PTSD in Returning Wounded Warriors: Ensuring Medically Appropriate Evaluation and Legal Representation through Legislative Reform
Liang, Bryan A., Boyd, Mark S., Stanford Law & Policy Review
It is forecasted that up to 20% of Iraq and Afghanistan War veterans have either been diagnosed with or will suffer from symptoms of Post Traumatic Stress Disorder (PTSD). (1) Many of these veterans face challenges negotiating the minefield of the Department of Veterans Affairs (VA) disability claims process--a process that includes a lengthy application (2) and strict deadlines)
In order to receive a PTSD diagnosis and compensation, wounded warriors must work through two separate entities within the VA system. First, veterans must obtain a medical diagnosis from the Veterans Health Administration (VHA). Then, they must pursue disability compensation through the Veterans Benefit Administration (VBA). During this process, veterans confront a complex rating system with conflicting requirements. (4) Confusion, inaccuracies, and missed deadlines often result in denial of claims and appeals. (5) Veterans with PTSD are especially likely to fall through the cracks along the way. PTSD symptoms themselves, such as lack of concentration, (6) exacerbate the complexities faced by wounded warriors and prevent some veterans from successfully completing a claim for disability. (7)
Statutes and VA regulations currently prohibit attorneys from receiving compensation for representing or assisting veterans during the initial application. These regulations essentially ban representation in all but a few cases. (8) In 2006, Congress enacted the Veterans Benefits, Healthcare, and Information Technology Act. (9) The Act allowed attorneys to be compensated for representing veterans only on appeal of denied disability claims. Prior to 2006, attorneys were allowed to represent veterans but could not be compensated for their work. (10)
While compensating appellate representation was a step in the right direction, this focus is inappropriate, particularly for PTSD-affected veterans. Attorney representation at the initial stages of a claim would help veterans during their time of greatest need, resulting in a PTSD file that is complete with substantiated claims, filed on time, and focused on the claims process and tasks. This would hopefully result in an award of the maximum disability benefits to which these veterans are entitled.
This piece proposes legislative reform that would allow veterans who struggle with the claims process, such as those with PTSD, the choice to hire an attorney to represent them during the initial claims process. It also calls for the use of clinically-focused evaluations of disability for PTSD and other mental health disorders through adherence to Diagnostic and Statistical Manual, Fourth Edition, Text Revision (DSM-IV-TR) diagnostic standards to bring rationality into the process. Part II provides a background on the VA and discusses disability compensation, adjudication of claims, and the instruments used to rate a disability. Part III discusses PTSD and the increasing recognition of the disorder as a key disability in recently wounded warriors returning from Operation Enduring Freedom/Operation Iraqi Freedom (OEF/OIF). Part IV reviews the inherent problems within the veteran compensation system, including those relating to PTSD, such as the VA's use of an outdated General Rating Formula (the Schedule), the confusing, combined use of the DSM-IVTR and the Schedule for rating PTSD, proof issues in showing a service connected stressor, and problems with assessments. Part V outlines the system of attorney representation for Social Security Disability Income claims, which are comparable in size and scope to VA disability claims, and details arguments for adopting a similar attorney-friendly system for wounded warriors. To address the concerns raised, Part VI contains a proposed statute that would reform the veteran disability evaluation and assessment system. It objectifies the medically-oriented wounded warrior evaluation by requiring DSM-IV-TR use and standards to assess potential PTSD disability. …