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- From: engfish@ubvmsb.cc.buffalo.edu (LYDIA FISH)
- Newsgroups: soc.veterans
- Subject: Citations for PTSD
- Keywords: ptsd
- Message-ID: <C1B4Cn.4Io@acsu.buffalo.edu>
- Date: 23 Jan 93 12:38:00 GMT
- Sender: nntp@acsu.buffalo.edu
- Organization: University at Buffalo
- Lines: 87
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-
- Forwarded from VWAR-L
-
- CITATIONS FOR PTSD CLAIMS
-
- Today I pulled out the statement that I had typed up and
- presented to the BVA on my husband's claim for PTSD (increase
- in benefits). These are the cases and CFR sections I cited,
- and I think some of you might find them useful in dealing with
- the Big Cheeses at the VA, or the BVA. The CFR (Code of Federal
- Regulations) references are all to Title 38, and you should be
- able to find this at any decent library (like mine!); the "Vet.
- App." references are to the Court of Veterans Appeals Reporters
- (first number will be the volume, second one the page), and you
- should be able to find these at most good law libraries. And
- the DSM III is the Diagnostic and Statistical Manual of Mental
- Disorders, which also is a fairly standard reference book that
- most libraries should have.
- Maybe these will come in handy someday for some of you;
- I hope so. Just remember, alot of people who don't work in law
- are intimidated when you spout the law to them - so it couldn't
- hurt:
- --38 C.F.R. section 3.102: Any reasonable doubt is to be resolved
- in favor of the claimant.
- --38 C.F.R. section 4.7: Where there is a question of which of two
- evaluations should apply, the higher evaluation shall be applied
- if the disability picture more closely approximates the criteria
- for that rating.
- --38 C.F.R. section 4.16(c): Where the compensable disability
- is a mental disability assigned a 70 percent rating, and this
- precludes the veteran from gainful employment, it shall be
- assigned a 100 percent evaluation.
- --38 C.F.R. section 4.132 (9411): defines 70 percent disability
- due to PTSD, including: severe impairment of effective or favorable
- relationships with others, and such severe and persistent symptoms
- that there is severe impairment in the ability to obtain OR KEEP
- employment.
- --DSM III: Rates disorders from "mild" to "moderate" to "severe";
- clearly "mild" and "moderate" then represent two entirely different
- areas in the spectrum, and "moderate" is surely nothing so low as
- 10%!
- --DSM III: GAF Scale, rating one's functioning abilities, shows that
- one is at 30% of functioning (i.e., 70% disabled), when one ha
- friends)."
- --OHLAND V. DERWINSKI, 1 Vet. App. 147 (1991): Rating schedule
- for PTSD does not include "moderate", so that BVA MUST explain
- category into which finding of "moderate" fits.
- --HOHOL V. DERWINSKI, 2 Vet. App. 169 (1992): Claimant was
- diagnosed as "Chronic, active, mild to moderate" PTSD, and was
- awarded 100% disability (this was the diagnosis my husband Bob
- has, and this is the percentage we are hoping to be awarded).
- --HANSON V. DERWINSKI, Vet. App. (1992) (Sorry, I don't have the
- citation to this one, but it should be in volume 3 or 4). Ratings
- board cannot substitute its own judgment to find that a claimant
- could work in a "low stress" environment!
- --COLLIER V. DERWINSKI, 1 Vet. App. 512 (1992): Decision by the
- Social Security Administration finding the appellant to be "disabled"
- was evidence which could not be ignored, and reasons must be
- given for not accepting the SSA's conclusions.
- --SHEETS V. DERWINSKI, 2 Vet. App. 512 (1992): Satisfactory lay
- evidence CAN BE USED to prove the existence of a service-connected
- --injury (this case, I believe, involved a widow who proved that her
- late husband, a suicide, had PTSD by the testimony of the people
- who knew him).
- --DSM III: has Diagnostic Criteria for 309.89, Post-Traumatic
- Stress Disorder, including: Sleep disorders, intrusive thoughts,
- hypervigilance, survival guilt, antisocial behavior, panic
- attacks, and other manifestations.
- --DSM III: Diagnostic Criteria for 300.21, Panic Disorder With
- Agoraphobia. "Severe" is defined as "Avoidance results in being
- nearly or completely housebound or unable to leave the house
- unaccompanied".
- --FISHER V. DERWINSKI, 2 Vet. App. 406 (1992): Appellant suffered
- from PTSD and panic disorder; held that the BVA failed to fully
- explain why this only amounted to 10% disability.
-
- Well, there you go - hope this helps some of you, and let me know
- if you have any questions about any of this!
- Sally G. Waters /"Nothing worth having
- Queen of Reference / Comes without some kind of fight -
- Stetson College of Law / Got to kick at the darkness
- St. Petersburg, FL / Till it bleeds daylight."
- (waters@stetson) / ----Bruce Cockburn
-
-
- "inability to function in almost all areas (e.g., no job....or
- friends
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