Wednesday, July 14, 2010

VA Publishes New Regulations for Stress Related Claims

The Veterans Administration did not specifically address burn pit and environmental exposures in the new stress regulations or its commentary. That issue remains undecided and it appears as of today that case by case review will determine whether those claims will be approved.

"The Department of Veterans Affairs (VA) is amending its adjudication regulations governing service connection for posttraumatic stress disorder (PTSD) by liberalizing in some cases the evidentiary standard for establishing the required inservice stressor. This amendment eliminates the requirement for corroborating that the claimed inservice stressor occurred if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the veteran's service.

"This amendment takes into consideration the current scientific research studies relating PTSD to exposure to hostile military and terrorist actions. The amendment acknowledges the inherently stressful nature of the places, types, and circumstances of service in which fear of hostile military or terrorist activities is ongoing. With this amendment, the evidentiary standard of establishing an inservice stressor will be reduced in these cases. The amendment will facilitate the timely processing of PTSD claims by simplifying the development and research procedures that apply to these claims.

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The Regulation was published in the Federal Register on July 13, 2010 (Volume 75, Number 133) 
DATES: Effective Date: This final rule is effective July 12, 2010.
Applicability Date: This final rule applies to an application for service connection for PTSD that:
-Is received by VA on or after July 12, 2010;
-Was received by VA before July 12, 2010 but has not been decided by a VA regional office as of that date;
-Is appealed to the Board of Veterans' Appeals (Board) on or after July 12, 2010;
-Was appealed to the Board before July 12, 2010 but has not been decided by the Board as of that date; or
-Is pending before VA on or after July 12, 2010 because the Court of Appeals for Veterans Claims (Veterans Court) vacated a Board decision on the application and remanded it for readjudication.
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"One commenter stated the term ``stressor'' is ambiguous and may lead one to believe that the rule applies only if a veteran can identify a single specific event instead of hostile military or terrorist activity generally. One commenter suggested that the rule should apply as well to a series of events or the totality of circumstances of deployment to a combat zone. Another commenter questioned the meaning of the phrase ``consistent with the . . . circumstances of service'' and doubted whether an examiner would ever find that a traumatic event experienced by a veteran who had an MOS of cook is consistent with the circumstances of the veteran's service. Another commenter inquired about whether the examiner would be responsible for determining whether the stressor is consistent with the veteran's service.

"VA believes that the language in the proposed rule is not ambiguous. As stated in the rule, `` `fear of hostile military or terrorist activity' means that a veteran experienced, witnessed, or was confronted with an event or circumstance.'' (Emphasis added). The term ``circumstance'' means ``a condition, fact, or event accompanying, conditioning, or determining another: an essential or inevitable concomitant.'' Webster's Ninth New Collegiate Dictionary, 242 (1990). Therefore, the rule provides that a veteran's ``fear'' need not emanate from a single event or be consistent with the veteran's MOS but rather the fear may result from conditions to which the veteran was exposed during service. The requirement that a claimed stressor be consistent with the places, types, and circumstances of the veteran's service originates in the statute that authorizes this regulation, 38 U.S.C. 1154(a), which requires VA to duly consider the places, types and circumstances of the veteran's service. In addition, consistent with section 1154(a), VA regulations provide that consistency with the places, types, and circumstances of service is shown by the veteran's service records, the official history of each organization in which the veteran served, medical records, and all pertinent medical and lay evidence. 38 CFR 3.303(a). Finally, VA adjudicators, not examining psychiatrists and psychologists, will decide whether the claimed stressor is consistent with the veteran's service.



As a supporter for the improved health and welfare of individuals against hazardous occupational and environmental exposures, Jon L. Gelman advocates for changes in safety standards and safer use of chemicals.