VA General Rating Formula for Mental Disorders EXPLAINED

Video Transcript:

Courtney Ross: Good afternoon, and welcome to CCK Live with Chisholm Chisholm & Kilpatrick. I am Courtney Ross and I am joined today by Michelle DeTore and Nicholas Briggs. Today, we are going to be talking about VA’s General Rating Formula for Mental Disorders. We are going to start off with some general background information about the formula and then we are going to take you through each specific rating and what VA has outlined as what the veteran’s needs to establish in order to obtain that rating. If you have any questions throughout the broadcast, please feel free to leave comments and we will do our best to answer them as we go. I am just going to jump right into some general information. VA’s rating criteria for mental disorders is primarily based on social and occupational impairment that is caused by a veteran service-connected psychiatric disorder. It is broken down into different rating percentages. A veteran can be rated at 0, 10, 30, 50, 70, or 100 percent. Like I said, we are going to go through each one of those throughout the broadcast. But I want to start just by noting that any ratable mental disorder is going to be rated under the same formula that VA uses. Common disorders that we see veterans suffer from include PTSD, major depressive disorder, schizophrenia, anxiety disorders. All of those diagnoses are all going to be rated under the same criteria. One thing that is important to keep in mind too is that oftentimes, veterans have multiple psychiatric diagnosis and those multiple diagnoses might both two or three or however many there are, be attributed to service. But VA is not going to rate each separate diagnosis under these criteria. So, for example, veterans who suffer from PTSD oftentimes also have a diagnosis of major depressive disorder. If VA has conceded that both of those conditions are attributed to the veteran’s service, the veteran is not going to receive a 50 percent rating for PTSD and a separate 50 percent reading for major depressive disorder under this formula. They are going to be rated together. This is because of VA’s rule against pyramiding with which, generally speaking, means that they are not going to compensate a veteran for the same manifestation or symptoms in the resulting limitations of those symptoms that are attributed to multiple diagnoses.

If one of the symptoms or manifestations of NDD and PTSD is depressed mood, they are only going to compensate you once for that depressed mood. It is going to be under the one rating for all of your psychiatric conditions that they have that are attributed to service. That is really important to keep in mind as we go through these criteria. It is also important to keep in mind that there are some conditions that are considered psychiatric conditions that are not rated under this formula and it is very rare. But the prime example is eating disorders that is going to be rated under different diagnostic criteria that VA uses. So, with that Nick, I am going to turn to you two because in addition to eating disorders not being rated under this formula, there is also psychiatric diagnosis that do not qualify for VA benefits at all. Right? Could you give us some examples of some of those?

 Nick Briggs: Yes, absolutely. The primary example that we often see are personality disorders which are considered to be lifelong behavioral patterns that a veteran might have had since their childhood. So, you cannot get service-connected for a personality disorder in and of itself. It is worth mentioning that just because you have a personality disorder does not mean you cannot be service-connected for a mental health disability at all. VA does still need to consider whether a veteran might have PTSD or depression super imposed on a personality disorder. But the personality disorder itself cannot be service-connected. Other things that pre-exists service that cannot really be service-connected are cognitive delays or developmental disabilities. And then finally, substance abuse and alcoholism cannot in and of themselves be service-connected. They can be treated as an intermediary step, meaning if there some service-connected disability that causes alcoholism like PTSD causing a veteran to drink. It can be rated as a part of the underlying service-connected mental health disability or any secondary conditions that develop as a result of the alcoholism that is itself attributable to PTSD can also be related, but there needs to be that first critical step of establishing service-connected mental health disability before substance abuse or anything like that can be considered as related to service.

Courtney: Before we jump into each specific rating and what VA has outlined as what the veteran needs to establish, I just want to ask two questions of you, Nick. First, do veterans need to meet all of the criteria that we are going to go through? All of the criteria that is listed in say, the 100 percent rating to be able to get the 100 percent. Two, are symptoms that are not listed in that criteria, can they be considered? Can you argue those to VA? They might be attributed to the PTSD but they are not specifically listed in that criteria. Can VA also consider those when deciding how to rate the veteran’s condition?

