Mental Health Ratings at VA

CCK Law: Our Vital Role in Veterans Law

1. What does VA consider a mental illness?
2. Mental health conditions VA will NOT rate (and can substance abuse be service connected?)
3. What kinds of evidence does VA look at to determine service connection for mental health conditions? What is a stressor?
4. Mental illness due to Personal Assault or Military Sexual Trauma (MST)
5. What if a veteran has a mental health condition that was diagnosed before service?
6. What if the veteran had a traumatic experience before service?
7. How does the VA assign mental health ratings?
8. VA Ratings when a veteran is hospitalized for a mental health condition
9. Viewer Question: Permanent and Total (P&T) for psychological conditions
10. What are GAF scores? Does VA still use GAF scores?
11. Viewer Question: Can a veteran be diagnosed with PTSD long after leaving the military?
12. Multiple diagnosed mental health conditions
13. Mental health condition that overlaps with a physical health condition (for example, traumatic brain injury)
14.  Should veterans submit a criminal record to the VA?
15. Common mistakes in mental health claims
16. Viewer Question: How often does VA reevaluate mental health conditions?
17. Final tips

Video Transcription.

Brad Hennings: Good afternoon. This is Brad Hennings, here at Chisholm Chisholm & Kilpatrick. I’m joined today by Emma Peterson and Nicholas Briggs and we’re here today to talk a little bit about mental health ratings in the VA disability system. Before we get going, I just wanted to let everyone know if you’ve got any questions as we’re going along with the presentation, please ask those questions right there to Facebook, or if you’re watching this later on please reach out to us on Facebook or on our website at cck-law.com. So, let’s talk a little bit about the VA and how they rate disabilities.  What does VA consider a ratable mental illness?

Nicholas Briggs: Sure. So, it’s basically any sort of mental health disability that’s diagnosed and that can be attributed to a veteran’s military service and that can kind of run the gamut of a number of different disabilities. There could be something like an anxiety-related disorder like post-traumatic stress disorder, psychotic disorders like schizophrenia, and then even some cognitive disorders, eating disorders like in the case of bulimia or anorexia. The important question is just whether or not that disability is related to their military service.

Brad: That would include something like one of the signature injuries of the current conflicts which are traumatic brain injuries. Is that correct?

Nicholas: Exactly.

Brad: Okay. What mental health illnesses are not ratable by VA?

Emma Peterson: Sure. Personality disorder is just one that comes to mind. VA said that that’s not something they’re going to grant service connection for, and so that really can affect some of our older veterans. You’ll see their discharge due to a personality disorder and that’s because that’s a lifelong condition. It’s not going to change, it’s static, but that’s something VA won’t service connect.

Brad: In your experience have you found in the cases that you’ve worked on that that’s often used as an excuse to get the veteran out of service?

Emma: In my opinion that’s my sinking suspicion sometimes when I look at these files. You’ll see someone’s clearly having some issues in service, not succeeding or seeking mental health treatment and then all of a sudden, they’re discharged from Medical Board out because they have a personality disorder that just magically popped up. Obviously, you can’t go out and assume that but that’s my very strong impression is that some folks get kicked out for personality disorders when in fact something else is really going on.

Nicholas: And again, personality disorders are characterized as a lifelong behavioral pattern. So, it’s something that would have popped up before service and likely something that would have been detected when they entered and did their entrance examination, so it’s always worth a second look.

Emma: But some other things that will not be considered service-connected that may be the medical community might consider a mental health disability would be substance abuse. Addictions to different substances, alcohol or other drug use. Now if it’s due to another mental health condition that can serve as a link to maybe something else, for example, cirrhosis of the liver or perhaps you’ve got an anxiety-related disorder and you smoke too cope with that and it leads to some type of respiratory condition then there’s a potential there. But that actual substance abuse disorder will not be service-connected itself.

Brad: But we see many, many veterans where they’ve been diagnosed with the primary substance use disorder at one point but in fact, they’re actually suffering from a service-connected psychiatric condition and they’re using these substances to try to mask or hide their symptoms.

