C&P Exam News

This page features C&P exam news: The latest reports, announcements, proposed regulation changes, upcoming court cases, and more!

News about Department of Veterans Affairs (VA) compensation and pension (C&P) exams for post-traumatic stress disorder (PTSD) and other mental disorders.


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C&P Exam News: Table of Contents

 


 

 


 


 


 

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Advisory Committee on Disability Compensation Seeks Nominations for New Members

29 Sep 2020 - The Department of Veterans Affairs (VA), Advisory Committee on Disability Compensation (the Committee), is seeking nominations of qualified candidates to be considered for appointment as a member of the Advisory Committee for the 2020—2021 membership cycle.1

Deadline for receipt of nominations is 16 Oct 2020 @ 1600 EDT.

All nomination packages should be emailed to the Designated Federal Officer (DFO), Sian Roussel at:  sian.roussel@va.gov

Portions of the announcement are reproduced below, with minor editing to ease online reading. 

Please also read the complete official announcement, the citation for which is:

Solicitation of Nomination for Appointment to the Advisory Committee on Disability Compensation, 85 Fed. Reg. 61,110 (Sept. 29, 2020).


Committee Responsibilities

(1) Advising the Secretary and Congress on the maintenance and periodic readjustment of the VA Schedule for Rating Disabilities (VASRD).

(2) Providing a biennial report to Congress assessing the needs of Veterans with respect to disability compensation and outlining recommendations, concerns, and observations on the maintenance and periodic readjustment of the VA Schedule for Rating Disabilities.

(3) Meeting with VA officials, Veterans Service Organizations, and other stakeholders to assess the Department's efforts on the maintenance and periodic readjustment of the VA Schedule for Rating Disabilities.

Management and support services for the Committee are provided by VBA.


Membership Criteria

VBA is requesting nominations for upcoming vacancies on the Committee. The Committee is currently composed of 13 members.

As required by statute, the members of the Committee are appointed by the Secretary from the general public, including:

(1) Individuals with experience with the provision of disability compensation by VA;

(2) Individuals who are leading medical and scientific experts in relevant fields.



Professional Qualifications

In addition to the criteria above, VA seeks:

(1) Diversity in professional and personal qualifications;

(2) Experience in military service and military deployments (please identify branch of service and rank);

(3) Current work with Veterans;

(4) Disability compensation subject matter expertise;

(5) Experience working in large and complex organizations.


Nomination Package

The nomination package should include:

(1) A letter of nomination that clearly states the name and affiliation of the nominee, the basis for the nomination (i.e., specific attributes that qualify the nominee for service in this capacity), and a statement from the nominee indicating a willingness to serve as a member of the Committee;

(2) the nominee's contact information, including name, mailing address, telephone numbers, and email address;

(3) the nominee's curriculum vitae, and

(4) a summary of the nominee's experience and qualifications relative to the membership criteria and professional qualifications listed above.

Nominations must state that the nominee is willing to serve as a member of the Committee and appears to have no conflict of interest that would preclude membership.

All nomination packages should be emailed to the Designated Federal Officer (DFO), Sian Roussel at:  sian.roussel@va.gov

Deadline for receipt of nominations is 16 Oct 2020 @ 1600 EDT.


Term of Office, Stipend & Expenses, Balance

Individuals selected for appointment to the Committee shall be invited to serve a two-year term.

Committee members will receive a stipend for attending Committee meetings, including per diem and reimbursement for travel expenses incurred.

The Department makes every effort to ensure that the membership of its Federal advisory committees is fairly balanced in terms of points of view represented.

Complete, official announcement is available in the Federal Register:

Solicitation of Nomination for Appointment to the Advisory Committee on Disability Compensation, 85 Fed. Reg. 61,110 (Sept. 29, 2020).


New PAI Plus

Psychological Assessment Resources, Inc. (PAR) recently began offering updated and enhanced scoring for the Psychological Assessment Inventory, the PAI Plus

In addition to the information below, I recommend reviewing the PAI Plus sample score report (PDF) on the PAR website.

Note: For an important recent article on PAI negative distortion scales, also known as "over-reporting" or "exaggeration and feigning" scales, see What is the Best PAI Validity Scale for PTSD Exams? on this website (PTSDexams.net).


Key Points: PAI Plus

  • The PAI Plus offers significantly more information about a respondent's response style and clinical presentation than the standard PAI scoring report.

  • If you decide to use the PAI Plus, I highly recommend purchasing the PAI Plus eManual Supplement (11536-EM) because it contains crucial information for proper interpretation of scores.

    • The PAR search engine is not the best, so you might have trouble finding the eManual. To order the PAI Plus eManual Supplement, go to: https://www.parinc.com/Products/Pkey/120527 and then click on the "Pricing" tab.

  • You will need to download Adobe Digital Editions (ADE), an ebook reader, in order to view the PAI Plus eManual. The ADE is available for smart phones (Apple & Android) and desktop (Windows & Mac).

Note: I do not have any affiliation whatsoever with PAR, Inc. or Adobe.



Supplemental PAI Indices

The new PAI Plus score report (and interpretative report), provide scores for the following supplemental PAI indices.

