Psychological Insights for Veterans Law Attorneys

July 5, 2024 – Psychological Insights for Veterans Law Attorneys is a monthly newsletter that empowers attorneys and VA-accredited claims agents to effectively challenge the credibility of VA psychological exams, and retain examiners who conduct exams that stand up to scrutiny. Subscribe now.

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Psychological Insights for Veterans Law Attorneys gives you actionable knowledge to help you:

  • Efficiently analyze psychological C&P exam reports (DBQs).

  • Identify errors, misleading conclusions, and erroneous opinions.

  • Stay abreast of highly relevant psychological and psychiatric research relevant to psychological exams.

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How To Challenge the Presumption of Competency for VA Mental Health Examiners

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How To Challenge the Presumption of Competency for VA Mental Health Examiners

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Kandinsky - Black and Violet - 1923Wassily Kandinsky, "Black and Violet" (1923)

Previous Issues

Psychological Insights for Veterans Law Attorneys
June–July 2024

PTSD Claims: Cumulative Trauma

Multiple traumatic experiences over time, i.e., cumulative trauma, can cause PTSD just as much (if not more) than a single traumatic stressor,1,2,3 with a pattern of symptoms and substantial functional impairment characterized as subsyndromal or partial PTSD4 appearing first, often—but not always—followed by full-blown PTSD.5,6

Footnotes – Cumulative Trauma

  1. John Briere, Elisha Agee & Anne Dietrich, Cumulative Trauma and Current Posttraumatic Stress Disorder Status in General Population and Inmate Samples, 8 Psʏᴄʜ. Tʀᴀᴜᴍᴀ 439 (2016) (explaining that a "significant proportion of PTSD cases may not occur because of the effects of a single adverse event, but rather represent the impacts of multiple psychological injuries").

  2. Jacob Y. Stein, Dayna V. Wilmot & Zahava Solomon, Does One Size Fit All? Nosological, Clinical, and Scientific Implications of Variations in PTSD Criterion A, 43 J. Aɴxɪᴇᴛʏ Dɪsᴏʀᴅ. 106 (2016) (explaining that post-traumatic stress symptoms “may accumulate in that each trauma may give rise to different symptoms, and only together do they meet the full range of diagnostic criteria”).

  3. Elie G. Karam et al., Cumulative Traumas and Risk Thresholds: 12-Month PTSD in the World Mental Health (WMH) Surveys, 31 Dᴇᴘʀᴇss. Aɴxɪᴇᴛʏ 130 (2014) (individuals with PTSD who had a history of four or more traumatic events exhibited substantially greater functional impairment than other cases of PTSD).

  4. The DSM-5 diagnosis for subsyndromal posttraumatic stress is: F43.89 Other Specified Trauma- and Stressor-Related Disorder.

  5. Robert H. Pietrzak et al., Subsyndromal Posttraumatic Stress Disorder Is Associated with Health and Psychosocial Difficulties in Veterans of Operations Enduring Freedom and Iraqi Freedom, 26 Dᴇᴘʀᴇss. Aɴxɪᴇᴛʏ 739 (2009) ("subsyndromal/partial PTSD is associated with significant health and psychosocial difficulties").

  6. Alexander McFarlane, Staging Model of PTSD: A Strategy for the Implementation of Precision Medicine in Military Settings, BMJ Mɪʟ. Hᴇᴀʟᴛʜ e002352 (2023) (explaining the importance of a staging model of PTSD that "captures the progression of the disorder and the transitions from being at risk, to subsyndromal disorder, and the path to chronic disorder").

VBA Red Flags: Identifying Inauthentic DBQs

Make sure your independent expert (psychologist or psychiatrist), does not give VBA a reason to question DBQ authenticity.

Red flags for VBA,1 along with my comments:

  • "The non-VA provider identified on the DBQ has contact information that is unverifiable or contains discrepancies."

    • Comment: Unverifiable or discrepant information happens more often than you might think.

