Veteran David Gagne Had Enough Of The Vas Little Jsrrc Game And Appealed His Ptsd Disability Denial To The Cavc
As a result, we have a new rule of law which says exactly what the VA has to do to fulfill the Duty to Assist.
Heres how it played out.
The Veteran, while stationed in Thailand during the Vietnam War, was building a road between 2 bases.
One day, he watched a truck back into and kill an NCO on the site. The Veteran filed a claim for VA PTSD compensation years later, after he realized this incident was why he was having suicidal ideation and other symptoms of a PTSD disability.
The VA refused to ask JSRRC to verify the stressor, because the Veteran could not remember the 60-day window in which the event occurred.
Instead, the VA denied the claim for a failure to locate credible evidence of the stressor event.
The Veteran called bullshit on appeal to the Court, he argued that the VAs Duty to Assist couldnt be limited to 60 day windows.
The Veteran pointed out that the Duty to Assist is fulfilled only when future efforts to obtain records would be futile, or it is established to a reasonably degree of certainty that the records do not exist.
The VA, on the other hand, argued it was futile to ask the JSRRC to search through a years worth of records for a particular incident when the JSRRC and the VA had previously decided that it was easiest and most efficient for them to search in 60-day windows.
The VAs attorneys the Office of General Counsel made the Veterans attorney brief the case, and go to oral arguments.
How to use this decision in your case:
Summary Of The Focal Points In A Ptsd Claim
If you can nail these aspects of a PTSD claim, you will maximize your VA PTSD rating. Get out in front of your VA PTSD claim or appeal and dont wait for the VA to assist you in developing these elements:
1) Know the 4 Pillars of a PTSD Claim and KNOW what evidence is and is not in your C-File already.
2) Know how to prove up your UNIQUE type of Stressor Event.
3) Get a solid Diagnostic Exam.
4) Learn how to provide 5-Star Evidence to get you the Impairment Rating you deserve in a PTSD claim.
How To Obtain Disability Benefits
In order to obtain disability benefits, a veteran with PTSD must first undergo an evaluation at a VA medical facility. A psychiatrist at the VA medical center must provide a diagnosis of PTSD in order for a veteran to be able to obtain disability benefits for PTSD.
The veteran must also apply for disability benefits, which can be done online at the Veterans Online Application website at www.ebenefits.va.gov. Alternatively, the veteran can fill out VA Form 21-526.
The veteran must also supply certain documentation, including a DD214 Certificate of Release or Discharge from Active Duty, or other separation papers for all periods of service, and copies of medical records including the mental health evaluation done at the VA medical facility. Additionally, the VA will accept Form 21-4138 Statement in Support of a Claim, which may include a letter from the veteran detailing the events that triggered the PTSD or the symptoms suffered by the veteran, as well as letters from friends or family members describing the impact of PTSD on the veteran.
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Direct Service Connection For Ptsd
To obtain direct service connection for PTSD, veterans must demonstrate the following to VA:
- A current diagnosis of PTSD
- A statement from the veteran about the stressor that occurred during service
- The occurrence of the stressor being consistent with the circumstances of the veterans service
- No strong evidence that the stressor didnt occur and
- A medical opinion that the stressor was sufficient to cause PTSD either from a VA psychologist/psychiatrist, or a psychologist/psychiatrist under contract with VA
Once a veterans PTSD is service connected, VA rates this condition under 38 CFR § 4.130, Diagnostic Code 9411. Specifically, VA assigns a disability rating ranging from 0 to 100 percent based on the level of social and occupational impairment a veteran experiences, and the frequency, duration, and severity of symptoms it uses to characterize that impairment.
Coverage Of Other Stressors
VA also received comments suggesting that the rule should cover stressors such as MST, abuse by military personnel of subordinate military personnel, harassment, suicide of a fellow service member, witnessing a military vehicle accident in the United States, a fellow soldier’s or sailor’s post-service suicide, and social, political, and economic discrimination. One commenter suggested that VA should promulgate a similar rule to assist those with physical injuries due to hostile military or terrorist activity. These comments are outside the scope of this rule. Therefore, we make no change based on them. However, regarding MST, we note as well that ) permits evidence other than a veteran’s service records to corroborate the occurrence of an in-service personal assault and prohibits VA from denying a claim for service connection for PTSD based on in-service personal assault without first advising the claimant that evidence from sources other than a veteran’s service records may prove the stressor occurred.
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Service Connection For Non
Veterans who suffer from one or more non-combat PTSD stressors must provide the Department of Veterans Affairs with credible supporting evidence that they developed this common mental health condition due to events they experienced while on active duty. They can submit anything from lay statements to medical evidence to newspaper articles and even testimonials from fellow veterans to prove that the event took place and that it had a traumatic effect on them.
How Do I Talk To Someone Right Now
If you’re a Veteran in crisis or concerned about one, connect with our caring, qualified Veterans Crisis Line responders for confidential help. Many of them are Veterans themselves. This service is private, free, and available 24/7.