Emma: Absolutely. And so, like Nick said, when you see something like that. That’s always worth a second look too to make sure that the proper evaluation has been done to really isolate what’s the primary condition and maybe these two things are interacting with each other. Couple other things that won’t be service-connected, so cognitive delays and learning disabilities, things like that. Developmental disabilities won’t be service-connected. Typically, you don’t see that very much as a possibility but it does exist especially again with some of the older veterans from Korea and Vietnam. There were a couple campaigns that sort of lowered certain standards and let other folks and then some things like impulse control disorders, those might be considered more along the lines of a personality disorder.

Brad: Okay. So, Nick, what kinds of evidence does VA look at to determine eligibility for service connection meaning that’s connected to the veteran’s military service?

Nicholas: Sure. So typically, you’re looking for either actual in-service treatment for psychiatric symptoms. A veteran might be experiencing anxiety or depression and they seek help with a mental health counselor while they’re in the military. Then the other thing that we often see will be the experience of some kind of traumatic incident or stressor in military service that later manifests itself in the form of an anxiety disorder or PTSD like we mentioned earlier.

Brad: What is a stressor? What if there’s no record of this stressor event in the veteran’s records?

Nicholas: Sure. There are certain situations where– well, first and foremost the VA has to make a credibility determination on the veteran’s reports because sometimes the stressful experience that the veteran had isn’t going to be documented in their records. You might imagine a scenario where the veteran’s a long-haul truck driver and they’re delivering equipment in Vietnam, and their convoy comes under attack. They get fired on but that’s not necessarily going to be in their service records. That’s a situation where everything else says that they were doing this in service. The veteran says they came under attack while they’re in service and VA will oftentimes concede the validity of that stressor and use it to grant service connection for PTSD.

Brad: Emma, what about in cases of personal assault or military sexual trauma? What’re the rules?

Emma: Absolutely. So just to back up too, so for PTSD like we’re talking about you need to have the diagnosis but then you need to have VA corroborate a stressor, something that caused that PTSD and that’s where the hang-up can be. So, for certain situations lay evidence or other evidence besides just a clear corroboration in-service personnel records or other military records can serve as a basis to verify that stressor. For a military sexual trauma or personal assault, the regulation allows for VA to look at other things to kind of corroborate that that occurred because the chances of it actually being in someone’s military personnel records are slim to none. It just goes completely under-reported and it’s just not something that you’re going to see in someone’s status report or they’re not going to go to their superior if it is their superior who is assaulting them. So, things that VA can look to and that VA mental health professionals can look to, to corroborate that stressor are changes in behavior. If there’s family evidence saying, “My son or daughter was a superstar before they went to service. They got straight A’s. They really loved life, were a go-getter and after service, they just had a complete personality change.” That can be evidence of a decline in performance in the service itself. Requests for transfer to a different unit or a different group can be good evidence. Really anything that you can think of that would demonstrate that something’s happened, not to be so vague but that can be used to show that there was a military sexual trauma or a personal assault. It doesn’t have to be sexual in nature, it can be any type of assault. Someone got jumped at a bar if you were attacked by just your fellow service members, if you’re attacked by someone just in the street, anything that can show that there was an event that occurred can be used to corroborate this stressor.

Brad: In fact in some of those cases, isn’t it, often a fact that you have veterans who would have told a friend or a family member, let’s say nearly, immediately after it happened or not. Maybe they told them later on and then those friends or family members submit a statement saying, “Yeah, the veteran told me that this happened to them.”

Emma: Absolutely and that’s invaluable. And really, it’s going to be the only evidence that will exist because like we talked about it, evidence at the time of the assault is generally not going to exist or be in someone’s service records.

Brad: Nick, what if a veteran has a mental health condition that was diagnosed before service?

