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
  
  
• Did you know? VA Prohibits Social Media Surveillance
  
  
• Should a Private Examiner Complete an Initial PTSD DBQ?

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 ...

• professional standards or guidelines, e.g., the Telepsychology Guidelines for Psychologists (2013).
  
  
• VA requirements or expectations described in the M21-1 Manual for Adjudcation Procedures.¹
  
  
• VHA guidance in the Office of Disability and Medical Assessment (DMA) Fact Sheet 20-002 , Telehealth for Compensation and Pension (C&P) Examinations .

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

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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