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VA Disability Benefits for Depression

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

  1. Symptoms of Depression
  2. Showing Direct Service Connection for Depression
  3. Common In-Service Causes of Depression
  4. Secondary Service Connection for Depression
  5. Service-Connected Conditions That Cause Depression
  6. Conditions that Result from Depression
  7. Veterans Who Have Depression Prior to Service (aggravation)
  8. Compensation and Pension (C&P) Exams for Depression
  9. Getting a Copy of Your C&P Exam
  10. Unfavorable C&P Exams
  11. Types of Evidence to Submit to Support Your Depression Claim
  12. How to Appeal Your Depression Claim
  13. Evidence to Increase Your Depression Rating
  14. Diagnostic Codes for Depression
  15. How VA Rates Depression
  16. Multiple Mental Health Conditions at Once
  17. Hospitalization Ratings for Depression (Temporary and Total)
  18. Things Veterans Should Know

VIDEO TRANSCRIPT:

Emma Peterson: Good afternoon and welcome to Facebook Live with Chisholm Chisholm & Kilpatrick. My name is Emma Peterson and I’m joined today by Courtney Ross and Michelle Detorre and we’re going to be talking with you a little bit about depression. Service connection for depression, symptoms of depression, and pretty much everything you need to know and serve a basic understanding of how this disability works in the VA disability system. As always, if you have questions or comments, please feel free to leave them in the comment section and we will try to get to them as fast as possible. A lot of the information we’re talking about today is available on our website at cck-law.com in our blog section so please be sure to look on that section of the website if you got further questions. Alright, so with that, we’re just going to dive right in. So, Courtney, what are some common symptoms of depression?

Courtney Ross: Sure. So, obviously the symptoms for each individual could vary but generally speaking, some of the more common symptoms are persistent feelings of sadness, of worthlessness, feelings of guilt, a lack of motivation or interest in activities that you may have previously enjoyed, maybe difficulty sleeping, or difficulty concentrating, a lack of appetite resulting in a change in a person’s weight. There can also be other physical manifestations, for example, digestive or stomach problems due to feeling depressed. Those are just examples of some of the common symptoms. Again, it will vary for each individual.

Emma: So, it’s a broad range. It’s the typical things you think of, maybe also some physical things too, pain, GI issues, things like that.

Courtney: Exactly, yeah.

Emma: Alright, so Michelle, how do we show direct service connection for depression?

Michelle Detore: Sure. So, direct service connection has three elements. The first element is that you need to have a current disability. The second element is that there needs to have been an in-service event or injury. The third element is that you need a medical nexus so basically a medical opinion linking your current diagnosis to the in-service event of injury.

Emma: So, what are some in-service causes of depression. People might think of more like injuries causing your physical injury. What cause depression?

Michelle: It could be anything from your military service so there could have been an event in your military service such as things can happen while you’re in service but you could also have things that are not service-related. You could maybe have a death in the family that was very traumatic and it happened while you were in service and now, you started experiencing depression. There could be incidents like I said earlier, or events in-service that cause the depression but I think that a lot of times, people associate the fact that depression was directly related to your military service but in reality, it just had to occur again during your military service.

Emma: Okay, so it’s not a military-related depression. It can be anything in your life as long as you were on active duty at that time.

Michelle: Yeah.

Emma: Okay. Alright, and what about coverage of direct service connection? If something happens, you have access?

Michelle: Yeah.

Emma: You have a diagnosis. What about secondary service connection, Courtney?

Courtney: Yes, so secondary service connection is a different type of our way to get service-connected. The way it usually works is a veteran has a condition that has already been service-connected for via VA so they’re already receiving benefits for it and the depression has resulted from that already service-connected condition. Just to give you an example, the file living in the contacts, one of them was common secondary service connection is where a veteran might have an orthopedic condition, maybe a back condition and that’s really severe and it has an impact to the veteran’s daily life in what they are able to do, and the result is that it’s started to cause them to feel depressed and developed that depression diagnosis.

