VAMC PSYCHOLOGIST URGES TEXAS VA MENTAL HEALTH PROVIDERS NOT TO DIAGNOSE PTSD FOR RETURNING VETERANS

An investigative report by the Washington Post released today finds that a VA Psychologist who leads the post-traumatic stress disorder (PTSD) program for returning veterans in Texas has instructed medical staffers to refrain from diagnosing PTSD because too many veterans are seeking veterans' disability benefits for their condition.

Christopher Lee, Washington Post, reports that Norma Perez, Ph.D., has issued an email to staff at the Olin E. Teague Veterans' Center in Temple, Texas recommending that instead of a diagnosis of PTSD they should "consider a diagnosis of Adjustment Disorder".

In the March 20, 2008 email she writes that "Given that we are having more and more compensation seeking veterans, I'd like to suggest that you refrain from giving a diagnosis of PTSD straight out" for returning veterans."

Perez also wrote that Texas VA staff members "really don't * have time to do the extensive testing that should be done to determine PTSD."

Adjustment disorder is a less severe reaction that PTSD, with a shorter duration. Veterans diagnosed with PTSD can be eligible for disability compensation up to $2,527 per month depending upon severity. Adjustment disorder usually results in less severity and reduced compensation payments.
Perez's e-mail was obtained and released publicly yesterday by VoteVets.org, a veterans group that has been critical of the Bush administration's policies in Iraq and Afghanistan, and Citizens for Responsibility and Ethics in Washington (CREW), a nonprofit government watchdog group.
A Rand Corp. report released in April found that repeated exposure to combat stress in Iraq and Afghanistan is causing a disproportionately high psychological toll compared with physical injuries. About 300,000 U.S. military personnel who have served in Iraq or Afghanistan are suffering from PTSD or major depression, the study found. The economic cost to the United States -- including medical care, forgone productivity and lost lives through suicide -- is expected to reach $4 billion to $6 billion over two years.

COULD PEREZ HAVE BEEN DOING SOME PERSIAN GULF WAR VETERANS A FAVOR?

Although it is outrageous that a lead psychologist for the veterans' PTSD program would appear to be advocating the misdiagnose of the disability conditions of returning veterans, on closer examination, Perez could hypothetically been doing some Gulf War veterans a slight favor.
PTSD claims for veterans are notoriously complex and can be difficult to prove. Basically PTSD requires medical proof of a diagnosis of PTSD, a link established by medical evidence between the current symptoms and the in-service occurrence, and evidence that the claimed stressor actually occurred.
However, Congress has afforded Persian Gulf veterans unique and different rules for disability under the VA. This is because many returning Gulf War veterans are suffering new, multisymptom disabilities that are poorly understood by current medical providers and may often be classified as "undiagnosed", or "chronic fatigue syndrome", or "chronic multisymptom" by treating doctors. This is because Persian Gulf War veterans are being exposed to new biological and other toxins and hazards, vaccines and medications, whose effects are not yet well known by the medical community.
Thus, Congress enacted special rules under Title 38 USC Sec. 1117 for Persian Gulf veterans to pay disability compensation to veterans for a "qualifying chronic disability". A "qualifying chronic disability" requires in part medical proof of an "undiagnosed Illness" or of a "medically unexplained chronic multisymptom illness".
Thus, strange as it seems, for returning Persian Gulf War veterans, it may to be their advantage in so far as compensation benefits are concerned, to have her doctor be unable to link any disabling symptoms to a medical diagnosis because then she may qualify for service connection disability under the "undiagnosed illness" provisions.
However, if the treating doctor instead tries to fit the Persian Gulf veteran's disabling symptoms into one certain diagnosis, then she cannot win disability compensation, as the disability is no longer an "undiagnosed illness". Once a diagnosis is made, at least for returning Persian Gulf War veterans, then the veteran must resort to the more difficult proof of linking the current illness to her service, etc.
Perez was indeed wrong to instruct her staff not to diagnose PTSD for returning Gulf War veterans. Veterans who have PTSD should be afforded that diagnosis, treatment and benefits. However, as strange as it sounds, for those Gulf War veterans whose symptoms were and are not clear and had no medical diagnosis at all been made leaving them only with an "undiagnosed illness", those veterans would likely have have an easier path to proving their entitlement to disability than those veterans who were promptly diagnosed with PTSD.

CAN FILING GOVERNMENT FORM 95 ALSO SHOW INTENT TO FILE CLAIM FOR VETERAN’S DISABILITY BENEFITS?