Nicholas: Sure. So, there are certain cases where it kind of depends on whether or not it was noted when the veteran entered service. If the entrance examination was clean, something called the presumption of soundness applies, where VA then has to establish by clear and unmistakable evidence that the condition both existed prior to service and was not aggravated by service. But even in the situation where the condition is noted during the entrance exam, if a veteran is able to establish that it was worsened beyond its natural progression in service and that’s any degree of worsening in service, you might be able to get service connection granted.

Brad: What if the veteran had a traumatic experience before service? We see many veterans who unfortunately were abused before service and then underwent either an assault or dealt with combat, something traumatic during their service. How does the VA handle those kinds of cases?

Emma: Well, it’s tricky, it’s hard like Nick said it honestly depends on where you’re going to start from. Are you going to start from a point of agreeing that there was something existing before service and then it worsened in service because certainly, I could imagine a situation where you had a pre-service trauma but then another trauma is just going to compound the situation to make it exponentially worse? In that case you certainly could be service-connected for that resulting disability and you should be service-connected. But it depends on what the entrance exam shows. It depends on what the veteran has explained happened to them and not every stressor is going to result in PTSD. People experience stressors throughout their lives and sometimes it results in PTSD and sometimes it doesn’t. It depends also on what mental health professionals are saying is the cause of the disability.

Nick: Yeah, that’s a good point. The traumatic incident is in and of itself a mental disorder. At the end of the day it needs to be linked to the symptoms that the veterans currently experiencing and experienced in service if applicable.

Emma: Same thing for other conditions too besides just PTSD. I can think of an example where VA was trying to say that a veteran had a preexisting depressive disorder because they got some counseling when their parents got divorced when they were a teenager. That just wasn’t the case, I mean that was something the parents made that the veteran do because of the stressful situation, but they were fine after that. But then in service something else happened that led to a real depressive disorder. Things like that are good examples of how some – you can have other things in your past but then something in service really triggers that resulting disability.

Brad: Actually, how does the VA assign a veteran’s mental health rating and does it make a difference as to what the veteran is diagnosed with? For example, is depression rated like PTSD rated, like schizophrenia or they’re rated differently?

Emma: They’re rated all the same. Other than eating disorders which have their own diagnostic criteria all the mental health disabilities have the same rating criteria ranging from 0%, you could get a 0, all the way up to 100%. But 10, 30, 50, 70, 100 and it’s all based on social and occupational impairment. Each level looks at what’s the social impairment this disability is causing and what’s the occupational the work impairment that this is causing.

Nicholas: Each of those individual categories will include a list of certain symptoms that through VA’s research on the issue. They tend to attribute to specific levels of occupation on social impairment.

Brad: Can you give us an example of what let’s say a 10% rating look like versus a 50% or 100%?

Nicholas: Sure. I mean a 10% rating is obviously a recognition of the symptoms being mild having some sort of impact on the veteran’s ability to work, whereas 50%, 70% or 100% rating starts to get into more severe symptoms like suicidal ideation and inability to perform routine activities of daily living like maintaining personal hygiene, and having interpersonal difficulties at work with supervisors, co-workers and the like.

Brad: Do veterans have to meet every criterion in the rating level to get a higher rating?

Emma: No, absolutely not, and even those examples are just examples. They’re just a list of things that might be happening at a certain level of impairment because mental health disorders are so fluid and unique to each individual. They can manifest in so many different ways. So you don’t have to have each and every symptom listed. You don’t have to have any of the symptoms listed. There are just examples to demonstrate the types of impairment that might be going on at that assigned percentage rate.

Brad: Well, what if your symptoms are so bad that you’re hospitalized for your condition?

Nicholas: Sure. While you’re hospitalized if you happen to be in a VA facility or a private facility for 21 days or more as a result of the service-connected psychiatric disability, they automatically presume and assign a temporary total 100% rating for the entire length of the hospitalization.

Brad: Okay, and how long will that continue after you’re discharged?

Nicholas: Well, they’ll usually reduce that rating as soon as you’re discharged. It’s going to require an evaluation of what your symptoms were at the time of discharge so that they can re-establish the proper rating because your condition at its underlying level might be worse than it was before you enter the hospitalization. That’s what you went in in the first place.

