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EVIDENCE IS CRUCIAL: Part 2

In a previous blog posting I discussed evidence in general and the benefit-of-the-doubt rule. I also mentioned the three essential facts that must be proven in a service-connection claim: that there was an injury or first manifestation of disease in service, there is a current disability, and the disability is causally related to the event in service. Medical evidence is crucial to two of these three elements. Unless a disability is so obvious that a lay person can discern it, an amputated limb for example, evidence from a medical provider of some type is necessary to establish that there is a physical or mental condition that is disabling. On the important question of medical causation of a disability, whether the current condition is related to something that occurred in service, the evidence is usually in the form of expert opinion from a doctor or other health-care provider. Even if service connection is established, in order to obtain a higher rating for the condition, there must be medical evidence of the severity of the disability.
In the old days, panels of the Board of Veterans’ Appeals had at least one doctor on them and they evaluated medical issues, but under present law the VA is not permitted to decide medical questions based on its own judgment without expert opinion to support its decision. Precisely because this evidence must generally come from a medical professional, it is often the most difficult aspect of a claim for veterans to establish.

Sources of medical evidence
It should be noted that medical opinions do not necessarily have to come from doctors. While the strongest opinion might come from a specialist in a particular area, e.g. a psychiatrist rather than a family doctor concerning a mental condition, anyone with medical training can render an opinion. Thus, PTSD diagnoses have been based on the opinions of social workers or trauma counselors who are not MDs. Depending on the issue, a nurse could be at least as persuasive as a doctor, regarding, say, what hospital treatment would have been.
Diagnosis of a disability and the severity of impairment caused by that disability can frequently be proven by medical records from health care providers who have treated the claimant. Sometimes a treating physician must be asked specifically to comment on the subject, but he or she is usually willing to do so. More challenging, sometimes, is obtaining the opinion that a present condition is related to an event in service, what VA law calls a “nexus” opinion. This type of opinion statement is rather specialized and must be written in a certain way.
Some medical cause-and-effect relationships are quite apparent: the damage done by a gunshot wound, the scar caused by a laceration, the bone fracture resulting from a trauma. But many such relationships are less clear, such as the relationship between a trauma to a joint and development of arthritis in the joint many years later, or the connection between some frightening or stressful experience in service and later manifestation of mental disease. These relationships are determined through the judgment of medically-trained people.
Medical causation is often a matter of probabilities. It cannot be determined with certainty, for example, whether a back injury in service caused or hastened the onset of degenerative arthritis in the back many years later, but doctors will often be able to offer an opinion as to the likelihood of a relationship. Thus, one doctor might be of the opinion that too much time has passed for an isolated injury in service to have been the likely cause of arthritis, while another doctor may believe that the trauma to the back made the joints more susceptible to degeneration and thus contributed to causing the arthritis. To support the claim, the veteran needs an opinion that there is a relation to service, at least as likely as not.
It is because of the benefit-of-the-doubt rule that medical opinion reports in veterans cases contain language using some variation of the phrase “as likely as not.” As long as the probability of causal relation is 50-50, that is, “as likely as not,” the evidence is balanced, and the benefit-of-the-doubt rule tips the decision in the veteran’s favor. That is why you will so often see medical opinions stated in terms of “as likely as not” or something similar.
Doctors familiar with the VA system usually have some notion about how to phrase opinions in this way, but doctors who have not had experience with the VA claims system will not. Indeed, many doctors have some acquaintance with a significantly different standard used in civil litigation: “to a reasonable degree of medical certainty.” Because veterans need only prove elements of their claims as likely as not, i.e. to a 50-50 probability, they do not have to show medical “certainty” to a reasonable degree, which is a more exacting standard. When this is fully explained, a doctor will sometimes be able to see her way clear to offer an opinion that she would not have been able to offer under the stricter standard. That is, a doctor may be uncomfortable, based on existing medical science and literature, saying that Agent Orange exposure caused a particular cancer to a reasonable degree of medical certainty, but may not be so hesitant to say it is at least as likely as not that the defoliant caused the cancer.
It is also important for doctors writing opinions to support veterans’ claims to bear in mind that something does not have to be a sole cause to be related sufficiently to establish service connection. If the in-service event or condition was a contributing factor to a later disability, that is enough to sustain the claim.
The court that reviews VA decisions has recently expounded more detail about how medical opinions are to be considered by VA. The essential features are that the provider expressing the opinion must have had the appropriate data available, must state clear conclusions based on that data, and must give a reasoned explanation linking the conclusions to the data. Thus, any opinion obtained in support of a claim should contain a statement as to what was reviewed, whether a physical examination was done, what the opinion is, and what the rationale for the opinion is.

