The Ruth Moore Act of 2013 on military sexual trauma (MST) turns mental health professionals into adjudicators, a role reserved exclusively for the Veterans Benefits Administration (VBA) in all other disability claims. In addition, the Act assumes that under the present system, psychologists and psychiatrists possess a high accuracy rate when evaluating veterans for PTSD (or other mental disorders) due to MST, an assumption that is very likely not accurate.
What is the Ruth Moore Act?
The Ruth Moore Act (H. R. 671) requires that the Secretary of the Department of Veterans of Affairs report to Congress annually on the number of disability claims filed by veterans due to military sexual trauma (MST), including the percentage of claims denied and for what reasons; for accepted claims, the disability ratings assigned, by gender; details on MST-specific training provided to Veterans Benefits Administration (VBA) employees; and other related information.
The Act also includes a Sense of Congress stating that the Secretary “should update and improve the regulations of the Department of Veterans Affairs with respect to military sexual trauma…” by classifying military sexual trauma as an “in-service stressor” as is done for combat trauma in current regulations [38 C.F.R. § 3.304(f)(3)], and “recognizing the full range of physical and mental disabilities … that can result from military sexual trauma.” The Sense of Congress portion of the bill specifies that, in addition to PTSD, depressive, anxiety, and other mental disorders that commonly afflict sexual trauma survivors should be considered service-connected.
The Act reiterates the definition of MST found in 38 U.S.C. § 1720D(a)(1), viz., “The term ‘military sexual trauma’ means, with respect to a veteran, psychological trauma, which in the judgment of a mental health professional, resulted from a physical assault of a sexual nature, battery of a sexual nature, or sexual harassment which occurred during active military, naval, or air service.”
The Ruth Moore Act passed the House of Representatives by voice vote on 4 June 2013. The companion Senate bill (S. 294) was introduced to the Committee on Veterans Affairs on 13 February 2013, but the Committee has not voted on the bill yet.
Mental Disorders Other Than PTSD
I agree that sexual assaults can cause mental disorders other than PTSD, and that the VA should grant service connection for these disorders, just as they currently do for PTSD. In fact, it would be great to change that for combat-related PTSD too [in 38 C.F.R. § 3.304(f)(3)], so that veterans with, for example, subsyndromal posttraumatic stress (also known as ‘partial PTSD’ or ‘subthreshold PTSD’) could obtain disability benefits with less difficulty.
VA Has Already Improved the MST Claims Process
And I concur that until very recently many deserving MST survivors did not receive VA disability benefits because it was so hard for them to provide evidence that a sexual assault (or assaults) took place. However, VA has addressed this problem in several ways, perhaps most importantly by requiring the Veterans Benefits Administration (VBA) to consider circumstantial evidence (behavioral markers) when developing and adjudicating MST-related claims.1
Note that in most legal proceedings, plaintiffs or claimants cannot introduce circumstantial evidence. However, in keeping with the informal nature of veterans disability benefits adjudicative proceedings, and the pro-veteran emphasis in veterans law, VA identified many possible MST ‘markers’, e.g., health care visits for gynecological problems or requests to be tested for sexually transmitted diseases, which VHA mental health professionals and VBA adjudicators can consider in their evaluations or deliberations.
Note that while a rational basis exists for these ‘behavioral markers’, in most instances they lack an empirical foundation, which is further evidence of VA’s willingness to exercise great flexibility when evaluating MST claims.
Psychologist & Psychiatrist Adjudicators?
The Ruth Moore Act delegates the adjudicative decision in MST claims to mental health professionals. While one could argue that the Veterans Benefits Administration “still makes the final decision”, the way Congress wrote the Ruth Moore Act, the VBA RSVR (‘Rater’) would be hard pressed to justify denying service connection for MST if a VA psychologist or psychiatrist opines that the Veteran suffers from a mental disorder due to military sexual trauma(s).
Our country’s judicial system has a long history of seeking and respecting information and opinions from expert witnesses,2 while at the same time assigning the decision-making role to lay persons, i.e., a jury, judge, or other adjudicator. Why should veterans disability benefits determinations for MST claims be an exception?
Accuracy of Diagnostic and Etiological Opinions
In addition, an underlying assumption in the Ruth Moore Act is that under the present system, VA psychologists and psychiatrists3 routinely determine if a veteran has PTSD or another mental disorder caused by MST with a high degree of accuracy. There are persuasive reasons to believe that this assumption is wrong:
a) In a comprehensive review, the Institute of Medicine concluded that VA needs to ensure that facilities allocate enough time for PTSD C&P exams, something that often does not happen.
