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Welcome to The Veterans Disability Nexus, where we provide unique insights and expertise on medical evidence related to VA-rated disabilities. Leah Bucholz, a US Army Veteran, Physician Assistant, & former Compensation & Pension Examiner shares her knowledge related to Independent Medical Opinions often referred to as “Nexus Letters” in support of your pursuit of VA Disability every Tuesday & Wednesday at 7AM Central.
Take control of your medical evidence related to your benefits and visit https://podcast.prestigeveteranmctx.info/veteran/ for more information and to connect directly with us!
Hey, guys. It's Leah B here from Prestige Veteran Medical Consulting. I am a US army veteran, physician assistant, and former compensation and pension examiner. Today, we have a very special guest on, Rebecca Deming from ProVet Legal. For those of you who don't know her, please go back and check out some of our awesome content that we've created, together in the past because she's got some really great, you know, insight into the legal process and different topics on VA disability.
Speaker 1:So for those of you who don't know her, though, Rebecca, can you please kinda introduce yourself and tell everybody about you and your firm?
Speaker 2:Sure. Thanks, Leah. Happy to be back on with you. I run ProVet Legal, which is a law firm dedicated to helping veterans and their families access benefits that they deserve through the VA system. My husband is a veteran, a Navy veteran with twenty seven years of service, and I that's why I got into VA law because I started helping him with his claim and realized that there was a lot to do to help veterans with their claims.
Speaker 1:Sure. Sure. Well, thank you for everything you and your team do for veterans. You're always a great sounding board and just great. I hear nothing but positive remarks from veterans that you work with.
Speaker 1:So, to launch in today's to today's topic, we're gonna talk about how to prove mental health claims without a diagnosis in service because there's many veterans out there that that maybe experienced mental health symptoms while in service, didn't seek help, or perhaps they developed it due to a secondary service connected disability later on, after they separated. So the first question I wanna ask you is is can a veteran get service connection for mental health even if they didn't have a diagnosis in their military records?
Speaker 2:We deal with those kind of cases all the time. I will say it's an area that VA gets wrongs a lot of times, especially at the initial claim level. If there's not a diagnosis in service, sometimes it's just easier to say no. But we know the realities of service and kind of why veterans might not have gone to seek care during service. So, absolutely, if you didn't have a diagnosis in service, that's not a a full stop to getting benefits.
Speaker 2:You can certainly apply after after you get out. So can you tell us about what
Speaker 1:the basic criteria are for a successful mental health claim?
Speaker 2:Sure. It's the same as any VA disability claim. You have to have proof of something that happened in service. So it's either an onset of a condition in service, a trigger in service, or, like you'd mentioned, it could be, another service connected disability or something that kind of exposure or something in service. You have to have a current diagnosis.
Speaker 2:Sometimes VA can do those the diagnosis during the CMP process, but it's definitely helpful if you've sought mental health treatment. And it doesn't matter what the diagnosis is. It doesn't, you know, whether you have adjustment disorder, anxiety with mixed depression, PTSD. For the most part, the there's not really a distinction in between those diagnoses. It's how those symptoms affect you and then whether they're connected to service.
Speaker 2:And so the third piece is the connection. So it's something that happened in service and a connection between your current diagnosis and that thing that happened in service.
Speaker 1:Sure. So I hear a lot about stressors and stressor verification and especially when with PTSD and when people get denied for that. Can you can you talk to us a little bit about what counts as a in service stressor?
Speaker 2:Sure. So the stressor, analysis really comes into play when we're talking with about diagnosis for PTSD. Now there could be stressors for other that trigger other mental health conditions, but it's VA really looks at stressors when they're looking at PTSD for the most part. And so to be a stressor for for PTSD, it has to be it has to meet the diagnostic criteria of being stressor. So fear of death or imminent harm to yourself or someone in your immediate vicinity and then enough to trigger symptoms afterwards.
Speaker 2:And VA makes a distinction between combat related stressors and noncombat related stressors when they're evaluating it for VA purposes. Not that one is gonna be always a bigger stressor. It's not that they're saying that combat is always more stressful than certain stressors that can happen stateside, like like military sexual trauma or, you know, witnessing a a death or an injury or or having a rollover while you're in training or something stateside. So those things can still be, just as stressful or more stressful than certain things that happen downrange. The difference is how you prove it.