      Ensure that the independent examiner's address, phone numbers, email address, website URL, office phone, and fax number are all current and accurate.

      Do not rely on asking the examiner. Do a quick check yourself.

  • The examiner "is located an unreasonable distance (generally, more than 100 miles) from the Veteran’s place of residence, yet the provider reported regularly seeing the Veteran as a patient, and/or that the examination was completed in person."

    • Comment: Your expert should make it clear in their narrative report that they conducted an independent psychological (or psychiatric) exam and that they informed the veteran verbally and on a written Informed Consent document that they are not providing treatment, and the veteran is not a patient.

      These are forensic (medicolegal) evaluations designed to help answer what are ultimately legal questions, they are not clinical evaluations for the purposes of treatment.

      In a similar vein, I often cite the M21-1 Manual to remind VBA staff that: "There is no prohibition against acceptance of a VA examination report for rating purposes from a fee-based medical examiner who has previously submitted a statement on the claimant’s behalf."2,3

  • "The privately completed DBQ contains information that conflicts with the overall evidentiary record, particularly concerning details that impact the outcome of the claim."

    • Comment: Examiners must explain why they came to different conclusions, e.g., regarding diagnosis, items endorsed on the "symptom list", or occupational and social impairment, and why their expert witness opinion (medical opinion) differs from VA examiners and treating clinicians. No ipse dixit declarations!

      VA indicates that a failure to provide a rationale for medical opinions is a leading cause for BVA remands.

      Note that examiners proffer several expert witness opinions, particularly in initial exams, whether or not VA labels them as "medical opinions." Examples include diagnoses, functional impairment ratings, symptom endorsement, and nexus statements.

      Recall that VBA does not request a medical opinion for Initial PTSD claims because the opinion is contained within the Initial PTSD DBQ already. The same is true for Initial Mental Disorder claims.

      When an examiner's report (DBQ or narrative report) contains different opinions, it presents an opportunity to persuade the fact finder to accept the examiner's conclusions with cogent arguments based on sound medical and psychological principles and buttressed by citations to authoritative writings, e.g., peer-reviewed medical and psychological research articles, and medical or psychological treatises.4

Special warning: If your examiner contracts with one of the claim shark predatory companies, VBA will probably not assign much probative weight, if any, to their opinions.

Footnotes – VBA Red Flags

  1. Vᴇᴛᴇʀᴀɴs Bᴇɴᴇғɪᴛs Aᴅᴍɪɴ., Dᴇᴘ'ᴛ Vᴇᴛᴇʀᴀɴs Aғғᴀɪʀs (hereinafter VBA), M21-1 Aᴅᴊᴜᴅɪᴄᴀᴛɪᴏɴ Pʀᴏᴄᴇᴅᴜʀᴇs Mᴀɴᴜᴀʟ (hereinafter M21-Mᴀɴᴜᴀʟ), Potential Indicators of DBQ Inauthenticity, pt. IV, subpt. i, ch. 3, sec. A (rev. Aug. 21, 2024), https://perma.cc/Z3DB-A5TY (scroll down to Potential Indicators of DBQ Inauthenticity, topic 1, block g).

  2. Id. at block q (Accepting a Fee-Based Examiner’s Report).

  3. What does that last sentence mean? Does the examiner have to be a former treating doctor? I discussed this issue on my PTSDexams.net educational website: "... Who Has Previously Submitted a Statement on the Claimant’s Behalf."

  4. 38 C.F.R. § 3.159(a)(1).

 


Psychological Insights for Veterans Law Attorneys
May 2024

Evidence-Based Psychological Assessment Reduces Racial Bias Effect

When analyzing an unfavorable psychological C&P exam report, determine if the examiner conducted an  evidence-based psychological (or psychiatric) examination, including the use of  standardized psychometric tests .

Here is one big reason why evidence-based assessment is so important:

  • Unconscious (implicit) racial bias influences C&P examiner assumptions, perceptions, thinking processes, and conclusions to the detriment of Black veterans, and likely other non-White claimants.