NEXT TIME: How VA gets around the benefit-of-the-doubt rule and what you can do to counter this.

SOCIAL SECURITY FOUND ME DISABLED, NOT VA

Many veterans pursuing a claim for VA benefits have already been granted Social Security Benefits or are pursuing Social Security benefits for the same disability. A common belief among veterans is that VA should make the same conclusions and/or decision as the Social Security Administration (“SSA”). For instance, many veterans believe that because SSA found them totally disabled, that decision should be binding on the VA, and therefore VA should also find them totally disabled. This is a common misconception. VA is a separate administrative agency form SSA, and therefore is bound by different regulations. Simply put, SSA regulations do not apply to VA claims. See Beaty v. Brown, 6 Vet.App. 532 (1994) (noting that there is not statutory or regulatory authority for the determinative application of SSA regulations to the adjudication of VA claims.) In addition, there are significant differences between SSA regulations and VA regulations. For example, SSA and VA define disabilities differently. Under SSA law 42 U.S.C. § 423(d) and 20 C.F.R. §404.1509, a disability need not be reasonably likely to last a lifetime. VA regulations on the other hand, do require that it be reasonably certain that a disability will continue throughout the life of a person. 38 U.S.C. §1502(a)(1) and 38 C.F.R. § 3.340(b).
While VA is not legally bound to follow SSA decisions, however, it is obligated to take the SSA decisions into consideration when rendering a decision on a claim and provide adequate reasons or bases for why the SSA conclusions are not accepted. Brown v. Derwinski, 2 Vet.App. 444 (1991). Moreover, once VA has been put on notice that SSA documents exist, and those documents are pertinent to the VA claim, VA has a duty to assist the veteran in obtaining the SSA records prior to adjudicating the claim. See Murincsak v. Derwinski, 2 Vet.App. 363 (1992).

EVIDENCE IS CRUCIAL, “AS LIKELY AS NOT”

