A Practical Guide to Conducting VA Compensation …

1 A Practical Guide to Conducting VA Compensationand Pension Exams for PTSD and Other Mental DisordersMark D. Worthen&Robert G. MoeringReceived: 24 November 2011 /Accepted: 27 November 2011 /Published online: 16 December 2011#Springer Science+Business Media, LLC. 2011 AbstractDespite being one of the most common forensicmental health evaluations, no article has ever appeared in apeer-reviewed journal describing how to conduct USDepartment of Veterans Affairs (VA) mental health compen-sation and pension examinations. This article rectifies thatpaucity of information. We outline the legal framework, eth-ical considerations, and administrative challenges inherent inthese evaluations. We provide separate guidelines for privatepractice clinicians and VA staff or contractors. We pay specialattention to the multiple sources of collateral informationavailable for these exams and how to access relevant article alerts examiners to the possibility that they mightface resistance from VA officials if they screen for and assesssymptom exaggeration or feigning and that they could en-counter VA-imposed restrictions on time allotted for suggestions are made for different types of exams:Initial Post-traumatic Stress Disorder (PTSD), PTSD Review,Initial Mental Disorder, and Mental Disorder Affairs (VA).

2 Compensationand pension (C&P) BenefitsQuestionnaire (DBQ)In the US Department of Veterans Affairs (VA) 2010 FiscalYear, 60,535 veterans began to receive VA disability bene-fits for mental disorders (Veterans Benefit Administration,2010). The majority of those veterans received a compen-sation and pension examination (C&P exam) at a VA facilityor a contract provider s in 2011, private providers (primarily psychol-ogists and psychiatrists although other mental health pro-fessionals are eligible1) will be able to conduct some C&Pmental disorder exams with the advent of the VA snewDisability Benefits Questionnaire (DBQ) date, there are no articles published in peer-reviewedjournals that describe how to conduct VA mental health-related Compensation and pension exams. Our intention is torectify the lack of peer-reviewed information by outlining arecommended procedure for Conducting four different typesof C&P mental disorder exams. The article also addresseslegal, ethical, and administrative concerns that arise withthese often complex forensic Mental Disorders DBQ form states: In order to conduct aninitialexamination for mental disorders, the examiner must meet oneof the following criteria: a board-certified or board-eligible psychia-trist; a licensed doctorate-level psychologist; a doctorate-level mentalhealth provider under the close supervision of a board-certified orboard-eligible psychiatrist or licensed doctorate-level psychologist; apsychiatry resident under close supervision of a board-certified orboard-eligible psychiatrist or licensed doctorate-level psychologist; ora clinical or counseling psychologist completing a one-year internshipor residency (for purposes of a doctorate-level degree) under closesupervision of a board-certified or board-eligible psychiatrist or li-censed doctorate-level psychologist.

3 In order to conduct areviewexamination for mental disorders, the examiner must meet one of thecriteria from above, OR be a licensed clinical social worker (LCSW), anurse practitioner, a clinical nurse specialist, or a physician assistant,under close supervision of a board-certified or board-eligible psychia-trist or licensed doctorate-level psychologist. (emphasis added). See: article and the recommendations or opinions stated hereinshould in no way be construed to reflect the opinions or beliefs of theUS Department of Veterans Affairs or the US government. Theopinions expressed in this article are the authors D. Worthen (*) Compensation & Pension Program, Charles George VA MedicalCenter, Department of Veterans Affairs,1100 Tunnel Road,Asheville, NC 28805-2576, USAe-mail: G. MoeringCompensation & Pension Office, James A. Haley Veteran sHospital, Department of Veterans Affairs,Tampa, FL, USAP sychol. Inj. and Law (2011) 4:187 216 DOI four types of exams covered in this article are:&Initial Post-traumatic Stress Disorder (PTSD)&PTSD Review&Initial Mental Disorder&Mental Disorder ReviewLegal FrameworkLike all forensic mental health evaluations, VA compensa-tion and pension exams exist within a legal framework, ,a collection of statutes, regulations, and case law that deter-mine the referral questions asked of examiners; outline theprocedures veterans must follow to establish a disabilityclaim; describe how evidence is weighed; govern whomay conduct these exams; and otherwise define the C&Pexam process.

