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Ro Creates False Evidence Against A Claim

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Hoppy

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  • HadIt.com Elder

I will be researching this problem. Any help will be appreciated.

The RO recently denied a claim and presented evidence against the claim that stated that the veteran had been diagnosed with a personality disorder and then cited 38 C.F.R. §§ 3.303©,Personality disorders are not diseases or injuries in the meaning of applicable legislation for disability compensation

purposes.

The problem with this argument is that the DSM II diagnosis of asthenic personality is obsolete. Considering that the DSM II was replaced twenty nine years ago the VA should have been able to train their adjudicators on the fact that a DSM II has no value when determining the outcome of a claim. A competent adjudicator should be aware that current law requires that consideration be given to the DSM IV. When citing and giving weight to DSM II diagnoses it should be noted as obsolete in any reference to such diagnoses by an adjudicator. Failure to note that a DSM II diagnosis is obsolete gives a false prima fascia representation that denial of a current claim is some how justified by the presence of an obsolete diagnosis. The adjudicator’s reference indicating that weigh is given to the asthenic personality disorder and citing laws pertaining to personality disorders should be prohibited. This same situation could be considered gross incompetence or a misrepresentation of a material fact and could be considered fraud under civil law.

The mere fact that a veteran’s claim involves a DSM II diagnosis should be cause for reconsideration and a C&P for the purpose to resolve any potential diagnostic complications caused by changes in diagnostic criteria between the DSM II and the DSM IV. Such re-evaluation should be required in original claims and claims to re-open an old claim.

It is not a question of whether or not there is a corresponding diagnosis in the DSM IV that can be applied. The problem is that the entire diagnostic criteria changed. The DSM II used what is called a psychodynamic diagnostic criteria. The DSM IV uses a medical model for making diagnoses. The DSM II was considered problematic and resulted in a lack of consistence in the application of diagnoses.

Who does this involve? General Council, inspector general, congress. This BS needs to stop. If anyone has heard of any issues I addressed and what agency has been involved in anything like this let me know.

I am especially interested in compelling laws to schedule C&P exams to resolve the potential changes in diagnoses. I want to make such exams mandatory and not a choice when a veteran has both a post service diagnosis of any mental condition and an inservice mental condition that was diagnosed on any previous version of the DSM.

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"I am especially interested in compelling laws to schedule C&P exams to resolve the potential changes in diagnoses. I want to make such exams mandatory and not a choice when a veteran has both a post service diagnosis of any mental condition and an inservice mental condition that was diagnosed on any previous version of the DSM."

Hoppy I am pursuing a total revamp of C & P exams and hopefully will be able to talk to Congressman Filner about proposing this type of legislation when I am on vacation soon.

We need Real doctors, with full expertise to opine on our claims, and not some 15 minute faulty C & P that determines our entire future.

The VA should provide US with free IMOs (that VA pays for)and disband the QTC fee agreement-

because these faulty C & Ps are costing the VA something anyhow-

The DSM IV-

did this decision specifically state that the older version of the DSM was used?

If so that could be an avenue of attack

and also you could look up the C & P doctor on Healthgrades etc and see if their background is listed there-for 12 bucks at healthgrades I got a run down that obliterated the VA doc's credentials over a local vets doctors opinion and he won his claim.

Also my attacks of 2 VA c & Ps were instrumental in my BVA decision and my award letter that I just got.

but still- the best way to combat a Personalty disorder diagnosis is with a battery pf complete psychological tests that can rule it out-

test that are performed by a real psychiatrist-

the MMPI, Weschler, Hand, etc there are plenty of them and they are prime facie evidence of a proper psychiatric diagnosis as they must come from a bonafide psychiatric professional.

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  • HadIt.com Elder

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Email General Counsel, ask them what the controlling Laws and Precedents are on the Diagnostic and Statistical Manual of Mental DIsorders. I have seen numerous Federal Register rules and proposed rules concerning the Schedule for Rating Mental Disorders. I would imagine the case law goes back decades. I'll look for some addresses. Go to the Fed Reg, "proposed rules" and you will find the name and address of the office that wou;ld library and catalogue this information. IMO. ~Wings

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WOW you gals are quick.

Wings,

What are we doing up so early in the morning. I already figured this out from what you told me the other day. I came back to hadit to find an old post of mine to insert into my email. I found the closest address and it is in SF. I have been typing the email for the last half hour. I type slow.