Emma: Okay. Now, there are other conditions that can result from depression, right? For example, a lot of the psychotropic medications might cause weight gain and lead to maybe orthopedic conditions or aggravate orthopedic conditions so it really can work both ways and something might happen to you in service that causes an injury, become depressed, and then also the depression itself might lead to other conditions. So, it can go both ways.

Courtney: Exactly, yeah, or the depression might develop from a condition that has already been established.

Emma: Correct. Okay, great. What if for veterans who suffer from depression prior to service?

Courtney: Yes, so you could still get service-connected for the depression even if it existed prior to service if your military service aggravated that condition and you would need to establish that to VA that even though it existed prior to it, your military experience worsened the definition.

Emma: Now, Michelle talked a little bit about needing a medical nexus so oftentimes, VA will schedule you for a C&P examination. So, how does that work for depression, Michelle?

Michelle: Sure. So, a lot of times in the processing of your VA claims, they will go out and schedule you for examination. It could be through a private facility or through a VA medical center and what you’ll do is you’ll go to a VA examination and you’ll talk to a typically a psychiatrist or a psychologist and they’ll go through the symptoms of your disability and whether it’s an increase rating examination or service connection examination, they’ll discuss why their condition is related to service or like what you said, related to a service-connected disability or they’ll go through exactly the severity of the condition. They do that for both types of examinations and at the end, the examiner will compile their findings and submit that to the Department of Veterans Affairs. It is something that veterans are able to get a copy of. One thing I will say just to be mindful of is it does sometimes take a few weeks for the examiner to finish their findings and get that submitted. Sometimes it’s not readily available however other times it is pretty readily available, I would say within a week, but if you do have representatives that were working on your case whether it’s a veteran service organization or a private attorney or practitioner to access through VA’s electronic systems specifically BBMS, you’re able to quickly get that examination and download it from there so that you can review it.

Emma: Okay. I think the takeaway here is that they’re not going to give it to you at the end of the exam, a copy. You’re going to have to request it if you want to see it and it might take a little bit of time to get it and you should certainly reach out to a VA so or their colleagues at DAV. Your credit rack or whoever you’re working with on your claim or if you’re working with your claim by yourself, that’s absolutely fine. Go down to the RO, ask them for a copy. Make someone help you get this because you absolutely have a right to see it.

Michelle: You can also go to the VA medical center. There is a release that you fill out, it’s 5345 and once you submit that to them, they should be ought to give them to you.

Emma: Okay, that’s great, and then get that form online, right?

Michelle: Yeah.

Emma: Okay, wonderful. So, it’s VA form probably 21–

Michelle: 21-5345 and you just go to VA.gov and head to the forms page.

Emma: Cool. It’s great. Now, what can a veteran do if they receive an unfavorable VA exam?

Courtney: Veterans could submit evidence or argument to counter that unfavorable examination. A few examples of specific things you could do is consider getting your own private medical opinion to assess your depression and see if that private doctor can provide a nexus to your time-in-service or again to a condition that is already service-connected. You could also submit a lay testimony that outlines the onset of your psychiatric symptoms in-service or how your symptoms have progressed since you left service. You could also consider submitting an argument in another lay statement if you don’t feel like that exam accurately captures your experience with that examiner. If you think it’s inadequate in terms of what you recorded to the examiner is not being correctly documented on that examination.

Emma: Sounds like there are three general types of evidence you can submit. Medical evidence about your depression, lay evidence about what you experienced and when you experienced it, and then some lay arguments or just argument against maybe some negative evidence in your case.

Courtney: Yes.

Emma: Now, how can a veteran submit evidence with an appeal under VA’s new system under the AMA because we have a lot of content about this so please go to our website and check it out but how can veterans do that in this new system?