4 Understanding the legal landscape is impor-tant for examiners because referral questions often directlyor indirectly reference statutes or regulations, case law candictate the content of an exam report and the rules ofevidence used to evaluate the adequacy of an examiner sdocumentation and rationale (Nieves-Rodriguez v. Peake,2008), and one s ethical code might require Legal HistoryAlthough providing monetary benefits for US veterans datesback to the Revolutionary War (Ridgway,2011), contempo-rary veterans Compensation law has its roots in 1917 amend-ments to the War Risk Insurance Act of 1914 (EconomicSystems Inc.,2004), which provided Compensation toWorld War I veterans for average impairment in earningscapacity. That phrase, average impairment in earningscapacity is important because the 1917 laws represented ashift from gratuity payments (awarding benefits as a thankyou to veterans for their service) to an indemnity modelthat compensates veterans for functional impairments thatadversely affect their ability to work (Economic SystemsInc.)

5 ,2004).Mental health professionals interested in conductingC&P exams need to keep that distinction in mind becausea crucial issue for them to address in their exam report is theextent of the veteran s occupational impairment. In thisregard, C&P exams are similar to Social Security disabilityevaluations in that occupational impairment is the focus(Foote,2008). Also, some examiners seem to mistake VAcompensation as anentitlementprogram, , one thatawards benefits for a veteran s service in a combat zonewhen, in fact, it is anindemnityprogram in which the VAprovides benefits to veterans who have suffered occupation-al impairment as a result of their psychological , the statutory authority for regulations govern-ing the VA s Compensation program comes from Title 38 ofUnited States Code. Regulations are primarily found in 38 Code of Federal Regulations ( ), Part 3 and Part 4. Acomprehensive review of veterans law (statutes, regulations,and case law) is beyond the scope of this article (but seeRidgway,2011in this issue).

6 Instead, we will focus onimportant differences between the legal parameters govern-ing the adjudication of veterans disability claims and thelegal contours of more traditional forensic mental Legal ParametersThe most important difference to understand is that proceed-ings regarding VA Compensation and pension claims areintentionally informal and nonadversarial ( Proceedings be-fore VA areex partein ; Procedural Due Processand Appellate Rights, 38 , 2010), and they are uniquely pro-claimant (Hodge v. West,1998). Table1provides a comparison between the types of evaluationswith which most forensic psychologists and psychiatristsare familiar and the VA Compensation and Language RequiredWhen asked to provide a medical opinion (even if theexaminer holds a non-medical degree, the opinion still isreferred to as a medical opinion), examiners must usespecific language, based on the legal requirements in veter-ans Compensation cases. Specifically, examiners must useone of the following phrases when writing their opinion(Department of Veterans Affairs,2001):& Is due to (100% assure) the phrase caused by or theresult of seems to be an acceptable alternative based onour experience (it is often the phrase suggested in examrequests from the Veterans Benefits Administration(VBA))& More likely than not (greater than 50%)& At least as likely as not (50%)& Not at least as likely as not (less than 50%) the lesscumbersome, is less likely than not appears to be anacceptable alternative based on our experience& It is not due to (0%)&I cannot formulate an opinion without resorting to merespeculation2 American Psychological Association Ethical Standard (f) reads, When assuming forensic roles, psychologists are or become reason-ably familiar with the judicial or administrative rules governing theirroles.