Berta,

They cited the DSM II diagnosis and the CFR indicating that PD's are not service connectable in the decision.

The veteran was diagnosed in the 70's under the DSM II with a personality disorder that was dropped. The same symptoms meet the diagnostic criteria for Panic disorder. We got a board certified pyschiatrist at a VAMC to read the SMR and he agreed that the symptoms met the DSM IV criteria for panic attacks.

The RO denied the claim without a C&P anyway. It is just stalling BS that we can battle through. My main concern is that he should never have been denied without a C&P and the fact that we had to get the psychiatrist to write an opinion was a hardship. The psychiatrist gave us ten minutes and his report was very limited.

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FOR EXAMPLE (look to the contact person):

[Federal Register: April 23, 2009 (Volume 74, Number 77)]

[Rules and Regulations]

[Page 18467]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr23ap09-5]

=======================================================================

-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 4 and 61

RIN 2900-AN35

Posttraumatic Stress Disorder Nomenclature Changes

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This document amends the Department of Veterans Affairs (VA)

regulations by making nonsubstantive changes. These changes are made

for clarity and accuracy.

DATES: Effective Date: These amendments are effective April 23, 2009.

FOR FURTHER INFORMATION CONTACT: William F. Russo, Director,

Regulations Management (02REG), Department of Veterans Affairs, 810

Vermont Avenue, NW., Washington, DC 20420, (202) 461-7566. (This is not

a toll-free number).

SUPPLEMENTARY INFORMATION: VA is amending its regulations which contain

the term ``post-traumatic stress disorder'' by changing that term to

``posttraumatic stress disorder''. We have chosen to use the term

``posttraumatic stress disorder'' because it has become the standard

term used by psychiatric professionals. See Diagnostic and Statistical

Manual of Mental Disorders (4th ed.1994) (published by the American

Psychiatric Association); see also Merck Manual of Medical Information

(2nd edition 2003); and Dorland's Illustrated Medical Dictionary (31st

edition 2007). No substantive changes are intended by these amendments.

Administrative Procedure Act

This final rule consists of nonsubstantive changes and, therefore,

is not subject to the notice and comment and effective date provisions

of 5 U.S.C. 553.

Unfunded Mandates

The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that

agencies prepare an assessment of anticipated costs and benefits before

issuing any rule that may result in an expenditure by State, local, or

tribal governments, in the aggregate, or by the private sector of $100

million or more in any given year. This final rule would have no such

effect on State, local, or tribal governments, or on the private

sector.

Paperwork Reduction Act

This document contains no provisions constituting a collection of

information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Regulatory Flexibility Act

The Secretary hereby certifies that this regulatory amendment will

not have a significant economic impact on a substantial number of small

entities as they are defined in the Regulatory Flexibility Act, 5

U.S.C. 601-612. This amendment merely consists of nonsubstantive

changes. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is

exempt from the initial and final regulatory flexibility analysis

requirements of sections 603 and 604.

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance program numbers and

titles are 64.100, Automobiles and Adaptive Equipment for Certain

Disabled Veterans and Members of the Armed Forces; 64.101, Burial

Expenses Allowance for Veterans; 64.104, Pension for Non-Service-

Connected Disability for Veterans; 64.105, Pension to Veterans

Surviving Spouses, and Children; 64.106, Specially Adapted Housing for

Disabled Veterans; 64.109, Veterans Compensation for Service-Connected

Disability; and 64.110, Veterans Dependency and Indemnity Compensation

for Service-Connected Death.

List of Subjects

38 CFR Part 4

Disability benefits, Pensions, Veterans.

38 CFR Part 61

Administrative practice and procedure, Alcohol abuse, Alcoholism,

Day care, Dental health, Drug abuse, Government contracts, Grant

programs--health, Grant programs--veterans, Health care, Health

facilities, Health professions, Health records, Homeless, Mental health

programs, Reporting and recordkeeping requirements, Travel and

transportation expenses, Veterans.

Approved: April 15, 2009.

William F. Russo,

Director of Regulations Management.

For the reasons set forth in the preamble, 38 CFR parts 4 and 61 are

amended as follows:

PART 4--SCHEDULE FOR RATING DISABILITIES

1. The authority citation for part 4 continues to read as follows:

Authority: 38 U.S.C. 1155, unless otherwise noted.