“Evidence” is a subject law students devote considerable effort in studying, and it can present complexities even to the best legal minds. But it is quite possible and useful to understand the basic concepts as they relate to the veterans claims system, which is in some ways unique in this regard. You will have a better chance of obtaining benefits from the VA if you understand what you have to provide in the way of evidence to support your claim. It is perhaps worth a reminder that VA does not award benefits based on service to country, however dedicated, or on sympathy for a veteran’s hardship, however difficult; it can award only where evidence shows entitlement.
Evidence and elements of claims
“Evidence” refers to the information, whether from witnesses, written statements, documents or other records, that is considered and evaluated by an adjudicator in making a decision on a claim. Every legal claim has certain “elements” that must be proved, that is, certain points that must be established as true to the adjudicator’s satisfaction before the claim can be won. Thus, in a manslaughter case, for example, the prosecutors must prove that the accused caused a death and did so through carelessness, while in a first degree murder case the prosecutors have to show that the accused not only caused the death but intended or planned for it – different elements for different crimes. In a classic veteran service connection case, the elements that must be proven are (1) an incident in service, i.e. an injury or first manifestation of a medical condition, (2) a current recognized disability, and (3) a causal relation between (1) and (2), i.e. the disability is the same condition or related to the incident in service in some way.
Standards of proof
The key facts of a legal claim must be proved to a particular degree of certainty, which varies depending on the type of claim. In a criminal case, the law requires proof “beyond a reasonable doubt,” that is, the decision-maker (often a jury) must be so convinced of guilt that any doubt about it would be unreasonable in light of the evidence. This is a difficult standard of proof; the view of the law is that before a person is deprived of his liberty, or even his life in some states for some crimes, there should really be nearly absolute certainty about guilt. In an ordinary civil case, such as a personal injury claim arising from a car accident or a contract dispute, the standard of proof is simply that the evidence is slightly stronger in favor of the claimant (plaintiff), even if only by a small degree. If the evidence is so balanced that the adjudicator can’t decide one way or the other, the plaintiff has failed to meet her burden and the defendant wins. Lawyers call this standard the “preponderance of the evidence,” from the idea that the evidence “weighs” slightly heavier in one direction.
Benefit of the doubt
When Congress established the veterans claims system, it wanted to make it as friendly to the award of benefits as it could and still require proof that benefits were appropriate. So it passed a law, found at § 5107(b) of Title 38 of the United States Code, which says that when there is an approximate balance of evidence (what lawyers often call “equipoise”) on any point crucial to the decision, the benefit of the doubt is to be given to the claimant. In terms of the evidentiary standards discussed above, this means that a veteran claimant does not have to provide proof as convincing as a civil litigant under the preponderance standard: if the evidence in a civil case were more or less balanced, the claimant would lose, but the veteran is supposed to win in that circumstance. It is equivalent to the old baseball rule: tie goes to the runner.
Practical application; “as likely as not”
How do these abstract legal concepts work in actuality? Let’s say the issue in question is whether a soldier hurt her head in a bad fall in service. She remembers (years later) that she had a headache immediately after the fall. A record of sick bay treatment right after the incident does not mention a head injury but discusses other more pressing concerns: bleeding and a compound fracture of one arm. A follow-up record two days later notes, in addition to the progress of healing of the arm, a small bruise on the forehead. VA might dismiss the veteran’s recollection years later as flawed or possibly self-serving and regard the absence of any mention of a head injury in the treatment note on the day of the accident as evidence that there was no such an injury. But the fact that there were more urgent injuries to address in first aid and the mention of the bruise in a record a couple of days later supports the veteran’s recollection. As lawyer for the claimant I’d argue that this evidence weighs more heavily in the veteran’s favor, that there is a preponderance of the evidence, but, at the very least, this would seem to present an approximate balance: there is some evidence of a head injury and some indicating none occurred, but neither is overwhelming. Under the benefit-of-the-doubt rule, the veteran wins.
NEXT TIME: The special issue of medical opinion evidence.

VA Disability Rating Chart.

One of the most common complaints we hear is that it appears that VA took away part of a veteran’s service connected disability compensation benefits when it granted an award. That is VA awarded an increased disability rating, but the overall compensation did not change, or the disability ratings assigned,  do not “add up” correctly. So it appears VA granted more benefits with one hand, but took away all or part of them with the other.

This normally occurs when VA awards a veteran a compensable (greater than 0%) disability rating for two or more disabilities. For example, a veteran may be awarded compensation at the 60% rate for one disability and the 50% rate for another disability. Simple math dictates that the veteran is entitled to a 110% disability rating. However, VA did not award a 110% rating; rather, it awarded an 80% disability rating, which appears to be a 30% reduction.

Congress permits VA to award disability ratings from 10% to 100%, in 10% increments, for a “schedular” disability rating. No award can be greater than 100% on a schedular basis. To know if a disability has been rated as “schedular,” – that is, based on VA’s Schedule of Rating Disabilities – there usually is a four or eight digit code numeric and a percentage assigned to the disability within the rating decision. (VA may assign extraschedular ratings or special monthly compensation, which are benefits generally beyond those permitted by the Schedule, but these benefits are outside the scope of this post.)

Because Congress does not allow disability ratings greater than 100%, VA cannot assign a higher disability rating. In other words, this is the upper limit of what VA can award on a schedular basis. When a veteran carries a 100% rating, he or she is considered totally disabled; the law uses the phrase “a total rating” to describe a 100% disability rating. Regardless of the number of disabilities or how great the aggregate disability ratings, no veteran may be assigned a disability rating greater than 100% or be more disabled than “total” for VA rating purposes.

