans suffering from PTSD resort to self-medication with drugs or alcohol. Sadly, there is a perceived stigma around veterans with PTSD, which causes many veterans not to seek treatment.

If you or a veteran you know is has PTSD, remember there is nothing shameful about suffering from PTSD – it is a disease that can be dealt with by proper care and rehabilitation.

  • Three elements are required to establish service connection for PTSD to rate VA Disability Compensation benefits. First, a veteran must have a current diagnosis of PTSD from a medical expert who is competent to diagnose the disorder. Second, there must be credible evidence that the claimed in-service stressor happened. And third, there must be medical evidence of a causal link between the current symptoms and the claimed in-service stressor. You may use the following information to determine what evidence is needed to establish service connection for PTSD.

Step One

For the VA to recognize a veteran’s PTSD to award service connection, the diagnosis provided needs to be by a qualified medical professional. Many veterans are treated by VA or private therapists that are not doctors or psychologists (licensed mental health social workers or licensed counselors), but the VA will not accept these opinions initially diagnosing PTSD. The VA Clinician’s Guide (downloadable from the VA website), states that professionals qualified to perform PTSD Compensation and Pension examinations (C&P exams) needs to have doctoral-level training in psychopathology, diagnostic methods, and clinical interview methods. They must have a working experience of the DSM-V and clinical practice in diagnosing veterans with PTSD and treating them. Professionals with the requisite qualifications include board-certified psychiatrists and licensed psychologists, psychiatric residents and, psychology interns under close supervision of an attending psychiatrist or psychologist.

The diagnosis must also conform to the diagnostic criteria contained in the DSM-V. The typical reason the VA denies claims for PTSD is because the VA believes that a veteran does not meet all the diagnostic criteria in the DSM-V for PTSD. A veteran could be suffering from extreme PTSD, but if their symptoms do not fall within the diagnostic criteria for PTSD, then the veteran does not have PTSD, and service connection gets denied. The diagnostic criteria in the DSM-V for PTSD are listed below.

After the stressor criterion, there are four symptom groups: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion is duration of symptoms, the seventh measures functioning, and the eighth criterion explains when symptoms are not attributable to a substance or co-occurring medical condition. Note that some criterions require only one symptom, while others require multiple symptoms.

Criterion A: Stressor

The veteran was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows: (one required)

  • Direct exposure.
  • Witnessing, in person.
  • Indirectly, by learning that a close relative or close friend was exposed to trauma. If the event involved actual or threatened death, it must have been violent or accidental.
  • Repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders, collecting body parts; professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures.

Examples: Combat participation, military sexual trauma, witnessing a roadside bomb go off a few vehicles ahead, learning that a family member was killed in a car accident, or being part of a burial crew. Note that number three above may be the most difficult way to satisfy Criterion A. For instance, if the person involved is not a “close” friend, but the veteran made a decision that put that person in a dangerous situation and the person dies, this may not be enough to satisfy Criterion (A) even though the veteran may be traumatized because he or she feels responsible.

Criterion B: Intrusion Symptoms

The traumatic event is persistently re-experienced in the following way(s): (one required)

  • Recurrent, involuntary, and intrusive memories.
  • Traumatic nightmares.
  • Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness.
  • Intense or prolonged distress after exposure to traumatic reminders.
  • Marked physiologic reactivity after exposure to trauma-related stimuli.

Criterion C: Avoidance

Persistent efforts to avoid distressing trauma-related stimuli after the event: (one required)

  • Trauma-related thoughts or feelings.
  • Trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations).

Criterion D: Negative Alterations in Cognition and Mood

Negative alterations in cognitive function and mood that began or worsened after the traumatic occurrence: (two are required)

  • The inability to recall key or specific details of the traumatic event (usually from dissociative amnesia; not due to head injury, or substance abuse).
  • Persistent (often distorted) negative beliefs and expectations about themselves or the world at large (“I am not worthy or safe,” “The world is too dangerous or unsafe”).
  • Persistent distorted blame of self or others seen as responsible for the traumatic event or for the following consequences.
  • Negative trauma-related emotions (fear, horror, anger, guilt, or shame).
  • Noticeably diminished interest in (pre-traumatic) significant activities or hobbies.
  • Feelings of being alienated from others (detachment or estrangement).
  • Constricted affect: inability to experience and feel positive emotions.