Nick: We will start with the first question. Just because a veteran does not mean every single symptom listed in specific criteria does not mean that they are not entitled to that particular rating. You will see as we make our way through the list. Each of the individual ratings is signed from 0 percent through to the 100 percent for site conditions comes with a specific level of occupational and social impairment associated, followed by a list of symptoms using the term “such as”, meaning it is meant to be an exact list of examples and not an all-inclusive list. That being said, you do not need to meet every single symptom in order to be entitled to that rating and you might also experience some specific symptoms that are not listed but that are similar in their content to symptoms that are listed that might allow you to be entitled to a higher rating. One example we sometimes see is the idea of skin picking where a veteran might be so anxious that they pick at their skin and cause physical harm to themselves as will show you obsessive rituals that interfere with routine functioning, can be considered equivalent to a 70 percent rating. Harm to yourself can be considered equivalent to a 100 percent rating. Even though skin picking is not in and of itself a listed symptom, it is similar to other symptoms that are listed in the rating criteria. That is one relevant example.

Courtney: Thank you. And so, keep that in mind as we go through each of these different criteria that you probably, as a veteran suffering from a psychiatric disorder have symptoms that we are not going to specifically mention. Just keep in mind that that does not mean that you can argue that symptom to VA and arguing to get yourself a higher rating or as an advocate to get your client a higher rating. Let us start with the highest rating, which is a 100 percent rating for mental disorders. Michelle, can you take us through an outline what VA requires to establish a 100 percent rating for mental disorders?

Michelle DeTore:  Sure. With the 100 percent rating at this point, you are talking about total occupational and social impairment. This means that the veterans condition is so severe that they are unable to build and maintain social relationships. They are likely unable to work due to the severity of their condition. I will say we are probably the mindset that you are unlikely to get the 100 percent rating if you are working. Is it impossible? No, it could possibly still happen based on the wording of the criteria. It is very unlikely. Also here, you are talking about veterans who probably have gotten to the point where they are unable to perform the activities of daily living, which includes medication management, dressing, bathing, maybe cooking. A lot of times I see when a veteran is rated at a 100 percent, it likely comes with a competency proposal because a lot of times the condition is so severe that they are unable to, we just said, manage their own medication in which a lot of times if you cannot manage your own medication. VA kind of equals that with managing your own financial affairs. The actual rating criteria like Nick says, it says such symptoms as “Impairment and thought processes or communication, regular delusions or hallucinations, difficulty separating fact from fiction, grossly inappropriate behavior.” When you think of grossly inappropriate behavior, there is no definition here but sometimes you can see it based on the behavior that is happening.

One thing comes to mind to me is harassment, what I have right examinations before where the examiner will flat out say that somebody is kind of interactions during the examination are inappropriate. I think the one I write before where a veteran was saying extra close to the examiner, was touching the examiner, repeatedly the examiner asked them to move away and not touch them. They were answering questions inappropriately. Those are things you might see when it comes to grossly inappropriate behavior. As Nick has mentioned, you have persistent danger of hurting oneself or other distant disorientation to time and place. This is when you are talking about a severe level of memory loss too, you are talking about when somebody does not remember the names of those people close to them, maybe their own address, maybe their name, stuff that would be regularly known to that individual. This is what the 100 percent rating criteria encompasses right now for VA. But as we discussed previously, you do not need to have all the symptoms here. VA, unfortunately sometimes does misinterpret that but showing that maybe you have some symptoms or symptoms that are similar would possibly get you to the 100 percent rating.

