by Jim Fausone

The rash of suicides this year that involve members of the military has been getting plenty of attention.  Veterans face the same suicide problem brought on by the stress of war.  Military veterans with psychiatric illnesses are at increased risk for suicide, says a new study by the University of Michigan in conjunction with US Department of Veteran Affairs.

The researchers examined the psychiatric records of more than three million veterans who received any type of care at a VA facility in 1999. Over the next seven years, 7,684 of the veterans committed suicide. Slightly half of them had at least one psychiatric diagnosis. All of the psychiatric conditions included in the study — depression, schizophrenia, bipolar disorder, substance abuse disorders, post-traumatic stress syndrome (PTSD) and other anxiety disorders — were associated with increased risk of suicide.

 To read more about the study:

http://www.businessweek.com/lifestyle/content/healthday/645083.html

by Jim Fausone

The story is not that unusual - a service member suffering from psychological problems starts to self medicate, gets kicked out of the service and loses access to VA benefits. Veterans advocates see cynical forces at play in the use of administrative discharges for reasons including misconduct, personality disorder and adjustment disorder — defined as an excessive reaction to a stressful event, with symptoms similar to PTSD. 

The Department of Defense stands to save between $5 billion and $20 billion in lifetime health care and benefits to the estimated 10,000 to 20,000 veterans with so called dubious discharges.  Department of Defense officials have denied they use improper discharges as a cost-saving measure and say discharge policies continue to evolve as they learn more about PTSD and traumatic brain injury.   If you like a conspiracy, this has all the makings needed.  Read more at:

http://www.statesman.com/news/texas-politics/bad-paper-dischares-can-stymie-veterans-health-care-950891.html?srcTrk=RTR_781143

by Jim Fausone

We see soldiers discharged for or diagnosed with “personality disorder” all too often in our veteran disability practice. As a result, the veteran is not going to receive VA benefits.   Personality disorder is a “preexisting condition” so there will be no grant of VA disability compensation. After an article in The Nation magazine, the Defense Department changed its policy and began requiring a top-level review of each case to ensure post-traumatic stress or a brain injury wasn’t the underlying cause rather than a pre-existing condition. The Army had been discharging 1000 vets per year with personality disorder.  However, the annual number of personality disorder cases dropped by 75% after the new policy was implemented. Only 260 soldiers were discharged on those grounds in 2009.

At the same time, the number of post-traumatic stress disorder cases has soared. By 2008, more than 14,000 soldiers had been diagnosed with PTSD – twice as many as two years before. The Army is now looking at if it misdiagnosed and discharged thousands of veterans in the last few years. The article attached discusses this problem and highlights the need to challenge a VA denial of claims for personality disorder.

http://www.usatoday.com/news/health/2010-08-15-incorrect-ptsd-dismissals_N.htm

By Kristina Derro

An article published in “USA Today” reviewed the recent findings from an Army study. http://www.usatoday.com/news/military/2010-07-29-army-suicides_N.htm?POE=click-refer The study found that in 2009, 160 active-duty soldiers committed suicide, 146 more died during “risky activity” such as drug use, and 1,713 soldiers attempted suicide. The study found that a record high number of suicides are linked to a “permissive” Army environment where soldiers use alcohol and drugs, commit crimes, and refuse to get psychological help.

General Peter Chiarelli was quoted as saying that “[w]e must realize that on occasion we need to do the right thing for both the soldier and the Army through firm enforcement of discipline, retention, and separation policies”. The Army determined that the push to prepare and deploy troops into combat zones has caused commanders to become lax on prosecuting disciplinary cases, completing paperwork on disciplinary cases, doing unannounced urinalysis testing, and checking barracks.

The report found that too many soldiers who failed drug tests or committed crimes were allowed to remain in the Army because the Army was focused on a commitment to combat in Iraq and Afghanistan and allowed routine oversight of soldier behavior to lapse. The report continued, explaining that “[s]oldiers who ultimately take their lives have typically been engaging in high-risk behavior long before their tragic end….Ultimately it poses the question: Where has the Army’s leadership in garrison gone?”

