Archive for May, 2008
By: Kristina L. Derro
Fausone Bohn, LLP
The most recent estimate is that one third of all U.S. soldiers returning from Iraq need mental health treatment. Many will seek VA disability compensation upon their return and join the thousands of veterans from other conflicts that have mental health claims already pending before VA. Obtaining service connection from VA for a mental health disorder is a high hurdle. The service connection determination is not the only fight. Veterans also tend to be underrated by VA for mental health claims—their rating does not adequately represent their current level of functioning. With the high numbers of compensation claims pending before VA (at last count 838,000 in 2007), it is all too common that VA moves the file by granting service connection and a low rating (10% or 30%) for the disability thereby “closing the file”. It is imperative that all information delineating the veteran’s current level of functioning be submitted to the VA so a proper rating can be obtained.
The burden often falls to veterans’ advocates to ensure that sufficient information has been submitted to garner a proper rating. VA loosely bases its ratings for mental health disorders on scores from the Global Assessment of Functioning (GAF). The GAF score is part of a multiaxial assessment of mental health disorders and is used by mental health clinicians and doctors to rate the social, occupation, and psychological functioning of adult patients. It is a numerical scale from 0-100, and the higher the patient’s score, the better he or she is functioning. VA rating criteria mimics these standards. See 38 CFR § 4.130.
91-100 Superior functioning in a wide range of activities, life’s problems never seem to get out of hand, is sought out by others because of his or her many qualities. No symptoms.
81-90 Absent or minimal symptoms, good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns.
71-80 If symptoms are present they are transient and expectable reactions to psychosocial stresses; no more than slight impairment in social, occupational, or school functioning.
61-70 Some mild symptoms OR some difficulty in social, occupational, or school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships.
51-60 Moderate symptoms OR any moderate difficulty in social, occupational, or school functioning.
41-50 Serious symptoms OR any serious impairment in social, occupational, or school functioning.
31-40 Some impairment in reality testing or communication OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood.
21-30 Behavior is considerably influenced by delusions or hallucinations OR serious impairment in communications or judgment OR inability to function in all areas.
11-20 Some danger of hurting self or others OR occasionally fails to maintain minimal personal hygiene OR gross impairment in communication.
1-10 Persistent danger of severely hurting self or others OR persistent inability to maintain minimum personal hygiene OR serious suicidal act with clear expectation of death.
0 Not enough information available to provide GAF.
American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000.
The GAF score is given by a mental health professional usually after a one hour appointment with the patient. During this appointment, the clinician will gather the patient’s history based upon his or her recollection. The clinician will also review any prior medical records in the patient’s file to determine current diagnoses and history of treatment for conditions. After reviewing all the information (again based upon what the patient says and submits), the clinician will assess the patient on 5 axes. Axis I lists all psychiatric diagnoses. Axis II lists any personality disorders, mental retardation, and habitual use of maladaptive defense mechanisms. Axis III lists any general medical conditions (other than mental health diagnoses which are listed in Axes I and II). Axis IV lists any psychosocial and environmental problems (including any negative life event, environmental difficulty or deficiency, familial or interpersonal stress, or any inadequacy of social support or personal resources—such as loss of job or low finances).
Finally, Axis V lists the GAF score. The GAF score connotes the current level of functioning (as of the time of the appointment), although if specifically enumerated, the clinician can explain that the GAF score may be the “highest level of the past ___” (and express the time frame, whether months or a year).
As stated earlier, the clinician’s first assessment of the veteran is based solely upon the veteran’s recollection of his functioning and history. In general, people with mental health diagnoses are not the best historians. They often justify the symptoms on alcohol or drug abuse because it is more socially accepted than mental illness. They may deny symptoms because one of their defense mechanisms is denial, or they may deny the severity of their symptoms because of the stigma associated with mental illness. Compounding the problem are individuals who simply give yes or no answers without providing an explanation. Mental health providers must be skilled in questioning patients because they may minimize symptoms or not give sufficient explanations. Whatever the reason, this will drastically impact the veteran’s GAF score and ultimately his or her VA rating. Although, the veteran may feel that the examiner “liked me” upon completing the process.
