VA Disability Benefits for Anxiety

CCK Law: Our Vital Role in Veterans Law

READ the blog here: https://cck-law.com/blog/news-va-disability-ratings-for-anxiety/

1. Common Anxiety Conditions
2. Common Symptoms of Anxiety Disorders
3. How to Show Service Connection for Anxiety
4. Compensation and Pension (C&P) Exams for Anxiety
5. What to do about an unfavorable C&P Exam
6. Evidence for Anxiety VA Claims
7. Appealing Anxiety Claims under the Appeals Modernization Act
8. Secondary service connection for Anxiety
9. VA Diagnostic Codes and ratings for Anxiety and Mental Health Conditions
10. Claiming two Mental Health Conditions at Once
11. Do Veterans need to meet every criteria in the rating formula?
12. Temporary Total Disability ratings for hospitalization
13. GAF Scores
14. Difference Between 50% and 70% Anxiety Ratings
15. Psychiatric condition overlaps with a non-psychiatric condition—Pyramiding
16. Anxiety prevents a veteran from working—Individual Unemployability (TDIU)
17. Evidence to increase Anxiety rating
18. Common mistakes VA makes rating Anxiety
19. Things veterans should remember when filing for Anxiety

VIDEO TRANSCRIPT:

Jenna Zellmer: Good afternoon, and welcome to CCK live. My name is Jenna Zellmer. Joining me today are Alyse Galoski and Nick Briggs. We all work on Veterans Benefits Appeals here at CCK. Today we’re going to be talking about anxiety. Now, before we get into it, I just wanted to remind you all that if you have any questions or comments during our conversation, you can go ahead and leave them in the comment box below. We’ll also be posting links to blogs and more information on our website at cck-blog.com. So let’s get into it. So, Nick, why don’t you start us off? We’re going to be talking about both service connections and increase ratings for anxiety today. Let’s start with talking about service connections. So, Nick, what are some common anxiety disorders that veterans can claim service connection for?

Nick Briggs: Sure. So one of the more common types that we see are generalized anxiety disorders. But there are also other specific types of anxiety disorders like social anxiety, panic disorders, and then specific phobias like Agoraphobia.

Jenna: Okay. Alyse, what are some common symptoms that characterize these anxiety disorders?

Alyse Galoski: Sure. So there some of those like invisible symptoms like excessive worry, or difficulty concentrating. But then there’s also symptoms that physically manifest so you can feel jumpy, or you might be dizzy, have difficulty sleeping, have mental– have muscle tension, feel nauseous, or even lightheaded.

Jenna: These are all manifestations of an underlying anxiety condition. I think that it’s really important. I think a lot of times veterans think that they can only get service-connected for PTSD. Because I think that you know, often PTSD goes in hand in hand with a lot of experiences that veterans experience in service. But even though anxiety tours are a little bit different, if you go to your doctor, and they don’t diagnose you with PTSD, but they do diagnose you with any of these symptoms, or any of the anxiety disorders that Nick mentioned, you can still claim service connection for that specific condition. So what do veterans need in order to show service connection for this condition?

Nick: So the first most important thing that you want to be able to demonstrate is in service and currents. That can take a number of different forms. Either the veteran specifically treats for and is diagnosed with an anxiety disorder in service, they might just check that they were experiencing depression or excessive worry on their discharge examination. Or there might have been some specific incident that they remember that caused their innate anxiety and it’s continued to persist since then.

Jenna: Okay. You don’t need to be diagnosed with anxiety things.

Nick: For sure.

Jenna: Okay. You just have to have some sort of notation. Alyse what else? What after and service occurrence, what else you need to show service connection.

Alyse: Next thing you need is a Nexus, so that’s what’s going to connect both your in-service condition to what’s going on with you now. Typically that’s going to require some type of medical opinion. Because live persons are not competent typically to make that connection. So it’s a medical opinion usually that’s going to draw that Nexus.

Jenna: We have a Facebook Live, all about what you need to show all three elements of service connection. So we’ll link that in our notes. If you want more information, just on a general service connection, you can check us out there. So Alyse you would mention that you need a Nexus and that generally requires an examination or medical determination. So how do C&P exams, which is what we also call them, which stands for Compensation and Pension Exam, how do those work in relation to anxiety conditions? What would happen in a service connection for anxiety claim?