The key to proper administration of VA’s PTSD compensation program is a thorough compensation and pension (C&P) clinical examination conducted by an experienced professional. … [A]n optimal assessment of a patient consists of a face-to-face interview in a confidential setting with a health professional experienced in the diagnosis of psychiatric disorders. It is critical that adequate time be allocated for that assessment. … Many of the problems and issues identified by the committee in previous chapters can be addressed by consistently allocating and applying the time and resources needed for a thorough PTSD C&P clinical examination. … anecdotal remarks to the committee suggest that not all evaluations are currently performed in a thorough manner.4 [emphasis added]
b) Despite this recommendation, many VA facilities require C&P psychologists to complete four, five, or even six C&P exams per day, as evidence by a recent job posting for a C&P psychologist on USAJobs.gov:
It is expected that up to six examinations (i.e. face-to-face appointments with the patient) will be completed in a day, with the psychologist expected to review the Claims file, medical record, and associated background materials, perform the examination of the patient as requested by Newark Regional Office of VBA, and complete documentation of the examination by dictation or by typing within 24 hours. [emphasis added]
c) Assuming that the C&P psychologist needs at least a little time for bathroom breaks, meetings, consulting with colleagues, etc., then six exams per day translates into about 1.25 hours per exam, a time allotment in stark contrast with VA’s own guidance indicating that 3-4 hours should be allocated for Initial PTSD C&P exams.5
d) Although both the VA Best Practice Manual for PTSD C&P Exams and the VA Clinicians’ Guide to C&P Examinations highly recommend use of a diagnostic structured interview, such as the Clinician-Administered PTSD Scale (CAPS), which the VA’s National Center for PTSD calls the “gold standard” of PTSD assessment, 85% of VA C&P examiners do not follow these guidelines.6
e) And it’s not just guidelines, empirical evidence exists showing that use of standardized assessment procedures such as the CAPS structured diagnostic interview, lead to more accurate diagnoses specifically during PTSD C&P exams.7 But keep in mind, that only 15% of VA C&P examiners use these procedures.
Therefore, placing all of the responsibility for determining if a veteran suffers PTSD due to MST in the hands of VA C&P examiners may be misguided. Under the current system, there are checks and balances between VBA and VHA, which I believe on balance leads to more accurate determinations. The VA said it well in recent Congressional testimony:
…38 U.S.C. § 1154 requires consideration of the places, types, and circumstances of service when evaluating disability claims and provides for acceptance of lay statements concerning combat-related injuries, provided evidence establishes that the Veteran engaged in combat. H.R. 671 would expand section 1154 to require VA to accept lay statements as sufficient proof of in-service events in all MST claims involving covered mental health conditions, based solely on the nature of the claim and without requiring the objective markers, such as combat service, that are essential to the effective operation of section 1154. Without the requirement of any evidentiary threshold for the mandatory acceptance of a lay statement as sufficient proof of an occurrence in service, this bill would eliminate, for discrete groups of Veterans, generally applicable requirements that ensure the fairness and accuracy of claim adjudications.8
1. The relevant section of 38 C.F.R. § 3.304(f)(5) is: “If a posttraumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes.”
2. The federal courts consider C&P examiners to be expert witnesses: “Both VA medical examiners and private physicians offering medical opinions in veterans benefits cases are nothing more or less than expert witnesses.” – Nieves-Rodriguez v. Peake, 22 Vet.App. 22 Vet.App. 295 at 304 (2008) [PDF].
3. The phrase ‘VA psychologists and psychiatrists’ includes clinicians employed by VA; fee-for-service professionals who are not VA employees, but who perform C&P exams at VA facilities; and contract providers, i.e., psychiatrists and psychologists in private practice who perform compensation and pension examinations for third-party companies who in turn have a contract with VA to perform C&P exams.
4. Committee on Veterans’ Compensation for Posttraumatic Stress Disorder, National Research Council. PTSD Compensation and Military Service (pp. 205-206). The National Academies Press, 2007.
5. The VA Best Practice Manual for PTSD C&P Exams (pp. 21-22) indicates 3 or more hours, and the VA Clinicians’ Guide to C&P Examinations (Section 14-6, p. 201) recommends 3-4 hours for Initial PTSD exams.
6. Jackson, J. C., Sinnott, P. L., Marx, B. P., Murdoch, M., Sayer, N. A., Alvarez, J. M., et al. (2011). Variation in practices and attitudes of clinicians assessing PTSD-related disability among veterans. Journal of Traumatic Stress, 24(5), 609-613. doi:10.1002/jts.20688 | PMID:21913226
7. Speroff, T., Sinnott, P. L., Marx, B., Owen, R. R., Jackson, J. C., Greevy, R., … Friedman, M. J. (2012). Impact of evidence-based standardized assessment on the disability clinical interview for diagnosis of service-connected PTSD: a cluster-randomized trial. Journal of Traumatic Stress, 25(6), 607–615. doi:10.1002/jts.21759 | PMID:23225029
8. HEARING BEFORE THE SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS OF THE COMMITTEE ON VETERANS’ AFFAIRS, U.S. HOUSE OF REPRESENTATIVES, ONE HUNDRED THIRTEENTH CONGRESS, FIRST SESSION, TUESDAY, APRIL 16, 2013, pp. 55-56. Serial No. 113–16.
What do you think? Please comment below!