 It seems that yet another Army study has missed the mark, to put it lightly. Claiming that soldiers who commit suicide are engaged in “high-risk” behaviors beforehand is ludicrous and seems to imply that the Army is filled with drug addicts who engage in criminal behavior. Perhaps if the Army investigated what it alluded to in the article—a push to keep its soldiers in combat—it would find the true reason behind the high suicide rate. Mental health concerns have skyrocketed in the Army. With both long and repeated deployments, soldiers face the rigors of war on a daily basis, sometimes for years on end. It’s understandable that depression, anxiety, and posttraumatic stress disorder are on the rise, leading soldiers to attempt suicide or self-medicate through drinking and drugs.

While discipline and order belong in the Army, the Army should also investigate the way it handles mental health treatment. More access to services, less stigma or negativity if the soldier does seek treatment, and perhaps mandatory mental health treatment for returning combat soldiers would all help lessen the increasing levels of mental health concerns. Less mental health concerns in turn means less self-medicating and less suicide.

by Kristina Derro

Cooperative efforts between the VA and several local state courts have allowed for the implementation of a specialty court. These specialty courts around the state of Michigan (with many others in different states as well) give service members from World War II up through the recent Iraq and Afghanistan conflicts rehabilitation from drug addition, alcohol abuse, theft, vagrancy, and other nonviolent crimes that stem from post traumatic stress disorder (PTSD), traumatic brain injury (TBI), or other war-related symptoms.

It is up to the local court, through its judges, staff, and probation department, to adjust their dockets to allow for the program. However, the treatment itself is paid for entirely by the VA. It is a unique way of handling non-violent crimes instead of the usual jail-time or probation. It allows the veteran to be treated for the underlying conditions leading to the commission of these crimes in the first instance.

It has been reported in the New York Times, VAWatchDog.com and NBC, that VA intends to issue new rules loosening the requirements for PTSD. VA is apparently evaluating essentially eliminating the requirement that veterans document specific events like bomb blasts, firefights or mortar attacks that might have caused PTSD. We know this as proving “a service stressor”.  This is particularly difficult for certain types of stressors that are not documented or reported. For example, sexual assault on women is not reported 75% of the time.  Veteran groups assert that the current rules discriminate against tens of thousands of service members — many of them women — who did not serve in combat roles but, nevertheless, suffered traumatic experiences.  The new rules, which we have not seen, reportedly say if a veteran can simply show that they served in a war zone and in a job consistent with the events that they say caused their conditions, that is sufficient.  Sounds too good to be true. We know VA employees will need retraining not to just deny.  How will VA define a “war zone”?  How does that help military sexual trauma (MST) and assault victims? But we will keep you posted if the new rules get issued.  If you have been denied in the past because of lack of stressor, it is time to reapply for benefits.  You can read the New York Times article at the link below.

 http://www.nytimes.com/2010/07/08/us/08vets.html?_r=1&scp=2&sq=va%20ptsd&st=cse

The number of veterans receiving disability benefits for a sleeping disorder has increased 61% in the past two years and now costs taxpayers more than $500 million per year, according to Veterans Affairs data.  Legal Help for Veterans, PLLC has seen an increase in appeals for this disability.  At present, there is not a good reason why 20% of veterans suffer from sleep apnea and only 5 % of the population.  Could it be the respiratory exposures from service?  To read a USA Today article on this topic click on the link below.

http://www.vawatchdog.com/10/nf10/nfjun10/nf060710-2.htm

We recently handled a suicide case for a family of a Marine who came home from Iraq broken. The senseless suicide of a veteran demonstrates that the mental health care that is needed is just not readily available. The VA knows this and the military knows this. However, you can not just order that it stop. You have to provide the health care resources and support. Read this article where a General essentially ordered the troops to stop committing suicide. Let’s hope the base provides the other support necessary.

http://www.vawatchdog.org/10/nf10/nfapr10/nf042610-3.htm

JAMES G. FAUSONE
LEGAL HELP FOR VETERANS, PLLC
Northville, Michigan

The definition of insanity for purposes of the Department of Veterans Affairs (VA) recently became at issue in a VA compensation benefits case. Henry Gardner v Shinseki, US Court of Appeals for Veterans Claims (March 13, 2009). In that case, the VA used the wrong legal standard and concluded a veteran was ineligible for benefits because of the type of discharge he received. The VA used a criminal definition of insanity rather than the broader statutory definition.