Courtney: Yes, so it’s very different under the new system in terms of the rules for when you can submit evidence and it all depends on which review option you select when you get a decision. When a veteran gets an initial decision, he may have three different options now to select. They can choose a higher-level review of the decision, they can choose to file a supplemental claim, or they can choose to file a NOD directly to the board which gives them again three separate options. If you choose a higher-level review, you cannot submit any additional evidence, only argument. If you choose to file a supplemental claim, you can submit additional evidence but it needs to be what’s called new relevant evidence. If you choose to file a NOD to the board, again the rules for when you can submit evidence will depend on which docket you select for the board. So, if you choose the direct docket, it’s a more of a higher-level review where they cannot submit any additional evidence, only argument. If you choose the evidence docket, you will have 90 days from the date that you file the NOD to submit additional evidence or if you select the third docket which is the hearing docket, you’re allowed to submit evidence at the time of the hearing or within 90 days after the hearing.

Emma: Okay, so if you cut all that, that’s great but again, I really strongly encourage you I think we all three would to go to our website, check out what we have on AMA in the different lanes and dockets you can pick. Talk with whatever you work on your case with, about which lane or docket to select because you want to be sure that you’re picking a lane or docket that you can add evidence if that’s something you need to do. That also is important not only for service connection cases but also increased rating cases. So, what kinds of evidence our veterans need to show an increased rating or even service-connected for depression?

Michelle: Sure. The evidence we’re just talking about you can use medical evidence, lay evidence, basically, you need to show that your condition increased in severity or that the original rating was incorrect. You can do it by just submitting medical evidence, lay evidence, or any type of argument may be against the evidence that is of record showing that that evidence supported a higher rating than what you currently have.

Emma: And VA has diagnostic codes for every condition pretty much under the sun, almost all of them. Not all of them, but almost. There are a couple of DCs or diagnostic codes that relate to depression but I think the thing to know is that all the mental health conditions have the same criteria. So, they’ve got a couple of DCs 9433, 9434, and so on but the rating criteria is the same whether you have depression, PTSD, anxiety. It’s the same type of factors. So, how does VA rate depression?

Courtney: Sure, so generally speaking the rating criteria for mental disorders which Emma just said would be what depression, what VA uses to rate depression. It’s looking at the occupational and social impairment that’s caused by your depression and your specific symptoms and how they result in an occupational and social impairment. For each criterion, let me back up and say that a veteran can be rated at 0%, 10%, 30%, 50%, 70% or a hundred. That’s the way the rating criteria is set up and for each one of those ratings, there is a list of symptoms and impairment that VA will consider to decide which rating they think the veteran fits in. It’s not an exhausted list so veterans might have symptoms that fit in with the 50% and other set seen to be more applicable to the 70% rating. They might have symptoms resulting from the depression that are listed in all that rating criteria and the VA still needs to be considering those other symptoms as well in terms of they affect the social, occupational impairment.

Emma: Do you need to hit every criterion, most of the criteria to get the rating, none of the criteria, how does that work?

Courtney: There is a definite misconception that you have to have all the symptoms listed in each rating criteria for each percentage however it’s incorrect. You have to just show their examples so they’re saying that these are some of the examples of what would be 70% or 50% and you don’t need to have all of them. Ideally, you should be falling within some of them but if only you’re showing that occupational and social impairment that you’re experiencing falls under what they consider to be at that level, I think that that’s usually enough to get EDR increased ratings.

Emma: And it’s a little different than maybe like an orthopedic rating which relies on a very mechanical range of motion, hearing loss that has set levels like Courtney said like Michelle said that the diagnostic criteria for mental health conditions are examples. So, it really goes from no social occupational impairment up to total social occupational impairment because every person’s unique on how their mental health condition manifests. You certainly can get creative with your arguments and lay statements. Now, a lot of times, people are diagnosed with more than one mental health condition at a time so Michelle, are they going to get two ratings for that? How’s that going to work?