The “110% disabled” veteran may then ask why VA did not simply award him 100% disability, since the ratings show him to be more than 100% disabled? VA uses a somewhat complicated formula to determine how each of these disabilities affects the veteran, and that formula is what is responsible for “VA math” – that is, the apparent reduction in the overall disability rating.

Disabled veterans, of course, may have multiple disabilities. Independently rated, the sum of each disability rating is often larger than what VA actually awards. This is so because VA uses the Combined Ratings Table at 38 C.F.R. § 4.25 to calculate how various disability ratings are combined into an award. According to § 4.25, VA considers the effects of the most disabling condition to the least disabling condition on the veteran.

This is how it works, for example: If a veteran carries a 60% disability rating, he or she is 40% efficient (non-disabled). Stated another way, this veteran retains 40% of the ability to work. If that same veteran also carries an additional separate 30% disability rating, of the 40% of his or her original efficiency that previously remained, he or she lost 30% of that 40% (that is, he or she retains only 70% of that 40%). This leaves the veteran only 28% efficient, or 72% disabled.

It may be easier to think of it this way: Presume you have a 10 ounce glass of water, and you pour out 60% of that water. What is left is 4 ounces, or 40% of the water. Of that water that remains, you pour out another 30%. That is, only 70% of the 4 ounces remains. There is now only 2.8 ounces, or 28%, of the water that was in the full 10 ounce glass; 7.2 ounces, or 72%, of the water is now gone.

Analogous to the glass of water is a veteran’s disabilities. In this scenario, ordinary math would result in a 90% disability rating, but when the ratings are combined using the formula in § 4.25, the veteran is considered 72% disabled.

Because Congress only authorized disability ratings in 10% increments, VA rounds the final calculation to the nearest 10%, rounding the end number of 1-4 down and of 5-9 up. Therefore, VA will award our veteran a 70% disability rating.

The same considerations apply for the “110% disabled” veteran as those who have ratings of less than 100%. Using VA’s combined ratings formula, the 60% and 50% disability ratings combine to create an 80% disability rating. If the veteran is service connected for another disability, then that disability will be factored into the overall award. In the alternative, had the veteran already obtained a 100% rating, VA would ignore the additional award out of necessity.

Because of “VA math,” not every award will result in additional compensation. Say VA awards this same veteran, who has an 80% disability rating, an additional 20% disability rating for another disability. The overall compensation award would remain the same! VA takes the 80% rating and factors the 20% additional disability onto that, resulting in an 82% rating, which rounds down to 80%. Therefore, it appears that VA ignored the new 20% award! It did not; that is just the way VA math works.

The Combined Ratings Table can be found here: https://edocket.access.gpo.gov/cfr_2005/julqtr/pdf/38cfr4.25.pdf

How can we force VA to act on my claim?

We frequently hear complaints from our clients that VA is taking a long time to render a decision on a claim for VA benefits. Given the enormous backlog and understaffing from which VA suffers, this is to be expected.

In fact, delay is inherent in the VA system. After a claim is filed, VA must provide notice to each claimant regarding the information and evidence necessary to substantiate the claim. VA must allow claimants one full year for the submission of that information and evidence before it can decide the claim, although it may decide it faster if the claimant indicates that there is no additional information or evidence to submit. Further, VA must obtain certain records possessed by the federal government and other records that are relevant to the claim if adequately identified by the claimant. Also, if necessary to make a decision on the claim, VA must also provide the claimant with a VA examination or obtain a VA medical opinion. VA must then review all of the evidence and determine whether there is enough to decide the claim and, if not, it must continue working to develop that evidence.

Of course, each step in the process takes time. Ideally, VA should also provide claimants with notification of what is happening on the claim, but it does not always do so.

At some point, it becomes clear that VA is not taking any action on a claim. This may become apparent through the passage of an extraordinary amount of time since the last VA action on a claim, or VA may expressly say that it will not take a particular action, despite repeated requests for it to do so.

As a first step for prompting VA to act, sending a letter to VA asking for a status on the claim or asking it to take the next step may work. At a minimum, the letter requires VA to pull the claimants file from the shelf and look at it. This may be sufficient for VA to realize the next step that needs to be taken and to do so.