  • However, if the examiner utilizes  standardized psychometric instruments  during the psychological exam, the effects of bias often dissipate.

  • Therefore, when critiquing the probative value of a C&P examiner’s conclusions (e.g., diagnosis, functional impairment) and nexus opinions, consider the impact of  not  using standardized psychometric instruments on the examiner’s conclusions and nexus opinions, and note the potential for implicit bias .

3 Research Studies Demonstrating that Evidence-Based Assessment Significantly Improves Psychological Exam Reliability & Validity

Here are three well-designed studies—all conducted by VA researchers—that highlight the benefits of evidence-based assessment, as well as the potential harm caused when psychologists conduct cursory exams that fail to incorporate empirically-validated assessment methods.

Evidence-based Assessment Improves C&P Exam Quality (2012)

A 2012 VA-funded study compared C&P psychologists’ exam conclusions with a subsequent evaluation by the researchers, who used a structured diagnostic interview and a measure of psychosocial functioning (the standardized group). 1

The standardized assessments were 85% complete for diagnosis compared to 30% for non-standardized assessments, and, for functional impairment, 76% versus 3%.

According to these VA researchers: “The findings demonstrate that the quality of PTSD disability examination would be improved by using evidence-based assessment.”

Evidence-based Assessment Improves C&P Exam Accuracy (2017)

VA research psychologists contacted a large a group of veterans who had a C&P exam for PTSD and for whom the Veterans Benefits Administration (VBA) had either  awarded  service-connection (SC) for PTSD or  denied  SC. 2

The researchers recruited two groups of veterans who agreed to an independent psychological assessment that would not be used for disability claim purposes. The assessment included two empirically-validated assessment instruments:

(1) a structured diagnostic interview, and

(2) a measure of psychosocial functional disability.

Note that most C&P examiners (psychologists) do  not  use these (or similar) standardized  psychometric  instruments.

After evaluating all the veterans, the researchers examined the correspondence between a veteran's diagnostic status (PTSD or no PTSD), as determined by the independent assessment, with the veteran's SC status, and found a 70.2% concordance rate, with 16.7%  false positives , and 13.1%  false negatives , for a total of a nearly 30% discordance rate between PTSD diagnosis (or not) and PTSD SC status (or not).

Here are those results in table form (percentages rounded up to whole numbers):

Actual (True) Condition →

↓ C&P Exam Conclusion ↓

Veteran has PTSD

Veteran does not have PTSD

Veteran diagnosed with PTSD

True Positive (63%)

False Positive (17%)

Veteran not diagnosed with PTSD

False Negative (13%)

True Negative (7%)

Although VBA adjudicators consider sources other than the C&P exam to make SC decisions, the C&P exam is the most significant factor and is therefore the likely cause of the nearly 30% inaccuracy rate.

The authors of this study offered the following conclusions and recommendations.

  • The quality and accuracy of PTSD disability examinations are greatly improved by incorporating evidence-based assessment methods.

  • A thorough, multimethod assessment is necessary in PTSD C&P examinations to determine if a veteran has PTSD (and other mental disorders) in a reliable and valid manner.

  • A multimethod approach combines data derived from various sources and takes advantage of each measures relative strengths, overcoming the psychometric limitations of any single instrument and maximizing correct diagnostic decisions.

Evidence-based Assessment Largely Eliminates Racial Bias Effects (2017)

When reviewing randomly selected C&P exams for PTSD, the VA researchers found that Black veterans were significantly  less  likely than White veterans to receive a PTSD diagnosis, and were  less  likely to receive service-connected disability benefits for PTSD. 3

Furthermore, evaluation of routine Initial PTSD C&P exams found that White veterans were much more likely to be diagnosed with PTSD when they actually did not have the disorder (a false positive result), whereas Black veterans were more likely to  not  be diagnosed with PTSD, when they actually did have the disorder (a false negative result).