Veterans who wish to file a claim for disability compensation must file some sort of notice with the VA. The notice itself can be very informal. VA regulations state that “any statement in a communication showing intent to file a claim for disability or for death benefits” may be accepted as a claim.
Thus according to the VA, a veteran may file literally any statement to start his claim, just as long as the statement shows an “intent to file” a claim for disability.
This is important as if the veteran does not file a claim for disability within one year of injury, then the effective date of any disability award will be the date on which his “claim” for VA benefits was received by the VA. A veteran can literally lose decades of disability compensation by not filing early.
In the case of Mansfield v. Peake, decided today by the US Court of Appeals for the Federal Circuit, Mansfield; a veteran, was injured at a VA medical center during surgery in 1989. In 1991, he submitted Form 95 putting the VA on notice of his medical negligence lawsuit against the VA. The VA accepted Mansfield’s Form 95 and the VA awarded him compensation for medical negligence in 1993.
Seven years later, in 2000, Mansfield then filed a Section 1511 claim for disability compensation with the VA. He claimed disability dating from the 1989 surgery. Veterans who are disabled as result of negligent treatment at VA medical facilities are compensated the same as if their injuries are service connected. These are known as section 1511 claims. (38 U.S.C. § 1151(a) (2000))
The VA awarded the disability compensation, but only from 2000 forward; the date the VA said it received his claim. Mansfield argued that he should be awarded disability benefits from 1991; when he filed his Form 95 notice of injury with the VA on his medical negligence lawsuit.
The VA said “no”; it argued that the Form 95 did not show“intent” to apply for VA disability benefits. Rather the Form 95 showed intent to file a medical negligence lawsuit.
The Federal Circuit Court agreed with the VA. Even though Mansfield’s medical negligence claim against the VA and his disability compensation claim against the VA both arose out of the same 1989 botched surgery; according to the Court the two processes and remedies are different. The Form 95 is simply a notice to the VA that a claimant is seeking damages for negligence. According to the Court, the Form 95 does not provide any notice or statement that the veteran is also intending to file for disability compensation benefits. Mansfield’s claim for disability compensation back to 1991 was denied.
Veteran’s should take note that although there is no timeline on when they must file for disability compensation; their benefits will only start when they have provided a notice of “intent” to claim disability compensation benefits and that is received by the VA. The notice can be informal, but must contain evidence of the veteran’s “intent” to file for disability compensation benefits.

ANOTHER FEDERAL COURT RECOMMENDS ANOTHER REVERSAL OF SSA JUDGE’S DENIAL OF DISABILITY BENEFITS

I am pleased, once again, to bring news of another US Federal Court recommending that the decision of a Social Security Administrative Law Judge (ALJ) denying disability benefits be thrown out.
In this case, the client had filed for social security disability more than 4 years ago. He claimed he was unable to work at any job due to severe degenerative disc disease, a torn left shoulder, and a long-term injury to his left foot. The ALJ denied his claim for disability benefits. The ALJ found that the client could still do other jobs such as a polisher, telephone quotation clerk and table worker.
We appealed the claim to the US Federal Court. On appeal, I argued that the SSA Judge was wrong to deny the claim by merely stating that the client could work at this other jobs. I argued that under federal rules the SSA Judge was required to specifically identify these other jobs by their US DOT Code number and describe how those jobs could be performed with the client’s impairments; none of which the SSA judge provided or did in his decision.
The US Federal Court agreed. The Federal Court Judge reported that the SSA judge did not bother to identify these jobs by their DOT code numbers and fully explain any discrepancies in the job descriptions. The Federal Court also reported that the SSA judge failed to explain how the client could perform these other jobs in light of his physical impairments; such as being unable to raise his left arm.
Notably the Federal Court also made comment on the fact that the tape-recorded transcript of the SSA disability hearing was inaudible in more than one section. The incompetence of the SSA in providing an audible hearing transcript was noted by the US Federal Court as a “critical point” that “frustrates judicial review” and thus affected the ability of the SSA Judge to meet his burden of proof in his decision denying benefits.
The Federal Court has recommended that the ALJ’s denial of benefits be overruled and the case be sent back to the SSA for another hearing.
Social Security disability claimants should take note that at certain points in a social security case it is the burden of the SSA to prove the claimant is not disabled. Claimants should be aware of when this point occurs and how to enforce that burden upon the SSA Judge. Claimant should also note that when the SSA provides an inaudible transcript to the federal court on appeal, that failure to provide a clear recording and transcript could be the basis of argument of appeal in itself.