To connect with a Veterans Crisis Line responder anytime day or night:
- Call , then select 1.
- If you have hearing loss, call TTY: .
You can also:
- Call .
- Go to the nearest emergency room.
- Go directly to your nearest VA medical center. It doesn’t matter what your discharge status is or if you’re enrolled in VA health care.Find your nearest VA medical center
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Focal Point #: Ptsd The C
If every Veteran with a PTSD claim picks up a copy of their C-File, and finds out which of the 4 Pillars of their VA claim was lacking 5-Star Evidence, they could drastically accelerate the time it takes to get to the VA PTSD rating phase of their claim.
The 2 most important stars? Competent Evidence and Credible Evidence. While important in EVERY claim, we need to approach competency and credibility of PTSD evidence a bit differently to have a better experience at the VA.
Knowing how much evidence the VA Claims Evidence Thermometer needs in a PTSD claim is also vital. Some elements of a claim only need enough evidence to get you to the at least as likely as not level. But other elements like insulating your claim from a VA rebuttal of a legal presumption will require more evidence.
Knowing the 4 Piillars of the PTSD claim, and how much evidence is needed to solidly build each of the 4 pillar is the number one thing that Veterans should know.
Getting Ready To Write The Statement
Writing a stressor statement can itself be stressful. In many cases, youâre being asked to recallâand recordâevents that youâd rather forget. This is true not only for veterans who served in a combat zone, but also for veterans who suffered Military Sexual Trauma.
Before you sit down to start writing, line up a counselor, a therapist, or a friendâsomeone you can talk with if you find yourself overwhelmed by troubling memories and emotions. Avoid writing your statement on a Friday, Saturday, or Sunday, when help isnât readily available. If necessary, put your statement aside and return to it later. Thereâs no rule that says it has to be written in one sitting.
To prepare the statement, youâll almost certainly need to have your military records at hand. These records will help you to pinpoint dates, times, and places. For information about obtaining your records, visit www.stp-sf.org/guides/records.
Your service records are only one possible source of information for your stressor statement. If you wrote letters home, now is the time to retrieve them, if possible.
Is there a trail of e-mails or text messages that would be helpful? Are there postings on Facebook or other social media? Did you keep a journal or diary? Gather these materials before you start to write.
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This Post Is About The Jsrrc And What It Does In A Ptsd Compensation Claim
The JSRRC is the place that stores a TON of never before identified information about incidents occurring in the military.
JSRRC is the Joint Services Records Research Center Mission thats a real mouthful.
Basically, this is a DoD facility that does not store, but does have access to, information from tens of thousands of military units over several decades.
Neat, right?
Problem is, you cant get access to it. Only the VA Can.
This is what the JSRRC says:
When the Regional Office determines information from military unit records is necessary to process a claim, the Regional Office will request this assistance from JSRRC.
Think of the JSRRC as a secret book only the JSRRC can look at it, only the JSRRC knows what is in it, and only the VA can ask the JSRRC to search the secret book for evidence that the event occurred.
The VA has long used this power as a way to deny Veterans claims for PTSD in non-combat scenario.
And they play the game the same way in almost every single case.
The General Rule For Verifying Ptsd Stressors
If PTSD is not diagnosed in service, is not due to a fear of hostile military or terrorist activity as reported by a psychiatrist or psychologist, is not due to a stressor that occurred while the veteran was engaged in combat, and/or combat service is disputed by the VA, then the VA will look for additional evidence to verify the reported in-service stressor. In such cases, corroborating evidence other than the veterans own lay statement is necessary to establish that the in-service PTSD stressor occurred. There is a wide range of traumatic events, or groups of events, that may qualify as stressors for a PTSD claim. However, there is no requirement that the corroborating evidence supporting the occurrence of the stressor be found in military service records. Credible supporting evidence from any source may fulfill this requirement.
For instance, the VA is required to consider buddy statements or any other evidence that supports the occurrence of an in-service stressor, and in some circumstances such lay evidence from other individuals may alone suffice. Likewise, old newspaper articles or documents from a veterans unit may also be helpful evidence in establishing the occurrence of a PTSD stressor.
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Presumption Of Service Connection Based On Receipt Of Certain Pay
Some commenters suggested that VA revise the rule to create a presumption of service connection for PTSD based upon receipt of imminent-danger or hostile-fire pay. We make no change based on these comments because they are beyond the scope of the rule, which is limited to providing a reduced evidentiary standard for establishing occurrence of the stressor based upon a particular type of stressor.
Symptoms Of Ptsd In Veterans
While you can develop symptoms of PTSD in the hours or days following a traumatic event, sometimes symptoms dont surface for months or even years after you return from deployment. While PTSD develops differently in each veteran, there are four symptom clusters:
Suicide prevention in veterans with PTSD
Its common for veterans with PTSD to experience suicidal thoughts. Feeling suicidal is not a character defect, and it doesnt mean that you are crazy, weak, or flawed.