7 (American Psychological Association,2002).188 Psychol. Inj. and Law (2011) 4:187 216 Thus, if an examiner concludes that a veteran suffersfrom PTSD because of traumatic events he or she en-dured during wartime, the examiner will usually opine, It is at least as likely as not that the veteran sPTSD wascausedbyortheresultof his claimed traumaticstressors. Note that the at least as likely as not phraseencompasses the evidentiary standard ofequipoise, ,if the evidence is at equipoise (50/50 chance) thenbenefit of the doubt goes to the veteran (Gilbert ,1990).Table 1 Differences between the legal parameters governing typical forensic mental health evaluations versus VA Compensation and pensionexaminationsTypical forensic mental health evaluationsVA Compensation and pension examinationsRelationship of the partiesAdversarialEx ParteaStandard of proof Beyond a Reasonable Doubt, Clear and ConvincingEvidence, or Preponderance of the Evidence (51% probability or greater)Equipoise at least as likely as not (50% orgreater chance)bLevel of formalityFormalInformalcObligation of thegovernmentIn criminal cases, the government represents thepeople and vigorously prosecutes persons accusedof crimesThe government must help a claimant develophis or her casedSide favored?

8 Neither side is favored over the otherIf there is doubt about a decision, benefit of thedoubt goes to the veteraneRight to representationDefendants in criminal cases have a right to berepresented by an attorney, even if they cannotafford one. In civil matters, litigants have the rightto be represented, although payment can be an issuefor many lower and middle class litigantsClaimants have a right to representation by anattorney only after a claims decision has beenmade and the veteran has filed aNotice of ,gThe attorney s feecan be paid from a past due lump sumamount, if benefits are awardedhRecording of evaluationsessionsIn some forensic evaluation contexts, audio or videorecordings are permissible and even encouragedVeterans do not have a right to record theirC&P examinationsiResponsibility toobtain recordsThe attorney or forensic mental health professionalmust obtain records he or she deems necessary toconduct a thorough evaluationThe Veterans Benefit Administration is requiredby law to assist veterans byseeking to obtain all relevant government andprivate records that might further the veteran sclaimjRules of evidenceFederal Rules of Evidence or State Rules of EvidenceThe Federal Rules of Evidence do not apply toveterans cases but.

9 The rules on expertwitness testimony provide useful kaLatin, On one side only. Done by, for, or on the application of one party +parteb ..when a veteran seeks benefits and the evidence is in relative equipoise, the law dictates that veteran prevails. Gilbert v. Derwinski, 1 49 (1990)cAlthough a case becomes progressively more formal as it moves up the chain of appeals from the VA Regional Office, to the Board of VeteransAppeals, to the Court of Appeals for Veterans Claims, etc. See a graphic describing the appeals process for veteran s disability benefitsclaimsd The Secretary must make reasonable effort to assist claimant in obtaining evidence necessary to substantiate the claimant s claim for benefitsunder a law administered by the secretary. (Duty to Assist Claimants, 38 5103A, 2010)e When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, theSecretary shall give the benefit of the doubt to the claimant.

10 (Claimant Responsibility; Benefit of the Doubt, 38 5107(b), 2010)fPayment of fees for representation by agents and attorneys in proceedings before agencies of original jurisdiction and before the Board ofVeterans Appeals, 38 (c) (2010)gHowever, veterans can receive assistance in developing their claim from a Veterans Service Organization such as Disabled American Veterans,Vietnam Veterans of America, or American Legion (not an exhaustive list)hPayment of fees for representation by agents and attorneys in proceedings before Agencies of Original Jurisdiction and before the Board ofVeterans Appeals, 38 (g)(2) (2010)iVet. Aff. Op. Gen. Couns. Prec. 04-91 available 5103A; See alsoMoore v. Shinseki, 555 F. 3 d 1369 (2009), wherein the Court held that a veteran s military psychiatric hospitalizationrecords should have been obtained by the VA as part of its duty to assist and see alsoGolz v. Shinseki, 590 d 1317 at 1323 (2010): [t]he legalstandard for relevance requires VA to examine the information it has related to medical records and if there exists a reasonable possibility that therecords could help the veteran substantiate his claim for benefits, the duty to assist requires VA to obtain the records kNieves-Rodriguez v.