VA Compensation & Pension Examinations for Mental Disorders: A Clinician’s Perspective

1. VA Compensation & Pension Examinations for Mental Disorders: A Clinician’s Perspective Robert G. Moering, Psy.D. Licensed Psychologist James A. Haley VAMC

2. MISSION STATEMENT • The VHA: "Honor America's Veterans by providing exceptional health care that improves their health and well-being" • No official mission statement for C&P exams • "To provide evidence-based mental health assessments of veterans claiming service-connected disabilities in order to help the Veterans Benefits Administration make accurate benefit determinations.“ • Clearly, these missions are not the same

3. Forensic versusClinical

4. Forensic refers to professional practice by any psychologist who applies the scientific, technical, or specialized knowledge of psychology to the law to assist in addressing legal, contractual, or administrative matters. • Clinical refers to professional practice by any psychologist who applies the scientific, technical, or specialized knowledge of psychology to address treatment issues.

5. Forensic: Evidenced Based and Multi-Method • Review of Records • Collateral Information usually obtained • Psychological testing typically administered • Usually One visit • Clinical: Self Reports • May or may not review records • May or may not obtain collateral information • Psychological testing typically not done • Multiple visits

6. Are C&P Exams Forensic Exams? • Are C&P exams intended to help answer legal or clinical questions?" • C&P exams help answer legal (not clinical) Qs • Medical Opinions requested come from U.S. statutes, regulations, and case law. • I.e., Is a veteran's stressor is related to "the veteran’s fear of hostile military or terrorist activity." • This question did not arise because of clinical concerns but because of a change in the Federal Regulations governing these exams. (1)

7. Forensic Guidelines • Professional Organizational Guidelines: • American Academy of Psychiatry and Law's "Practice Guideline for the Forensic Evaluation of Psychiatric Disability” • American Psychological Association’s “Specialty Guidelines for Forensic Psychology,” • The Practice Guideline (2) highlights some of the differences between clinical and forensic evaluations • Opinions are impartial, fair, independent • Weigh all data, unbiased, avoid partisan presentation of data

8. Why not use the Treatment Notes? • Providing forensic and therapeutic services impairs objectivity • Treatment providers do not access c-file records • Treatment providers rely entirely on veteran’s self-reported history • e.g., Veteran seen for TBI, PTSD secondary to combat in Iraq; military personnel records and service medical records clearly show he never deployed from MacDill AFB • “Pt. states he killed over 600 VC as an infantryman and was awarded a Bronze Star w/V for his heroism.”

9. Reality?

10. Treatment Notes : Don’t Believe Everything You Read • Veteran 100% SC • Seeking A/A • Claims wheelchair bound, Tx notes indicate same • Claims unable to transfer on his own, Tx notes indicate same • Claims unable to move his legs, Tx notes indicate same

11. CommunicationCommunicationcommunication

12. C&P Examiners are not mind readers • The 2507 request is paramount to getting it right • “Please opine if the [insert condition here] is related to his [insert condition here].” • “PTSD due to fear of military or hostile terrorist acts” versus “PTSD or any acquired psychiatric disorder” • Identify specific records in c-file you want the examiner to comment on • don’t put “see c-file” or “note is tagged with sticky note” • Specify: “Dr. X note dated 3/3/10” CPRS note dated 1/1/11”

13. What Did We Review? • Remand cases require the examiner to thoroughly review the c-file and BVA Remand • Imperative to note the review of the c-file • Mental Health Exams require C-File review • Initial and Review • CPRS Records (Local and Remote) • Example: CPRS records including remote data from Orlando and Atlanta, service medical records, military personnel records, veteran’s lay statements, BVA Remand, 6 volumes of c-file records, collateral statements from XX and XX, relevant research (see references below), psychological test results

14. Examinations

15. Structured Interviews • Current research clearly shows the use of structured interviews are significantly and statistically superior in assessing for PTSD and other disorders versus an unstructured or semi-structured interview. (3-9)

16. Clinician-Administered PTSD Scale • Developed by the VAs National Center for PTSD • Recommended in “Best Practice Manual” (2) • Easy to use - CAPS interview form, manual, and training videos are all available at no charge: (http://vaww.ptsd.va.gov/Assessment.asp). • Assess symptom frequency and severity • Determine how symptoms interfere with functioning (important for rating purposes) • More reliable and valid diagnostic decisions

17. CAPS • Nine scoring methods, or rules • Each of the rules differs with regard to their sensitivity, specificity, and the extent to which they can be considered lenient or strict with regard to the ultimate diagnostic decision. • The "F1/I2" scoring rule is the most lenient of the nine possible scoring rules. (10) • This scoring rule gives the veteran the greatest degree of benefit of doubt.