Alyse: Sure. So typically, with a C&P exam, you’re going to be meeting with a VA physician, who it’s going to be somebody that you’ve never met before, most likely, they will ask you about your experiences during service. They’ll also ask you about experiences that you have now that may also ask you about any medical history, any family medical history, it’s going to be a lot of questions that are all going to be what they’re going to use to support and opinion on as to whether what you have now is related to service or not. So it’s going to be a lot of us background questions, family medical questions. They’ll also ask you about what your current symptoms are.

Jenna: I think we also have a Facebook Live all about C&P examinations, which has a lot of great information, kind of explaining what’s going to happen in these exams and what you shouldn’t do. I think the biggest thing is you have to always show up for your examination. Then if you get an unfavorable opinion, Nick, what are some remedies that the veteran can pursue?

Nick: Sure. Well oftentimes a veteran won’t necessarily know that the opinion was negative until they get the next decision from VA denying their claim. So first and foremost, they need to make sure that they are requesting a copy of their VA examination which they’re entitled to do. Then once they have the exam, they should go through it at length, making sure to identify any specific problems that they noticed or things that they think conflict with other evidence they’ve submitted before. One of the things that the examiners are supposed to do is review the claims file and make sure that they’re looking at everything that veterans submitted including lay evidence, and then considering all of those things in light of the examination itself.

Jenna: Great. I think the one important thing that I heard you saying that is lay evidence. So, we talked about medical evidence and why we need that usually for access, but can you talk a little bit about what other kinds of evidence including lay evidence you might need to support a client for anxiety?

Nick: Sure. Lay evidence is often one of the things we go to most often, if only because a lot of the time, veterans don’t feel comfortable seeking treatment for their condition during service or even afterward. Because it’s something that, you know, it’s kind of stigmatized and people don’t necessarily like to talk about it. So it could be many years before they actually go get to the point where they feel they need to seek treatment, and lay evidence from the veteran, him or herself and all their family members can help fill in some of those gaps. But whenever possible, it’s also a good idea to submit treatment information from either your VA doctors or any private psychologist that you see.

Jenna: Okay. So let’s kind of take a step back and talk about the appeals monetization act. So we have a whole Facebook Live on the AMA, as we call it. Essentially, back in February, VA totally revamped their appeal system. So now, there are several different avenues that a veteran can pursue after they receive an unfavorable rating decision. So, if a veteran wants to file an appeal, what should they kind of know about the AMA, after they receive a reigning decision from the VA?

Nick: Sure. So the most important thing is that, if their claim was previously denied and they’re filing a supplemental claim, which is one of the new options under the appeals modernization system. They need to make sure that they’re submitting new and relevant evidence that’s meant to be a relatively relaxed evidentiary standard. So it could be something as simple as providing a lay statement talking about how their symptoms are related to service. It could be submitting medical evidence, establishing that they have a current diagnosis. But whatever it is, it needs to be something that is relevant to their claim. Then they can also pursue taking their case to the board with or without submitting additional evidence if they really do think that is a situation where the regional office is just getting it wrong. But all of those options are still available to them. They just need to be conscious of the one year time frames.

Jenna: Great. Yes, I think, the AMA is a pretty new system and it’s pretty complicated. Although it is supposed to provide veterans more choices, and it’s supposed to clarify a lot of things, I think it’s still unclear kind of how it’s going to work for veterans. So we would really encourage you. If you’re seeking to initiate an appeal under the AMA to consult your veteran service organization and attorney, someone who has some expertise in this area of law. As I mentioned, will link some more information to the AMA in the case notes or in the comments below. So we’re talking about service connection, and we mentioned in-service and currents and access and a current disability. What if a veteran doesn’t have an in-service and current, can the veteran get service connection another way Alyse?

Alyse: Yes. So an alternative way to get service connection is called a secondary service connection. This happens when you have an already a service-connected disability that is either causing or aggravating your anxiety or a second condition. So say that you have just, for example, you have a knee condition. Your knee condition causes you a lot of pain, and it makes you anxious to get out of bed, it makes you anxious to walk down the street or to walk to work. You could potentially show that you have secondary service connection for your anxiety because of your knee conditions already service-connected, whether it’s either causing or aggravating an already existing anxiety condition.