The veteran involved enlisted in the United States Marine Corps and served in four major combat operations while in Vietnam. He is a recipient of the Purple Heart, the National Defense Service Medal, the Vietnam Service Medal with one star and the Vietnam Campaign Medal with Device. The veteran went Absent without Leave (AWOL) while in Vietnam, was apprehended and was in the brig when a race riot broke out. The veteran was subject to a general court-martial on charges of riot, mutiny and assault. He was sentenced to three years hard labor, a dishonorable discharge and forfeiture of all pay and allowances.

A clinical psychologist’s notes in the early 1970s states examination of the veteran reflect:

thoughts of a sadistic, destructive and morbid nature. Such concepts alone suggest pathological trends in the personality. Reality testing is regarded as weak and affect is labile and inappropriate. Consistent with this pattern is his weakness of adaptive efforts and potential for aggressive and at times violent, acting out behavior and low capacity for thoughtful delay of his impulses. There is some tension shown in the protocol but with limited resources for handling it. He is more apt to respond with faulty judgment and loss of control when confronting stressful situations.

In summary the psychologist states the veteran is “a severely maladjusted individual with very little capacity for affective adaptation, but rather with a predisposition for restless, unpredictable, defiant and aggressive behavior of an antisocial nature and who is likely to “blow his lid” at the slightest provocation.”

Another concurrent medical record documents “diagnosis on this individual has been extremely difficult because of his unpredicable, [sic] violent and at times bizarre behavior. His actions at times and some of the materials he has written have strongly been suggestive of psychosis.” However, the Army’s Mental Competency Board found him to be competent to stand trial at his court-martial.

A subsequent transfer summary dated July 7, 1971 states:

A Mental Competency Board dated 17 February 1971, found him competent to stand trial and responsible for his offenses. The findings of that Board re: McNaughten, are still considered to be valid. Continued observation, however, strongly suggests the presence of an affective component to his disorder. . . . Veteran is in need of intensive treatment, including heavy doses of medication which can be given only under strict psychiatric supervision. Many alternatives have been explored without success and ou[r] only remaining disposition is admission to your facility.”

The veteran was convicted and given two years hard labor. The veteran was then diagnosed with Schizophrenia, paranoid type.

By December 1971, a convening authority found:

in view of the Naval Hospital, Philadelphia, Pennsylvania, Medical Board’s finding that the accused’s mental state had deteriorated subsequent to trial to a point of mental incompetency and the concomitant difficulty in executing the sentence, it is disapproved in toto.

The veteran was discharged the next month in January of 1972 and sent to the streets of an urban city in the Midwest.

To be entitled to benefits one must be a “veteran”. Veteran status is lost if one received a dishonorable discharge. See 38 U.S.C. § 101(2). However, if the veteran was insane at the time he committed the offenses that led to his discharge under less than honorable conditions he may be entitled to benefits.

Section 5303(b) states:

[I]f it is established to the satisfaction of the Secretary that, at the time of the commission of an offense leading to a person’s court-martial, discharge, or resignation, that person was insane, such person shall not be precluded from benefits under laws administered by the Secretary.