Subpart B--Disability Ratings

Sec. 4.130 [Amended]

2. Section 4.130 is amended by revising ``Post-traumatic'' to read

``Posttraumatic''.

Appendix B to Part 4--[Amended]

3. Appendix B to Part 4 is amended by revising ``Post-traumatic'' to

read ``Posttraumatic''.

Appendix C to Part 4--[Amended]

4. Appendix C to Part 4 is amended by revising ``Post-traumatic'' to

read ``Posttraumatic''.

PART 61--VA HOMELESS PROVIDERS GRANT AND PER DIEM PROGRAM

5. The authority citation for part 61 continues to read as follows:

Authority: 38 U.S.C. 501, 2002, 2011, 2012, 2061, 2064, 7721

note.

Sec. 61.1 [Amended]

6. In Sec. 61.1, the definition of ``Chronically mentally ill'' is

amended by revising ``post-traumatic'' to read ``posttraumatic''.

[FR Doc. E9-8988 Filed 4-22-09; 8:45 am]

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Hoppy: Keep us posted on what you find out and how things ended up. You know that I have had similiar problems with the VARO not providing me with a C&P exam in regards to my Schizophrenia claim and the personality disorder they used, they said to correct it.

I am sure that the reason that they do not want to give a current C&P exam, is that they would then have to use the current DSM IV criteria to diagnose his current and previous symptoms. Seeing that a psychiatrist has compaired his symptoms from his records and that he meets the criteria for a panic disorder just go to show that the VARO will do just about anything to keep a Veteran from receiving what is due him and this is a great example of it.

It's going to be interesting when I present my newest claim, because it will rebutt the personality disorder, showing instead that I had a post traumatice organic personality disorder, which should have been rated under Personality change, due to a medical condition.

Rebutting the personality disorder leaves the question, how do they, the VA, plan to rate my schizophrenia I had in-service, that crops it's ugly head up, every now and again.

Rockhound Rider :)

Edited by Rockhound
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Date: March 31, 1995

VAOPGCPREC 10-95

From: General Counsel (022)

Subj: Use of Diagnostic and Statistical Manual in Claims Based on

Mental Disorders

To: Chairman, Board of Veterans' Appeals (01)

QUESTION PRESENTED:

To what extent must the Board of Veterans' Appeals employ the nomenclature, diagnostic criteria, and adaptive-func-tioning scale of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Third Edition, in determining appeals involving issues of service connection and rating of mental disorders?

COMMENTS:

1. Congress has authorized the Department of Veterans Affairs (VA) to establish "a schedule of ratings of reductions in earning capacity from specific injuries or combination of injuries." 38 U.S.C. § 1155. Pursuant to this authority, VA has promulgated the Schedule for Rating Disabilities, 38 C.F.R. part 4, which includes the rating schedule for mental disorders found at 38 C.F.R. § 4.132. As stated in 38 C.F.R. § 4.125, the psychiatric nomenclature currently employed in the schedule for rating mental disorders is based upon the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (APA Manual), Third Edition (DSM-III). The APA Manual provides standardized diagnostic criteria for diagnosing various mental disorders. Section 4.126 of title 38, Code of Federal Regulations, states that, in rating psychiatric conditions, "t must be established first that a true mental disorder exists" and the mental disorder "will be diagnosed in accordance with the APA manual." The last sentence of 38 C.F.R. § 4.125, which states that the "American Psychiatric Association Manual, 1980 Edition . . . will be hereinafter referred to as the APA manual," makes clear that the term "APA manual" as used in the regulations governing rating of mental disorders refers exclusively to DSM-III, as originally published in 1980. If the diagnosis is not in accordance with the manual, it "is not acceptable for rating purposes" and must be returned to the examiner.

2. Section 7104© of title 38, United States Code, provides that "[t]he Board [of Veterans' Appeals (BVA)] shall be bound in its decisions by the regulations of the Department." See also 38 C.F.R. § 19.5. The United States Court of Veterans Appeals has also stated that the BVA must follow the regulations which have been duly promulgated by VA. E.g., Franklin v. Brown, 5 Vet. App. 190, 193 (1993); Young v. Brown, 4 Vet. App. 106, 109 (1993).