Michelle: As we discussed earlier, all mental health conditions are under the same criteria so unfortunately, there’s usually no way to parse out the symptoms. They’re almost always just rated and combined together however sometimes, VA can parse out the symptoms maybe your anxiety as one thing but your PTSD is another thing and they can separate them and the medical opinions are there. It’s very uncommon that they’re able to do it but typically, they’ll take the two diagnostic codes, they’ll give you one condition, say your PTSD with anxiety depression and it’s rated at 70% because they can’t separate the condition, the symptoms that you have from PTSD or anxiety and your cression.

Emma: Later on, can I get a 30 for PTSD and a 30 for depression? You’re just going to get one rating of all those symptoms as if it was one condition but the list out the different diagnosis used in my half.

Michelle: Yeah.

Emma: Okay. I think that’s important to know ’cause sometimes we come across clients that want to file claims for they have anxiety and they want to file for PTSD or vice versa. Certainly, talk with your representative about whether or not that’s a good idea. If the VA is underrating you because they’re not considering some symptoms ’cause they say it’s due to a non-service-connected disability, it may be worth it but if they’re considering everything you have, it may not be worth it ’cause you’re not going to get an additional rating by filing for service connection.

Michelle: And sometimes they’re not considering it because it’s part of another condition but sometimes you have the opposite effect where the VA is considering it saying that’s part of that condition but if you go and file for PTSD with your service connection for anxiety, they might say, “Well, now you’re saying these symptoms are due to a non-service-connected condition and we’re going to reduce or lower your rating”. It’s just something you’d be mindful of when you are filing some multiple diagnoses.

Emma: Okay. What if a veteran is unfortunately hospitalized due to their depression? Do they get any special compensation for that?

Michelle: Yes. If a veteran’s hospitalized for 21 days or more, they can get what’s called the temporary total ratings or a temporary 100% rating for the time that they are hospitalized until the time that they are discharged. If a veteran’s hospitalized and this is again assuming it’s for the depression or the service-connected condition if they’re hospitalized for the depression for at least 6 months, they’ll get the temporary total rating for that 6 months of hospitalization and then for the 6 months following discharge.

Emma: Okay, and of course like any condition out there, a veteran can get TDIU due to depression if it prevents you from working.

Michelle: Yes.

Emma: Okay, so you can either end up with a temporary rating if you’re hospitalized or if you can’t work, certainly consider looking into that TDIU rating. Are there common mistakes that VA makes when adjudicating depression claims?

Michelle: Yeah. One of the things we were talking about previously was in-service incurrence of depression so sometimes VA will make the mistake saying that “No, your depression is due to this other event that happened while in service but it’s not related to your military service” and their missing the fact that it still happened during military service. Also, some of them say that “You had depression in service but it resolved and now your depression is really due to your poor service, life stressors” without considering the fact that it was still going on maybe you’re just weren’t treating for it. Those are very common areas that we see and then they also try to parse out and say that it’s due to your personality, these were already symptoms, it’s not due to this anxiety, that’s due to service.

Emma: Okay. Anything veteran to remember, Courtney when claiming depression?

Courtney: Yeah, I think just kind of thinking back about the things that we talked about in terms of establishing direct service connection so keep it in mind that you need the diagnosis. You need the current disability and you need to be able to point to something in-service whether it is a military event or something that happened to you in service outside of your military experience. Then, medical nexus is going to be really important. You need something time together with your current disability to your time in service or again to a condition you may already service-connected for that has resulted in your depression.

Emma: Okay. Michelle, anything that you think veterans need to be mindful of when claims a depression?

Michelle: Just because you started out claiming depression and you later get a diagnosis of PTSD doesn’t mean that you now are required to file a new claim. VA is supposed to probably consume your claim for depression to include all psychiatric conditions because you’re not a medical doctor, you don’t necessarily know what your medical diagnosis is but you are confident to talk about the symptoms you’re experiencing and VA is supposed to be aware of that in three cases at such.

Emma: Okay, great. That’s pretty much all we have. Hopefully, short and sweet information on depression. Once again, Emma Peterson with Courtney Ross and Michelle Detore from¬†Chisholm Chisholm & Kilpatrick¬†and we’ll see you next time.