Emma: But if you happen to require long-term care, if you’re going to be hospitalized for six months or more some kind of treatment program then VA will continue that 100% rating for another six months after that discharge.

Nicholas: For sure.

Brad: We have a question. Before we get to the question, I just wanted to let everyone know again this is CCK live. We’re talking about VA’s mental health ratings. I’m Brad Hennings. This is Emma Peterson and Nicholas Briggs. Please check us out either on Facebook or on our website at cck-law.com. We were just getting into some questions about mental health ratings and we got one having to do with how long do you have to suffer from a mental health disability to be declared permanent and total otherwise known as P&T?

Emma: So, the answer was, it depends, and it depends because that’s going to be up to VA to assign that rating. There’s no link to cut to the chase, to cut to the heart of the question, there’s no length of time where they become automatically permanent in total. There is something for a stabilization of ratings but that’s different than permanent and total ratings. You either be assigned a permanent and total rating by VA at the time they rate you a 100% or rate you totally disabled due to your inability to work, or you can ask VA to adjudicate whether you’re entitled to that. But there’s no sort of period of time that you wait before you get that P&T status.

Nicholas: As always it’s an appealable issue. If the regional office happens to deny permanent and total status after you request it that is something that you can then appeal and bring to the Board if necessary.

Brad: One of the reasons why permanent and total or P&T is so important is because there’s many state benefits that become available to veterans once VA has determined that you have permanent and total status, so that’s a great question. Thank you very much. Going back a little bit to mental health ratings, so what are GAF scores, these global assessments of functioning scores and does VA still use them in rating mental health conditions? There always used to be a number.

Nicholas: Sure, so GAF scores were meant to serve as a sort of shorthand evaluation of a veteran’s occupational and social impairment for specific mental conditions and the Board kind of took the tact of using those ratings and applying them to all mental conditions that wouldn’t necessarily fit that situation. VA formally adopted the DSM-V in August 2014, and the DSM-V no longer use GAF scores. In the Golden case VA says that you can’t can’t – you shouldn’t use GAF scores at all after the formal adoption of the DSM-V, but really it’s a complicated thing that they shouldn’t have used them in the shorthand way that they did.

Brad: Ultimately, they’re really supposed to be– the adjudicators at the VA, are supposed to be looking to sort of the whole picture. The symptoms and how– what their effects on social and occupational functioning are not just this number that you can spit out or rate.

Emma: Sure. You can still look at GAF scores because they’re not just totally arbitrary. They are very subjective but it can’t be the reason that VA is denying you, a higher rating or saying, “You would get a 50% because your GAF score is 60,” and so they have to look to everything.

Nicholas: The other things to keep in mind there is that the GAF scores aren’t included in the rating criteria themselves and technically VA isn’t supposed to consider those sorts of outside factors that doesn’t speak to the rating criteria.

Brad: We have another question and the question that we have is can someone have PTSD from the Vietnam War and just be diagnosed with it now?

Emma: Absolutely. There’s something called delayed onset PTSD, so that’s certainly a possibility. Life changes. There are plenty of folks, plenty of instances I can think of where someone’s been working their whole life, and working really hard just to cope with the stress. They may be called a workaholic or just really threw themselves into it and has since retired, and now the symptoms are just coming to the surface for the first time. We do see that often and then they finally– their friends and family encourage them to seek out treatment and get diagnosed with PTSD. The other thing you have to consider is that PTSD hasn’t really been in the forefront like it is now. People for whatever reason thought they had to suck it up or just not report it or not talk about it. It may just be that someone’s finally feeling comfortable explaining to a doctor or whoever, a counselor or somebody, “This is what’s going on with me and it’s been going on my whole life.” and they finally get that diagnosis.

Nicholas: Then another thing to keep in mind, there is that PTSD in and of itself wasn’t a formal diagnosis until the 1980s. It’s hard to imagine that a veteran returning home from war after Vietnam would be diagnosed with something that the mental health community didn’t identify as a specific disability until 10 or 15 years later.

