The evolving PTSD claims process and the application of 38 U.S.C. § 1154

http://veterans.house.gov/hearings/hearing.aspx?NewsID=356

Below is one of many witnesses appearing before House Committee on Mar 23rd.

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Statement of Bradley G. Mayes

Director, Compensation and Pension Service
Veterans Benefits Administration, U.S. Department of Veterans

The evolving PTSD claims process and the application of 38 U.S.C. § 1154

Mr. Chairman and members of the Committee:

I would like to thank the Chairman for this opportunity to testify on the important topic of post-traumatic stress disorder (PTSD). Mr. Richard Hipolit of the Department of Veterans Affairs (VA) Office of General Counsel accompanies me today. The number of veterans receiving service-connected compensation for PTSD from VA has grown dramatically. From fiscal year 1999 through fiscal year 2008, the number increased from 120,000 to 345,520. We all share the goals of preventing this disability, minimizing its impact on our veterans, and providing those who suffer from it with just compensation for their service to our country. Consequently, VA has expanded its efforts to assist veterans with the claims process and keep pace with the increased number of claims. Today I will describe the PTSD claims process and explain how VA applies the statutory requirements of 38 U.S.C. §1154 to the processing of these claims. I will also describe the challenges met by VA through the years as PTSD claims and warfare tactics have evolved.

38 U.S.C. §1154

Section 1154, which was enacted by Congress in 1941, requires that VA consider the time, place, and circumstances of a veteran’s service in deciding a claim for service connection. Section 1154(b) provides for a reliance on certain evidence as a basis for service connection of disabilities that result from a veteran’s engagement in combat with the enemy. As a result, veterans who “engaged in combat with the enemy” and file claims for service-connected disability related to that combat are not subject to the same evidentiary requirements as non-combat veterans. Their lay statements alone may provide the basis for service connecting a disability, without additional factual or credible supporting evidence. In PTSD claims, a combat veteran’s personal stressor statement can serve to establish the occurrence of the stressor.

The PTSD Claims Process

The processing of PTSD claims is governed by 38 C.F.R. § 3.304(f). This regulation states that, in order for service connection for PTSD to be granted, there must be: (a) medical evidence diagnosing the condition, (b) medical evidence establishing a link between current symptoms and an in-service stressor, and (c) credible supporting evidence that the claimed in-service stressor occurred. The first two requirements involve medical assessments, while the third requirement may be satisfied by non-medical evidence. PTSD is defined as a mental disorder that results from a stressor. The third requirement of the regulation emphasizes the importance of the stressor and the obligation of the Veterans Benefits Administration (VBA) to seek credible evidence supporting the occurrence of that stressor.

In PTSD claims where the stressor is not combat-related, VBA personnel will conduct research and develop credible evidence to support the claimed stressor. However, the statutory directives of § 1154(b) have been incorporated into PTSD regulations at § 3.304(f)(2), so that when there is evidence of combat participation, and the stressor is related to that combat, no stressor corroboration is required. The veteran’s lay statement alone is sufficient to establish the occurrence of the stressor. In Moran v. Peake, 525 F.3d 1157, 1159 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit held "the term 'engaged in combat with the enemy' in § 1154(b) requires that the veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, as determined on a case-by-case basis." The Court said that "[a] showing of no more than service in a general “combat area” or “combat zone” is not sufficient to trigger the evidentiary benefit of § 1154(b)." When no combat award has been received, VBA relies on the circumstances of the individual case, as determined from the veteran's service records and other sources, to evaluate whether the veteran engaged in combat.

VBA responses to the changing circumstances of PTSD and warfare tactics

Through the years VA has made changes to § 3.304(f) based on the §1154 mandate to consider the time, place, and circumstances of a veteran’s service.

The definition and diagnostic criteria for PTSD evolved to a great extent from the psychiatric community’s attempt during the 1970's to explain the psychological problems of some Vietnam War Veterans. Once the medical community recognized this mental disorder, VA added it as a disability to the VA rating schedule. VA then moved to incorporate PTSD diagnostic criteria from the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM) into the PTSD claims evaluation process. According to DSM-IV, the symptoms of PTSD “usually begin within the first 3 months after the trauma, although there may be a delay of months, or even years, before symptoms appear." Given the delay that may occur between the occurrence of a stressor and the onset of PTSD and the subjective nature of a person’s response to an event, VA concluded, when it first promulgated § 3.304(f) in 1993, that it is reasonable to require corroboration of the in-service stressor, a conclusion with which the Federal Circuit agreed in Nat’l Org. of Veterans' Advocates, Inc. v. Sec’y of Veterans Affairs, 330 F.3d 1345, 1351-52 (Fed. Cir. 2003). Work is currently underway to update the disability rating schedule to compensate more effectively for disability due to PTSD.

As the military incorporated more female members into its ranks, VBA recognized that PTSD could result from personal assault and sexual trauma. These types of claims were increasing in numbers and are difficult to document. To meet this evolving situation, VA added §3.304(f)(4), which provides for acceptance of evidence for stressor corroboration in such cases from multiple sources other than the veteran’s service records. This evidence may include local law enforcement records, hospital or rape crisis center records, or testimony from family, friends, or clergy members. In addition, this evidence may be submitted to an appropriate medical or mental health professional for an opinion regarding the occurrence of the stressor. This expanded concept of potential evidence to corroborate the stressor in personal assault PTSD claims shows a positive and sensitive responsiveness on the part of VA to the changing demographics of the veteran population.

For the evaluation of PTSD claims where the stressor is not combat-related or the claimed stressor is related to combat but there is no initial evidence of combat participation, VBA has provided claims processing personnel with special tools to research veterans’ stressor statements. A website was developed that contains a database of thousands of declassified military unit histories and combat action reports from all periods of military conflict. In many cases, evidence is found in these documents to support the veteran’s stressor statement or confirm combat participation. Nationwide training was conducted to explain the use of this database and other official websites that can aid with stressor corroboration. This initiative illustrates the VBA commitment to assisting veterans with PTSD claims.

Although the combat participation provisions of §1154 have been in effect for many years, VA has recently provided a PTSD regulatory change that further carries out the intent of that statute and recognizes the changing conditions of modern warfare. Section 3.304(f)(1) now provides for service connection of PTSD when there is an in-service diagnosis of the disability. In such cases, the veteran's lay stressor statement and the medical examiner's association of PTSD with that stressor is sufficient to establish service connection when PTSD is diagnosed. This liberalization of regulatory requirements is due to the recognition by VA of the heightened awareness of PTSD among military medical personnel, resulting in increasing numbers and reliability of PTSD diagnoses for personnel still on active duty. This regulation also facilitates the timely resolution of PTSD claims and provides expedited payment of needed benefits to veterans.

These descriptions of PTSD-related initiatives make it clear that VA is committed to following the mandate of § 1154 and adjusting the PTSD claims process as necessary to better serve veterans. This concludes my testimony and I would be happy to answer any questions the committee members may have.

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