Criterion E: Alterations in Arousal and Reactivity

Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event: (two required)

  • Irritable or aggressive behavior
  • Self-destructive and/or reckless behavior
  • Hypervigilance
  • Exaggerated startle response
  • Problems in concentration and focusing
  • Sleep disturbance or insomnia

Criterion F: Duration

  • Persistence of symptoms (in Criteria B, C, D, and E) for at least one month or longer.

Criterion G: Functional Significance

Significant symptom-linked distress or functional impairment in daily life (e.g., social, occupational).

Criterion H: Exclusion

Disturbances are not due to medication, substance abuse, or other illness.

Specify if this is with dissociative symptoms.

  • In addition to meeting the criteria for a diagnosis, a veteran experiences higher levels of the following in reaction to trauma-related stimuli:
    • Depersonalization: experience being an outside observer or detached from oneself (feeling as if “this is not happening to me” or one were in a dream/ an out of body experience).
    • Derealization: experiencing unreality, distance, or distortion from normal life (“things are not real”).

Specify if this is with delayed expression.

  • Full diagnosis will not be met until at least six months after the trauma(s), even though onset of symptom(s) may occur immediately after the occurrence.

The VA may reject a competent diagnosis of PTSD because said diagnosis is not “clear” – this is the incorrect standard for the VA to use and appealable. To be met, this first element of service-connection for PTSD, the diagnosis will detail whether it is “as likely as not” the veteran is presently suffering from PTSD. Plus, the VA cannot reject a legitimate diagnosis of PTSD without an adequate statement of reasons for its decision. The VA must point to other medical evidence in the record to bolster its conclusion that the veteran is not currently suffering PTSD, stated differently, the VA cannot say a veteran does not have PTSD because it does not believe the veteran’s doctor.

If you have a current diagnosis of PTSD from an expert who is competent to diagnose the disorder, move on to Step Two.

NOTE: The DSM-V was published May 18, 2013 but not adopted in the Code of Federal Regulations until August 4, 2014 (79 F.R. 45093). The DSM-V is used for claims received by the VA or pending at a regional office on August 4, 2014, but the rule change does not apply to claims certified for appeal to the Board of Veterans’ Appeals or pending before the Court of Appeals for Veterans Claims or the Court of Appeals for the Federal Circuit. Therefore, a few PTSD cases are evaluated using the DSM-IV.

Step Two

The veteran must demonstrate there is credible evidence showing the claimed in-service stressor occurred. This element of establishing service-connection for PTSD is usually the hardest one. If you believe it would be difficult to corroborate your stressor, other options are available.

PTSD Diagnosed During Active Military Service

If veterans are diagnosed with PTSD during active military service, there is a lower burden of proof for evidence of corroboration. If the stressor relates to that service, the stressor is consistent with the circumstances of that service, and there is no clear and convincing evidence to the contrary, veterans’ personal statements can establish the occurrence of the stressor. This applies to claims pending on or filed after October 29, 2008.

If a veteran is released from service because of a mental disorder resulting from a highly stressful event in service, the veteran will be awarded a disability rating of not less than 50 percent and be scheduled for reevaluation within 6 months.

If this is met, then proceed to Step Three.

PTSD Related to Fear of Hostile Military or Terrorist Activity

Veterans diagnosed with PTSD related to fear of hostile military or terrorist activity do not need to provide stressor corroboration evidence so long as a VA psychologist or psychiatrist has diagnosed the PTSD and the stressor relates to the veterans’ fears of hostile military or terrorist activity. If the veterans’ stressors are adequate for diagnosis of PTSD, those stressors are consistent with circumstances of the veterans’ service, and there are no clear and convincing pieces of evidence to the contrary, the veterans’ personal statements can be used to establish the occurrence of the stressor.

Veterans must have experienced, witnessed, or been confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of themselves or others, such as from an actual or potential improvised explosive device; vehicle-embedded 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 must have involved a psychological or psycho-physiological state of fear, helplessness, or horror.

This lower burden of proof applies to all veterans, regardless of where they experience the fear of hostile military or terrorist activity, but it does not include sexual assault or hostile criminal actions of US military personnel directed against other US military personnel. It only applies to claims received on or pending after July 13, 2010. If veterans’ have a previously denied PTSD claim, in order to reopen under this lower burden of proof standard, they would need a lay statement of their fear of hostile military or terrorist activity and service records showing service in an area with exposure to hostile military or terrorist activity.