Brad: Which is interesting because as we know veterans have suffered from PTSD – what we now know is PTSD – going back from time in memoriam. Going back to the Civil War we had soldier’s heart and after World War I, they referred to it as shell-shocked. World War II was battle fatigue. We really have learned a lot that none of this is new, it’s just being recognized in a way that it never was previously.  What about if a veteran has multiple diagnosed mental health conditions? Let’s say depression, PTSD and something else. Do they need to submit separate claims for each of those diagnoses?

Emma: You can, you certainly can. You’re free to submit a claim for whatever disability you want to. You don’t have to. There’s sort of two results here. One, let’s say you claim that you have an anxiety disorder but it turns out you get diagnosed with an adjustment disorder. VA is supposed to consider the kind of broad range of mental health conditions because you as an individual aren’t a medical expert. You might not know that you have depressive disorder as opposed to depression or major depression. You don’t have to be really specific with the term. You could just claim a mental health disability and it doesn’t have to be very specific. The other thing to keep in mind though is that if you have multiple diagnoses which is often there are a lot of co-occurring diseases, most likely VA is going to assign you one rating. That’s because the rating criteria are all the same. They’ll consider the impairment from everything that could be service-connected. If your PTSD causes anxiety and your depression causes depression, they’ll consider both those symptoms but you’re going to get one combined rating.

Brad: What if the mental health condition overlaps with a physical condition?

Nicholas: Sure. At the end of the day, you can only be compensated for one symptom and it’s functional limitations one time. If you have say fatigue from sleep apnea and fatigue from post-traumatic stress disorder, you’re not going to necessarily get separate ratings for those conditions unless you’re able to demonstrate that you experience symptoms that are attributable to each of those conditions separately.

Brad: So, there’s no double counting otherwise?

Nicholas: Exactly.

Emma: Right. There’s an anti-pyramiding rule in the regulations, but you’ll be– if your service-connected for both you’ll get all of the fatigue, it might just be assigned to one or the other. Or what comes to mind is TBI, traumatic brain injuries and PTSD, a lot of the facets for TBI that are considered overlap with mental health conditions. It’s not that you won’t be compensated for it, it’s just going to be put in one group or the other.

Brad: It sounds very complicated.

Emma: It’s a little tricky and it’s difficult to explain. It’s frustrating for veterans to experience because it’s not always very clear. They know they have both disabilities and yet VA is giving them one rating. It can certainly be frustrating and it’s good just to talk these issues out with your service officer, your representative, your accredited agent, fellow veterans who’ve gone through the process just to get an idea of what’s going on and understand how VA rates your condition.

Brad: This is CCK live, we’re talking about VA disability ratings. Again, please feel free to reach out to us on Facebook or at cck-law.com. Now, Nick, a number of the veterans that we deal with have had brushes with the law for one reason or the other. If the veteran has a criminal record that seems to be related to the mental health condition should they submit that to the VA?

Nicholas: It’s one of those questions where the evidence is obviously difficult and it’s going to require an actual attribution of the symptoms that may have led to the arrest to a mental health disorder. It’s not enough to say on your own, “I have this condition. I committed these crimes because of it.” At the end of the day, you should always make sure to consult with your representative because they’ll be able to give you a good assessment of whether or not the evidence can help your case.

Brad: So, it’s the classic lawyerly answer of it depends.

Nicholas: Yes, always.

Emma: Absolutely.

Brad: Are there any common mistakes veterans make when they’re filing for a mental health condition with VA?

Emma: I’m trying to think of common mistakes. Well, it’s not really a mistake, I think it’s just something that’s attributable to the nature of the disease but unfortunately for some of our folks out there that have schizophrenia and other disorders like that, there’s a part of you that thinks you’ve always been this way. They may inadvertently lead VA down a path thinking it might have pre-existed service. I think being clear with treatment records and having other evidence besides just lay evidence of when you start to experiencing symptoms can be helpful just to clarify that it hasn’t been since you were three or four. It’s been since service that you’ve been feeling this way. That’s something that can definitely occur.

