LEGAL ASPECTS OF

ADJUDICATING CLAIMS

FOR PSYCHIATRIC

DISORDERS

TRESA SCHLECT, COUNSEL

SARAMAE KREITLOW, ASSOCIATE COUNSEL
APRIL 17, 2008
 GOALS
IMPROVE VALIDITY AND RELIABILITY:

o Validity-is the decision/rating consistent

- with the veteran's disability/functional
impairment in daily life?

o Reliability-is the same decision or same

rating assigned for the same facts or
extent of disability by different decision-
makers
 Impediments to validity and
reliability in psychiatric claims
Clinical/Scientific Factors:
-0 Lack of scientific knowledge of objective
factors which differentiate one psychiatric
disorder from another
10 Lack of cross-reliability in descriptions of
manifestations of a psychiatric disorder
 Impediments (cont.)
Legal Factors:
o Weak clinical link between severity of
symptoms and severity of disability
o General formula does not indicate which
symptoms are important for evaluating a
specific disorder
G Non-clinical pressures on regulatory
decision-making
o Regulations not congruent with clinical
criteria
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 Claims to Reopen
Boggs v. Peake, No. 07-7137 (Fed. Gir. Mar. 26, 2008)
o Conductive hearing loss v. sensorineural
hearing loss
o Claims based upon distinctly and properly
diagnosed diseases or injuries must be
considered separate and distinct claims
Application could be problematic for psychiatric
claims due to lack of uniformity of Axis I
diagnoses and question of which one is the
proper diagnosis
 VCAA
Vasquez-Flores v. Peake, 22 Vet. App. 37 (2008).
o No decision yet on an IR psychiatric disability
claim
" Rating criteria does not require specific
measurement or test result - only need showing
that disability worse and the effect such
worsening has on veteran's employment and
daily life
o Could probably use statements, including those
made at VA examinations, to show actual
knowledge
 Current Disability
McClain v. Nicholson, 21 Vet. App. 319 (2007)
o SC claim for psychiatric disorder that was
present at time claim filed, but resolved prior to
Board decision.
o Board denied on basis of no current disability.
o Court held that requirement for current disability
is satisfied when claimant has a disability at the
time a claim for SC is filed or during the
pendency of the claim even though it resolves
prior to the final adjudication of the claim.
o Provided the resolved disability is related to
service, staged ratings should be considered.
 Lay Evidence
Q Significant Recent Cases: Buchanon v.
Nicholson, 451 F.3d 1331 (2006); Jandreau v.
Nicholson, 492 F.3d 1372 (2007); Barr v.
Nicholson, 21 Vet. App. 303 (2007)
'" Veteran generally competent to testify to
symptoms, including in service - may be
sufficient bases for requesting VA examination
for nexus opinion in SC claims
Q Specifically problematic with IR claims as
typically rely on veteran's self-report of
symptoms and occupational and social
functioning (psychological testing or inpatient
observation not required)
Q VA examinations v. treatment records
 Adequacy of Medical Opinions
Q Examination does not address nexus, lay
statements, all theories of entitlement or all
disabilities. McLendon v. Nicholson, 20 Vet.
App. 79 (2006).
Q Examiner makes a finding that is clearly
contradicted by the medical evidence of record
without adequate explanation or discussion of
other medical evidence (e.g., Vasquez-Flores v.
Peake, 22 Vet. App. 37 (2008).
Q Opinion based on a incorrect premise/facts.
Kowalski v. Nicholson, 19 Vet. App. 171 (2005).
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 The Roles of Mental Health
Professionals
o Clinical care:
• assessment and treatment
• sessions over time: weeks, months, years
,0 Compensation & Pension exams
• forensic, not clinical
• 1-2 sessions only so less familiarity with the
veteran
• The need for good military & VA records
 Orientation to Care
o Health promotion, preventive care
oAssess for diagnostic entities: PTSD
Depression, Substance Use Disorders &
apply evidence based treatments per
Clinical Practice Guidelines
Q Rehabilitation/recovery approach to those
with mental disorders (involve family)
oAvoid over-pathologizing, teach coping
skills)
 Continuum of Care
o 155 VA Medical Centers
o Inpatient & residential care
0600 + clinics including Community Based
Outpatient Clinics (CBOCs)
0230 Veterans Outreach Centers
. 0 Vet Centers
 OEF/OIF MH Data,
FY 2002 to 4th Quarter FY 2007
0799,791 returnees - 299,585 in VA care
.Q 120,049 with provisional MH diagnosis
• 59,838 PTSD (26,084 in '07)
• 3,721 ASD
• 39,940 Depression
• 22,216 Affective Psychoses
• 9379 Drug/Alcohol Abuse
• 14,325 Drug/Alcohol Dependence
 Multiaxial Assessment of
Mental Disorders