Speaker 2:And so if you're showing that something happened in during combat, that a stressor happened during combat, VA basically has to give you the benefit of the doubt that it happened. So if you if you give a personal statement about a stressor during combat, as long as it aligns with, the types of things that would be expected to to happen on that deployment in that location, VA is gonna assume that the stressor occurred. If If it's stateside, you need a little bit more, proof or evidence, I should say, that something happened in service.
Speaker 1:That makes a lot of sense. So, I've seen things in the past too. Like, if if a person has, when it's combat related, if they have a specialty combat badge, like combat action badge or combat infantry badge or combat medical badge, sometimes that can, I don't know if it's really automatic, but it it pretty much helps establish that there was a stressor just by nature of having that type of award? Right?
Speaker 2:Yeah. Yeah. I mean, I it it's funny. I'll not funny, but I'll I'll talk to a lot of, like, my Vietnam era vets. Mhmm.
Speaker 2:And, you know, they they'll go into all this detail about the hand to hand combat with the Vietcong and how you know, they're hiding behind this palm tree and this hut and, you know, the enemy came out. And that's not gonna show that they're that they have a current disability or that it's Mhmm. How severe it is. It's like VA's already gonna acknowledge. Like, if you were in combat, check that boxes.
Speaker 2:It's pretty much done. I mean, not everybody who deploys in a combat zone automatically has a stressor. But if you were exposed to to certain things that a psychologist says, psychologist or psychiatrist says could trigger PTSD and they happen during combat, then, that box is almost automatically checked.
Speaker 1:Okay. So what happens if there's no record of a stressor? What what would a veteran what can a veteran do to prove that?
Speaker 2:There's a few things. The the biggest one is, what we call buddy statements or lay letters. Mhmm. Lay statements. And that can be from someone that you served with.
Speaker 2:It can be someone who saw you, you know, when you deployed, you were one way. And when you came back, they saw a change in your personality. So the statements about what people witnessed, just from the vet statements from the veteran themselves are credible, but it's helpful to have statements from somebody else who who witnessed something to verify what the veteran is saying is true. So those statements are really, really important. There are also ways even if it's not in your service records, there are ways to gather records.
Speaker 2:And VA has the duty to kinda do that historical research if you if you point them in the right direction. So if you if you had a, a fellow service member who died during active duty and that's your stressor, that's not gonna be in your records because they're not gonna put another veteran's name in your record. But if you give them the name of the veteran who died and the approximate dates, they should be able to do a record search and and pull that up. You know, we've had ones where the stressor was something happened on a aircraft carrier. They're firing aircraft carrier.
Speaker 2:You know, those aren't gonna necessarily end up in your personnel records, but the military keeps records of those and of those kinds of events, and VA has duty to search for them. If they don't do a great job, our team has been able to work with the research librarians sometimes to to identify some of those records.
Speaker 1:That's awesome. Yeah. I've seen a lot of those deck logs. The older deck logs can often be handwritten, so they can be hard
Speaker 2:to do for sure. Yeah. They're handwritten, and they're page by page. You can't do, like, a control find and and search for them. But if you can narrow down the dates when, you think something happened, you can sometimes find you know, we we were able to triangulate.
Speaker 2:We had a veteran who said that they, survived a typhoon in The Pacific on a on a ship and that somebody went overboard. So we're able to kind of figure out during that year where would the ship have been, what storms were in the The Pacific that would have crossed paths with the ship and kind of narrow it down to a few dates and and search. We're able to find the the deck logs that showed that what he said happened actually happened. So that's a really good one. Especially when we're talking about military sexual trauma, there's something that VA calls markers.
Speaker 2:Mhmm. And markers are, things because they recognize that you know, obviously, if you if you went to military police and reported an incident, that report's gonna be really strong evidence that your stressor happened. But we know that a lot of people don't report stuff for a lot of valid reasons and personal reasons. So there's markers. And so, you know, if you were sailor of the year and then the instant that you say happened occurred, and then after that, you started having disciplinary issues and you went AWOL for a little bit, and you ended up, getting out of service early, Those are markers.
Speaker 2:So things that kinda change. If you ask for a change in command mid mid duty or something, those kind of things are are markers that VA is trained to look for and identify and say, yeah. That Something changed around this the time that the veterans said something happened in their service, and there's probably a reason for it. And so we're gonna give more credibility to their lay statements about about what happened.