While this lower burden of proof requires a diagnosis by a VA psychologist or psychiatrist, diagnosis by a non-VA practitioner and a veteran’s statement describing an in-service stressor relating to a fear of hostile military or terrorist activity will often be enough to activate the VA’s duty to assist and then schedule a VA PTSD exam.

If this is met, then proceed to Step Three.

NOTE: Veterans attempting to get service-connection for PTSD under this lower burden of proof standard where the VA psychologist or psychiatrist’s opinion states that the doctor does not believe that the veteran’s PTSD is related to a fear of hostile military or terrorist activity, should find corroborating evidence of the stressor, which another doctor can base a medical nexus opinion under Step Three.

PTSD for Combat Veterans

Like veterans who were diagnosed with PTSD during service, there is a lower burden of proof for combat veterans for stressor corroboration evidence. The VA admits that a veteran who was engaged in combat, their primary focus is carrying out the mission, not taking notes on their injuries. If a veteran’s stressor is related to combat, that stressor is consistent with the circumstances of the veteran’s service, and there is no clear and convincing evidence to the contrary, the veteran’s own statements may establish the occurrence of the stressor.

The VA Adjudications Procedures Manual M21-1MR (available online at the VA website) defines combat as“personal participation in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. It includes presence during such events either as a combatant, or service member performing duty in support of combatants, such as providing medical care to the wounded.”

Even brief participation in combat mandates the lower burden of proof. Depending on the circumstances, it is important to remember that veterans may have an additional step in proving that they were in combat.

For some veterans, this is simple due to military service records or their military occupational specialty (MOS) showing combat service. For other veterans, it may not be obvious they served in combat. For these veterans, the VA looks to not only military service records and MOS, but also military decorations, buddy statements, letters to family and friends, newspapers or regimental or divisional newsletters, photographs, or any credible evidence that helps to establish whether the veteran was in combat. If a veteran argues that they were in combat action that cannot be confirmed by their MOS or military service records, the VA makes a finding as to the credibility of their statement and provides reasons for its finding on whether the veteran engaged in combat, while applying the “benefit of the doubt” rule.

Here, if a veteran proves they served in combat, identifies a credible stressor, and they have a current diagnosis of PTSD (see step 1), the VA has to develop the evidence. The VA looks for evidence of combat service and additional evidence the combat stressor took place. A good idea for veterans is to request records too. Service records may be found at the National Personnel Records Center, the US Army and Joint Services Records Research Center, the Marine Corps Archives and Special Collections, and the National Archives.

Having established the veteran served in combat, the VA also accepts lay evidence as proof the stressor happened during combat even in the absence of official records or supporting clinical evidence. If the veteran does not have any other evidence the stressor occurred other than their own statement, as long as there is not clear and convincing evidence to the contrary, the VA is must apply the benefit of the doubt rule and accept the veteran’s own statement that the stressor occurred.

If this is met, then proceed to Step Three.

Special Rules for In-Service Personal Assault or Trauma as Stressor

Veterans suffering from PTSD resulting from a service-connected personal assault or trauma such as rape, physical assault, domestic battering, robbery, mugging, stalking, or harassment, the stressor can be corroborated through other evidence if military records do not document a personal assault occurred. The VA has an obligation to assist these cases (commonly referred to as Military Sexual Trauma or MST) and must inform the veteran evidence other than that found in service records may be submitted. Alternative sources for evidence may be things like records from law enforcement, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy or STD tests; statements from family members, roommates, fellow service members, or clergy; a diary/journal; or evidence of behavior changes like a requesting transfer, deterioration in work performance, substance abuse, depression, panic attacks, or anxiety. These cases are frequently denied, because the VA has trouble compensating disabilities that are less obvious than physical disabilities, and because the nature of MST cases makes it rare there is a formal report/complaint in the record. The VA must rely on alternative evidence as listed above, and typically fails to give evidence the weight that is required. PTSD claims in general are difficult, but MST claims are more difficult.

In a June 2014 report from the Government Accountability Office, since 2008, there have been 29,000 veterans who sought Disability Benefits for MST. PTSD is the most common disability as a result of MST, with major depressive disorder and anxiety disorder being the second and third in occurrence. The overall approval rating for PTSD related to MST is up from 28 percent in 2010 to 50 percent in 2013, this is lower than the 55 percent approval rating for other forms of PTSD (Note: According to a report by the ACLU and Service Women’s Action Network, between 2008 and 2012, the award of MST-related PTSD claims was lower than the rate of other PTSD claims by a decent percent each year). Also, of note is a wide disparity among regional offices: in some ROs as few as 14 percent of claims were approved, while other ROs approved up to 88 percent of claims. The GAO report stated regional offices are having difficulty applying broad MST standards and differ wildly in interpretations of the evidence in the claim file.