When the researchers conducted an independent evaluation of the same veterans, using a diagnosticstructured interview for PTSD and a standardized measure of disability, the discrepancies between Black and White veterans were no longer seen, i.e., the two racial groups had similar rates of false negative and false positive exam results.

Footnotes

  1. Theodore Speroff, et al., Impact of Evidence-Based Standardized Assessment on the Disability Clinical Interview for Diagnosis of Service-Connected PTSD: A Cluster-Randomized Trial, 25 J. Tʀᴀᴜᴍᴀᴛɪᴄ Sᴛʀᴇss 607, 607 (2012).

  2. Brian P. Marx et al., Validity of Posttraumatic Stress Disorder Service Connection Status in Veterans Affairs Electronic Records of Iraq and Afghanistan Veterans, 77 J. Cʟɪɴ. Psʏᴄʜɪᴀᴛʀʏ 517, 521 (2017).

  3. Brian P. Marx et al., The Influence of Veteran Race and Psychometric Testing on Veterans Affairs Posttraumatic Stress Disorder (PTSD) Disability Exam Outcomes, 29 Psʏᴄʜ. Assᴇss. 710, 713 (2017), https://perma.cc/Q9NF-FLCV.

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Psychological Insights for Veterans Law Attorneys
April 2024

Psychological Insights for Veterans Law Attorneys

Published monthly. This is the April 2024 issue.

In this issue ...

Important Considerations for Telemental Health C&P Exams

If your expert plans to conduct a telepsychological exam, they should do so in a manner consistent with ...

I prepared a 3-page document, Telemental Health C&P Exams: What Your Expert Should Explain in their Report , which explains what your private examiner should address in their exam report, such as:

  • Licensure & Interjurisdictional Practice Authorization, e.g., PSYPACT for psychologists.

  • Veteran's privacy during exam.

  • Veteran's computer or other device security .

  • Identity verification.

  • Video conferencing: Software and programs used are HIPAA-compliant with a signed or verified BAA (business associate agreement).

  • Describe security precautions taken for: internet connection, digital document storage, email, document transfer, computer and smart phone, and paper records.

→ Telemental Health C&P Exams: What Your Expert Should Explain in their Report (archived at https://perma.cc/4LTF-89KP ).

Did you know? VA Prohibits Social Media Surveillance

If a veteran you represent received a VA examination that relied on information found on the veteran's social media accounts, you might have grounds to question the credibility of the examiner and the validity of the exam conclusions.

Here is what VA says:

For the purposes of a VA C&P disability examination, web-based and social media resources are not to be used as part of completing the examination ... use of information relating to a Veteran found on the internet or through social media is not to be utilized as this information is not verified.2

Should a Private Examiner Complete an Initial PTSD DBQ?

I recently asked VA about this issue. I wrote:

Should a private, fee-based examiner complete an Initial PTSD DBQ in support of a veteran’s original VA disability claim for posttraumatic stress disorder? 3

I believe the answer is “ no ” for the following reasons.

1) The Department of Veterans Affairs has not made the Initial PTSD DBQ available to the public. While VA provides almost all DBQs on the public-facing VA website, the Initial PTSD DBQ is not one of them.

a) I assume that VA did not include the Initial PTSD DBQ on the public-facing DBQ web page because the 2010 liberalizing regulation regarding fear of hostile military or terrorist activity,4 indicates that a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, must conduct the initial C&P exam for PTSD.5

2) But what if another stressor type, one not related to a fear of hostile military or terrorist activity , caused a veteran’s PTSD? Should a private examiner complete an Initial PTSD DBQ?

a) As far as I know, VA does not provide specific guidance on this point.

i) In fact, none of the other sections of 38 C.F.R. § 3.304 indicate that the examination must be conducted by a VA examiner, including the personal assault section.6

b) However, I assume that if VA wanted private examiners to complete the Initial PTSD DBQ for veterans who have filed a VA disability claim for PTSD due to other stressor types, it would make the Initial PTSD DBQ available to private examiners.

c) I am not aware of any law (statute, regulation, rule, or precedential court decision) that authorizes private examiners to complete an Initial PTSD DBQ.

d) The Initial PTSD DBQ contains statements that clearly convey VA’s intention that the DBQ be completed by VA examiners only, viz ., "Internal Veterans Affairs Use" (underlined, top of first page), and "For Internal VA Use" (bottom left of every page).7

Thus, it seems clear to me that private , fee-based examiners can evaluate a veteran and write a standard psychological (or psychiatric) evaluation report, but they should not complete an Initial PTSD DBQ.