18. Other Interview Questionnaires • Structured Clinical Interview for DSM-IV (SCID) • Cyclothymic DisorderAgoraphobia Without History of Panic DisorderSocial Phobia / Specific PhobiaGeneralized Anxiety DisorderSomatization Disorder / Undifferentiated Somatoform Hypochondriasis / Body Dysmorphic Disorder Anorexia Nervosa / Bulimia Nervosa • Schedule for Affective Disorders & Schizophrenia (SADS) (semi-structured) • MINI International Neuropsychiatric Interview (M.I.N.I.) (semi-structured)

19. VA Developed Measures of Combat • Combat Exposure Scale (CES) • 7 item assessing combat experiences • 0-8 Light 9-16 Light to Moderate 17-24 Moderate 25-32 Moderate to Heavy 33–41 Heavy Example Items: • Were you ever under enemy fire? • How often did you fire round at the enemy? • How often were you in danger of being injured or killed (i.e., pined down, overrun, ambushed, near miss, etc.)?

20. Mississippi Combat Stress Scale (MISS) • 35 items assessing PTSD-related symptoms • Self-rating scale from 1-5 Example Items: • If something happens that reminds me of the military, I become very distressed and upset. • Before I entered the military, I had more close friends than I have now. • I am able to get emotionally close to others. • Unexpected noises make me jump. • I feel comfortable when I am in a crowd.

21. Problems with CES and MISS • Studies have shown that face-valid measures such as the Mississippi Scales are ineffective in distinguishing between individuals with genuine PTSD and persons who simulate PTSD (11)

22. Military Sexual Trauma(MST)

23. MST • Most challenging type of examination • Victims are reluctant to disclose • More often than not the assault not reported • MST cases require special care to provide the most comprehensive examination possible.

24. The Basic MST Opinion Request • “Please review the veteran’s entire claims file and medical records and provide an opinion as to whether it is at least as likely as not that the veteran’s records support the occurrence of a military personal trauma/sexual assault.” • Note: Personal assaults may be classified as a non-sexual trauma (e.g., physical assault, domestic battery, robbery, and etc) or sexual trauma (e.g., rape, stalking, sexual harassment).

25. Court’s Influence • Wood v. Derwinski (1991) - VA is not bound to accept a veteran’s uncorroborated account of what happened in service, regardless of whether a social worker or psychiatrist believes her or him. • Moreau v. Brown (1996) and Dizoglio v. Brown (1996) "credible supporting evidence" = Vet’s testimony, by itself, can’t establish the noncombat stressor. • Doran v. Brown (1994) - "the absence of corroboration in the service records, when there is nothing in the available records that is inconsistent with other evidence, does not relieve the BVA of its obligations to assess the credibility and probative value of the other evidence.”

26. Patton v. West (1999) - Special development required for MST-related cases. Court distinguished the case from Moreau and Cohen, which were not personal assault cases. • At the time - Manual stated veteran’s behavioral changes at and around the time of the alleged incident might require interpretation by a clinician. • Courts determine there must be credible evidence to support the veteran’s assertion that the stressful event occurred.

27. Court established the development of personal assault cases is different because part of the development of personal assault claims included allowing “interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis.” • Clinical interpretations of a veteran’s behavior is allowed so an opinion by a M/H professional could be used to corroborate an in-service stressor.

28. The Court also noted the importance of discussing the credibility of all evidence, including lay statements, when providing an adequate statement of reasons and bases • Examiner outlined extensive reasoning why a condition was not related to service including references to service medical records, CPRS records, c-file records, etc… • Remanded back because veteran’s lay statements not discussed in rationale

29. According to 38 CFR 3.304(f)(4), in cases of a noncombat personal assaults, corroborating evidence may come from other sources besides the veteran’s service records. • YR v. West (1998) - Highlights importance of addressing credible corroborating evidence = Analyzing submitted alternative sources of evidence is very important in MST cases. • Cohen v. Brown (1997) - “[a]n opinion by a mental health professional based on a post service examination of the veteran cannot be used to establish the occurrence of the stressor.”

30. The Federal Circuit concluded that the Federal Regulations allows veterans claiming PTSD from an in-service personal assault to submit evidence other than in-service medical records to corroborate the occurrence of a stressor, to include medical opinion evidence. • Menegassi v. Shinseki (2011), U.S. Court of Appeals upheld the BVA denial of S/C for MST • Veteran DX PTSD but BVA said no evidence in C-file • The Veterans Court stated that an opinion by a MH professional based on a post-service exam cannot be used to establish the occurrence of a stressor.