Another step in the GAO report is the variation in thoroughness of C&P examinations for MST claims. During the only training for VA examiners who are conducting MST exams, less than 5 percent of the one-hour course for PTSD examiners is devoted to MST. This shows there is a lot of training that needs done on the VA side for MST claims, which is discouraging for veterans. Just remember that while MST claims take time, they are not impossible to win. The key is to get the VA to look at the stressor evidence in the right context to show a behavior change that corroborates the stressor.

If this is met, then proceed to Step Three.

If none of the above applies, stressor corroboration is needed.

If a veteran’s claim for PTSD does not fit the above categories, there must be evidence corroborating the stressor, meaning credible supporting evidence that the claimed in-service stressor occurred. The supporting evidence must include more than the veteran’s own statement. Unless there is no reasonable possibility assistance by the VA would aid in proving the claim, the VA must assist the veteran in securing evidence supporting the existence of a stressor.

For a veteran’s service records to corroborate the stressor, they do not need every detail of the event. If there is evidence of a stressful event and that evidence shows the veteran’s personal exposure to the event, that might be sufficient corroborating evidence. Credible supporting evidence may come from lay sources such as fellow veteran statements.

An example where a veteran needs stressor corroboration evidence is if they were in a car accident during service, the car accident was not related to combat and, the veteran was not diagnosed with PTSD until after leaving service. Here, the veteran needs to corroborate the car accident happened. This may be with a police report, hospital records, statements of the other individuals involved in the accident, or other supporting evidence. Another situation where corroboration evidence would be required is when a veteran was involved in an accident during a non-combat situation, such as a fire. Hospital records, notations in service records, and statements of persons who witnessed the fire would be helpful.

It is important to note that if a veteran’s account is contradicted by official records, the VA may reject the veteran’s account, but if the veteran produces evidence to back up their story, the benefit of the doubt rule will apply.

If this is met, then proceed to Step Three.

The final step of establishing service connection for PTSD is proving a causal nexus between the current symptomatology and the service-connected stressor. This requires an opinion by a medical expert. The evidence must show the stressor was a contributory basis for the current symptoms. If there is a clear relationship between the stressor in service and a current diagnosis of PTSD, veterans who have service medical records showing no evidence of mental disorder can still be entitled to service-connection for PTSD, even if it develops years after service.

Note: This step can be complicated if a veteran has more than one stressor. For example, a veteran in a car accident in service where their friend was killed, and there are service records and hospital records backing up this stressor. The second stressor was the vet in their bunk and fellow service members came in and threw a grenade at him. The grenade was a dummy grenade, but the veteran did not know, and they still have nightmares about it. There is no independent verification of this stressor. For the veteran to receive service-connected compensation for their PTSD, the doctor must relate their PTSD directly to the car accident in service because it is the only stressor with independent verification, and the second stressor does not qualify under the lower burden of proof situations mentioned in Step Two. The VA will always send veterans to a Compensation and Pension exam to see if the veteran is entitled service-connected Disability Compensation benefits for their PTSD.

In Step Three Compensation and Pension Exams for PTSD will be explained.

Step Three

When a veteran files a VA claim for PTSD, even when the veteran has a valid diagnosis of PTSD from a qualified medical professional, the VA requires the veteran undergo a Compensation and Pension Examination (C&P exam) to verify the diagnosis, assess the severity of the PTSD, and determine if it is service-connected. This is normal, even when a VA doctor has diagnosed PTSD. The purpose of a C&P exam is not treatment, or to find out if the veteran has receivied treatment at a VA medical facility, the doctor conducting the examination will almost never be the same doctor who the veteran went to see for treatment. This means even if a veteran has been seen by a VA doctor at a VA facility, and that doctor has diagnosed PTSD, the veteran will need a C&P exam with a different doctor, who may not reach the same diagnosis.