A single letter however may not prompt VA to act. When this happens, we have a tool we can use to prompt VA to act. This tool is called a “Petition for Extraordinary Relief in the Nature of a Writ of Mandamus.” Or, simply, a writ petition. Writ petitions are separate actions that are filed in the U.S. Court of Appeals for Veterans Claims that assert that the Secretary of Veterans Affairs, through his personnel, is refusing to take an action that legally must be taken. Such refusal can be shown through the passage of time or through other proof that VA is not acting on a claim in the way it is legally required to do. Notably, writ petitions cannot be used as a substitute for an appeal of an unfavorable VA decision, and they cannot be used to force VA to grant a claim that was otherwise denied.

Before filing a writ petition, a letter should be sent to VA threatening to file a writ petition. The letter should be sent by certified mail, return receipt requested, to prove VA received the letter. The letter should state that, unless VA responds within a certain amount of time (for example, 10 days), a writ petition will be filed in the Court.

If VA fails to respond to that letter, then a writ petition may be necessary. Before involving the Court, it must be determined whether there is a legal basis for filing the petition. Such a circumstance would be where VA has expressly stated it will not take a particular legally required action. If delay is the basis of the petition, then that delay must be so extraordinary as to amount to an arbitrary refusal to act. A few months will not generally suffice, but a delay of more than a year may, depending on the circumstances.

A writ petition must provide a facially valid basis for the Court to grant the petition. If so, the Court will require VA to respond to the writ within a short period of time – generally one month.

Ordinarily, VA will then take some action on the claim. That action may be as little as sending a letter to the claimant or it could be as much as a grant of benefits, or whatever the next legally-required action on the claim may be. If so, this will make the writ petition unnecessary (that is, moot), because VA has taken the action it had refused previously to take. Although not technically a win on the petition, VA’s response to the petition by acting on the claim amounts to a successful resolution.

Sometimes, however, VA will defend its actions and continue to refuse to act. In those circumstances, the judges on the Court will decide whether VA’s defense is valid. If not, the judges will order VA to take the action requested. VA is then under a court order to do so.

Although many writ petitions are filed, the Court grants very few. In fact, since the Court’s creation in November 1988, it has granted fewer than five writ petitions. Even though this represents only a small fraction of the number of writ petitions filed, the writ petition remains a useful tool for prompting VA to act.

As always, it is wise to consult with a legal professional before filing a writ petition. This blog is not intended to provide legal advice, and it should not be relied upon as such.

Why is it so hard to get benefits for PTSD?

PTSD is a psychiatric condition where a traumatic event occurs (called a “stressor”), and later (sometimes many years later), the veteran experiences symptoms related to that event. These symptoms can include nightmares, flashbacks, guilty feelings, an increased startle response, social isolation, and difficulty with authority figures, to name a few.

Normally, when a veteran seeks service connection for a condition, the claim can be granted if there is a current diagnosis and a doctor gives an opinion that the current condition is related to service. When a veteran is trying to get service connection for PTSD, it’s not so easy, because VA regulations provide an extra hurdle for veterans to get over before being service-connected for PTSD.

To be granted service connection for PTSD, the veteran must have a current diagnosis of PTSD. In addition, the psychologist, counselor or psychiatrist who provides the diagnosis must attribute the PTSD to a stressor that happened while the veteran was on active duty.

Now, here’s the twist. If the stressor is something that happened to the veteran when in the military, but not in combat, there must be evidence that the stressor actually occurred. The proof that the stressor happened cannot come from the veteran’s own memory of the event. Instead, there needs to be independent confirmation. This can come from service records or official military histories, a statement from a buddy who witnessed the event, or a newspaper article about the event. There is one exception to this rule that makes it a little bit easier for a veteran who was assaulted to prove that the assault happened. A bit more about that later in this post.

If the stressor occurred during combat (which includes coming under enemy fire or shelling), it’s a little easier to prove the case, because the stressor does not need to be independently confirmed. However, the veteran will still need to prove he or she was in combat. A veteran can show he or she was in combat through his or her own testimony, as well as through official records.