Axis I: Clinical Disorders

• defined by observable, unique clusters
of symptoms and patterns of behavior
• must cause distress and/or impair
functioning
• service connectable
 Diagnostic Criteria (cant.)

AXIS II: Personality Disorders

• life long patterns of maladaptive
behavior
• observable behaviors
• not service connectable
 Diagnostic Criteria (cant.)

Axis III: General Medical Conditions

can be service-con nected or -not

Axis IV: Psychosocial & Environmental

Problems
 Diagnostic Criteria (cont.)

Axis V: Global Assessment of

Functioning (GAF)
• A great improvement over pre-DSM III era
• Attempts to structure assessment of
severity based on symptoms & functioning
 Psychosis
oExamples: schizophrenia, delusional
disorder

oCharacterized mainly by the presence

of delusions or prominent
hallucinations
 Psychoses (cont.)
o Delusions: a fixed, false belief not
accepted by members of one's culture
o Hallucinations: a sensory perception
without an actual external stimulation of
the relevant sensory organ (audio or
visual)
Q Illusion: misinterpretation of a real
sensory stimulus
 Biology of Mental Disorders
o Genetic studies show chromosome links
associated with schizophrenia & also for
bipolar disorder.
o 50%-650/0 concordance in twin studies vs.
100% for Huntington's disease:
environmental influence
oCT scans, MRI: stable brain structural
markers: ventricular enlargement &
schizophrenia associated with negative
symptoms
 Biology of Mental Disorders II
<) Dexamethasone Suppression Test: elevated
cortisol blood levels the day after DST challenge
in 40-90% of patients with Major Depressive
Disorder. State dependent.
Q PTSD: Stress associated with Sudden Cardiac
Death - with stress (e.g. combat scenes) pulse,
blood pressure go up faster, higher & stay
elevated longer than in person without PTSD
 Major Depressive Disorder

5 or more symptoms:
1. Depressed mood*
2. Loss of interest or pleasure*
3. Weight loss or gain 50/0 of body weight
4. Insomnia or hypersomnia
5. Psychomotor agitation or retardation
 MOD (cont.)

6. Fatigue/loss of energy
7. Feelings of worthlessness or guilt
8. Diminished ability to think or
concentrate
9. Recurrent thoughts of death or suicide
 Bipolar Disorder
Manic episodes required (Sip. I), may
be accompanied with depressive
episodes (Sip.lI)

Q Def.: Abnormal and persistently elevated,

expansive or irritable mood for 1 week and 3
or more of the following symptoms:
 Bipolar/Manic Symptoms

1. Inflated self-esteem or grandiosity

2. Decreased need for sleep
3. More talkative/pressured to
speech
4. Flight of ideas, racing thoughts
5. Distractibility
Bipolar/Manic Symptoms (cant.)
6. Increased goal directed activity
(e.g., work, social, sex) or
psychomotor agitation
7. Excessive pleasurable, high-risk
activities: unrestrained buying,
sexual indiscretions, "foolish
investments"
 Schizophren ia
Diagnostic symptoms include two
or more of the following during a 1-
month period:
1. Delusions (fixed false beliefs: you are
Napoleon)
2. Hallucinations (hearing/ seeing that
are n'ot there (voices telling you are
Napoleon)
 Schizophrenia (cant.)