Remember that C&P examiners examine thousands of veterans every year, and most of the examiners do not have the patience, time, or resources to figure out how a veteran feels or to delve further to learn what the veteran’s symptoms are. It is important that veterans be honest and forthright with C&P examiners. Remember, the VA almost always gives more weight to the diagnosis of the C&P examiner than the treating doctor and if the C&P examiner does not think a veteran meets the diagnostic criteria for PTSD, or diagnoses a veteran with a different psychiatric disorder/personality disorder, that is the opinion the VA will consider as the most persuasive, and the veteran’s PTSD claim can and will be denied.

Psychiatric disorders sometimes are difficult to differentiate as many disorders have the same symptoms. For example, a veteran who suffers from PTSD will often suffer from symptoms of anxiety and depression. A veteran who is being treated at the VA for PTSD may do a C&P examination and be told that they do not meet the criteria for PTSD and, are instead, suffering an anxiety disorder. Mental disorders are evaluated under the same rating formula under 38 C.F.R. s. 4.130, so in some ways the actual diagnosis matters less than the rating which is assigned. Many veterans who suffer from PTSD want the VA to recognize that they suffer from that condition in particular, not another similar disorder.

The VA uses criteria from the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V) to evaluate whether a valid diagnosis of PTSD exists. All the DSM-V criterion must be met for a diagnosis of PTSD to be valid. If this threshold is not met, the VA will decide the veteran does not have a valid claim for PTSD. It is important that all symptoms be documented, veterans are diagnosed by qualified medical professionals, and veterans be open and honest with treating providers so the VA has a legitimate idea of the impact PTSD has on their lives. In order for the C&P examination to be acceptable, it must describe the symptomatology, identify and adequately describe the stressor, acknowledge and reconcile prior reports demonstrating a mental disorder which do not support a diagnosis of PTSD, and conform to the DSM-V criterion.

At the Exam:

It is a good idea for the veteran to take a witness to the examination such as a spouse, adult child, or close friend. A witness is important because it is easy for veterans to forget details about the exam, let alone deal with the stress that veterans experience when evaluated by the VA’s C&P examiners. The veteran should take the witness into the examination room; this request is frequently denied by the VA. If the request to take a witness into the examination is denied, the veteran should proceed with the exam. Failure to cooperate with a C&P examination can result in denial of the veteran’s claim. The veteran should ask for the examiner’s business card, so the veteran can ensure the person doing the examination was the one who wrote the final report.

The veteran should bring a written list of symptoms, even the embarrassing ones, to refresh their memory during the exam. What veterans sometimes feel are unimportant details could be the key to success in their claim. Additionally, if one of the veteran’s treating medical providers provided a favorable opinion in the matter, it does not hurt for the veteran to give the favorable opinion to the C&P examiner for consideration prior to the exam.

One of the more intense symptoms of PTSD is nightmares or night terrors. As awful as nightmares can be, they only warrant a 30 percent disability rating on the VA’s rating formula. It is important to consider other symptoms like anger and difficulty dealing with authority. Symptoms such as these, though not as frequent or intense, show the true severity of the disability. These symptoms might be better observed by family members, so written statements from close family members or friends could be helpful as well.

The VA has recently begun to heavily advocate the use of Disability Benefits Questionnaires (DBQs) by C&P examiners. The VA has said the DBQs were created to help streamline the VA claims process, and to help flesh out the record if they determine the record is insufficient to decide on a claim. There are more than 70 DBQs, covering the vast majority of conditions for which a veteran may receive disability compensation, including PTSD (Note: The DBQ for service-connection for PTSD is not available to the public).

After the Exam:

It is important that the veteran and any witnesses during the C&P examination write down their thoughts about the examination as soon as possible after the exam. Issues to write down include how long the exam lasted, changes in the veteran’s mood before and after the exam, and observations about the facility. Issues for the veteran specifically to write down include whether the exam was thorough, whether the veteran expressed all of their thoughts about the disabilities being evaluated, whether the examiner was listening and writing down the veteran’s questions and responses, and whether the examiner expressed a negative opinion to the veteran about the strength of their claim.

The more specific the veteran and witnesses are regarding deficiencies with the C&P exams, the better the chances of getting the VA to correct the problem. In some situations, the veteran or their representative may choose to send a response to the VA challenging the C&P examination results. The written response may request several things, that the VA order a new C&P exam with a different C&P examiner or the VA order the C&P examiner to clarify their opinion.