3. In addition, it is well established that substantive regulations which have been validly promulgated pursuant to statutory authority have the force and effect of law. Chrysler Corp. v. Brown, 441 U.S. 281, 301-03 (1979). Such regulations are binding on the Government as long as they remain in force. Flores v. Bowen, 790 F.2d 740, 742 (9th Cir. 1986); see also United States v. Nixon, 418 U.S. 683, 695-96 (1974); Service v. Dulles, 354 U.S. 363 (1957); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954). The failure to follow regulations which have been validly promulgated "tends to . . . deny adequate notice contrary to fundamental concepts of fair play and due pro-cess." National Labor Relations Bd. v. Welcome-American Fertilizer Co., 443 F.2d 19, 20 (9th Cir. 1971). Characteristics of binding regulations are that they affect the rights and obligations of individuals, Chrysler Corp., 441 U.S. at 301-02, and narrowly limit agency discretion. Dyer v. Secretary of Health & Human Servs., 889 F.2d 682, 685 (6th Cir. 1989); Guardian Fed. Sav. & Loan Ass’n v. Federal Sav. & Loan Ins. Corp., 589 F.2d 658, 666-67 (D.C. Cir. 1978).

4. Section 4.125 of title 38, Code of Federal Regulations, states that the nomenclature employed in the rating schedule for mental disorders is based upon DSM-III. Section 4.125 further states that "[t]o comply with the fundamental requirements for rating psychiatric conditions, it is imperative that rating personnel familiarize themselves thoroughly" with DSM-III. These provisions are merely informational and provide guidance to VA rating personnel on how to perform their jobs more effectively. They do not narrowly circumscribe administrative discretion or determine rights or obligations of claimants. These provisions do not in themselves require that the BVA rely in its decisionmaking on DSM-III.

5. However, section 4.126 requires that the diagnosis of a mental disorder conform to DSM-III. Such diagnoses are essential to establishing service connection for a disability. Service connection may only be granted for mental disorders which fall within the four categories of the rating schedule for mental disorders at 38 C.F.R. § 4.132, which, as noted in 38 C.F.R. § 4.125, rely on the terminology of DSM-III. See 38 C.F.R. §§ 4.9, 4.127 (indicating that service connection will not be established for personality disorders or mental deficiency). Section 4.126 assures that diagnoses comport with the nomenclature used for identifying disorders within those categories and requires that the identification of disorders be based on the diagnostic criteria of DSM-III. The requirement that a mental disorder be diagnosed in accordance with DSM-III may be decisive in determining to which category of the rating schedule the disorder will be assigned or whether the disorder will be considered as falling within the scope of section 4.132. Acceptance of a diagnosis of a mental disorder conforming to DSM-IV rather than DSM-III would not only modify the evidentiary obligations imposed on claimants under current regulations, but could alter the outcome of claims. Section 4.126 may be determinative of the rights of claimants because it precludes acceptance of diagnoses which do not conform to DSM-III and defines a framework which is dispositive in assessing whether a mental disorder is service connected.

6. After stating that personality disorders will not be considered disabilities under the rating schedule, section 4.127 directs the attention of adjudicators to the outline of personality disorders in the APA Manual. Although this regulation does not specifically require use of the DSM-III diagnostic criteria for personality disorders, the regulation appears to imply that reference to those criteria will be made. In any event, the requirement in section 4.126 for diagnosis in accordance with DSM-III effectively mandates that the DSM-III criteria will be used in differentiating between personality disorders and other mental disorders.

7. In addition to introducing new diagnoses and deleting or subsuming in other categories some diagnoses used in prior editions, see DSM-IV at 773, DSM-IV incorporates numerous changes in the criteria for diagnosing particular conditions. For example, the criteria for post-traumatic stress disorder have been significantly revised in DSM-IV. The DSM-III requirement that the psychologically traumatic event or stressor be one "that would evoke significant symptoms of distress in almost everyone" has been deleted, and DSM-IV instead requires that the person’s response to the stressor involve intense fear, helplessness, or horror. DSM-III at 238; DSM-IV at 427-28. A criterion requiring that the symptoms cause clinically significant distress or impairment has been added in DSM-IV, and the duration of symptoms necessary to establish chronic post-traumatic stress disorder has been changed from six months or more to three months or more. See DSM-III at 238 and DSM-IV at 429.