Jenna: Great. Yes, I think that anxiety is something that a lot of veterans probably have secondary to their service kinds of disabilities, especially physical disabilities. I can give your example. For example, if the veteran had a lot of instability in their knee, and they were never sure whether or not they were going to fall, you know I can imagine that, causing a lot of anxiety. So just the same way that you would need a Nexus opinion for direct service connection, you would still want to get the doctor to make an opinion about whether or not that knee causes or aggravates anxiety, it’s really good. So, let’s assume that a veteran has received service connection, you know they’ve met that first threshold, either secondary or direct. Let’s talk about how VA rates anxiety. So let’s take a step back a little bit and talk about kind of how it VA rates things in general. I think that we do have some information on that. In our past Facebook Lives, Alyse do you want to talk a little bit about what diagnostic codes are and what the diagnostic code for anxiety is?

Alyse: Sure. So if you think about the diagnostic code, the best way to think that is this rubric, where the VA has established certain disabilities, and under those disabilities or certain rubrics, if you meet certain criteria under the rubric, then you’re granted assert you should be granted a certain rating. Specifically, anxiety is rated under the general formula for medical or mental rather, disorders. So that’s going to also include all their mental disorders, which could be schizophrenia, it could also be PTSD, the very many different types of anxiety there are, and probably any other types of mental condition that you can think of, are all rated under the same diagnostic code that’s going to be diagnostic code 4.130, that diagnostic code goes up to 100%, it starts at a non-compensable, rating of zero percent. It lists specific symptoms and overall functional impairment that you would have to meet to get the specific rating.

Jenna: Good. So Nick, Alyse mentioned that kind of several different psychiatric conditions are all rated under this one general formula. So what happens if a veteran has, for example, both anxiety and PTSD, or anxiety and depression? Does that affect your rating at all?

Nick: Sure. So like Alyse mentioned, you know, even though individual psychiatric conditions do have their own diagnostic codes, they’re all rated under this general formula. Because of that and because they’re all rated based off of the same criteria of factoring in the same symptoms, you’re not going to receive separate ratings for each individual mental health condition, they’re going to figure out which symptoms are imposed by each of those conditions, and then give you one overall rating using the general formula.

Jenna: Good. I think it’s important to kind of keep that in mind when you’re looking at your rating code sheet. You know, every reading decision comes with a code sheet that lists out all of your disabilities. Over the course of your life, and your different appeals you’re rating for your sex condition can change and the characterization of your site condition can change based on what VA determines kind of what the diagnoses you have. So, for example, you know, veterans who are for service-connected a long time ago for psychiatric conditions might be originally rated under something called a nervous condition. Then as medical information has kind of evolved, that could get recharacterized as PTSD or anxiety. Then sometimes, a veteran could be service connect for one thing and then later on, claim service connection for another psychiatric condition. As Nick said, you’re not going to get a separate rating for that second condition, but they might recharacterize what it’s called on your code sheet, and so that’s important to keep in mind, and just to make sure that, you know, if there are symptoms that weren’t originally compensated under your original characterization, but you feel are now encompassed in that characterization, you might want to make a claim for an increased rating.

So you know, at least you mentioned the different possible rating levels. You mentioned that the diagnostic code and the rating formula provide different symptoms and different criteria that you need to meet in order to get to a higher rating. So did veterans have to meet every single criteria in that rating, in order to get to the higher rating?

Alyse: No. So technically, you don’t even have to meet a single one of the criteria, what you have to do is show that your functional loss is similar and what’s called severity, frequency and duration, to the type of symptoms and functional loss listed in this diagnostic code. So if you receive a board decision that says, the veterans not entitled to a higher rating because although he has certain symptoms in the 70 criteria, he does not have them all. That would be an error, you don’t have to meet all of their criteria, what you have to do is show that your functional loss is overall similar and severity, duration, and frequency to these types of symptoms that they’re listing. It’s a list, it’s a non-exhaustive list. It’s really just supposed to be examples.

Jenna: Great. There are two cases that kind of go to that point. That was Claudio and Mauerian. So for those of you who kind of want to dig a little deeper into the case law, the court has made clear that these symptoms are not required.

So Nick, what happens if a veteran’s condition is so severe that they actually have to get hospitalized?

Nick: Sure. So periods of hospitalization are considered to be totally disabling. So in a situation where a veteran hospitalized due to their mental health disability for more than 21 days, they’re entitled to a 100% rating for the period of hospitalization. But if the veteran is hospitalized for an extended stay of more than six months, they’re not only assigned the 100% rating for the entire length of the hospitalization but as well as six additional months after the date of their discharge.