Rating Increase Exams:

Note: A veteran seeking a rating increase for PTSD that is service-connected will have the VA send them to an examination for additional psychological testing. In many instances the VA has found during these exams that a veteran is malingering, instead of finding a reason for a rating increase. Malingering is not considered a mental illness by experts, but is defined by the DSM-V as “the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs.” According to a July 2013 article by the American Psychological Association Law Society, there is disagreement among experts as to whether PTSD is over-reported in veterans because of malingering. Due to the nature of PTSD examinations and the fact most symptoms are self-reported, it is difficult to gather empirical evidence as to whether malingering is more prevalent among veterans.

There are different tests a VA doctor uses to uncover malingering. One is the M-FAST (Miller-Forensic Assessment of Symptoms). This test was developed to provide clinicians a reliable screening tool for malingered mental illness. The test consists of a 25-item screening interview over seven scales/categories. The categories are: reported vs. observed symptoms, extreme symptomatology, rare combinations, unusual hallucinations, unusual symptom course, negative image, and suggestibility. A score higher than 6 indicates possible malingering. The M-FAST can be used alone, but is meant to be part of a larger assessment, for instance, if a veteran scores high on the M-FAST, additional tests may be done such as the MMPI-2 (Minnesota Multiphasic Personality Inventory-2). The MMPI-2 has its own set of issues. It is a long, involved personality and psychopathy test, with 2 sections devoted to PTSD which are used to detect malingering. In the VA’s Best Practice Manual for PTSD Compensation and Pension Examinations, the MMPI-2 consists of “validity scales” that are elevated when a person is exaggerating their symptoms. There is a revised version of the test, the MMPI-2RF, which doesn’t include PTSD sections. Many clinicians are concerned this shorter test has not been proven effective, but that the VA may use it to save time and money. Other tests to detect malingering are the Personality Assessment Inventory (PAI) and the Trauma Symptom Inventory (TSI).

Note: It is not always the case that VA examiners will administer multiple tests to determine if a veteran is malingering. If a veteran has a score higher than 6 on the M-FAST, the VA doctor can write in the C&P exam report the veteran is possibly malingering without looking further into it. Because “malingering” is now a part of the veteran’s claim file, the PTSD claim will be more difficult to win, and the veteran will likely need an independent medical opinion refuting the allegation of malingering. The Army recognized this in 2012, it put out policy guidance on the assessment and treatment of PTSD (Army Medical Command Policy Memo 12-035). It stressed “the diagnosis of malingering should not be made unless there is substantial and definitive evidence from collateral or objective sources that there are false or grossly exaggerated symptoms that are consciously produced for external incentives.” The memo noted there is “considerable evidence” that malingering is rare among veterans and malingering is unlikely to be a factor in most disability determinations. The VA Best Practice Manual states that studies suggest the Vietnam veterans may have elevated scores on tests like the MMPI-2 due to chronic post-traumatic difficulties, and not due to intentional exaggeration of their symptoms. No test for malingering can reliably tell which symptoms are being exaggerated or when the exaggeration started. The M-FAST, MMPI-2, PAI, and TSI are the best tests but can easily result in veterans with genuine PTSD claims being labeled as malingerers.

Bias against the “malingering veteran” still exists among VA examiners and can hurt those whose PTSD has legitimately gotten worse. It is important to use the tips in this section during subsequent PTSD exams with the VA and be prepared to submit evidence the PTSD has gotten worse to back up the claim for rating increase.

Continue to Step Four to learn how PTSD is rated by the VA.

Note: In the early 2000’s, the VA published a Best Practice Manual for PTSD Compensation and Pension Examinations. This manual gives technical, detailed instructions for clinicians administering C&P exams for PTSD, including the tests used for malingering, like the MMPI-2. It is unclear how much weight this manual is given internally within the VA system given it has not been updated in over 10 years, but it has not been officially repealed. Also note because the manual pre-dates the DSM-V, it revolves around the diagnostic criteria of the DSM-IV, including the Global Assessment of Functioning (GAF) scale.

Step Four

Once PTSD has been service-connected, a disability rating is assigned by the VA. A disability rating is the average loss in earning potential resulting from diseases, injuries, or their residual conditions. Note that C&P examiners do not rate claims; results from a veteran’s C&P exam go to a VA adjudicator to apply the rating formula and issue a rating percentage for the veteran’s PTSD.

When the VA evaluates claims for PTSD, it looks to both the rating formula and the DSM-V. This is one of the only times the VA is authorized to look to factors outside of the rating criteria listed in the Code of Federal Regulations. The symptoms in the DSM-V are not meant to replace, but supplement, the criteria listed in the rating formula for PTSD. The factors in the rating formula for PTSD are examples of conditions and are not an exhaustive list.