Speaker 1:Sure. Yeah. I I know I've seen things too, like, on people maybe in their medical records that maybe they weren't seen for their, sexual assault, but maybe there's STD testing that was done around that time or, you know, and that in and of itself may not be enough. But in, you know, in conjunction with other things, maybe they started having marital issues at that time. Maybe they started having, you know, a variety of things.
Speaker 1:In in no case, I'm sure is, you know, one size fits all. Every everyone is on the individual basis. Right?
Speaker 2:Yeah. And so VA does have you know, for the military sexual trauma cases, those are all handled by, a certain set of VA employees that have additional training in military sexual trauma or MST cases. And so a lot of times VA will get those cases right on the first time, but because of those nuances of, like, what is a marker and how do you show that your service kind of changed around the time if you didn't report it. If VA gets it wrong, that's a really good time to get a VA accredited attorney or an accredited agent involved in your case to do an appeal. Because if something really happened to you, we'll be able to dig through and find the evidence and work with you to gather the evidence that you need to to show that it happened.
Speaker 1:Sure. That makes a lot of sense. So, like, let I I wanna ask your ask your thoughts on VAC and P exam. So I know you already said something about how sometimes they will diagnose a person, that maybe didn't have a diagnosis, or maybe they'll update a diagnosis or have their own opinion on it. But what are some of the other roles that a VAC and P examiner or a VAC and P exam itself plays in the role of, in the mental health claim?
Speaker 2:Yeah. That's a great question. So when it's a PTSD claim, they are checking boxes specific to say, you know, what was the stressor? Was the stressor sufficient to cause PTSD symptoms? Are the symptom do the symptoms rise to the level of that meet the diagnostic criteria for PTSD?
Speaker 2:So there's actually, like, more steps that they have to check on the on the box if they're evaluating you for PTSD. They are looking at and it's kind of an interesting role because they're trying to diagnose and the they're usually, they're asked to give an opinion about whether your current mental health condition is related to something that happened in service.
Speaker 1:Mhmm.
Speaker 2:And so, you know, they're the medical experts. They're not the ones that are charged with verifying your in service stressor. That's VA's job. But sometimes that C and P exam comes in first, and so they're saying, well, there was no so a lot of times we'll see C and P examiners say there's no record. You know, they didn't seek treatment in service, and so therefore, I can't connect their current diagnosis to something in service because there's no record of treatment in service.
Speaker 2:And that's just not the right standard. You know, that's an issue with VA asking the wrong question or the examiner misunderstanding their role Mhmm. I think. But we we do see that a fair amount where they they don't connect the dots. The other thing that the C and P examiners will do is they categorize how severe your symptoms are.
Speaker 2:Mhmm. And they have boxes that they check on their disability benefit questionnaire that often VA kind of copies that know, they're supposed to do their own analysis. The raters are supposed to do their own analysis. But often, whatever box the the examiner checks is the corresponds with the rating that VA gives you. So if they check the box for occupational and social impairment with deficiencies in most areas, that corresponds with a seventy percent rating.
Speaker 2:We very often see that if the examiner checks that box, VA's gonna assign a 70% rating. And so they they enter all the details. So you really do wanna be open with the examiner. It's not a time to kind of be chummy and be like, yeah. Everything's fine.
Speaker 2:I cope really well. You know, I know most most veterans don't wanna be whiny or come across if they're complaining about their lives or, you know, they have pretty good coping mechanisms. But it's the time you wanna go in there and kind of explain all the stuff that that's been challenging and, talk about the way that it's impacting your marriage and the way it's impacting your relationship with friends or kids or loved ones, how it's impacting you at work. Because you want that examiner to capture all those symptoms and be able to, check the boxes that are gonna maximize the rating for you and capture, like, the real level of your disability for you.
Speaker 1:Sure. And and that's almost in any exam, right, is you wanna be vulnerable and just transparent instead of, you know, being that way that we're taught for so many years to just sort of be that tough person, that vulnerability. Even even though it's gonna be really uncomfortable for that hour exam or whatever it is, it's it's so important for you to just be honest.