8. Significant changes in diagnostic criteria may be found in other areas as well. For example, DSM-IV states that, to reduce false-positive diagnoses, active-phase symptoms for schizophrenia must last at least one month, DSM-IV at 285, 779; DSM-III did not specify a duration for active-phase symptoms. DSM-III at 188-90. A criteria set for schizoaffective disorder is provided in DSM-IV, DSM-IV at 295-96; DSM-III did not provide a set of diagnostic criteria for schizoaffective disorder. See DSM-III at 202. Criterion "A" for generalized anxiety disorder in DSM-IV refers to "[e]xcessive anxiety and worry," while DSM-III only mentions "[g]eneralized, persistent anxiety." DSM-III at 233; DSM-IV at 435. Also, DSM-IV added the requirement for generalized anxiety disorder that a person find it difficult to control the worry. DSM-IV at 435. Application of DSM-IV diagnostic criteria rather than those used in DSM-III, in the course of determining claims, could significantly alter the criteria for determining benefit eligibility. See generally Bahramizadeh v. United States Immigration & Naturalization Serv., 717 F.2d 1170, 1173 (7th Cir. 1983) (agency may not interpret its regulations in a manner so as to nullify the regulation’s wording).

9. Section 4.132 divides mental disorders into four general categories, i.e., psychotic disorders, organic mental disorders, psychoneurotic disorders, and psychological factors affecting physical condition. For the first three categories of mental disorders in section 4.132, criteria are provided for evaluating the extent of disability attributable to the conditions included in the category. Disabilities within the fourth category, psychological factors affecting physical condition, are evaluated under the rating formula for psychoneurotic disorders. While the rating criteria in the various categories share certain descriptive terms, the descriptions of symptoms are tailored to the particular category of disorder and differ significantly between categories. Also, certain notes and special rules are applicable to particular categories. Assignment of a disorder to a particular category in the rating schedule is determinative of which criteria will be applied in evaluating the extent of the disability attributable to the disorder. To the extent that categorization in the rating schedule is dependent upon the nomenclature and diagnostic criteria of DSM-III, the BVA cannot apply a different version of the APA Manual because this might alter the criteria used for determining level of disability.

10. The Global Assessment of Functioning (GAF) Scale, DSM-IV at 32, which may be used as the basis for reporting overall functioning under Axis V in DSM-IV is not included as such in DSM-III. The GAF Scale provides criteria for rating individuals on a scale of 1 to 100 based upon psychological, social, and occupational functioning, at a particular time, or for a period of time, without regard to impairment of functioning due to physical or environmental limitations. DSM-IV at 30-32. DSM-III contains a much less detailed scale for assessing an individual’s highest level of adaptive functioning during the past year based upon social relations, occupational functioning, and use of leisure time. DSM-III at 28-30.

11. The GAF Scale and the predecessor adaptive-functioning scale used in DSM-III provide a basis for assessment of the degree of social and occupational impairment of persons suffering from mental disorders. They do not specify nomenclature or criteria for use in diagnosis of disorders. See Webster’s Third New International Dictionary 622 (1981) (defining "diagnosis" as "the art or act of identifying a disease from its signs and symptoms"). Therefore, these scales do not fall within the scope of the requirement in section 4.126 for diagnosis in accordance with DSM-III. Further, neither of these scales is reflected in the rating criteria of section 4.132. However, assessment of degrees of social and industrial impairment in evaluation of mental disabilities is a matter addressed in section 4.132, which uses terminology and disability levels which differ in a number of ways from those employed in the GAF Scale and the adaptive-functioning scale of DSM-III. While the regulations do not prevent reference to a medical report which includes an assessment based on either the GAF Scale or the DSM-III scale, the utility of such a report may be limited to the extent the terminology and disability levels of those scales differ from those required to be used under the schedule for rating disabilities.

12. We recognize that the current schedule for rating mental disabilities is based upon, and requires application of, DSM-III, which is an outdated version of the APA Manual. However, a regulation may not be ignored on the basis that it has become outdated. Reich v. Newspapers of New England, Inc., 834 F. Supp. 530, 535 (D.N.H. 1993), aff’d, 44 F.3d 1060 (1st Cir. 1995); In re Sabin Oral Polio Vaccine Prods. Liab. Litig., 763 F. Supp. 811, 822 (D. Md. 1991), aff’d, 984 F.2d 124 (4th Cir. 1993). The current provisions of 38 C.F.R. part 4 provide the criteria by which VA should determine claims until such time as the regulations are amended.

