Veterans Benefits Blog

UPDATE

The proposed new PTSD regulations are now in effect. The text of the regulations can be found at http://frwebgate1.access.gpo.gov/cgi-bin/PDFgate.cgi?WAISdocID=K23HwW/0/2/0&WAISaction=retrieve

VA’s fact sheet about the changes can be found at http://www.va.gov/PTSD_QA.pdf

Keep in mind that this does not entirely remove the requirement that PTSD stressors be corroborated – only in specified circumstances, involving situations of hostile military or terrorist activity. The asserted stressor must be consistent with the conditions of the veteran’s service. The new rules also require that a VA examiner give the opinion that the assereted stressor would be sufficient to cause PTSD.

PROPOSED REGULATIONS AUGUST 2009
VA has proposed a change to the PTSD regulations that will eliminate the requirement that a stressor be corroborated if it arises out of “fear of hostile military or terrorist activity.” There will also be a requirement that a VA psychiatrist or psychologist give an opinion that the stressor is adequate to support a diagnosis of PTSD and that the veteran’s symptoms are related to that claimed stressor.

If these conditions are met, the veteran will not have to provide additional evidence to show that the stressor occurred, as long as the stressor is consistent with the places, types and circumstances of the veteran’s service, and as long as there is not clear and convincing evidence that the stressor did not take place.

The PTSD regulations already provided that no additional evidence was necessary if it was a combat-related stressor and the veteran served in combat.

What does this mean in practical effect? If you served in an area where there was “hostile military or terrorist activity” taking place, you no longer have to prove that you were “in combat.” Many times, the combat requirement was used to require additional evidence if the veteran served in a combat area, such as Vietnam or Iraq, but did not have a “combat” MOS. If your official MOS was, let’s say, “aircraft mechanic,” it could be very difficult to convince VA that your stressors were combat related and that you served in combat.

Under the proposed new regulation, VA is now recognizing that other stressors, such as “constant vigilance against unexpected attack, the absence of a defined front line, the difficulty of distinguishing enemy combatants from civilians, [and] the ubiquity of improvised explosive device” are characteristic of “deployment to a war zone,” regardless of whether you were directly serving in a combat role.

It’s important to understand what this doesn’t change – additional evidence will still be required to show that a stressor occurred, if it didn’t take place in a war zone and was not related to “fear of hostile military or terrorist activity.”

The proposed rule, along with VA’s explanation of the rule, can be found at

http://frwebgate1.access.gpo.gov/cgi-bin/PDFgate.cgi?WAISdocID=207646362677+5+2+0&WAISaction=retrieve

Sandra W Wischow PTSD, Veterans Benefits Claims PTSD, veterans disability benefits

In late May 2010, VA Secretary Eric Shinseki prepared a letter to the leaders of the House and Senate requesting that his draft legislation entitled “Veterans Benefit Programs Improvement Act of 2010” be considered and enacted. The purpose of the draft bill is to improve (1) VA’s compensation and pension programs, (2) the timeliness and efficiency of VA’s adjudication of claims and appeals, (3) VA’s loan guaranty system, (4) vocational rehabilitation and education benefits, and (5) Veterans Group Life Insurance participants. Details of the particulars with respect to the suggested changes and reasons for them can be viewed at: http://www.vawatchdog.org/10/nf10/nfmay10/may10files/SecyLegislation.pdf
While it is clear that many of the proposed changes appear good for veterans, there are several items that have surfaced that may negatively impact the legal representation of veterans.
Under Title II, Section 206, which concerns decisions of the Board of Veterans’ Appeals, the legal standard of what the Board must include in its decisions may change. VA is concerned that more than half of the claims appealed to the Veterans Court result in a remand back to the Board due to an inadequate statement of reasons or bases. The comments to the proposed change note, among others, that while some remands are necessary, many remands based on reasons or bases do not benefit the claimant. Therefore, changing the statutory language from reasons or bases to “a plausible statement of the reasons for the Board’s ultimate findings of fact and conclusions of law” would reduce the number of remands.
Under Title II, Section 207, which addresses the definition of prevailing party status for purposes of entitlement to Equal Access to Justice Act, i.e., reimbursement of attorney fees, the proposed language is alarming. If the language is adopted, attorneys who represent veterans before the United States Court of Appeals for Veterans Claims would only be eligible for reimbursement of attorney fees if, after securing a remand or reversal at the appellate level, the veteran ultimately is awarded a monetary or other benefit at the administrative level. The language further allows the Court and the Secretary to prescribe rules that would allow the Court to retain control over all remands, and only upon a showing that the veteran was awarded benefits, could the attorney be entitled to reimbursement of fees.
If either of these proposed changes become law, it is likely to negatively impact the number of attorneys willing to represent veterans at the court level. If attorneys know that the chances of recovering attorney fees is limited and that it will be that much more difficult to secure remands, the Veterans Court will likely see many more unrepresented claimants.

David J Lowenstein FAQs, Veterans Benefits Claims, Veterans Benefits Legislation Veterans Benefits Claims, Veterans Benefits Legislation, veterans disability benefits