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VA Reviews of PTSD Disability

By Ray Parrish

The VA, in its unending quest to balance the federal budget on the backs of veterans, will cut off benefits for thousands of veterans who have been rated as totally disabled by a service-connected mental disorder such as PTSD (post-traumatic stress disorder). The VA has an unlimited supply of lawyers who will review the claim files of these veterans to see if they can sever or reduce compensation payments. They will be looking to prove that the PTSD is not totally disabling or that the veteran has failed to prove to their satisfaction that anything traumatic happened during military service. Although each case will be unique, veterans need to be aware of their rights. The procedure is explained in 38 CFR Section 3.103–3.105 and in the VA's Manual M21-1, Part VI, Chapter 9.

Veterans who are told their eligibility is under review should see a lawyer or a veterans service officer immediately in order to start looking for the evidence to satisfy the VA's obsessive compulsion with documentation.

Failure to Prove Wartime Trauma

The VA's rules to prove that a "stressor" actually occurred are confusing, even to VA adjudicators. (Look at the remands.) One reason is that being in a war isn't the same as being "engaged in combat" for the VA. Without medals for valor or a Purple Heart or documented proof that you personally were involved in combat, the VA won't take your word for what happened "in combat," so you need "credible" supporting evidence from "witnesses."

The VA inspector general's quick review of PTSD claim files revealed that 25% of them failed to make a "legally sufficient" case. Most of these will likely focus on a technicality such as supporting "buddy statements" not being notarized or not starting with: "I swear the following to be true…"

No Longer Totally Disabled

First, the VA must find "material" improvement in the disability, not simply "some" improvement. Since this judgment is open to the subjective determination of each rating specialist, we can expect that many will need to be appealed through the Board of Veterans Appeals into the U.S. Federal Court of Appeals for Veterans Claims.

They must review the "entire history of the disability," meaning that the review can't be based upon a single new examination. They must find that there has been an "actual" change in the disability, not simply a more accurate evaluation. They have to find improvement in the "ordinary" conditions of life and work, not in a protected work or supportive living situation. It also has to be based upon a thorough examination, not the usual fifteen-minute "How are you doing?"

Appeal!

Once the VA has what they consider to be sufficient evidence (after the exam), they must notify the veteran of the proposed action. The veteran must then be given at least sixty days to submit additional evidence. If he or she doesn't, the VA will then cut the benefits. More importantly, after the notice, the veteran has thirty days to request a "predetermination hearing." After the hearing, the VA can't cut the benefits until they have considered the evidence presented at the hearing or "developed as a result of the hearing" and have issued a "final determination concerning the proposed action." At that point the veteran has another sixty days to present more evidence.