Important note: In this list of Supplemental PAI Indices (below), experimental indices are denoted with an asterisk (*) and italicized text. They should be interpreted with caution because of the limited cross-validation research.


PAI Plus Negative Distortion Indicators

  • Malingering Index

  • Rogers Discriminant Function

  • Negative Distortion Scale*

  • Hong Malingering Index*
  • Multiscale Feigning Index*
  • Malingered Pain-Related Disability Discriminant Function*


PAI Plus Positive Distortion Indicators

  • Defensiveness Index
  • Cashel Discriminant Function
  • Positive Distortion Scale*
  • Hong Defensiveness Index*


PAI Plus Non-systematic Distortion Indicators

  • Back Random Responding
  • Hong Randomness Index*


PAI Plus Supplemental Clinical Indicators

  • Suicide Potential Index
  • Violence Potential Index
  • Treatment Process Index
  • ALC Estimated Score
  • DRG Estimated Score
  • Mean Clinical Elevation
  • Inattention (INATTN) Index*
  • Neuro-Item Sum*
  • Violence and Aggression Risk Index*
  • Reactive Aggression Scale*
  • Instrumental Aggression Scale*
  • Level of Care Index*
  • Chronic Suicide Risk (S_Chron) Index*
  • RXR Estimated Score*

Important note: In the list of PAI Supplemental Indices (above), experimental indices are denoted with an asterisk (*) and italicized text. They should be interpreted with caution because of the limited cross-validation research.

Suggestion: In addition to the information above, I recommend reviewing the PAI Plus sample score report (PDF) on the PAR website.



VA Proposes to Change How "Aggravation" is Defined

Now this is important C&P exam news.

The Department of Veterans Affairs plans to change how the Code of Federal Regulations defines "aggravation" for purposes of service connected disability benefits.2 


Key Points

  • VA plans to require "permanent worsening" in order to award service connected disability benefits due to "aggravation".

  • You may post a public comment on Regulations.gov regarding this proposed change until 10 November 2020.

  • Public comments make a difference! Federal agencies—including the Department of Veterans Affairs—often make changes to proposed regulations after considering comments posted by U.S. citizens.

  • Before you start writing a comment, be sure to read How to Use Regulations.gov and review the Frequently Asked Questions.

  • My (Dr. Worthen's) comment is available on the Regulations.gov website or you can download the PDF.


"Permanent Worsening"

This is VA's summary introduction to the proposed changes:

The Department of Veterans Affairs (VA) proposes its adjudication regulations relating to aggravation of service-connected disabilities to more clearly define ‘‘aggravation’’ in serviceconnection claims. The revisions would explicitly confirm a singular definition of ‘‘aggravation’’ that includes the requirement of ‘‘permanent worsening.’’ The revisions would also include minor organizational and technical changes.

Why Change the Definition of Aggravation?

The proposed changes will apply to both in-service aggravation of an existing condition3, and post-service aggravation of an existing condition by a service-connected disability.4 

The following quote from the Federal Register provides the gist of VA's reasoning, but I encourage you to read the entire proposal for complete understanding.

The primary purpose of this proposed regulatory amendment is to provide a singular definition of ‘‘aggravation’’ by clarifying two phrases contained within 38 CFR 3.306 and 3.310; specifically, ‘‘increase in disability’’ in section 3.306 and ‘‘any increase in severity’’ in section 3.310.

These phrases are not currently defined by statute or regulation, but rather by case law. ... Both 38 CFR 3.306 and 3.310 serve the same ultimate goal of compensating veterans for increase in disability, whether based on aggravation of a preexisting disability (in-service context) or aggravation of a nonserviceconnected disability (post-service context).

Although these regulations are built on the same fundamental concepts, the differences in their wording have caused confusion over how to apply ‘‘aggravation’’ in both contexts.

Because the phrases ‘‘increase in disability’’ and ‘‘any increase in severity’’ are not clearly defined, there has been uncertainty over what standard to use in determining whether ‘‘aggravation’’ is demonstrated.

The incongruent wording in these two regulations has been a consistent point of confusion and contention in the claims process, including on appeal.

[emphasis & paragraph breaks added to ease online reading]



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Comparison Between Versions

The current regulation and proposed version are below. I highlighted substantial differences in light green.


Aggravation of preservice disability, 38 C.F.R. § 3.306CURRENT

(a) General. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.


Aggravation of preservice disability, 38 C.F.R. § 3.306PROPOSED

(a) General. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service when there is an increase in disability during such service. Except as otherwise noted in paragraph (b)(2) in this section, service connection will only be warranted if the increase in disability is permanent and not attributable to the natural progress of the injury or disease. Temporary or intermittent flare-ups do not constitute an increase in disability unless the underlying injury or disease shows permanent worsening

[Note: (b)(2) is the same in the current and proposed versions.]


Disabilities that are proximately due to, or aggravated by, service-connected disease or injury, 38 C.F.R. § 3.310CURRENT

(a) General. Except as provided in § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.

(b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level.