However, I do not know for sure . I recently wrote a letter to Jeffrey London, Executive Director, Medical Disability Examination Office (VBA) asking if my understanding is correct. I will let you know VA's response in a future issue.

Footnotes

1. Vᴇᴛᴇʀᴀɴs Bᴇɴᴇғɪᴛs Aᴅᴍɪɴ., Dᴇᴘ'ᴛ Vᴇᴛᴇʀᴀɴs Aғғ., M21-1 Aᴅᴊᴜᴅɪᴄᴀᴛɪᴏɴ ᴀɴᴅ Pʀᴏᴄᴇᴅᴜʀᴇs Mᴀɴᴜᴀʟ (hereinafter M21-1 Mᴀɴᴜᴀʟ), Tele-C&P and Telemental Health Examination , pt. IV, subpt. i, ch. 3, sec. A, topic 1, block c (rev. Feb. 7, 2024), https://perma.cc/GZ5T-HYGF .

2. Oғғɪᴄᴇ ᴏғ Dɪsᴀʙɪʟɪᴛʏ ᴀɴᴅ Mᴇᴅɪᴄᴀʟ Assᴇssᴍᴇɴᴛ, Vᴇᴛᴇʀᴀɴs Hᴇᴀʟᴛʜ Aᴅᴍɪɴ., Dᴇᴘ'ᴛ Vᴇᴛᴇʀᴀɴs Aғғᴀɪʀs, DMA C&P Dɪsᴀʙɪʟɪᴛʏ Exᴀᴍɪɴᴀᴛɪᴏɴs Pʀᴏᴄᴇᴅᴜʀᴇ Mᴀɴᴜᴀʟ 29 (2023).

3. M21-1 Mᴀɴᴜᴀʟ, Accepting a Fee-Based Examiner’s Report , pt. IV, subpt. i, ch. 3, sec. A, topic 1, block q (rev. Feb. 7, 2024), perma.cc/Z3DB-A5TY .

4. 38 C.F.R. 3.304(f)(3).

5. Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39843, 39846–48 (July 13, 2010), codified at 38 C.F.R. 3.304(f)(3), (explaining why “the evidentiary standard for establishing occurrence of the stressor will be liberalized only if a [VA examiner] confirms that the claimed stressor is adequate to support” a PTSD diagnosis).

6. 38 C.F.R. 3.304(f)(5), see also Post-Traumatic Stress Disorder Claims Based on Personal Assault, 67 Fed. Reg. 10330 (Mar. 7, 2002).

7. See e.g ., Brief for Respondent, Exhibit 4 (at 21–30 of 47-page PDF), Bradford v. McDonough, Vet. App. No. 8861 (Sept. 15, 2021), https://efiling.uscourts.cavc.gov/docs1/01208113924 (pages 21–30 of the Secretary’s brief contain an Initial Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire completed by a VA examiner (psychologist)—DBQ version April 15, 2020~v20_1 ).

Please let me know if you have any questions about topics discussed in this newsletter, or if you would like me to discuss a specific topic in a future Psychological Insights for Veterans Law Attorneys.

Thank you for being a subscriber.

All the best,

Mark

--
Mark D Worthen PsyD
Clinical & Forensic Psychology
PO BOX 410105
CHARLOTTE NC 28241-0105
mobile : ​980-391-6309​ | e​mail : mark@drworthen.net ​ | f​ax : 980-729-5870
websites : ​ DrWorthen.net (practice) & PTSDexams.net



Questions? Contact me and I will be glad to answer them. 

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