Courtney: Yeah. And keep in mind too that, again, this is the criteria or the formula that is used for all mental disorders. And so, this might be symptoms that you are attributing to a PTSD diagnosis or to a schizophrenia diagnosis. This is still what VA is going to be looking at to grant you a 100 percent rating for either of those diagnoses. So, 70 percent is the next highest rating that can be granted for a mental disorder, and the language for this criteria is occupational and social impairment in most areas. So, 100 percent was total occupational and social impairment and 70 is most areas, meaning that the veteran typically struggles to maintain social relationships. They typically have an inability to really form new relationships, they usually have serious difficulty securing and following employment. They are typically underemployed. I think a lot of veterans that we see who are rated at 70 percent are typically not working or if they have attempted to work, they are only able to maintain jobs for brief periods because of their psychiatric conditions. Or they are working in an occupational where they are only working part-time or earning marginal earnings because that is the extent of what they can handle with their psychiatric conditions. There is serious occupational impairment with this rating. They oftentimes have difficulty adapting to stressful circumstances. And so, that also contributes to their inability to work.

Some of the symptoms that are listed in the 70 percent criteria include suicidal ideation and ideation important the veteran does not need to show that they actually had made a plan to carry out the suicidal ideation or that they have had previous attempts at suicide. It is just the thought of it that is sufficient for the 70 percent rating. Nick mentioned this one before, compulsive rituals that interfere with daily activities. The skin picking example that he gave, obviously, is not listed specifically in the 70 percent rating criteria, but you could compare it to that part of the formula which is the compulsive rituals, logic irrelevant or obscure speech, near-continuous panic or depression that affects their ability to function independently, impaired impulse control. So, outbursts of anger or violence are a good example of that, getting lost or disoriented. And so, Michelle touched on this a little bit with 100 percent rating when it is very severe and they have severe memory loss. This is contemplated by the 70 percent rating as well. It is just considered a lesser severity of it. And keep in mind too that a 70 percent rating obviously, if you have occupational and social impairment in most areas. Typically, if you have a condition that is rated at 70 percent you have very severe psychiatric symptoms. Well, it might not meet that 100 percent rating. It is still going to be considered very severe.

One thing you want to keep in mind if you are an advocate representing a veteran or if you are the veteran and you are rated at 70 percent, is you want to take a look at, again, the occupational impairment and what the veteran’s employment situation is because here she might also be entitled to a 100 percent rating. But through a grant of what is called Total Disability based on Individual Unemployability or TDIU. It is a different standard to get a 100 percent rating and typically, again, if the veterans rated at 70 percent their condition is severe enough to prevent them from securing or following substantial gainful employment, which is what you need to establish to get a grant of TDIU. I know in my experience a lot of the cases I see where veteran is rated this high. They are unable to work and they qualify for this benefit and so keep this in mind too. If the mental disorder meets the criteria for 70 percent rating but does not quite get you to the 100 percent under the mental disorders formula. You want to make sure you consider whether that veteran might also qualify for TDIU because it is an alternative way to get them a 100 percent rating and the monthly compensation payment at a 100 percent rating. So, 50 percent is the next highest level that is included in the formula. Nick, could you take us through what needs to be established for a 50 percent rating?

Nick: Absolutely. When we are talking about the 50 percent rating VA assesses this against the standard of occupational and social impairment with reduced reliability and productivity. Generally speaking, that means that there is some regular impairment of work caused by the veteran’s mental health disability. It might interfere with school if they are still participating in school and it is also going to affect their social relationships to a lesser degree than a veteran who might have an inability to maintain effective relationships. So, like I mentioned they might have struggle to maintain consistent work and they might have some relationships with family members and friends, but those relationships can often be difficult or fraught. Specific symptoms listed in the criteria include flattened affects, meaning difficulty expressing emotion, irrelevant remarks or talking in circles, meaning they have a hard time communicating their thoughts and feelings to other people. Panic attacks more than once per week, which you will notice in comparison to the 70 percent criteria, which requires near-continuous panic. There are similar symptoms noted across different aspects of the rating schedule, but here panic attacks and anxiety generally are still happening pretty frequently but not as frequently as the 70 percent criteria. Other symptoms include problems understanding complex commands, again, poor short and long-term memory where they do still have some memory difficulties, but it is not rising to the level of the memory impairment contemplated by the higher ratings in the schedule. As well as some impaired judgement, difficulty with abstract thinking and then mood and motivation disturbances, generally. Again, these are all specific areas like judgment and thinking that are contemplated by the higher ratings, especially the 70 percent criteria and the veteran may have impairment in those respects. But it is not as severe necessarily as that 70 percent right now.