31. Veteran’s lay statement is insufficient evidence • Medical opinion based on a post-service examination is insufficient evidence • Evidence must be obtained from the veteran’s C-file records (i.e., service medical records, military personnel records, police reports, witness statements, lay statements, or Court Martial records).

32. So, What Does This Mean to Me? • Read the service medical records • Read the military personnel records • Read ALL CPRS records • Read all lay statements • Inform the veteran of alternate evidence • Comprehensive evaluation • Re-Read all the above • Consult with colleagues and physicians • Comment on EVERYTHING, Rational Reasoning • If I don’t have it, ask for it!

33. Case Example • Female veteran was claiming PTSD secondary to physical and sexual abuse perpetrated by her husband. • The C-file contained multiple police records and court documents indicating she claimed self-defense bc he was physically assaulting her • Convicted of 2nd degree murder by a jury of her peers who rejected the self-defense claim. • SMR showed MH only after she was arrested and on the advice of her attorney

34. Cont. • Service personnel records, police reports, court records, and 15 years of prison records, there was significant doubt regarding the veteran’s claim of physical and sexual assault. • Parole Release request indicated a 1st trial ended in mistrial because jury could not agree on verdict • At 2nd trial the veteran did not have several key witnesses (PCS, unable to locate, etc) • Requested 1st trial records = Multiple documents supporting veteran’s claim

35. Case Example • Veteran said was raped while a patient at XYZ Hospital • We verified in her records she was at XYZ Hospital • “We have conceded she was raped because she was where she said she was.”

36. “Markers” • Markers = clues within the records which show a change in behavior, health, or other functioning that, when combined lead an examiner to conclude some event in the veteran’s life around the time of the noted changes were responsible for those changes

37. Example Markers • visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment • use of pregnancy tests or tests for sexually-transmitted diseases around the time of the incident • sudden requests that the veteran's military occupational series or duty assignment be changed without other justification • changes in performance and performance evaluations

38. increased or decreased use of prescription medications • increased use of over-the-counter medications • evidence of substance abuse, such as alcohol or drugs • increased disregard for military or civilian authority • obsessive behavior such as overeating or undereating

39. increased interest in tests for HIV or sexually transmitted diseases • unexplained economic or social behavior changes • treatment for physical injuries around the time of the claimed trauma, but not reported as a result of the trauma, and/or • the breakup of a primary relationship.

40. Finding the Markers • Service medical records • requests for specific tests (e.g., venereal disease, pregnancy testing, or HIV) • evidence of increased use of alcohol (e.g., referred to or attended substance abuse counseling) • “Seen in Mental Health.” • “Seen in ER for…”

41. Lack of Mental Health Records • MH treatment avoided because of stigma • Look for hidden evidence • For example, a veteran complaining to a primary care provider they were having shortness of breath, chest pains, and sweating might be experiencing symptoms of anxiety • known etiology (SOB 20 asthma) < marker • Unknown etiology = possible marker

42. Is a “Marker” a “Marker” • some conditions may have medical explanations but psychiatric implications. • For example, a service member is seen in the medical clinic and diagnosed with “gastritis.” Sxs of gastritis include: Nausea or recurrent upset stomach abdominal pain vomiting indigestion loss of appetite. • Symptoms could because gastritis or anxiety.

43. Is a “Marker” a “Marker” • One visit for “Gastritis” = less likely • Multiple visits for “Gastritis” = more likely • One Visit for headaches = less likely • Multiple visits for headaches = more likely • Headaches in 1975, MST in 1977 = no marker • > # of HA starting 1977 = marker

44. Negative “Markers” in SMR • No direct reports (e.g., raped, seen by MH) • No indirect reports (e.g., headaches) • Report of Medical History form = Negative • After giving all possible benefit of the doubt and there is nothing to “hang your hat on” = consider the service medical records to be negative for signs of any “Markers”

45. Military Personnel Records • Military personnel records may reveal “markers of trauma. • Enlisted Performance Report • Letters of Counseling/Reprimand • UIF • Article 15, Page 11, Office Hours, Captain’s Mast • Court Martial

46. Enlisted Performance Report

47. Military Personnel Records

48. Cont. • Drop in ratings show significant behavioral changes consistent with a Marker • Look at overall ratings • Not as helpful as EPR • Is this “Good” a “Marker”

49. Perhaps not when it’s followed by…

50. Veteran’s Reports Vs. Records • Veteran says “argued, fought, never got along with anyone” • Performance Records show: • “Well liked and respected by peers and supervisors, is the go-to guy in his unit” • “She is a very pleasant, outgoing airman who works well with her customers, peers, and supervisors.” • “Needs to improve his relationships with both peers and supervisors” • “Has been counseled a number of times to leave his personal life at home”