3. Disorganized speech (frequent

derailment or incoherence)
4. Grossly disorganized or catatonic
behavior (standing in place, immobile
for long periods)
5. Negative symptoms (flat affect, alogia,
avolition)
 Types of Schizophrenia

o Paranoid (key feature: delusions)

o Disorganized (disorganized speech,
behavior, flat affect)
o Catatonic (immobility, posturing)
o Undifferentiated (none of the above)
o Residual (Some symptoms remain)
 PTSD
Diagnostic criteria require:
o A traumatic stressor: experienced or witnessed
threat to life or serious injury to self/others and
response was intense fear, helplessness, horror
o 1 or more re-experiencing symptoms (recurring
intrusive thoughts of the event, nightmares,
acting/feeling as if event were taking place again
(flashback), physiological distress at cues
symbolizing the event
 PTSD (cant.)
o Persistent avoidance of stimuli associated with
the event (3 or more of: avoid thoughts, people,
inability of recall, feelings of detachment,
restricted affect)
Q Symptoms of increased arousal (2 or more of:
difficulty falling/staying asleep, irritability,
difficulty concentrating, hypervigilance,
exaggerated startle response)
 Common Symptoms of PTSD
• Insomnia • Stress symptoms
• Memory Problems • Emotional numbing
• Poor concentration • Avoidance
• Depression • Intrusive symptoms
• Anxiety
• Irritabi lity
 Mild Traumatic Brain Injury
Post-concussion Syndrome (peS)
• Insomnia • Headache
• Impaired Memory • Dizziness
• Poor concentration • Fatigue
• Depression • Noise/Light
• Anxiety intolerance
• Irritability
 Personality Disorders
o Enduring pattern of inner
experience and behavior that
deviates markedly from the
expectations of the individual's
culture.
o Manifested in 2 or more of the
following areas:
Personality Disorders (cont.)
1. Cognition: ways of perceiving &
interpreting self, others & events
2. Affectivity: range, intensity, lability
& appropriateness of emotional
response
3. Interpersonal functioning
4. Impulse control
 Personality Disorders (cant.)

oThe pattern is inflexible & pervasive

across a broad range of personal &
social situations
o The pattern leads to clinically
significant distress/impairment in
social/occupational functioning
 Personality Disorders (cont.)

o The pattern is stable, of long duration,

& traceable to adolescence or early
adulthood
o Not due to another disorder e.g.,
substance use, etc.
Personality Disorder: Cluster A
oParanoid: pervasive distrusU
• •
susPiciousness
oSchizoid: detachment from social
relationships
oSchizotypal: social, interpersonal
deficits: cognitive, perceptual
distortions, eccentricities
 Personality Disorder: Cluster B
oAntisocial: disregard for/violation of rights
of others
4 Borderline: instability of interpersonal
relationships, self image, affect: marked
impulsivity
.g Histrionic: excessive emotionality &
attention seeking behavior
o Narcissistic: grandiosity, need for
admiration, lack of empathy for others
Personality Disorder: Cluster C
oAvoidant: social inhibition, feelings of
inadequacy, hypersensitivity to negative
evaluations
<) Dependent: excessive need to be taken of

leads to submissive/clinging behavior;

fears of separation
o Obsessive Compulsive: preoccupation
with orderliness, perfectionism, mental/
interpersonal control
 Substance Use Disorders
o Substance Dependence: Cluster of
cognitive, behavioral and physiological
symptoms (tolerance/withdrawal)
indicating continued use of the substance
despite substance-related problems
o Substance Abuse: Maladaptive
su bstance use despite repeated adverse
consequences