The Court of Appeals for Veterans Claims (Court) has established that “where a veteran has lost his status as a benefits eligible claimant, he must establish it anew by a preponderance of the evidence.” See Tulingan v. Brown, 9 Vet.App. 484, 487 (1996). The Court has also established that the benefit of the doubt doctrine is not applicable to a determination of that status. See Holmes v. Brown, 10 Vet. App. 38 (1997). The Court has held that both the acts leading to discharge and the insanity must occur simultaneously. Both the existence of insanity and its simultaneous temporal relationship to the commission of an offense must be established to the Secretary’s satisfaction.

38 C.F.R. § 3.354(a) gives the following definition of insanity:

An insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides.

Sub-Section (b) of that Section provides

When a rating agency is concerned with determining whether a veteran was insane at the time he committed an offense leading to his court-martial, discharge or resignation (38 U.S.C. 5303(b)), it will base its decision on all the evidence procurable relating to the period involved, and apply the definition in paragraph (a) of this section. Id.

The Court has also determined that this statute requires “that the insanity exist only ‘at the time of the commission of an offense leading to a person’s . . . discharge’, and not that insanity must cause the misconduct, that is, there need not be a causal connection between the insanity and the misconduct.” See Struck v Brown, 9 Vet.App. 145 (1996), citing Helige v. Principi, 4 Vet. App. 32, 34 (1993)).

The VA Board in Gardner stated that “there is no indication that the veteran’s behavior at the time of his offenses resulted from any disease which placed the appellant’s mental capacity beyond his control.” However, Federal law only requires that the insanity “exist ‘at the time of the commission of an offense leading to a person’s . . . discharge’, and not that insanity must cause the misconduct, that is, there need not be a causal connection between the insanity and the misconduct.” Struck, 9 Vet. App. at 154.

Not only has the Board often used the wrong standard in requiring causation, it looked at the wrong point in time to make that determination. At issue is the veteran’s mental state at the time of the race riot in 1968 as well as during the period of time he was listed as AWOL. The criminal standard, often referred to as the McNaughton rule, which looks at the time of the act, is not controlling on VA benefits.

Insanity was not presented as a defense to the charges brought against the veteran in 1968. VA presumed that failure to assert the defense means insanity did not exist. However, there may be tactical reasons not to assert the defense. Further, the criminal standard is different than the VA definitions. As stated earlier, 38 C.F.R. § 3.152(b) provides:

When a rating agency is concerned with determining whether a veteran was insane at the time he committed an offense leading to his court-martial, discharge or resignation (38 U.S.C. 5303(b)), it will base its decision on all the evidence procurable relating to the period involved, and apply the definition in paragraph (a) of this section.

The only determination of mental competency in Gardner was done long after the one set of offenses which yielded the veteran’s dishonorable discharge.

That VA’s initial determination was based on the definition of mental competency as defined by the “McNaughton Rule,” a criminal law standard. Under McNaughton, there was a presumption of sanity, unless the defense proved “at the time of committing the act, the accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know what he was doing was wrong.”

In 1972, the American Law Institute with the help of legal experts developed a new rule under the Model Penal Code (MPC). This rule was only adopted by about half the states. Under the MPC, a defendant is not responsible for criminal conduct where he, as a result of mental disease or defect, did not possess “substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” Id.

In 1984, a Federal Rule was adopted under the Comprehensive Crime Control Act. The federal insanity defense now requires the defendant to prove by “clear and convincing evidence,” that “at the time of the commission of the acts constituting the offense, the defendant, as a result of severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.” Id.

None of these standards, however, is the standard which the VA must apply in making its determination. As stated earlier, Federal law requires only that the insanity of the veteran exist “at the time of the commission of an offense leading to a person’s . . . discharge”, and not that insanity must cause the misconduct. If VA benefits have been denied because of a less than honorable discharge, a veteran or his advocate should consider if veteran status can be established because the veteran was insane at the time he committed the offense leading to court martial or discharge.

The lawyers of Legal Help for Veterans, PLLC briefed the Henry Gardner v Shinseki case and are licensed to practice before the U.S. Court of Appeals for Veterans Claims. Mr. Fausone is a founding partner of that firm found at www.legalhelpforveterans.com.

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.