HELD:

Sections 4.126 and 4.132 of title 38, Code of Federal Regulations, which require that diagnoses of mental disorders conform to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (APA Manual), Third Edition (DSM-III) and establish the criteria for rating disabilities attributable to mental disorders based upon the psychiatric nomenclature and diagnostic criteria used in DSM-III, require that the Board of Veterans’ Appeals (BVA) use the DSM-III nomenclature and diagnostic criteria until such time as the regulations are amended. The BVA is not precluded from making reference to medical reports which employ the adaptive-functioning assessment scales of either DSM-III or the fourth edition of the APA Manual (DSM-IV). However, the utility of such reports may be limited by differences between the terminology and disability levels used in those scales and those employed in 38 C.F.R. § 4.132, the schedule for rating mental disorders.

Mary Lou Keener

Note: The psychiatric nomenclature of the original 1952 APA Manual was utilized in the rating schedule for mental disorders in 1961. Transmittal Sheet 6 (Oct. 1, 1961). The rating schedule was amended in 1976 to employ the nomenclature of the second edition of the APA Manual, 41 Fed. Reg. 34,258 (1976), and in 1988 to conform to the terminology used in DSM-III. 53 Fed. Reg. 21 (1988). A revised edition of DSM-III (DSM-III-R) was published in 1987, after the notice of proposed rulemaking to amend the rating schedule based upon DSM-III was published in the Federal Register, but prior to publication of the final rule. There is no indication that the final rule was amended to incorporate any changes made in the revised edition of the APA Manual. The fourth edition of the APA Manual (DSM-IV) was published in 1994.

Administrative agencies have discretion to relax or modify procedural rules adopted for the orderly transaction of business when the ends of justice require it. E.g., National Labor Relations Bd. v. Monsanto Chemical Co., 205 F.2d 763, 764 (8th Cir. 1953). However, agencies must adhere to rules which confer important procedural benefits on individuals or operate as a binding standard. See American Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 538-39 (1970); cf. Modern Plastics Corp. v. McCulloch, 400 F.2d 14, 19 (6th Cir. 1968).

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

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Date: July 16, 1997

VAOPGCPREC 26-97

From: General Counsel (022)

Subj: Retroactive Benefits in Claims for Service Connection of Post-Traumatic Stress Disorder

To: Director, Compensation and Pension Service (212C)

QUESTION PRESENTED:

Was the addition of a diagnosis of post-traumatic stress disorder (PTSD) to the rating schedule, effective April 11, 1980, “a liberalizing law, or a liberalizing [Department of Veterans Affairs (VA)] issue” for purposes of 38 C.F.R. § 3.114(a)?

COMMENTS:

1. This question arose in the case of a Vietnam veteran who was granted service connection for PTSD, effective as of April 22, 1993, the date of claim. The veteran contends that an earlier effective date based on 38 C.F.R. §3.114(a) should be established because the inclusion of rating criteria for PTSD in the disability rating schedule was a “liberalizing VA issue”.

2. Under 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400, the effective date of an award of benefits is generally not earlier than the date the claim for those benefits is received. Section 5110(g) of title 38, United States Code, authorizes an exception to that rule. Section 5110(g) provides that the effective date of an award of or increase in compensation, dependency and indemnity compensation, or pension “pursuant to any Act or administrative issue . . . shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue.” The statute goes on to authorize retroactive payments for up to one year prior to the date of claim or the date of administrative determination of entitlement, whichever is earlier. VA’s implementing regulation, 38 C.F.R. § 3.114(a), further states that a claimant cannot receive retroactive payment based on a prospectively effective liberalizing law or a liberalizing VA issue unless the evidence establishes that “the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement.” The United States Court of Veterans Appeals (CVA) has noted that this requirement fulfills the intent of section 5110(g) with regard to laws or issues that are effective prospectively. See McCay v. Brown, 9 Vet. App. 183, 187-88 (1996).

3. The diagnosis of PTSD, Diagnostic Code 9411, was added to the rating schedule effective April 11, 1980, the date of approval of the regulatory amendment by the Administrator of Veterans Affairs. See 45 Fed. Reg. 26,326 (1980).