Jenna: That’s great. I think that makes sense if you think about how VA rates disabilities and the ratings are supposed to be based on impairment and earning capacity. So obviously, if a veteran is hospitalized, they can’t be working. So, it’s really important, if you do get hospitalized, you want to make sure that you tell VA and make sure that the VA is appropriately compensating you. So that’s really important to keep that in mind. Then, I think that a lot of times when the veterans are going to seek treatment, or they’re seeking a VA examination, they get something called GAF scores G-A-F. So Alyse you want to talk about a little bit about GAF scores and whether or not they’re even still relevant, or what’s going on with GAF scores?

Alyse: Sure. So a GAF score is a somewhat or outdated way that practitioner used to measure how severe a person’s psychiatric disorder was, it is from a previous version of the DSM, VA has since come out with a court decision called golden, which says that those GAF scores are no longer in the DSM 5, and therefore they’re outdated, and they shouldn’t be used by the board. So in some circumstances, you might still see them mentioned in your board decisions, but the board really shouldn’t be relying on them to deny you a higher rating.

Jenna: Yes, and if you see the board talk about GAF scores and relations to what rating you should be receiving, that should be a red flag. You can talk to an attorney or the SO about potentially appealing that decision to the board. Or to the court, excuse me, and Alyse mentioned, the DSM, the DSM stands for Diagnostic Statistical Manual. It’s the manual that all mental health professionals use in diagnosing mental health conditions.

So we have a question from Stephen, “Can you explain the difference between occupational and social impairment with reduced reliability and productivity and occupational and social impairment with deficiencies in most areas?” So these are the criteria for the 50 and the 70% ratings, and this is actually an excellent question.  So, let’s take one a stub. [laughs]

Alyse: I’m smiling at you because it is a very good question. It’s one that the board has not yet answered for us.

Jenna: Yes the court.

Alyse: Or the court rather. So they haven’t provided exact definitions of what those things mean. But if you look to the diagnostic code, you can try and get a sense of what types of symptoms fall under each of those. But unfortunately, we’ll have a straight answer for you. Because the court and the board VA has not defined it further than what we already see, in the code, you can look at some of the symptoms. For example, at 50%. What is contemplated by occupational and social impairment with reduced reliability and productivity include flattened effect, panic attacks more than once a week, impaired judgment, impaired abstract thinking, difficulty in establishing and maintaining and social relationships. In the step higher, you’re seeing it involved more areas of your life, other than just the occupation and some of your relationships. You’re also seeing suicidal ideation, obsessive rituals, near-continuous panic, rather than panic attacks once a week, you’re seeing an inability to establish and maintain effective relationships. Now, what we were saying before, you do not need to show all of these symptoms, it’s just meant to be a list of examples to give you an idea of what that level of functional losses.

Jenna: Precisely because the different ratings are so big. What is the difference between release reduced for liability and deficiencies in most areas. So you use the symptoms in order to kind of parse that out. But as Alyse said, the court hasn’t really given us a lot of guidance on this and the results in a lot of wildly inconsistent board decisions.

Alyse: That’s [crosstalk] what—sorry Nick.

Nick: Go ahead.

Alyse: That’s what makes the board’s requirement to provide adequate reasons and basis so important, because they don’t have a strict definition of what these things mean, they really supposed to be properly explaining to you, as the veteran, why you’re not entitled to a higher rating with what we call adequate reasons and bases.

Nick: Yes, and it’s especially important in the context of anxiety disorders because oftentimes, it’s the type of mental health illness that might only really manifest itself in two or three specific symptoms. Aware it’s overwhelming anxiety and frequent panic attacks that are causing you to be unable to function in these areas. But because VA tends to rely on the number of symptoms that you have, rather than how severe they are, it can get complicated, especially when they’re not really defining the concepts that they’re using.

Jenna: Right. That’s what Alyse is saying about, it’s really focusing on the frequency of severity and duration of the symptoms. So if you see VA is kind of using these rating criteria as a checklist, that should raise a red flag that it’s probably not a very good decision, and that you could potentially appeal it.

Alyse: Yes, I think that’s a really good point Nick, especially because we are talking about anxiety, which is not a condition that typically actually manifests itself into a lot of the symptoms that you see in the highest 100% rating like hallucinations. But if you, for example, have such severe agoraphobia, that you can’t leave your house or can’t leave your room, then you might have a total occupational and social impairment. So even though agoraphobia isn’t a symptom listed under 100%, the overall functional loss might be enough to get you there.

Jenna: Mm-hmm. So it’s a really great question. I think it’s just it really highlights why this area of law is so unclear and why it’s important to, consult with your VSR or consult with an attorney because they can kind of navigate this and figure out what the best solution or argument to make in your case is. Great. So we talked about GAF scores and the DSM. So I think the next thing that we want to talk about is, what happens if a mental health condition overlaps with a non-psychiatric condition? Nick, do you want to talk about that?