Courtney: Yeah, and I would also keep in mind too that a veteran who might be rated at 50 percent might still qualify for the TDIU benefit I mentioned before. So, you can see it right here. Nick mentioned a 50 percent rating usually includes occupational impairment with reduced reliability, meaning regular impairment in work. And so, a veteran who might be rated at 50 percent maybe their psyche is severe to warrant a 70 or 100 percent, but it still has a regular impact on their ability to work in a substantially gainful occupation, which again, might meet that standard that is required for a grant of TDIU benefits. Again, which is paid at the 100 percent rate. Just keep that in mind too that while the veteran may only qualify for the 50 percent under these mental disorders formula, there are other benefits that might be available to them to get them a higher rating. Michelle, can you take us through the 30 percent criteria and what is in there?

Michelle:  Sure. With the 30 percent, now you are talking about occupational and social impairment with occasional decrease in work performance. It is a lower standard than the 100, 70 and 50. At this point in time it only happen occasionally. Generally, the veteran is functioning with only occasional symptoms that may interfere with work or relationships and/or relationships. In this criteria, symptoms may include but of course, they are not limited to depressed mood, anxiety, panic attacks weekly or less often so they are happening but maybe not as often as they are in the 50 percent rating criteria. You are continuously having difficulty sleeping, you see more of the nightmares, insomnia kind of stuff to that degree. This is when you have mild memory loss such as not remembering directions, names of acquaintances or recent events that may happen and there also could be some more symptoms that fall under here. These are the primary ones you are going to see in the 30 percent rating criteria. Again, this is when it is just a little bit more of a threshold where it is occasionally impacting or work or your relationships, but maybe not consistently. And then the 10 percent rating criteria is either even less severe symptoms. This is when you just have mild symptoms that interfere with occupational and social functioning but really only at times of high stress. So, even less than inconsistently and usually the symptoms here are managed by continuous medication, but some of the symptoms that VA list in the criteria and again, this is not limited to just what they have listed. But it includes mild depression or anxiety, mild or rare panic attacks, occasional difficulty sleeping and there are others that are listed there as well. But the 10 percent rating criteria really means that the symptoms are pretty mild and do not consistently affect the veteran on a daily basis, only during times of high stress and like I mentioned at the beginning of the broadcast, there is also a 0 percent rating for the psychiatric condition. Nick, can you take us through that criteria and explain what is the benefit of having a 0 percent rating even if it does not mean you are getting monthly compensation for that?

Nick: Absolutely. First, it is important to keep in mind how these disorders are diagnosed. By regulation, VA requires that psychologists provide a diagnosis under the DSM-5 the manual for diagnostic, I forgot what the acronym stands for. But at the end of the day, there might be situations where a veteran has a formal diagnosis for PTSD, meaning they had a stressful event, they have symptoms and reminders of the experiences they had in service, they go through and they check every box under the criteria. But ultimately, those symptoms do not affect their ability to work. They do not affect their ability to maintain relationships with other people and they do not require continuous medication like the 10 percent criteria or the other criteria. Ultimately, it is still important to have VA recognize that the conditions related to service. One, because it is at the end of the day, especially with PTSD in particular or any other condition. It was granted in the first place because there is some element of your service that is contributing to some ongoing impairment caused by a mental health disability. The reason that it is important to get that established as soon as you can is because even if it is not that severe now, it might become more severe later. It becomes harder and harder as the years go on to get service connection established because oftentimes, VA might try to deny based off of a supposed lack of continuity of treatment or symptoms. They are not supposed to do those things but the earlier you can get service connection granted the better. In that way, if and when your symptoms do become more severe at that point, you do not need to fight for service all over again. You just need to file for an increased rating and provide evidence to help support that increased rating.