The VA rating formula goes from 0 percent to 100 percent, in increments of 10, but not every disability includes each rating percentage. For example, a veteran’s PTSD can be rated at 0, 10, 30, 50, 70, or 100 percent debilitating. A zero percent rating means “a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.” A 100 percent rating is necessary when there is “total occupational and social impairment” due to specified symptoms. Most veterans will fall somewhere in between the two extremes.

General Rating Formula for Mental Disorders

VA regulations state “where there is a question as to which of two evaluations shall be applied; the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned.” This means if a veteran’s symptoms fit in both the 50 percent and 70 percent box, the argument can and should be made the 70 percent rating more accurately covers their symptoms.

Symptoms the VA considers when rating PTSD include, but are not limited to: impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting themselves or others, suicidal ideations, sporadic inability to perform activities of daily living (including maintenance of minimal personal hygiene), memory loss, panic or depression affecting the ability to function, impaired impulse control, chronic impairment of a healthy sleep cycle, and decreased work efficiency.

During evaluation, the rating activity considers the frequency, severity, and duration of psychiatric symptoms; the duration of remissions; and the veteran’s capacity for adjustment during those periods of remission. The rating should be assigned based on all evidence in the record relating to a veteran’s occupational and social impairment, but a rating cannot be assigned solely for a social impairment. The purpose of VA Disability Compensation Benefits is to compensate veterans for impairment in their earning capacity. It is important to emphasize exactly how a veteran’s PTSD symptoms have impaired their ability to work and maintain gainful employment. If a veteran is unable to work due to their PTSD, they can be eligible for Total Disability based on Individual Unemployability (TDIU). TDIU is an alternate way of getting a 100 percent disability rating if a veteran’s PTSD does not warrant a 100 percent schedular rating but they are still unable to obtain/maintain substantial gainful employment.

Step Five

Eventually a veteran receives a rating decision stating whether their PTSD has been deemed “service-connected,” and if so, the rating percentage given. The veteran may also be awarded or denied TDIU. Now, the veteran needs to decide whether to appeal all or parts of the decision if they feel like they have not gotten the compensation they deserve. The veteran has one year from the date on the notice letter accompanying the rating decision to file a Notice of Disagreement (NOD).

For a denial of service connection, the veteran needs to determine where and what problem is with their claim. Is it the initial diagnosis of PTSD, the stressor, or the nexus? If the problem is the initial diagnosis, for instance, say the C&P examiner did not diagnosis the veteran with PTSD, the veteran should definitely seek another opinion from an expert in diagnosing PTSD. An independent medical examination (IME) is a valuable resource for veterans during the appeal process. IME’s should lay out the diagnosis of PTSD and the stressor, and include a nexus statement providing it is at least as likely as not the current diagnosis of PTSD is related to the stressor. The IME should use language directly from the regulations, like “gross impairment in thought processes or communication” or “near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively” so the VA does not guess where the veteran belongs on the rating chart. The veteran should attempt to gather corroborative evidence of the stressor. This could be additional service records not part of the initial claim file, or lay statements from family and friends. Any additional information the veteran provides to a doctor conducting an IME and to the VA will help during the appeal process.

Even if service connection has been granted for PTSD, the VA might have assigned the wrong rating. If the veteran is unhappy with the rating assigned by the VA for their PTSD, they should look at the rating formula chart to see if the higher rating better encompasses their symptoms, and if they do, file an appeal starting with a NOD. The veteran needs to be prepared to show that their social and occupational impairment is greater than described in the assigned rating (focusing on the occupational side of the claim – remember the purpose of VA benefits is to compensate veterans for impairments in earning capacity), so in proving a higher occupational impairment, a higher rating would be appropriate.

The VA benefits process is long and almost always frustrating, as claims move up and down the bureaucratic process through appeals and remands, while all the veteran wants is for the VA to give them what they rightfully deserve. We sincerely hope this PTSD guide has informed and encouraged you on the process for PTSD claims and will help you be informed and prepared as you move through the system to get the Disability Compensation you deserve.

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We have years of experience representing clients in cases involving post-traumatic stress disorder. You have the right to seek financial compensation for your injuries. Contact us today to learn more about the legal options available to you. The experienced attorneys at Centonzio Law can help you recover from post-traumatic stress disorder and move in with your life after experiencing a traumatic event.