From: engfish@ubvmsb.cc.buffalo.edu (LYDIA FISH)
Newsgroups: alt.war.vietnam
Subject: PTSD citations
Keywords: PTSD
Date: 23 Jan 93 12:41:00 GMT
Organization: University at Buffalo
News-Software: VAX/VMS VNEWS 1.41

Forwarded from VWAR_L

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LEGAL 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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