Speaker 2:Yeah. I think it's you know, emotionally, I think it's harder for people to to open up on a psych exam Mhmm. Or mental health exam because, you know, if you think about if if you are getting mental health therapy, you've developed a relationship with your therapist over multiple sessions where you feel comfortable admitting certain things. And in this exam, you've got forty five minutes, an hour with someone that you've met for the first time, and you've got to tell them, you know, what's going wrong in your marriage and how you have issues with impulsivity and have made bad decisions and, know, what's going on in your job and why your boss hates you or why you know, whatever the whatever the the problems are in your life. It's really hard for people to open up.
Speaker 2:So I do see a lot of vets go in and be like, yeah. No. I'm fine. And they're like, I don't know why they only gave me a 10% rating for this. Like, well, because you told them you were fine.
Speaker 2:Well, shouldn't they be able to, like, know more no. They don't know more than what you tell them. And it's and that brings up a good point. Even if you're getting mental health treatment Mhmm. The and I've talked to different therapists and psychologists and psychiatrists.
Speaker 2:The way that they keep notes often is more for their own record keeping and for insurance purposes. And so you might spill your heart to your therapist, and they might know everything about what's going on. But your treatment notes might just look like, you know, we talked about coping mechanisms. We talked about how to handle stress and different breathing techniques or something. It, you know, it's not necessarily gonna document everything that's going on.
Speaker 2:So a lot of the the mental health notes aren't sufficient to on their own to to get you the rating that you actually deserve based on, like, what you've been discussing with your your therapist. Sure.
Speaker 1:Well and that brings up another good point I was gonna ask you about is is can private medical records, private mental health records be helpful, to this process? And then also if somebody doesn't have any private mental health records, can that be really, you know, bad for them?
Speaker 2:So, yeah, having private mental health records definitely can be helpful. Like I said, it sorta depends on what's in those records and how your your provider is keeping records. And and if they're if your private provider's willing to write up a statement about your prognosis and kind of a summary of your care, that's helpful. Some of them really I think it depends on the state, and it depends on whether they're you know, what kind of, mental health provider they are, and and their practice group regulations and all that stuff. But, some of them are like, I'm here to treat you.
Speaker 2:I'm not here to to write a nexus. So and others are like, I'll do whatever it takes to help you out. So it it really depends on, but if we can get those private records, those are really, really helpful. I have seen VA say, well, they're not getting treatment, so they must not have a problem. That's just bogus.
Speaker 2:I mean, it it certainly happens that VA will say that, but that's something that we can appeal because a lot of people, for a variety of reasons, don't wanna get mental health. You know, they might not have time. They might not have the money. They might not they might get frustrated with the VA system because they had a good therapist and the therapist left, and they didn't wanna start over with someone new. There's a lot of reasons why people don't get therapy other than they're cured, and they're all better.
Speaker 2:So, if you're not getting we just have to look to other pieces of evidence to prove symptoms.
Speaker 1:Sure. And that's that's kind of why I was about to ask you about lay statements or buddy statements. How how can they be helpful in cases?
Speaker 2:So there's two ways that the buddy statements can be really helpful. Mhmm. One is in proving that there was an in service incident or that something is connected to an in service incident. So if, you know, somebody witnessed the, the training accident that happened that's the cause of your your PTSD or your depression or whatever, getting a statement that substantiates that is can be really, really helpful. The and then the flip side of that is if somebody has seen changes in the veteran, know, they went away a happy happy go lucky kid, and they came back and had a drinking problem and never left the room and were super explosive and, you know, whatever.
Speaker 2:So those kind those letters can come from family members. They might not have seen exactly what happened, but they saw a change around the time of a deployment or around the time of an enlistment or something like that. The other way that body language can be helpful is by showing the level of severity. So you can get a letter from your pastor, a letter from, your boss, your wife, your husband, your your adult kids. You know, you don't wanna get letters from minor kids.
Speaker 2:But you can get letters that say things like, you know, we used to enjoy going bowling every Saturday, and now I can't get the veteran out of the house. And, you know, our marriage is on the rocks because we're having these arguments. And all those symptoms that kind of, align with the way that VA rates stuff, those can be captured through, people who live with and and spend time with the veteran and have observed those symptoms.
Speaker 1:Sure. Well, what what if the veteran is not, doesn't seek care or file that claim until many, many years after service? Like, how can that impact the claim?