Here are a few examples to illustrate how a PTSD claim works.

Let’s say that our friend Joe Veteran was in Vietnam in 1968. Although Joe’s military occupational specialty (MOS) was supply clerk, that didn’t stop him from being assigned to various other jobs, including guard duty and driving soldiers back and forth between his station and another twenty miles away. One day in May 1968, Joe was assigned to drive two other soldiers to another station. Along the way, there was a small village where children were playing beside the road. As he was driving by the children, one of them ran out in front of the Jeep, and before he realized what was happening, Joe hit the child. The villagers took the child back to care for him, and although Joe told his superiors about the accident, he isn’t sure if it was officially reported or not. Now, 40 years later, when Joe is driving and sees a Jeep, memories of the accident come rushing back. He has bad dreams about hitting the child, and hasn’t been able to hold a job for more than six months before—he always seems to get into an argument with his boss, and quits or gets fired. After talking with his buddy Steve, who is receiving a 100-percent disability for PTSD, Joe agrees to go to the VA to be seen at the PTSD clinic. His doctor says there’s no doubt, he has PTSD from the stressor of the in-service accident. In this case, because the event didn’t happen during combat, Joe has to show that the accident actually happened. His word by itself, isn’t enough to prove the case. Joe can confirm the stressor in several ways. He can see if he can locate one of the soldiers who was with him in the Jeep on the day of the accident. If either one of them can provide a statement about the accident, that should be enough to confirm the stressor. Joe could also ask for VA’s help to see if there was an official report made about the accident. If so, that report would also be enough to confirm that the stressor occurred. If Joe can’t find any independent confirmation of the stressor, however, he is out of luck, and cannot be service-connected for PTSD.

Let’s change the facts now. Instead of having an accident on the way, this time, while on the road, Joe and his fellow soldiers are suddenly surprised to find that enemy shells are exploding around them. They manage to get away, but years later, Joe finds himself ducking down every time he hears a car backfire or another loud noise. He has nightmares about getting killed by one of the shells, and Joe’s doctor says his PTSD is caused by the shelling incident. Since Joe came under enemy fire, he is considered to have been in combat. Therefore, Joe doesn’t have to prove that the shelling incident actually occurred, and it will be easier for him to be granted service connection. Under an old set of rules, VA sometimes will say that without a medal documenting combat, or a combat MOS, that there’s no evidence of combat. However, VA is not allowed to simply ignore a veteran’s report of having been in combat. This alone can be enough to prove combat.

A third situation is one where a veteran is assaulted in service. Let’s get back to Joe. This time, Joe and his sergeant don’t get along. One day, after a heated argument, Joe’s sergeant sneaks up behind him and hits him over the head with a large piece of wood. No one else is there to witness the event. Joe doesn’t want to get in more trouble with his sergeant, so he doesn’t report the incident. However, he does ask to be transferred to another company, making up an excuse as to why. Now, years later, when he sees someone who looks like his sergeant, Joe has flashbacks about the attack. He’s been diagnosed with PTSD as a result of the attack, and applies for service connection. Since the attack didn’t happen in combat, Joe has to prove that the attack actually occurred. VA recognizes that veterans are often unwilling to talk about or report such attacks, and the rules make it a bit easier for a veteran to prove that the stressor occurred. He can prove it happened through showing things such as behavior changes, requests for transfer or though statements from family members. Here, for example, although Joe gave an excuse for asking for his transfer to another company, he can use that event to prove that the attack occurred.

Here is the text of some relevant VA regulations:

38 C.F.R. § 3.304(f) Post-traumatic stress disorder. Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. Although service connection may be established based on other in-service stressors, the following provisions apply for specified in-service stressors as set forth below:

(1) If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor.

(2) If the evidence establishes that the veteran was a prisoner-of-war under the provisions of 3.1(y) of this part and the claimed stressor is related to that prisoner-of-war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor.

(3) If a post-traumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran’s service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred.

38 C.F.R. § 4.125(a) If the diagnosis of a mental disorder does not conform to DSM-IV or is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis.

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