Disabilities that are proximately due to, or aggravated by, service-connected disease or injury, 38 C.F.R. § 3.310PROPOSED

(a) Secondary disabilities. Except as provided in § 3.300(c), a disability that is proximately due to or the result of a service-connected disability shall be service connected. When service connection is established for a secondary disability, it shall be considered a part of the original disability.

(b)(1) Aggravation of nonservice-connected disabilities. An increase in disability of a nonservice-connected injury or disease that is proximately due to or the result of a service-connected disability will be service connected on the basis of aggravation. Service connection will only be warranted if the increase in disability is permanent and not attributable to the natural progress of the injury or disease. Temporary or intermittent flare-ups do not constitute an increase in disability unless the underlying injury or disease shows permanent worsening.

(2) Baseline level of severity. VA will not concede that a nonserviceconnected injury or disease was aggravated by a service-connected injury or disease unless the baseline level of severity of the nonservice-connected injury or disease is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice connected injury or disease. 

(3) Extent of aggravation. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the injury or disease, from the current level.



VA Inspector General's Report

The Department of Veterans Affairs removed the Disability Benefits Questionnaires (DBQs) from the VA website after this VA Office of Inspector General (VAOIG) report was published:

Off. Inspector Gen., Dep't Veterans Aff., Rep. No. 19-07119-80Telehealth Public-Use Questionnaires Were Used Improperly to Determine Disability Benefits (Feb. 18, 2020).

The VAOIG summarized their findings as follows.

This review was prompted by veterans’ benefits claims transmitted from VBA’s Medical Disability Exam Quality and Program Management Office as part of an effort by VA to identify potentially fraudulent claims in response to prior OIG report recommendations.

Moreover, VA regional office staff had related allegations to theOIG hotline.

At issue were healthcare providers who did not practice in the state, territory, or countrywhere the veterans reside allegedly being paid to complete the public-use questionnaires and document conditions meriting disability benefits without ever seeing the veteran in person.

These questionnaires were being completed via “telehealth”—health care provided remotely through telecommunications technologies. The use of private provider telehealth examinations for rating purposes is prohibited

[emphasis & line breaks added to facilitate online reading]



Committee Questions VA's Prohibition Against Private Practitioner Telemental Exams

Key Point

  • The Committee questioned why VA-contracted examiners in the private sector have been encouraged to conduct telehealth C&P exams, whereas VA forbids the use of telehealth technology by veteran-requested examiners.

Brief Summary

This is important C&P exam news I had somehow missed.

Members of the Advisory Committee on Disability Benefits discussed VBA's policy to encourage VA-employed and VA-contracted examiners to utilize telemental exam capabilities, but to forbid non-VA psychologists and psychiatrists from using the same technology. 

Veterans have a right to submit IME (independent medical exam) or IPE (independent psychological exam) findings to support their claim.

Veterans are thus at a disadvantage because in many instances if they (or their attorneys) wish to retain an independent expert, the veteran might have to travel hundreds or thousands of miles and incur significant expenses for travel, lodging, and food costs, as well as lost time from work. 

Here is what Advisory Committee members had to say about this unjust VA policy:

Mr. Wunderlich cited an Office of Inspector General (OIG) report that only 81 claims from April 2017 to September 2018 were deemed potentially fraudulent, and of those, only three were referred to OIG.

Furthermore, he argued that VA’s response did not really address Ms. Knowles’ concerns.

Mr. Hazell noted that the OIG report also mentioned the improper use of telehealth by private providers, but added that neither U.S. Code (U.S.C.) nor regulation prohibited [use of telehealth by private providers].

[Mr. Hazell] added that it was odd that VA was discouraging telehealth by private providers while expanding the ability of VHA and contract examiners to perform telehealth exams. Acting Chairman Pamperin agreed.

Dr. Sprague noted that his local Veterans Integrated Service Network had shut down all C&P exams during the COVID-19 pandemic except those that could be conducted by telehealth.

Acting Chairman Pamperin acknowledged VA’s right to make these kinds of policy decisions, but said that there was an obvious disconnect between this decision and what was actually going on, and suggested that the Committee include this topic in its biennial report.

Mr. Hazell offered to spearhead the write-up. Acting Chairman Pamperin pointed out that the topic seemed to have hit a sensitive note with several members, and encouraged Mr. Hazell to coordinate with them. Mr. Hazell said he was willing to do so.

[emphasis & line breaks added to facilitate online reading]


For a detailed discussion of this topic, see Telemental Exams by Private Practitioners: VA's Ambiguous Guidance Causes Confusion on this website (PTSDexams.net).



New York Times front page, 11 November 1918.New York Times, 11 November 1918 (public domain).

Footnotes

1. Solicitation of Nomination for Appointment to the Advisory Committee on Disability Compensation, 85 Fed. Reg. 61,110 (Sept. 29, 2020).

2. Aggravation Definition, 85 Fed. Reg. 56,189 (Sept. 11, 2020).

3. Aggravation of preservice disability, 38 C.F.R. § 3.306 (2019).

4. Disabilities that are proximately due to, or aggravated by, service-connected disease or injury, 38 C.F.R. § 3.310 (2019).

5. Advisory Committee on Disability Compensation, 38 U.S.C. § 546 (2018).



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