VA Standard of Proof for non-PTSD, MST-related Disability Claims

VA standard of proof for MST-related disability claims based on mental disorders other than PTSD could change if the Senate passes the Servicemembers and Veterans Empowerment and Support Act of 2021 (S. 3025) and the House of Representatives subsequently passes the legislation and the President signs it.

Sponsored by Sen. Jon Tester (D-MT) with cosponsor Sen. Lisa Murkowski (R-AK), Section 203 of this bill1 would require VA to adjudicate claims for MST-related mental disorders such as major depressive disorder, panic disorder, or post-traumatic stress syndrome (partial PTSD) in the same manner as MST-related PTSD claims.2,3

Section 203 says:

[VA] shall accept as sufficient proof of service-connection a diagnosis of a covered mental health condition by a mental health professional together with satisfactory lay or other evidence and an opinion by the mental health professional that the evidence indicates such trauma occurred and the mental health condition is at least as likely as not related to military sexual trauma, notwithstanding the fact that there is no official record of such incurrence or aggravation in service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. (edited for clarity)

Note: I edited the language for clarity. To read the exact text in stumbling legalese, go to:

Sec. 203. Standard of Proof for Service-connection of Mental Health Conditions Relating to Military Sexual Trauma.

VA Standard of Proof — Again?

I thought that the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020 (Pub. L. No. 116-315, 134 Stat. 4932) had resolved the problem by explicitly defining "covered mental health condition" as applied to MST-related claims (it's in Section 5501 of the Act).

The Act established a new statute, 38 U.S.C. 1166(c)(1), which states:

The term ‘covered mental health condition’ means post-traumatic stress disorder, anxiety, depression, or other mental health diagnosis described in the current version of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association that the Secretary determines to be related to military sexual trauma.

But it seems that was not enough. Apparently Congress needs to establish a specific VA standard of proof for MST-related claims that again defines "covered mental health condition" and adds language similar to 38 C.F.R. § 3.304(f)(5), the regulation governing MST-related claims for PTSD.

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1. S. 3205, 117th Cong. § 203 (2021, amended 2022).

2. A constellation of post-traumatic stress symptoms that cause functional impairment or significant distress but do not satisfy all of the DSM-5 diagnostic criteria for PTSD are referred to by several different terms, such as:

  • post-traumatic stress syndrome
  • subthreshold PTSD
  • partial PTSD
  • subsyndromal post-traumatic stress

These conditions are usually assigned a DSM-5 diagnosis of Other Specified Trauma and Stressor-Related Disorder. The ICD-10-CM code associated with that diagnosis is F43.8 Other reactions to severe stress.

Note that DSM-5 does not have its own diagnostic coding system. Instead, DSM-5 uses ICD-10-CM codes. Sometimes a precise correspondence between a DSM-5 diagnosis and an ICD-10-CM diagnosis does not exist. In those instances DSM-5 uses the ICD-10-CM code for a similar disorder.

338 C.F.R. § 3.304(f)(5) details the service-connection criteria for PTSD due to in-service personal assault.

4. Evaluation of Service-connection of Mental Health Conditions Relating to Military Sexual Trauma, Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020, Pub. L. No. 116-315, § 5501(a), 134 Stat. 4932, 5048 (Jan. 5, 2021); see also Technical Correction, which explains minor changes introduced by Pub. L. 117–16, § 7(a)(1), 135 Stat. 284 (June 8, 2021). is an educational site with no advertising and no affiliate links. Dr. Worthen conducts Independent Psychological Exams (IPE) with veterans, but that information is on his professional practice website.

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