Nicholas: Yeah. I mean just generally speaking you want to make sure that you’re able to be as detailed as possible when you’re filing your claim and when you’re providing lay testimony down the road. If you’re claiming PTSD and they provide you with the PTSD verification worksheet, you want to, to the best of your ability, identify all the specific information that you can because it’s going to assist VA and their attempts to verify the stressor sooner or rather than later.

Brad: I know one of the things that I’ve noticed in mental health claims at the VA is sometimes veterans will be adamant that a particular diagnosis is what they want to be service-connected for, and in fact that the medical doctors may not agree with that diagnosis. So, I would encourage veterans to listen to the doctors as it relates to the diagnoses that they provide because if they’re linked to service, you’re still going to get the same kind of rating whether it’s depression, PTSD, adjustment disorder, any list of different things so just keep that in mind. I understand that it’s very important, particularly with things like PTSD and acknowledgment of exposure to this traumatic event. But I think that the VA can do that without necessarily granting PTSD per se. So, another question we had is how often do mental health conditions need to be reevaluated?

Emma: Again, that depends. VA might at the end of a rating decision note that they think that your condition might improve in the near future and pre-schedule a follow-up exam. Any time you file for an increased rating there’s always the potential for re-evaluation. They should, in fact, be reevaluating you but it depends on whether or not you’ve stabilized. Again, if you have that permanent and total status then VA is going to leave you alone. But if you don’t have that status they, in theory, can schedule you for an exam.

Nicholas: There is also a specific situation where a veteran is diagnosed with PTSD in service and they’re discharged for that reason. VA is supposed to assign a 50% rating for that condition and then re-evaluate you six months later to determine what the rating should be.

Brad: It really depends that some veterans really start to struggle quickly, let’s say after service or many, many years after service, and other veterans are– do stabilize and they don’t necessarily need a reevaluation. The bottom line with a lot of these disabilities, especially mental disabilities are, please go seek treatment, go seek help. If you’re having thoughts of hurting yourself please call the VA’s suicide hotline. Go in and see your doctor anytime you really feel like your symptoms are worsening. Get it treated, get it taken care of and then file your claim once you’ve actually receive the treatment that you need because in a lot of cases it’s really life-and-death issues. Well, again, this is Brad Hennings with Emma Peterson and Nicholas Briggs, and we’re here talking about VA mental health ranks. I think we’re going to close up shop here but if anyone has any additional questions on Facebook please provide them there or reach out to us online at cck-low.com. How about any final words or parting thoughts, Emma?

Emma: I think with all of these but especially with mental health conditions just being open and honest, and providing good lay evidence is definitely the key to getting an appropriately rated and it’s hard stuff to share it. We all get that, so share it with whoever you are comfortable with but make sure it’s shared somehow so that VA can evaluate it.

Nicholas: Yeah, I mean as Emma said it oftentimes it’s difficult for veterans to share some of their deep or deepest feelings with mental health counselors that they’re not necessarily familiar with. It’s just important to the best of your ability to communicate how you’re feeling and how it’s affecting you because that’s ultimately what VA is going to consider.

Brad: That’s a great point especially as it relates to VA compensation and pension exams or C&P examinations. I know many veterans are not happy with the examinations they receive for one reason or another. I think a lot of it has to do with there is no treatment relationship between the veteran, there’s no continued relationship between the veteran and the medical provider. So, that being said if you are receiving treatment from a private provider or a VA provider make sure you’re sharing all of your issues with them and make sure they’re capturing that information because it will help balance out whatever the C&P examiner saw in their 30-minute evaluation and writing their report in 15 or 20 minutes. With that thank you all for joining us. Again, it’s Brad Hennings with Emma Peterson and Nicholas Briggs. We’re here at Chisholm Chisholm & Kilpatrick, CCK live. We just did VA mental health ratings. Again, reach out to us on Facebook or our website. Thanks, and have a great afternoon.