Speaker 2:It is typically more challenging if there's a longer gap between service and filing something because there's more life that happens in between. So there's more stuff that could could have been a trigger. Something else could have happened that, so for PTSD claims, we're again, we're looking at the the in service stressor or trauma related incident Mhmm. To kind of prove it, or we can show that there was been there's been continuity of symptoms since service. So if they've if if their issue is alcohol abuse disorder, depression and alcohol abuse disorder, and we can show that, you know, they went in, they weren't drinking, especially if they went in before they were 18 and weren't even allowed to drink and came out and they've been heavily drinking ever since and there hasn't been a change, then that's one way to show it.
Speaker 2:But, yeah, definitely can be challenging if there's a if there's a gap unless, but we look at other ways to kind of, gather that evidence.
Speaker 1:So what if VA says or even the the military says this person just has a personality disorder and they got put out for personality disorder. They currently just have a personality disorder.
Speaker 2:That's a great question. So personality disorders are not service they're not, disabilities for VA purposes, so you can't get compensation for a personality disorder. Mhmm. That said, if if VA says you have a personality disorder, I would wanna get a second opinion to see if it's a personality disorder or if it's some sort of, trauma related incident response to to trauma like PTSD. I also do see a lot of misdiagnosed personality disorders and especially when there's race involved.
Speaker 2:I've I've seen more people of color be diagnosed incorrectly with personality disorders. I mean, I'm sure there's a lot of literature on why that happens, but I I question a diagnosis of personality disorder. If it's a true personality disorder, though, unfortunately, you can't get benefits for that.
Speaker 1:Sure. So and we talked about those that don't seek mental health care and those that do, how that can sometimes be difficult. What if a veteran let's talk about hospitalizations and medications. Can those, make a case stronger or make a case weaker if a veteran has not had hospitalizations or medication management?
Speaker 2:There's a lot of ways to treat mental health disorders, and some include medications. Some include, exposure therapy, talk therapy. There's a lot. So what your treatment regimen is or if you don't treat at all is really doesn't matter too much. With hospitalizations, when you're hospitalized for the period that you're hospitalized for mental health disorder, that should be rated at a hundred percent.
Speaker 2:So it's evidence that you're really not functioning. If if you're suicidal, homicidal, at risk of harm to yourself or others, essentially, that meets the 100% criteria. So I think even if you're even if you're being hospitalized voluntarily for, an inpatient drug and alcohol abuse program, then, then you can get that 100% rating while you're assuming it's connected to service. But, yeah, that's strong evidence that it's you know, because it's really hard to keep a job. It's really hard to maintain a marriage or social relationships if you're in and out of hospitals.
Speaker 2:So those are strong indications that you have a a severe disability that meets the higher rating schedules. So what would you say is
Speaker 1:the first, the the best first step for veterans that are filing mental health claims or considering filing mental health claims?
Speaker 2:Honestly, I would say best first step is just to file it. I think people get in their head, especially, you know, it's a mental health claim. They get in their heads about, like, I haven't been able to find all of my evidence. I don't have proof that everything happened. I've gotta line up all my buddy statements beforehand.
Speaker 2:I mean, if you can line up some buddy statements to show an stressor, that's great. But I would, you know, maybe consider getting a diagnosis. If you don't have a diagnosis, talk to your VA health care providers and just say, hey. I've been really struggling mentally. Can I can I get an appointment with psychology to, to talk about this and see if there's a a diagnosis?
Speaker 2:But I honestly, I wouldn't let all of those things get in the way of filing something because a lot of that will shake out during the rating process and be able to schedule you for a C and P exam. Usually, if, you know, if you're saying that something's wrong, they they should be, examining you to to figure it out. So I think a lot of people wait with mental health claims. Think a lot of people wait because they're trying. They're letting perfection get in the way of just getting the claim process started.
Speaker 1:So this has been incredibly helpful and informative. So thank you as always, Rebecca, for joining us and for sharing all of your, knowledge and tidbits about the VA claims process. So veterans, if you found this valuable, please drop some comments. Let us know if you have questions. Reach out to Rebecca at ProVet Legal.
Speaker 1:I'm gonna have a link to her website in the description of this video. And, please like and share this with anyone that you know that, may be struggling with this or or going through this, and and maybe it can help your fellow veterans. So as always, thank you for your service, and thank you for watching. And, Rebecca, thank you for being here.
Speaker 2:Thank you, Leah. This was fun.
Speaker 1:See you guys soon.