Nick: Yes, it’s a concept we talked about a lot called pyramiding. I think we have our own Facebook live sessions on that topic. So please refer to that if you have any more detailed questions. But the basic idea is that VA is only going to compensate each symptom that a veteran experiences once. So if the veteran experiences or suffers from an orthopedic disability, that causes sleep impairment, and then a psychiatric disability that causes sleep impairment, they’re going to generally rate that symptom under one of those diagnostic codes, one of those conditions, and then not rated under the other one, just to make sure that they’re not overcompensating the veteran for the symptom.

Jenna: Then I think that’s the kind of a reverse of that what Alyse was mentioning earlier is if your psychiatric condition results in non -psychiatric symptoms, then you can potentially get, it’s like the opposite of pyramiding. That’s when pyramiding isn’t a problem is when there are distinct manifestations of your condition. You can get separate ratings for that. So it’s actually a little bit about this in terms of total occupational and social environment. But what happens if a veteran’s anxiety prevents them from working?

Alyse: Sure. So there is an avenue to receive a 100% rating called TDIU. This is what you may be entitled to if your disabilities could be your anxiety alone or your anxiety combined with all of your other service connected disabilities prevent you from obtaining, securing what’s called substantial gainful employment. So this is actually a lower standard than total occupational impairment. Substantially gainful employment is another one of those terms that we’re working on having, you know, getting a really good definition for. But basically, it is something that is more than just marginal employment, something that is more than what we call a protected work environment. If somebody’s anxiety or somebody’s anxiety combined with their other disabilities, prevent them from really obtaining secure employment, then they might be entitled to TDIU. We have absolutely had a lot of information on our website about TDIU. That is a very large area of veteran’s law. But if you have any questions about that, absolutely advise you to look at our website as well as our other– I’m sure there’s a Facebook Live on that as well.

Jenna: Definitely. So what other kinds of evidence should veterans be kind of collecting and submitting in order to support their increase rating claims, Nick?

Nick: We’ve mentioned it a few times in the context of service connection, but it applies equally well to increase ratings. That’s lay evidence, obviously, the veteran will only see they’re treating provider or a VA doctor every so often, they’re going to be months or even years where they don’t seek treatment. But the people who know them who live with them, who experience their symptoms on a day to day basis, are often in the best position to provide a description of what those symptoms are, and how they affect them. So getting statements from yourself getting statements from family members can go a long way.

Jenna: I think, one of the most common mistakes I see in that situation is that the board or VA provides or assigns more value to those treatment records, as opposed to Alyse statements. As Nick said, I think it’s really important to kind of highlight that they are both equally valuable, and that they are probably complimentary in most situations. So even though a veteran may go to treatment and might not be super severe on that one day he goes to treatment, if he has all these lay statements filling in the gaps between treatments you can kind of get a bigger picture. So, that’s kind of one of the more common mistakes that I see VA making. I’m just kind of wrap things up to you guys, do you have any other thoughts on common mistakes that VA makes indicating anxiety claims or things that you think veterans should remember when they’re making these claims.

Alyse: One thing actually, it’s a long line to lay statements, if you are submitting lay statements, and this is kind of a new one. Make sure that what you’re submitting is legible, because you want to make it easy for VA to agree with you. So if they can’t really read your handwriting, then it’s very difficult for them to understand what symptoms or what your story is. So I just suggest whether you’re typing it or in very neat handwriting, lay statement should be legible, easy to understand, make it easy for them to want to give you an increased rating.

Jenna: That’s really good advice.

Nick: True.

Jenna: It’s better for us too.

Nick: Yes. Another common example we see in the case of service connection is VA improperly requiring a verified stressor, which is something that’s only really embraced for post-traumatic stress disorder. So, most veterans are probably most familiar with PTSD. So that tends to be the condition that they claim. But VA supposed to construe that claim broadly and liberally. So the veteran might end up being diagnosed with a different mental health disability, but because they claim to be PTSD initially, VA will often get stuck on trying to adjudicate the client that way. But at the end of the day, like we talked about before, it’s really just all about establishing anxiety and service or reports of anxiety, and then symptoms after.

Jenna: That’s a really good note to end on. Great. Well, thank you for joining us today. We will be back next week and we hope that you check out all the information we’ve read.