Courtney: Fly over the service connection hurdle as I say. With all of that said, if a veteran is rated, let us say, they are granted service connection for PTSD and the VA grants them only a 10 or a 30 percent rating, what types of evidence could the veteran gather just to submit to VA and support that they are entitled to a higher rating under this formula. Michelle, do you have some suggestions?

Michelle:  A big piece of evidence here would be lay evidence because keep in mind the psychiatric criteria is more subjective symptoms. So, this is something that you can attach to and speak to so getting lay evidence from yourself maybe friends or family members that can attest to things that happen. Sometimes just treatment records do not have the full inclusion of everything and being able to supplement the record with what is really going on with lay evidence is great and VA often takes lay evidence with almost the same weight as medical evidence. So that is something I really look into especially for a condition such as a psychiatric one.

Courtney: Yeah. Absolutely. Nick, do you have any other thoughts on other types of events that veterans could also submit in support of higher rating?

Nick: Yeah. I mean, it is important not to forget about other forms of medical evidence that VA might not automatically have access to. Generally speaking, the rating decisions are going to wait a veteran’s mental health disability based off of the VA exams in the symptoms that are noted within those exams but there is going to be any VA treatment records if you happen to receive treatment through VA as well as any private treatment records that you may have because you treat with a private physician, but VA has not been made aware of those records. In the legacy system and during the supplemental claim process, there is a duty to assist the veteran in terms of helping to gather some of this relevant information. Whenever possible, you should either provide these medical record yourself or at least provide VA with the necessary information so that they can make that initial attempt to go and get them. Because ultimately, your treating physician might have access to more long-term assessments and evaluations of your symptoms over the course of many years as opposed to just that single snapshot of the severity of your symptoms on the day of the exam. So, anything you can do to provide treatment records over a longer period of time the better off you will be in terms of getting the increased rating granted.

Courtney: Again, Nick, you make a really good point to that usually in decisions VA’s just relying on that VA medical exam that they provide to determine what a rating is going to be appropriate. In addition to submitting treatment records, one other thing you might consider doing is getting your own outside independent opinion from an expert, a psychologist or someone who is going to have the expertise to assess the severity of your psychiatric symptoms and submit that expert opinion in support of a higher rating as well. It is even better if that expert has the ability to review your file in its entirety including any lay testimony that you have submitted, any treatment record as Nick indicated, including those VA exams that the VA has already relied on. The more analysis that that expert is able to provide in support of their opinion, the stronger and more probative that opinion is likely to be considered by VA. So keep that in mind too. With that said, Nick or Michelle, do you have any final thoughts or just general tips if a veteran is seeking a higher rating under this formula? Or anything to keep in mind when reviewing this formula and trying to decide what rating is going to apply to a specific veterans case?

Nick: I do think it is important to point out that the VA examiners are asked to provide an assessment of what they think your level of occupational and social impairment might be so they will either find deficiencies in most areas reduced productivity and reliability, occasional symptoms, so on and so forth. But that has been determined by case law Vasquez-Claudio v. Shinseki and the other cases guiding the increased rating issue for PTSD. That is determined to be more of a legal determination than a medical one, meaning even though the examiners are asked the question their answer to the question is not going to be determinative. Meaning the Board and the VA rating officers still conduct their own independent assessment of the symptoms and how they affect the veteran on a day-to-day basis before they can conclude what level of occupational and social impairment they experience. So, it may be the case that all of the symptoms to show a higher rating or in the file, but for whatever reason the VA Examiner is offering that unfair characterization of what your impairment actually is and you can always push up against that by appealing the decision to a higher adjudicator.

Courtney: Yeah, and I think one other thing to keep in mind too is if VA is basing their decision to deny you a higher rating on a VA exam, you can also challenge that VA exam and the value of it. CCK has done a number of CCK Lives on how to challenge the VA examinations, the C&P pension exams. So you can check out those videos on our website and our YouTube channel and Facebook as well, if you want some more specific information about how you might challenge a psyche exam that the VA provides for you. Okay. Well, thank you all for joining us. This has been CCK Live and hope you all have a wonderful day.