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What Evidence Does The Va Require For Ptsd Claims
For your claim to PTSD benefits to be successful, your PTSD Claim must have three things:
Often, Veterans avoid discussing their more traumatic experiences because of the social stigma attached to mental health conditions. In reality, no Veteran should suffer in silence.
Va Examiners Are Trained To Provide Forensic Opinions Necessary To Decide Ptsd Claims
By making 38 U.S.C. 5125 discretionary rather than mandatory, Congress clearly recognized that there may be circumstances in which VA would require a confirmatory medical opinion. The situation described in this rule is such a circumstance because it eliminates the requirement of credible supporting evidence of the occurrence of an alleged non-combat stressor under in the situation described. Because the rule permits the proof of an in-service stressor based on the claimant’s lay statement alone, VA believes that it is reasonable to limit this liberalization to medical opinions from practitioners who it knows are well-skilled and well-equipped to provide such forensic evidence, rather than broaden the rule to include opinions from private physicians.
VA’s need for such forensic evidence is particularly important in the case of a claim for service connection for a mental disorder.
When the DSM-IV categories, criteria, and textual descriptions are employed for forensic purposes, there are significant risks that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis. * * *
Nonclinical decision makers should also be cautioned that a diagnosis does not carry any necessary implications regarding the causes of the individual’s mental disorder or its associated impairments.
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C& p Exam For Ptsd Tips
1. Know whats in your medical records!
2. Review your Disability Benefit Questionnaire
3. Review the eCFR, Title 38, Schedule 4 for PTSD and other mental health symptoms and ratings
4. Do NOT have your best day
5. Be uncomfortably vulnerable
6. Know your true story coldand potential in-service stressors that caused or made your PTSD and/or other mental health conditions worse.
Gather Your Documents And Your Support Letters First
For both the VA form and your own personal stressor statement, you will need to prepare by gathering supporting documentation such as your military and civilian medical records, your military service record, your DD Form 214 or Guard/Reserve equivalent, etc.
When you write your PTSD Stressor Statement, you will need to have accurate information about the dates and locations of your military service, campaigns or missions you participated in, length and nature of your military service, etc.
You will need statements by friends, family, doctors, and other professionals who can provide further evidence for your claim even if that information is a buddy letter describing how you may have appeared to others following the diagnosis of PTSD.
There are some things you definitely should do when writing the stressor statement, and there are things you should definitely NOT do. What follows is advice on how to write the stressor letter for a more effective outcome with your claim.
Keep in mind that the following advice is not legal in nature, but more of a guideline for how you should present your case. Also keep in mind that some of these principles will also serve you well when filling out the VA forms mentioned above in association with your claim.
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Ptsd Symptoms And Treatment Options
Many veterans are reluctant to seek treatment for PTSD because they mistake their symptoms for simple combat stress. However, PTSD is a serious mental health condition characterized by:
- Nightmares or flashbacks of the traumatic event
- Feeling constantly anxious, fearful, and on edge
- Believing that other people cant be trusted and that the world is a very dangerous place
- Avoiding events, situations, or people that are linked to memories of the traumatic triggering event
To be considered for PTSD disability benefits, a veterans symptoms must last for more than four weeks and be severe enough to interfere with their daily activities. This might include having trouble concentrating at work, being angry or irritable around loved ones, or suffering from fatigue and unexplained physical symptoms that make it difficult to engage in previously enjoyed hobbies or special interests. In serious cases, people with PTSD may struggle with thoughts of suicide or self-harm.
PTSD, like other mental health conditions, cant be cured in the traditional sense of the word. However, treatment can help sufferers learn to manage their condition more effectively. Antidepressant and anti-anxiety medication combined with psychotherapy is the most common treatment for PTSD.
Requesting Statements From Family Members Or Friends
Your friends and family members have a special ability to describe how your life has changed as a result of traumatic events you experience while in the service. They can write about the person you were when you entered the service and the changed person you were when you returned home.
Ask friends and family to describe in their statement what your personality was like before service and what is like now. Maybe you were outgoing and popular before, and now you are a recluse who does not like leaving the house. Or perhaps you were quiet and laid-back, and now you’re extremely angry a lot. Maybe you used to feel very close to your spouse and now you are withdrawn from her , or even abusive. Or perhaps you no longer feel that you are available for your children.
All of these people can help by writing a statement giving examples of how your behavior has changed. Your child could say you used to help with homework and now you sit in front of the TV drinking. Your friends could describe how you don’t feel safe leaving the house, and everywhere you go you are always looking over your shoulder, on high alert. Your spouse could describe how you wake up terrified in the middle of the night from nightmares.
You can also ask for statements from co-workers, employers, clergy, or anyone else who has seen changes in you. Even someone who has only known you since you left the service can still help by describing how you appear to be affected by your post-traumatic stress disorder.
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