In a nonprecedential memorandum decision, the CVA recently found it unnecessary to reach the issue of whether the addition of PTSD to the rating schedule may be considered a liberalizing issue. See Ballert v. Brown, No. 94-777, 1997 WL 132999, at *6 (Vet. App. March 20, 1997). In Dunson v. Brown, 4 Vet. App. 327, 330-31 (1993), the CVA directed the Board of Veterans’ Appeals to consider whether PTSD benefits were granted pursuant to the Former Prisoner of War Benefits Act of 1981 and, if so, whether the veteran was entitled to an earlier effective date pursuant to 38 C.F.R. § 3.114. The change of law at issue in Dunson concerned the expansion of the presumptions of service connection applicable to former prisoners of war. While Dunson suggests that the relaxation of the claimant’s burden of proof may have been a liberalization of the law for purposes of 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114(a), the decision did not offer specific guidance on the subject of the addition of PTSD to the rating schedule.

4. In Spencer v. Brown, 4 Vet. App. 283, 289 (1993), aff’d, 17 F.3d 368 (Fed. Cir. 1994), the CVA indicated that section 5110(g) applies only to acts or administrative issues that provide “a substantive basis for establishing entitlement to benefits.” In affirming the CVA’s decision, the United States Court of Appeals for the Federal Circuit stated that a new law or “issue” is considered “liberalizing” if it “brought about a substantive change . . . creating a new and different entitlement to a benefit”. 17 F.3d at 372.

In VAOPGCPREC 7-92 (O.G.C. Prec. 7-92), the General Counsel held that portions of VA Adjudication Procedure Manual M21-1, part I, ¶ 50.45, regarding the evidence necessary to substantiate PTSD claims constituted a “substantive” rule because their effect was “to relieve combat veterans and former prisoners of war of the burden of producing evidence to substantiate their claims that they experienced a stressful event.”

See also VAOPGCPREC 10-95 (acceptance of a diagnosis of a mental disorder conforming to the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM), rather than the third edition (DSM-III), “would not only modify the evidentiary obligations imposed on claimants under current regulations, but could alter the outcome of claims”).

5. In VAOPGCPREC 9-92 (O.G.C. Prec. 9-92), the General Counsel held that an increased rating due to revision of criteria for rating psychoneurotic disorders is based on a liberalizing VA issue per 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114(a). In VAOPGCPREC 5-94 (O.G.C. Prec. 5-94) and VAOPGCADV 28-90 (O.G.C. Adv. 28-90), the General Counsel treated the regulatory amendment creating a presumption of service connection for non-Hodgkin’s lymphoma incurred by veterans of Vietnam service as a liberalizing issue for purposes of 38 U.S.C. § 5110(g) (formerly § 3010(g)). The amendment at issue in those opinions represented in essence a liberalization of evidentiary rules making it easier for veterans to establish service connection for a particular disability. The above-referenced authorities suggest that a rating schedule change which makes it easier for a veteran to establish service connection for a disability may be considered a liberalizing VA issue for purposes of 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114(a).

6. Analysis of the circumstances surrounding the addition of PTSD to the rating schedule indicates that that amendment may be considered a liberalizing issuance, in that it had a substantive impact on claims by liberalizing the evidentiary basis on which service connection for certain disabilities may be established. VA began using the diagnosis of PTSD in 1980 in conformity with DSM-III. See Department of Medicine and Surgery Professional Services Letter IL-11-80-15 (3-20-80) (DM&S Prof. Serv. Letter IL-11-80-15). Prior to that time, VA had rated traumatic neurosis as an anxiety disorder and, pursuant to then-existing regulations, see former 38 C.F.R. §§ 4.125 and 4.126 (1979), had based its psychiatric evaluations on the standards of the second (1968) edition of DSM (DSM-II). DSM-II made no reference to delayed onset of anxiety neurosis. DSM-III, at 237, on the other hand, specifically noted that the symptoms of the new diagnostic category, PTSD, could “emerge after a latency period of months or years following the trauma.”

7. The recognition of PTSD as a diagnostic entity represented an important change in VA’s approach to service connection for traumatic neurosis. Prior to VA’s adoption of the PTSD diagnosis, DSM-II criteria for neuroses, followed by VA, had the effect of requiring evidence of neurosis during service in order to establish service connection. With the recognition of PTSD came the understanding that a veteran’s response to trauma may be delayed. See Department of Veterans Benefits Program Guide 21-1, § 0-12, change 282 (3-17-80) (Program Guide 21-1, change 282). Thus, the servicemember may not show signs of a psychiatric disorder during service, although the disorder was the result of service experiences. In a memo dated March 25, 1980, the Chairman of the Board of Veterans’ Appeals advised his staff:

You will note that the treatment of this disorder in [revised Program Guide 21-1, change 282 and DM&S Prof. Serv. Letter IL-11-80-15] represents a considerable liberalization in the area of service connection for post-traumatic stress disorder. It is significant that these guidelines do not require that symptoms of maladjustment arise within a few days or months following the traumatic incident.