Unfortunately, the case law does not specifically state that a particular GAF score corresponds to a certain VA rating. It is left open to a more holistic approach where the VA’s rating personnel must take into account all the evidence of record. Therefore, it becomes even more important to rebut an inadequate GAF score, as VA must take into account all the additional evidence compiled in the veteran’s file and not just rely solely upon the GAF score given during the Compensation and Pension Examination.
As advocates for veterans, we must learn ways to counter an inadequate GAF score in an attempt to help raise a veteran’s VA disability rating. Many veterans do not have the financial resources to pursue another psychiatric examination in order to receive a GAF score that adequately encompasses his or her current functioning. As such, it comes to their advocates to attempt to rebut the GAF score through the submission of additional evidence.
A well-written one-page lay statement that provides a detailed overview of the veteran’s current functioning is always a positive addition to the veteran’s claim. The veteran can provide a more in-depth look at his daily functioning, discussing topics not touched upon during the psychiatric examination (or perhaps only cursorily discussed). This can also be the avenue for the veteran to better explain some of his answers during the psychiatric examination. It can provide a more sympathetic picture of a day in the life of the veteran.
A statement from a friend, family member, or caregiver can supplement the veteran’s claim as well. These statements, signed by the individual and including an attestation clause stating that the foregoing statement is true and correct to the best of the writer’s knowledge and belief, can provide additional insight into the veteran’s functioning. Many times third parties have a better perception of the isolation, hygiene habits, and explanation of functioning that the veteran may not be cognizant of. These individuals may have a better idea of what “normal” behavior is, and how far the veteran’s functioning has deviated from that standard.
Many veterans can keep track of the frequency of their symptoms. Simple calendar entries can be submitted to show the incidence of nightmares, flashbacks, panic attacks, or number of hours slept each night, for instance.
The submission of criminal records can supplement a VA claim, although should be used sparingly and with great discretion. Many psychiatric illnesses involve outward expressions of anger. Numerous arrests for assault or domestic violence can provide outside corroboration of the veteran’s statements regarding his or her increased irritability and lashing out. Additionally, a multitude of arrests for Driving Under the Influence (DUI) can support the veteran’s contention that he or she has been self-medicating psychiatric symptoms through the use of alcohol.
Finally, employment related documentation can provide insight into the veteran’s functioning as well. If he or she maintains employment, performance reports can be submitted to provide an overview of the veteran’s functioning while in an occupational setting. Many performance reports will detail decreased work output, difficulty with coworkers/supervisors, and an inability to follow directions. The situations delineated in these reports can indicate signs of a loss of interest, memory impairment, and irritability/anger—all criteria of the VA’s rating schedule for mental health disorders.
Additionally, an explanation of the type of employment held by the veteran can shed some light on his or her current functioning. VA often asserts that if a veteran is able to hold employment then they deserve a lower rating. In fact, many veterans function poorly yet are still able to maintain a job. For example, many veterans work in low-stress, manual labor positions that allow them to work in solitude and in a protected environment—some are park rangers, utility-line markers, utility meter readers, midnight security guards, etc. This provides the veterans with employment, but does so in an environment that allows them to maintain their decreased functioning due to their mental health disorder—many other jobs involve contact that causes conflict or draws attention to their symptomatology and requires them to fit into the more “normal” mold.
Whatever information is ultimately submitted in the particular veteran’s claim, it should be reviewed by the veteran’s lawyer before submission to VA to ensure that it doesn’t inadvertently support VA’s current rating of the veteran. Additionally, the submission of certain evidence may be counterproductive—when the veteran is asserting that he does not socialize and yet he has his seven of his best friends submit statements on his behalf.
While VA tends to initially rate veterans on the low side when it comes to mental health disabilities, the submission of this additional information to VA can provide a more complete picture of the veteran’s daily life. It can also be used to try and rebut a GAF score that is much too high and not indicative of the veteran’s current level of functioning. The advocate needs to think outside the box when it comes to rebutting a GAF score. Seemingly insignificant information can be submitted in order to draw attention and support the showing of a veteran’s decreased functioning.
The entire VA claims process can be challenging and stressful. A veteran suffering from a mental health disability can easily find this process overwhelming and has a pressing need for a good advocate whether lawyer or VSO.