Since that time, it has been VA’s practice that, for PTSD to be service connected, the record must reflect that the claimant experienced a stressor during service and that he or she currently exhibits PTSD symptomatology. The claimant need not demonstrate in-service manifestations of a psychia-tric disorder. The recognition of PTSD as a diagnostic entity was clearly beneficial to claimants because it signi-ficantly reduced their burden of proof in establishing service connection.

8. By its terms, section 3.114(a) applies only with respect to a liberalizing law or a liberalizing VA issue “approved by the Secretary [formerly Administrator] or by the Secretary’s [Administrator’s] direction.” See also former 38 C.F.R. § 3.114(a) (1979). Since the Program Guide 21-1, change 282 and DM&S Prof. Serv. Letter IL-11-80-15 issued in March 1980 were not approved by the Administrator of Veterans Affairs or by his direction, neither of those directives may be considered a liberalizing issue for purposes of section 3.114(a).

See VAOPGCPREC 1-96 (manual provisions approved not by the Secretary or by the Secretary’s direction, but by department and staff office heads, do not constitute liberalizing VA issues). The first official recognition of VA’s acceptance of the diagnosis of PTSD by the Administrator came with the addition of PTSD to the rating schedule, effective April 11, 1980. Although the rulemaking notice announcing this change stated that the “amendment to the rating schedule [was] for procedural and statistical purposes only”, see 45 Fed. Reg. at 26,327, the rulemaking was the first issuance approved by the Administrator which effectuated the important change discussed in Program Guide 21-1, change 282 and DM&S Prof. Serv. Letter IL-11-80-15. Because this change liberalized the evidentiary basis on which entitlement to a benefit could be established, it may be considered a substantive change providing a new basis for establishing entitlement to benefits and, consequently, a “liberalizing VA issue” for purposes of 38 C.F.R. § 3.114(a).

9. We recognize that, despite the publication of DSM-III in 1980, the schedule for rating mental disorders continued to require diagnosis of mental disorders in accordance with DSM-II until amendment of 38 C.F.R. §§ 4.125 and 4.126 on January 4, 1988. See former 38 C.F.R. §§ 4.125 and 4.126 (1987); 53 Fed. Reg. 21, 22 (1988). Further, we held in VAOPGCPREC 10-95 that VA is bound by regulatory references to obsolete editions of the Diagnostic and Statistical Manual for Mental Disorders until such time as the regulations are amended to revise those references. However, the notice adding a diagnostic code for PTSD to the rating schedule made clear that this action was taken to conform with DSM-III. 45 Fed. Reg. at 26,326-27. Thus, this change may be considered as establishing an exception to the then-existing general requirement that diagnoses of mental disorders for rating purposes conform to DSM-II.

10. Although we have concluded that the addition of PTSD to the rating schedule in 1980 may be considered a liberalizing VA issuance for purposes of 38 C.F.R. § 3.114(a), we note that section 3.114(a) does not authorize a retroactive award for every grant of service connection for PTSD. Both 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114(a) require that the effective date of an award made pursuant to a liberalizing act or administrative issue “be fixed in accordance with the facts found,” indicating that entitlement to a retroactive award is dependent on the existence of facts supporting a finding of entitlement from an earlier date. Where, as here, a change in law or VA issue became effective prospectively, entitlement to a retroactive effective date under section 3.114(a) does not arise unless the evidence shows that the claimant “met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement.” Therefore, though the addition of Diagnostic Code 9411 may be considered a liberalizing issuance, a retroactive effective date cannot be assigned unless evidence establishes that the veteran had developed PTSD as of April 11, 1980, and that the disability continued up to the date that the claim for compensation was filed.

HELD:

The addition of PTSD as a diagnostic entity in the schedule for rating mental disorders was a “liberalizing VA issue” for purposes of 38 C.F.R. § 3.114(a). However, an effective date prior to the date of claim cannot be assigned under section 3.114(a) unless the claimant met all eligibility criteria for the liberalized benefit on April 11, 1980, the effective date of the regulatory amendment adding the diag-nostic code for PTSD, and such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement.

Mary Lou Keener

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